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High Court rules that defendant was entitled to make lodgement without the leave of the court after the re-trial of the original hearing was ordered by the Court of Appeal, on the grounds that: (a) the public policy underpinning lodgements is to encourage parties to settle without a court hearing; (b) the re-trial amounts to the hearing of a new action; and (c) the defendant did not gain any particular advantage over the plaintiff by having lodged after the hearing of the first High Court trial, the subsequent appeal and, lastly, an unsuccessful attempt at mediation.
High Court - lodgements - O 22 RSC - O 22 r1(1) - lodgements may be made without leave prior to serving of notice of trial - lodgements after notice of trial must be made with leave of court, save in certain circumstances relating to Personal Injuries actions - whether Defendant is entitled to lodge without leave after re-trial is directed by Court of Appeal - whether Defendant has gained an unfair advantage by having heard the Plaintiff's case at the first hearing, in the Court of Appeal and at mediation - Court finds that no unfair advantage exists in this case - both parties know each other's case from first hearing in High Court - court notes public policy underpinning lodgements, namely to encourage parties to settle prior to hearing - court notes that, although lodgements after mediation has occurred can be made in circumstances where the Defendant has an unfair insight into the strength and weakness of the Plaintiff's case, this is not so in this instance - prior to mediation, Defendant put Plaintiff on notice that it was lodging - court finds that lodgement was made in compliance with the rules.
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