Lets pick this rule, I like the way it sounds

Sometimes, at some point of our career as litigators, we come across one of those lawyers or law firms. Yes, one of those that make life infinitely more difficult than it has to be, that make a mountain from an ant hill.

Consider that a client comes to you and from her instructions and the documents filed to date, you see that the two don't exactly match. So you, at the next Registrar's Review of the matter, you inform the Court that if negotiations are unsuccessful your client will be filing amended pleadings to better set out the question between the parties. And kabaam! the opposing counsel jumps at this submission and files a memorandum inviting your client to withdraw their entire application, in reliance on a particular Court rule.

Rule 399, which says:

399Insufficient affidavit of assets and liabilities

• (1)Subclause (2) applies to a party to an application to which this rule applies (party A) if—

  • (a)the other party to the application (party B) files an affidavit of assets and liabilities, purporting to set out the property of party B that is or may be in issue in the proceedings; but

  • (b)party A believes on reasonable grounds that the affidavit does not accurately set out the nature and value of the property of party B that is or may be in issue in the proceedings.

  (2)Party A may apply to the court, either without notice or on notice, for—

  • (a)an order requiring party B to file a sufficient affidavit of assets and liabilities; or

  • (b)an order, under section 38(1) of the Act, for an inquiry into the nature and value of the property of party B that is or may be in issue in the proceedings.

Right, it does not state anything that may remotely indicate that the applicant should withdraw his/her application just because the pleading needs to be amended. In fact, this rule has nothing to do with amendment of pleadings - it deals specifically (and as clearly stated) with affidavit of assets and liabilities.

Did opposing counsel just pick this out of the various rules available, randomly, and decide to put it in their submission to make it look more reasonable? What is the basis here?

But thats not all. Opposing counsel then goes on to submit that if the application is not withdrawn, the respondent will apply for the entire thing to be struck out! How reasonable is that really? Especially given that the applicant has already indicated that he/she wishes to file amended pleadings, which I may state she is entitled to seek through an interlocutory application.

Yes, this was a venting post. Argh.