LARS S.A. v Bone China Pty Ltd

1. [1]

   The primary dispute between the parties has arisen on the basis of monies said by the plaintiff (LARS) to be due and unpaid as a consequence of goods sold and delivered to the defendant (Bone China). LARS is a manufacturer and seller of synthetic ligaments that are used in orthopaedic surgery. The second cross-defendant (Dr Laboureau) is the inventor of the material in question and an officer of LARS.

2. [2]

   These reasons concern a cross-claim being made by the defendant against the plaintiff, who is the first cross-defendant, Mr Laboureau, and Mr Quint, who is the third cross-defendant. The cross-claim has proceeded through a number of iterations. Bone China is now seeking to file a Third Further Amended Statement of Cross-Claim (TFACC) which, among other things, removes Mr Timothy Gerber as the second cross-claimant.

3. [3]

   Bone China raises a defence by way of set off and, in the TFACC, articulates allegations against the cross-defendants comprising an estoppel and a claim for restitution in addition to a claim that the first cross-defendant (Dr Laboureau) and second cross-defendant (Mr Quint) made various misrepresentations about their authority. The cross-claim in its initial articulation joined Dr Laboureau and Mr Quint as cross-defendants – they were not parties to the proceedings commenced by LARS.

4. [4]

   On 6 March 2015 McDougall J heard an application by Dr Laboureau to have the cross-claim, insofar as it made allegations against him, struck out. It was his Honour’s opinion that the pleading against Dr Laboureau was “woefully defective.” His Honour gave leave for the Bone China to file and serve a further amended cross-claim by 23 March 2015.

5. [5]

   On 23 April 2015 the matter came before me. I struck out the Second Further Amended Cross-Claim and gave Bone China until 7 May 2015 to serve upon the cross-defendants a Third Further Amended Statement of Cross-Claim. That occurred, and the Court was furnished with a copy at a directions hearing on 15 May 2015. On 25 May 2015 the cross-defendants were served with another version of the TFACC, which differed substantively from the version served on 7 May 2015. That is the version of the document considered in this judgment.

6. [6]

   Bone China is seeking leave to file the TFACC. Dr Laboureau opposes leave being granted on two substantive bases. First, he makes the submission the proceedings ought to be permanently stayed on the basis of forum non conveniens. Second, he alleges a number of deficiencies or inadequacies in the proposed TFACC.

Background facts

1. [7]

   As mentioned above, the dispute between the parties has arisen on the basis of monies said by the plaintiff to be due and unpaid as a consequence of goods sold and delivered to the defendant.

2. [8]

   The matters raised by the TFACC pertain to representations said to have been made by Dr Laboureau on behalf of LARS that LARS wanted Bone China to distribute LARS products (the relevant product is referred to as the “LARS Ligament”) in China and to expand Bone China’s business into China. These representations are said to have been made orally during the course of a number of telephone and Skype conversations in August and September 2010.

3. [9]

   Dr Laboureau is a French national who lives in Cannes. The representations made by Dr Laboureau are particularised in the TFACC by reference to an affidavit of Mr Timothy Gerber of 4 April 2014. Dr Laboureau is said by Bone China to have made representations referred to as the “Ongoing Supply Representation and Promise” and further to have represented that he had authority to make the Ongoing Supply Representation and Promise on behalf of LARS.

4. [10]

   The representations alleged to have been made by Dr Laboureau are said to have been made in France, Malaysia, China and the Maldives. It is common ground between the parties that the law applicable to various claims might be foreign law. Bone China accepts, citing Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 606, that in determining the proper law of its tortious claims against Dr Laboureau it is where Dr Laboureau acted, not where the consequences of his conduct were felt, which would usually be important,

Submissions of the parties

1. [11]

   Dr Laboureau submits that there is no relevant connection between Australia and the subject matter of the cross-claim. He says that Bone China is claiming that a French company, LARS, through a French shareholder (Dr Laboureau) and a Dutch managing director (Mr Quint), made certain representations about the future supply from Europe to China of artificial ligaments for distribution by Bone China to medical practices in China.

2. [12]

   Dr Laboureau says the only connection of any kind to Australia is that Bone China was incorporated in New South Wales in 2009 and Mr Gerber, the sole shareholder and director, now lives in Sydney. At the time the representations complained of were made, Mr Gerber apparently lived in China.

3. [13]

   Dr Laboureau submits that the lex loci delicti of the representations referred to in the TFACC is China, France, Malaysia or the Maldives, depending upon the location of the parties at the time. He says that there is no tort alleged to have been committed by Dr Laboureau in Australia. In this context, given that the lex causae is the French, Chinese, Malaysian or Maldives law, Dr Laboureau submits that the Supreme Court of New South Wales is clearly an inappropriate forum for the determination of the matter.

4. [14]

   Bone China points out, first, that it was not Bone China’s decision to litigate in Australia; it was the choice of LARS, who elected to sue an Australian company in Australia for goods sold and delivered in Australia. Bone China submits that the application concerns a multiplicity of proceedings relating to the same substratum of facts and that thus there are public policy reasons a stay should be refused.

5. [15]

   Furthermore, Bone China submits that the representation claim against LARS by Bone China will, forensically, involve Dr Laboureau at “front and centre”. In those circumstances, Bone China says that it would be “senseless” to split the hearing of the cross-claim as it pertains to LARS from the cross-claim relating to Dr Laboureau.

6. [16]

   The set-off claim made by Bone China relates to the alleged representations by LARS to Bone China through Dr Laboureau and Mr Quint. As a consequence of the claim to set-off, the allegations concerning the representations form an element of both Bone China’s defence and Bone China’s cross-claim.

7. [17]

   Bone China submits that correspondence with LARS indicated that LARS will seek to deny that Dr Laboureau and Mr Quint acted within their actual, apparent or ostensible authority in making the alleged representations. As a consequence, Bone China has included discrete claims against Dr Laboureau and Mr Quint. In those circumstances, Bone China says that the cross-claim against Dr Laboureau will not require much additional hearing time.

8. [18]

   Bone China submits that the Court will need to determine, inter alia, whether the alleged representations were made by Dr Laboureau and Mr Quint and whether those representations were made with the authority of LARS. Forensically, Bone China says that it is likely Dr Laboureau will need to be called as a witness, and hence the requirement he be in Australia to defend the claims against him will not impose additional inconvenience. Further, Bone China says, citing Colosseum Investment Holdings Pty Ltd v Vanguard Logistics Services Pty Ltd [2005] NSWSC 803 (Colosseum Investment v Vanguard) at [87] that the need for a witness to travel internationally is not regarded as the burden that it once was.

9. [19]

   Furthermore, the evidence to be given on Bone China’s behalf will be primarily that of Mr Gerber, who resides in New South Wales, and evidence drawn from the records of Bone China, which are kept in New South Wales.

10. [20]

    Referring to the factors listed at [69] of Colloseum Investment v Vanguard (noted below at [50]), Bone China says that when the respective locations where the parties reside and carry out business are considered the result is a “scoreless draw”. Bone China further submits that the relevant damage was suffered in New South Wales because Bone China is incorporated in New South Wales and its principal place of business is New South Wales.

11. [21]

    Bone China submits that, having properly invoked the jurisdiction of this Court, it has a prima facie right to insist upon the exercise of this jurisdiction (though acknowledges that this factor ought not be given “undue weight”). Bone China says that splitting the claim brought against Dr Laboureau from the cross-claim against LARS will “bring about the spectre of duplicated proceedings in different jurisdictions”.

12. [22]

    Bone China says further that if it is forced to litigate against Dr Laboureau in a foreign court it risks inconsistent findings, which may result in its claims against LARS and Dr Laboureau failing for inconsistent reasons. It says there is also likely to be inconvenience to third parties, particularly to those witnesses on whom LARS proposes to rely.

13. [23]

    Bone China accepts that New South Wales law may not be the applicable law of the contract, for example, but says that this is only one factor in the analysis to be undertaken as to whether New South Wales is a clearly inappropriate forum.

14. [24]

    Paragraph 31 of the TFACC pleads that Dr Laboureau knew, or ought to have known, certain matters. These allegations echo those made in the Second Further Amended Statement of Cross-Claim at [18A](f), (g), (h) and (j). Dr Laboureau argues that [31] is not adequately particularised.

15. [25]

    In response, Bone China says the claim has been adequately particularised and refers to [14], [29] and [31]. Bone China has also offered to provide further particulars in the form annexed to its submissions on this motion.

16. [26]

    Paragraphs 32 and 33 of the TFACC plead the existence of a duty of care between Dr Laboureau and Bone China in relation to a claim of pure economic loss. Dr Laboureau complains that the alleged duty of care is pleaded as a conclusion, and does not particularise the facts that would be necessary to support a duty of care in such circumstances. Dr Laboureau submits that there is nothing pleaded in the TFACC capable of constituting the necessary vulnerability in order to establish a duty of care in the context of a pure economic loss claim. As such, Dr Laboureau says that no reasonable cause of action is disclosed in the case for negligent misrepresentation.

17. [27]

    This issue was dealt with by McDougall J at [11]-[14] of his judgment, as the pleading then stood. His Honour there observed that Dr Laboureau should not “be forced to try and work out what precisely is the case asserted against him, how it arises and how he might defend himself.”

18. [28]

    Bone China says that Dr Laboureau’s submission elevates “vulnerability” to being a necessary element of a claim in negligent misrepresentation, and submits that this submission is contrary to law. Bone China accepts that “vulnerability” is an important consideration in the determination of a duty of care, but contests that it is a necessary element.

19. [29]

    Although Bone China contends that the basis of the allegations made is clear, it is willing to provide further particulars to [33] in the form annexed to its submissions on the motion.

20. [30]

    Dr Laboureau further complains that no cause of action in negligent misrepresentation can arise against Dr Laboureau because, first, the “representations” are, in reality, contractual promises and not in the nature of “advice, information and opinion.” Second, Dr Laboureau submits that statements of intention are not actionable as misrepresentations and must be embodied as contractual promises to attract a remedy.

21. [31]

    Bone China says that Dr Laboureau’s argument “fundamentally misunderstands” the claim against Dr Laboureau, which it says may be simply stated. If LARS succeeds in establishing that Dr Laboureau acted without authority in making the relevant representations, then Bone China contends that Dr Laboureau is liable for loss arising on grounds of negligent misrepresentation or breach of warranty of authority.

22. [32]

    Dr Laboureau points out that he has maintained an objection to Mr Gerber being a cross-claimant since he filed submissions in support of the Notice of Motion, filed on 12 November 2014, which was heard by McDougall J on 6 March 2015. McDougall J noted in his judgment that Mr Gerber’s loss was reflective of the company’s loss and that no individual loss was pleaded. Dr Laboureau draws to the Court’s attention the fact that, despite these comments, the Second Further Amended Statement of Cross-Claim pleaded Mr Gerber’s loss using a series of “and/or” constructions whereby loss was alleged to have been incurred by “Bone China and/or Timothy Gerber.” They note that now, Mr Gerber’s claims having been twice struck out, Mr Gerber seeks to abandon his cross-claim entirely.

23. [33]

    Dr Laboureau’s concerns arise because in both of the previous motions Mr Gerber and Bone China were ordered to pay Dr Laboureau’s costs. Dr Laboureau is concerned about the expense and inconvenience of pursuing both Bone China and Mr Gerber, particularly if there are issues concerning apportionment between Mr Gerber and Bone China. In these circumstances, Dr Laboureau submits that Mr Gerber should be ordered to pay the costs of the motion before McDougall J on 6 March 2015 and the costs of the motion before me on 23 April 2015 forthwith.

24. [34]

    I do not consider that this matter bears upon the current application before the Court, although I accept it may have costs consequences.

Legal principles

1. [35]

   The stay application is not made on the motion of Dr Laboureau; rather, it is made in response to Bone China seeking leave from the Court to file the TFACC. The parties have proceeded on the basis that, as such, it is the common law test of “clearly inappropriate forum” to be applied. However, in this case, nothing turns upon whether the forum is “clearly” inappropriate or merely inappropriate. I am satisfied the result would be the same utilising either test (for discussion of the differences, see Studorp Ltd v Robinson [2012] NSWCA 382 at [60]-[62], ref. Uniform Civil Procedure Rules 2005 (NSW) r 11.7).

2. [36]

   Section 67 of the Civil Procedure Act 2005 (NSW) provides as follows:

3. [37]

   It is clear that proceedings may be stayed in circumstances where the forum is clearly an inappropriate one. The High Court (Mason CJ, Deane, Dawson and Gaudron JJ) in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (Voth) at 556-7 made the following remarks (footnotes omitted):

4. [38]

   At 564, their Honours endorsed the articulation of the relevant principles found in the judgment of Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 248:

5. [39]

   In Henry v Henry (1996) 185 CLR 571 the High Court (Brennan CJ at 575, Dawson, Gaudron, McHugh and Gummow JJ at 587) again accepted the “clearly inappropriate forum” test. The plurality considered (footnotes omitted):

6. [40]

   In Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 (Renault v Zhang), the plaintiff alleged injuries he had sustained had been caused by the negligent design and manufacture of a vehicle designed by the defendants. The defendants were foreign companies whose principal place of business was France. They had no offices or employees in Australia and the accident itself occurred in New Caledonia. The defendants sought a stay pursuant to Pt 10 r 6A of the Supreme Court Rules 1970 (NSW) which provided that service of a Statement of Claim could be set aside if the “Court is an inappropriate forum for the trial of the proceedings”.

7. [41]

   The defendants in that matter argued that the Supreme Court of New South Wales was an inappropriate forum for the trial of the proceedings. At [24]-[25] the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) considered (footnotes omitted):

8. [42]

   They went on to say at [78] and [81] (citations omitted):

9. [43]

   In that case, it was held by Gleeson CJ, Gaudron, McHugh and Gummow JJ that the substantive law for the determination of rights and liabilities in relation to foreign torts was the lex loci delicti. Their Honours considered that the “double actionability” rule had no application in Australia to international torts.

10. [44]

    In Puttick v Tenon Ltd (2008) 238 CLR 265 the High Court considered whether proceedings should be stayed on the basis of forum non conveniens where the plaintiff made allegations concerning injuries obtained as a consequence of exposure to asbestos in Belgium and Malaysia in the course of employment with a New Zealand company. Chief Justice French, Gummow, Hayne and Kiefel JJ emphasised, applying Voth, that showing that the alleged tort was, or might be, governed by New Zealand law did not demonstrate that the chosen forum was clearly inappropriate to try the action. Their Honours considered at [29] that (citations omitted):

11. [45]

    In Studorp Ltd v Robinson [2012] NSWCA 382 Hoeben JA, with whom Allsop P (as he then was) and Meagher JA agreed, said at [60]-[62]:

12. [46]

    In Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (Spiliada) Lord Goff of Chieveley identified at 478 that matters of convenience and expense (such as the availability of witnesses) will be considered, as will the law governing the relevant transaction and the places where the parties reside or carry on their businesses. At 482-4 Lord Goff considered the treatment of a “legitimate personal or juridical advantage” and concluded that a consideration of such an advantage must be undertaken with an eye to the fundamental principles of whether the matter may be tried “suitably for the interests of all the parties and for the ends of justice”. The position in Australia has, of course, diverged from that in the United Kingdom as a consequence of Voth and the adoption of the “clearly inappropriate forum” test, but these remarks are still apposite to the question of whether a forum is appropriate.

13. [47]

    In Gilmore v Gilmore (1993) 110 FLR 311; [1993] FLC 92-353, Fogarty, Lindemayer and Finn JJ considered whether proceedings should be stayed in Australia where a wife had instituted proceedings for a property settlement in Australia and her husband had initiated similar proceedings in New Zealand. At 317-18 Fogarty J considered the question of juridical advantage, and having concluded that there were only marginal differences between the approach to this issue in Voth and Spiliada, observed that the High Court in Voth had said that relevant “connecting factors” and a “legitimate personal or juridical advantage” may provide valuable assistance in determining whether a forum is clearly in appropriate.

14. [48]

    In Murakami v Wiryadi [2010] NSWCA 7, Spigelman CJ considered that the applicability of foreign (in that case Indonesian) law was a factor that needed to be considered in determining whether Australia is a “clearly inappropriate forum”. His Honour said at [63]-[66]:

15. [49]

    Spigelman CJ went on to refer to Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1995] 1 WLR 978 at 988, where Millett J (as his Lordship then was) observed that “[i]n order to ascertain the applicable law under English conflict of laws, it is not sufficient to characterise the nature of the claim: it is necessary to identify the question in issue.”

16. [50]

    In Colosseum Investment v Vanguard, Palmer J set out the relevant considerations at [69]-[70] and identified seventeen factors which may be of relevance. There is no indication his Honour intended these to be any form of “checklist”; it is clear that some may be relevant in particular cases and not in others, and that some might be weighty in some circumstances and not in others. Ward J in Telesto Investments Ltd v UBS AG [2012] NSWSC 44 quoted from Nygh’s Conflict of Laws in Australia (Davies M, Bell A, Brereton P (8th ed, LexisNexis Butterworths, 2010)), summarising the relevant factors as:

17. [51]

    As Palmer J observed in Colosseum Investment v Vanguard:

18. [52]

    In Incitec Ltd v Alkimos Shipping Corporation (2004) 138 FCR 496, Allsop J (as his Honour then was) made the following observations about duplicated proceedings in the context of a case involving exclusive jurisdiction clauses:

19. [53]

    In Thomson Aviation Pty Ltd v Dufresne [2011] NSWSC 864, Black J said at [26]:

20. [54]

    The principles applicable to the striking out of pleadings are well known and have been fulsomely stated in many cases: see, eg, McGuirk v University of New South Wales [2009] NSWSC 1424.

21. [55]

    In Meckiff v Simpson [1968] VR 62 at 70, Winneke CJ, Adams and Gowans JJ considered that a pleading will be embarrassing where it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him.” A pleading may be embarrassing notwithstanding that it alleges material facts sufficient to constitute a cause of action in circumstances where the material facts alleged are described in a way which leaves difficulties or doubts in relation to what is referred to: see Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413 at 417-18.

22. [56]

    A very clear case will be required before a person is prevented from pleading a case on the basis that no reasonable cause of action is disclosed: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. A high degree of certainty about the outcome of the proceedings will be required before a party will be prevented from pleading a cause of action on the grounds that there is no reasonable basis for it: Agar v Hyde (2000) 201 CLR 552 at 575-6.

23. [57]

    Dr Laboureau refers to Brookfield Multiplex v Owners Corporation Strata Plan 61288 (2014) 313 ALR 408; [2014] HCA 36 (Brookfield Multiplex). In that case, at [22] and at [25]-[26], French CJ made the following remarks (footnotes omitted):

24. [58]

    In Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (Hedley Byrne v Heller), the House of Lords held that a negligent (though honest) misrepresentation may give rise to an action in damages where, apart from any contractual or fiduciary relationship, a party seeks information from a person possessing a special skill and trusts him to exercise due care, in circumstances where that party knew, or ought to have known, that reliance was being placed on his skill and judgement (see pp 486, 502, 514). In that case, there was no duty of care implied because there had been an express disclaimer.

25. [59]

    In L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 at 231 Gibbs CJ stated (footnotes omitted):

26. [60]

    In Esso Petroleum Co Ltd v Mardon [1976] QB 801 at 820, Lord Denning MR said:

27. [61]

    In Beattie v Lord Ebury (1872) 7 LR Ch App 777 at 804, Mellish LJ said at 804 that:

28. [62]

    In San Sebastian Pty Ltd v Minister Administering the Environmental Planning Act 1979 (1986) 162 CLR 340, the majority (Gibbs CJ, Mason, Wilson and Dawson JJ) said at 355:

29. [63]

    They continued at 357:

30. [64]

    It is tolerably clear that French CJ in Brookfield Multiplex was not indicating that vulnerability would necessarily be present and hence needed to be pleaded in every case.

Consideration

1. [65]

   It is clear that the potential applicability of Chinese or French law is a factor that must be weighed in determining whether New South Wales is a clearly inappropriate forum; Spigelman CJ indicated in Murakami that the Voth test will apply differently if the substantive law of New South Wales is to apply. I note also, however, his Honour’s observations concerning the potential inappropriateness of determining the applicable law at an early, interlocutory phase. That is particularly true in this case given that, although the parties accept that the governing law may well be foreign law, they have not particularised the manner in which foreign law is said to apply, specified the relevant jurisdictions or led any evidence regarding the foreign law and its applicability.

2. [66]

   With that said, the cross-defendants perhaps correctly point to a multitude of locations where activities and/or representations are said to have been undertaken or made. There is little doubt foreign law will need to be invoked to determine the rights of the parties. In and of itself, that should not be a deterrent insofar as the jurisdiction of this Court is concerned, but it is an important factor in considering whether New South Wales is a clearly inappropriate forum. Indeed, the potential applicability of foreign law is most compelling argument put by Dr Laboureau. It is clear that the law of a variety of different jurisdictions may be relevant to the determination of the parties’ claims against one another. In essence, Dr Laboureau submits that there is very little connection between these proceedings and Australia and that this should weigh heavily in the exercise of the discretion.

3. [67]

   However, because of the multiplicity of jurisdictions involved, a central tribunal able to receive the law of each jurisdiction and determine its import is desirable from the perspective of the administration of justice. This approach is likely to minimise costs to the parties and promote the efficacious resolution of the dispute. I note that LARS does not object to the use of the New South Wales courts (and, indeed, that it was LARS’ choice to commence proceedings here), and LARS will be present in the case no matter what course is taken regarding the cross-claim against Dr Laboureau.

4. [68]

   Mr Maxwell, who represented LARS at the hearing, candidly indicated to the Court that although he had no final instructions regarding the point taken concerning the authority of Dr Laboureau and Mr Quint to make the alleged representations, LARS’s position at the time of the hearing was that Dr Laboureau did not have actual authority. This bolsters the submissions of Bone China insofar as they relate to the need for Dr Laboureau to be present regardless of whether the cross-claim against him proceeds.

5. [69]

   I should record that there was an attempt to point to the weakness of the case against Dr Laboureau. I do not understand this to be a relevant factor in determining the issue of whether NSW is a clearly inappropriate forum. It could, of course, be relevant to the inadequacies alleged in the TFACC, and indeed it is the allegation of Dr Laboureau that parts of the TFACC do not rise to an arguable case due to the alleged deficiencies in the matters pleaded. I do not consider, however, that it bears upon the issue of forum non conveniens in this context, though the issue of “juridical advantage” might, in some cases, allow a consideration of the strength of a case in different jurisdictions given different governing laws, assuming they could be addressed with confidence.

6. [70]

   It is asserted by LARS that the damage was suffered in Australia, and proceedings were commenced in Australia. It is not immediately obvious that there is another appropriate tribunal capable of hearing and determining all facets of the matter (though I note that the question of whether a forum is clearly inappropriate cannot be answered through a comparison of potential forums). The courts of Australia are accustomed to receiving foreign law, despite the evidentiary effort this requires, and although I accept foreign law may well be applicable to many, if not all, parts of the claim, I am not persuaded that this renders New South Wales a clearly inappropriate forum.

7. [71]

   One of the most influential factors concerning New South Wales, in my view, is the existence of the main proceedings and the likelihood of a set-off being available in the event the cross-claimants are successful against the cross-defendants. It is obviously convenient for the administration of justice that the jurisdiction be one where all matters can be determined in one place, notwithstanding the capacity for different law to apply to different issues.

8. [72]

   There is nothing in the evidence that suggests travelling to Australia will cause particular hardship to Dr Laboureau, even assuming that it will not be possible to take his evidence via videolink. A similar point may be made in relation to subsidiary witnesses.

Conclusion

1. [73]

   Notwithstanding the choice of law issues, I do not consider that Dr Laboureau has demonstrated that New South Wales is a clearly inappropriate forum (or an inappropriate forum) for the elements of the cross-claim that deal with Dr Laboureau.

2. [74]

   I am also not satisfied that Dr Laboureau has demonstrated that the claims against him are inadequately pleaded. To the extent deficiencies have been previously identified, they have been remedied in the TFACC with the proposed additional particulars.

3. [75]

   I would invite the parties to prepare short minutes to reflect these reasons. I will hear the parties on costs.