YOU CAN’T RAISE A NEW CLAIM IN A RESPONSE TO A PART 18 REQUEST: THE PLEADED CASE REMAINS IMPORTANT

July 22, 2022 · by · in Civil evidence, Statements of Case

In Costa v DissociaDID Ltd & Anor [2022] EWHC 1934 (IPEC) HHJ Hacon rejected the defendants’ attempt to argue points that were not pleaded.  The only time an issue had been raised was in response to Part 18 requests.   This was not an appropriate place to plead such an argument.  The defendants should have applied to amend their defence and counterclaim.

“Since a party may not raise a new claim in its Reply, still less can it be entitled to do so in a Response to a Part 18 Request.”

THE CASE

The parties were in dispute over the copyright of certain works used on YouTube.  There were numerous arguments raised. The defendants attempted to argue estoppel. However this had never been pleaded. It was mentioned in a response to a Part 18 request.  (The judge made the point that neither of the advocates at the trial were responsible for the pleadings in the case).

THE JUDGMENT ON THE DEFENDANTS’ ATTEMPT TO ARGUE THE ESTOPPEL POINT

The defendants attempted to argue estoppel was rejected by the judge.  The only place this was mentioned by the defendants was in response to Part 18 questions raised by the claimant.

Estoppel
    1. At the trial Mr Elias raised the argument that Mr Costa was estopped from terminating the licence. This was not properly pleaded. It was raised in the defendants’ Response to a Part 18 Request for further information regarding the allegation pleaded in the Defence that Mr Costa’s services were in the nature of a gift and involved an equitable assignment of Mr Costa’s copyright in the Joint Works to the defendants, an allegation not pursued at the trial.
    1. This will not do. Paragraph 9.2 of Practice Direction 16 states:
“9.2 A subsequent statement of case must not contradict or be inconsistent with an earlier one; for example a reply to a defence must not bring in a new claim. Where new matters have come to light the appropriate course may be to seek the court’s permission to amend the statement of case.”
  1. Since a party may not raise a new claim in its Reply, still less can it be entitled to do so in a Response to a Part 18 Request. Mr Costa was entitled to ignore the claim of an estoppel unless and until there was an application to amend the Defence and Counterclaim. Thereafter he may have wished to seek clarification as to the details of the estoppel argument, in the event not fleshed out until counsel’s skeleton at the trial. The defendants could have made an application their Defence before the judge at the CMC on 19 November 2021 because it was heard after the Response to the Part 18 Request was filed, see CPR 63.23(2). As it is, I will not consider an estoppel.
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