The Court refused leave to amend the statement of claim in its proposed form but granted leave to replead, holding that where a plaintiff incorporates an expert report into pleadings to particularise loss, the report becomes part of the pleading and must be examined to assess adequacy — it cannot be treated as mere evidence to be tested at trial. Where the incorporated expert report attributes the entirety of share price inflation to one set of contraventions (2P reserves) and does not separately quantify loss from other contraventions (FY21 guidance and 5YO), the pleading fails to give adequate notice of the loss case on those other contraventions, even though the body of the pleading alleges 'some loss' from all contraventions collectively. The Court also held that a 'left in hand' loss claim under Potts v Miller principles has no real prospect of success where the plaintiff positively states it will adduce no evidence beyond the current share price at trial, given the legal requirement to distinguish between causes of diminution inherent in the asset and extrinsic or supervening causes over a five-year period.
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