Whether pleading would prejudice, embarrass or delay the fair trial of the action
Quick Take
1A cause of action should only be struck out for absence of the requisite causal link where the allegation of causation is clearly untenable on the pleading; where a plaintiff alleges that impugned conduct was a contributing cause (rather than the sole cause) of loss, the causal allegation is not clearly untenable merely because the sole-cause version would be difficult to sustain.
2A plaintiff alleging breach of directors' duties causing loss through the defence of prior proceedings is not necessarily required to plead a counterfactual scenario where the claim is framed as a direct breach-of-duty case asserting contributing causation, rather than a misleading-conduct 'no transaction' case.
3The capacity of defendants to identify and articulate sophisticated arguments against the plaintiff's causation case is itself an indicator that the pleading is not so deficient as to prejudice, embarrass or delay the fair trial of the action.
