10 Amendment Flashcards
r17.1: Amendments of statements of case
(1) A party may amend his statement of case at any time before it has been served on any other party.
(2) If his statement of case has been served, a party may amend it only –
(a) with the written consent of all the other parties; or
(b) with the permission of the court.
(3) If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4.
(Part 22 requires amendments to a statement of case to be verified by a statement of truth unless the court orders otherwise)
r2.3(1): definition of statement of case
‘statement of case’ –
(a) means a claim form, particulars of claim where these are not included in a claim form, defence, Part 20 claim, or reply to defence; and
(b) includes any further information given in relation to them voluntarily or by court order under rule 18.1;
r19.4: procedure for adding/substituting parties
(1) The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.
(2) An application for permission under paragraph (1) may be made by –
(a) an existing party; or
(b) a person who wishes to become a party.
(3) An application for an order under rule 19.2(4) (substitution of a new party where existing party’s interest or liability has passed) –
(a) may be made without notice; and
(b) must be supported by evidence.
(4) Nobody may be added or substituted as a claimant unless –
(a) he has given his consent in writing; and
(b) that consent has been filed with the court.
(4A) The Commissioners for HM Revenue and Customs may be added as a party to proceedings only if they consent in writing.
(5) An order for the removal, addition or substitution of a party must be served on –
(a) all parties to the proceedings; and
(b) any other person affected by the order.
(6) When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions about –
(a) filing and serving the claim form on any new defendant;
(b) serving relevant documents on the new party; and
(c) the management of the proceedings.
r17.2: Power of court to disallow amendments made without permission
(1) If a party has amended his statement of case where permission of the court was not required, the court may disallow the amendment.
(2) A party may apply to the court for an order under paragraph (1) within 14 days of service of a copy of the amended statement of case on him.
PD17 para 2.2-2.4: How to show amendments
- 2 The statement of case in its amended form need not show the original text. However, where the court thinks it desirable for both the original text and the amendments to be shown, the court may direct that the amendments should be shown either:
(1) by coloured amendments, either manuscript or computer generated, or
(2) by use of a numerical code in a monochrome computer generated document. - 3 Where colour is used, the text to be deleted should be struck through in colour and any text replacing it should be inserted or underlined in the same colour.
- 4 The order of colours to be used for successive amendments is: (1) red, (2) green, (3) violet and (4) yellow.
PD17 para 1.4: if substance of statement of case changed
If the substance of the statement of case is changed by reason of the amendment, the statement of case should be re-verified by a statement of truth
r19.2: Change of parties
(1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period).
(2) The court may order a person to be added as a new party if –
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.
(3) The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings.
(4) The court may order a new party to be substituted for an existing one if –
(a) the existing party’s interest or liability has passed to the new party; and
(b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.
PD17 para 1.1-1.3, 1.5: Applications to amend where the permission of the court is required
1.1 The application may be dealt with at a hearing or, if rule 23.8 applies, without a hearing.
- 2 When making an application to amend a statement of case, the applicant should file with the court:
(1) the application notice, and
(2) a copy of the statement of case with the proposed amendments. - 3 Where permission to amend has been given, the applicant should within 14 days of the date of the order, or within such other period as the court may direct, file with the court the amended statement of case.
- 5 A copy of the order and the amended statement of case should be served on every party to the proceedings, unless the court orders otherwise
r19.3: Provisions applicable where two or more persons are jointly entitled to a remedy
(1) Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise.
(2) If any person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.
(3) This rule does not apply in probate proceedings.
LA 1980 s35(1)/(2): treatment of new claims
(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced—
(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and
(b) in the case of any other new claim, on the same date as the original action.
(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either—
(a) the addition or substitution of a new cause of action; or
(b) the addition or substitution of a new party;
and “third party proceedings” means any proceedings brought in the course of any action by any party to the action against a person not previously a party to the action, other than proceedings brought by joining any such person as defendant to any claim already made in the original action by the party bringing the proceedings.
LA1980 s35(3): Allowance of new claim after expiry of time limit
Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.
For the purposes of this subsection, a claim is an original set-off or an original counterclaim if it is a claim made by way of set-off or (as the case may be) by way of counterclaim by a party who has not previously made any claim in the action.
LA 1980, s33: Discretionary exclusion of time limit for actions in respect of personal injuries or death
If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
(a) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [F4, by section 11A] or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
r3.4: Power to strike out statement of case
(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.
(2) The court may strike out(GL) a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.
(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate.
(4) Where –
(a) the court has struck out a claimant’s statement of case;
(b) the claimant has been ordered to pay costs to the defendant; and
(c) before the claimant pays those costs, he starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,
the court may, on the application of the defendant, stay that other claim until the costs of the first claim have been paid.
(5) Paragraph (2) does not limit any other power of the court to strike out a statement of case.
(6) If the court strikes out a claimant’s statement of case and it considers that the claim is totally without merit –
(a) the court’s order must record that fact; and
(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.
r17.4: Amendments to statements of case after the end of a relevant limitation period
(1) This rule applies where –
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under –
(i) the Limitation Act 19801;
(ii) the Foreign Limitation Periods Act 19842; or
(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.
(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.
(3) The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.
(4) The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.
r19.5(2) and (3): Special provisions about adding or substituting parties after the end of a relevant limitation period
(2) The court may add or substitute a party only if –
(a) the relevant limitation period(GL) was current when the proceedings were started; and
(b) the addition or substitution is necessary.
(3) The addition or substitution of a party is necessary only if the court is satisfied that –
(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party;
(b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or
(c) the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party.
