10. Amendment

Question 1

Can statements of case be amended before serving it?

Answer 1

Yes, including by removing, adding, or substituting a party at any time before service

Question 2

Can statements of case be amended after serving?

Answer 2

Yes, but only:
(a) with the written consent of all the other parties; or
(b) with the permission of the court

Question 3

How should an application to amend a statement of case through removing, adding, or substituting a party be made?

Answer 3

In accordance with rule 19.4

Question 4

Does a party who wishes to discontinue have to formally apply to amend their statement of case?

Answer 4

No, they can amend it to give effect to the discontinuance without needing permission.

Question 5

What powers does the court have in regard to amendments made without permission?

Answer 5

If a party has amended the SOC where permission was not required, the court may disallow it.

Question 6

How does a party get the other side’s SOC amendment disallowed?

Answer 6

By applying within 14 days of service of the amended SOC

Question 7

What may the court do at the same time as giving permission for amendment of a statement of case?

Answer 7

It may give directions as to:
1. amendments to other SOC
2. service of any amended SOC

Question 8

Are there any limitations on the power of the court to give permission for a statement of case to be amended?

Answer 8

Subject to:
Rule 19.2 (change of parties – general)
Rule 19.6 (special provisions about adding or substituting parties after the end of a relevant limitation period); and
Rule 17.4 (amendments of statement of case after the end of a relevant limitation period)

Question 9

What general principles apply as to whether permission to amend a statement of case should be given?

Answer 9

Court should have regard to all matters mentioned in the overriding objective.
Striking a balance is important.
VERY IMPORTANT to show some prospects of success and the heavier burden placed upon an applicant who is amending later.
Permission may be refused if the amendment is not sufficiently clear, though it may accept them on the condition that further particulars will be provided or permit the respondent to request further information or require the applicant to provide further information.
Reliance upon multiple incidents which do not advance the case is to be avoided – they must nominate their best few (although the best few might change after disclosure).
Another consideration is whether the part of the case was already, and the degree that it was, under consideration beforehand.
The fact one defendant accepts the amendment is not determinative and does not preclude another defendant from opposing it.

Question 10

What does it mean by ‘need to show some prospects of success’?

Answer 10

It must be arguable, carry a degree of conviction, be coherent, properly particularised, and supported by evidence that established a factual basis for the allegation.
Effectively, the test for summary judgment.

Question 11

Is there a difference between amending a statement of case by introducing a new claim and in further particularising an already existing claim?

Answer 11

Distinction is made between whether the amendment introduces a new claim (which will not be allowed if no real prospect of success) or provides further particulars (which generally will not invite an assessment as to the merits, though will be subject to overriding objective considerations).

Question 12

What should the court take into account when deciding whether an amendment to a statement of case has a realistic prospect of success?

Answer 12

Must focus on the pleaded case rather than supporting evidence and conclusions that might be drawn based upon the evidence.
Court should avoid conducting a mini-trial and factual averments should be accepted unless they are demonstrably untrue or unsupportable or self-contradictory or they are unsupported by contemporaneous documentation.
Once an amendment clears the hurdle of prospects of success, it is generally not appropriate to consider the strength of the claim as a whole.

Question 13

Does an amendee need to show realistic prospects where they are accepting and clarifying a previous point?

Answer 13

Authorities say no, even where inconsistent with the former pleaded case.

Question 14

Can amendments to statements of case be made to make a speculative allegation or invention or one in which relies on the prospect of a new legal judgment overturning a previous one?

Answer 14

No.

Question 15

How should the court apply the need for realistic prospect of success for an amendment where the proposed amendment relies upon foreign law?

Answer 15

Must consider the likely application of the foreign law, rather than instinct as to how English law might approach the question.

Question 16

Should the court apply the need for realistic prospect of success where a defendant wishes to retract an admission which may change their defence overall?

Answer 16

Yes where they will be relying on a new defence

Question 17

Can amendments to statements of case be deferred?

Answer 17

Yes, it may deal with other issues before returning to the amendment.

Question 18

When is an amendment to statements of case late?

Answer 18

Where it could have be amended earlier.

Question 19

What is the importance of lateness to amendments to statements of case?

Answer 19

Quite important. For example, an amendment that should have been raised at trial may be found as an abuse of process if sought to be raised at quantum stage.
An important consideration parallel to lateness is whether it is so late as to put the parties on an unequal footing or will add an excessive burden onto preparation for trial of the other party or whether it will entail vacating the trial.
An amendment sought at appeal stage will require even greater rigour.

Question 20

If an amendment to statements of case is late, what will the court require?

Answer 20

A good explanation as to why it is so late. The explanation will be balanced against the case as a whole to determine whether the amendment ought to be permitted.
Proportionality and expense in investigating a point can be a sufficient explanation depending upon the facts.

Question 21

Can an amendment to statements of case be granted after evidence is heard at trial?

Answer 21

Yes, including after judgment is given but before an order effecting that is made, but the court must decide whether there are exceptional circumstances or strong reasons for taking this unusual course.

Question 22

Does an application for an amendment to statements of case need to have an oral hearing where permission is required?

Answer 22

No, it can be decided on the papers

Question 23

How should an application for an amendment to statements of case be made?

Answer 23

Via filing with the court:
An application notice; and
A copy of the statement of case with proposed amendments

Question 24

What should the applicant to after permission to amend has been given?

Answer 24

The applicant should within 14 days or otherwise the period specified in the order, file with the court the amended statement of case

Question 25

Does an amended statement of case need a statement of truth?

Answer 25

Yes, unless otherwise ordered

Question 26

Should a copy of the amended statement of case be served on other parties?

Answer 26

Yes, it should be served on every party alongside the order, unless the court otherwise orders

Question 27

What should be added to the amended statement of case?

Answer 27

It should be endorsed as follows:
Where the court’s permission was required:
“amended [Statement of case] by order of [Judge] dated …”
Where permission was not required:
“Amended [Statement of Case] under CPR [Rule 17.1(1) or (2)(a)] dated …”

Question 28

Does the amended statement of case need to show the original text?

Answer 28

No, unless the court thinks it desirable and directs it to be shown either by coloured amendments or by use of a numerical code in a monochrome document.
Where any colour is used, the text to be deleted should be struck through and any text replacing it should be inserted or underlined in the same colour.
The order of colours to be used for successive amendments is red, green, violet and yellow.

Question 29

What is the effect of the expiry of a limitation period in amendments of statements of case?

Answer 29

For claims that rely on set-off or are a counter-claim or are a claim that adds or substitutes a new cause of action or adds or substitutes a new party, they are deemed to be a separate action and:
The effective action of commencement is taken to be on the same date as the original action and so the adding of the claim would not be allowed unless it is an original counterclaim or set-off (i.e. by original, their first claim in the proceedings);
THOUGH they may also be allowed where the new claim arises out of the same facts or substantially the same facts
Or to correct a mistake as to the name of the party where it was genuine and not one which casted reasonable doubt upon the identity of the party.

Question 30

How should the issue of whether a limitation period has expired in respect of an amendment to a statement of case be decided?

Answer 30

For the applicant to show whether it falls into RR 17.4 or 19.6.
The approach to take is:
1. is it arguable that the opposed amendments are outside the limitation period? If not, then the amendment may be allowed under 17.1 (simply with or w/o permission). If it is arguable, then:
2. do the proposed amendments seek to add or substitute a new cause of action? If not, then the amendment may be allowed under 17.1. if so, then:
3. does the new cause of action arise out of the same or substantially the same facts? If not, then the court does not have power to grant amendment save by way of Mastercard (i.e. pleading the cause of action from a later date). If it does, then:
4. should the court exercise its discretion?

If the application to amend is made before limitation but the amendment is only effected after, the limitation period will have expired. It is only when the amendment is made that the limitation period stops running.
If the applicant cannot establish the limitation defence is not reasonably arguable or the amendment falls within the provisions of rr 17.4 or 19.6, the application should be refused.

Question 31

What are the cost consequences of amending a statement of case?

Answer 31

A party applying for an amendment will usually be responsible for the costs of and arising from the amendment