3.6 Amending statements of case and changing parties

Question 1

How are applications to amend the statements of case dealt with?

Answer 1

17 PD 1.1

The application may be dealt with at a hearing or, if rule 23.8 applies, without a hearing.

Question 2

When can applications (inc. to amend statements of case) be dealt with without a hearing?

Answer 2

CPR 23.8
The court may deal with an application without a hearing if–
(a)
the parties agree as to the terms of the order sought;
(b)
the parties agree that the court should dispose of the application without a hearing, or
(c)
the court does not consider that a hearing would be appropriate.

Question 3

Under what circumstances may a party do to amend a statement of case without permission of the court?

Answer 3

CPR 17.1
(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

Question 4

Under what circumstances may a party amend a statement of case after it has been served?

Answer 4

CPR 17.1(2)
(a)
with the written consent of all the other parties; or
(b)
with the permission of the court.

Question 5

What happens if the court objects to an amendment to a statement of case made without permission?

Answer 5

CPR 17.2(1)
If a party has amended his statement of case where permission of the court was not required, the court may disallow the amendment.

Question 6

What happens if the other party objects to an amendment to a statement of case made without permission?

Answer 6

CPR 17.2(2)
A party may apply to the court for an order under paragraph (1) [to disallow the amendment] within 14 days of service of a copy of the amended statement of case on him.

Question 7

What can the other party do to challenge an amendment to statement of case that was made without permission where permission was required?

Answer 7

Commentary on CPR 17.2

A party wishing to challenge it should apply under r.3.4 (Power to strike out a statement of case).

Question 8

What must a party do to apply to the court to amend a statement of case?

Answer 8

17 PD 1.2
file with the court:
(1)
the application notice, and
(2)
a copy of the statement of case with the proposed amendments.

Question 9

What is the deadline for the applicant to file an amended statement of case once the court has given permission?

Answer 9

17 PD 1.3
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.

Question 10

What will the court do once it gives permission to amend the statement of case?

Answer 10

CPR 17.3(1)
The court may give directions as to—
(a)
amendments to be made to any other statement of case; and
(b)
service of any amended statement of case.

Question 11

How will the court decide whether to allow an amendment whose effect would be to add or substitute a new claim outside of the limitation period?

Answer 11

CPR 17.4(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.

Question 12

What should a party do first where it wants to amend a statement of case?

Answer 12

CPR 17.1
(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.

Question 13

What is the first principle the court will apply in considering whether to grant permission to amend a statement of case?

Answer 13

CPR 1.1
The overriding objective: justice at proportionate cost.

This includes balancing the injustice to one side and the other of deciding whether to grant permission.

Question 14

Under what circumstances is the court likely to refuse permission to amend a statement of case?

Answer 14

Where the amended statement of case has no prospect of success.

Question 15

What will the court do if a party seeks permission to amend its statement of case close the trial date?

Answer 15

Applying the overall objective, the court will be more likely to reject the amendment if it imperils the trial date or imposes unfairness on the other party.

Question 16

What is the leading case on the court’s discretion to grant permission to late applications to amend statements of case?

Answer 16

Swain Mason v Mills and Reeve [2011] EWCA Civ 14

Question 17

What are the principles for deciding whether to allow applications for permission to amend statements of case when the applications are made late?

Answer 17

Swain Mason v Mills and Reeve [2011] EWCA Civ 14
1.
Less ready to grant permission unless the amendment arises from late disclosure or new evidence;
2.
A heavy onus on the requesting party to justify it, using evidence;
3.
The full requirements of pleading apply to the application.

Question 18

Under what circumstances may the court order a new party to be added?

Answer 18

CPR 19.2(2)
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.

Question 19

Under what circumstances may the court order a party to be substituted?

Answer 19

CPR 19.2(4)
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.

Question 20

When may the court order a party to be removed?

Answer 20

CPR 19.2(3)

… if it is not desirable for that person to be a party to the proceedings.

Question 21

When is it likely that a defendant would seek to add another party to the claim under CPR 19.2(2)?

Answer 21

eg, Where C sues D, but D is blameless and the fault really lies with E, because D was acting on E’s advice.

Question 22

When is the court’s permission required to add, remove or substitute a party?

Answer 22

CPR 19.4(1)

The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.

Question 23

Can a party be added as a claimant against its will?

Answer 23

CPR 19.4(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.

Question 24

What happens if a party refuses to be added as a claimant?

Answer 24

CPR 19.3(2)

If any person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.

Question 25

What is the general rule with regard to amendments outside the limitation period?

Answer 25

Section 35(3) Limitation Act 1980
They are not allowed. (However, there are many exceptions.)

Question 26

Where are the exceptions to the general rule against amendments outside the limitation period found?

Answer 26

1. Section 33 Limitation Act 1980 - personal injuries;
2. Section 35(3) LA 1980 - set off or counter claim;
3. CPR 17.4 - new claims arising out of the same facts or substantially the same facts;
4. CPR 19.5 - adding or substituting a party.

Question 27

What will the court consider in determining whether a case amended late under CPR 17.4 would still arise from substantially the same facts?

Answer 27

1.
Does the amendment add a new duty or obligation on D? If so, it should probably be a separate claim.
2.
Does the requested amendment clarify a duty or obligation which has already been alleged? If so, it probably falls within CPR 17.4.
3.
Does the requested amendment add a further instance of a duty or obligation already alleged? If so, it probably falls within CPR 17.4.

Question 28

What is the main Rule for adding or substituting parties after the limitation period has expired?

Answer 28

CPR 19.5

Question 29

Which provision deals with correcting a mistake in the name of a party after the limitation period has expired?

Answer 29

CPR 17.4(3)

Question 30

Under what circumstances can the court allow an amendment to correct the name of a party after the limitation period has expired?

Answer 30

CPR 17.4(3)
only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.

Question 31

Which provision deals with amendments to change the capacity in which a party claims after the limitation period has expired?

Answer 31

CPR 17.4(4)

If the new capacity is one which that party had when the proceedings started or has since acquired.

Question 32

Under what circumstances may a party be added or substituted after the limitation period has expired?

Answer 32

CPR 19.5(2)
… if—
(a)
the relevant limitation period was current when the proceedings were started; and
(b)
the addition or substitution is necessary.

Question 33

Under what circumstances may the court find that it is necessary to add or substitute a party after the limitation period has expired?

Answer 33

CPR 19.5(3)
… 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.

Question 34

How does the court decide whether correcting a mistake in naming parties in a claim requires a mere amendment or a full substitution?

Answer 34

CPR 17.4(3)
Where there is a genuine mistake and no reasonable doubt about who the original claim referred to.
CPR 19.5(3)
More fundamental mistakes requiring a substitution.

Question 35

What test must the court apply in determining whether to allow substitutions under CPR 19.5(3), made necessary by fundamental mistakes regarding the name of the party?

Answer 35

The Sardinia Sulcis [1991] 1 Lloyd’s Rep. 201
Has the intended defendant been identified in the statements of case by reference to a description more or less specific to the particular case?