8: Amendment Flashcards
When can a party amend something?
At any time
If SoC has been served, a party may amend only if –
- Written consent of all parties; or
- Permission of court.
Where SoC has been served, an application to amend by removing, adding or substituting a party must gain the court’s permission.
When MUST a party gain the court’s permission?
Where SoC has been served, an application to amend by removing, adding or substituting a party
Power of court to disallow amendments made without permission
If a party had amended his SoC where permission of the court was not required, the court may
court may disallow the amendment.#
A party may apply for an order for this within 14 days of service of a copy of the amended SoC on him.
Where the court gives permission for a party to amend his SoC, it may give directions to –
- Amend any other SoC; and
- Serve any amended SoC
What is the situation of
Amendments to SoC after end of limitation period
For a NEW CLAIM
The court may allow an amendment where the effect will be to add or substitute a new claim, but only if the new claim arses out of the same or substantially the same facts.
Amendments to SoC after end of limitation period
The court may allow an amendment to correct a mistake as to the name of the party where:
but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity.
Amendments to SoC after end of limitation period
The court may allow an amendment to:
- correct a mistake as to the name of the party,
- an amendment to alter the capacity if the new capacity is one which that party had when the proceedings started or has since acquired.
Applications to amend where permission is required.
Must it be dealt with with a hearing?
- Application may be dealt with or without hearing;
Applications to amend where permission is required.
When making an application to amend a SoC, the applicant should file with court:
- Application notice; and
- Copy of SoC
Where permission to amend is given, the applicant should
- within 14 days file with the court the amended SoC.
If the substance of the SoC is changed, it should
be re-verified by a SoT.
Must the amended SoC show the original text?
The SoC in amended form need not show original text
When should the court direct amendments be shown by coloured amendments or numerical code?
The SoC in amended form need not show original text. However, where the court thinks it desirable they may direct amendments be shown either by:
- Coloured amendments; or
- Numerical code
A party applying for an amendment will usually be responsible for costs of and arising from the amendment.
To amend, must there be a need to show some prospect of success?
An application for permission o amend a defence will be refused if the proposed amendment has no prospect of success.
Can reject where facts are “inherently implausible, self-contradictory or not supported by contemporaneous documents”.
Cannot request amendment where pure speculation or invention due to the Statement of Truth attached.
A claimant should not be granted permission where the claim is not maintainable in established law.
What is a late amendment?
Where amendment is close to trial date.
Late amendment = where trial date is fixed and permission to amend would cause trial date to be lost.
In this case, the applicant must provide
a good explanation as to:
- Why he did not apply earlier; and
- Must show the strength of the new case; and
- Why justice requires him to be able to pursue it.
Permission may be refused on matters which are minor or peripheral.
Once necessity to amend has become apparent, a party should tell his opponents about the amendment he intends to seek so as to enable them to consider whether to oppose or consent to it.
Where there is no reason for the late amendment = likely to be refused.
Amendment after evidence heard at trial
Can the court permit an amendment sought after judgment?
The court can permit an amendment sought after judgment has been given but before an order recording judgment that judgment has been drawn and sealed
