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
Amendment after evidence heard at trial
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. However, before permitting this, the court must decide if there are
- Exceptional circumstances; or
- Strong reasons
For doing this.
There can be amendment after evidence is heard at trial.
Resolving disputes as to whether a limitation period has expired
Who has the onus?
Where limitation period has expired before amendment made, the onus = applicant to show amendment falls within r17.4 (genuine mistake) or r19.5 (substitution).
Where there is a dispute as to whether or not a new claim sought to be raised by amendment is statute barred, the claimant must prove:
- Defendant’s limitation defence is not reasonably arguable; or
- The amendment falls within r17.4 or r19.5
If they cannot establish either of this, permission should be refused leaving claimant to bring fresh proceedings.
AMENDMENT POSITION:
Before filing, issue or service:
- amended without restriction
AMENDMENT POSITION:
After filing or issue, before service.
Amendments made without seeking court permission
AMENDMENT POSITION?
AFTER SERVICE
- Amendments not involving a change of parties can be made with the consent of the other parties, or with court permission.
AMENDMENT POSITION?
After service, amendments involving a change of parties can only be made with
- with the court’s permission.
The amended SoC MUST be endorsed.
Applying for permission to amend
What is required?
Application notice required.
Copy of the draft amended statement of case.
Witness statement may be required addressing the facts establishing the principles for allowing amendments, except in obvious cases.
If the substance of the pleading is changed it will require a new statement of truth
Norm made without notice.
Application to substitute a party may be made without notice.
There are NO criteria governing permission to amend.
Merits of substantive amended claim
means:
- There needs to be a “real prospect of success” on the amended case
Court MUST consider all circumstances + OO + amendments ought allowed so real dispute can be adjudicated upon, provided prejudice can be compensated in costs and administration of justice not significantly harmed.
Late Amendments
Factors
- Is there a satisfactory explanation for not amending earlier?
- Prejudice to the party seeking to amend if permission is refused
- Prejudice to the other parties if permission is granted
- Whether the text of the amendments is clear and particularised
- History of amendments in the case
- Does the amendment substantially alter the case?
- Was the amendment “pre-shadowed” in earlier witness statements etc
- Strength of the amended claim
Not insisting on formal amendment is a case management decision + may be permitted where other side know new issues being raised + have dealt with them.
Amendment @ end of trial = Court MAY permit amendments ever AFTER judgment been delivered up to point order drawing up the judgment is sealed. Factors:
- Whether the amendment will give an unfair advantage
- Whether the resisting party was able to make submissions on the new case
- Whether the resisting party had sufficient notice of the new case
- If judgment has been delivered, there must be exceptional circumstances or strong reasons
AMENDMENT AFTER limitations
Position:
Norm amendments allowed providing no prejudice that cannot be compensated. Amendments AFTER limitation adding a new claim = BANNED, subject restrictions.
AMENDMENT AFTER limitations
ALLOWANCE:
New claim
- Adding or substituting a new party
- Adding or substituting a new cause of action
AMENDMENT AFTER limitations
What are the exceptions to:
- Adding or substituting a new party
- Adding or substituting a new cause of action
Exception
New party substituted
Cannot be carried on without amendment
AMENDMENT TO CHAAMENDMENT TO CHANGE PARTIES (no limitation issue)NGE PARTIES (no limitation issue)
Simple Position:
Unless CF hasn’t been served, court’s permission to remove, add or substitute a party MUST be obtained.
AMENDMENT TO CHANGE PARTIES (no limitation issue)
TEST = MAY order new party added if:
- Desirable so court can resolve all matters in dispute; OR
- There is an issue connected to matters in disputes and desirable to resolve it.
AMENDMENT TO CHANGE PARTIES (no limitation issue)
When must permission be sought?
Permission must be sought for this type of amendment, where the amendment is desired after service of the claim form. Means
- No consent required before service of the claim form
- After service, this type of amendment cannot be made by consent
The test is whether the change in parties is desirable
AMENDMENT TO CHANGE PARTIES (no limitation issue)
Evidence required:
Application notice (N244) with written evidence
Evidence must explain the new party’s interest in the proceedings (intervening) or connection with the claim
AMENDMENT AFTER limitations
What is a situation where a case cannot be carried on without an amendment?
Cannot be carried on without amendment
EXAMPLE:
- Original C was company, allowed to substitute liquidator
AMENDMENT AFTER limitations
When is:
New cause of action/Substitution allowed?
Adding/substituting new cause of action allowed if:
- The new claim is an original set-off or counterclaim
- The court disapplies the personal injuries 3-year time limit under s. 33
- The new claim arises out of the same or substantially the same facts as those already in issue
What does:
“Original” mean?
first time D pleaded counterclaim/set off. Original set-off or counterclaim may only be brought in by amendment if it was not time-barred on date C brought main claim.
What does:
“Same or substantially the same facts”
mean?
read in words “are already in issue on”.
Amendment affecting ACCRUED limitation rights =
General position?
general position: not allowed as party seeking to amend cannot compensate the prejudice.
Amendment affecting ACCRUED limitation rights
Exceptionally an amendment after limitation expired affecting accrued limitation rights MAY be allowed:
- Where party seeking to amend isn’t at fault
- Where innocent party already knew facts introduced by proposed amendments.
A party served with a SoC amended without permission cab object by issuing an application notice – within 14 days of service of amended SoC.
New Party added/substituted
Adding/substituting NEW PARTY = allowed ONLY where:
- Necessary; and
- Complies with CPR
- Made a mistake and correcting it
- Cannot be carried on without making amendment.
New Party added/substituted
TEST:
Two main applications of the principle:
- To correct a mistake:
- Claim cannot be carried on without the change in parties
New Party added/substituted
Correcting a mistake =
POSITION
ONLY for SUBSTITUTION.
You cannot add party, only substitute them. Two types of mistake:
- Name
- Party’s identity
BUT – the mistake MUST be of NAME, NOT identity.
New Party added/substituted
Correcting a mistake =
TEST
TEST: is it possible to identify the intended defendant “by reference to a description more or less specific to the particular case”?
E.g If C gets right description, but wrong name
Substitution = Pure addition of a party is NOT permitted.
