Amended statements of cases and changing parties

Question 1

Why might a party need to amend their statement of case?

Answer 1

A party might need to amend a statement of case as a knock on consequence of having added a party or claim, or because of an error, or due to change in their knowledge of a case.

Question 2

Do amendments to a statement of case need to be verified?

Answer 2

Yes, they must be verified by a statement of truth unless the court orders otherwise.

Question 3

Who bears the cost arising from the amendment?

Answer 3

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

Additionally, on giving an order to substitute or add a party the court generally makes an order for costs against the party seeking the change.

Question 4

In relation to general amendments, is it possible to amend a statement of case without permission of the court or consent?

Answer 4

Yes, a party may amend a statement of case, including removing, adding or substituting a party, at any time before it is served.

However, the court retains the power to disallow such amendments.

Question 5

Can a general amendment be made at any time with written consent of all parties?

Answer 5

Any statement of case can be amended at any time with the written consent of all parties.

When an amended statement of case is filed without the need for the permission of the court, it should be endorsed with the words:

“Amended [particulars of claim/defence (or as may be)] under CPR [Rule 17.1(1) or 17.1(2)(a)] dated […]”.

However, the court does retain the power to disallow such amendments.

Question 6

When will the court’s permission be needed to make a general amendment?

Answer 6

When a statement of case has been served and written consent has not been given from all the parties, a party will need to apply to the court for permission to make an amendment.

Question 7

If court permission is necessary to make a general amendment, what must the applicant do?

Answer 7

Party seeking the amendment should file an application notice with the court, together with a copy of the proposed amended statement of case.

Question 8

When will the court deal with an application to make a general amendment to a statement of case?

Answer 8

The application can be dealt with at a hearing, or, where all parties consent, without a hearing on written submissions.

Question 9

If court permission is given to make a general amendment, when must service be effected?

Answer 9

If permission to amend is given, the court will usually give directions as to any consequential amendments and the service of any amended statements of case. In any event, the amended statement of case should usually be filed by the applicant within 14 days of the date of the order granting amendment unless the court orders otherwise. A copy of the amended statement of case and the order should also be served on every party to the proceedings.

Question 10

When will an application for permission to amend a defence be refused?

Answer 10

An application for permission to amend a defence will be refused if it is clear that the proposed amendment has no prospect of success. The court may reject an amendment seeking to raise a version of the facts of the case which is inherently implausible, self-contradictory or is not supported by contemporaneous documentation.

A party will also not be permitted to raise by amendment an allegation which is unsupported by any evidence and is therefore pure speculation or invention.

Question 11

How does the court view late amendments in relation to application for a general amendment?

Answer 11

An applicant seeking permission for late amendments will need to work very hard to convince the court that permission should be given, providing a good explanation as to why they did not apply earlier and must show the strength of the new case and why justice to them, their opponent and other court users requires them to be able to amend.

Less likely where need for amendment does not result from some late disclosure or new evidence.

Question 12

What will the court consider when deciding whether to give permission to make a general amendment?

Answer 12

It is recognised that the general principle is that the court is required to give effect to the overriding objective of dealing with cases justly and at proportionate cost.

The decision will always involve the court seeking to find a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted.

Question 13

Is it possible to amend a statement of case relating to removing, adding or substituting a party without the permission of the court?

Answer 13

The claimant can remove, add or substitute a party without permission so long as the claim form has not been served.

Question 14

When will court permission be necessary to amend a statement of case relating to removing, adding or substituting a party?

Answer 14

The claimant will require the court’s permission to remove, add or substitute a party if the claim form has already been served.

Question 15

When will the court give permission to amend a statement of case that amends, removes, adds or substitutes a party?

Answer 15

The main test to be satisfied when seeking to add, remove or substitute a party is that the amendment is ‘desirable’.

In considering this test the court will have in mind the policy objective of enabling parties to be heard if their rights may be affected by a decision in the case, and the overriding objective.

Question 16

Which party can apply for an order that a defendant of an additional claim is added as a defendant to the main claim?

Answer 16

The claimant or the defendant.

Question 17

Is permission/consent needed to add someone to a claim?

Answer 17

No one can be added as a claimant without their written consent, with the consent being filed at court. If someone refuses to be added as a claimant, they can instead be added as a defendant.

The courts permission is always required to add, remove or substitute a party unless the claim form has not been served yet.

Question 18

When is an amendment to add a new cause of action or party to existing proceedings deemed to have commenced for limitation purposes?

Answer 18

The same date as the original action.

Question 19

When is the addition of a new party deemed to have commenced for limitation purposes?

Answer 19

The addition of a new party now takes effect on the date the amended claim form is served upon him, unless the court orders otherwise.

Question 20

What is the starting point in relation to making amendments after the limitation period has expired?

Answer 20

The starting point is s 35 Limitation Act 1980 and the usual rule is that such amendments will not be allowed.

Question 21

When can a new cause of action post limitation be added?

Answer 21

a. When the court directs that the limitation period will not apply in a PI action. This gives the court a general discretion to disapply that time limit if satisfied it is equitable to do so.

b. The new cause of action is an original set-off or counterclaim.

c. The new cause of action arises out of the same facts or substantially the same facts as are already in issue in the original claim.

The court may allow the amendment when the effect will be to substitute or add a new claim after the end of the limitation period, 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 seeking permission to amend has already claimed a remedy.

The onus is on the applicant to show that the proposed amendment falls within this criteria.

Question 22

Give an example of a new cause of action

Answer 22

An amendment adding a new duty or obligation on the part of the defendant, will usually raise a new cause of action.

An amendment adding additional facts or particulars which clarify a duty or obligation which has already been alleged will not normally be interpreted as raising a new cause of action.

Question 23

When can parties be added or substituted after the end of the relevant limitation?

Answer 23

The limitation period was current when the proceedings were actually started; and

The addition or substitution is ‘necessary’.

Question 24

When will an addition or substitution be `necessary’ post-limitation?

Answer 24

a) The new party is to be substituted for one that was named in the claim form in mistake for the new party; or

b) The claim cannot properly be carried on/by/against the original party unless the new party is added or substituted; 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 25

In relation to `mistake’ as to name, what mistakes does the court have power to allow the amendment?

Answer 25

Genuine mistake such as causes no reasonable doubt as to the identity of the party in question = court has the power to allow amendment.

Named in the claim form in mistake for the new party – adequately described = court has the power to allow amendment.

Question 26

In relation to `mistake’ as to name, what mistakes does the court NOT have power to allow the amendment?

Answer 26

Named in the claim form in mistake for the new party – not adequately described = court has no power to allow amendment.

Question 27

Is there any need for the amended statement of case to show the original text?

Answer 27

No, unless the court orders otherwise.

Question 28

How are amendments shown?

Answer 28

By using coloured amendments or by using a numerical code.

Question 29

If colour coding is used, what is the order of colour for successive amendments?

Answer 29

(1) red
(2) green
(3) violet
(4) yellow