Amending statements of case and changing parties

Question 1

Why may a party amend a statement of case?

Answer 1

as a result of a knock on consequence of having added a party or a claim

change in knowledge of a case

drafting error

Question 2

what MUST a amendment be verified by

Answer 2

a statement of truth, unless court orders otherwise

Question 3

What is the significance of amendment on costs and who bears them?

Answer 3

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

upon giving an order to substitute or add a party the court will make an order for costs against the party seeking the change

Question 4

When can amendments be made to statements of case without permission?

Answer 4

At ANY TIME BEFORE IT IS SERVED

but amendments to particulars of claim that alerts the parties involved may require consent of the claim form has already been served

Question 5

When can changes be made with consent?

Answer 5

at any time with the written consent of all the parties

party making amendment will bear the cost

court can disallow an amendment

Question 6

What is the procedure for amending with court’s permission?

Answer 6

Require consent of court if statement has been served and written consent of all parties has not been given

need to file an application notice with the copy of the proposed amendments of statement of case

can be dealt with at a hearing or, if all parties consent, on a written submission

if permission is given court will give directions for consequential amendments

amendment should be filed within 14 days of the date of the order granting the amendment unless court orders otherwise

this should be served on every party to the proceedings

Question 7

When will the court grant permission to amend a statement of case?

Answer 7

1. need to consider overriding objective AND finding balance between injustice to applicant and opposing party if amendment is allowed or refused
2. NEED TO SHOW PROSPECT OF SUCCESS
   - application to amend a defence will be refused if amendment has no prospect of success
3. Think about late amendments

Question 8

What does the court consider with late amendments?

Answer 8

it can cause unfairness, add an excessuve burden to the respondent prepping for trial

can put a trial date at risk and cause a postponment

applicant will need to work hard to convince why they did not apply earlier and must show the strength of the new case

Question 9

What are the swain mason v mills and reeve principles on late ammendments?

Answer 9

Court should be less ready to allow very late amendments where it does not result in late disclosure or new evidence

heavy onus lies on party seeking a late amendment to justify it in regard to own position and also to other parties and give evidence for why the application is late

party cannot say the deficiencies can be rectified by way of further information or evidence

Question 10

What are the conditions for adding, removing or substituting parties?

Answer 10

any number of claimants or defendants can be joined to a claim

except where limitation period has expired, the test to be satisified when seeking to add remove or substitute is that the amendment is DESIRABLE

Question 11

when is consent or permission needed when adding, removing or substituting parties?

Answer 11

Nobody can be added as a CLAIMANT without their consent and the consent being filed at court

if refuse to be added as a claimant they can be added as a defendant

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

Question 12

Amendments after the limitation period passed

Answer 12

GENERALLY NOT ALLOWED - s35 limitations act

Except where than original set off or counterclaim is raised by an amendment and where otherwise provided in the limitation act and by the rules of the court

Question 13

When can a new cause of action be added after a limitation period expired?

Answer 13

When the court directs that the limitation period will not apply in a personal injury action eg injury is not apparent in the 3 year limitation period

the new cause of action is an original set off or counterclaim

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

Question 14

In what circumstances can you make an amendment to the parties after the limitation period?

Answer 14

to correct a mistake as to the name of a party

change the capacity of a party

change identity of the defendnat

• if does not fall in one of the categories= it will not be allowed

Question 15

When can a party be added or substituted after a limitation period has expired?

Answer 15

If the limitation period was current when the proceedings were actually started and

the addition or substitution is necessary

Question 16

When is the addition or substitution deemed necessary?

Answer 16

When the court is satisfied that:

1. the party is being substituted for one which was named in claim form by accident
2. the claim cannot properly be carried out on by or against the original party unless the new party is added or substituted
3. original party died or had a bankrupcy order made against them and his interest or liability passed to a new party

Question 17

What is the test from Sardinia Sulcis for substituting a party based on a new identity?

Answer 17

Has the intended defendant been identified in the statement of case by reference to a description more or less specific to the particular case?

If yes= it is a mistake and amendment may be permitted

if not = court cannot permit