Amending Statements of Case (CPR 17) and Changing Parties (CPR 19)

Question 1

what are the 2 types of amendments to statements of case under CPR?

Answer 1

1) CPR 17 = general amendments to SoC

2) CPR 19 = amendments to remove, add, or substitute parties

Question 2

who pays costs of amendments to SoC?

Answer 2

generally the party making the amendment

(costs is a downside to amending SoC - they are higher if:

• court permission is needed
• other party refuses to have written submissions so hearing is needed
• the amendment was late so court can impose penalties in costs)

Question 3

when can a party amend a SoC under Part 17 without permission of the court or obtaining consent of other parties?

Answer 3

if they did not serve the SoC yet

(but the court has the power to disallow this)

Question 4

when is permission needed to amend a SoC under CPR 17? whose permission is required? (3 cases)

Answer 4

1. a SoC can be amended at any time if all parties provide written consent (court can still disallow)
2. a SoC can be amended without permission of the court or consent of other parties before it is served (court can still disallow)
3. court permission is required to amend a SoC after it is served and where written consent of all parties is not given

Question 5

what is the procedure to follow to apply to the court for permission to amend a SoC under CPR 17? (4)

Answer 5

1. file application notice + copy of proposed amendment
2. court deals with application at a hearing unless parties consent to written submissions
3. if court allows amendment, party must file the amended SoC within 14 days of the order (with a judicial endorsement) + reverified statement of truth if substance is changed
4. party must serve the amended SoC on all parties

Question 6

what does the court consider in an application to amend a SoC under Part 17? (4)

Answer 6

1. the overriding objective (just and at proportionate cost)
2. try to balance injustice to applicant if refused and injustice to respondent if permitted
3. will refuse proposed amendment to DEFENCE if it finds it has no prospect of success
4. may reject an amendment seeking to raise a version of the facts that is implausible, self-contradictory, unsupported by documentation or evidence, or pure speculation

Question 7

can the court grant late amendments under CPR 17? (5 points to remember)

Answer 7

yes the court has discretion = BUT:

• hesitant if it leads to postponing dates or causes unfairness by putting parties at unequal footing or adds excessive burden to respondent
• heavy burden on applicant to explain and give evidence for why they were late, prospects of success of new amendment, and why justice for the other party AND the court requires the amendment
• court less ready to allow it where the need for the amendment does not result from late disclosure or new evidence coming to light
• the applicant must provide all info there and then (not say it will do so in the future)
• court may grant amendment but with cost penalties to the applicant

Question 8

when is the court’s permission needed to add, remove, or substitute parties under CPR 19?

Answer 8

permission needed after claim form is served

permission not needed if claim form is not served yet

Question 9

can all the parties consent to add, remove or substitute a party without the court’s involvement if the claim form has already been served?

Answer 9

no - this only applies to general amendments not related to changing parties

Question 10

can a party be added as a claimant to the proceedings?

Answer 10

yes but they must consent

(no need for a party added as a defendant to consent)

Question 11

what is the test for the court in an application to amend SoC to add parties under CPR 19?
what does the court consider in deciding this? (3)

Answer 11

test = the amendment must be DESIRABLE to add the new party so that the court can resolve all the matters in dispute

considerations:
- the public policy objective of allowing parties to be heard if their rights may be affected
- overriding objective
- increasing complexity and case management adding to cost and time

Question 12

what is preferable and for whom: adding a new party by claiming a Part 20.7 claim vs adding a party under CPR 19?

Answer 12

Preferable for C to apply to add a new party as a defendant under CPR 19 rather than only D applying to add them under Part 20.7

because C will not have a direct claim against the new party

despite the cost on C for making a CPR 19 application

example = C brings claim against D. D brings claim against E under Part 20.7. C loses in its claim against D. Because C did not join E into the main action as a defendant against C’s claim, the judge could not make a judgement in that main claim against E in favour of C.

Question 13

when amending SoC, why should parties consider limitation period?

Answer 13

an amendment (whether cause of action or parties) is considered a separate action which is commenced at the same date as the original action

D might be prejudiced as they will not have defence of limitation

Question 14

are amendments to a SoC allowed after the limitation period expires?

Answer 14

general rule = no

but there are a few exceptions under CPR 17 and 19

Question 15

when are amendments allowed post-limitation to add new causes of action? (3 cases)

Answer 15

1. new claim is a set-off / counterclaim
2. court discretion if the new claim arises out of the same facts or substantially the same facts as the existing claim
3. court discretion to direct that limitation period will not apply in a PR action if it finds it equitable

Question 16

when are amendments allowed post-limitation to add new parties? (3 cases)

Answer 16

court has discretion in the following cases:

1. mistake in name of party but no mistake of identity (name written wrong)
2. changing the capacity of a party
3. changing identity of party (new party) if there is a mistake but only if the party was sufficiently described by C in the claim form (e.g., C knew they wanted to sue their employer but did not know their name)

it follows that the court has no power to allow a post-limitation amendment if the defendant was not adequately described in the CF

Question 17

what are the general considerations a party seeking to amend a SoC must regard before doing do? (4)

Answer 17

(1) cost of amendment = party seeking to amend generally pays the costs associated with the amendment - may be higher if application to the court is required - may be higher if court imposes higher costs for late or unjust amendments

(2) benefit to the party = costs can be outweighed by the benefit of adding a new cause of action or another party as this may increase the likelihood of the amending party to receive retribution at trial

(3) merits of the party’s amendment = court is more likely to grant the amendment if it has a real prospect of success or where the amendment is required as a result of the opposing party’s actions or missteps

(4) timing = adding a new cause of action or party may increase the complexity and time required to prepare, or might prejudice future trial dates (which the court looks down on - might impose cost penalties if granting amendment)