Amendment I Flashcards
What OCR Chapter covers amendment?
OCR Chapter 18
Does alteration of sum sued for before the record closes require the leave of sheriff?
An alteration to the sum sued for in a crave for payment before the Record closes does not require the leave of the Sheriff (OCR 18.1)
What is the distinction between amendment and adjustment?
There is a fundamental distinction between amendment and adjustment. Adjustment is the relatively informal process where you alter your pleadings prior to the options hearing. There is no attempt by the court to regulate the procedure or to control the content of the changes being made. By contrast, amendment is making changes to the text of your pleadings beyond the options hearing and in certain limited respects prior to it.
Critically, you do not have a right to amend you have to ask the court to exercise its discretion to do it. Unless you are simply seeking to change the sums sued for.
What is amendment?
Amendment is very common.
You can have amendments which occur before or after options hearing.
A common circumstance giving rise to amendment is legal debate, eg. Party under attack due to relevancy or specification and might amend pleadings to approve them. Or amendment generated by preparations leading up to proof, e.g. Adding subtracting or modifying, or factual developments in case which need expression to in pleadings.
What is required in formal amendment procedure?
Sometimes you need to amend before and sometimes after. There are certain things which require the formal amendment procedure:
• Competency – do the rules permit a proposed amendment? Involves exercise of discretion rather than whether it is competent to amend.
• Interests of justice – should the Sheriff exercise his discretion?
• What, if any, conditions should be attached to the allowance of the amendment?
- Fairness - question of prejudice to the other part
What is competency?
• Changes to the Instance (bit at beginning of initial writ e.g. Capacity or parties)
- OCR 18.2(2)(b) • Additional or Substitute Defenders – OCR
18.2(c)
If changing a crave then you also have to amend. So if changing a declarator or crave for implement or interdict then an amendment would be required or sums sued for (but for this you do not need leave of the sheriff).
The more general category is a change to the articles of condescendence or pleas in law after the options hearing. These require formal amendment procedure. The rules expressly provide that you can amend the instance of a party from suing or being sued in a representative capacity to suing the same person as an individual and vice versa, e.g. In their capacity as trustee.
It is competent to have more than one pursuer in a case. Provided it is competent to have more than one pursuer. If you start the action with one then you can add in others by way of amendment provided you can competently sue them around the same claim.
You can also put in additional defenders or substitute defenders (OCR 18.2(c))
The court has discretion whether to allow amendments or not. If it does allow amendment then the court will inevitably order intimation and service of the writ on a new defender. The mere fact this might cause prejudice to the original defender might be a reason to for the court to refuse this amendment. In which case, you might bring a separate action to make the person that you have tried or wanted to make the second defender — changes of a technical nature.
The next category is much wide:
• Changes necessary for determining the real question in controversy between the parties – OCR 18.2(c). The sheriff may at any time before final judgment allow any amendment which may be necessary for the purposes of determining the real question or controversy between the parties. This is the formulation in the rules which permits an amendment which is simply a change to the substance of the case for pursuer or defender must be able to show that amendment is necessary for the purpose of determining the real question or controversy of the case.
What is discretion to amend?
The decision as to whether to allow you to amend is a question of judicial discretion.
The timing of the amendment - the stage in the proceedings during which amendment is offered is crucial.
The second important consideration is the extent to which you are seeking to change your case. The wider the case, the more profound it is then the harder it is to get permission. The rational here is simple - if making wholescale changes at a late stage then you are more likely to provoke the court to saying this is far too wide ranging and you must start again with a fresh case.
The practical consequences to the authorised are considered - to what extent would your opponent have to spend time, money and effort investigating the case in order to respond to it. To what extent are the changes likely to give rise to unfair advantages to your opponent? e.g. Events which are so distant in the past that the other side cannot reasonably be expected to respond. The scope of amendment is therefore an important consideration particularly if it gives rise to difficulties.
Timing and scope go hand in hand as timing becomes more important the closer you get to proof of the case. The rule says that at any time before final judgment the rule is competent, even if this is the ECHR. It is technically competent to amend even when final court of appeal is at avizandum. This is what is competent but in practice it is very difficult to amend your case beyond the point at which the proof starts (when evidence begins to be heard).
It is a question of looking at different stages of the case, table your amendment 4 weeks prior to options hearing. This will usually be allowed as a matter of practice.
• General test - would the amendment result in injustice to the other party not capable of being compensated by an award of expenses and the attachment of any other conditions which seem just?
Once you are within 4 weeks of the proof things become more problematic.
Dryburgh v National Coal Board 1962 S.C. 485
people opposing amendments tend to rely on this case when arguing. In this case a worker was injured in an accident at work on 18 March 1958 he didn’t bring an action until 3 March 1981. He was just within the 3 year time limit when he did bring the action. The grounds were an unsafe system at work. There was a duty on the employer to take reasonable care to ensure the system of work in place is safe. There was also a breach of statutory duty alleged. In June 1961 a proof before answer was allowed and the proof was fixed for 20 february 1962. On 9 February the pursuer tried to introduce an amendment deleting the statutory case which was in itself problematic but also inserted a new common law case which was a case based on vicarious liability of employer. There is a common distinction in PI cases and accidents at work - either go for employer on the basis that they themselves have been negligent or you say accidents caused by a fellow employee the employer is vicariously liable for. So the amendment introduced for the first time the vicarious case and it also deleted the original common law case. The defenders objection and the lord ordinary refused to allow the amendment. The power to allow an amendment can be exercised subject to conditions however, one of them being the proof is discharged or postponed. The pursuer in this case saw the way the wind would be likely to blow and because he was trying to amend within 11 days of proof when proposing the minute of amendment he offered to agree to a decree of discharge recognising that that was the very least he could hope to achieve. However, the court refused to allow the amendment and there was no need therefore to discharge the proof. The pursuer appealed against the refusal of the amendment and the matter came before the first division of the court of session. The judgement from the inner house which is always cited is in the opinion of Lord Guthrie when he said: “In deciding whether or not the record should be amended the court seeks to do justice both in the pursuer and to the defender. When a minute of amendment is lodged very late in the course of the proceedings the time may have come when it would be unjust to the other party to allow the minute to be received with consequent postponement of the diet of proof or trial and consequent delay in the final determination of the case and additional expense occasioned by further precognition of the witnesses, moreover the investigation of circumstances newly averred long after the date of the circumstances giving rise to the action may result in a serious prejudice to the other party which should not be allowed. It was a discretionary decision anyway and there is ample material to justify the discretional decision by Lord Ordinary. The factors mentioned by Lord Guthrie are the ones in common currency in arguments about amendments; namely that they come late in the day, involve additional work, and in any event it may not be possible to properly investigate the new allegations.
Dry burgh represents the high watermark in the courts for taking a strict approach to amendments. It is common for a sheriff or judge to allow late amendment even if this may result in a discharge. Certainly, the pursuer or defender is able to say to the court that the need for the amendment arises as a result of something unexpected, which could not reasonably be anticipated at an earlier stage, then the court will be relatively sympathetic. If the need to amend comes about as a result of tardiness or a lack of proper preparation then the court will be less sympathetic. Whether there has been a previous amendment will be a relevant consideration. To some extent the court will allow each side one indulgence even if there have been shortcomings with the preparation. The point in having done extra work or waste money in preparing for a proof if it has to be discharged is that that expense is usually met by the court awarding expenses against the party amending. You are going to have to bear the costs of the discharge of the proof and the cost of reamendment and going to have to pay both sides cost and not just your own.
The one enduring observation in Dryburgh is the question of being unable to investigate properly due to the passing of time. If the amendment is relatively late this does cause a genuine disadvantage to the other side and this may well prompt the court to refuse the amendment.
• Tardiness in preparing or presenting a case - the question for parties and lawyers conduct is a relative consideration as well
Urquhart v British Railways Board 1982 SLT
- Here the defenders were trying to amend and tried to do so shortly before the proof. They wanted to put in a defence to the effect that the pursuer had been drinking heavily prior to the accident. In the course of the argument it emerged that the source of the averment was an entry in medical records. The pursuer had been carted off to hospital after the accident and one of the doctors had ordered a history that he was under the influence of alcohol at his place of work and it emerged that the defenders had been in possession of the medical records which contained the entry for a year before they tabeled the amendment but had either not noticed the information or failed to act on it. One of the main reasonings as to why amendment was refused was the defenders had the means to make the disposal long before the proof and their failure to do so was a justification for refusing the amendment.
Thomson v Glasgow Corporation 1962 S.C.
this case was decided around the same time as Dryburgh. Claim for damages against a Local Authority - Mrs Thomson was injured at a public wash house while she was waiting to use a spin dryer. The case went to proof and was unsuccessful. Decree of absolvitor was granted in favour of the defenders. Mrs Thomson appealed to inner house and lodged a minute of amendment - it was a significant change to her case involving a change of the factual account of how the accident occurred and also the grounds of the case (legal basis). The subtext was that it wasn’t mrs Thomsons fault that it was lost. Her legal team had not properly prepared the case and presented in such a way which meant she would lose. Once this got into inner house the senior counsel saw a clear explanation of why the case was lost and also saw that if presented properly then Mrs Thomson would probably have won. He instigated the minute of amendment and Mrs Thomson lost the application and was not allowed to amend. Her senior counsel appealed to the house of lords but it was held the refusal was correctly allowed. Lord Clark said: “looking at the matter broadly the function of a judge in civil litigation was to act as an umpire. At 52 - a litigation is an essence of trial of skill between opposing parties conducted under recognised rules. We have rejected inquisitorial methods and prefer to see our judges as entirely independent like referees at boxing contests. In my view therefore when the expediency of allowing an amendment comes up we have to consider in light of our structure within which our system works and in light of the whole history of the case to date whether allowing the amender would mean they have an unfair advantage over his opponent. In theory the closing of the record is an important step as it marks the borderline between pleading and proof. Prejudice is not regarded as unfair as the other party is regarded as compensated by the award of expenses - amendment is in theory a belated adjustment under which the latter has to pay. So by and large if you amend before proof this is ok but must pay expenses which arise.
• After the first witness is called however, everything is different as witness calling is tactical - the decision of how to prepare a case will be heavily influenced by what your opponents pleadings say. The very questions you ask those witnesses will likewise b influence.
When does prejudice occur?
• Prejudice to the opponent as a result of discharge – justice delayed, additional cost and inconvenience, loss of evidence or diminution in witnesses’ recollection. It is not fair after the contest has run its course to allow the losing party to say I am going to change my case and try and succeed on a different basis. The start of the proof is an important watershed as to when amendment will be successful.
• Variation, modification or development of what is already pled but not a ground which is new, separate and distinct – see Burns v Dixon’s Iron Works 1961 S.C.102 - this course dealt with amendment in the course of proof. If running a case and realise the way it is pled is not quite right then you will be allowed to amend to a limited extent. The court may permit a modification or development of an existing case but will not allow amendment which goes beyond that and is a departure of the original position.
A modest change in scope can stop proof in tracks, put forward amendment and ask court to allow that amendment on the basis of this case. The principle is that it is a modification or development of an existing case. You will inevitably get in practice opposition from the other side but they must point to prejudice arising from the amendment, it is not enough to say we are prejudiced as we are likely to lose but in being able to compete fairly. The person making or proposing amendment will want to be able to say that all witnesses were here and everyone can say something on this or if party opposing argue that these matters could have been investigated through witnesses but now cannot and that creates prejudice.
