Amendment II Flashcards
When is it competent to amend?
It is technically competent to amend at appeal stage
Winnick v Dick 1981 S.L.T. (Sh. Ct.) 101
amendment allowed at appeal stage. In this case two men went out drinking on a day long bender and at end of the day they got in a car and had an accident. The driver had been drinking all day and the passenger sued the drive for damages. It was a straightforward negligence claim. The case went to proof before the sheriff and was pled that the defender had willingly undertaken the risk of the injuries. The defender was unsuccessful at proof because there is a statutory provision in the road traffic act which says that the common law principle of volenti does not apply in a road traffic scenario. The defender appealed and sought leave to amend defences by adding an additional plea in law that it was contrary to public policy to allow pursuer to succeed in a claim which was an alleged common criminal purpose - e.g. Drunk driving. The sheriff principle allowed that amendment so the appeal before him and subsequent appeal in inner house could be argued on two grounds: (1) volenti (2) public policy. The defender lost on both arguments in both courts so pursuer got his money but there was an amendment allowed after the proof. The amendment was allowed probably because there was no alterantion to the factual basis of the case - the pursuer had willingly gone in a car with a man he knew to be drunk. That being so no question of prejudice to the pursuer either in preparation of proof etc all defender did was add in another legal argument to his case which could be dealt with on its merits at appeal stage. That is a restricted example of allowing amendment after evidence.
What are the conditions of amendment?
It is essentially a discretionary decision
The court can and does attach conditions to the allowing of the amendment
Almost invariably he condition will be an award of expenses against the amending party - usually confined to cost of amendment procedure, but this can be significant. If a court also has a charge of hearing, proof, debate as consequence of amendment then the award of expenses might cover that all. In an extreme case a pursuer may have been rattling ahead with a hopeless case and may nonetheless realise it is curable.
If you have a far reaching amendment the court might be persuaded that on expense which has incurred up to that point being wasted on a litigation which would never go to a final conclusion so the award of expense can be expense of whole action up to amendment itself including the amendment.
This can also include discharge as a result of the amendment which can be attached to the allowance of the amendment itself.
• The amending party is liable for the expenses of the amendment procedure unless it is shown that it is just and equitable that the expenses occasioned by the amendment should be otherwise dealt with – OCR 18.6.
What is the procedure of amendment?
• OCR 18.3
If you have a very brief change to make, minor amendments e.g. A few words or minor details with no chance opponent will have to answer this, this can be made at the bar - this is an oral amendment e.g. Only permitted where no question of any prejudice to the other side. It will never be available on a seriously contentious point.
• Otherwise a written minute spelling out the proposed alterations to the text of the pleadings is required - draft a document called a minute of amendment which has usual instance at the top and says minute of amendment for pursuer or for defender at the top. There are examples of this in papers. There is a formulaic preamble: Martin Brown for pursuer craves to court to allow the record to be opened up…then set out changes… number of paragraphs depends on scope of amendment but each paragraph has to identify the changes that you want to make. If it is purely adding to the text then identify the point of pleadings where you want it to be and in quotation marks set out the passage you want to add in. If deleting then go through own pleadings and set out changes you want to make in minute of amendment
• Motion to allow the minute to be received does not of itself achieve amendment
Identify where you want to make the change and what the change is - see example on p.163.
PROCEDURE
One drafted minute of amendment you initiate the amendment by enrolling the motion in the case. The content of the motion will depend on what you want the court to do first - if brief and opponent does not need to answer then when you enrol the motion you simply ask the court to allow the record to be amended by minute of amendment. This is a one stage process, if your opponent is not objecting to that then he/she will not oppose and it will go ahead. If however if they do wish to answer the minute then he will oppose the minute and you will go before the sheriff and have an argument about it. The likely scope of the argument will be the amender or proposed amender saying this does not need answer so you should amend pleadings here and now, etc.
More commonly the person amending drafts the minute and recognises that the other side will want to respond to (e.g. Averments of fact) for anything substantial, likely to require an answer you cannot rely on the one-stop procedure, you must present your minute of amendment with a motion that says “allow the minute of amendment to be received and give the other side the opportunity to answer the minute”.
There is an important practical decision, on the one hand you can table the minute of amendment to be immediate but on the other hand you can simply ask for court to allow it to be received and answered. This has no effect on the pleadings as it stands, simply allowing the minute of amendment to be received just means that there is a minute of amendment on the cards. In these circumstances, the court makes an order for answers within a stipulated period (14 days) and in the same order the court says that if answers are lodged the parties have a period where they can adjust their minute of answers. It is like a mini pleadings exercise within the overall confines of the case.
In a typical situation the pursuers minute of amendment is received and the defender lodges answers within the specified period:
• Order for answers
• Adjustment of the minute and answers (not
the unamended pleadings) - during the following month parties can tinker with their answers by adjustment
One this time limit is up you get to final stage - whether or not the court will allow minute of amendment.
After the adjustment of the minute of amendment and answers, the party who initiated the amendment should enrol the motion to allow the pleadings to be amended in terms of the minute and answers - if the other side does not object then an order will be made allowing that to happen and the party amending should reprint the record incorporating changes affected by the minute and answers.
• Motion for leave to amend in terms of the minute and any answers (as adjusted)
Even though they have answered the minute the party who did not initiate the minute may want to oppose the minute. They do this by opposing the motion to allow the minute in terms of minute and answers. The mere fact that the other side has put in answers and adjusted them does not prevent them from putting in opposition. There may be in principle that it comes too late and gives rise to prejudice, so answers in those circumstances give rise to fall back. You would lead argument before sheriff as to whether he should exercise his discretion to allow the amendment.
The sheriff can allow only part of the amendment and not the rest. Sometimes if one party amends then the other side will take that opportunity to make changes to their pleadings which are not answers to what is in the minute. They are handed the chance on the plate to make the changes they want to. This is perfectly legitimate but it may affect the position on expenses - e.g. If the defender latches on and makes wholescale changes then the pursuer can say to the court that they shouldn’t pay for expenses here as the defender is effectively making adjustments by the back door.
14 days for answers
1 month for adjustment
These periods can be shortened e.g where amendment is tabled 3 weeks before proof then the procedure cannot be accommodated, the pursuer might say to appoint defences within 7 days and allow a further 7 days for adjustment. It is common to have a live minute of amendment on the first day of the proof. Preliminary business can be the final stage of amendment procedure. The party amending has to bring along a printed version of the amended record so that it is available in the event that the court does allow the amendment on that day. The answers look very much like minute of amendment. They are headed answers but set out para by para line by line the changes the person wants to make to their own pleadings.
• Preliminary pleas inserted must be accompanied by a note for the basis of the plea – OCR 18.8
If the court allows amendment the record will be opened up amended and closed again, an amended closed record will be made up.
Read Chapter 18 for more detail*.
What is time bar?
Time bars can take the form of prescription (5 years) or plea of limitation (damages claim for personal injuries)
If the issue is prescription and fail to raise within 5 years then you have had it and the claim has subscribed.
If you miss the triennium then the legislation 1973 act does give you one get out - provision in the acts says that even though limitation period expired you can continue with leave of the court. You have to put averments in the initial writ as to why you should go ahead even though you missed the time bar.
There is considerable case law.
Purpose of limitation provision is to protect the defender from a stale claim. If you have been negotiating with insurers for 2.5 years then if the insurers have had chance to investigate then difficult for them to say they are chasing a stale claim. The legislation is to protect from initial claims too late.
Other considerations include whether your solicitor made a bad error and missed time bar; otherwise it is any equitable consideration you can think of;
Must be aware of raising difficulties of a new case after expiry of time bar.
• Amendment involving new pleadings which, if they were the subject matter of new proceedings, would fall foul of a statutory plea of prescription or limitation
Amendemnt after time bar gives rise to different problem, e.g. PI action 2.3 years after actions and case runs its course and takes you past 3 year time bar then you decide you want to make a significant amendment to your case. If you raised your action before the shutters came down but question remains about what should court do when changing court beyond time limit which would prevent you raising a fresh action - see Pompa’s Trustees.
• Ultimately a matter for the court’s discretion
Pompa’s Trustees v The Magistrates of Edinburgh 1942 S.C. 119
General rule on time bar:
- In June 1940 italy declared war on the united kingdom. On 9/10 june a mob took to the streets of leith and attacked an italian cafe seeing serious damage done to venue. The act at the time said the victim of riots had right to apply to the council for compensation but this imposed time limit on claims. They brought a claim initially within the time period but after this expired an issue arose as to whether or not to sue the correct entity. The point seemed by modern standards to be a very narrow one. They raised the action against the magistrates but they ought to have raised the action against the town clerk in a representative capacity. When the issue came to the notice of the pursuers they sought to amend their pleadings to correct the defect in the instance and bring the action against the correct defender - this raised an issue of a significant change being made after the expiry of the time bar. The result was that a common law principle emerged from the opinion of the lord justice clerk cooper and how a court should approach an amendment and circumstances where a new claim would be time barred. He said that in general the court would not allow a pursuer by amendment to substitute the defender for the right defender or cure a radical incompetence or change the basis of his case.
• You cannot substitute the right defender for the wrong one
• You cannot cure a radical incompetence
• You cannot change the basis of your case
Substituting the correct defender for wrong one is not problematic but curing a radical incompetence is not particularly common. Where battle ground is drawn is on proposition that you are not allowed to amend so as to change the basis of your case where the amendment is tabled after a time bar would prevent you from raising a new action.
If you raise an action for damages under contract before 5 year period and then amend after you are in these rules.
How does the court approach the question as to whether any given amendment is intended to change the basis of the case?
The way it has been put in later cases is that you cannot alter the foundation of your case but you can make alterations to the superstructure of your case
Is the particular change to the foundations or the superstructure?
The court is more relaxed about changes to legal basis than factual basis - e.g. If adding something significantly different
• You cannot present a new front but you can offer the old front from a new angle
• You can make alterations to the superstructure of your case but not its foundations or its essence
Sellars v Imperial IMI Yorkshire Imperial Ltd 1986 S.C. 235 -
The rule in Pompous was thought to be cast in stone and was characterised as a question of competence (whether to change the basis of the case is competent). Certain cases now suggest that even if trying to change basis of the case you may be permitted to do so by exercise of court’s discretion. When court is determining whether amendment comes before or after time limit the crucial date is when the court allows a minute to be received.
The law is that it is the date the minute is received, so if accident and minute of amendment is received before triennium then that is all ok, if minute received after triennium then you are in the territory of these rules.
In every case whether it is in the sheriff court or court of session there will be a period of adjustment, you are entitled to adjust even if you are doing so after a time limit which would prevent you from raising a new action. e.g. Case raised a week before triennium, the adjustment period would be raised 4/5 weeks after service and you have a period as a right to adjust your pleadings and can make any changes you like during this period, this only applies to amendment which a party seeks to make after expiry of a time limit - authority for that is Sellars v Imperial IMI Yorkshire Imperial Ltd 1986.
