Amendments to Statements of Case

Question 1

which part of the CPR deals with Amendments of Case?

Answer 1

CPR 17

Question 2

when may a party amend their statement of case without permission?

Answer 2

before it is served on the other party.

Question 3

if the statement of case has been served, they may amend it only —

Answer 3

• with written consent of all the other parties; or
• with permission of the court.

Question 4

If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with which rule?

Answer 4

CPR 19.4

Question 5

when may an amended statement of case, without permission, be disallowed? CPR 17.2

Answer 5

• by the court on their own initiative
• by a party within 14 days of service of a copy of the amended statement of case on them

Question 6

Where the court gives permission for a party to amend his statement of case, it may give directions as to—

Answer 6

(a) amendments to be made to any other statement of case; and
(b) service of any amended statement of case.

Question 7

The power of the court to give permission to a party to amend their statement of case is subject to—

Answer 7

(a) rule 19.2 (change of parties—general);
(b) rule 19.5 (special provisions about adding or substituting parties after the end of a relevant limitation period; and
(c) rule 17.4 (amendments of statement of case after the end of a relevant limitation period).

Question 8

amendments to a statement of case when the limitation period has expired

Answer 8

The court may allow an amendment whose effect will be to add or substitute a new claim, 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 applying for permission has already claimed a remedy in the proceedings.

Question 9

application for amendment be dealt with or without a hearing?

Answer 9

with a hearing. OR if:
- the parties agree on the amendment
- agree to not be done via a hearing; or
- the court thinks a hearing would be inappropriate
then it can be dealt without a hearing

Question 10

When making an application to amend a statement of case, the applicant should file with the court —

Answer 10

(1 )the application notice; and
(2) a copy of the statement of case with the proposed amendments.

Question 11

Where permission to amend has been given, when should the applicant file with the court the amended statement of case?

Answer 11

within 14 days of the date of the order, or within such other period as the court may direct

Question 12

If the substance of the statement of case is changed by reason of the amendment, the statement of case should be…

Answer 12

…re-verified by a statement of truth

Question 13

A copy of the order and the amended statement of case should…

Answer 13

…be served on every party to the proceedings, unless the court orders otherwise.

Question 14

The amended statement of case and the court copy of it should be endorsed as follows:

Answer 14

(1) where the court’s permission was required:
“Amended [Particulars of Claim or as may be] by Order of [Master ….] [District Judge …. or as may be] [Legal Adviser] dated ….”

(2) Where the court’s permission was not required:
“Amended [Particulars of Claim or as may be] under CPR [rule 17.1(1) or (2)(a)] dated ……….”

Question 15

The statement of case in its amended form need not show the original text. However, where the court thinks it desirable for both the original text and the amendments to be shown, the court may direct that the amendments should be shown either—

Answer 15

(1) by coloured amendments, either manuscript or computer generated; or
(2) by use of a numerical code in a monochrome computer generated document.

Where colour is used, the text to be deleted should be struck through in colour and any text replacing it should be inserted or underlined in the same colour.

The order of colours to be used for successive amendments is: (1) red, (2) green, (3) violet and (4) yellow.

Question 16

the party applying for the amendment will usually be responsible for what?

Answer 16

the costs arising from the amendment

Question 17

general principle for the court to grant permission to amend

Answer 17

• An obvious starting point is the “justly and at proportionate cost” in accordance with the overriding objective, striking 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.
• “A common sense judgment needs to be made in the light of what proportionality requires. If the claimants make their case on a few, they do not need the rest. If they cannot make their case on their best few, the addition of more is unlikely to improve matters.”

Question 18

commentary CPR 17.3.6. the amendment needs to show some reasonable prospect of success

Answer 18

• A proposed amendment must be arguable, carry a degree of conviction, be coherent, properly particularised and supported by evidence that establishes a factual basis for the allegation.
• it must show it has “a real prospect of success”, as draws upon the test for summary judgment, depends upon whether the amendment: (i) introduces a new claim or alternatively (ii) provides further particulars, based on factual material, in support of an existing pleaded point. The former will not be permitted if the new allegation carries no reasonable prospect of success.

Question 19

commentary CPR 17.3.7. Deferred amendments

Answer 19

In Kennedy v Frankel [2019] EWHC 106 (QB), a clinical negligence case, there was a dispute at trial whether the defendant was entitled to raise a particular argument without an amendment to its defence. The issue was resolved by parties agreeing, and the court approving, that the trial should proceed to first determine all issues relating to breach of duty and causation as set out in the existing pleadings and the parties’ primary skeleton argument before considering matters (both procedural and substantive) relating to the defendant’s proposed argument.

Question 20

commentary CPR 17.3.8. Late amendments

Answer 20

• lateness as a relative concept but an amendment is always in principle late if it could have been advanced earlier.
• An important factor for the court to consider when permission to amend is sought close to the trial date is whether the amendment will put the parties on an unequal footing or will place or add an excessive burden to the respondent’s task of preparing for trial
• A heavy burden lies upon a party seeking a particularly late amendment. They must provide a good explanation why the application was not made earlier and that the prospects of success on the amendment eclipse the interests of other parties in the litigation as well as potentially those of court users more generally.
• Hawksworth v Chief Constable of Staffordshire [2012] EWCA Civ 293, CA: The Court of Appeal stated, obiter, it might appropriate to permit an amendment at trial in respect of a matter which, although not raised in the pleadings, had nevertheless been raised in some of the witness statements and experts’ reports served pre-trial.
• Apache Beryl Ltd v Marathon Oil UK LLC [2017] EWHC 2462 (Comm): Permission to amend the defence less than three weeks before expedited Commercial Court trial because amendments went to questions of construction only and did not affect the trial.
• M v King’s College Hospital NHS Foundation Trust [2017] EWHC 1449 (QB): Permission to claimant applying to amend about seven months before the trial and about a year after service of a defence that had raised important new issues on the basis the claimant had been entitled delay application to amend and wait for witness statements to be exchanged before deciding how proposed amendment. Further the delay did not imperil the trial date.

Question 21

commentary CPR 17.3.9. Amendment after evidence heard at trial

Answer 21

• The court does have power to permit an amendment which is sought after judgment has been given but before an order recording that judgment has been drawn up and sealed
• “It is clearly not satisfactory for the (claimant) to be allowed to wait to see the outcome of the defendants’ application (for summary judgment) and then, if the judge decides in the defendants’ favour, to apply for an amendment. There must be some satisfactory reason for failure to apply for the amendment at the proper time. The proper time is either before the defendants’ application is heard or during the hearing of the application” (per Roch LJ in Stewart v Engel (Permission to Amend) [2000] 1 W.L.R. 2268, CA).

Question 22

commentary CPR 17.4.2. Resolving disputes as to whether a limitation period has expired

Answer 22

• Where it is reasonably arguable that the relevant limitation period has expired before an amendment is made, the burden is on the applicant to show that the amendment falls within the provisions of rr.17.4 or 19.5.
• Where there is a dispute as to whether or not a new claim sought to be raised by amendment is statute-barred, the claimant must prove (i) that the defendant’s limitation defence is not reasonably arguable, or (ii) that, in any case, the amendment falls within the provisions of rr.17.4 or 19.5. If they cannot establish either (i) or (ii) permission to amend should be refused leaving the claimant to bring fresh proceedings on the new claim
• If a defendant can show that it is reasonably arguable that the new claim introduced by the amendments is statute barred, then leave to amend should not be given. Leave to amend will be given if the claimant can show that the defendant does not have a reasonably arguable limitation defence