Civil Procedure - Amendments Generally

Question 1

Which rules relate to Amendments Generally?

Answer 1

Rules 375-381

Question 2

What is the general power to amend?

Answer 2

Rule 375

(1) AT ANY STAGE the Court may allow or direct a party to amend a claim, anything written on a claim, a pleading, application or any other document in a proceeding in the way and on the conditions the court considers appropriate.

Question 3

Can an amendment include a COA after the proceeding has started?

Answer 3

Rule 375(2)

With the courts leave.

Rule 376(4)
Court should only give leave if the court considers it appropriate and (b) the new COA arises out of the same facts or substantially the same facts as a COA for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.

Question 4

What should the court do if there is a misnomer of a party?

Answer 4

Misnomer = A wrong or inaccurate name or designation.

Rule 375(3)

Court should allow/direct the party to amend.

Question 5

Which rule applies to amending an originating process?

Answer 5

Rule 377

Question 6

When can an originating process be amended?

Answer 6

Rule 377(1)

a) only if technical matter with leave of registrar or court; OR

b) originating process has not been served (and all original docs returned to the court); OR

c) with the leave of the court

(2) Subrule (1) does not apply to a pleading or a particular in an originating process.

Question 7

Can a party make amendments without the leave of the court?

Answer 7

Rule 378

Before the filing of a trial date can amend as often as necessary (leave of the court not required).

Question 8

If amendment prior to filing request for trial date.

What happens if the other party wants to have the amendment disallowed?

Answer 8

Rule 379

OP can apply to have the court disallow all or part of the amendment.

Must be filed within 8 days of service of the amendment.

Question 9

What happens is a party is given leave to make an amendment and fails to do so?

Answer 9

Rule 381

If a party is given leave to make an amendment and fails to do so within either the specified time in the order OR within 14 days of the order being made (if no time specified) - the order ceases to have effect.