DR Amending SoS

Question 1

When does a party require the court’s permission to amend a statement of case?

Answer 1

When a statement of case has been served and the written consent of all the parties has NOT been given

Question 2

BEFORE Limitation period has expired

Answer 2

1. Must be an issue between a new party & existing party which is connected to the matters in dispute AND…
2. It is desirable to add the new party to resolve all matters in dispute between new & existing party

Question 3

AFTER Limitation period has expired

Answer 3

1. Cause of action: only allowed if…
   a) the NEW cause of action arises out of the same facts or substantially the same facts as already in issue; OR
   b) the new cause of action is an original set-off or counterclaim
   c) the court directs that the limitation period will NOT apply in a personal injury action (court has discretion to disapply time limit if satisfied it is equitable to do so)
2. Adding Parties:
   a) the Limitation Period was CURRENT when proceedings actually started; AND
   b) the addition/substitution is NECESSARY, i.e., the court is satisfied that:
   i) the new party is to be substituted for one that was named in CF by mistake for the new party;
   ii) the claim cannot properly be carried on by/against/original party UNLESS the new party is added or substituted
   iii) the original party has died or had a bankruptcy order made against them and interest/liability passed to the new party

Question 4

Additional considerations of the court for adding, removing or substituting parties

Answer 4

• The main test to be satisfied is that the amendment is desirable
• The court will also consider the policy objective of enabling parties to be heard if their rights may be affected by a decision
• Consider the overriding objective

Question 5

Permission / consent to add a party

Answer 5

• No one can be added as a claimant without his/her consent
• If someone refuses to be added as a claimant, they can instead be added as a defendant

The court’s permission is always required to add, remove or substitute a party, unless the claim form has not yet been served

Question 6

Change in name or different person?

Answer 6

The court applies the Sardinia Sulcis test: ‘has the intended defendant been identified in the statements of case by reference to a description more or less specific to the particular case?’

• If yes: the amendment may permitted by the court under CPR 19.6(3)(a)
• If no: the court cannot permit the amendment