Part 17 Amendments

Question 1

what are the three types of CPR 17 claims?

Answer 1

• Amendment without permission or consent- made before the service of statement of case
  Court retains powers to disallow
• Amendment by contract of parties- written cost, cost bared by party making the amendment
  Court retains powers to disallow
• Amendment with permission of the court

Question 2

What is the process of getting the courts permission?

Answer 2

1. file application to court with copy of proposed amended statement
2. Hearing/ written submissions
3. Court gives directions
4. file amended statement of case within 14 days of order granting the amendment
5. copy of amended statement and order served on all parties

if substance has changes, re- verify via statement of truth

Question 3

What amendment does CPR 17 deal with?

Answer 3

General amendments

Question 4

What does the court consider when deciding if to give permission? (3)

Answer 4

• OO (just and proportionate)
• find a balance between injustice to parties
• refuse if no prospect of success

Question 5

what are the principles relating to late amendments?(4)

Answer 5

• Court is hesitant to grant late amendments esp. if it leads to postponing decided dates/trial

Principles regarding late amendments:

1- The court should be less ready to allow a very late amendment, where the need for the amendment does not result from late disclosure or new evidence

2- A heavy onus lies on the party seeking a late amendment to justify it

3- Party seeking late amendment must provide all info and evidence there and then

Question 6

CPR 17. 4(3)
CPR 17.4 (4)
CPR 19.5

Answer 6

CRPR 17.4(3) correcting mistake of name of party

CPR 17.4 (4) Correcting parties capacity

CPR 19.5 Correcting parties identity

Question 7

when is CPR 19 used

Answer 7

related to changing the identity of the party- onus is on applicant

Question 8

who is liable for costs CPR 17 v CPR 19

Answer 8

CPR 17- Party making the amendment

CPR 19- no particular provision but generally part making the amendment

Question 9

what should a statement amended without permission contain?

Answer 9

When an amended statement of case is filed without the need for the permission of the court, as set out in 17 PD 2.1(2), it should be endorsed with the words:
‘Amended [particulars of claim/defence (or as may be)] under CPR [rule 17.1(1) or 17.1 (2)(a)] dated …’

Question 10

what is the test for CPR 19

Answer 10

Desirable:
- Policy objective of enabling parties to be heard and the OO
- cost and time

Question 11

what is an amendment to add a new cause of action/ party deemed as?

Answer 11

Deemed as separate action which is commenced on the same date as the original action

Question 12

what is the general rule to adding a cause of action post limitation

Answer 12

General rule= Amendments Post limitation are not allowed, except:

1. court exercises discretion for PI action
2. New cause of action is an original set- off or counterclaim
3. the court may allow amendments to substitutive or add a new claim after the limitation period but only is the new claim arises out of the same facts/ substantially same facts as the existing claim- onus is on applicant to show same facts

• The court will examine the alleged amendment to decide whether it is a new claim or not:
  o An amendment that adds a new duty or obligation on a party gives rise to a new cause of action = new claim that must be justified according to CPR 17.4
  o An amendment that adds facts which clarifies a duty or obligation that has already been alleged will not give rise to a new cause of action so does not need to be justified according to CPR 17.4

Question 13

what are the only three amendments allowed to add a party post limitation?

Answer 13

CRPR 17.4(3) correcting mistake of name of party

CPR 17.4 (4) Correcting parties capacity

CPR 19.5 Correcting parties identity, if:
1. limitation period was current when the proceedings started

2. 2) the addition or substitution is ‘necessary’ – it will be necessary only if:

a) the new party is to be substituted for one that was named in the claim form in mistake for the new party, or

b) the claim cannot properly be carried on/by/against the original party unless the new party is added or substituted, or
c) the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party

Question 14

what do the amendments not allow?

Answer 14

someone with entirely new identity

Question 15

what do the amendments not allow?

Answer 15

someone with entirely new identity

Question 16

what is the test?

Answer 16

 Test in deciding such issues: 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, it is a mistake of the type covered by CPR 19.5(3)(a) and the amendment may be permitted by the court. If not, then the court cannot permit the amendment

DESCRIPTION MORE OR LESS SPECIFIC