Syllabus Area 10 - Amendments Flashcards
Why would a party need to amend a statement of case?
This is as a consequence of adding, substituting, ceasing a party, adding a cause of action, or a drafting error because of change of knowledge.
What must all amendments have?
Must be verified by a statement of truth and written consent of parties.
When can amendments be made?
ANY time PRIOR the statement of case is served with written consent of all parties.
What if the SOC has been served?
Must have written consent of all parties and permission of the court.
What if the SOC has been served but NO consent from parties?
Parties will need to apply for permission from court.
How do you apply to court to amend a SOC?
Application notice, draft order and evidence.
What is the time frame to file the amended statement of case and what else must be done?
14 days and a copy served on every party.
What directions will the court give if permission is granted to amend SOC?
Can give directions to amend any other consequent SOC and service of these amended SOC.
What happens if the substance of the SOC is changed?
A new statement of case will be needed.
What powers does the court have for amendments?
The court has the power to disallow amendments made without permission. Additionally, even if permission is not legally required, court has power to disallow still.
When are amendments limited?
May be limited to amendments to the claim form in the period between issue and service and amendments to other statements of case.
What are the general provisions of granting permission to amend?
Give effect to the overriding objective - dealing with cases justly and proportionately, court must find a balance between the injustice of not amending and the injustice if amended.
What criteria of any proposed amendment of SOC meet?
It must carry a real prospect of success: be arguable, carry a degree of conviction, coherent, properly particularised and supported by evidence.
What criteria of any proposed amendment of SOC introducing a new claim carry?
A reasonable chance of success.
What will the court generally disallow?
The Court will not allow for amendments based on implausible or self-contradictory facts. The Court should not conduct a mini trial of issue.
If an amendment removes or narrows the issues between the parties, what does the court apply in terms of criteria to see if amendment should be allowed?
The real prospect of success test is not required.
When would a court defer an amendment?
Until preliminary legal arguments have been determined.
What is another reason why a court will disallow an amendment?
If the text of the amendment is not sufficiently clear.
What if there is a lack of particularisation in the proposed amendment?
It is not a fatal flaw as the court can order for further information.
Why would a late amendment be an issue?
It may cause unfairness in that it may put parties on an unequal footing or add excessive burden to the respondent task of preparing for trial.
What is considered a late amendment?
A late amendment is one made when the trial date has been fixed and where granting permission to amend would cause the trial date to be lost.
When will the court consider a late amendment?
If it is justifiable - cannot be a minor or peripheral matter. Late amendment will be allowed if the amendment is paramount to the claim or waiting upon an witness statement to be exchanged.
Can an amendment happen after a judgment?
Yes, but there must be exceptional circumstances.
If limitation period has expired, will the court allow an amendment for a mistake in name?
MAY - Adding/substitution of parties: there must be a mistake of name/capacity or identity of the party.
If the limitation period has expired, what are the types of exceptions to amendments?
Amendments in PI claims, amendments generally, adding/substitution of parties.
If the limitation period has expired and there is a mistake of Defendant, what are the rules?
To add/substitute a party must be necessary. The mistake must be genuine and cannot cause reasonable doubt to the identity of the party.
What does necessary mean in the context of there being a mistake of Defendant?
That there was a mistake, the claim cannot be carried on properly or the original party died or bankruptcy order.
What is the difference between a mistake in name as to identity of a defendant?
A genuine mistake of name e.g on claim form, has no doubt of identity of the D or a substitution of a party if they know the attributes of a defendant but not sure of the name of who to sue.
Who has the BOP to prove an amendment falls within this provision if the limitation period has expired?
The onus is on the applicant.
What is the test to prove that there is a genuine mistake to the name of D?
Sardinia Sulcis: 1) Has the intended D been identified in the SOC by reference to a description more or less specific to the case? If yes, it is a mistake covered and amendment MAY BE PERMITTED.
In what circumstances can amendments to cause of action after the end of a limitation period be amended?
Personal injury action (cause may not be apparent in first 3 years), new cause of action is an original set off or counterclaim or only where a new claim arises out of the same facts OR a previous successful remedy.
What will be considered a new cause of action/not a new cause of action after the end of a limitation period?
Adding a new cause of action on the part of the defendant will be a new cause of action BUT only amending facts/particulars which clarify duty will not be a cause of action.
What is the test that should be applied to whether amendments to cause of action after limitation period has expired?
1) Is it reasonable to argue that amendment falls outside limitation? 2) If new cause of action arises from same facts, further questions will be asked, 3) if new cause of action arises from same facts, the court can proceed, 4) court exercising discretion to determine whether to allow for amendment.
Who is responsible for the costs of an amendment?
The party applying to the amendment will be responsible.
