Unit 11 Amendment, Additional Parties and Additional Claims

Question 1

When can a party amend its statement of case without permission?

Answer 1

1. A party may amend his statement of case at any time before it has been served on any other party.
2. If his statement of case has been served, a party may amend it only—
   a. with the written consent of all the other parties; or
   b. with the permission of the court.

Question 2

What is the test the court must apply to allow amendment of statement of case?

Answer 2

Case law confirmed that the test to be applied in an opposed application to amend is the same as the test applied to an application for summary judgment. The question is whether the proposed new claim has a real prospect of success. An application for permission to amend a defence will be refused if it is clear that the proposed amendment has no prospect of success.

Question 3

What is the principle of Deferred Amendment to a Statement of Case?

Answer 3

In Kennedy v Frankel [2019], 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 4

Based on what principle do the courts decide if an amendment is “late”?

Answer 4

Lateness as a relative concept but an amendment is always in principle late if it could have been advanced earlier. Therefore, the question of when an amendment might have been sought should not be eclipsed by the potential complexity or importance of the arguments advanced by the amendment. An amendment that should have been raised at trial may be found an abuse of process if sought to be raised only at the assessment of quantum. 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 so as to jeopardise the trial date or so as to inevitably cause a postponement of the trial. A very late amendment is one made when the trial date has been fixed and where the grant of permission to amend would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept. A heavy burden lies upon a party seeking a very late amendment. He must provide a good explanation as to why he did not apply earlier and must show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it.

Question 5

Is a party able to amend its statement of case when the Limitation Period of the cause of action has expired?

Answer 5

Yes. 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.
• The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.
• The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.

Question 6

Who is responsible for the costs of amending a statement of case?

Answer 6

A party applying for an amendment will usually be responsible for the costs of and arising from the amendment.

Question 7

What are the order of colours for successive amendments?

Answer 7

(1) red, (2) green, (3) violet and (4) yellow. 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.

Question 8

What are the rules where one or more persons are entitled to the same remedy?

Answer 8

1. Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise.
2. If any person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.
3. This rule does not apply in probate proceedings.

Question 9

When is permission from the court not required to add or substitute a party?

Answer 9

Where the claim form has not been served.

Question 10

Can a third party be forced to be added or substituted as a claimant?

Answer 10

No. Nobody may be added or substituted as a claimant unless he has given his consent in writing; and that consent has been filed with the court. If any person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise. (apart from in probate proceedings).

Question 11

Can the courts permit changes to parts (adding or substituting) where the limitation period has expired?

Answer 11

Yes it MAY (discretionary power). Where it is satisfied that the relevant limitation period was current when the proceedings were started; and the addition or substitution is necessary.

Question 12

How will a court determine whether an addition or substitution of a party is necessary?

Answer 12

3. The addition or substitution of a party is necessary only if the court is satisfied that—
   a. the new party is to be substituted for a party who was named in the claim form in mistake for the new party;
   b. the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; 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 13

Summarise the Sardinia Sulcis principles and test for mistake? (adding or substituting parties)

Answer 13

The mistake must be as to the name of the new party rather than as to the identity of that party.

1. allows more than the mere correction of the name of a party as it is, after all, a provision that allows the substitution of a new party for the original named party;
2. in one sense, a claimant always intends to sue the person who is liable for the wrong that they have suffered; but the test cannot be that they have made a mistake which may be corrected where they sue another person, otherwise leave to substitute would always be granted;
3. so, there must be a test that includes, but is broader than, mere correction of name but narrower than substitution of the person intended to be sued for the person actually sued;
4. the test is: is it possible to identify the intended defendant “by reference to a description more or less specific to the particular case”?; if it is, it is a mistake of the type covered;
5. thus, if the claimant gets the right description but the wrong name for their intended defendant, there is unlikely to be any doubt as to the identity of the person intended to be sued; but if they get the wrong description, it will be otherwise;
6. this test might allow the substitution of a new defendant, unconnected with the original defendant and unaware of the claim until after the expiry of a relevant limitation period; but any potential injustice can be avoided by the exercise of the court’s discretion (see para.19.5.1).

Question 14

What is the Sardinia Sulcis test for mistake? (adding or substituting parties)

Answer 14

the test is: is it possible to identify the intended defendant “by reference to a description more or less specific to the particular case”?; if it is, it is a mistake of the type covered

Question 15

What is the principle Sardinia Sulcis test for mistake?

Answer 15

The mistake must be as to the name of the new party rather than as to the identity of that party.

Question 16

If the addition or substitution is needed for the claim to continue will the court allow it?

Answer 16

The court may permit the addition or substitution of a new party if it is satisfied that: “the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant”

Question 17

If the defendant doesn’t file a counterclaim with its defence can it do so at a later date?

Answer 17

Yes, at any other time but only with the court’s permission.

Question 18

What if the defendant wishes to counterclaim against someone other than the defendant?

Answer 18

1. A defendant who wishes to counterclaim against a person other than the claimant must apply to the court for an order that that person be added as an additional party.
2. An application for an order under paragraph (1) may be made without notice unless the court directs otherwise.
3. Where the court makes an order under paragraph (1), it will give directions as to the management of the case.

Question 19

What if a defendant wants to bring a contribution or indemnity claim against another party?

Answer 19

1.A defendant who has filed an acknowledgment of service or a defence may make an additional claim for contribution or indemnity against a person who is already a party to the proceedings by—
a. filing a notice containing a statement of the nature and grounds of his additional claim; and
b. serving the notice on that party.
2.A defendant may file and serve a notice under this rule—
a. without the court’s permission, if he files and serves it—
I. with his defence; or
II. if his additional claim for contribution or indemnity is against a party added to the claim later, within 28 days after that party files his defence; or
b. at any other time with the court’s permission.

Question 20

To what matters will the court have regard when deciding whether additional claims should be dealt with together or separately?

Answer 20

2.The matters to which the court may have regard include—
a. the connection between the additional claim and the claim made by the claimant against the defendant;
b. whether the additional claimant is seeking substantially the same remedy which some other party is claiming from him; and
c. whether the additional claimant wants the court to decide any question connected with the subject-matter of the proceedings—
I. not only between existing parties but also between existing parties and a person not already a party; or
II. against an existing party not only in a capacity in which he is already a party but also in some further capacity.

Question 21

What are part 20 claims?

Answer 21

Now known as “additional claims.”

Question 22

How should additional parties be named?

Answer 22

Additional parties should be referred to in the title to the proceedings in accordance with the order in which they are joined to the proceedings, for example “Third Party” or “Fourth Party”, whatever their actual procedural status. If an additional claim is brought against more than one party jointly, they should be referred to in the title to the proceedings as, for example, “First Named Third Party” and “Second Named Third Party”.

Question 23

If it is a joint claim under CPR20.5 must the cause of action against both parties be the same?

Answer 23

Yes.
o Used in cicrumstances where a DEFENDANT wants to make a joint counterclaim against the claimant and and someone other than the claimant.
o It is ALWAYS a joint claim under CPR 20.5 so the claim must be the same against both parties.
o E.g. (1) When D wants to bring another party (AP) into the proceedings because that party is jointly liable with the claimant, under the defendant’s counterclaim (but in practice, could use 20.7 instead)
o E.g. (2) When D1 wants to bring a claim against another party (D2) who is already in the proceedings because D1 claims that party is jointly liable with C under D1’s counterclaim.