5. Amendment

Question 3

When can a party amend their statements of case without permission?

Answer 3

A party may amend their statements of case at any time before it has been served on another party.

Question 4

how can a statement of case be amended after it has been served?

Answer 4

The party can only amend with:
1. Written consent of all parties OR
2. Permission of the court.

Question 5

x

Answer 5

x

Question 6

Can a party who discontinues all or part of a claim amend their statement of case without permission?

Answer 6

Yes, to give effect to the discontinuance.

Question 7

Can the court disallow an amendment even if permission was not required?

Answer 7

Yes, the court may still disallow the amendment.

Question 8

What is the time limit for applying to the court to disallow an amendment?

Answer 8

Within 14 days of being served with the amendment.

Question 9

What directions may the court give when granting permission to amend a case?

Answer 9

The court may give directions regarding:
1. Amendments to other statements of case.
2. Service of any amended statement of case.

Answer 10

CPR 19.2, 19.6, and 17.4.

Question 11

When may the court allow an amendment that adds or substitutes a new claim after the limitation period?

Answer 11

Only if the new claim arises out of the same or substantially the same facts as the original claim.

Question 12

Under what conditions may the court allow an amendment to correct the name of a party?

Answer 12

Only if the mistake is genuine and does not create reasonable doubt as to the party’s identity.

Question 13

When can a court allow an amendment to change the capacity in which a party claims?

Answer 13

If the new capacity is one that the party had at the start of proceedings or has since acquired.

Question 14

How may an application to amend be dealt with?

Answer 14

The application may be dealt with at a hearing or, if Rule 23.8 applies, without a hearing.

Question 15

What documents should be filed with the court when making an application to amend?

Answer 15

1. Application notice, and
2. A copy of the statement with the proposed amendments.

Question 16

What is the timeframe for filing an amended statement of case after permission has been granted?

Answer 16

Within 14 days of the date of the order, unless the court specifies a different timeframe.

Question 17

How should an amended statement of case be verified?

Answer 17

It should be verified by a statement of truth.

Question 18

What must be served on all parties after an amendment is made?

Answer 18

A copy of the court order and the amended statement of case, unless the court orders otherwise.

Question 19

How should an amended statement of case be endorsed when court permission was required?

Answer 19

It should state: ‘Amended [Particulars of Claim or as applicable] by Order of [Master/District Judge/Legal Adviser] dated ….’

Question 20

How should an amended statement of case be endorsed when court permission was NOT required?

Answer 20

It should state: ‘Amended [Particulars of Claim or as applicable] under CPR [rule 17.1(1) or (2)(a)] dated ….’

Question 21

Does the amended form need to show the original text?

Answer 21

No, unless the court finds it desirable.

Question 22

How can courts direct amendments to be shown?

Answer 22

1. By color amendments, OR
2. By using a numerical code in a monochrome document.

Question 23

What is the required color order for successive amendments?

Answer 23

1. Red
2. Green
3. Violet
4. Yellow

Question 24

What is the main principle the court considers when granting permission to amend?

Answer 24

The court must have regard to the overriding objective and strike a balance between injustice towards each party.

Question 25

What key factor increases the burden on a party seeking a late amendment?

Answer 25

The need to show some prospects of success is heavily emphasized for late amendments.

Question 26

Why might an amendment application be refused?

Answer 26

If the text of the amendment is not expressed clearly enough or relies on multiple unnecessary incidents that increase time and costs.

Question 27

What is a practical approach to reliance on multiple incidents in a claim?

Answer 27

It may be fair to expect the claimant to nominate their best few incidents until after disclosure.

Question 28

Can one defendant agreeing to an amendment prevent another from opposing it?

Answer 28

No, another defendant may still oppose the amendment even if one agrees.

Question 29

What are the minimum requirements for a proposed amendment?

Answer 29

It must be: 1. Arguable 2. Carry a degree of conviction 3. Coherent 4. Properly particularized 5. Supported by evidence that establishes a factual basis

Question 30

What is required beyond arguability for an amendment to be allowed?

Answer 30

It must have a real prospect of success, focusing on the pleaded case rather than just supporting evidence.

Question 31

Should courts conduct mini-trials when assessing an amendment?

Answer 31

No, courts should avoid mini-trials and accept factual statements unless demonstrably untrue.

Question 32

When may a court refuse an amendment based on its content?

Answer 32

If it presents an inherently implausible or contradictory version of events that is unsupported by contemporaneous documents.

Question 33

What precedent clarified the role of a 'prospects test' in certain amendments?

Answer 33

In Sofer v SwissIndependent Trustees SA [2021], the court allowed an amendment that clarified a claim and reduced issues without introducing a new claim, rejecting the need for a strict prospects test.

Question 34

Can a party introduce speculative or fabricated allegations through an amendment?

Answer 34

No, amendments must be based on established law and not rely on potential future legal changes.

Question 35

How should an amendment based on foreign law be assessed?

Answer 35

It should be evaluated based on how foreign law is likely to apply at trial, rather than assumptions from English law.

Question 36

What happens if a defendant withdraws an admission through an amendment?

Answer 36

They may introduce a new defense, which must meet the reasonable prospect of success test.

Question 37

How was a dispute about a defendant raising a new argument at trial resolved?

Answer 37

The parties agreed, and the court approved, that the trial should proceed in two stages: 1. First, the court determined all issues related to breach of duty and causation based on existing pleadings and arguments. 2. Second, after this determination, the court considered procedural and substantive matters related to the defendant’s new argument.

Question 38

What must an allegation of dishonesty include in pleadings?

Answer 38

A clear, concise statement of relevant facts supporting the allegation.

Question 39

What did the court rule in AXA Insurance UK Plc v Kryeziu [2023] EWHC 3233 (KB) regarding fraud or dishonesty allegations?

Answer 39

1. If fraud or dishonesty is alleged, the facts must be pleaded from the outset. 2. A brief statement of facts is sufficient as long as it establishes a foundation for dishonesty. 3. The alleging party is not required to present the full factual picture, as they may not know all details.

Question 40

What key considerations are assessed for late amendments?

Answer 40

1. Impact on fairness – Whether it puts parties on an unequal footing or burdens the respondent’s trial preparation. 2. Trial scheduling – Whether it requires vacating and relisting the trial, which courts try to avoid.

Question 41

What additional burden exists for late amendment applicants?

Answer 41

They must provide a good explanation for the delay, and the amendment’s prospects of success must outweigh: 1. Interests of other parties 2. Interests of court users and judicial resources.

Question 42

What was the court’s stance on a trial amendment in Hawksworth v Chief Constable of Staffordshire [2012] EWCA Civ 293?

Answer 42

The Court of Appeal stated that an amendment at trial may be allowed if the issue had been raised in witness statements and expert reports served pre-trial, even if it was not in the pleadings.

Question 43

Why was the amendment refused in Dany Lions Ltd v Bristol Cars Ltd [2014] EWHC 928 (QB)?

Answer 43

The amendment was sought two days before trial, prompted by a reappraisal of the case merits by new counsel, which was deemed too late.

Question 44

Does the court have the power to permit an amendment after evidence has been heard at trial?

Answer 44

Yes, but only before an order recording the judgment has been drawn up and sealed.

Question 45

What must the court consider before permitting such an amendment?

Answer 45

1. Whether exceptional circumstances or strong reasons justify reopening the earlier decision. 2. The balance between procedural fairness, finality of litigation, and the need to adjudicate real disputes. 3. Preventing strategic delays in seeking amendments.

Question 46

What four-stage approach does the court use to resolve limitation period disputes?

Answer 46

1. Is it reasonably arguable that the opposed amendments are outside the limitation period? If not, CPR 17.4 does not apply, and the amendment may be allowed under CPR 17.1(2). 2. Do the proposed amendments seek to add or substitute a new cause of action? If not, CPR 17.4 does not apply, and the amendment may be allowed under CPR 17.1(2). 3. Does the new cause of action arise out of the same or substantially the same facts as the existing claim? If not, the court has no power to grant permission unless the “Mastercard” approach applies (as in Advanced Control Systems Inc v Efacec Engenharia e Sistemas S.A. [2021]). 4. Should the court exercise its discretion to allow the amendment?

Question 47

What is the general purpose of the law restricting late amendments?

Answer 47

To ensure fairness, procedural integrity, and respect for limitation periods.

Question 48

When can exceptions be made under the Limitation Act 1980?

Answer 48

1. If the new claim is based on the same core facts as the original. 2. If the addition of a party is essential for the case to proceed.

Question 49

Who is usually responsible for the costs of an amendment?

Answer 49

The party applying for the amendment is typically responsible for the costs of and arising from the amendment.