8: Amendment

Question 1

When can a party amend something?

Answer 1

_{At any time}

Question 2

If SoC has been served, a party may amend only if –

Answer 2

1. Written consent of all parties; or
2. Permission of court.

Where SoC has been served, an application to amend by removing, adding or substituting a party must gain the court’s permission.

Question 3

When MUST a party gain the court’s permission?

Answer 3

Where SoC has been served, an application to amend by removing, adding or substituting a party

Question 4

Power of court to disallow amendments made without permission

If a party had amended his SoC where permission of the court was not required, the court may

Answer 4

court may disallow the amendment.#

A party may apply for an order for this within 14 days of service of a copy of the amended SoC on him.

Question 5

Where the court gives permission for a party to amend his SoC, it may give directions to –

Answer 5

1. Amend any other SoC; and
2. Serve any amended SoC

Question 6

What is the situation of

Amendments to SoC after end of limitation period

For a NEW CLAIM

Answer 6

The court may allow an amendment where the effect will be to add or substitute a new claim, but only if the new claim arses out of the same or substantially the same facts.

Question 7

Amendments to SoC after end of limitation period

The court may allow an amendment to correct a mistake as to the name of the party where:

Answer 7

but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity.

Question 8

Amendments to SoC after end of limitation period

The court may allow an amendment to:

Answer 8

1. correct a mistake as to the name of the party,
2. an amendment to alter the capacity if the new capacity is one which that party had when the proceedings started or has since acquired.

Question 9

Applications to amend where permission is required.

Must it be dealt with with a hearing?

Answer 9

• Application may be dealt with or without hearing;

Question 10

Applications to amend where permission is required.

When making an application to amend a SoC, the applicant should file with court:

Answer 10

• Application notice; and
• Copy of SoC

Question 11

Where permission to amend is given, the applicant should

Answer 11

• within 14 days file with the court the amended SoC.

Question 12

If the substance of the SoC is changed, it should

Answer 12

be re-verified by a SoT.

Question 13

Must the amended SoC show the original text?

Answer 13

The SoC in amended form need not show original text

Question 14

When should the court direct amendments be shown by coloured amendments or numerical code?

Answer 14

The SoC in amended form need not show original text. However, where the court thinks it desirable they may direct amendments be shown either by:

1. Coloured amendments; or
2. Numerical code

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

Question 15

To amend, must there be a need to show some prospect of success?

Answer 15

An application for permission o amend a defence will be refused if the proposed amendment has no prospect of success.

Can reject where facts are “inherently implausible, self-contradictory or not supported by contemporaneous documents”.

Cannot request amendment where pure speculation or invention due to the Statement of Truth attached.

A claimant should not be granted permission where the claim is not maintainable in established law.

Question 16

What is a late amendment?

Answer 16

Where amendment is close to trial date.

Question 17

Late amendment = where trial date is fixed and permission to amend would cause trial date to be lost.

In this case, the applicant must provide

Answer 17

a good explanation as to:

1. Why he did not apply earlier; and
2. Must show the strength of the new case; and
3. Why justice requires him to be able to pursue it.

Permission may be refused on matters which are minor or peripheral.

Once necessity to amend has become apparent, a party should tell his opponents about the amendment he intends to seek so as to enable them to consider whether to oppose or consent to it.

Where there is no reason for the late amendment = likely to be refused.

Question 18

Amendment after evidence heard at trial

Can the court permit an amendment sought after judgment?

Answer 18

The court can permit an amendment sought after judgment has been given but before an order recording judgment that judgment has been drawn and sealed

Question 19

Amendment after evidence heard at trial

The court can permit an amendment sought after judgment has been given but before an order recording judgment that judgment has been drawn and sealed. However, before permitting this, the court must decide if there are

Answer 19

1. Exceptional circumstances; or
2. Strong reasons

For doing this.

There can be amendment after evidence is heard at trial.

Question 20

Resolving disputes as to whether a limitation period has expired

Who has the onus?

Answer 20

Where limitation period has expired before amendment made, the onus = applicant to show amendment falls within r17.4 (genuine mistake) or r19.5 (substitution).

Question 21

Where there is a dispute as to whether or not a new claim sought to be raised by amendment is statute barred, the claimant must prove:

Answer 21

1. Defendant’s limitation defence is not reasonably arguable; or
2. The amendment falls within r17.4 or r19.5

If they cannot establish either of this, permission should be refused leaving claimant to bring fresh proceedings.

Question 22

AMENDMENT POSITION:

Before filing, issue or service:

Answer 22

• amended without restriction

Question 23

AMENDMENT POSITION:

After filing or issue, before service.

Answer 23

Amendments made without seeking court permission

Question 24

AMENDMENT POSITION?

AFTER SERVICE

Answer 24

• Amendments not involving a change of parties can be made with the consent of the other parties, or with court permission.

Question 25

AMENDMENT POSITION? After service, amendments involving a change of parties can only be made with

Answer 25

* with the **_court's permission._** The amended SoC MUST be endorsed.

Question 26

**Applying for permission to amend** **What is required?**

Answer 26

Application notice _required_. Copy of the draft amended statement of case. Witness statement may be required addressing the facts establishing the principles for allowing amendments, except in obvious cases. If the substance of the pleading is changed it will require a new statement of truth Norm made **without notice**. Application to substitute a party may be made without notice. There are NO criteria governing permission to amend.

Question 27

**Merits of substantive amended claim** **means:**

Answer 27

* There needs to be a “real prospect of success” on the amended case Court MUST consider all circumstances + OO + amendments ought allowed so real dispute can be adjudicated upon, provided prejudice can be compensated in costs and administration of justice not significantly harmed.

Question 28

**Late Amendments** Factors

Answer 28

* Is there a satisfactory **explanation** for not amending earlier? * **Prejudice** to the party seeking to amend if permission is refused * Prejudice to the other parties if permission is granted * Whether the **text of the amendments is clear and particularised** * **History of amendments** in the case * Does the amendment **substantially alter** the case? * Was the amendment **"pre-shadowed"** in earlier witness statements etc * Strength of the amended claim Not insisting on formal amendment is a **case management decision** + may be permitted where other side know new issues being raised + have dealt with them.

Question 29

*Amendment @ end of trial* = Court MAY permit amendments ever AFTER judgment been delivered up to point order drawing up the judgment is **sealed**. Factors:

Answer 29

* Whether the amendment will give an unfair advantage * Whether the resisting party was able to make submissions on the new case * Whether the resisting party had sufficient notice of the new case * If judgment has been delivered, there must be **exceptional circumstances** or strong reasons

Question 30

**_AMENDMENT AFTER limitations_** **_Position:_**

Answer 30

Norm amendments allowed providing no prejudice that cannot be compensated. Amendments AFTER limitation **adding a new claim** = BANNED, subject restrictions.

Question 31

AMENDMENT AFTER limitations ALLOWANCE:

Answer 31

**New claim** * Adding or substituting a new **party** * Adding or substituting a new **cause of action**

Question 32

**_AMENDMENT AFTER limitations_** **_What are the exceptions to:_** * Adding or substituting a new **party** * Adding or substituting a new **cause of action**

Answer 32

Exception New party substituted Cannot be carried on without amendment

Question 33

**AMENDMENT TO CHAAMENDMENT TO CHANGE PARTIES (no limitation issue)NGE PARTIES (no limitation issue)** **Simple Position:**

Answer 33

Unless CF hasn’t been served, court’s permission to **remove, add or substitute a party** MUST be obtained.

Question 34

**AMENDMENT TO CHANGE PARTIES (no limitation issue)** TEST = MAY order new party added if:

Answer 34

1. **Desirable** so court can resolve all matters in dispute; OR 2. There is an **issue** connected to matters in disputes and **desirable** to resolve it.

Question 35

**AMENDMENT TO CHANGE PARTIES (no limitation issue)** When must permission be sought?

Answer 35

Permission must be sought for this type of amendment, where the amendment is desired **after service of the claim form.** Means 1. No consent required before service of the claim form 2. After service, this type of amendment cannot be made by consent The test is whether the change in parties is **desirable**

Question 36

**AMENDMENT TO CHANGE PARTIES (no limitation issue)** **Evidence required:**

Answer 36

Application notice (N244) with written evidence Evidence must explain the new party’s interest in the proceedings (intervening) or connection with the claim

Question 37

**_AMENDMENT AFTER limitations_** What is a situation where a case cannot be carried on without an amendment?

Answer 37

_Cannot be carried on without amendment_ EXAMPLE: 1. Original C was company, allowed to substitute liquidator

Question 38

**_AMENDMENT AFTER limitations_** _When is:_ _New cause of action/Substitution allowed?_

Answer 38

Adding/substituting new cause of action allowed if: 1. The new claim is an original set-off or counterclaim 2. The court disapplies the personal injuries 3-year time limit under s. 33 3. The new claim arises out of the **same or substantially the same facts** as those already in issue

Question 39

What does: “Original” mean?

Answer 39

first time D pleaded counterclaim/set off. Original set-off or counterclaim may only be brought in by amendment if it was not time-barred on date C brought main claim.

Question 40

What does: “Same or substantially the same facts” mean?

Answer 40

read in words “are already in issue on”.

Question 41

Amendment affecting ACCRUED limitation rights = General position?

Answer 41

**general position:** not allowed as party seeking to amend cannot compensate the prejudice.

Question 42

**Amendment affecting ACCRUED limitation rights** Exceptionally an amendment after limitation expired affecting accrued limitation rights MAY be allowed:

Answer 42

1. Where party seeking to amend isn’t at fault 2. Where innocent party already knew facts introduced by proposed amendments. A party served with a SoC amended without permission cab **object** by issuing an application notice – within 14 days of service of amended SoC.

Question 43

_New Party added/substituted_ Adding/substituting NEW PARTY = allowed ONLY where:

Answer 43

1. **Necessary**; and 2. Complies with CPR 1. Made a **mistake** and correcting it 2. Cannot be carried on without making amendment.

Question 44

_New Party added/substituted_ _TEST:_

Answer 44

Two main applications of the principle: * To correct a mistake: * Claim cannot be carried on without the change in parties

Question 45

_New Party added/substituted_ **Correcting a mistake =** POSITION

Answer 45

ONLY for **_SUBSTITUTION_**. You cannot add party, only substitute them. Two types of mistake: 1. **Name** 2. Party’s identity BUT – the mistake MUST be of NAME, NOT identity.

Question 46

New Party added/substituted ## Footnote **Correcting a mistake =** **TEST**

Answer 46

TEST: **is it possible to identify the intended defendant “by reference to a description more or less specific to the particular case”?** E.g If C gets right description, but wrong name Substitution = Pure addition of a party is NOT permitted.