10. Amendment

Question 1

Can a party amend a statement of case after it has been filed, but before it has been served without the court‘s permission?

Answer 1

Yes!! It’s service that matters, not filing

Question 2

Can the parties amend the statement of case after it has been served?

Answer 2

• Yes, with the written consent of all other parties or with the court’s permission
• Unless you are seeking to amend because you have discontinued all or part of your claim -> this kind of amendment can be made without permission of the court

Question 3

Can the court disallow amendments to statements of case even if the party was entitled to make these without the court’s permission?

Answer 3

• Yes - the court can do this
• AND a party can apply to the court to exercise this power within 14 days of service of a copy of the amended statement of case

Basically this is a power that the court has to challenge vexatious, scurrilous or dishonest amendments, usually made before service of the statement of case.

Question 4

Where the court gives permission for a party to amend his statement of case what directions can the court give?

Answer 4

direction as to:

(a) amendments to be made to any other statements of case; and
(b) service of any amended statement of case.

This is subject to the limitations for permitting additional claims and changes to the parties.

Question 5

What guidance can we get from the case law regarding the question how the court will exercise its discretion whether to grant permission to amend?

Answer 5

In general, it’s a question of common sense. Important considerations include:

1. Properly arguable

• The proposed amendment needs to be ‘arguable, carry a degree of conviction, be coherent, properly particularised and supported by evidence that establishes a factual basis for the allegation’.
• However, it is only necessary to show that the claim has a ‘real prospect of success’ (i.e. test for summary judgment and higher threshold than ‘properly arguable’), if the amendment seeks to introduce a new claim. If it merely provides further particulars in support of an existing claim, then the question of whether it has a ‘real prospect of success’ is a question to be answered at trial.
• Arguability does not seem to be a relevant consideration if the amendment merely reduces the issues between the parties.
• In determining arguability the court applies existing law.The possibility that the SC may develop or change the law is insufficient.

2. Lateness of the Amendment

• No clear rule as to what is ‘late’ (given that there is no deadline)
• But basically the more prejudice the amendment will cause by being made at a late stage the less likely the court is to allow it (e.g. putting parties on an unequal footing). The worst is if it would necessitate relisting the trial.
• This also means that an amendment sought on appeal will have even more rigour applied.

3. Other

• It’s relevant to consider whether the proposed amendment is one which the parties had already been addressing whether by other pleas or in evidence
• If C is merely seeking to add further incidents or examples (but their best ones are already in the pleadings), there is no need for C to add a whole list of further (weaker) examples

Question 6

Can the court defer the question whether it will allow an amendment?

Answer 6

Yes - in a case in the commentary in the White Book the court deferred this question until after it had considered other issues (including substantive matters of law).

Question 7

Can the court allow an amendment that is sought after judgment has been given but before an order recording the judgment has been drawn up?

Answer 7

Yes - but exceptional circumstances would be required

Question 8

Which rules govern the making of amendments after the limitation period has expired?

Answer 8

Obviously amendments that don’t amount to new claims being brought aren’t more of an issue after expiry of the limitation period than before (e.g. if you want to provide more details on the facts of something that you are alleging). Issues only arise if you are seeking to make an additional claim or add another party (which again, amounts to making an additional claim). We’ve already seen the circumstances in which this is allowed. Pt 10 adds the following rules:

• If the effect of the amendment would be to make a new claim -> the new claim has to arise out of the same facts or substantially the same facts as are already in issue on a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings
• If you are seeking to correct a mistake as to the name of a party -> the mistake has to be genuine and there must not be reasonable doubt as to the identity of the party
• If you are seeking to alter the capacity in which a party claims -> the new capacity must be one which that party had when the proceedings started or has since acquired

Question 9

If the point is raised that an amendment is sought after expiry of the limitation period on which party does the burden to prove either (i) that the limitation period has not expired or (ii) that the reqs for obtaining permission to amend after expiry are satisfied rest? What is the standard of proof that is applies?

Answer 9

On the party seeking the amendment. The reason I’ve included this in a flashcard is that it’s important to remember that as soon as a limitation point is raised in the amendment context, the applicant has to disprove that the period has expired (standard to be applied: the limitation defence must not be reasonably arguable).

Question 10

What happens if you seek permission to amend within the limitation period but once the court gets round to consider the issue the period has expired?

Answer 10

The date that matters is when permission is granted because that is the date on which the new claim is made. So if it takes a while to get permission (such that you end up outside of the limitation period), you need to make sure that you satisfy the stricter reqs for amending in these circumstances.

Question 11

Who pays the costs of seeking an amendment?

Answer 11

The party applying to amend

Question 12

If you are granted permission to amend, how long do you have to file the amended statement of case?

Answer 12

14 days from the date of permission (or such other time period as the court may direct)

Question 13

What is the order of colours that should be used for successive amendments?

Answer 13

(1) red
(2) green
(3) violet
(4) yellow