#19717 - 11. Bpc Civil Litigation 2023 2024 Amendment, Addition Of Parties And Additional Claims - BPC Civil Litigation

Amending a statement of case:

• A party may amend their statement of case, including by removing, adding or substituting a party, at any time before it has been served on any other party.

• If the statement of case has been served, a party may amend it only:

  • With the written consent of all other parties; or

  • With the permission of the court.

• A party who files a notice under Part 38 discounting all or part of a claim may amend their statement of case without the court’s permission to give effect to the discontinuance.

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

Application to amend where permission of the court is required:

• The application may be dealt with at a hearing or without one.

• The applicant should file with the court:

  • An application notice; and

  • A copy of the statement of case with the proposed amendments.

• Where permission to amend is given, the applicant should within 14 days of the order or within the date the court sees fit, file with the court an amended statement of case. This should be verified by a statement of truth unless the court orders otherwise.

• Every party should be served a copy of the order of the amended statement of case, unless the court orders otherwise.

• Principles for granting permission:

  • The court will have regard to the overriding objective;

  • A proposed amendment must be arguable, carry a degree of conviction, be coherent, properly particularised and supported by evidence that establishes a factual basis for the allegation. You cannot raise an amendment which is pure speculation or invention - as a statement of truth is required;

  • An amendment is always late if it could have been advanced earlier;

  • An important consideration is whether the amendment would put the parties on an unequal footing; and

  • You cannot amend after a judgment is given, but can amend before an order recording that judgment has been made in exceptional circumstances.

Applications made without permission:

• The court has the power to disallow the amendment.

Expired limitation period:

• Will allow amendment to a statement of case where:

  • 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 are already in issue on a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.

    • Permission will not be granted to amend incorrectly stated facts such as dates.

  • 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 the party had when the proceedings started or has since acquired.

• Amendment to parties:

  • It is necessary for the determination of the initial proceedings or any claim cannot be maintained unless the new party is joined or substituted.

• It is for the applicant to show that the amendment falls within the provisions. 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:

  • That the defendant’s limitation period is not reasonable arguable; and

  • That in any case, the amendment falls within the provisions of the rules.

Parties:

• Any number of claimants or defendants may be joined as parties to a claim.

  • All persons jointly entitled to the remedy must be parties. If such a person does not agree, they must be a defendant. This rule does not apply in probate proceedings.

• The court may order a person to be added as a new party if:

  • It is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

  • There are issues involving the new party and an existing party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue.

• The court may order any persons to cease to be a party if it is not desirable for that person to be a party to the proceedings.

• The court may order a new party to substituted in for an existing one if –

  • The existing party’s interest or liability has passed to the new party; or

  • It is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.

Procedure for adding and substituting parties:

• The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.

• An application may be made by an existing party or a person who wishes to become a party and must be supported by evidence and made under part 23.

• Where the court orders a new party to be substituted where liability has passed or it is necessary to resolve matters in dispute this application may be made without notice and must be supported by evidence.

• Nobody may be added or substituted as a claimant unless they have given their consent in writing and that consent, the proposed amended claim form and particulars of claim have been filed.

• The Commissioners for HM Revenue and Customs may, where a dispute between other parties may have tax consequences, be added as party to a proceedings if they consent in writing.

• An order for the removal, addition or substitution of a party must be served on all parties to the proceedings and any other persons affected.

• A new defendant does not become a party until the amended claim form has been served on them.

• The party applying to add a new party will usually be responsible for the costs.

• The court may remove, add or substitute parties in existing proceedings on its own initiative.

Expired limitation period:

• The court may add or substitute a party only if:

  • The relevant limitation period was current when the proceedings were started; and

  • The addition or substitution is necessary.

• It is necessary only if the court is satisfied that:

  • The new party is to be substituted for a party who was named in the claim form in mistake for a new party;

  • 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

  • The original party has died or had a bankruptcy order made against them and their interest or liability has passed to the new party.

• This is a discretionary power and the court should take into account all relevant circumstances, including the prejudice to the parties and to other court users.

• If the application is due to a mistake, the person who made the mistake must be the person responsible for the claim form.

  • 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 so, the mistake is covered by this rule.

• The purpose of this rule is to enable counterclaims and other additional claims to be managed in the most convenient and effective manner.

Defendant’s counterclaim against the claimant:

• A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim They may do so without permission if they file it with the defence or with with permission at any other time.

  • Where permission is required, the application notice should be filed together with a copy of the proposed additional claim. The counterclaim must be supported by evidence including the reason for delay, a summary of the facts, the nature of the additional claim and the name and address of any proposed additional party.

• For the purposes of this rule, the ‘claimant’ can also be a defendant who has issued a third party claim under another provision.

Counterclaim against a person other than the claimant:

• 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.

• An application may be made without notice unless the court directs otherwise.

• Where the court makes an order to do this, it will give directions as to the management of the case.

• This will be used where D needs to bring another party to the proceedings because that party is jointly liable with C under D’s counterclaim.

• It may also be used where D1 needs to bring a claim against another party D2, who is already in the proceedings, because D1 claims...