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#10368 - Amending So Cs - BPC Civil Litigation

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AMENDING STATEMENTS OF CASE

  • statement of case = claim form, PoC, defence, reply, additional claim, request for further info

Guiding principles

  • key principle: all amendments to SoCs should be made which are necessary to ensure real Q between parties is determined, provided they can be made without causing injustice to other party

  • fundamental rules on amendments

  1. before service of SoC - can be made without permission AND consent

  2. after service of SoC - can be made with written consent of parties OR court's permission (except to add / substitute / remove parties)

  3. add / substitute / remove parties - always need court's permission (unless made before service of claim form)

AMENDMENTS WITHOUT PERMISSION AND CONSENT

  • largely restricted to amendments to PoC and claim form between issue and service (maximum 4 month period) i.e. before service

  • can make any amendment without permission, including add / substitute / remove party

Exception where PoC served separately from claim form

  • need permission if claim form already served; AND

  1. want to add / substitute / remove parties (r19.4(1)); OR

  2. amendment to PoC necessitates consequential amendment of claim form

Objecting to amendment without permission

  • party served with amended SoC can seek order disallowing amendment

  • procedure

    • issue application notice

    • within 14 days of service of SoC

    • test: if permission had been required, would it have been granted? if N, court will disallow amendment

AMENDMENTS REQUIRING PERMISSION - BEFORE EXPIRY OF LIMITATION

N.B. can amend with written consent of parties instead

  • general principle: court has discretion to allow amendments - will exercise in accordance with OO

Amendments early in litigation

  • ought to be allowed, provided efficient administration of justice NOT harmed

  • if amending party not able to advance real case (which has real prospect of success), will be prejudiced

  • even amendment prejudices other party, will allow if can be compensated in costs

Amendments late in litigation

  • test: does amendment over-reach the other side, taking into account:

  1. exact stage reached in proceedings

  2. size of change of proposed amendments

    1. to clarify issues

    2. to change nature of party's case

  3. whether other side taken by surprise

  4. whether adjournment to trial necessary

  5. whether any prejudice to other side

  6. whether amended case has real prospect of success

Add / substitute / remove parties

  • need permission if claim form served

  • overarching test: court will allow if desirable (r19.2)

Amendment Test / requirements
Adding a new party

court will give permission if desirable:

  1. so court can resolve all matters in dispute OR

  2. so court can resolve issue between new party and existing party connected to dispute

N.B. if adding a C

  • must consent in writing;

  • if doesn't consent must add as D (unless court orders otherwise)
Removing a party court will give permission if NOT desirable for person to be a party
Substituting a party

court will give permission if:

  1. existing party's liability passed to new; AND

  2. desirable so court can resolve all matters in dispute

PERMISSION TO AMEND ALWAYS REQUIRED AFTER EXPIRY OF LIMITATION

  • applies to amendment after limitation which:

  1. adds / substitutes a new party; OR

  2. adds a new cause of action (different factual elements from main claim)

  • amendment deemed to be a separate claim commenced on same date as original claim

  • therefore, if amendment allowed, D deprived of limitation defence

The general rule

  • amendments outside LP are NOT allowed

The exceptions

  • overarching test - allowed if necessary to determine original claim

Amendment Circumstances allowed Test: necessary AND
Substituting a new party Assignment / transmission of interest

court may substitute if:

  1. existing party's interest or liability has passed to the new party; AND

  2. it is desirable to substitute new party so court can resolve matters in dispute
To correct a mistake as to a party's name

court may substitute if:

  1. genuine mistake as to the name of the party; AND

  2. mistake did NOT cause reasonable doubt as to ID of party (objective test); AND

To correct a mistake as to a party's ID

i.e. to substitute the correct party

court may substitute if:

  1. person who made mistake issued claim form; AND

  2. but for the mistake, the new party would've been named in claim form; AND

  3. substitution will NOT cause injustice (if substituted party unaware of claim, injustice likely)
current party's capacity (legal competence to bring or defend claim) has changed court may substitute if: new capacity gained before OR after commencement
Adding OR substituting a new party claim CANNOT be properly carried on without new party

claim CANNOT be maintained without amendment

e.g. cause of action vested in new party and C jointly but NOT severally

Adding OR substituting a new party

----OR-----

Adding a new cause of action

 PI claims (s33 LA) court may allow amendment if a s33 issue directed to be determined at trial
Adding a new cause of action where the allegedly 'new' cause of action is actually original D counterclaiming / pleading set-off against original C

court may allow amendment, provided NOT:

  1. used offensively; OR

  2. radically different from existing claim

If evades limitation, C may apply to strike out
where new cause of action arises from the same OR substantially the same facts as existing cause

court may allow amendment if shares same basic facts

new facts / particulars

new remedy

new allegation / duty

The effect of the amendment

  • amendment to transfer some / all liability to a non-party (who C CANNOT bring a claim against due to expiry of limitation) will only be allowed if:

  1. D NOT at fault in pleading defence at wrong time; OR

  2. amended facts within the C's knowledge

COSTS OF AMENDMENT

  • general rule: amending party pays other side's costs of or occasioned by amendment, including:

  1. correspondence regarding the application

  2. preparation and attendance at hearing

  3. consequential amendment of SoCs

  • the later the amendment, the more onerous the costs order

PROCEDURE FOR APPLYING FOR PERMISSION TO AMEND

Applying for permission

  • applications usually made on notice to all other parties

  • applications late in litigation - make to trial judge, otherwise master / DJ

  • issue application notice

    • may be made by existing party OR person wishing to become party

  • generally, NO evidence in support

    • may include if desirable (e.g. if limitation due to expire)

    • except: application to substitute party to whom existing party's interest has been assigned - must be supported by evidence, and can be without notice

  • must file proposed SoC with application notice

Procedure after permission granted

  • order drawn up and served on parties (in usual way)

    • if adds a D close to expiry of limitation - order must impose condition that other Ds served before expiry of limitation

  • if adds / substitutes / removes party

    • must serve on all affected parties

    • court fee payable

  • may include consequential directions:

    • amendments to other SoCs

    • alterations to timetable

    • if adds / substitutes / removes party:

      • filing and serving amended claim form + PoC + response pack on new D

      • serving other relevant documents on new party

Making the amendment

  • unless court orders otherwise:

  1. words added to document written / typed in red ink

  2. deleted words struck through in red

  3. re-amendments made in green; subsequent violet; then yellow

  4. if amendments can't be incorporated fresh...

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