#4686 - Amendment - BPC Civil Litigation

AMENDMENT Principle: All amendments should be made which are necessary to ensure that the real question in dispute between the parties is determined, provided such amendments can be made without causing prejudice to the other parties. "Statement of Case" - includes: claim form, Particulars of Claim, Defence, Reply, Additional claims and further info. Key principles: * Amendments before the statement of case is served can be made without consent * Amendments at any stage can be allowed by written consent of all parties Except amendments to add/remove/substitute parties - always require Court's permission after claim form served Amendment Before Service of the Statement of Case Rule: Court's permission not required (unless adding/removing/substituting parties) Exception: Amendment to Particulars of Claim after service of Claim Form if would require consequential amendments to Claim Form Objecting to Amendment without Permission Party served with amended statement of case can object Procedure Issue application notice - seeking disallowal of amendment within 14 days of service of the statement of case Test: If permission had been required, would it have been granted? * If no - Court will disallow the amendment. Permission to Amend Discretion - no restrictions - exercised in accordance with Overriding Objective. Consider: prejudice to applicant of not allowing and to respondent of allowing * Q: Can costs put the other party into position would have been in had the amendment been pleaded from the start? PERMISSION TO AMEND BEFORE EXPIRY OF LIMITATION If parties consent in writing - permission to amend not required Parties should consent to amendments unless substantial grounds for objecting (as non-consent necessitates application for permission). Key Question: What stage of litigation is the amendment sought (has the trial started)? Amendment early in Litigation * Amendments ought to be allowed so Court adjudicates on the real issues * provided: * any prejudice caused to the other side can be adequately compensated by costs * and the public interest in the efficient administration of justice is not harmed * There is prejudice when amendment not allowed so party cannot put forward his real case. Amendment late in Litigation Difference between: * amendment to clarify issues in dispute, and * amendment to change nature of party's case (eg. raise new defence) Court must consider where justice lies * take into account prejudice to other party of late change of case and public interest in efficient administration of justice without adjournments. Test Does the amendment "have a tendency to overreach the other side"? * ie. is party changing case significantly If so - where does justice lie? * Consider: * Stage of proceedings, * Size of the change by amendment * Whether other parties taken by surprise * Whether adjournment will be necessary * Whether prejudice to other side Amendment adding previously unpleaded point just before/at start of trial may be allowed as significant prejudice not to allow, and would be windfall to other side.