#16058 - Amendments And Parties - BPC Civil Litigation

Amendment (and its relationship with a period of limitation)

Summary (revision notes): Amendments

• s35 Limitation Act: if you add or substitute a cause of action, or a new party it is treated as a ‘new claim’.

• A ‘new claim’ (treated as a separate action) includes:

  • Set-off

  • Counterclaim

  • Addition/substitution of new cause of action

  • New Party

• Court power to disallow amendments made without court’s permission: Party can apply to court for an order to disallow amendments made without permission of court: (i.e. where permission of court wasn’t required, either before service of SoC or with written consent of parties; but then party decides to object to it) should apply within 14 days of service of copy of the amended SoC.

• No permission to amend SoC required, IF: before served on any other party.

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

• Applying for amendment: file with court application notice & copy of proposed amended SoC.

• If permission is given:

  • Should file with court the amended SoC within 14 days of the order;

  • Re-verify with statement of truth if the substance is changed

  • Serve on all parties: (1) copy of the order and (2) the amended SoC.

• An application can be dealt with without a hearing where (same rules as Pt 23 apps):

  • (a) parties agree as to the terms of the order sought;

  • (b) parties agree that court should dispose of app without a hearing; or

  • (c) court does not consider a hearing appropriate.

Amendments where limitation period is still current

Need to distinguish between types of Amendment:

• (1) Adding/removing/substituting a Cause of action

  • Permission of court required?

    • If before SoC served on any other party, no permission (17.1).

    • No permission if written consent of all parties (though party could then apply to disallow the amendment within 14 days).

    • If neither of above need permission.

  • Test for permission court’s discretion, commentary 17.3.5-17.3.8. EG considerations:

    • Existence/weight of whether refusal would prejudice the party seeking amendment is just one factor; also prejudice to other party.

    • Incorrect that late amendments should always be allowed if opposing party can be compensated in costs without injustice.

    • Having regard to the overriding objective (justly & at proportionate cost; saving expense; expeditiously; fair share court’s resources).

    • Need to show ‘some prospects of success’

      • i.e. not: implausible/self-contradictory

      • i.e. not unsupported by any evidence/pure speculation.

      • i.e. if not maintainable in current established law.

    • If a late/very late amendment whether will jeopardise trial date; heavy burden on party seeking amendment to justify it. ‘very late amendment’ = trial date would be lost.

      • Need very good explanation & show strength of new case & why justice requires it.

      • Must justify it not only with regards to own position, but the other parties, and other litigants in other cases before the court.

    • Whether would put parties on an unequal footing

    • Less strict approach if amendment is simply a formality (cf changing substance)

    • Might allow amendment only for central matters of the defence, and refuse permission for minor/peripheral matters.

    • More likely allowed if doesn’t substantially alter the case.

    • More likely allowed if the matter had been raised in W/Ss and experts reports pre-trial (even though not raised in the SoC before).

    • If C had been entitled to wait for W/Ss to be exchanged, amendment allowed.

    • If C has a strong claim which would, without the amendment, would be dismissed.

    • Open approach to litigation: party should tell opponents of intention.

    • Amendment after evidence heard at trial, is possible. Eg if D had been able to make submissions to it, and D would not have called further evidence even if had been in SoC originally.

    • Possible to have amendment after judgment given, before order is drawn up and sealed. Very exceptional.

• (2) Adding/removing/substituting a Party

  • Application notice should be filed in accordance with r23.3 and served r23.4 on each respondent.

  • Permission of court required?

    • If before SoC served, no permission (17.1).

    • Otherwise, always need permission (19.4) i.e. you can’t avoid getting permission by getting written consent of all parties, as with causes of action/other amendments.

    • So once SoC served you need permission (19.4).

    • An application can be made by: an existing party; or a person who wishes to become a party.

    • An order giving permission will be served by the court (unless parties wish to serve it or court orders them to).

    • If you are adding/substituting a Claimant you need his consent in writing.

      • Party applying must file: application notice; proposed amended claim form & PoC; signed, written consent of the new C.

      • If court makes order, but the signed consent of new C has not been filed the order and addition/substitution will not take effect until the signed, written consent of the new claimant is filed.

    • Court may direct: the party who made the application to file within 14 days an amended claim form and Poc

    • If a new D is added, court may order to be served on the new D: amended claim form and Poc; forms of admitting/defending/acknowledge claim; copies of SoC and other docs.

    • New D does not become a party until the amended claim form is served on him.

    • To add HMRC Commissioners as a party: only if they give their consent in writing.

    • An application for substitution where party’s liability/interest has passed: may be made without notice; must be supported by evidence.

    • HRA DOI: court requires 21 days notice has been given to the Crown. A Minister shall be joined as a party.

  • Test for permission, r19.2:

    • (1) May order a person to be ADDED as a new party IF:

      • (a) It is DESIRABLE to add the new party so that the court can resolve all the matters in dispute; OR

      • (b) There is an issue involving the new party and an existing party, which is connected to the matters in dispute; AND it is desirable to add new party to the court can resolve that issue.

      • (a party may only be added as a Claimant IF: that party has given his (a) consent in writing & (b) that consent is filed with the court).

      • (a new D doesn’t become a party UNTIL: the amended claim form has been served on him).

    • (2) may order any person to CEASE to be a party IF: it is not desirable for that person to be a party to proceedings.

    • (3) may order a new party to be SUBSTITUTED for an existing one IF:

      • (a) the existing party’s interest or liability has passed to the new party; AND

      • (b) it is DESIRABLE to substitute the new party so that the court can resolve the matters in dispute.

  • And also court’s general discretion re all amendments, commentary at 17.3.5-8

• (3) Other types of amendment: eg, Defence; Add s22 CEA conviction; Particulars of neg, etc

  • Permission?

  • If before SoC served, no permission (17.1).

  • No permission if written consent of all parties.

  • If neither of above need permission.

  • Test for permission court’s discretion, commentary 17.3.5-17.3.8. EG considerations:

    • Having regard to the overriding objective

    • Need to show ‘some prospects of success’

    • If a late/very late amendment whether will jeopardise trial date; heavy burden on party seeking amendment to justify it.

    • Amendment after evidence heard at trial

Amendments where limitation period has expired

• If does not fall within one of the exceptions -> permission can’t be given.

• A ‘new claim’ (treated as a separate action) includes:

  • Set-off

  • Counterclaim

  • Addition/substitution of new cause of action

  • New Party

• (1) Adding/removing/substituting a new Cause of action (r17.4)

  • [[Courts restrictive about allowing this, BECAUSE s35 Limitation Act: if you add or substitute a new cause of action, or a new party it is treated as a new claim/‘separate action’ which commenced at same date as original action. Courts don’t want to allow this to be used to abuse limitation by later amending the claim.]]

  • R17.4 (and s35(5) Limitation Act) test for whether court’s might allow: court MAY allow if new cause of action arises out of the same or substantially the same facts as original claim.

• (2) Other types of amendment (r17.4):

  • 17.4(3), may allow to correct a mistake as to the name of a party (CF with correct as to ‘mistake’ under r19.5) IF:

    • (a) mistake was genuine; and

    • (b) would not cause reasonable doubt as to the identity of the party.

  • 17.4(4): MAY allow amendment to alter capacity in which a party claims, IF: the new capacity is one which the party had when the proceedings started OR has since acquired.

• (3) Adding/removing/substituting a Party (r19.5)

  • [[Courts restrictive about allowing this, BECAUSE s35 Limitation Act: if you add or substitute a cause of action, or a party it is treated as a new claim/ ‘separation action’ commencing at same date as original action.]]

  • R19.5 (and s35(5) LA) test for whether court may allow adding/substituting a new party:

    • (1) limitation period was current when the proceedings were originally issued [i.e. period had not expired when the original action was commenced]; AND

    • (2) the addition/substitution is “NECESSARY” for the determination of the ORIGINAL action, i.e. if [[‘necessary’ CF ‘desirable’ if limitation period not expired:

      • (a) a party named in mistake for the new party (CF with mistake under 17.4(3) below)

        • Commentary ‘Sardinia Sulcis’ test: amendment may be allowed if the identity of the intended party is clear from a description (in a statement of case) which is specific to the particular case.

        • Mistake must be as to the name of the new party, rather than identity. i.e. you ...