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Amendments to statements of case - Coggle Diagram
Amendments to statements of case
Amendments to statements of case must be verified by a statement of truth (CPR 22)
If the substance of the statement of case is changed by reason of the amendment, the statement of case should be re-verified by a statement of truth.
How can amendments be made?
CPR 17.1(1) confirms that a party may amend a statement of case at any time before it is served. However, amendment of a POC may require subsequent amendment to the claim form (which may have been served prior) and to amend documents that
have already been
served require either:
a) Consent from the other parties [CPR 17.1.(2)(a) says that any statement of case can be amended at any time with the written consent of all parties];
b) Permission from the Court
When an amended SOC is filed without the need for the permission of the court it should be endorsed with the words:
'Amended [particulars of claim / defence (or as may be) under CPR [rule 17.1(1) or 17.1(2)(a)] dated....'
However, the court still retains its discretion to disallow such amendments (CPR 17.2).
Caution : late amendments!
If a party seeks a late amendment (i.e. close to trial) this can potentially cause unfiarness in that it might put the parties on an unequal footing or add an excessive burden to the respondent's task of preparing for trial. The Court will not consider applications for late amendments leniently. Swain-Mason and ors v Mills & Reeve [2011] set out principles for Judges to adopt:
The Court should be less ready than it used to be to allow a very late amendment, where the need for the amendment does not result from some late disclosure or new evidence.
A heavy onus lies on the party seeking late amendmentg to justify it, not only as regards its own position but also in relation to other parties to the litigation and other cases before the Court, and to give evidence as to why the application is made at such a late stage.
The party seeking the late amendment must satisfy the full requirements of preparing a proper pleading. IN other words, the party cannot sayh that deficiencies can be rectified by way of further information or evidence in due course.
Will the Court give permission to amend?
General principle is that the Court will give effect to the OO of dealing with cases justly and at proportionate cost (CPR 1.1). The Court will aim to find a balance between injustice to the applicant if the amendment is refused and injustice to the opposing party and any other litigants in general.
Need to show some prospect of successs
An application for permission to amend a defence will be refused if it is clear that the proposed amendment has no prospect of success
The party seeking amendment will more than likely be liable to costs for the application / hearing.
Procedure for seeking permission
If permission of the Court is required [which will be the case when a SOC has been served and the written consent of all parties has not been given], the party seeking amendment should file an application notice with the Court together with a copy of the proposed statement of case (17 PD 1.2). The application can be dealt with at a hearing or where all parties consent without a hearing on written submissions.
If permission to amend is given, the court will usually give directions as to any consequential amendments and the service of any amended statements of case. In any event, the SOC should usually be filed by the applicant within 14 days of the date of the order granting amendment unless court orders otherwise. A copy of the amended SOC and order should be served on every party to the proceedings.
When an amended SOC is filed with the permission of the court it should be duly endorsed as:
'Amended [particulars of claim / defence Por as may be)] by order of [Judge] dated ....'
AMENDMENTS WHICH ADD, REMOVE OR SUBTITUTE PARTIES
CPR 19.1 says that 'any number of claimants or defendants may be joined to a claim'
This is the general rule subject to the exception in cases where the limitation period has expired.
The main test to be satisfied when seeking to add, remove or substitute a party is that the amendment is 'desirable'.
In considering this, the court will have in mind the policy objective of enabling parties to be heard if their rights may be affected by a decision in the case and the OO.
Adding parties to a claim increases the complexity and case management decisions required which add to cost and time. The court will have this in mind when considering.
Permission and / or consent needed
Nobody can be added as a claimant without his or her consent, with the consent being filed at Court (CPR 19.4(4).
If someone refuses to be added as a claimant, they can instead be added as a defendant (CPR 19.3(2).
The Court's permission is always required to add, remove or substitute a party unless the claim form has not yet been served.
The rule is designed to avoid the possibility of claims being defeated on the basis that one or another party should or should not have been joined.
The decision to amend, as with general amendments is made in accordance with the OO.
Permission is usually given to amend on basis that the amending party must pay the costs of the amendment. (plus those arising from it)
AMENDMENTS AFTER LIMITATION PERIOD HAS EXPIRED
GENERAL
An amendment to
add a new cause of action or part
y to existing proceedings is deemed a separate action which is commenced on the same date as the original action where the limitation period has expired.
The addition of a new party now takes affect on the date the amended claim form is served upon the new party, unless the court orders otherwise. By contrast, when one is considering new claims, the Limitation Act determines when a new claim is deemed to be commenced.
Post limitation amendments
S35 Limitation Act 1980 - the usual rule is that such amendments will not be allowed (s35(3).
Exceptions to this general rule include when an original set off or counterclaim is raised by an amendment and where otherwise provided in the Limitation Act and rules of the court.
Adding causes of action post limitation
a new cause of action can be added to an existing SOC after the end of the limitation period only in the following circumstances:
a) When the court directs that the limitation period will not apply in a PI action (S33) - this provision gives the court a general discretion to disapply that time limit if satisfied that it is equitable to do so.
b) The new cause of action is an original set off or counterclaim (S35(3).
c) The new cause of action arises out of the same facts or substantially the same facts as are already in issue in the original claim (S35(5)(a).
The Court may allow the amendment when the effect will be to substitute or add a new claim after the end of the limitation period, but
only if the new claim arises out of the same / substantially the same facts
as a claim in respect of which the party seeking permission to amend has already claimed a remedy. The onus is on the applicant to show that the proposed amendment falls within this criteria:
An amendment adding a new duty or obligation on part of a D (or a C) will usually raise a new cause of action so this will be a new claim.
An amendment adding additional facts or particulars which clarify a duty or obligation which has not already been alleged, will
not
normally be interpreted as raising a new cause of action.
The Court will therefore examine the alleged duty, breach, causation and loss very carefully to decide which of the above two categories the proposed amendment comes into. If there is a new distinct allegation, it will be a new cause of action and will need to be justified within the criteria mentioned above as this amendment will add a new claim after expiry of the limitation period.
If the only change is the addition of a further instance of the alleged breach or a new remedy, there will be no additional cause of action.
Adding parties post limitation
There is interplay between the general provisions for amendment and those which specifically deal with adding or substituting parties substaantively. This is because any change in the parties will also necessitate amendments to the SOC. There are 3 main situations that can arise:
Relates to cotrrecting a mistake as to the name of a party
Relates to changing the capacity of a party
Relates to changing the identity of a defendant
Limited number of situations where new parties can be added / substitute post expiry of limitation. If the case does not fall into these categories the proposed amendments will not be allowed.
Onus is on the applicant to show that the proposed amendment falls within the applicable criteria.
Parties can only be added / substututed after the end of the limitation period if:
a) The limitation period was current when the proceedings were initially started; and
b) The addition or substitution is 'necessary'
The addition / subtitution will only be deemed necessary where the Court is satisfied that:
The new party is to be substituted for one that was named in the claim form in mistake for the new party; or
The claim cannot be properly carried on / by/against the original party unless the new party is added or substituted
The original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party
Change in name only, or a different person?
The court will distinguish between mistakes in name only and those which actually result in an entirely different person or entity becoming a party ie mistakes as to identity.
Example:
The intended party might have been named in the claim form but there was a genuine mistake as causes no reasonable doubt as to the identity of the party in question. The CF will have been served on this D despite their name being wrong. An amendment to this party's name therefore might be allowed - CPR 17.4(3).
Sometimes the mistake is more fundamental and the situation can only be made right by the new party being substituted. So here, a new person will be joining the action however their identity will have been known already i.e. a C might know the attributes of the proposed D (eg their employer) but has no personal knowledge of their actual name. The C might have been incorrectly informed of the name, resulting in procs against the wrong D - CPR 19.6(3)(a).
Amendments post limitation in relation to the name of the party might be allowed but those relating to someone with an entirely new identity will not be allowed.
Key case: The Sardinia Sulcis [1991]
Sets out the correct approach for the court when deciding these issues:
Has the intended defendant been identified in the SOC by reference to a decription more or less specific to the particular case?
If yes, it is a mistake of the type covered by CPR 19.6(3)(a) and the amendment may be permitted by the court. If not, then the court cannot permit the amendment.
Summary in relation to mistakes as to parties after the limitation has expired
Genuine mistake as causes no reasonable doubt as to the idenity of the party in question - Court has the power to allow amendment (CPR 17.4(3)
Named in the court form in mistake for the new party - adequately described - Court has the power to allow amendment (CPR 19.6(3)(a)
Named in claim form in mistake for new party - NOT adequately described - Court has no power to allow amendment.
Format of amended statement of case
There is no need for the amended statement of case to show the original text unless the court orders otherwise.
Amendments are to be shown by either (i) using coloured amendments or (ii) using a numerical code.
If colour coding is used, the order of colour for successive amendments is (1) red (2) green (3) violet and (4) yellow.
The amended statement of case should contain the appropriate endorsement and be verified by a SOT.
Once an amended SOC has been served there will often be known on amendments to the existing SOC e.g. if the POC are amended the D will likely need to amend their defence as a consequence.