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Topic Notes on Amendments (BPTC)
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Summary of the principles and procedures on the BPTC syllabus
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AmendmentsAmendments ≠ changes which CAN be made to a case by adding/substituting/removing a party
Relevant where a party:
• Changes their mind
• Can/must put their case more strongly
Events which might trigger a need to amend
Defences and additional For C, these may lead to an application to join another D
claims
Disclosure Docs produced by the other side which adversely affects their
case might reveal a new set of facts or cause of action for your
case.
Witness statements Which reveal more detail as they flesh out each side’s case,
possibly leading to consideration of amendment.
Expert evidence
To be considered carefully.
An expert report might question causation or the level of
damage, which could warrant an amendment to how you plead
those aspects of your claim/defence.
An amended statement of
case from the other side Will almost inevitably require you to respond with an amended
statement of case.
If the amendment came about after an application to amend, the
court will have made directions for this already, as consequential
amendments will be considered in that application
Amendment within the limitation period
Changing your case after discovering something that you need to include in your statement of
case = NOT controversial UNLESS an amendment is being sought at a very late stage in
relation to the trial
Circumstance Need for court permission?
Before Statement of Case No need to seek permission from anyone to change the
is issued, filed or served statement of case.
(It is, effectively, still a draft) E.g., for a particular of claim which is to be filed and served
with the claim form, no one else will have seen it yet.
After filing or issue but Can be made w/o the court’s permission (r.17.1)
before service • But court has power to disallow amendments made in this
way.
• 14 day time limit within which to apply for the amendment
After service but Can be made:
amendment does not • w/ the consent of the other parties,
involve a change of parties OR
• the court’s permission
After service and involves can only be made with the court’s permission
a change of parties
, How to seek permission to amend (PD17 paras 1 and 2)
Applications to amend are made on notice – may be dealt with at a hearing or without a hearing (where
r23.8 applies)
The party seeking permission must file/serve to the court:
• an application notice
• a W/S addressing the facts supporting the amendment
• a copy of the proposed amendment statement of case (within 14 days of the date of the order)
• marked amendment in diff colours
NB: if the substance of the statement of case is changed by the amendment, need to reverify by statement
of case
Court’s approach
Starting point: amendments should be allowed if they are just and proportionate
• Court will
o X grant permission to amend IF there are NO real prospects of success on the proposed
amended statement of case
o seek to balance the prejudice or injustice btw the parties
o prefer to proceed w/ the parties’ proper case before it
§ BUT cases must also proceed expeditiously and fairly
o Consider ALL the circumstances and weigh these factors
o Aim to maintain a fair balance btw the parties
• Allegations to be supported by evidence (CANNOT be pure speculation or invention) and must be
soundly based in law
• Amendments in general ought to be allowed so that the real dispute btw parties can be adjudicated
upon provided that
o Any prejudice caused to other party can be compensated in costs
o Public interest in the administration of justice is X significantly harmed
• There is NO absolute rule of law precluding an amendment to add a cause of action that arose AFTER
issue of the CF
• Court may reject an amendment which puts forward a version of events which is inherently implausible,
self-contradictory/isn’t supported by contemporaneous documentation
• Permission will X be granted if a claim isn’t maintainable in established law
• a party cannot raise an allegation that is unsupported by evidence/is pure speculation/invention as an
amendment
Other considerations
• History of amendments in the case
• Whether the amendments substantially alters the case
• Whether the amendment was ‘pre-shadowed’ in earlier witness statements
• The strength of the amended claim
• How preparation for trial (including evidence to be called during a trial) will be affected
Can I add something to a statement of case at a late stage of the case?
• If the effects of a proposed amendment would put the trial date at risk, court will be more reluctant to
grant permission
• It is not impossible, but court will not grant it if it is averse to the overriding objective – not time/cost
effective
• A late amendment which significantly changes the nature or scope of the pleaded case is likely to put
the parties on an unequal footing – the court will look at the potential prejudice to the other party of the
disruption caused
• The burden (a heavy one) = on party seeking the amendment to justify permission being granted
• In addition to the considerations above, the court will consider:
o how long the other side has been aware of the new version of the case and
o the effect of that on the way it must present its own case
• the court also has the power
o to permit amendments AFTER the evidence at trial has been given
o in exceptional cases to permit amendment after judgment has been given
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