Civil Litigation UNIT 12 - Strike Out and Summary Judgement
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Course
BPC
Institution
BPC
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9 + 10. Amendments, Addition of Parties, and Additional
Claims.
Includes:
o Amendments to Statement of Case (CPR + PD 17)
o Addition and Substitution of Parties (CPR + PD 19, PD19A)
o Counterclaims (CPR + PD20)
- Limitation (Section 35 Limitation Act 1980)
Amendments to Statement of Case (CPR + PD 17)
Amending a statement of case means making alterations to the statement of
case document. The right to do this is subject to some regulation contained under
CPR 17.
CPR 17.1
(a) A party may amend his statement of case at any time before it has been
served on any other party;
(b) If the statement of case has been served, a party may amend it only:
a. With the written consent of all of the parties; or
b. With the permission of the court*.
*Permission is obtained via the filing of an application notice and a copy of the
proposed amendments
- Any party that applies to the court for permission is usually responsible for
the costs of and those arising from the amendment.
Once permission has been given, the applicant should file a court with the
amended statement of case within 14 days of the order. Copy of the order and
amended statement should also be served on every party to the proceedings.
- The substance of the statement has changed at all, the statement should be
re-verified with a statement of truth.
Under CPR 17.2, if a party has amended the statement of case where permission
of the court was not required, the court still retains the right to disallowed the
amendment.
- This can be done via application from the recipient party, to be served
within 14 days of having been served with the amended statement of claim.
- Applications are typically made in 17.1(1) circumstances if amendments
appear irregular.
- However, this also applies even if parties have agreed in writing. This will
usually be done if the amendment is vexatious, dishonest, or scurrilous.
17.3 (1) Where the court gives permission for a party to amend their statement of
case, it may give directions as to:
(a) Amendments to be made to any other statement of case; and
(b) Service of any amended statement of case.
, 17.3.5/.6 In order to consider what is capable of being permissible by the court. The court
will first consider whether the amendment:
(i) Introduces a new claim; or
(ii) Provides further particulars in support of an existing pleaded point.
In the former case, the court will only grant permission if the new allegation has a reasonable
prospect of success.
- ‘Prospects of success’ means it must be arguable, carry a degree of conviction, be
coherent, property particularised and supported by evidence.
In deciding whether to grant permission, the court will take into account the overriding
objective to deal with the case justly and at a proportionate cost. Therefore, the court will
attempt to strike a balance between the injustice to the applicant if the amendment is
refused and the justice to the opposing party if the amendment is permitted.
Late Amendments
17.3.8 An amendment being is late is entirely relative and depends on if it could’ve been
advanced earlier.
Lateness can certainly affect permissibility, especially if permission is sought close to
the trial date. If this is the case, the court will have to consider whether permission so
close to the trial would put the parties on in equal footing, adding an excessive burden
to the respondent’s task of preparing for trial.
- A significant amendment late on may even necessitate the vacation and relisting of
the trial.
Therefore, a heavy burden lies upon a party seeking a particularly late amendment; they
must provide a good explanation why the application was not made earlier and that
there are prospects of success.
After an explanation is provided, the court’s decision is highly fact sensitive as courts
have been known to permit amendments during trial, if the amendment is a formality, but
also refuse applications made several weeks before trial if there is no reason why it could
not have been made earlier. (See examples in 17.3.8 for extensive list).
- If the respondent party is not prejudice or surprised by the amendment, there is
little reason for the court to not grant permission. For example, if the amendment is
based on the fact that has been contained in witness evidence or an expert report for a
substantial amount of time.
- Court has been known to decline permission even where an amendment has
arisen from the instruction of new council if the prejudice to the respondent is
significant.
Lateness can also be considered in the context of Limitation:
17.4 Where a party applies to amend his statement of case and a period of limitation has
expired under the Limitation Act 1980, the court may allow an amendment that will add or
substitute a new claim, but only if new claim arises out of the facts what is substantially
the same facts as those already claimed in proceedings.
- If the limitation period has passed, the court will also allow any amendments are correct a
genuine mistake as to the name of a party, unless it causes reasonable doubt as to the
identity of the party.
Addition and Substitution of Parties (CPR + PDA 19)
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