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Amendments And Parties Notes

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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:
o 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:
o Should file with court the amended SoC within 14 days of the order;
o 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):
o (a) parties agree as to the terms of the order sought;
o (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.
o 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.
o 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.
o 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.
o 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?
o If before SoC served, no permission (17.1).?

No permission if written consent of all parties.
o If neither of above ? need permission.
o 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:
o Set-off

Counterclaim

Addition/substitution of new cause of action

New Party
-(1) Adding/removing/substituting a new Cause of action (r17.4)
o [[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.]]
o 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):
o 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.
o 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)
o [[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.]]
o 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)
o 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.
o Mistake must be as to the name of the new party,
rather than identity. i.e. you must be able to identify the intended party from the description in SoC.
o The mistake must have been made by the person responsible for the issue of the claim form (or their agent).
o Causation: 'but for' the mistake, the new party would have been named.
o Egs of a clear 'description' specific to the particular case
-Claimant's employer(s)
-Driver of a particular car
-Competent landlord
-Proprietor of a hotel
-Merger of companies
-Manufacturers of a specifically identified batch of vaccine
-Professional advisers
-OR (b) claim cannot properly be carried on without addition/substitution

Substitution allowed where joinder of a new C cures the defect by reason of which a claim against D could not properly be carried on.
o Eg where old party didn't have standing to bring the claim, new party does.
o Or substitution of new party allows C to overcome a complete defence by D if old party remained [[eg where D had a complete defence to the company's claim, but not if claim was brought by liquidator]].
o The addition/substitution must be necessary to maintain the original claim NOT to raise a new claim.
-OR (c) original party died/bankruptcy and interest/liability has passed to the new party.
(3) if a PI claim: court may add/substitute a party where it disapplies limitation period for PI/fatal accidents claim (s11 or s12 LA 1980); or where it directs that the issue of whether those sections apply shall be determined at trial.?

17.4(3) CF 19.5 'mistake' as to name of party, The difference is that: ?R17.4(3), simply the wrong name, but right entity : use 17.4(3) where you sued the right person, but you put the wrong name down. You just have to change his name, you don't have to take away the party and replace him with anyone else.
CF 19.5 mistake as to entity: where you actually sued the wrong person/entity, you have to substitute a new party in.

FULL NOTES
Limitation Act 1980, s35 (New Claims in pending actions: rules of court)
-this links to the CPR rules below in relation to ALLOWING AMENDMENTS AFTER
LIMITATION PERIOD HAS EXPIRED ? RULES 17.4 AND 19.5 (re parties). Those provisions basically implement s35.??

(1) for purposes of this Act, any "new claim" made in the course of any action shall be deemed to be a 'separate action', and to have been commenced:
a) in the case of a new claim made in or by way of third party proceedings ? on the date on which those proceedings were commenced;
-"third party proceedings" means: any proceedings brought in the course of any action by any party to the action against a person not previously a party to the action;
-OTHER THAN: proceedings bought by joining any such person as defendant to any claim already made in the original action by the party bringing the proceedings.
b) in the case of any other new claim ? on the same date as the original action.
(2) a "new claim" means:
o (1) any claim by way of set-off or

(2) any claim by way of counterclaim;
o (3) any claim involving the addition or substitution of a new cause of action;
or

(4) any claim involving the addition or substitution of a new party;
(3) (except as provided by s33 [discretionary exclusion of time limit for PI/death], or by rules of court), the High Court or County Court shall NOT allow a new claim within subsection 1(b) [[any 'other' new claim, not 3rd party proceedings]] to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.
o This does NOT APPLY TO: an "original" set-off or 'original' counterclaim,
o A claim is an "original set-off" or "original counterclaim" IF : it is a claim made by way of set-off or counterclaim by a party who has not previously made any claim in the action.
(4) EXCEPTION (these are implemented by the CPR 17.4 & 19.5): rules of court may provide for allowing a new claim to which (3) applies [[i.e. where time limit would ??

have expired if was a new action to enforce]] to be made as there mentioned, but
ONLY IF the conditions in (5) are satisfied and subject to any further restrictions the rules may impose.
(5) Those conditions are:
o (a) In the case of a claim involving a new cause of action: if the new cause of action arises out of the same facts, or substantially the same facts, as are already in issue on any claim previously made in the original action;
o (b) In the case of a claim involving a new party, if the addition/substitution of the new party is "necessary for the determination" of the original action.
-(6) the addition/substitution of a new party shall not be regarded as
'necessary for the determination' of the original action unless either:
o (a) the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party's name; or

(b) any claim already made in the original action cannot be maintained by/against an existing party unless the new party is joined/substituted as plaintiff or defendant in that action.
(7) Subject to (4) above [where court may provide for allowing a new claim] rules of course may provide for allowing a party to any action to claim relief in a new capacity in respect of a new cause of action, notwithstanding that he had no title to make that claim at the date of commencement of the action.
o This subsection shall not be taken as prejudicing the power of rules of court to provide for allowing a party to claim relief in a new capacity without adding or substitute a new cause of action.
(8): (3) to (7) above shall apply in relation to a new claim made in the course of third party proceedings as if those proceedings were the original action, and subject to such other modifications as may be prescribed by rules of court in any case/class of case.

CPR, Part 17 (Amendments to Statements of Case) [[NB, amendments re adding/substituting additional parties, dealt with below in Part 19]]

17.1, Amendments to statements of case
-(1) A party may amend his SoC at any time before it has been served on any other party.
-(2) If his SoC has already been served, a party may amend it ONLY:
a) With written consent of all other parties (although this won't apply if the amendment is about adding/substituting a party ? rule 19.4); OR
b) With permission of court.
-i.E. permission of court is required to amend an SoC if: (1) the SoC has already been served on any other party; and (2) haven't obtained written consent of all parties to amend.
-If a SoC has been served, an application to amend it by removing/adding/substituting a party ? must be done in accordance with rule

19.4 [procedure for adding & substituting parties, see below].

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