Amendments And Parties Notes

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...

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