District Judge Marc Marin examines the latest law on amending a statement of case
It is often said that lawyers dislike change, so how does the court approach a request to amend a statement of case? Part 17 Civil Procedure Rules 1998 (CPR) provides that prior to service, no permission is needed.
After service, there is a requirement for permission or consent of the other parties.
The general principle is that 'amendments ought to be allowed so that the real dispute can be adjudicated upon provided that any prejudice to the other party...caused by an amendment can be compensated for in costs and the public interest in the administration of justice is not significantly harmed' (Lord Justice Peter Gibson in Cobbold v Greenwich 9 August 1999 CA).
The court will apply the same test as for summary judgment - does the case to be put forward have a reasonable prospect of success or is there some other compelling reason why there should be a trial (Laws v Society of Lloyds [2003] EWCA Civ 1887)? While the court should not conduct a 'mini-trial', it is entitled 'to be astute as to whether the amendments have any real prospect of success and spend some little time doing so' (Lord Justice Waller in Laws).
In Clarke v Marlborough Fine Art (London) Limited [2002] EWH C11 (Ch), Mr Justice Patten commented that any new pleading must 'assist the efficient and economic disposal of the claim both in terms of allowing the defendants to meet the case against them and ultimately by providing the court with an intelligible account of the issues to be tried'.
Any application to amend should ideally be made as early in the case as possible.
However, in Luque-Franco v Telos Environmental Services Limited [2004] 1 ER (D) 62 (Mar), an application three weeks before trial was allowed as the court concluded that no prejudice would be suffered by the amendment.
Nonetheless, common sense suggests that consideration be given to amendment when filing allocation and listing questionnaires and before any case management conference.
What of amending to plead a cause of action that arose after the start of proceedings? In Roban Jig & Tool Co Ltd v Taylor (1979) FSR 130, Lord Justice Bridge referred to the 'absolute rigour' of the rule against allowing such an amendment.
However, Hendry v Chartsearch Ltd (1998) CLC 1382 set the winds of change when Lord Justice Evans observed that 'in accordance with modern practice generally', the court could allow such an amendment.
He referred to the court not being restricted by 'hard and fast rules of practice'.
This conflict set the scene for Maridive and Oil Services (SAE) v CAN Insurance Co (Europe) Limited, [2002] EWCA Civ 369, where it was held that such an amendment would be allowed 'if justice requires' (Lord Justice Chadwick) and considering the 'balance of fairness' (Lord Justice Ward).
The amended statement of case should contain a signed statement of truth, although it may be qualified if the client is unable to sign it (Binks v Securicor Omega Express Ltd, [2003] EWCA Civ 993).
If an amendment brings a new claim outside the limitation period, CPR part 17.4 and its case law applies.
District Judge Marc Marin sits at Staines County Court
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