A note on amendment of pleadings and statements of case.
WHEN PERMISSION IS REQUIRED FOR AMENDMENT
An application for amendment invokes the inherent of the Court Samir Fahs v Hedjazi 1967 – 68 ALR SL 409. Where a statement of case has been served, and the written consent of all the other parties has 31.3 not been obtained, or is not forthcoming, a party may apply to the court for permission to make an amendment (CPR, r. 17.1(2)(b)). In the case of Davies v Bickersteth 1964 – 66 ALR SL 403, the Court of Appeal held that the Court should not readily allow amendment of pleadings.
The should file the application notice with the court, together with a copy of the statement of case with the proposed amendments (PD 17, para. 1.2). By PD 17, para. 2.2, the statement of case in its amended form need not show the original text (see 31.11), but it is difficult to see how the court will be assisted in making a decision on an application to amend, if the original text is not shown in the copy to be filed with the application. Leave to amend statement of claim to be sought at close of case of , the leave would be generally refused after both sides had given evidence – White Cross Inc Co Ltd v Taylor 1968 – 69 ALR SL 165 The Court should allow amendment of pleadings which raises real issues between parties even after both cases close but before judgment per Dove – Edwin JA in the case of Samuels v Northern Assurance Co. Ltd Ca 1962 The application may be dealt with at a hearing, or, where all parties consent, without a hearing (i.e., on written submissions) (PD 17, para. 1.1). If permission to amend is given, the court may (not must) give directions as to amendments to be made to any other statement of case, and service of any amendments (CPR, r. 17.3(1)). Thus provision can (and it is suggested normally will) be made by the court for the service of any amendments that will have to be made by other parties consequent upon the service of the amended statement of case on them. In any event, the amended statement of case should be filed by the applicant within 14 days of the date of the order, unless the court directs otherwise (PD 17, para. 1.3). A copy of the amended statement of case and the order should be served on every party to the proceedings unless the court directs otherwise (PD 17, para. 1.5). The court’s power to give permission is subject to the rules on change of parties, both before and after the end of a relevant , set out in CPR, rr. 19.2 and 19.5, and (r. 17.3(2)). Where an amended statement of case is filed with the permission of the court, it should be endorsed in the following manner (PD 17, para. 2.1(1)): Amended [particulars of claim/defence (or as may be)] by order of [Master... /District Judge... or as may be] dated...