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It is common for a party to discover, after proceedings have commenced, that its statement of case needs to be changed. The amendment may be relatively minor, for example, correcting a factual error or clarifying a pleaded allegation. Or, it may be more significant, such as introducing a new cause of action or changing the basis of a claim.
Separately, a party may need to add, remove or substitute a party to the proceedings. Although such a change will often require consequential amendments to the claim form or another statement of case, the addition, removal of substitution of parties if governed by CPR Part 19, rather than being an amendment to a statement of case under CPR Part 17. The two Parts may need to be considered together where, for example, an application to add a defendant also requires the claim form and particulars of claim to be amended.
This article provides a practical overview of the relevant rules and the considerations which should be borne in mind when advising on or making an application.
Amendments to Statements of Case
The procedure is relatively straightforward where the amendment is made before the statement of case has been served or where all parties consent. However, difficulties tend to arise where permission is required, particularly where the application is made late in the proceedings or after the expiry of a limitation period.
Before Service
The first question should always be: Has the statement of case been served?
Pursuant to CPR 17.1(1), a party may amend its statement of case at any time before it has been served on any other party. Permission is therefore generally unnecessary at this stage.
Accordingly, where a statement of case has not yet been served, permission is generally unnecessary.
After Service
Once a statement of case has been served, CPR 17.1(2) provides that it may only be amended by either of the two methods:
- with the written consent of all the other parties; or
- with the permission of the court.
If the amendment involves removing, adding or substituting a party, the application must be made in accordance with CPR 19.4.
Amendments by consent
Where a statement of case has already been served, the simplest route is often to obtain the written consent of all other parties. There is no need to make an application to the court where all necessary parties consent.
The consent should be obtained in writing, and the amended statement of case should then be filed and served in accordance with the rules and an appropriate consent order.
Solicitors should nevertheless check the existing directions before proceeding. For example, an order may have imposed a deadline for amendments or may require permission before any amendment is made.
It is also worth remembering that consent between the parties does not necessarily override a court order or case management direction. If an amendment would require the variation of an existing order, an application to the court may still be necessary.
When permission is required
Where a statement of case has already been served, and the parties do not consent, an application for permission to amend is made under CPR Part 23 using Form N244.
The court’s power to allow an amendment is subject to:
- CPR 19.2, where the amendment involves changing the parties;
- CPR 19.6, where a new party is being added or substituted after expiry of the relevant limitation period; and
- CPR 17.4, where the amendment introduces a new claim after expiry of the relevant limitation period.
The court may also give consequential directions concerning amendments to other statements of case and their service.
If a party has amended their statement of case where permission of the court was not required, the court may disallow the amendment. Such an application can be made by the opposing party.[1]
The court’s considerations
Amendments should generally be permitted so that the real dispute between the parties can be determined, provided that any prejudice caused to the opposing party can be adequately compensated, ordinarily through costs, and that the efficient administration of justice is not significantly harmed.
That does not, however, mean that amendments will automatically be allowed.
The court will consider the circumstances of the particular case, including:
- the nature and significance of the proposed amendment;
- why the amendment is required;
- when the need for the amendment arose;
- why the application has been made when it has;
- the stage the proceedings have reached;
- the effect of the amendment on the existing timetable;
- whether the trial date would be imperilled;
- whether further disclosure or evidence will be required;
- the prejudice to the applicant if the amendment is refused;
- the prejudice to the opposing party if it is allowed;
- whether that prejudice can be compensated by an order for costs; and
- the interests of other court users and the efficient administration of justice.
Solicitors should therefore avoid leaving an amendment application until the last minute.
If it becomes apparent that a pleading needs to be amended, the application should be considered promptly, rather than waiting until shortly before trial.
This is consistent with PD 23A, which provides that every application should be made as soon as it appears necessary or desirable to do so.
Process of making the application to Court
The applicant should generally file:
- the application notice; and
- a copy of the statement of case showing the proposed amendments.
The proposed amended pleading should make it immediately apparent to the judge what is being changed.
An application to amend should generally be supported by evidence where the circumstances require explanation.
The evidence should explain why the amendment is necessary and why it is being sought at that stage.
For example, the evidence might explain:
- when the relevant facts came to light;
- why the original pleading was incorrect or incomplete;
- why the amendment could not reasonably have been made earlier;
- whether the amendment affects disclosure or evidence;
- whether the amendment affects the trial timetable; and
- what prejudice is likely to be caused to the other parties.
This is particularly important for a late application as discussed above.
Practice Direction 17 also deals with how amendments should be presented.
The amended statement of case and the court copy of it should be endorsed as follows:
(1) where the court’s permission was required:
Amended [Particulars of Claim or as may be] by Order of [Master …………][District Judge…… or as may be] [Legal Adviser] dated……………
(2) Where the court’s permission was not required:
Amended [Particulars of Claim or as may be] under CPR [rule 17.1(1) or (2)(a)] dated………………
The amended statement of case does not necessarily have to reproduce the original text. However, where the court considers it desirable, the amendments can be shown using coloured amendments or by use of a numerical code in a monochrome computer generated document.
Where colour is used, deleted text should be struck through and replacement text inserted or underlined in the same colour. The Practice Direction provides for successive amendments to be shown in red, green, violet and yellow.
The application notice itself can contain evidence if it is properly verified by a statement of truth, although a witness statement will often be preferable where a detailed factual explanation is required.
Where permission is granted, the amended statement of case should normally be filed within 14 days of the order, unless the court specifies a different period. The amended pleading should be verified by a statement of truth unless the court orders otherwise. A copy of the order and amended statement of case should then be served on the other parties unless the court directs otherwise.
Adding, removing or substituting parties
The addition, removal and substitution of parties to proceedings is governed by CPR Part 19. This is distinct from an amendment to a statement of case under CPR Part 17.
The court may order that a person be added as party where:
- it is desirable to add them so that the court can resolve all the matters in dispute; or
- there is an issue involving the proposed new party and an existing party which is connected with the matters in dispute, and it is desirable to add the new party so that the court can resolve that issue.
The court can also order that a person cease to be a party where it is no longer desirable for them to remain a party.
Substitution is dealt with separately under CPR 19.2(4). Broadly, substitution may be appropriate where the existing party’s interest or liability has passed to the proposed new party and it is desirable for the substitution to enable the court to resolve the matters in dispute.
An application for permission:
- may be made by an existing party or by a person who wishes to become a party;
- must be supported by evidence; and
- must be made under Part 23.
There are also specific requirements where the proposed new party is to become a claimant. A person cannot be added or substituted as claimant unless they have given their written consent and that consent, together with the proposed amended claim form and particulars of claim, has been filed with the court.
Where a new defendant is added, the defendant does not become a party until the amended claim form has been served on them. This is an important practical point: obtaining an order adding a defendant is not, by itself, sufficient to make that person a party.
An order adding, removing or substituting a party must also be served on all existing parties and any other person affected by the order.
What if limitation period has expired?
Where a party is to be added or substituted after the expiry of a relevant limitation period, CPR 19.6 applies.
The court may only make the order where:
- the relevant limitation period was current when the proceedings were commenced; and
- the addition or substitution is necessary.
The rule sets out when an addition or substitution will be considered necessary. This includes, for example:
- where the new party is being substituted for a party who was named in the claim form by mistake;
- where the claim cannot properly be continued by or against the original party unless the new party is added or substituted; or
- where the original party has died or become bankrupt and the relevant interest or liability has passed to the new party.
The test is therefore significantly more restrictive than the ordinary test for adding a party under CPR 19.2.
Introducing a new claim
Where an amendment introduces a new claim after the limitation period has expired, CPR 17.4 applies.
The court may permit a new claim to be added only where the new claim arises out of the same facts or substantially the same facts as a claim already in issue in the proceedings.
There are also specific provisions dealing with correcting a genuine mistake as to the name of a party and altering the capacity in which a party claims.
Costs
The applicant should expect costs to be an issue.
PD 17 states that a party applying for an amendment will usually be responsible for the costs of and arising from the amendment. CPR r.19.4(10) similarly provides that a party applying to add a new party by amendment will be responsible for the costs of and arising from the amendment unless the court orders otherwise.
This means that even where permission to amend is granted, the applicant may be ordered to pay the other party’s costs of dealing with the amendment.
Where an amendment has been necessitated by the other party’s conduct, or where the parties have agreed a different costs position, there may be scope for a different order.
[1] CPR r.17.2
Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose.
This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
