A Claimant must “plead” his/her case in a document called the “Particulars of Claim”. A Defendant will do likewise in his/her “Defence”. These are the primary documents by which the court is able to understand the parties’ respective cases, and positions. The Particulars of Claim should be a concise statement of the facts on which the Claimant relies. The particulars of claim, being a statement of case, must be verified by a “statement of truth” (CPR 22.1(1)(a)). The purpose of acquiring a statement of truth is to eliminate claims in which a party has no honest belief in the facts alleged, and to discourage the pleading of claims unsupported by evidence and which are put forward in the hope that “something may turn up on disclosure or at trial” (Clarke v Marlborough Fine Art (London) Ltd (2002) 1 WLR 1731). A statement of case may include a reference to any “point of law” on which the party’s claim or defence is based (PD 16, para 13.3).
A party should always ensure that, at the earliest possible stage in the litigation, his/her case is clearly and fully pleaded. A party should never commence an important application, , or a trial, without fully, and properly, pleading its case.
If a party’s statement of case, whether that be a Particulars of Claim or Defence, is inadequately, or improperly, pleaded then a properly pleaded draft statement of case should be prepared and an application made for permission to rely upon it. On an application to amend, the amending party will usually exhibit an draft amended pleading to the application. The Judge can only give permission to amend a pleading if the draft pleading is before the Court. There may be matters which will be objected to by the non-amending party. However, if no draft pleading is before the Court, some judges ask for an oral explanation of the amended case and give permission to amend and give the non-amending party permission to object to all or any part of the pleading within a certain time frame (though this is an usual route for the court to take). Although the rules do not now require the amended statement of case to be underlined showing the new case, and any superseded text, it is good practice to provide the court with a “clean” version of the amended statement of case, and also an “underlined” version.
In accordance with the overriding objective, as a general statement of principle, it can be said that amendments should be allowed where this is “just and proportionate”. However, a proposed amendment will be refused where the amended case has no real prospect of success (Oil and Mineral Development Corporation Ltd v Sajjad (2001) LTL 6/12/2001). This is because, if a pleaded case has no real prospect of success, then it would be unjust to allow that allegation to survive and go forward to trial. Permission to amend a pleading in a way which is speculative, pleading every conceivable cause of action in a scattergun approach may be refused (Clyde & Co LLP v New Look Interiors of Marlow (2009) EWHC 173).
Normally, amendments are allowed with the party making amendments being ordered to pay the costs of and arising from the amendments (PD 17, PD 19A). Ordinarily, the non-amending party will be given an opportunity to amend its own statement of case consequentially. One means often deployed of trying to circumvent the onerous costs consequences is to give what are sometimes called “voluntary particulars” of a party’s case (so as to avoid paying the costs of the non-amending party).
If the amendment is a last minute amendment, either at or shortly before a trial, there will be a heavy onus on the party seeking permission to amend to show the strength of the new case, why it wasn’t raised earlier, and a wide justice both to him, his opponent and other litigants requires him to be able to pursue it (Worldwide Corporation Ltd v GPT Ltd (1998) EWCA Civ 1894; Swain-Mason v Mills & Reeve LLP (2011) EWCA Civ 14). This is because there is likely to be significant prejudice to a party who has prepared his/her case on the basis of an existing case, only to be presented with a new case at trial. The “goalposts” are being moved. It is usual, if the amending party is allowed the amendment, therefore for their to be a heavy penalty in costs. If the amending party is raising entirely new allegations at the beginning of a trial, which will require disclosure and new witness evidence, then the decision for the court will be whether justice can be served by either adjourning the trial to allow the new amendments to be ventilated, and responded to, or whether to refuse the amendments. If the subject of the amendments are already ventilated, and covered, in the existing statements of case the court is likely to be more sympathetic to the amending party given the allegations, whilst not pleaded, are not entirely “new”.
The usual rule is that an amendment ought to be allowed if it does not cause irreparable damage to the trial process, or to the staleness of the claim, or can be compensated in costs. In particular, this impacts on two areas: (1) disclosure; (2) witness statements; viz a party will only prepare his witness statements directed to the pleaded issues; if a new departure to the pleaded case comes up then there may well have to be new witness statements, disclosure etc: it is not simply a question of re-amending the pleading. This is less damaging if the subject of the amendment has been flagged up:
It is sometimes argued on an amendment application, particularly in relation to a point of law, “the point has always been there”. Sometimes, the argument can be turned on the non-amending party by arguing that the non-amending party ought to have raised it themselves on the basis that “it is the positive obligation of both sides to bring to the courts attention all relevant points of law” (so the non-amending party too failed in its duty to the court).
If the amendment simply reflects an expert report (particularly if joint) rather than a new issue then even if made at the beginning of the trial, the amending party should be given permission to amend.
It is perfectly possible amend after judgment, but this is exceptional jurisdiction and ought to be used sparingly. It is important for advocates to hold their opponents to their pleaded cases, and to be watchful for the advocate who strays off his pleaded case (and to meet this with “this is not his/her pleaded case”).