Summary Note on Civil Procedure : Amendment of Pleading

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Here is the note on

Civil Procedure : Amendment of Pleading

...................................Here it goes ........................................

1. AMENDMENT OF PLEADING & WRIT

è 7 MATTERS TO BE DISCUSSED

1. Basic principle

2. Leave

3. Times to amend

4. Modes of application

5. Writ’s consideration

6. Amendment not allowed

7. Other matters

1. BASIC PRINCIPLE

Held: No matter how negligence / careless / late the change is, it should be allowed as long as there is no injustice caused. There will be no injustice if the party can be compensated with cost.

2. LEAVE

§ QS: What I amending? Writ or leave?

WRIT

§ O20 R1: Writ without leave – “If the writ has been served, O20 R1(1) stated that the party (pf) can amend the writ once before the close of pleading without the leave of the court.”

§ HOWEVER, O20 R1(3): “This amendment cannot leave certain effects such as follows;”

(a)The addition, omission or substitution of a party to the action or an alteration of the capacity in which a party to the action sues or is sued;

(b)The addition or substitution of a new cause of action; or

§ O20 R1(2): Once an amendment is done on the writ, it must be served to the other party.

§ O20 R1(1) & Proviso of O20 R1(3): “Writ can be amended once before the close of the pleading without the leave from court.” Here, it means that, the party can amend anything with no restriction on the effect.

PLEADING

§ O20 R3: Writ without leave – “Pleading may be amended once before the close of the pleading without the leave of the court.”

§ This may be done by:

(a) Amendment; &

(b) Send a copy of such amended pleading to the other party, so that the other party has right to (within 14 days):

i. Delivered the amended defence; or

ii. If the df is yet to deliver a defence, to send one to the pf.

§ NOTE: Need Leave Of Court For Anything Else

1. If the pleading already closed; or

2. If the party want to amend for 2^nd time.

3. TIMES TO AMEND

§ If the amendment was made out without the leave of the court, it can be amended at any time.

§ If the amendment needs leave from court, it can be amended;

i. At anytime = Before / after the close of the pleading, during trial / before judgment is delivered.

ii. Before trial = Because during trial the parties has begun to answer all issues – not preferred by court.

Held: No matter how negligence / careless / late the change is, it should be allowed as long as there is no injustice caused. There will be no injustice if the party can be compensated with cost.

Held: An amendment is to be allowed if there is no prejudice / injustice that cannot be compensated with cost. An application for leave may be rejected if it is clear that it should have been done before trial & parties are aware of this fact. Court has discretionary power upon this matter.

4. MODES OF APPLICATION

§ QS: Is the application is before / during the trial?

§ BEFORE THE TRIAL: Notice of application in chamber (Form 57) supported by affidavit, and be made to the registrar.

§ DURING THE TRIAL: Notice of application in chamber (Form 57) supported by affidavit, and be made to the judge.

§ Court will decide whether to grant or not.

5. CONSIDERATION IN GRANTING THE LEAVE

§ In granting the leave, court will have several considerations such as stated in:

Held: The overriding factor is that, whether or not there is injustice upon the other party. In dealing with the amendment of the pleading, 3 qs need to be asked:

1. Whether the application is made bona fide?

2. Whether the application of the amendment asked for will cause prejudice that cannot be compensated with cost?

3. Whether the amendment will turn the character of the suit to another?

FOC: KM is a ship owned by 3^rd df. The pf sued them as the cargo carried by the df has not arrived. In the 3^rd df defence (SOD), they admitted that there were the carriers of the goods. Later the 3^rd df applied for a leave from court to amend this part by omitting the admission that they are the carriers of the goods. They also wanted to add in the facts that the vessel is chartered to the 1^st df. Pf objected such facts as had they known this fact, they will arrest another vessel from the 1^st df, besides, the 1^st df is now in liquidation. This will cause prejudice to the pf.

Held: ‘Prejudice that cannot be compensated with cost’. Thus, no leave to amend is granted by court.

6. AMENDMENTS NOT ALLOWED

§ There are 6 circumstances in which the amendment will never be allowed.

§ In exam, just touch the relevant situation.

1. The amendment will cause prejudice to the other party.

2. The amendment is foetal, frivolous or not bona fide.

FOC: Amendment to the pleading was made after 10 years after the case was initiated.

Held: The amendment is not bona fide – too late.

FOC: Foetal = Useless amendment

Held: The application to amend is not allowed as even if the amendment is to be allowed, the application / COA is still fail. Useless amendment.

3. The facts of the amendment is to withdraw an admission consciously made.

4. The amendment is to raise the COA which accrued to pf only after the action was commence.

§ Doctrine of Relation Back

· Under this doctrine, the amendment is such writ is not allowed to be done as, if such amendment is to be allowed, the effective date of the new COA will actually date back to the original date when the writ is issued.

· This is a plain contradiction.

· Eg: A writ has been dated on 6^th January 2010. Later, a new COA has accrued on 16^th January 2010. On 26^th February 2010, plaintiff wants to amend the writ to add in the new COA. Now, such COA has to be dated back to the original date of the writ that is 6^th January 2010, where there is an original writ that has been served on such date. Because of that reason, such new writ is not allowed to be applied and served as it bringing in a new COA which will work against the clock date of the writ system.

FOC: Foetal = Useless amendment

Held: There are 4 qs that must be asked in order to see whether Pf has completed COA:

1. Is there any Pf who can sue?

2. Is there any Df can be sued?

3. Is there any COA that is known to the law?

4. If there is COA that is known to the law, has every ingredient that constitutes such COA completed / has taken place?

§ If one of the above is yet to complete, such COA is not yet complete. To relate with the doctrine of Relation back, is such COA is not yet complete, it is contradicting for the court to allow a new COA to be dated back on the original COA as such original COA itself is yet to complete.

FOC: Multiple defaults. Amendment made before last default, to add another payment.

Held: cannot be granted as COA is not yet complete.

5. The amendment will turn the suit character into another & inconcsistent character.

· Eg: From COA involving of tort to the COA involving breach of contract.

FOC: Pf claimed for deposit from df. Later, pf want to add the COA of non-payment & another COA.

Held: Amendment cannot be granted as it changed the character of the suit.

6. The amendment is to add a party / to raise COA after the expiry of the relevant limitation period unless O20 R5 applies.

· If LP has set in, amendment is not allowed if such amendment is add another party to the suit.

· This is because, the party will then has right upon LP, which had already set in together with the previous parties. (Case: Liff v Peasley)

· This also applied in situation if the limitation of OCA already set in.

· O20 R5 = Irrespective of the LP.

· 3 EXCEPTIONS in O20 R5(3)(4) & (5) :

1. (3): The amendment is to correct the name of the party where the mistake leads to no person.

2. (4): The amendment is only to alter the capacity in which party is suing / being sued,
Eg: We sue personal rep of the decease but forget to put ‘executor’ / etc.

3. (5): The amendment to add a new COA arising out from the same facs of the original claim. This can be granted even after the LP has set in.

Eg: You sued for negligence of your employer, later you want to add in ‘a breach of statutory duty’ as your COA.

§ NOTE: If the QS is to add in a new COA, we need to ask these 3 qs:

1. Would it change the character of the suit? (Sunrise Tower’s case)

2. When the COA accrued? (Doctrine of relation back)

3. Has the LP set in?

7. OTHER MATTERS

§ QS: What if court grant you a leave to amend?

Ø O20 R9:

· You must make such amendment within 14 days.

· Failure to adhere to this rule, such granted leave has no longer have the effective effect.

· Court has discretion to extent the time.

§ Amendment on ‘Judgment Order’ / Appeal it

· Only for limited situation under the ‘Slip Rule’

Ø O20 11 (Slip Rule): “Allow party to make amendment for a mistake which arouse out of the clerical mistake.”

· Eg: Typo, capital letters, etc.

· Only this type of amendment is allowed for others need to go through the appeal process.

FOC: Court has made an order to call the chairman of the co to conduct the general meeting. Later, the court change the words of ‘chariman’ in the order to the word of ‘company’, as logically co is the one need to be the one conducting the general meeting.

Held: Amendment was granted.

Held: Mistake relating the ‘,’ / ‘.’ / or any other clerical mistake is allowed to be amended.

Yeay!

Next will be updating on #criminalprocedurecode