Q&As

What provisions of the CPR and case law could be cited where a claimant opposes a defendant’s application to amend its defence, issue a counterclaim and vacate the trial, where the application was made two months before trial, is to be heard a month before trial and the defendant has previously breached every directions order and does not have a reasonable chance of success at trial?

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Published on LexisPSL on 23/08/2017

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • What provisions of the CPR and case law could be cited where a claimant opposes a defendant’s application to amend its defence, issue a counterclaim and vacate the trial, where the application was made two months before trial, is to be heard a month before trial and the defendant has previously breached every directions order and does not have a reasonable chance of success at trial?
  • Amending statement of case
  • Basis on which permission will be granted or refused
  • Amendments allowed by the court
  • Amendments disallowed by the court
  • Compliance and relief from sanctions
  • Power to adjourn
  • Litigants in person

Amending statement of case

A party can amend its statement of case, as defined in CPR 2.3(1):

  1. at any time before it has been served on any other party (CPR 17.1(1))

  2. after it has been served:

    1. with the written consent of all the parties (CPR 17.1(2)(a)), or

    2. with the permission of the court (CPR 17.1(2)(b))

Basis on which permission will be granted or refused

Any amendment should be sufficiently precise to enable the other party to know the case it has to answer, especially where it is made close to trial. See: Elafonissos Fishing v Aigaion Insurance.

Where a party seeks to amend a claim to include a new cause of action which is not subject to limitation issues, the court has the power to permit that amendment (as opposed to the party issuing a second claim and perhaps seeking to consolidate the two) and the court may order that the amends take effect as if they were included as at the date of issue of the claim (in accordance with the doctrine of 'relation back') or may order that they take effect as at a different date (Football Association v O'Donovan). For more information on O'Donovan, see News Analysis: Amendments where no limitation issues and lifting the automatic stay under CPR 15.11 (Football Association Premier League v O'Donovan).

It should be ensured that proposed amendments are compliant with

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