This Practice Note considers making amendments to statements of case (amending pleadings, amending particulars of claim, amending the claim form, amending the defence, amending the reply, etc) under CPR 17. It considers when the court’s permission is required to amend a statement of case. It also considers the grounds on which permission may be granted or refused with reference to the key factors that the court will take into account, such as the overriding objective in CPR 1.1, the need for real prospects of success (the same test as in summary judgment applications), the timing of the application, the need to plead in accordance with the Civil Procedure Rules (CPR), whether the amendment is an abuse of process and the relevance of illegality. This Practice Note explains when you will need the court’s permission to amend a statement of case (pleading) under CPR 17 and describes the process of applying for permission. This Practice Note should be read in conjunction with the following Practice Notes: • Amending a statement of case—introduction

This flowchart sets out the steps to be taken to amend an application for divorce or civil partnership dissolution proceedings in relation to proceedings issued before 6 April 2022. Such applications are not impacted by the coming into force of the Divorce, Dissolution and Separation Act 2020 (DDSA 2020) on 6 April 2022, nor the consequential changes to procedure and will continue to progress under the pre-DDSA 2020 law. To access detailed practical guidance on

Dispute Resolution analysis: The CPR allows a claim form to be amended prior to service without court permission, but does the amended claim form need to be sealed prior to service? The claimant had worked on the basis that there was no such requirement and Hacon J was not convinced that the claimant was wrong. However, a nameless judge, on reviewing the court file, had required the claimant to serve a sealed amended claim form—something which it was unable to do within the four-month time period provided for in Part 6. Hacon J allowed relief from sanctions applying the three stage test in Denton.

This Practice Note explains how to seek to amend or re-open a court’s judgment. It looks at the timing for the review of judgments and the type of amendments that can be sought, being amendments under the slip rule, material amendments by the judge or material amendments requested by a party with examples as to how courts have approached such applications. Handing down of judgments Judgments are handed down following the end of a trial or other hearing. This may be done orally, straight after the hearing or trial, known as an ex tempore judgment (which may also be written up as judgment transcript), or some time after the trial as a written judgment, known as a reserved judgment. For more information on reserved judgments, see Practice Note: Reserved judgments—purpose and restrictions. The judgment will contain the judge’s reasoning and decision. In some cases, judgments may also contain consequential orders such as an order about costs or directions on how costs should be dealt with. There is however no obligation on the court to circulate a draft judgment.

The need for rectification Mistakes all too often arise when drafting pension scheme documentation, amending them and/or recording the exercise of trust powers. Self-help is usually out of the question because mistakes of this nature cannot generally be rectified retrospectively by using the amendment power in the scheme, where to do so would adversely affect rights accrued up to the date of such amendment or otherwise change the incidence of tax. This is the case because, in general, ss 67–67I of the Pensions Act 1995 (PA 1995) prohibit detrimental amendments being made to members’ subsisting rights without their consent or an actuary certifying that a member’s rights have been maintained. Indeed, it may be that a mistaken modification to the terms of a pension scheme’s governing documentation has the inadvertent effect of adversely affecting members’ subsisting rights, such that without a remedy it would be void or voidable (depending on the nature of the modification and, given the changes to s 67 made overtime, when it occurred) as infringing section 67 and/or

Private Client analysis: This case examined how the charitable objects of Harrow School and The John Lyon School could be amended in principle. The court held that the schools' objects continued to be those that were set out in the 1572 Royal Charter by which Harrow School was established, despite the undertaking of the original corporation having been transferred to another body in the 19th century. Consequently, any amendments to the objects could only be made by the court (or the Charity Commission) giving effect to a scheme under section 68 of the Charities Act 2011 (ChA 2011) or by the charity exercising the statutory power of amendment set out in ChA 2011, s 280C, in both cases subject to approval by Order in Council. The court also found that ChA 2011, s 75ZA does not enable the court (or the Charity Commission) to make a scheme inconsistent with a Royal Charter or statute. This reaffirmed the ‘higher authority principle’ confirming that the scheme-making jurisdiction of the court cannot override a Royal Charter or statute but may only supplement it. Written by Andrew Mackie, managing associate at Foot Anstey LLP.

What are performance conditions and why might they need amending? A performance condition is a pre-set condition which must be satisfied before the award holder is able to benefit from the option or award, and is therefore most often linked to the vesting of the award or the exercisability of the option (as applicable). Performance conditions can relate to anything, but commonly relate to: • the performance of the company as a whole • the performance of part of the company or a certain business of the company (ie the business in which the employee is employed) • the individual performance of the particular employee award holder, and/or • the performance of a particular team (project team or more permanent team) Performance conditions can be absolute or relative. For example, conditions which are linked to corporate performance can be absolute (in reference to the company itself) or relative (comparing the performance of the company with a group of similar companies or a financial index such as the

Restructuring & insolvency analysis: The court considered a contested application by the joint liquidators of CL Realisations 2020 Ltd (the ‘Company’) for permission to amend their claims against two directors of the Company. The originating application had been grounded on sections 212 (summary remedy against delinquent directors etc) and 238 (transactions at an undervalue) of the Insolvency Act 1986 (IA 1986). It had been issued on a protective basis, without a witness statement, to avoid being statute-barred. The liquidators filed their amendment application at the same time as their detailed particulars of claim.

Reasons for amending security documents and key risks Reasons for amending a security document There are situations where parties may consider amending security documents. Common examples include: • the parties want to make changes to the obligations being secured • the chargee wants to assign or novate its security following a transfer of the debt • the parties want to charge additional assets or change the nature of an existing charge (eg from a floating charge to a legal mortgage), and/or • the parties want to correct a mistake or document an amendment to what has been agreed Parties may consider that amending a security document may be cheaper and easier than putting a new security document in place. Key risks of amending security documents New security?: Depending on the type of amendment, there is a risk that a liquidator or administrator could argue that new security has been created risking the security being set aside (see Practice Note: Introductory guide to antecedent transaction claims—considerations for lending transactions). Registration at Companies House: The Companies

UK tax-advantaged share options are granted under written arrangements which satisfy the legislative requirements contained in Part 7 and the relevant Schedules of the Income Tax (Earnings and Pensions) Act 2003 (ITEPA 2003). The arrangements must comply with the relevant sections of ITEPA 2003 to be able to benefit from the applicable beneficial tax treatment. The different types of tax-advantaged share option plans are: • enterprise management incentives (EMI) schemes • company share option plans (CSOPs), and • save as you earn (SAYE) schemes There are certain circumstances where a company (or an option holder) may consider the possibility of amending share options which have already been granted. These include, but are not limited to circumstances where: • the option is drafted on the basis that it will lapse in certain circumstances (eg where the option holder leaves employment with the company for a specific reason or the performance conditions attached to the option have become impossible to satisfy). The company may wish to amend

The City of London Law Society (CLLS) published a standard form letter of intent in 2007. A copy is available at the CLLS website. Note also that the CLLS published an updated version of the Letter of Intent in 2024 which included some corrections to the clauses which need to be amended as stated below. See News Analysis: City of London Law Society publishes

THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL PENSION SCHEMES This Practice Note contains references to case law of the Court of Justice of the European Union. For guidance on whether EU judgments are binding on UK courts, see Practice Note: Assimilated law — Assimilated case law. Amending the amendment power Any attempt to widen (or restrict) a scheme's amendment power can be fraught with legal issues and could be subsequently challenged as an invalid exercise of the scheme's power of amendment. It may also undermine the purpose of the power of amendment altogether. Ability to amend the power of amendment At its most basic level, the power of amendment can only be amended (either to remove or introduce restrictions) where the power of amendment allows for this. The power of amendment can only be used for the purpose for which it was conferred. If the power to amend the trust deed or rules sits in the trust deed for example, then an amendment power giving the ability ‘to