Amend & Strike Out

Amendment of Pleadings

Pleadings may be amended where this is necessary so that the real matters in issue between the parties may be decided in accordance with the interest of justice.  An amendment may be made without consent of court, within a certain time of the pleading being delivered.  An amendment may be made at any time on application to court, by the court.

An amendment may be made without consent once.  The claimant may amend the statement of claim up to the time limit for a reply or if no defence is delivered within four weeks of the last appearance by a defendant. A similar right applies to the defendant who makes a counter-claim or claim to set off. It may be amended within six days of delivery of the reply or the time allowed for delivery. The costs are borne by the person making the amendment, unless the court decides otherwise.

When an amendment is made, application may be made to court within eight days, to disallow the amendment.  The courts may disallow the amendment, or allow it subject to such terms, including as to costs, as it deems just.

The court may at any stage allow either party to alter or amend its endorsement of claim or pleadings in such a manner and on such terms as may be just.  Alterations and amendments shall be made as may be necessary for the purpose of determining the real questions and controversy between the parties.  Amendments will generally be allowed where an error has been made in good faith, unless the opposing party would be unduly prejudiced.

Permissible Amendments

An amendment is generally permissible, where it is within the scope of the original pleadings.  An amendment which alters the nature of the proceedings, such as by introducing a new claim, may be allowed provided, it is relevant and within the scope of the proceeding.  An amendment may allow, permitting case which is significantly different to the original. If, however, it substitutes an entirely new case, it is unlikely to be permitted.

Prejudice in the context of what might be sufficient to refuse consent, does not refer to the strength or weakness of the other party\’s case. It is accepted that most amendments are likely to against the interest of the other party.  Prejudice, in this context means that the opposite party is prejudiced, relative to the position you would have been in, if the claim had been set out in the original proceedings. This may, for example, arise from the destruction of evidence, delay or the unavailability of witnesses.

Amending Pleadings

Where a claim is sought to be amended after the time limit for commencement of proceeding, a higher standard may be required.  If the effect of the amendment is to set up a claim which is statute barred, this circumvent the Statute of Limitation.  Generally, such amendments will not be permissible. Where, however, the claim involves an alternative ground of liability based on   substantially the same facts, the court is likely to be more willing to make an amendment, even after the Statute of Limitation period has expired.

The court will have regard to the conduct of the applicant.  If the applicant has delayed unduly in making the application for amendment, this will be factor against him.  If there is an objectively justifiable reason, (e.g. evolution of the law in the interim), this will favour the amendment.

The court may impose terms and conditions on the applicant, when granting leave to amend.  The other party will generally be entitled to costs in connection with the application, and  arising from the amendment itself.  The party seeking the amendment may have to indemnify that party for the additional expense incurred by him.  If a hearing or trial is postponed, then the party seeking the amendment will have to pay the cost occasioned and wasted.

An application for amendment can even be made in the course of the hearing itself.  The courts do not look favourably on amendment to pleadings made in the course of the trial itself.  However exceptionally, it may be permitted. The opposing party must be given an opportunity to meet the case against him, when  pleadings are amended.  This may require an adjournment or postponement of the trial..

It is possible in principle, to amend proceedings right up the date of judgement and beyond.  However, fair procedures must be followed in relation to the amendment and its effects.  The party must as a minimum be given a notice of the claim and the opportunity to defend it properly.  When pleadings are amended, they must be re-delivered to the opposing parties.

Defective Pleadings

A claim may be struck out, if it is not disclose a reasonable cause of action.  An action or defence may be struck out as frivolous or vexatious. Courts have discretion to strike out pleadings that are scandalous, prejudicial or unnecessary at any stage. Pleadings which tend to place necessary and scandalous matters on the court record may fall into this category.  If pleadings are untrue or are deliberately calculated to be cause embarrassment or scandalise the other party or prejudicial to the trial, they may be struck out.

Unnecessary pleadings may be struck out where they are not necessary to the claim or defence.  An application is made on notice to the other party. Scandalous pleadings introduce extraneous matters for motives unconnected with the bona fide prosecution of the litigation.  It may be calculated to  cause of distress or offence.  Pleadings which are too vague to convey the case concerned, which introduce irrelevant or speculative matters without a basis in fact may be struck out.  However defences may be made notwithstanding that they are mutually inconsistent.

Strike Out by Court

The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which is unnecessary or which amounts to an abuse of the process of the Court, or which may unreasonably prejudice or delay the fair trial of the action; and may in any such case, if it thinks fit, order the costs of the application to be paid as between solicitor and client.

The Court may, on an application by motion on notice, strike out any claim or part of a claim which:

• discloses no reasonable cause of action, or
• amounts to an abuse of the process of the Court, or
• is bound to fail, or
• has no reasonable chance of succeeding.

The Court may, on an application by motion on notice, strike out any defence or part of a defence which:

• discloses no reasonable defence to the action, or
• amounts to an abuse of the process of the Court, or
• is bound to fail, or
• has no reasonable chance of succeeding.

Order Striking Out

The Court may, in considering an application , have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application. Where the Court makes an order  it may order the action to be stayed or dismissed, as may be just, and may make an order providing for the costs of the application and the proceedings accordingly. It may make an order giving judgment in such terms as it considers just, and may make an order providing for the costs of the application and the proceedings accordingly.