{"id":3920,"date":"2018-09-01T19:11:45","date_gmt":"2018-09-01T19:11:45","guid":{"rendered":"https:\/\/legalblog.ie\/pleadings-issues\/"},"modified":"2024-05-06T16:19:49","modified_gmt":"2024-05-06T16:19:49","slug":"pleadings-issues","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/pleadings-issues\/","title":{"rendered":"Amend &#038; Strike Out"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/pleadings-issues\/#Amendment_of_Pleadings\" title=\"Amendment of Pleadings\">Amendment of Pleadings<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/pleadings-issues\/#Permissible_Amendments\" title=\"Permissible Amendments\">Permissible Amendments<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/pleadings-issues\/#Amending_Pleadings\" title=\"Amending Pleadings\">Amending Pleadings<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/pleadings-issues\/#Defective_Pleadings\" title=\"Defective Pleadings\">Defective Pleadings<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/pleadings-issues\/#Strike_Out_by_Court\" title=\"Strike Out by Court\">Strike Out by Court<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/pleadings-issues\/#Order_Striking_Out\" title=\"Order Striking Out\">Order Striking Out<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Amendment_of_Pleadings\"><\/span>Amendment of Pleadings<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 An amendment may be made without consent of court, within a certain time of the pleading being delivered.\u00a0 An amendment may be made at any time on application to court, by the court.<\/p>\n<p>An amendment may be made without consent once.\u00a0 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.<\/p>\n<p>When an amendment is made, application may be made to court within eight days, to disallow the amendment.\u00a0 The courts may disallow the amendment, or allow it subject to such terms, including as to costs, as it deems just.<\/p>\n<p>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.\u00a0 Alterations and amendments shall be made as may be necessary for the purpose of determining the real questions and controversy between the parties.\u00a0 Amendments will generally be allowed where an error has been made in good faith, unless the opposing party would be unduly prejudiced.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Permissible_Amendments\"><\/span>Permissible Amendments<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>An amendment is generally permissible, where it is within the scope of the original pleadings.\u00a0 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. \u00a0An 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.<\/p>\n<p>Prejudice in the context of what might be sufficient to refuse consent, does not refer to the strength or weakness of the other party\\&#8217;s case. It is accepted that most amendments are likely to against the interest of the other party.\u00a0 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Amending_Pleadings\"><\/span>Amending Pleadings<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Where a claim is sought to be amended after the time limit for commencement of proceeding, a higher standard may be required.\u00a0 If the effect of the amendment is to set up a claim which is statute barred, this circumvent the Statute of Limitation. \u00a0Generally, such amendments will not be permissible. Where, however, the claim involves an alternative ground of liability based on \u00a0\u00a0substantially the same facts, the court is likely to be more willing to make an amendment, even after the Statute of Limitation period has expired.<\/p>\n<p>The court will have regard to the conduct of the applicant.\u00a0 If the applicant has delayed unduly in making the application for amendment, this will be factor against him.\u00a0 If there is an objectively justifiable reason, (e.g. evolution of the law in the interim), this will favour the amendment.<\/p>\n<p>The court may impose terms and conditions on the applicant, when granting leave to amend.\u00a0 The other party will generally be entitled to costs in connection with the application, and \u00a0arising from the amendment itself.\u00a0 The party seeking the amendment may have to indemnify that party for the additional expense incurred by him.\u00a0 If a hearing or trial is postponed, then the party seeking the amendment will have to pay the cost occasioned and wasted.<\/p>\n<p>An application for amendment can even be made in the course of the hearing itself.\u00a0 The courts do not look favourably on amendment to pleadings made in the course of the trial itself.\u00a0 However exceptionally, it may be permitted. The opposing party must be given an opportunity to meet the case against him, when \u00a0pleadings are amended.\u00a0 This may require an adjournment or postponement of the trial..<\/p>\n<p>It is possible in principle, to amend proceedings right up the date of judgement and beyond.\u00a0 However, fair procedures must be followed in relation to the amendment and its effects.\u00a0 The party must as a minimum be given a notice of the claim and the opportunity to defend it properly.\u00a0 When pleadings are amended, they must be re-delivered to the opposing parties.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Defective_Pleadings\"><\/span>Defective Pleadings<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A claim may be struck out, if it is not disclose a reasonable cause of action.\u00a0 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.\u00a0 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.<\/p>\n<p>Unnecessary pleadings may be struck out where they are not necessary to the claim or defence.\u00a0 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.\u00a0 It may be calculated to \u00a0cause of distress or offence.\u00a0 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.\u00a0 However defences may be made notwithstanding that they are mutually inconsistent.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Strike_Out_by_Court\"><\/span>Strike Out by Court<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>The Court may, on an application by motion on notice, strike out any claim or part of a claim which:<\/p>\n<ul>\n<li>discloses no reasonable cause of action, or<\/li>\n<li>amounts to an abuse of the process of the Court, or<\/li>\n<li>is bound to fail, or<\/li>\n<li>has no reasonable chance of succeeding.<\/li>\n<\/ul>\n<p>The Court may, on an application by motion on notice, strike out any defence or part of a defence which:<\/p>\n<ul>\n<li>discloses no reasonable defence to the action, or<\/li>\n<li>amounts to an abuse of the process of the Court, or<\/li>\n<li>is bound to fail, or<\/li>\n<li>has no reasonable chance of succeeding.<\/li>\n<\/ul>\n<h3><span class=\"ez-toc-section\" id=\"Order_Striking_Out\"><\/span>Order Striking Out<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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\u00a0 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.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-3920\" data-postid=\"3920\" class=\"themify_builder_content themify_builder_content-3920 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>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.\u00a0 An amendment may be made without consent of court, within a certain time of the pleading being delivered.\u00a0 An amendment may be made at [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[425],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/3920"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=3920"}],"version-history":[{"count":8,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/3920\/revisions"}],"predecessor-version":[{"id":36178,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/3920\/revisions\/36178"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=3920"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=3920"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=3920"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}