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AMENDMENT OF PLEADINGS:



General Principle.
Rules relating to amendments of pleadings in the context of the principle that: ‘one is bound by their own pleadings’.  If one is going to be bound by their pleadings, then they should be allowed to amend them whenever necessity arises and subject to the rules relating to the amendments.

1.            The object of amendment is to ensure that litigation between parties is conducted not on a false hypothesis of facts but on the basis of the true state of things;  This principle originated in the case of Baker V. Midway Ltd.
One of the parties wanted to amend and the issues that came before the court was whether or not to allow the amendment.  The court after considering the facts of the case said that the proposed amendment raised a vital point and unless it was adjudicated upon, the real matter in issue between the parties would not be decided.   The court went on to say that if the amendment was not allowed the case would proceed on an assumed state of facts which would be completely at variance with the remedies that they were seeking and the court allowed the amendments for that purpose.

2.            The Law relating to amendments is intended to make effective the function of the court.  The court becomes effective by determining cases depending on the true substantive merits of the case i.e. amendments allow the court to have regard for substance than force and the parties to free themselves from the technicalities of procedure.

3.            The Rule of Amendments also assists parties when new information comes to light i.e. if you hire a new lawyer.  A new lawyer might have a new strategy and a new legal theory.

4.            Amendments also allow the court to deal with the real issues in controversy between the parties.  E.g.  Cropper V. Smith  the court said ‘I think that it is a well established principal that the object of the courts is to decide the rights of the parties and not to punish them for mistakes which they make in the conduct of their case.  The courts do not exist for the sake of discipline but for the sake of deciding matters in controversy.  I do not regard such amendment as a favour or of grace.’ 

The rules allow for correction so that injustice is not occasioned.

RULES IN AMENDMENTS AS SET OUT IN THE CIVIL PROCEDURE RULES Order 8

Under Order 8 many amendments may be made without the leave of the court.   You are allowed to make amendments of your pleadings once before the pleadings are closed.  Pleadings are closed 14 days after the last pleadings have been served. If pleadings have closed you must seek the leave of the court to amend.    There are occasions when you must seek the leave of the court to amend

(a)          Where the amendment consists of addition, omission or substitution of a party;
(b)          Where the amendment consists of alteration of the capacity in which a party sues or is sued;
(c)          Where the amendment constitutes addition or substitution of a new cause of action.

THE PROCEDURE FOR APPLYING FOR LEAVE


Application of leave to amend is made by way of Chamber Summons and in most cases you can make an oral application in court but it is always safer to follow the oral application with a written one.   Whenever the court grants you leave to amend, it will give you a time frame i.e. if the court tells you you should amend your pleadings in 14 days, if you don’t do so, that order to amend the leave expires.  The court has the inherent power to extend that time.

POWER OF COURT TO GRANT LEAVE TO AMEND

Rule 3 of Order 8

The court may at any stage of any proceedings at such manner as it may direct allow a party to amend.  You can amend your pleadings any time before judgment.  It is even possible to ask to amend pleadings at the Court of Appeal but this is only done under special cases.  The general rule of practice is that the court allows late amendments very sparingly.  Always seek to amend your pleadings as soon as is practicable.  Whenever you apply for leave to amend the court will take into account the time within which you have brought the amendment, the court will want to know why you have for instance applied for an amendment very late in the course of the trial.  The court will also look to see that the amendment is brought in good faith.




GUIDELINES THAT THE COURTS FOLLOW


1.            Good faith – the court will not grant leave to amend if it is not sought in good faith;  The court will be looking to see that the amendment has arisen out of an honest mistake or bona fide omission;
2.            The application should be prompt and within reasonable time;  if the court feels that you have waited so long to make the necessary application, they will deny it when applied for Clark V. Wray;
3.            If leave to amend is granted just before the trial, then the court should grant an adjournment. 

Associated Leisure Limited V. Associated Newspapers Ltd.

In this case the court allowed amendments to allow one of the parties to raise a plea of justification in a defamation suit but because the amendment had to do with somebody bringing in a new defence the court had to allow it.                           

4.            The exact amendment should be formulated and stated in writing at the time the amendment is requested.  If you make an oral application to amend, then you should be able to formulate it even if not in the exact words as the court will seek to know the effect of the amendment on the matter.

5.            Amendments should be allowed where the claim is at variance with the evidence at trial; The time within which a person draws up the plaint and the time at which the prepare for the trial there is a big difference and sometimes witness say things at the time of the trial that do not reflect the evidence.

6.            You may appeal against the decision of the lower court to reject an amendment.

7.            The amendment should not be allowed to occasion injustice.  It is not injustice if it is capable of being compensated by costs.  Croper V. Smith.      ‘’I have found in my experience that there is one panacea that heals every soul. In other words if the injustice is capable of being compensated ‘I have much to do in chambers with applications to amend … my practice have always been to give leave to amend.  The courts always give reasons when they deny leave to amend so that the appellate court can decide on whether the lower court was justified in denying the amendments.

DRAWING AMENDMENTS:

All amendments will be shown by striking out in red ink but it must always remain legible.  The court must be able to see what was there previously and the new words must be underlined.  Petition of Andrew V. Winifred.
The plaint will be headed as AMENDED PLAINT:  A petition is also a pleading.   The 1st date of the pleading must be indicated and then struck out with the words amended and the new date given.  In the first petition of Andrew, he did not set out the particulars yet the law requires that one must give particulars in the plaint.  Andrew made an application to amend the petition to include the particulars.

 
 
 

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