Master Birkett

1.2: Purpose and intention of these rules
3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
3.67: Close of pleadings
13.6: Pleadings: general requirements

Case Summary

The Defendants applied to amend their Statement of Defence and Counterclaim over 10 years after the close of pleadings and after a Trial had been set. Master Birkett noted that the effect of the amendments would be to add parties to the Action, add a new cause of action, and withdraw the admission of a paragraph in the Plaintiff’s Statement of Claim.

Master Birkett noted that Rules 3.62 and 3.65 govern when the Court may allow amendments to pleadings. Further, Rule 1.2 sets out that the Rules should provide a means through which Claims can be resolved in a way that is fair, timely and cost effective, and to identify the real issues in dispute. Master Birkett explained that if there is modest evidence in support of amending a pleading, it may be amended regardless of how careless or late the party seeking the amendment is, unless (a) the amendment would cause serious prejudice to the opposing party that is not compensable by costs; (b) the amendment is hopeless; (c) the amendment seeks to add a new cause of action or party after the expiry of a limitation period (unless permitted by statute); or (d) there was bad faith in not pleading the amendment in the first instance. The decision to allow an amendment is discretionary, and the amount of evidence required to obtain an amendment is low. The party seeking the amendment is not required, for example, to show that it meets the test for Summary Judgment. Master Birkett noted that, although amendments are “relatively easy” to obtain even after the close of pleadings, the passage of time is still relevant to the Court’s determination. Merely producing one piece of evidence on each point may not be enough evidence to support an amendment.

Master Birkett assessed the evidence adduced by the Defendants and held that it met the low evidentiary threshold to support the proposed amendments and found that the requested amendment was not hopeless. However, the Plaintiff would suffer serious, non-compensable prejudice if the amendments were allowed since the limitations period to add new Defendants had passed. As a result of the Defendants’ delay in seeking to amend, certain relevant and material evidence would be unavailable from third party corporations and the Parties’ witnesses would suffer from fading memories regarding the new allegations in the proposed amendments. Master Birkett concluded that withdrawing the admission in the Statement of Defence would result in non-compensable and substantial delay, as well as additional work, which could not be fully compensated by Costs. As such, the Defendants’ Application was dismissed.

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