Amendment of Pleadings
Pursuant to
r 36.03 a party may, without leave, amend any pleading served by him once at any time before the close of pleadings but, unless the court otherwise orders, or all other parties consent, may not amend it at any other time.
Also note that a party who amends a pleading or other document without leave must, also pay the costs of and occasioned by the amendment:
r 63A.17(1). Amended pleadings must be appropriately described. A first amendment is an Amended Statement of Claim. A second amendment is a Further or Second Amended Statement of Claim. If there is further amendment it is a Third Amended Statement of Claim and so on. If you get to that point you have a problem with the claim. The essential, as always, is to keep the identity of each document clear.
As to amendment generally see
Order 36.As noted at “Striking out of Pleadings” a plaintiff may, without leave, amend a statement of claim once before the close of pleadings, and at any other time with leave or with the consent of all parties: r.36.03. It is sensible to seek consent by delivering a proposed amended pleading to the other parties and asking them to consent to the amendment. In cases of minor amendments, or amendments which are uncontroversial, that can save the need for an application to the Court.
Parties must plead to amended pleadings within 30 days after service:
r.36.06.
Amendments may be made to correct the names of parties:
r. 36.01..
An order giving leave to amend a document ceases to have effect:
(a) At the expiration of the time limited by the order for making the amendment, or
(b) If no time was limited, 21 days from the date on which the order:
r. 36.02.
Amendments may be disallowed. A defendant may consider that amendments made before the close of pleadings do not remedy the defects in the pleading, and may apply for an order , within 21 days after service of the amended pleading, pursuant to
r . 36.04, to disallow the amendment wholly or in part.
Mode of Amendment generally
Technique of Amendment
One must file and serve the amended pleading, marking the amended document so that the amendment is clear.
Rule 36.05(4) requires that each amendment must be made in such a way as to distinguish it from the original pleading and from any previous amendment.
In former times, this was achieved by using red ink (generally available on typewriters) or by underlining the amendment, then using a double underscore in a second amendment. In these days of colour printers and word processors which can render print in bold and italics with ease, additional methods of distinguishing amendments can be seen. It is to be remembered, however, that colour will only be reproduced by a colour photocopier, and so will be lost in copying on a half-tone copier. Nothing irritates a judge more than being unable to tell documents apart.
Rule 36.05 requires that an amendment to a document must be made by:
(a) amending the filed copy of the pleading or filing an amended copy,;
(b) serving a copy of the amended pleading; and
(c) the Registrar indorsing the filed copy with the date of amendment, or the filed copy with the dated of filing.
Suing a defendant in a business name
A plaintiff suing a defendant under a business name under
r. 17.10 need not conduct the proceedings against the defendant in his or her own name: but the defendant must appear individually:
r. 17.04
Addition or Joinder Of Parties
Order 36 does not allow the joinder of new parties. Such an application must be made under
r. 9.06, which allows the addition, removal or substitution of parties who are ‘proper or necessary’.
An application to add a person as a plaintiff in a proceeding, which must be made on application to an Associate Judge, supported by affidavit
(r. 9.07(2)) requires that person’s consent to be given in writing or as the Court orders: r. 9.07(1).
If leave to add a party is granted, the writ or originating process must be amended within the time specified in the order, otherwise within 10 days:
r. 9.11(1). 