Day 052 - 21 Nov 94 - Page 07
1 such cases it often happens that nothing is said about
2 amendment and the case continues as though the issues
3 which are being fought had been duly raised on the
4 pleadings.
5 Where an issue which is not raised on the pleading is
6 nevertheless opened at the trial and all the evidence
7 called so that the Court is seized of all relevant material
8 and the defendants do not assert that they were prejudiced
9 by the defect in the pleading", my Lord, we would insert
10 there "or where the defendants are unable to assert that
11 they have been prejudiced by the defect in the pleading";
12 then it goes on: " ... even though the charge, being one
13 of professional negligence, ought to have been pleaded in
14 the first instance clearly and with particularity". That
15 case of Buckland v. Farmar & Moody (1979) 1 W.L.R. 221 is
16 in that little clip of authorities that I have handed up.
17
18 "On the other hand, if the trial judge should extend some
19 latitude in relation to the cross-examination, this will
20 not per se broaden the pleaded issues, but it may give rise
21 to a successful application for leave to amend if such a
22 cross-examination proves fruitful.
23
24 But the opponent must always be allowed an opportunity of
25 meeting the new matter, if he reasonable asks for it. It
26 is the duty of any counsel who applies at the trial for
27 leave to amend his pleading'to formulate and state in
28 writing the exact amendment for which he asks'. The terms
29 of the amendment should also be submitted at the earliest
30 possible time to the other parties and handed to the Judge
31 when the application is made. The Court is reluctant to
32 give leave at a later stage, unless there is strong
33 justification for doing so.
34 The Court has power to allow the amendment or re-amendment
35 of pleadings after the conclusion of the evidence and even
36 after the closing speeches of counsel, where no injustice
37 or prejudice would be occasioned to either party and where
38 it is necessary to formulate the real issues between the
39 parties which did jot appear from the original pleadings."
40 My Lord, that case of Smith v. Baron (The Times)
41 1st February 1991 is also in that clip of authorities.
42
43 "Where the amendment asked for is a substantial one, such
44 that the plaintiff could not succeed without, it he will in
45 a proper case be only allowed to amend at trial on payment
46 of all costs incurred up to date, and any costs thrown away
47 by reason of the amendment. And a plaintiff who accepts an
48 order for amendment on such terms cannot afterwards appeal
49 against it. In some cases the Judge will require evidence
50 that the party applying to amend could not with reasonable
51 diligence have discovered the new facts sooner."
52 My Lord, I comment there: This, of course is not a case
53 where we have discovered some new facts, sat on them and
54 then applied for leave to amend to plead a new case. What,
55 in essence, we are asking your Lordship to allow us to do
56 is to clarify or plead with greater precision that which
57 already appears in the Statement of Claim.
58
59 "Where a party obtains leave to amend at the trial which
60 results in the adjournment of the trial, he will generally
