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

Prev Next Index