Day 052 - 21 Nov 94 - Page 06
1 late the proposed amendment, the amendment should be
2 allowed if it can be made without injustice to the other
3 side. There is no injustice if the other side can be
4 compensated by costs'."
5
6 Then there is a whole raft of authorities cited. At the
7 end of the paragraph: "An amendment ought to be allowed if
8 thereby 'the real substantial question can be raised
9 between the parties', and multiplicity of legal proceedings
10 avoided".
11
12 My Lord, over the page: "On the other hand, it should be
13 remembered that there is a clear difference between
14 allowing amendments to clarify the issues in dispute and
15 those that provide a distinct defence or claim to be raised
16 for the first time". My Lord, it is our submission that
17 what we are proor asking your Lordship to allow us to do is
18 the first of those alternatives, to clarify the issues in
19 dispute.
20
21 The White Book goes on: "Leave to amend will be given to
22 enable the defendant to raise a defence arising from a
23 change in the law since the commencement of the proceedings
24 affecting the rights of the parties or the relief or remedy
25 claimed by the plaintiff, even though this might lead to
26 additional delay and expense and a much longer trial, e.g.
27 That the plaintiffs have acted in contravention of Article
28 85" and so on, "of the Treaty of Rome and the Application
29 des Gaz S.A. V. Falks Veritas Ltd (1974) Ch. 381.
30
31 "In a copyright action, leave may be given to amend the
32 statement of claim to include allegations of similar fact
33 evidence of the defendant having copied the products of
34 other persons.
35
36 Where a proposed amendment is founded upon material
37 obtained on discovery from the defendant and the plaintiff
38 also intends to use it for some purpose ulterior to the
39 pursuit of the action", and then there is a parenthesis,
40 "the
41 plaintiff should not be allowed to amend a statement of
42 claim endorsed on the writ and so in the public domain but
43 instead the amendment should be made as a statement of
44 claim separate from the writ". My Lord, that does not
45 affect this particular case.
46
47 My Lord, then there is a further passage of notes on page
48 375 at 20/5-8/11: "At the trial or hearing - leave is
49 sometimes given to amend at the hearing ... But the Court
50 will not readily allow at the trial an amendment, the
51 necessity for which was abundantly apparent months ago, and
52 then not asked for or which seeks to make substantial
53 changes as to the amount of damages claimed; nor will an
54 amendment be allowed at the hearing which for the first
55 time introduces a charge of fraud. If an amendment is
56 allowed at the trial, an opportunity should be given to
57 counsel to consider it and adduce evidence and counsel
58 should, if necessary, apply for an adjournment for that
59 purpose. Often, however, the change of front has been
60 anticipated, and a postponement is not insisted on... In
