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

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