Pleadings Issues
Failure to Deliver
If a party to litigation does not deliver the requisite pleading within the time limit required, the opposing party may apply to court for a judgement in default. The judegment may be given on the basis of the pleading has not been delivered.
Where the statement of claim is not delivered when due, the defendant may give notice of his intention to apply to court to dismiss the action for want of prosecution. If the statement of claim is not delivered within the 21 days required by letter, an application may be made by motion. If within seven days of service of the notice, a claim is delivered and filed with a copy of the motion, the motion is struck out and a fixed payment of costs is made to the defendant.
If the motion is listed, the court will have discretion as to whether to strike out proceedings or grant an extension of time, subject perhaps to a costs order. If the plaintiff has been given reasonable notice of the proposed motion, the person the defendant will generally be given the cost of it. An extension of time might be expected on the first application.
If a second application is required, the court is likely to dismiss the claim unless there are special circumstances which explain and justify the failure to deliver the statement of claim. In the case of each application, the court may grant a further period in which to file a statement of claim.
Judgement in Default
Where the claim is for a liquidated sum and the defence is not filed, judgment for the sum due may be obtained by filing affidavits in the central office. See the separate sections in relation to the summary debt collection proceedings.
If the claim is for recovery of land or goods, judgement may be granted summarily. If any other element of claim is involved, which requires adjudication, such as the assessment of damages by the court, then judgment may be obtained for the part which may be summarily proved. An application may be made to court for judgment for assessment of damages in respect of the balance.
Where a claim is made for a sum to be assessed ( i.e. an unliquidated claim) the plaintiff may apply to court for judgment, where no defence is delivered. He must first write to the defendant giving him notice of his intention to so apply, offering to consent to late delivery of the defence within 21 days. If this is not done, the motion for judgment in default of defence may issue. At least 14 days’ notice must be given. If defence is entered within 7 days and filed, the defendant pays a fixed sum for costs, equivalent to that above.
The application for judgment sets out the order sought. This may be for an order granting judgment for a sum, an order setting down the matters for assessment before a judge or if applicable, before a judge and jury.
If equitable relief is sought, the application must specify the requisite grounds, so as to persuade the court to exercise its discretion to grant it. Equitable relief may be granted of the motion if the court is satisfied on the basis of the proofs or an affidavit.
Relief of Defendant
The court may grant further time to the defendant on an application for a judgement in default of defence. It may be granted on terms. If the second application for a judgement in default of defence is made or necessitated, then the plaintiff will be given judgement unless there are special circumstances justifying the failure.
A judgement obtained in default, may be set aside on application by the other party. The court may make such order as to costs, as it may think fit. It must be satisfied that special circumstances exist to justify setting aside. There must be good reason to explain and justify the failure to file defence.
Amendment of Pleadings
Pleadings may be amended where this is necessary so that the real matters in issue between the parties may be decided in accordance with the interest of justice. An amendment may be made without consent of court, within a certain time of the pleading being delivered. An amendment may be made at any time on application to court, by the court.
An amendment may be made without consent once. The claimant may amend the statement of claim up to the time limit for a reply or if no defence is delivered within four weeks of the last appearance by a defendant. A similar right applies to the defendant who makes a counter-claim or claim to set off. It may be amended within six days of delivery of the reply or the time allowed for delivery. The costs are borne by the person making the amendment, unless the court decides otherwise.
When an amendment is made, application may be made to court within eight days, to disallow the amendment. The courts may disallow the amendment, or allow it subject to such terms, including as to costs, as it deems just.
The court may at any stage allow either party to alter or amend its endorsement of claim or pleadings in such a manner and on such terms as may be just. Alterations and amendments shall be made as may be necessary for the purpose of determining the real questions and controversy between the parties. Amendments will generally be allowed where an error has been made in good faith, unless the opposing party would be unduly prejudiced.
Permissible Amendments
An amendment is generally permissible, where it is within the scope of the original pleadings. An amendment which alters the nature of the proceedings, such as by introducing a new claim, may be allowed provided, it is relevant and within the scope of the proceeding. An amendment may allow, permitting case which is significantly different to the original. If, however, it substitutes an entirely new case, it is unlikely to be permitted.
Prejudice in the context of what might be sufficient to refuse consent, does not refer to the strength or weakness of the other party’s case. It is accepted that most amendments are likely to against the interest of the other party. Prejudice, in this context means that the opposite party is prejudiced, relative to the position you would have been in, if the claim had been set out in the original proceedings. This may, for example, arise from the destruction of evidence, delay or the unavailability of witnesses.
Amending Pleadings
Where a claim is sought to be amended after the time limit for commencement of proceeding, a higher standard may be required. If the effect of the amendment is to set up a claim which is statute barred, this circumvent the Statute of Limitation. Generally, such amendments will not be permissible. Where, however, the claim involves an alternative ground of liability based on substantially the same facts, the court is likely to be more willing to make an amendment, even after the Statute of Limitation period has expired.
The court will have regard to the conduct of the applicant. If the applicant has delayed unduly in making the application for amendment, this will be factor against him. If there is an objectively justifiable reason, (e.g. evolution of the law in the interim), this will favour the amendment.
The court may impose terms and conditions on the applicant, when granting leave to amend. The other party will generally be entitled to costs in connection with the application, and arising from the amendment itself. The party seeking the amendment may have to indemnify that party for the additional expense incurred by him. If a hearing or trial is postponed, then the party seeking the amendment will have to pay the cost occasioned and wasted.
An application for amendment can even be made in the course of the hearing itself. The courts do not look favourably on amendment to pleadings made in the course of the trial itself. However exceptionally, it may be permitted. The opposing party must be given an opportunity to meet the case against him, when pleadings are amended. This may require an adjournment or postponement of the trial..
It is possible in principle, to amend proceedings right up the date of judgement and beyond. However, fair procedures must be followed in relation to the amendment and its effects. The party must as a minimum be given a notice of the claim and the opportunity to defend it properly. When pleadings are amended, they must be re-delivered to the opposing parties.
Defective Pleadings
A claim may be struck out, if it is not disclose a reasonable cause of action. An action or defence may be struck out as frivolous or vexatious. Courts have discretion to strike out pleadings that are scandalous, prejudicial or unnecessary at any stage. Pleadings which tend to place necessary and scandalous matters on the court record may fall into this category. If pleadings are untrue or are deliberately calculated to be cause embarrassment or scandalise the other party or prejudicial to the trial, they may be struck out.
Unnecessary pleadings may be struck out where they are not necessary to the claim or defence. An application is made on notice to the other party. Scandalous pleadings introduce extraneous matters for motives unconnected with the bona fide prosecution of the litigation. It may be calculated to cause of distress or offence. Pleadings which are too vague to convey the case concerned, which introduce irrelevant or speculative matters without a basis in fact may be struck out. However defences may be made notwithstanding that they are mutually inconsistent.
Setting Aside Default Orders
Where an order is made in proceedings in default of the defendant entering a defence, an application may be made to court to set it aside. The application will not suspend the original order. The application to set aside must be based on a valid grounds, such as failure to follow the prescribed procedure, surprise, misrepresentation or fraud. The court has the discretion in relation to whether to set the order aside.
If the application is based on failure to comply with the rules, then the order will be readily set aside. Similarly, where the defendant has been properly served under the rules but has not had actual notice of the proceedings, the order is more likely to be set aside. In contrast, if the defendant has had noticed of the proceedings, they will be set aside, only if there is a justifiable reason. The applicant must give the court a reasonable and justifiable explanation as to how and why he failed to appear and defent the proceedings.
The defendant must show he has a good defence. It must be a good and bona fide defence, with a real prospect of success.
If an order is granted setting aside the order obtained in default, then the court may make such order as to costs as are appropriate. It may grant extensions of time and make such orders as are appropriate for the further conduct of the proceeding.