In Irish plenary proceedings the statement of claim sets out the detail of a plaintiff's case. Once formally delivered, a party can amend the statement of claim only by obtaining leave of the court. A recent decision(1) has usefully summarised the relevant legal principles surrounding the drafting and amendments of statements of claim. Although the case involves no new legal propositions, it brings all the relevant principles together in one judgment.
The decision derived from an application by the plaintiff to amend its statement of claim in proceedings – in a style and form considered by Judge Birmingham to be "radical" – by deleting the entirety of the document and substituting completely new wording. The plaintiff, a property development company, acquired certain lands with development potential, through which ran a 110 kilovolt electricity line operated by the defendant. The plaintiff subsequently obtained planning permission to develop the land, but claimed that the defendant imposed a restriction on the development of a corridor of the land because of the electricity line. As a result, the development was curtailed.
Two competing voluntary compensation codes exist for parties affected by electricity issues. The first is a statutory scheme established under the Electricity Supply Act 1927, which sees compensation addressed by a property arbitrator. Separately, there is a non-statutory scheme (which has its roots in an agreement between the defendant and the Irish Farmers Association) by which compensation can be assessed by an arbitrator appointed by the president of the Chartered Surveyors of Ireland. The plaintiff submitted its claim under the former, but the arbitration ended when the arbitrator concluded that he lacked jurisdiction over the dispute. The plaintiff then commenced the instant proceedings which complained about the loss suffered by the plaintiff through the prevention of development of its lands and the costs incurred by it in the aborted arbitration, which it said had been induced by the defendant. While the litigation progressed on the originally pleaded basis, the plaintiff sought to amend the statement of claim to include a specific plea regarding legitimate expectation.
The court noted that the courts have previously considered on many occasions amendment applications, and as a result there is a considerable body of authority. The plaintiff's counsel summarised the principles derived from this authority and the court adopted it in the following terms:
- Parties enjoy complete freedom of pleading. In the ordinary course of events a plaintiff is free to choose how to plead his or her case. The plaintiff cannot be told how to formulate and present his or her claim in absent pleas that are scandalous and vexatious.
- Order 28 of the Rules of the Superior Courts (the rule that deals with amendments) is intended to be applied liberally.
- Amendments shall be made for the purposes of determining the real questions at issue between the parties.
- Amendments should not be permitted when doing so could cause actual prejudice to other parties.
- Amendments should be allowed if all that is present is litigation prejudice which is capable of being dealt with by orders for costs or other directions by way of case management.
- There is no rule that excludes radical amendments per se.
- There is no rule against the introduction of a new cause of action if it falls within the ambit of the original grievance.
The court acknowledged that the parties disagreed on how these principles should be applied in practice, but it felt that the amended statement of claim did address the original grievance, albeit in a more focused and targeted manner. Accordingly, the court held that the amendment should be permitted unless it caused injustice to the defendant. Notwithstanding complaint from the defendant in that regard, the court concluded that the amendment could be permitted, but on certain conditions. In particular, the costs of consequential amendments to the defence were for the plaintiff to bear. In addition, the defendant was free to make whatever arguments it wished regarding the plaintiff's amended claim (and especially that it was statute barred). Finally, the court directed that the defendant be permitted to make a settlement proposal by way of a without prejudice save as to costs letter, within 21 days of service of the statement of claim.
The case provides a useful summary of the principles applicable to the amendment of a statement of claim and confirms that the question of prejudice to the defendant is a major factor to be considered in deciding whether to permit the amendment. The directions given arising out of the amendment also clarify that the court will be keen to ensure that any litigious disadvantage suffered by defendants be minimised.
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