Court allows late amendment of pleadings due to oversight, granting costs to defendant.

[*568] 1985 June 11

(HADJIHAMBIS, D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Maria Stylianou Rodouli,

Plaintiff,

v.

Antonios Constantinou Papasavva and Another,

Defendants.

(Action No. 368/80).

Civil Procedure - Pleadings - Amendment of - Principles applicable - The importance of the stage at which the application to amend is made.

P. Michaelides, for Plaintiff-Applicant.

A. Anastasiades, for Defendants-Respondents.

RULING

The following ruling was delivered by: -

HADJIHAMBIS, D.J.:- This is an application for amendment of the Statement of Claim by the insertion of the words stated in the application at the end of para.(2) of the Statement of Claim to the effect that the defendants when the agreement was made and later expressly or impliedly undertook or let it be understood that the time of payment [*569] would not be considered of the essence of the contract. It is stated in para. (2) of the statement of claim after reference is made to the contract between the parties that the time of payment was not of the essence of the contract.

The application is based on 0.25 of the Civil Procedure Rules which provides in r.1 that “The Court or a Judge may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties”.

The application being opposed by the defendants went to hearing. In considering the principles governing applications for amendment which are well established I will refer as much to the Cyprus authorities as to the English ones seeing that the position in England is substantially the same as that in Cyprus, it being covered by 0.20 of the Rules of the Supreme Court which replaced the earlier 0.28 of the Rules of the Supreme Court. Both our provisions and the equivalent English provisions give extensive power to the Court to deal with applications for amendment. In particular, I [*570] note that the former 0.28 of the Rules of the Supreme Court corresponds in every substantial respect to our provisions whereas the new 0.20 which embodies the caselaw on the subject states the powers of the Court in even wider terms. The Supreme Court has consistently emphasized the wide powers of the Court in this respect and stressed the principles involved to the effect that all amendments should be allowed for the purpose of properly formulating the issues between the parties as long as the other side can be compensated by costs so that no injustice will be suffered thereby.

In the instant case it is stated in the affidavit in support of the application that the amendment became necessary for due to an oversight the words sought to be inserted had been omitted. This oversight had been discovered only recently during the last meeting between counsel and the plaintiff. It is stated further that the amendment does not essentially affect the defence. In the affidavit filed in opposition to the application the allegations are denied but there is no substantiation of the position taken in para.(4) of the affidavit. It is further stated and was argued by Mr. Anastasiades that the reason for the amendment is the attempt to introduce extrinsic evidence into the case [*571] and that further if such evidence was introduced the position of the defence would be prejudiced. It is not stated in what way there would be any such prejudice. I further note that the contract between the parties is not before the Court for the Court to be in a better position to consider the relation between the proposed amendment and the contents of the contract.

Turning to the authorities I refer particularly to the decision of the Supreme Court in Mahattou v. Viceroy Shipping Co. Ltd. (1979) 1 C.L.R., p.542, where a number of English authorities are reviewed stressing particularly the readiness of the Court to grant an amendment in all cases where this can be done without injustice. I would refer particularly to the dictum of Lord Bramwell in Tildesley v. Harper (1878) 10 Ch.D. 393 at p.396, quoted as a locus classicus to the effect: “My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide or that, by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise”.

Further, Bowen, L.J., as quoted in Cropper v. Smith expressed a wider principle to the effect:[*572]

“I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or of grace …. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a

decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right”.

I further refer to Clarapede & Co. v. Commercial Union Association (1883) 32 W.R. 262, where Brett, M.R., is quoted to the effect:

“However negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other [*573] side. There is no injustice if the other side can be compensated by costs; but if the amendment will put them into such a position that they must be injured, it ought not to be made”.

I also refer to the decision of the Supreme Court in United Sea Transport v. Zakou (1980) 1 C.L.R., p.510, where again

reference is made to the English authorities and to Michael v. United Sea Transport (1982) 1 C.L.R., 401. Mr. A. Loizou, J., in this case stressed the

question whether the proposed amendment is immaterial or useless together with the other principles arising from the Cyprus and English authorities.

Certainly one main factor in deciding whether to exercise discretion in favour of granting the amendment must be the stage at which the amendment is applied for and it is my impression on the authorities that at any rate before the hearing an amendment is readily allowed for it is not likely that a party will be irreparably prejudiced and cannot be compensated by costs at that stage. In the instant case I note that the application is before me at the close of the pleadings and before the case has been fixed for hearing, the application having in fact been filed even before the close of the pleadings. [*574]

In these circumstances I will start with the presumption that the amendment ought to be allowed unless there is good reason to the contrary. In so considering it is also important to my mind whether the amendment is made bone fide and I have no doubt on the material before me that the amendment is applied for bona fide, it being due to an oversight on the part of counsel or failure of proper communication between counsel and client that the words sought to be inserted were not included in the statement of claim in the first instance. As far as I can judge no circumstances whatsoever exist which show that the defence would be prejudiced by the proposed amendment.

As regards the allegation in the affidavit and as argued at the hearing by Mr. Anastassiades that the amendment would introduce extrinsic evidence into the case, I must again say that I do not have the contract between the parties before me and I would not be in the position to say to what extent if at all there would be any such consequence if the amendment is allowed. Furthermore, however, I would say that the rule against the extrinsic evidence is not an absolute rule and there are many ways in which extrinsic evidence may be introduced not necessarily to contradict a contract but particularly by way of establishing a collateral contract or otherwise and in this case I would not [*575] be prepared at this stage to decide on the limited material before me that the matter sought to be introduced into the case by the proposed amendment will necessarily be inadmissible on the basis of the parole evidence rule.

Furthermore, Mr. Anastassiades’ argument has been aimed particularly at the relationship between the proposed amendment and the remedy of specific performance claimed in the action. I would note that there may be a question of damages to which the matter referred to in the proposed amendment would not necessarily lead to the same result. I do not believe that the proposed amendment is either immaterial or useless on this score though due to the limited material available these issues will fall to be decided when the time arises and of course to allow the amendment would not in any way preclude the defence from raising the matter in due course.

All things considered I have come to the conclusion that the proposed amendment would define the issues between the parties in a more particular way and further that in the exercise of my discretion the amendment should be allowed particularly considering that no injustice will be caused to the other side seeing especially that it is applied at the stage before the case has even been fixed [*576] for hearing. Nor do I believe that there is any mala fide in the proposed amendment. As a consequence the application is granted with costs occasioned by the application and costs of the application in favour of the defendant and against the plaintiff.

Rules of Court to be followed.

Application granted.