Plain Guide to Litigation: Written pleadings
Changes to the initial Application or initial Answers will normally have to be made as part of the normal pleading process to allow parties to identify what is really in dispute. They are also often needed simply to bring matters up to date. We have two names for the process of changing pleadings. Once the Answers are lodged, the first stage is known as the “adjustment” stage. The Court will issue an Order giving parties permission to make changes to their pleadings within a fixed time. This means you can make any changes you think necessary. What you say is up to you. The intention is that you respond to any material in your opponent’s pleadings so that it becomes clear what your own case is, and what precisely is in dispute. As we have said, the aim should be to get your case fully set out as soon as possible. Usually, the Court will allow a period for one side to adjust and then a period for the other to adjust in response. In most cases some adjustment is needed but ideally one exchange of adjustments should be enough. Repeated adjustment is a major cause of wasted expense and delay.
“Amendment” is a similar process but the different name is used because it takes place under direct control of the court. Instead of being given time to “adjust”, which lets you make any change you want, you have to tell the court and your opponent precisely what changes you wish to make. The court can refuse to allow them. This more formal approach is used when the change relates to important features like adding a new party or changing what you want the court to do at the end of the case: in other words, changing the crave. However, its most common use is when someone wants to make further adjustments to their pleadings at a late stage; perhaps at or shortly before a hearing. The court has to decide whether it is fair to allow some new material at that point and, because specific permission for the proposed changes is required, we give this type of change the separate name of “amendment”.
Late amendment is not always a bad thing. In many cases, the nature of the dispute will be clear from the beginning and it may be as well to fix a hearing as soon as possible. But there are nearly always changes or developments in course of a litigation. For example, there may be informal discussion leading to agreement on parts of the case. Or, there may have been new material arising from change of circumstances and further examination of available evidence. Revision of pleadings at a stage close to the hearing is usually more focused than that carried out at an earlier stage. But it can be unfair if one side has made full preparation for a hearing and is then faced with an opponent changing his or her position.
Parties must try to get their pleadings in good order as soon as they can. If they have to tidy up by asking to be allowed to amend, they will usually be expected to pay the expense of that process – although this is always a matter for the discretion of the court.
© 2011, Scottish Land Court