Inside the Bar
Recent Perspectives on the Amendment of Pleadings
Is time of the essence or is there something more to the court’s discretion?
The pleading process is the fulcrum of civil litigation for it demarcates the scope of the dispute between the parties. Therefore, it is often crucial for a party who intends to rely on a contention which he has not pleaded or was unable to plead1 to apply to amend his pleading.2 Recent cases have focused on specific considerations which the court will take into account in exercising its broad discretion to permit or disallow amendments.
More than a century ago, in Moss v Malings,3 North J ruled that he could not permit the amendment of a pleading on the basis of newly discovered facts because the applicant had not produced evidence showing that he ‘could not with reasonable diligence have discovered the new facts sooner... .’4 While it is fair to say that fault on the part of a party for having failed to apply for an amendment at an earlier stage is a consideration to be taken into account by the court in exercising its discretion, this is by no means the sole criterion today. In Chwee Kin Keong and ors v Digilandmall.com Pte Ltd,5 VK Rajah JC, as His Honour then was, decided against the rule-based approach in Moss v Malings. Having pointed out6 that a court ‘will generally be cautious if not reluctant to effect any amendments once the hearing has commenced; even more so once the evidential phase of the proceedings has been completed,’7 his Honour went on to state:8
Rules of court which are meant to facilitate the conduct of proceedings invariably encapsulate concepts of procedural fairplay. They are not mechanical rules to be applied in a vacuum, devoid of a contextual setting. Nor should parties regard pleadings as assuming an amoeba-like nature, susceptible to constant reshaping. Rules and case law pertaining to amendments are premised upon achieving even-handedness in the context of an adversarial system ...
In Chwee Kin Keong, the defendants were allowed to amend their pleadings after closing submissions to bring them in line with points that had already been raised and developed by the defendant and addressed by the plaintiffs. There was no prejudice in the circumstances.9 His Honour postulated the fundamental issue with which the court is concerned in this situation: ‘will prejudice be caused and/or are any policy considerations called into play’.10 More specifically, ‘The essence is not so much in the nature of the amendment but rather in the consequences flowing from any amendment to the pleadings’.11 The decision to permit the amendment was endorsed by the Court of Appeal.12 Referring to O 20, r 5(1), the Court of Appeal stated: ‘the court may grant leave to amend a pleading at any stage of the proceedings. This can be before or during the trial, or after judgment or on appeal.’ Both the learned Judge13 and the Court of Appeal14 referred to Lord Griffith’s admonition in Ketteman v Hansel Properties Ltd15 ‘[T]o allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.’
The same principle would apply to a plaintiff who seeks to alter the basis of his claim late in, or after the conclusion of, the proceedings. This very point arose in Asia Business Forum v Long Ai Sin and anor.16 Asia Business Forum (‘ABF’) applied for leave to amend its further and better particulars after the conclusion of the proceedings before the High Court and pending an appeal to the Court of Appeal. The applicant sought leave pursuant to O 20, r 5(1) to switch the headings of two lists in the Further and Better Particulars entitled ‘Confidential Information’ and ‘Trade Secrets’. This effectively meant that ABF’s database and contact information would be reclassified as ‘Trade Secrets’. The Court of Appeal concluded that the amendments would have altered the basis of ABF’s claim (it was on that basis that evidence had been adduced and parties cross-examined at trial). The application was dismissed because the amendments would have resulted in prejudice and would have given the applicants ‘a second bite at the cherry’. The Court of Appeal indicated that these were two key factors (without excluding other factors) which had to be taken into account in determining whether leave should be granted to amend in such circumstances. The essential principle is one of justice and is based on all the circumstances of the case.17
In Asia Business Forum, the Court of Appeal also emphasised the efficient conduct of litigation in the interest of the administration of justice.18 In other words, the fact that the applicant could have reasonably avoided delay by making his application for an amendment at an earlier stage of the proceedings is likely to constitute an adverse factor in the balance of justice. Indeed, in some instances, the applicant’s conduct may even be regarded as a vital factor against permitting an amendment. In Wee Soon Kim Anthony v UBS AG (No 2),19 Kan Ting Chiu J dismissed the application on the basis of the applicant’s failure to act expeditiously:
Litigants must be aware that with increased emphasis on the efficient conduct and disposal of cases, they must be responsible in the way they conduct their cases. The fact that a litigant is able to pay costs and a proposed amendment will not cause irreparable prejudice to its adversary will not ensure that an application to amend will be granted.
This is consistent with the pronouncement of the High Court in Chwee Kin Keong: ‘... policy considerations that require finality in proceedings and proper time management of the courts’ resources and scheduling. From time to time there will be cases where this is an overriding consideration’.20 In Joshua Steven v Joshua Deborah Steven and Ors (No 2),21 the fact that the defendants had ‘ample time before and during the trial’ in which to raise the defence of estoppel featured as a significant consideration in the court’s decision not to allow an amendment after the conclusion of the trial.22 It is therefore no surprise that in Midlink Development Pte Ltd v The Stansfield Group Pte Ltd,23 the court dismissed an application to include a new defence24 nine days after the judgment was entered. It reiterated the following principle:
While a court may have a wide power of amendment even after a final judgment, the appropriate cases in which such a power should be exercised must necessarily be very limited. Whether or not a court should do so will be in the discretion of the court, and will depend on the facts of each case, including in particular the nature and implications of the amendment sought. In all cases, a court will have to bear in mind the fundamental principle of all courts that there must be a finality to litigation.25
The functions of the various pleadings must also be considered in the context of amendment. For example, the court will not allow the amendment of a reply to include a new allegation which ought to have been pleaded in the statement of claim. In Romar Positioning Equipment Pte Ltd v Merriwa Nominees Pty Ltd,26 the respondent pleaded in his statement of claim that a deed was vitiated by the appellant’s misrepresentations. On the first day of trial, the respondent obtained leave from the High Court to amend its reply (eight months after the reply was filed)27 to include a new plea that the deed was not effective. The High Court relied on this new plea in coming to its decision. The Court of Appeal reiterated the principle that delay alone cannot prevent an application for an amendment from succeeding28 and that the court has a discretion to amend a pleading at any time in the course of proceedings (including the trial and appeal). However, the Court of Appeal observed that as the amendment had prejudiced the appellant (because the latter was not in a position to respond to the new plea made by the respondent),29 and the delay was unjustifiable (all the material facts were already known and could have been pleaded much earlier in the proceedings as an alternative plea in the statement of claim),30 it should not have been permitted by the High Court. Furthermore, the new plea was in breach of O 18, r 10, which requires consistency between pleadings. The Court of Appeal allowed the appeal on the substantive issues but indicated that it would have come to the same decision on the basis of the improper amendment alone.31
The above cases show that the paramount considerations affecting any application to amend are procedural fairness and the integrity of the legal process. The decision for the court can be a difficult one because these interests may conflict. One judge put the issue as follows: ‘In short, where does the justice reside? There is constant tension in our legal system to accommodate the Janus-like considerations of fairness and finality.’32
Professor Jeffrey Pinsler
National University of Singapore
1 For example, because he was not aware of the facts at the time he drafted his statement of claim or defence.
2 See O 20, r 3 (situations in which no leave is required) and r 5 (situations in which leave is required).
3 (1886) LR 33 ChD 603.
5  2 SLR 594.
6 Ibid, at para 84.
7 ‘There is often, but not inexorably, a co-relationship between the timing when the amendment is sought and the adverse consequences for the other party. The later the amendment, the greater the adverse consequences.’ (ibid, at para 87).
8 Ibid, at para 85.
9 Ibid, at para 86. ‘Prejudice is to be viewed broadly to encompass any injustice and embraces both procedural and substantive notions’ (ibid, at para 84).
10 Ibid, at para 87.
12  SGCA 2, at para 101.
13  2 SLR 594, at para 84.
14  SGCA 2, at para 101.
15  AC 189 at 220.
16  2 SLR 173.
17 Ibid, from para 10.
18 Ibid, at para 11. Citing Ketteman v Hansel Properties Ltd  AC 189, at para 220: ‘Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age.’
19  2 SLR 554, at para 18.
20  2 SLR 594, at para 85.
21  4 SLR 403.
22 The amendment would have necessitated further cross-examination by the plaintiff in relation to the new issue (ibid, at para 5). Furthermore, the amendment would not have advanced the defendant’s case (ibid, at para 8).
23  SGHC 182, at para 65.
24 Ie, s 6(d) of the Civil Law Act (Cap 43, 1999 Rev ed).
25 Invar Realty Pte Ltd v Kenzo Tange Urtec Inc and Anor  SLR 791, at para 21.
26  4 SLR 574.
27 Ibid, at para 37.
28 Ibid, at para 36.
29 Ibid, at para 38.
30 Ibid, at para 38.
31 Ibid, at para 34.
32 Per VK Rajah JC, as his Honour then was, in Chwee Kin Keong and ors v Digilandmall.com Pte Ltd  2 SLR 594, at para 84.