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Late Amendment struck out

At the end of December the case of Autauric Limited v Glasgow Stage Crew Limited [2019] CSOH 111 came before Lady Wolffe in the Court of Session.

Issue

  • Hearing on the Defender's opposed motion to allow their Minute of Amendment

  • Defender relied on test in Thomson v Corporation of Glasgow 1962 SC (HL) 36 - that any prejudice caused by the amendment procedure would be compensated by an award of expenses in the Pursuer's favour, which the Defender agreed to meet.

  • Counsel for the Pursuer relied upon a decision of seven justices in the High Court of Australia, Aon Risk Services Australia Ltd v the Australian University [2009] HCA 27 which said – " An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation". They further noted that "delay and cost are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants…"

Decision

  • Unusually and unexpectedly Lady Wolffe found in favour of the Pursuer and refused the motion. Perhaps highlighting a changing mood of the court she emphasised the court must ensure "efficient and effective resolution of disputes and proportionate cost."

  • The Defender's assumption that it would be sufficient to allow a Minute of Amendment to be received upon an offer that the amending party will pay the other side's expenses was incorrect.

Strategic implications

This judgment provides an element of clarity in relation to the court's approach towards Minutes of Amendment in Commercial Actions. The main warning for Defenders is critical information must be available to be incorporated into pleadings in line with the court timetable. If it is not, there is a real risk future amendments will not be allowed.  There will obviously be times when this is out with the parties control but the comments from Lady Wolffe make it clear she considers it paramount that the Court takes an active role in ensuring that the cases which come before it are dealt with speedily.

If you wish any further advice please contact a member of our Scottish Professional Indemnity Team.

Contact

For more information please contact Alison Grant, Partner, Alison.Grant@dwf.law Lindsay Ogunyemi Director, Lindsay.Ogunyemi@dwf.law

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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