This is the appellant’s appeal against a ruling of the High Court dismissing their application for leave to amend the statement of claim. The Plaintiff’s had filed an application in the court below, for leave to amend their statement of claim. According to the affidavit in support of the application, the Plaintiff’s contended that the basis for seeking the amendment was to include wording necessary for the determination of the issues in controversy which had been omitted in the original pleading. A draft statement of claim containing the intended amendments was exhibited to the affidavit in support of the application but the intended amendments were not highlighted by underlining in red ink. The application was opposed on grounds that the draft statement of claim did not clearly specify the intended amendments the Plaintiff’s were seeking to make. Further, it was contended that the draft statement of claim did not set out the intended amendments in red ink as required by the rules. The further contention of the 3rd and 4th Defendant’s was that the intended amendments did not comply with RSC Order 20/8/4(c). Without affording the parties a hearing or making any determination on the merits, the court accepted the contention that the application before it was not properly and exactly formulated and did not comply with RSC Order 20/8/4(c). The Court proceeded to dismiss the Plaintiff’s application seeking to amend the statement of claim and hence this appeal.
- The breach of O. 18/8/4 RSC in issue in the present appeal was certainly regulatory and in view of the facts, one that fell squarely within irregularities generally envisaged under RSC Order 2 r.1.
- Rules must be followed but the effect of the breach will not always be fatal if the rule is merely regulatory or directory.
- Order 18/8/4 of the RSC gives an applicant the options of either:
- setting out the intended amendment in the body of the application, if it is a short amendment;
- the applicant can also identify the proposed amendment by underlining them in red, where this is the first amendment;
- by serving a copy of the amended document.
- Cases should be decided on their substance and merit. The rules must be followed but the effect of the breach will not always be fatal if the rule is merely regulatory or directory.