The relevant provision for the amendment of pleadings is set out in Order 20 rule 3 of the Rules of Court, 2012 (“ROC”).
There are 3 circumstances in which a party can amend their pleadings:
The general rule is that a party may amend any pleading once at any time before the close of pleadings.
However it is important to note that a party is not allowed to amend pleadings under this Order by adding a new cause of action which accrued after the date of the issuance of the writ.
This is because an amended pleading dates back to the date of the original writ (the doctrine of relation back).
The types of pleadings that can be amended without leave under this rule:
Documents other than the abovestated can only be amended with the leave of Court under Order 20 rule 8.
Yes – Order 20 rule 4 of the ROC provides for applications to disallow amendment made without leave.
Time limit to apply – Within 14 days after the service of amended pleading
In deciding whether to allow this application to disallow amendment, the Court is guided by Order 20 rule 4(2) of ROC whereby the court poses the question: “Would leave be granted if this amendment had proceeded under rule 5?”
This is best understood with an example: in The Virginia Rhea [1983] 1 MLJ 198 the amendment application was not allowed as the amendment raised a new cause of action which did not arise out of the same facts. Hence it offended Order 20 rule 5(5).
The procedure for an application to disallow amendment is by notice of application.
Generally, leave to amend pleadings is required where the application is made after the close of pleadings.
Even where an amendment of pleadings is sought after limitation has expired, i.e. 6 years after cause of action accrues for claim of breach of contract, Order 20 rule 5 provides 3 situations where leave may be sought:
Malaysia Borneo Finance Corp (M) Bhd v Malayan Produce Co Sdn Bhd & Anor [2000] 5 MLJ 352 provides that an amendment application should be by way of a notice of application
It is settled law that all amendments will be allowed provided the following is satisfied:
However, it is important to note that the list of considerations set out above is non-exhaustive. In the same breath, the consideration of undue delay was added in making an amendment application. Hence, the party seeking leave to amend a pleading must produce material and cogent reasons to explain the delay.
Order 20 Rule 12 is as straightforward a rule as it comes. Rule 12 states:
“Amendment on pleadings is allowed by written agreement/consent of parties before commencement of the trial.“
Amendment of pleadings is a powerful tool for lawyers to avoid any impediment to their case by an unintentional mistake or shortfall, administrative or substantial.
However, it is important for an applicant to be wary of the stage of proceedings in which an amendment application is being made, i.e. close of pleadings or at the eve of trial, as the Court must consider the possible prejudicial effect on the opposite party should the amendment application proceed or whether the amendment would provide more clarity or save time and cost for parties.
Jean is a full-time fighter of all things evil, armored with a silver tongue and an ink-filled highlighter ready to mark any discrepancies existing in any document. On her downtime, she enjoys a pint of freshly brewed pale lager while catching up with her trusted allies.
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