IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 354 of 2009

BETWEEN:

SUVA FORKLIFT HIRE LIMITED 
a limited liability company having its registered office at 77 Fulaga Street, Samabula, Suva in the Republic of Fiji Islands.
PLAINTIFF

AND:

SUN INSURANCE COMPANY LIMITED
a limited liability company having its registered office at 1st Floor, Harbour Front Building, Rodwell Road, Suva in the Republic of Fiji Islands.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr. K. Singh for the Plaintiff 
Mr. R. Naidu for the Defendant 

Date of Hearing : 16TH August, 2012 
Date of Ruling : 23RD August, 2012

RULING

A.	INTRODUCTION

1.	The Plaintiff is seeking to amend the statement of claim and the proposed amended statement of claim is annexed to the affidavit dated 19th July, 2012 filed on record on the following day. No minutes of Pre Trial Conference filed and the Defendant's main objection to the proposed amendment is the delay, and the claim which allegedly included a payment to the agent of the defendant. The trial has not started and the delay can be compensated by the payment of cost. The payment to the agent can be recovered from the principal in certain instances and it is a matter for the Plaintiff to decide.

B.	ANALYSIS

2.	This is the Defendants application to amend his Statement of Defence pursuant to Order 25 rule 5 of the High Court Rules 1988. The law relating to grant of leave to amend pleadings is set out under Order 20 rule 5 of the Supreme Court Practice 1999.
Order 20 Rule 5 of the High Court Rules which provides:

"5-(1) Subject to Order 15, Rule 6, 8 and 9 and the following provisions of this rule, the Court may at any stage of the proceedings allow the Plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct."(emphasis added)

3.	The court is granted a general discretion to allow any amendment at any time of proceedings. The Plaintiff is objecting to the said amendment and states the amendment is delayed and the claim for recovery of money paid to the agent from the principal is bad in law.

4.	Under Order 20/ 8/6 of the Supreme Court Practice of 1999 under the heading 'General principles for grant of leave to amend' at page 379 it is stated that:

"General principles for grant of leave to amend (rr5, 7 and 8)-It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made "for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defects or errors in any proceedings." (see per Jenkins L. J. in R. L. Baker Ltd v Medway Building & Supplies Ltd [1958] 1 W.L.R. 1216; [1958] 3 All E.R. 540, p.546)." (Emphasis added)

It is well established principle that the object of the amendment after the closing of the pleading Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights…I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace… it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of rights on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right"(per Bowen L.J. in Cropper v. Smith (1883) 26 Ch. D. 700, pp. 710 – 711, with which observations A.L. Smith L.J., expressed "emphatic agreement" in Shoe Machinery Co. v. Cultam (1896) 1 Ch. 108. P. 112)."

5.	What is paramount in the exercise of the discretion of the court in determining an application for amendment is whether the amendment will lead to a decision of the real matter in controversy and if so to allow the pleading to be corrected with necessary amendment. In the present instance the amendments sought by the Plaintiff will lead to a decision of the real matter in controversy. Whether the money paid to the agent of the Defendant can be recovered from the principal cannot be decided at this stage in this application upon the available evidence before me.

6.	Under Order 20/ 8/6 of the Supreme Court Practice of 1999 under the heading 'General principles for grant of leave to amend' at page 379 further stated as follows

"In Tildesley v. Harper (1876) 10 Ch. D. 393, pp 396, 397, Bramwell L.J. said:

"My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by this blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise." "However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs" (per Brett M.R. Clarapede v. Commercial Union Association (1883) 32 WR 262, p263; Weldon v. Neal (1887)19 QBD 394 p.396. Australian Steam Navigation Co. v. Smith (1889) 14 App. Cas. 318 p 320; Hunt v. Rice & Sons (1937) 53 TLR 931, C.A and see the remarks of Lindley L.J. Indigo Co. v. Ogilvy (1891) 2 Ch. 39; and of Pollock B. Steward v. North Metropolitan Tramways Co.(1886) 16 QBD.178, p.180, and per Esher M.R. p.558, C.A.). An amendment ought to be allowed if thereby "the real substantial question can be raised between the parties," and multiplicity of legal proceedings avoided (Kurtz v. Spence (1888) 36 Ch, D. 774; The Alert (1895) 72 L.T. 124).

On the other hand it should be remembered that there is a clear difference between allowing amendments to clarify the issues in dispute and those that provide a distinct defence or claim to be raised for the first time (see, per Lord Griffiths in Kettma v Hansel Properties Ltd [11987] A.C 189 at 220).

Leave to amend will be given to enable the defendant to raise a defence arising from a change in the law since the commencement of the proceedings affecting the rights of the parties or the relief or remedy claimed by the plaintiff, even though this might lead to additional delay and expense and much longer trial, e.g. that the plaintiffs have acted in contravention of Art. 85 (alleging undue restriction of competition) and Article 86 (alleging abuse of dominant market position) of the treaty establishing the European Economic Community (the "Treaty of Rome") which became part of the law of the United Kingdom by the European Community Act 1972, so as to become disentitled to their claim for an injunction (Application des Gaz SA v Falks Veritas Ltd [1974] Ch. 381; [1974]3 All E.R. 51 CA)…

Where a proposed amendment is found upon material obtained on discovery from the defendant and the plaintiff also intends to use if for some purpose ulterior to the pursuit of the action (e.g. to provide such information to third parties so that they could bring an action), the plaintiff should not be allowed to amend a statement of claim endorse on the writ and so it the public domain but instead the amendment should be made as a statement of claim separate from the writ and thus not available for public inspection (Mialano Assicuranziona SpA v Walbrook Insurance Co Ltd [1994] 1 W.L.R 977 see too Omar v Omar [1995] 1 W.L.R. 1428, use of documents disclosed in relation to Mareva relief permitted to amend claim and at trial.

The Court is entitled to have regard to the merits of the case in an application to amend if the merits are readily apparent and are so apparent without prolonged investigation into the merits of the case (King's Quality Ltd v A.J. Paints Ltd [1997] 3 All E.R. 267)."

7.	The Defendant has not alleged any mala fide against the Plaintiff as regards to the proposed amendment, it is settled law that delay in the proposed amendment should not deprive the amendment. In this case the parties have not proceeded beyond pre trial conference. No minutes of the pre trail conference filed and considering the delay and the proposed amendment which does not change the main cause of action I am inclined to allow the amendment subject to a payment of cost of $750.

C.	FINAL ORDERS

a.	The Plaintiff is granted 14 days to file and serve the amended statement of claim, subject to a cost of $750.

b.	The cost of this application is cost in the cause.

Dated at Suva this 23rd day of August, 2012.

………………………………………….
Master Deepthi Amaratunga
High Court, Suva