Refer:
[Civil Procedure — Pleadings — Amendment]
TAN KIAN CHYE v ANG SIEW YAN & 2 Ors
[2024] SGHCR 5 | Decision Date: 5 Apr 2024 | HC/OC 568/2023 ( HC/SUM 450/2024 )
Amendment of Pleading
The power of the court to allow amendments to pleadings under the ROC 2021 is provided for in O 9 r 14(1).
The underlying principle on amendments to pleadings is as stated by the Court of Appeal in Wright Norman v Oversea-Chinese Banking Corp Ltd [1993] 3 SLR(R) 640 (“Wright Norman”) (at [6]):
… an amendment which would enable the real issues between the parties to be tried should be allowed subject to penalties on costs and adjournment, if necessary, unless the amendment would cause injustice or injury to the opposing party which could not be compensated for by costs or otherwise. …
The rationale of the principle in Wright Norman, later explained by the Court of Appeal in Ng Chee Weng v Lim Jit Ming Bryan and another [2012] 1 SLR 457 (“Ng Chee Weng”) (at [24]) is:
… The court should be extremely hesitant to punish litigants for mistakes they make in the conduct of their cases, by deciding otherwise than in accordance with their rights.
These principles were recently considered by the High Court in Wang Piao v Lee Wee Ching [2023] SGHC 216 (“Wang Piao”) (at [15]–[19]), which set out the following three-step analytical framework to approach applications for amendments to pleadings:
(a) First, as a threshold question, the court has to determine the stage of the proceedings in which the amendment to the pleadings is being sought. This properly situates the circumstances in which the amendments to the pleadings are being sought, which can affect how the principles relating to amendments are being applied. Generally, the later in time an application is taken out, the stronger would be the grounds required to justify the amendment sought, but this is all a matter of the court’s discretion.
(b) Secondly, the court should consider whether the amendments sought “would enable the real question and/or issue in controversy between the parties to be determined”. This was an appropriate starting point because it prioritises the interest of the amending party to advance his or her case substantively. The court considers whether the amendment application was taken out with the genuine intention to enable the real question and/or issue in controversy between the parties to be determined, as well as the materiality of the amendment.
(c) Thirdly, having determined whether the amendments sought would enable the real question and/or issue in controversy between the parties to be determined, the court should consider whether it is nonetheless just to allow the amendments. The focus here is on the party opposing the amendments, and the court considers in particular: (i) whether the amendments will cause any prejudice to the other party which cannot be compensated in costs; and (ii) whether the party applying for permission is effectively asking for a second bite at the cherry, such as if the amendment is sought in support of an appeal against the dismissal of the originally-pleaded claim on the merits (see, for example, Asia Business Forum Pte Ltd v Long Ai Sin and another [2004] 2 SLR(R) 173 at [19]).
In EA Apartments Pte Ltd v Tan Bek and others [2017] 3 SLR 559 (“EA Apartments”) (at [25]), the High Court held that an amendment to pleadings which would itself be liable to be struck out will not be allowed (see also Ng Chee Weng at [106]). Although the court did not explicitly say so, its reasoning was that, if an amendment is liable to struck out in that the amended claim is eventually doomed to fail at trial, then the amendment will necessarily not be one that would allow for the real question and/or issue in controversy between the parties to be determined, and for that reason, it has to be refused. Put another way, that an amendment is liable to struck out goes towards showing that the amendment will not allow for the real question and/or issue in controversy to be determined. Therefore, whether an amendment is liable to be struck out and thus to be refused comes to be considered at the second of the three-step framework set out by the court in Wang Piao (see [16(b)] above). As the court in Wang Piao (at [17]) explained in connection with the second step:
… it is clear that a court will disallow an amendment that is useless … or merely technical or trivial. This will necessarily involve a rudimentary assessment of the merits of the amendment because, for instance, a pleading that is bad in law would certainly not amount to a real question or issue in controversy between the parties to be determined …. A court cannot be expected to adjudicate on a bad pleading that is likely to be struck out in any event.
It goes without saying that the burden is on the party seeking to amend his pleadings to persuade the court that the amendments sought would enable the real question and/or issue in controversy to be determined. It will also be part of this burden that the party seeking to amend his pleadings refutes whatever grounds cited by the opposing party for resisting the amendments on the basis that they will not have such an effect, including any contention by the opposing party that the amended pleadings are liable to be struck out eventually. If the court concludes that the amendments do have the effect of enabling the real question and/or issue in controversy to be determined, the burden then shifts to the opposing party to demonstrate that it would suffer irremediable prejudice as a result of the amendments.