Factual and Procedural Background
This opinion follows a judgment delivered by the Court on 29th June 2000. Subsequently, a Notice of Motion dated 3rd July 2000 was filed on behalf of the Petitioners seeking the Court's permission to re-amend an amended Petition previously delivered in the case. The case concerns the procedural application to alter pleadings under the Rules of the Superior Courts, 1986.
Legal Issues Presented
- Whether the Court should allow the Petitioners to re-amend their amended Petition at this stage of the proceedings.
- Whether the re-amendment sought is permissible under Order 28 Rule 1 of the Rules of the Superior Courts, 1986, particularly when it introduces a fundamentally new claim.
- What conditions, if any, should be imposed on the Petitioners regarding costs arising from the re-amendment, including whether security for costs should be required.
- The appropriate order as to costs consequent upon the re-amendment and adjournment of the trial.
Arguments of the Parties
Petitioners' Arguments
- The issues now sought to be pleaded were not originally included because their legal advisors believed the existing pleadings were adequate.
- The re-amendment is necessary to ensure that the real and principal questions in controversy are before the Court.
- The Petitioners should not be penalised by being required to pay or give security for costs as a condition of the re-amendment.
Respondents' Arguments
- The Petitioners should not be allowed to amend without paying all costs related to the re-amendment, including costs thrown away due to adjournment.
- Order 28 Rule 1 requires the Court to balance justice fairly between parties, implying that costs should be borne by the Petitioners if the amendment is allowed.
- The Respondents urged that security for costs be required as a condition for allowing the Petitioners to proceed after re-amendment.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Rubotham (infant) v M & B Bakeries Limited (1993) ILMR 219 |
Defines “fundamental” amendment introducing a new claim and that novelty is not a bar to amendment under Order 28 Rule 1. |
Adopted to justify allowing the re-amendment as necessary to determine real questions in controversy. |
| DPP v Corbett (1992) ILRN 6754 |
Supports imposition of conditions to remedy prejudice caused by amendment, including indemnity for costs. |
Applied to impose conditions on Petitioners to indemnify Respondents for extra costs caused by re-amendment. |
| Aer Rianta International CPT v Walsh Western International Limited (1997) 2 IRLM 45 |
Justice requires that if amendment is allowed, costs caused thereby should be borne by the party seeking amendment. |
Guided the Court’s approach to costs allocation related to the re-amendment. |
| Fahy v Pullen, 102 ILTR 81 |
Costs of adjournment due to inadmissible evidence and principles on costs thrown away. |
Discussed in assessing appropriateness of costs orders in the present case. |
| O’Driscoll v Irish Shell and BP Limited (1968) IR 215 |
Costs of the day as appropriate order where additional injury arises after pleadings closed. |
Referenced regarding costs orders on adjournment due to new issues. |
| Kielthy v Ascon Limited (1970) IR 122 |
Costs thrown away due to adjournment during trial are recoverable by Plaintiff. |
Used to illustrate costs principles on adjournments. |
| Bourgoine v Taylor (1878) 47 LJCH 542 |
Definition of “costs of the day” as costs incurred and thrown away due to adjournment. |
Applied to understand scope of costs recoverable on adjournment. |
| Ascherberg, Hopwood and Crew Limited v Casa Musicale Sonzogno di Piero Ostali and Others (1971) 3 All ER 38 |
Permitting amendment after adjournment subject to costs conditions and security for costs. |
Considered as precedent for imposing costs and security conditions on amendments. |
| E.M. Bowden’s Patent Syndicate Limited v Herbert Smith and Company (1904) 2 Ch 86 |
Amendment allowed on terms including payment of costs incurred prior to amendment. |
Referenced in Court of Appeal’s reasoning on costs conditions. |
| Stanley v Aer Lingus TEO 114 ILTR 26 |
Adjournment allowed on condition Plaintiff paid costs incurred by Defendants prior to amendment application. |
Used to illustrate discretionary power to impose costs conditions on amendments. |
| Cropper v Smyth (1883) 26 Ch D 700 |
Principle that Court’s object in granting leave to amend is to decide rights, not to punish mistakes. |
Applied to reject penalising Petitioners by requiring payment or security for costs as condition to amend. |
| Palamos Properties Limited and O’Neill v Brooks and Ors (1996) 3 IR 597 |
Approval of Cropper v Smyth principle. |
Supports Court’s approach to amendments and costs. |
| O’Sullivan J in Cornhill and Ors v The Minister for Agriculture and Food (1998) (unreported) |
Approval of Cropper v Smyth principle. |
Supports Court’s approach to amendments and costs. |
Court's Reasoning and Analysis
The Court began by interpreting Order 28 Rule 1 of the Rules of the Superior Courts, 1986, which allows amendments at any stage to determine the real questions in controversy. The Court acknowledged that the re-amendment sought is “fundamental,” introducing a new claim not originally pleaded, as established in Rubotham v M & B Bakeries Limited.
However, the Court held that the novelty of the amendment does not preclude permission unless special circumstances exist, such as prejudice to the opposing party's rights (e.g., statute of limitations). The Court found no such prejudice that could not be remedied by adjournment, costs orders, and indemnity conditions.
The Court carefully considered the Respondents’ request for costs and security for costs. It reviewed relevant case law on costs orders related to adjournments and amendments, emphasizing the balance of justice. The Court distinguished the present case from precedents where only “costs of the day” were awarded, finding that such an order would not suffice due to the material nature of the re-amendment and its impact on the proceedings.
The Court concluded that a fair costs order would include party and party costs limited to specific categories (Counsel’s fees, witnesses’ allowances, solicitor’s charges related to the adjourned trial preparation) and indemnity by the Petitioners for costs of consequential amendments. However, the Court declined to require security for costs or payment of costs as a condition for allowing the re-amendment, finding no evidence to justify such a penalty or safeguard.
In doing so, the Court relied on the principle from Cropper v Smyth that the purpose of granting leave to amend is to decide the parties’ rights, not to punish errors in case conduct.
Holding and Implications
The Court GRANTED the Petitioners liberty to re-amend their amended Petition subject to specified directions on the form and numbering of the amendments, and subject to the Petitioners indemnifying the Respondents against costs arising from the re-amendment.
The Court ORDERED that the Respondents be entitled to costs on a party and party basis limited to fees and expenses related solely to the adjourned trial preparation and consequential amendments, including the costs of the judgments delivered on 29th June 2000 and on this motion.
The Court DECLINED to order that the Petitioners pay or provide security for costs as a condition of proceeding with the re-amendment, finding no evidence that the Petitioners would be unable or unwilling to pay costs.
This decision directly affects the parties by permitting the re-amendment and setting a measured costs regime without imposing punitive conditions. The Court did not establish new legal precedent but applied established principles to the facts before it.