CHAPTER 3 AMENDMENT TO PLEADINGS

AMENDMENTS – O20 ROC

Amendment of writ Without leave – O20 r1(1) ROC

With leave – O20 rr1(3), 5(1) ROC
Amendment of originating summons With leave – O20 r7 ROC
Amendment of memorandum of With leave – O20 r2 ROC
appearance
Amendment of pleadings Without leave – O20 r3(1) ROC
With leave – O20 r5(1) ROC
By written agreement of all parties –
O20r12 ROC
Amendment of other documents O20 r8(1) ROC
Amendment of judgment and orders O20 r11 ROC – slip rule

 If the mistake done not been amended, one may be caught by the court and
judgment can be given against him
 If the statement been change, the changes must be shown [retaining the
original word, adding the new words]; the newly added words / amendment
shall be underlined in red –
* 1st amendment underlined in red: amended SOC
* 2nd amendment underlined in green: re-amended of SOC
* 3rd amendment underlined in yellow:
* 4th amendment underlined in purple:
* Only up to 4 amendments are allow

AMENDMENT WITHOUT LEAVE

O20 r3(1) ROC A party may, without leave of the court, amend any pleading of
his once at any time before the pleadings are deemed to be
closed and, where he does so, he must serve the amended
pleading on the opposite party
O20 r3(2) ROC If served with amended statement of claim, the defendant may
amend his defence.
O20 r3(3) ROC If served with amended defence, the plaintiff may amend his
reply.
O20 r4(1) ROC Amendment must be made within 14 days after service of
original pleading (before the reply to the pleading), otherwise,
the other party may apply to the court to disallow the
amendments.
  This permits the amendment of pleadings without leave and before the close
of pleadings subject to certain obligations as to service of the amended
pleadings and to certain provisions for necessary amendments by the other
party.
 The purpose of this rule is to save time and costs.
 However, a plaintiff will not be allowed to amend by adding a new cause of
action which has accrued since the date of issue of the writ.
 This is because amendments date back to the issue of the writ.
 Pleadings here refers strictly to documents up to close of pleadings (and may
include further and better particulars).
 Pleadings here do not include –
- any pleading subsequent to a reply;
- a second or subsequent amendments; or
- any amendment after the close of pleadings

AMENDMENT WITH LEAVE

Generally, leave is necessary for all amendments to pleadings except where r3(1)
applies.

O20 r5(1) ROC The court may at any stage of the proceedings allow … 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.

TIME TO APPLY

 Usually before trial

- The application to amend prior to commencement of the trial is by way of
inter partes notice of application to the Registrar.
 During trial
- The application to amend upon commencement of the trial (and before
judgment) is by way of notice of application to the trial judge.
o The application is an interlocutory matter and does not form part of
the trial.
Yamaha Motor Co Ltd v Yamaha Msia S/B & Ors [1983] 1 MLJ 213

 “Under Order 20 of the Rules of the High Court 1980 … a Judge has a
discretion to allow leave to amend pleadings. Like any other discretion, it must
of course be exercised judicially (see Kam Hoy Trading v Kam Fatt Tin Mine
[1963] MLJ 248.) The general principle is that the court will allow such
amendments as will cause no injustice to the other parties. Three basic
 questions should be considered to determine whether injustice would or would
not result, (1) whether the application is bona fide; (2) whether the prejudice
caused to the other side can be compensated by costs and (3) whether the
amendments would not in effect turn the suit from one character into a suit of
another and inconsistent character. If the answers are in the affirmative, an
application for amendment should be allowed at any stage of the proceedings
particularly before trial, even if the effect of the amendment would be to add or
substitute a new cause of action provided the new cause of action arises out
of the same facts or substantially the same facts as a cause of action in
respect of which relief has already been claimed in the original statement of
claim.”

PRINCIPLES

Clarapede v Commercial Union Association (1883) 32 WR 262, per Bret MR

 “However negligent or careless may have been the first omission, and,
however late the proposed amendment, the amendment should be allowed if
it can be made without injustice to the other side. There is no injustice if the
other side can be compensated by costs.”
Cropper v Smith [1884] 26 Ch.D 700, per Bowen LJ

 “I have found in my experience that there is one panacea which heals every
sore in litigation and that is costs”
Tildesley v Harper [1876] 10 Ch D 393

 As a general rule leave to amend ought not to be refused unless the Court is
satisfied that the party applying is acting mala fide, or that his blunder has
done some injury to the other side which cannot be compensated by payment
of costs or otherwise.

QUESTIONS FOR THE COURT TO CONSIDER

Malayan Banking Ltd v Ting Ee Ngieng & Anor [1965] 2 MLJ 160

 “In Mallal's 'Supreme Court Practice' at page 342 the general principle is
stated to be that the court will allow such amendments as will cause no
injustice to the other side. It is also said, quoting from the case of Looi Guan
Kway v Low Lean Bok [1938] MLJ 35 that to determine whether injustice
would or would not result a court will ask the following three questions: (1) Is
the application for amendment made bona fide?; (2) Will the amendments
asked for cause no prejudice to the other side which cannot be compensated
by costs?; (3) Are the amendments asked for such as to turn a suit of one
character into a suit of another and inconsistent character?”

LEAVE TO AMEND MAY NOT BE GRANTED

1. Futile, frivolous or not bona fide
Alwee v Lai Kong Fook [1981] 2 MLJ 82
 Appeal from case reported in [1980] 2 MLJ 258. The appeal was on
facts but at the hearing of the appeal, the appellant also applied to
amend the SOC.
 Held: His statement of claim stood unamended at all times. No further
and better particulars were sought from him, but in taking advantage of
the vagueness of his statement of claim to roam at large, he fell into
the not unusual error of departing seriously from his pleadings, when
he came to give evidence, with serious consequences to his credibility.
In such circumstances, it ought not to be and it is not the practice of
this court as an appellate court, to differ. 
2. To withdraw an admission consciously made
Hollis v Burton [1892] 3 CH 226
 In this case, the admission was done by mistake instead of consciously
thus the amendment was allow
3. To raise a cause of action which accrued to the plaintiff only after the action
commenced
Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction Sdn Bhd [1992]
1 MLJ 11
 As the amendment related back to the date of the original pleading, no
new cause of action accruing since the original pleading would be
allowed. Applying this principle, the plaintiff is not entitled to claim the
additional sum of $173,659.25 which became due and payable to the
plaintiff only after the date of the issue of the writ and statement of
claim.
4. To turn a suit of one character into a suit of another and inconsistent
character
Taisho Co Sdn Bhd v Pan Global Equities Bhd & Anor [1999] 1 MLJ 359
 A plaintiff seeking an order under O 20 r 5 of the RHC must satisfy two
requirements in O 20 r 5(2) and (5):
o that the facts of the case remain the same or substantially the
same;
o that it would be just to grant leave to amend.
 If he fails one, he fails altogether. In the present case, the appellant
had satisfied condition (i) but had failed to satisfy condition (ii).
5. To add a party or to raise a cause of action after the expiry of the relevant
limitation period unless O20 r5(2)-(5) ROC applies
Credit Corporation (M) Sdn Bhd v Fong Tak Sin [1991] 1 MLJ 409
 (1) It is established that the cause of action normally accrues where
there is in existence a person who can sue and another who can be
sued and when all the facts have happened which are material to be
proved to entitle the plaintiff to succeed.
  (3) An application to add or substitute a new party to an action after the
expiry of the limitation period should not be allowed and this is based
on good and sound principles.
6. Delay in applying for amendment
Lembaga Pelabuhan Johor v The Pacific Bank Bhd [1998] 5 MLJ 323
 The proposed amendments were filed at a very late stage. It was a
protracted, prolonged, and inexcusable delay. The delay was precisely
nine years four months and twenty days. The allegations that the
proposed amendments were useless, lacked bona fides and intended
to delay the plaintiff's claim met with no response whatsoever by the
defendant in the form of an affidavit. The defendant knew that there
was this prolonged delay, yet they failed to give an explanation by way
of an affidavit evidence.
Raphael Bhd v Insas Berhad & Anor [2001] 1 MLJ 49
 The delay on the part of the respondent in setting down the action for
trial was no excuse for the appellant to delay the application for the
amendment of his defence at a very late stage without placing
sufficient material before the court and to give cogent reasons thereof.
An application for amendment of a writ or pleadings is not as a matter
of a right of a party but is left to the judicial discretion of the court
depending on the circumstances of each case

LEAVE TO AMEND WILL BE ALLOWED

 O20 r5(2)-(5) ROC makes it clear that there are three cases where an
amendment will be allowed notwithstanding its effect is to defeat a defence
under the Limitation Act 1953 ‘if the court thinks it just to do so’.

1. Where the amendment is to correct the name of a party where the mistake
misled no person – O20 r5(3) ROC
Evans Construction Co Ltd v Charrington & Co Ltd & Anor [1983] QB
810
 The tenant sought a new lease and served a notice. The notice named
the former landlord not the current landlord.
 Held: Order 20 could be used to correct the name where the error was
a mere mistaken description of the correct party, but not a mistake as
to the actual identity of the party. No injustice would be created here by
requiring the correct landlord to make good his reply.
Suruhanjaya Pelabuhan Pulau Pinang v Boss s/o Ramasamy [2000] 4
MLJ 153
 An amendment under O 20 r 5(3) is only allowed to correct a misnomer
or alternatively there was a genuine mistake which was not misleading
as to the identity of the party intended to be sued. In the present case,
 there was no mistake of identity because the plaintiff knew that the
appellant and Penang Port Sdn Bhd co-exist as two separate and
different entities. It was not an application to correct a misnomer or a
mistake as to identity because the first defendant (Penang Port Sdn
Bhd) had been retained and proposed to be the third defendant.
 Not allowed to amend.
2. Where the amendment is only to alter the capacity in which a party sues or is
sued – O20 r5(4) ROC
Government of Malaysia v Mohamed Amin bin Hassan [1986] 1 MLJ 224
 A collision between a motor car driven by the respondent and a motor
lorry driven by an employee of the appellant. As a result of the accident
the son of the respondent who was a passenger in the motor car died
and the respondent and his wife, who was also a passenger in the car
were injured.
 The respondent brought an action for damages on the ground of
negligence. The action was brought on behalf of the deceased's estate.
 After the expiry of the limitation period, the respondent applied for an
order to amend the statement of claim by adding himself and his wife
as plaintiffs in their own personal capacity.
 Held: What the respondent did was not correcting the name of a party.
Neither was it a matter of mistake. It was merely the addition of a new
and different party. This is not permissible under any provision of the
Order 15 rule 1, particularly when the period of limitation affecting the
proposed plaintiff had expired.
3. Where the amendment adds a new cause of action arising out of the same
facts as the original claim – O20 r5(5) ROC
Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230
 Held: The court has power to grant an amendment after the expiry of
the limitation period notwithstanding that the effect of the amendment
will be to add or substitute a new cause of action, subject to the very
important condition, namely that the new cause of action must arise out
of the same or substantially the same facts as the cause of action in
respect of which relief had already been claimed.
Examples:
o Claim is for negligence and out of the same facts, amendment is
sought which adds a claim for breach of statutory duty;
o Claim for breach of duty of contract amended to negligence
- Lim Yong Suan v Lim Jee Tee [1999] 1 SLR 500
o Claim is for negligent supervision and the amendment is to add
negligent design.
- Brickfield Properties Ltd v Newton [1971] 1 WLR 863
 The court heard an application to amend pleadings to add
a claim about negligent supervision of a construction.
  The plans and specifications and ancillary documents are
relevant to the superintendence claim as well as to the
designer claim: hence the inability of the defendant to
allege prejudice with regard to the preparation of his
defence if this appeal is allowed. Accordingly, the ‘new
cause of action’ falls within the ambit of RSC Ord. 20 r.
5(5), and it is one which the court has jurisdiction to
permit to be pursued’.

AMENDMENT BY AGREEMENT – O20 R12 ROC

O20 r12(1) – Any pleading may, by written agreement of all parties, be amended
before commencement of trial.
O20 r12(2) – The amended pleading shall be filed at the Registry and served on all
parties within 14 days of the amendment.
O20 r12(3) – The rules does not apply to and amendment which consists of the
addition, omission or substitution of a party.

EFFECT OF AMENDMENTS

 The amendments are deemed to relate back to the date the writ was issued.
 Sio Koon Lin & Anor v SB Mehra [1981] 1 MLJ 225
 The respondent did not on October 7, 1972 have any cause of action in
respect of the $85,000 or any part thereof, as no instalments were then
due;
 The amendment to the writ dated back to the date of the original issue of
the writ and at that date even the first instalment of $35,000 was not due.

FAILURE TO AMEND AFTER ORDER

 If the amendment is not made within the stipulated period or, if no period is
stipulated, within 14 days of the order being made, the order shall cease to
have effect but the court has the power to extend the period – O20 r9 ROC
Lim Oh & Ors v Allen & Gledhill (sued as a firm) [1998] 4 MLJ 645

 The appellants filed an action ('the first suit') against a legal assistant of the
respondent for his conduct in handling the purchase of land which resulted in
losses to the appellants. The appellants applied to amend the writ of
summons and statement of claim to include the present respondent as a party
to the action, and this was granted by the court. The appellants were required
to effect the amendments within 14 days from the date the order was made
but they failed to do this and there was no application for extension of the
 period. The appellants later filed a similar application but again failed to affect
the amendments within 14 days. The appellants admitted that the
amendments were eventually effected four months after the stipulated period
without any application being made for an extension of time.
 The amendments were effected out of the prescribed period. When faced with
the application to set aside the first suit, the appellants again failed to apply
for an extension of time to effect the amendments. This raised the
presumption that the appellant failed to comply with the rules of court. When
the order striking out the first suit was made, the appellants failed to appeal.
The appellants felt that they could circumvent the need to appeal by instituting
the second suit. Therefore, the filing of the second suit was an abuse of the
process of the court.

AMENDMENT OF JUDGMENT AND ORDERS

 Clerical mistakes in judgment or orders, or errors arising therein from any

accidental slip or omission may at any time be corrected by the court by way
of an application (summons) without the need for appeal – O20 r11 ROC
 This rule is known as the ‘slip rule’ and its operation is limited to cases where
there has been a clerical mistake or error arising from an accidental slip or
omission both by the officers of the court and the parties.
 The error must be an error in expressing what the court intended at the time
when the order was made.
 If the order, as drawn up, correctly expresses that intention, it cannot be
corrected under the slip rule, even if it contains a mistake in law, apparent on
the face of it.
 The court has no power to amend or alter a judgment or order which has been
duly passed and entered except –
o where there has been an accidental slip; or
o where the judgment or order does not express the manifest intention of
the court.
 Estate of Embi bin Haji Abdullah [1934] 1 MLJ 71
 “The Court has no power to amend or alter a Judgment or
order which has been duly passed and entered except (i)
where there has been an accidental slip in the wording, or
(ii) where the Judgment or order does not express the
manifest intention of the Court. In other cases there may
be a remedy by way of appeal from the Judgment, or by
way of bringing a fresh action to set aside the Judgment.”
TAY EK SENG CO SDN BHD & ORS v TAY CHO KOH & ORS [1975] 2 MLJ 167
  “It is, I think, settled law that when an order of the High Court has once been
perfected the court has no jurisdiction to alter it. See re Suffield and Watts, ex
Parte Brown and also Preston v Williams Allsup & Sons. In the instant case
the order has not been substantially altered so as to make it an entirely new
order. If it had been so varied the whole purpose of the order would have
been defeated. On the facts as well as on the law I have no doubt that the
second Motion was rightly granted.”

AMENDMENT OF CONSENT ORDERS

Ganapathy Chettiar v Lum Kum Chum & Ors; Meenachi v Lum & Ors [1981] 2
MLJ 145

 Consent can only be amended / varied by another consent.

 An order by consent is evidence of a contract between the parties and is
binding on all parties to the order all the more so, where there is not the
slightest question of any mistake as to facts or law.
 Since there had been no mistake on the part of any one when the consent
order for the sale by public auction was made, the only possible way in which
this could be altered would be by the consent of all the parties.
 In this case, the learned judge was right in holding that it was too late to
withdraw the prayer for sale by private treaty and therefore there was the
consent of all the parties which gave him jurisdiction to alter the consent
order.
 Apply to judgment that had been sealed; if the judgment had yet been sealed,
amendment can be done.

OFFER TO SETTLE

 O22 RHC dealt with payment into and out of court

 There is no O22 under ROC but there are now O22A (interim payments) and
O22B
 O22B ROC sets out a comprehensive procedure to deal with offer to settle
 A party may serve on any other party an offer to settle in Form 34 – O22Br1
ROC
 An offer to settle can be made at any time before the matter is disposed –
O22Br2 ROC
 There is no time limit for acceptance unless the notice specifies so –
O22Br3(1) & (2) ROC
 Notice of withdrawal f the offer must be in Form 35 – O22Br3(3) ROC
 An offer to settle is deemed to be an offer of compromise made without
prejudice save as to costs – O22Br4(1) ROC
 An offer to settle must be accepted by serving Form 36 on the party who
made the offer – O22Br6(1) ROC
 Once accepted the parties can make an application to court to record the
terms – O22Br6(2) ROC
 Until then, an offer to settle must not be disclosed to the court – O22Br2 ROC