› Amendment of pleadings – leave to amend statement of claim – delay – Aon Risk Services principles
Procedure
› Pleadings
› Robust and non-pedantic approach to pleading objections – Uniform Civil Rules 2020 (SA) r 1.5
Estoppel
› Estoppel by convention
› Plea in reply enlarged in statement of claim – extension of contracts – reliance on written communications
Contract
› Breach
› Refusal to extend term – loss of opportunity – contingency fee consultancy agreement
Quick Take
1An objection to a late amendment under the Aon and [name withheld] factors will not succeed where the delay is not fairly attributable to the applicant. On the facts, a discovery judgment reserved for 12 months was not attributable to it, the amendments were pressed promptly once that application and the related leave application were resolved, no trial date was at risk, and any prejudice could be met by costs orders.
2Amendments that do no more than enlarge upon an estoppel by convention already pleaded in a reply will generally be allowed. Where the plea relies on written communications rather than oral statements, it can be tried on the documents without significant prejudice from the passage of time. Objections of a technical, pedantic or pettifogging nature do not warrant refusal where the opposing party can ascertain the case it must meet.
3Statements by an interlocutory judge about the prospects of aspects of a claim, made when refusing specific discovery, create no res judicata and cannot be used to resist amendments in a way that amounts to summary judgment. However, an amendment used to plead privileged material into issue so as to force a waiver could be an abuse of process. That objection failed on the facts because the applicant was bound by its statement that it would not seek privileged documents.
