There was a time not too long ago when I used to notice an error in my pleadings and feel frustrated. I would think to myself, “Oh no, now I have to either make an application, or at best, cover the cost of a consent order fee if the Defendant agrees.”
My opponent said an application wasn’t required if the parties agreed to an amendment. I’ve used it and suggested it to other opponents also. When an amendment is uncontentious, parties should use an alternative to court to resolve the issue.
Amendments made before service
According to CPR 17.1(1), one can amend pleadings before service without issues, including the Claim Form after issue but before service. Even the statement of value (but failing to take steps to pay the necessary increased issue fee could be an issue. Also one needs to make sure a party doesn’t fall foul of Lewis and others v Ward Hadaway (a firm) [2015] EWHC 3503 (Ch)).
The issue really only arises once pleadings have been served.
CPR 17.1(2)(a)
The rule is “if his statement of case has been served, a party may amend it only with the written consent of all the other parties“. I expect the confusion lies with the phrase ‘written consent’.
Many will see this and believe what this is interpreted to mean is that a party must do so by a consent Order. However, if one considers CPR 17.1(2)(b) ‘or with the permission of the Court’ it is clear that CPR 17.1(2)(a) and CPR 17.1(2)(b) are mutually exclusive. Either you agree with written consent or you need the Court’s permission.
One might argue that a consent order does not require permission from the court, but in fact that is exactly what it entails. I once had a lawyer inquire whether a Judge could reject a consent Order. Of course, they can, just like parties can consent to relief from sanction, but it will be for the court to consider whether it should approve the Order.
Can the Court disregard an amendment made without the Court’s permission?
The short answer is yes.
CPR 17.2(1) states “If a party has amended their statement of case where permission of the court was not required, the court may disallow the amendment.”
Upon arriving at court, one may find that the judge is unsatisfied with the amendment and may need to seek retrospective permission. However, there is case law that would suggest that the Court would need to be cautious as it could be deemed inappropriate to disallow an amendment that was agreed between the parties (Cape Distribution Ltd v Cape Intermediate Holdings Plc [2016] EWHC 1786 (QB)).
Is there a limitation to amendments without the Court’s permission?
An amendment that takes place after the expiration of the limitation period may need to consider whether CPR 17.4 is affected. Whilst an amendment that is made with the written consent of the parties is not expressly considered in CPR 17.4, as CPR 17.2 will give the Court the ability to disapply the amendment.
If the amendment is going to add or substitute a party, then this cannot be done without the Court’s permission as CPR 17.1(3) states “if a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4.”
Practical points
Remember to make it clear on the face of it that the amendments are in accordance with CPR 17.1(2)(a).
Invite (in open correspondence) the other party to agree to the amendment. Explain why it should be allowed and agree to any reciprocal amendments that might be required (to a defence or reply to a defence). If the other party makes an unreasonable refusal, one could include the correspondence with any application made to the Court under CPR 17.1(2)(b).
Most importantly, do not forget that when an amendment takes place, irrespective of whether it is under CPR 17.1(2)(a) or CPR 17.1(2)(b), a new statement of truth needs to be signed to affirm that the amendment is true.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.