The Federal Court decision in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal  8 CLJ 1 sets out a significant clarification on the principles for amendment of pleadings very close to trial (as opposed to amending pleadings at the beginning of proceedings).
This decision adds additional requirements to the Federal Court case of Yamaha Motor  1 MLJ 21 which originally, set out three basic requirements: (i) whether the application was bona fide; (ii) whether the prejudice caused to the other side can be compensated by costs; and (iii) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character.
Unlike the position in the 1980s, in this case, the Federal Court emphasised that this is the new era of pre-trial case management with the amendments to the RHC in 2000 and now with the ROC 2012. In this case, the amendment application was filed 2 weeks before the first trial date and 13 years after the filing of the suit.
(a) When dealing with an application to amend the pleadings, which introduce a new case in the claim or defence, on the eve of the trial, the principles in Yamaha Motor are not the sole considerations.
(b) The principles in Yamaha Motor applies to cases where the application to amend the pleadings is made at an early stage of the proceedings.
(c) That there has to be a cogent and reasonable explanation in the applicant’s affidavit as to why the application was filed late.
(d) That the application to amend the pleadings is not a tactical maneuver.
(e) That the proposed amendment must disclose full particulars for the court to ascertain if there is a real prospect of success in proving the same. Note, this would mean producing enough documentary evidence in the affidavit in support and not with just bare assertions on affidavit.
(f) That lateness in the application to amend the pleadings cannot necessarily be compensated by payment of costs.