Thursday, 27 October 2011

Practice Point: Filing a Notice of Civil Claim further to a Writ

Consider the following situation.

Shortly before the new Rules came into effect, you filed an endorsed Writ.  Over a year later, the defendant filed an Appearance and the Registry accepted it.  Under R. 24-1(3), the Writ is deemed to be a Notice of Civil Claim and under R. 24-1(6), the Appearance is deemed to be a Response to Civil Claim.  However, you now want to file a proper pleading to set out your case, and are faced with a dilemma: how do you file a Notice of Civil Claim without wasting your one freebie amendment under R. 6-1(1)(a).

Rules 24-1(11) & (12) provide that a party must amend its pleadings to accord with the new Rules on demand.  This amendment does not count for the purpose of R. 6-1(1)(a).  However, R. 24-1 does not expressly allow a party to voluntarily amend its pleadings to comply with the new Rules without wasting the freebie.

Several possible solutions come to mind: (i) asking the opposing counsel to issue a demand; (ii) asking the opposing counsel to consent to the amendment under R. 6-1(1)(b); or (iii) issuing a demand under R. 24-1(11) and hoping that the other side will fire back with the same demand.

As it turns out, the answer is much simpler and does not require co-operation the opposing counsel:  the Registry will accept a Notice of Civil Claim (and likely a Response to Civil Claim) with the following header:
Amended pursuant to R. 24-1.
Writ of Summons filed ______.
They will accept this even if no demand under R. 24-1(11) was made by the other party.

So, if you find yourself in the above situation, don't waste your freebie!