The procedure governing amendment of pleadings is set out in the Act of Sederunt (Rules of the Court of Session 1994) 1994 (RCS) r. 24, the Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 (OCR) r. 18 and, in relation to alteration of a summons, etc. in a summary cause, the Act of Sederunt (Summary Cause Rules) 2002 (SCR) r. 13.

RCS r. 24.4 provides that:

OCR r. 18.6 is in similar terms but SCR r. 13 makes no mention of expenses in relation to alteration of a summons, etc. in a summary cause, thus leaving it to the inherent discretion of the sheriff to make such expenses order as is appropriate.

The default position in the Court of Session and under the Sheriff Court ordinary cause rules is that the party making the amendment will automatically be found liable for the expenses occasioned by the amendment unless the motion to amend seeks an alternative expenses order and the court is satisfied that it would be just and equitable not to find the party undertaking the amendment liable. If the motion that is presented to the court is silent on the issue of expenses the default position will be, or at least should be, reflected in the court’s interlocutor.

Unless the amendment is formal in nature and does not require a period for answers, adjustment and a procedural hearing, the expenses occasioned by amendment procedure can be significant. It is all too often the case that insufficient regard is had by agents and counsel to the adverse costs award that an amendment procedure will ultimately give rise to. Often lack of early preparation or the timeous ingathering of skilled person reports leads to the record being closed before the pleadings are adequately developed and the attitude adopted is that ‘we can sort it out by lodging a minute of amendment’. But an amendment can frequently give rise to a contra account totalling thousands of pounds.