Key Principles of Pleading in Civil Proceedings
The Preparation of
Pleadings
Kerwyn Garcia
Attorney at Law
Rule 8.6(1) of the Consolidated Civil
Proceedings Rules 2016 (“
the CPR
”)
Claimant’s duty to set out his case
8.6
(1) The claimant must include on
the claim form or in his statement of
case a short statement of all the facts
on which he relies
.
Rules 10.5(1) and 10.5(2) of the CPR
Defendant’s duty to set out his case
10.5
(1) The defendant must include in
his defence a statement of all the facts
on which he relies to dispute the claim
against him.
(2) Such statement must be as short as
practicable.
“The pleadings must contain fair and proper
notice of the issues intended to be raised.
This is essential to prevent the other party
being taken by surprise”.
Palmer v Guadagni [1906] 2 Ch 494, per
Swinfen Eady J at page 497
.
“Cases must be decided on the issues on the
record; and if it is desired to raise other issues
they must be placed on the record by
amendment. In the present case the issue on
which the judge decided was raised by himself
without amending the pleadings and in my
opinion he was not entitled to take such a
course”.
Esso Petroleum Company Ltd v Southport
Corporation [1930]1 KB 628, per Lord Norman at
page 634
“To shrug off a criticism as “a mere pleading
point” is ... bad law and bad practice. For the
primary purpose of pleadings remains, and it
can still prove of vital importance. That
purpose is to define the issues and thereby to
inform the parties in advance of the case they
have to meet and so enable them to take
steps to deal with it.”
Farrell v Secretary Of State For Defence [1980] 1
WLR 172, per Lord Edmund-Davies, at page 180
“...the purpose of pleadings is to define the
issues and give the other party fair notice of
the case which he has to meet”.
Barclays Bank v Boutler [1999] 4 All E.R. 513,
per Lord Hoffman at page 517
“Pleadings are still required to mark out the
parameters of the case that is being advanced by
each party. In particular they are still critical to
identify the issues and the extent of the dispute
between the parties. What is important is that the
pleadings should make clear the general nature of
the case of the pleader. This is true both under the
old rules and the new rules.”
McPhilemy v Times Newspapers Ltd [1999] 3 All ER
775, per Lord Woolf MR at pages 792–793
[quoted
and applied by the Privy Council in Bernard v
Seebalack
[2010] UKPC 15, at para 15].
“For the sake of certainty and finality, each party is
bound by his own pleading and cannot be allowed to
raise a different or fresh case without due amendment
properly made...
It is no part of the duty or function of the court to enter
upon any inquiry into the case before it other than to
adjudicate upon the specific matters which the
parties themselves have raised by their pleadings....”
Jacob, ‘The Present Importance of Pleadings’,
published in (1960) Current Legal Problems, at pages
171, 174
“Pleadings do not only define the issues
between the parties for final decision of the
court at the trial; they manifest and exert
their importance through the whole process
of litigation...They contain the particulars
and the allegations of which [Requests For
Information] may be requested or
ordered...They limit the ambit and range of
the [disclosure] of documents...
Cont’d…
They show on their face whether a reasonable
cause of action or defence is disclosed. They
provide a guide for the proper mode of trial and
particularly for the trial of preliminary issue of law or
fact. They demonstrate upon which party the
burden of proof lies and who has the right to open
the case. They determine the range of admissible
evidence which the parties should be prepared to
adduce at trial. They delimit the relief which the
court can award...”
Jacob, ‘The Present Importance of Pleadings’,
published in (1960) Current Legal Problems, at
pages 175 - 176
Mars v Al-Medinni
, reported on at
[2005]
EWCA CIV 1041 –
Consequences of Not Reading The Facts
Nickel’s Sports Club and Otis Thomas v Nigel
Scott CV 2017 - 03067
, per Mr. Justice Harris at
para 8:
“...the pleaded case for the claimant and
defendant [must].... foreshadow the evidence
contained in the witness statements whether in
support of the claim or in opposition to the
claim as the case may be
.
”
Zanim Meah John v Allsop and Others
CV2010-04559
Mr. Justice Kokaram on fraud under the
Real Property Ordinance
“10.
There was not, at this or at any material
time,
brought home
to the Third Defendant the
fact of any fraud in relation to the Power of
Attorney aforesaid. The Third Defendant’s
suspicions
in relation to the said Power of
Attorney
were not aroused
. The Third
Defendant did not
abstain from making
inquiries
concerning the said Power of
Attorney
for fear of learning the truth
. The Third
Defendant thereafter and at all material times
proceeded in relation to the said Power of
Attorney in
the honest belief that same was a
genuine document which could properly be
acted upon
”.
“The basic admonition to the lawyer who is sitting
down to write the Argument is simply this: never start
to write until you have thought the case through
and have completed your basic research. That
doesn’t mean every citation or footnote, but it does
include a reading, and, whenever required, a re-
reading, of all the important cases – because the
basic authorities are always full of suggestive leads
for further development.”
Oliver Wendell Holmes - Holmes-Laski Letters
684 (Mark D. Howe ed., 1953)
“Let us assume you have the information all
ready to assemble. Some of it is in your mind,
some of it in charts or other reports in front of
you, some of it in rough notes on a piece of
scratch paper. The ideas you want to put
across are clear enough to you, but expressing
them will take at least a couple of pages – and
maybe much more. You have lived with these
ideas; you are literally steeped in them. ‘How in
the world,’ you wonder, ‘am I to put the gist of
them in a short opening paragraph or section?
They’re just not that simple!’
Cont’d…
“You need to do the same thing that
practically every good writer has done since
the first cogent stone tablet was delivered by a
caveman messenger: Step back mentally from
the details and try to see just the essence of
the message. Admittedly, this is easier said
than done; but any writer of any message, no
matter how complex, can do it if he or he
wants.”
David W. Ewing “Writing Essentials for Results in
Business, Government and the Professions
“
In my judgment a balance must be struck
between the need for fair notice to be given
on the one hand and excessive demands for
detail on the other.
”
Madame Justice Mohammed, in
Jagessar
Agency Company Limited v The CEPEP
Company Limited CV 2018 – 00413
, quoting
from Lord Hope in
Three Rivers District Council
and ors v Bank of England (No 3) at para 49
.
“On the other hand it is clear that as a general
rule, the more serious the allegation of
misconduct, the greater is the need for
particulars to be given which explain the basis
for the allegation. This is especially so where
the allegation that is being made is of bad
faith or dishonesty. The point is well established
by authority in the case of fraud”
Lord Hope in The Three Rivers case
“The litmus test as it were, to start the conversation
about the adequacy of the pleadings, is simply this:
If the claimant were to prove the facts alleged in
the statement of case, would it make out a case for
a breach of contract/promissory note, executed as
alleged in the pleadings?
Similarly, if the defendant’s pleaded facts were to
be believed over that of the claimant would it
displace the claim and further, make out a
claim/defence on its Defence and counterclaim?”
Mr. Justice Harris in the Nickel’s Sports Club case
Devon County Council v Clarke [2005]
EWCA Civ 266, [2005] All ER (D) 285 (Mar)
The risks of overpleading
“Organizing thoughts before writing is
pleasant and profitably, but organizing after
writing is wasteful irritating, and inefficient.
Planning is not the second, third, or fourth
step; it must be the first.”
Arthur Schopenhauer, “On Style” (1851), in
Theories of Style in Literature 251, 269 (Lane
Cooper ed., 1923)
“Few write the way an architect builds, who
first sketches out his plan and designs every
detail. Rather, most people write only as
though they were playing dominoes, where
the pieces are arranged half by design, half by
chance; and so it is with sequence and
connection of their sentences”
Arthur Schopenhauer, “On Style” (1851), in
Theories of Style in Literature 251, 269 (Lane
Cooper ed., 1923)
“When you have found your idea… write it
down as nearly as possible as you would
express it in speech; swiftly, unselfconsciously,
without stopping to think about the form of it
all. Revise it afterwards – but only afterwards.
To stop to think about form in midcareer, while
the idea is in motion, is like throwing out your
clutch halfway up a hill and having to start in
low
again. You never get back your old
momentum”.
David Lambuth et al.,
The Golden Book on
Writing
(1964)
“No one can expect a finished essay in a
single draft, and no one (except the green
beginner or the newspaperman who is short
of time) ever tries. Although students have
ben told the virtues of second and third
drafts from the time they learned to write,
they are still reluctant to take the trouble.
Cont’d…
The results are scandalous. Sentences don’t
parse; verbs are written in the wrong person
and tense; the style is jerky; the order
disconcerting; very frequently, even the
sense is gone. The only way to iron out the
manuscript is to re-read it (read it aloud if
possible), correct it, revise it and rewrite it”.
Sherman Kent, Writing History (1949)
Pleadings in civil proceedings serve the critical purpose of defining issues and providing fair notice to all parties involved. Key rules such as claimant and defendant duties, need for concise statements of facts, and importance of informing parties in advance are emphasized through legal precedents. The proper preparation of pleadings helps prevent surprises and ensures a transparent legal process.
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Presentation Transcript
The Preparation of Pleadings Kerwyn Garcia Attorney at Law
Rule 8.6(1) of the Consolidated Civil Proceedings Rules 2016 ( the CPR ) Claimant s duty to set out his case 8.6 (1) The claimant must include on the claim form or in his statement of case a short statement of all the facts on which he relies.
Rules 10.5(1) and 10.5(2) of the CPR Defendant s duty to set out his case 10.5 (1) The defendant must include in his defence a statement of all the facts on which he relies to dispute the claim against him. (2) Such statement must be as short as practicable.
The pleadings must contain fair and proper notice of the issues intended to be raised. This is essential to prevent the other party being taken by surprise . Palmer v Guadagni [1906] 2 Ch 494, per Swinfen Eady J at page 497.
Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed amendment. In the present case the issue on which the judge decided was raised by himself without amending the pleadings and in my opinion he was not entitled to take such a course . on the record by Esso Corporation [1930]1 KB 628, per Lord Norman at page 634 Petroleum Company Ltd v Southport
To shrug off a criticism as a mere pleading point is ... bad law and bad practice. For the primary purpose of pleadings remains, and it can still prove of vital purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it. importance. That Farrell v Secretary Of State For Defence [1980] 1 WLR 172, per Lord Edmund-Davies, at page 180
...the purpose of pleadings is to define the issues and give the other party fair notice of the case which he has to meet . Barclays Bank v Boutler [1999] 4 All E.R. 513, per Lord Hoffman at page 517
Pleadings parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader. This is true both under the old rules and the new rules. are still required to mark out the McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775, per Lord Woolf MR at pages 792 793 [quoted and applied by the Privy Council in Bernard v Seebalack [2010] UKPC 15, at para 15].
For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made... It is no part of the duty or function of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters which the parties themselves have raised by their pleadings.... Jacob, published in (1960) Current Legal Problems, at pages 171, 174 The Present Importance of Pleadings ,
Pleadings do not only define the issues between the parties for final decision of the court at the trial; they manifest and exert their importance through the whole process of litigation...They contain the particulars and the allegations of which [Requests For Information] may ordered...They limit the ambit and range of the [disclosure] of documents... be requested or
Contd They show on their face whether a reasonable cause of action or defence is disclosed. They provide a guide for the proper mode of trial and particularly for the trial of preliminary issue of law or fact. They demonstrate upon which party the burden of proof lies and who has the right to open the case. They determine the range of admissible evidence which the parties should be prepared to adduce at trial. They delimit the relief which the court can award... Jacob, The Present Importance published in (1960) Current Legal Problems, at pages 175 - 176 of Pleadings ,
Mars v Al-Medinni, reported on at [2005] EWCA CIV 1041 Consequences of Not Reading The Facts
Nickels Sports Club and Otis Thomas v Nigel Scott CV 2017 - 03067, per Mr. Justice Harris at para 8: ...the pleaded case for the claimant and defendant [must].... foreshadow the evidence contained in the witness statements whether in support of the claim or in opposition to the claim as the case may be.
Zanim Meah John v Allsop and Others CV2010-04559 Mr. Justice Kokaram on fraud under the Real Property Ordinance
10. There was not, at this or at any material time, brought home to the Third Defendant the fact of any fraud in relation to the Power of Attorney aforesaid. The suspicions in relation to the said Power of Attorney were not Defendant did not inquiries concerning Attorney for fear of learning the truth. The Third Defendant thereafter and at all material times proceeded in relation to the said Power of Attorney in the honest belief that same was a genuine document which could properly be acted upon . Third Defendant s aroused. abstain the The Third from making Power said of
The basic admonition to the lawyer who is sitting down to write the Argument is simply this: never start to write until you have thought the case through and have completed your basic research. That doesn t mean every citation or footnote, but it does include a reading, and, whenever required, a re- reading, of all the important cases because the basic authorities are always full of suggestive leads for further development. Oliver Wendell Holmes - Holmes-Laski Letters 684 (Mark D. Howe ed., 1953)
Let us assume you have the information all ready to assemble. Some of it is in your mind, some of it in charts or other reports in front of you, some of it in rough notes on a piece of scratch paper. The ideas you want to put across are clear enough to you, but expressing them will take at least a couple of pages and maybe much more. You have lived with these ideas; you are literally steeped in them. How in the world, you wonder, am I to put the gist of them in a short opening paragraph or section? They re just not that simple!
Contd You practically every good writer has done since the first cogent stone tablet was delivered by a caveman messenger: Step back mentally from the details and try to see just the essence of the message. Admittedly, this is easier said than done; but any writer of any message, no matter how complex, can do it if he or he wants. need to do the same thing that David W. Ewing Writing Essentials for Results in Business, Government and the Professions
In my judgment a balance must be struck between the need for fair notice to be given on the one hand and excessive demands for detail on the other. Madame Justice Mohammed, in Jagessar Agency Company Limited Company Limited CV 2018 00413, quoting from Lord Hope in Three Rivers District Council and ors v Bank of England (No 3) at para 49. v The CEPEP
On the other hand it is clear that as a general rule, the more serious misconduct, the greater particulars to be given which explain the basis for the allegation. This is especially so where the allegation that is being made is of bad faith or dishonesty. The point is well established by authority in the case of fraud the is allegation the need of for Lord Hope in The Three Rivers case
The litmus test as it were, to start the conversation about the adequacy of the pleadings, is simply this: If the claimant were to prove the facts alleged in the statement of case, would it make out a case for a breach of contract/promissory note, executed as alleged in the pleadings? Similarly, if the defendant s pleaded facts were to be believed over that of the claimant would it displace the claim and claim/defence on its Defence and counterclaim? further, make out a Mr. Justice Harris in the Nickel s Sports Club case
Devon County Council v Clarke [2005] EWCA Civ 266, [2005] All ER (D) 285 (Mar) The risks of overpleading
Organizing pleasant and profitably, but organizing after writing is wasteful irritating, and inefficient. Planning is not the second, third, or fourth step; it must be the first. thoughts before writing is Arthur Schopenhauer, On Style (1851), in Theories of Style in Literature 251, 269 (Lane Cooper ed., 1923)
Few write the way an architect builds, who first sketches out his plan and designs every detail. Rather, most people write only as though they were playing dominoes, where the pieces are arranged half by design, half by chance; and so it is with sequence and connection of their sentences Arthur Schopenhauer, On Style (1851), in Theories of Style in Literature 251, 269 (Lane Cooper ed., 1923)
When you have found your idea write it down as nearly as possible as you would express it in speech; swiftly, unselfconsciously, without stopping to think about the form of it all. Revise it afterwards but only afterwards. To stop to think about form in midcareer, while the idea is in motion, is like throwing out your clutch halfway up a hill and having to start in low again. You never get back your old momentum . David Lambuth et al., The Golden Book on Writing (1964)
No one can expect a finished essay in a single draft, and no one (except the green beginner or the newspaperman who is short of time) ever tries. Although students have ben told the virtues of second and third drafts from the time they learned to write, they are still reluctant to take the trouble.
Contd The results are scandalous. Sentences don t parse; verbs are written in the wrong person and tense; the style is jerky; the order disconcerting; very frequently, even the sense is gone. The only way to iron out the manuscript is to re-read it (read it aloud if possible), correct it, revise it and rewrite it . Sherman Kent, Writing History (1949)
