What is meant by the “pleadings” in a civil case?
The word “pleadings” is an example of a word which has a different meaning in the parlance of lawyers than it commonly carries in modern speech. The “pleadings” are not the oral argument in a civil case; nor are they the oral testimony of the parties or of their witnesses; nor the documents produced to the judge as items of evidence; nor the experts’ reports or their proofs of evidence, whether produced in open court or not.
To understand the nature and purpose of the pleadings in a civil case, it is necessary to contrast civil litigation with its criminal counterpart. If a defendant is prosecuted for a criminal offence in the magistrates’ court or the crown court, he will be served with notice of the charge, by one means or another, yet (although there are technical rules to ensure that the charge is drafted informatively and unambiguously) the charge will not be, in any sense, a detailed notice of all the facts upon which the prosecution proposes to rely.
The defendant will not be in a position to assess the strength of the prosecution’s case and perhaps not even to know the prosecution’s underlying assertions of fact, until he has seen (if he can) the statements of the principal witnesses for the prosecution. However, having seen these, he will not be under any obligation to make an equivalent disclosure of his own case to the prosecution (except to the extent that he may be relying on an “alibi” defence).
The purpose of the pleadings in a civil action is to define the facts in issue at a time before the action has been set down for trial. Unlike the position in criminal law, this is a duty which rests no less heavily upon the defendant than it does upon the plaintiff. If the defendant wishes to make positive averments of fact (whether in his defence or in a counterclaim or in both) he must “plead” those facts and must not attempt at the trial to take his opponent by surprise.
It is important to remember that the pleadings, although they will be far more informative than (say) an indictment in a criminal case, will not be the same thing as a detailed account of what each witness proposes to say. The purpose of the pleadings is to set out allegations of fact, but not to recount or preview the evidence with which it is proposed to prove those facts. This gives us our first rule about the law and practice of pleadings — namely, that they must contain “facts, not evidence”.
Facts, not evidence
Although it is not the purpose of the pleadings to set out the evidence which the various witnesses are expected to give, it is not permissible for any of the witnesses to make allegations of fact which have not been pleaded. If either of the parties wishes to broaden the issues in a case after the pleadings have been closed, that party must obtain the agreement of the other party or seek leave of the court to “amend his pleadings”. Such a procedure inevitably carries with it the duty to pay all the costs thrown away by this exercise — “in any event”.
In other words, even if the party carrying out the amendment eventually succeeds in his claim, counterclaim or defence, he will nevertheless have to pay his own costs and the costs of the other party occasioned by the amendment. This will include the costs of any application to the court, the costs arising out of any adjournment, and the costs of the other party in amending his own pleadings so as to respond to new allegations.
It should also be borne in mind that the court is not obliged to grant an application for leave to amend the pleadings. In Farrell v Secretary of State for Defence [0] 1 All ER 166 the plaintiff (the widow of a man who had been killed by the army) alleged negligence and trespass to the person against the soldiers who had shot him. As the case developed, it became apparent that negligence could have been committed only by an officer commanding those soldiers (if by anyone at all) and that no such negligence had been pleaded in the statement of claim. In the House of Lords it was argued, on behalf of the plaintiff, that judgment should still be given against the Secretary of State for Defence (who was vicariously liable for the conduct of both the soldiers and the officer) because the argument to the contrary was a “mere pleading point”. Lord Edmund-Davies dealt with this submission by stating that it was “bad law and bad practice” to shrug off a criticism as a “mere pleading point”. It was the essential purpose of pleadings “to define the issues and thereby to inform the parties in advance of the case they have to meet”. The House of Lords took the view that an allegation of negligent or unlawful conduct by private soldiers (who had been told that they were guarding a bank against a terrorist attack) was different in substance from an allegation that a superior officer had negligently deployed his troops and had left them with no choice but to open fire with deadly effect when they saw (what they believed to be) an attack upon the bank. (In fact, the plaintiff’s husband was a thief, but not a terrorist, and he was robbing a pedestrian, not attacking the bank.) Although, therefore, it is no longer possible to be “non-suited” in a civil case because of a mere technical error in the pleadings, it is nevertheless possible to lose a case because the wrong defendant has been sued or because the correct defendant has been sued but made the subject of a misconceived allegation.
“Further and better particulars”
Although the pleadings do not correspond to proofs of evidence in a civil case (these are not usually shown to the other party), there is nevertheless a limit as to how concise the pleadings may legitimately be. If a pleading is uninformative, ambiguous, Delphic or vague, it is the right of the other party to make a request for “further and better particulars”. If the other party refuses to supply these particulars, the party requesting them may apply to the court for an order that they be given. The ultimate sanction for failing to comply with such an order can be the striking out of the pleading in question, so that the other party may proceed to obtain judgment without the need for a trial. Allegations of negligence, of misrepresentation, of fraud, or agreements made orally or in writing are all examples of allegations which should be particularised in the pleadings containing them, and they may therefore be made the subject of a request for further and better particulars if they are baldly stated but not sufficiently identified, itemised, or otherwise described. For example, if a building surveyor is sued for negligence in carrying out a survey, the plaintiff will have to include in his claim full particulars of what defects the surveyor overlooked, what inspections he failed to carry out, and what conclusions from observable facts he failed to infer. Similarly, if a party to a contract is relying upon an oral term, or an oral representation, made by the other party or his agent, he must give in his claim (or counterclaim or defence) full particulars of when and where the alleged statement was made, by whom, and (as nearly as possible) in what words it was put. If a party to a contract is relying upon an implied term, he is similarly expected to plead this and (if it arises from a statutory provision) to give particulars of its origin.
If further and better particulars have been asked for and have been given, the particulars thus given then form part of the pleadings. Naturally, the right to request such particulars is not limited to the defendant in a civil case. If a defendant files a defence and/or a counterclaim which makes an allegation against the plaintiff (eg an allegation of misrepresentation, put forward as a defence to a claim for breach of contract), that plaintiff will be entitled to ask for further and better particulars of that allegation if it is unfairly vague. There is no right, however, to ask for further and better particulars of a denial or a non-admission.
Likewise, there is no right to ask for further and better particulars of an allegation if, as a matter of law, the party asking for those particulars has the burden of disproving the allegation which has been made. An example of this principle is provided by Nimmo v Alexander Cowan & Sons [8] AC 107 (mentioned in “Mainly for Students” on February 3 1990). In this case the plaintiff sued his employer after he was injured in a factory accident. He relied upon an alleged breach of the Scottish version of section 29(1), Factories Act 1961, which requires every employer to provide and maintain factories as “safe” places of work, “so far as is reasonably practicable”. The employer applied for further and better particulars of this allegation, requiring particulars of precautions which he allegedly ought to have taken but allegedly had not taken. It was held by the House of Lords that the employer was not entitled to these particulars, because Parliament had (impliedly) placed the burden of proof on him to show why it was not practicable for him to have made the factory safer than it was at the time of the accident. The only obligation of the plaintiff was to plead the fact of the accident and its immediate cause, to set out his reliance on the statutory duty, and to give particulars of the injuries and losses sustained by him.
Facts, not law
The pleadings are allegations of fact, supported (where necessary) by particulars of those allegations. They are not arguments of law. They must not be confused with “skeleton arguments” submitted by counsel in appeals to the Court of Appeal or to the House of Lords. It is not appropriate for the pleadings to contain arguments of law because points of law do not (usually) have to be proved as if they were matters of evidence.(*) However, there are some exceptions. For example, questions of foreign law always have to be proved as matters of evidence (usually by calling expert witnesses) and it is always necessary to give particulars of any Act of Parliament relied upon if this creates a relevant statutory duty or introduces a relevant implied term into a contract. Thus it will always be necessary for a plaintiff (or a defendant) to make it clear that he is relying upon such statutes as the Occupiers’ Liability Act 1957 or the Defective Premises Act 1972 or the Supply of Goods and Services Act 1982. Similarly, an Act of Parliament may introduce a remedy for a common law or equitable cause of action, and it will usually be necessary for the party seeking that remedy expressly to plead his reliance upon that Act — for example, the Misrepresentation Act 1967 or the Law Reform (Frustrated Contracts) Act 1943. However, wherever it becomes necessary to cite a section of an Act of Parliament, no further particulars need be given.
It should be noted that it is never necessary to cite cases in a pleading, except where the case may be the well-known name for a rule of law or for an otherwise innominate cause of action. For example, it would not be wrong for a plaintiff who has suffered damage because of the escape of something on to his land from his neighbour’s land to state in his claim (if it were otherwise appropriate for him to do so) that he was relying upon “the rule in Rylands v Fletcher” — the textbook name of the tort derived from the case reported at (1868) LR 3 HL 330.
The course of pleadings
The names of the various pleadings differ (slightly) depending upon whether the case is being brought in the High Court or in the county court or by way of arbitration. In the High Court, the plaintiff’s first pleading is called his “Statement of Claim”. In the county court it is called his “Particulars of Claim”. In arbitration proceedings he himself is called the “claimant” (not the “plaintiff”), and his first pleading is called his “Points of Claim”. In the High Court and the county court the defendant must file a “Defence” and, if he wishes to claim some remedy against the plaintiff, he must also file a “Counterclaim” (hence his first pleading is often entitled “Defence and Counterclaim”). In arbitration proceedings, the defendant is referred to as the “respondent”, and his first pleading is called “Points of Defence” or “Points of Defence and Counterclaim”. If a counterclaim has been filed, the plaintiff (or claimant) must file a “Defence to Counterclaim”. Whether or not a counterclaim has been filed, the plaintiff (or claimant) may wish to reply to some new assertion of fact made in the defendant’s defence, eg an allegation of misrepresentation or waiver of rights or total failure of consideration. In such a case the plaintiff (or claimant) will be able to file a “Reply” or a “Reply and Defence to Counterclaim”. Likewise, the defendant (or respondent) is entitled to file a “Reply” to the other party’s defence to counterclaim.
(*) For this reason, disputes of pure law are often begun in the Chancery Division, without pleadings, using an “originating summons” rather than a writ.
An example of pleadings
As an example we will use the High Court decision reported by Sandi Murdoch in “Legal Notes” on April 1 1989 (a somewhat significant date): Harker v Frank Enstone & Associates:
Statement of Claim
1. The Defendants are a firm of chartered surveyors carrying on business at — Purfleet.
2. On or about — the Defendants were instructed by the — Building Society to carry out an inspection of a house known as “Spooky Hollow”, Purfleet, for the purposes of valuing that house as security for a proposed loan to the Plaintiffs.
3. The Defendants were at all material times aware that the Plaintiffs were the intended purchasers of the said house for the purpose of residing therein.
4. The Defendants knew that the Plaintiffs would be supplied with a copy of their valuation report and would rely thereon in deciding whether the said house was fit to be used as a residence and/or was worth no less than the Defendant’s valuation therein.
5. By reason of the matters aforesaid, the Defendants owed a duty of care to the Plaintiffs to use reasonable care and skill in their inspection of the said house and in their use of facts known to them (or available to them) as a firm of chartered surveyors carrying on business in the locality of that house.
6. In breach of the said duty of care, the Defendants inspected the said house in a negligent manner, and failed to make use of and/or to communicate facts known to them, or available to them, locally about the habitability of the said house, and advised in their valuation report that the house was worth £150,000.
7. The Plaintiffs relied upon the Defendants’ valuation report, and bought the said house for £150,000, and commenced living therein on — 1988.
8. By reason of the Defendants’ negligence, the Plaintiffs have suffered loss and damage.
Particulars(*)
(a) The said house is haunted by poltergeist phenomena and is unfit for habitation.
(b) The Plaintiffs’ collection of Ming China has been broken by poltergeists.
(c) The Plaintiffs’ pack of Rottweilers has become hysterical, timid and easily frightened, and has had to undergo veterinary attention to make it aggressive again.
(d) The Plaintiffs have suffered emotional upset, distress, sleeplessness and periodic bouts of extreme fear…
Defence
1. Paragraphs 1, 2 and 3 of the Statement of Claim are admitted.
2. As to paragraph 4 of the Statement of Claim, the Defendants admit that they knew that the Plaintiffs would be supplied with a copy of their valuation report, but deny that they knew that the Plaintiffs would rely on that report in deciding whether to buy “Spooky Hollow” or to use it as a residence. The Defendants aver that the Plaintiffs were expressly enjoined in the said report to obtain their own surveyor’s report and not to rely upon the Defendants’ inspection for any purpose whatsoever.
3. Paragraph 5 of the Statement of Claim is denied. The Defendants aver that they owed no duty of care to the Plaintiffs either as alleged or at all.
4. Paragraph 6 is denied, save that the Defendants admit that they advised the — Building Society that the said house was estimated, in good faith, to be worth £150,000.
5. Paragraphs 7 and 8 are not admitted. The Plaintiffs are put to strict proof of each and every averment therein.
Request for Further and Better Particulars
Of: Paragraph 6: “In breach of the said duty of care, the Defendants inspected the said house in a negligent manner, and failed to make use of and/or to communicate facts known to them, or available to them, locally about the habitability of the said house…”
Please state particulars of the alleged negligence, and particulars of each and every fact which the Plaintiffs aver could have been (but was not) communicated to them by the Defendants by virtue of their local knowledge.
Reply to Request for Further and Better Particulars
Particulars of Negligence
(a) Failing to use an Ectometer;
(b) Failing to note and/or to have regard to the presence of bat droppings in the roof space of a size and potency far beyond the capabilities of any British bat… (and so on, see [9] 13 EG 75).
PS Sceptics should read McGhee v London Borough of Hackney (1969) 210 EG 1431.
(*) In practice, this part of the pleadings would be divided into particulars of general damage and particulars of special damage (eg repair bills and medical expenses).
