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Court of Appeal urges lawyers to get “back to basics” on pleadings


Documents are drafted of interminable length, says appeal court

It is time for pleadings to get “back to basics”, the Court of Appeal said yesterday after suggesting that “practitioners have, on occasion, lost sight” that their aim is to help the court and the parties.

Lord Justice Christopher Clarke said: “Documents are drafted of interminable length and diffuseness and conspicuous lack of precision, which are often destined never to be referred to at the trial, absent some dispute as to whether a claim or defence is open to a party, being overtaken by the opening submissions.

“It is time, in this field, to get back to basics.”

The court was ruling on an appeal against a case management order that the claimant in Hague Plant Ltd v Hague & Ors [2014] EWCA Civ 1609 [2] could not re-amend its particulars of claim.

HHJ Behrens in Leeds had decided that the draft pleading was “disproportionate in the sense that it would not lead to the litigation being conducted at proportionate cost and would lead to further extensive judicial time being expended at the expense of other litigants”.

Giving the main judgment, Lord Justice Briggs recounted: “In slightly more detail, he concluded that the draft pleading was constructed in a style which failed to comply with the primary requirement of a pleading, namely that it should include a concise statement of the facts upon which the claimant relies, so as to clarify rather than obscure the issues…

“Large parts of it consisted of detailed citation of the first defendant’s position as set out in previous litigation between the parties, in disclosure, transcripts, pleadings, witness statements and part 18 information, and all in a document five times longer than the original particulars of claim, including much which, because it was merely responsive to the re-amended defences, could perfectly well have been included in a reply.”

He said that the judge’s conclusion did not of itself prohibit the claimant from seeking to re-plead all or part of the underlying content in a different way, “and indeed the claimant has applied for permission to re-plead parts of that content by an application which has been stayed, pending this appeal, but which is in due course to be heard by the Vice-Chancellor Norris J”.

The claimant argued that HHJ Behrens was wrong to decide that the pleading would increase the weight, cost and duration of the case without a detail analysis of the extra work which would be required.

Dismissing the appeal, Briggs LJ said he “emphatically” disagreed. “A judge is, in my view, perfectly entitled to apply both his general and particular experience to these questions without spelling out, in analytical detail, the reasons for his conclusions about the increased cost and burden, both to the parties and the court, threatened by a substantial proposed re-amendment.

“Furthermore, it strikes me as obvious that a quintupling in the length of particulars of claim, all of which would need to be pleaded to in re-re-amended defences, would threaten just such increases in work, length and cost, even if significant parts of the re-pleaded material could be found within part 18 exchanges, existing defences, or statements and transcripts in earlier proceedings.”