Not for the court to redraft pleadings, High Court says as it strikes out defence

Royal Courts of Justice

Mr Pepperall: defence “not just far too long”

It is not the court’s role to redraft pleadings in the hope of producing an “intelligible defence”, the High Court has said.

Edward Pepperall QC, sitting as a High Court judge, said a 55-page amended defence drawn up by sole practitioner Robert Gamson bore “no resemblance to a professionally prepared statement of case”.

Mr Pepperall said Mr Gamson had eliminated “some material” from the pleading after an instruction at a hearing in January to “take a red pen” to it.

However, the judge said the defence was “not just far too long and impenetrable, it is littered with unnecessary commentary and excessive recitation of evidence”.

He went on: “One might think that the 25-page rule would be most often flouted in complex multi-million-pound commercial litigation.

“However, the Commercial Court guide draws attention to the usual limit and requires parties to seek permission before filing a statement of case in excess of 25 pages in length.

“A good draftsman can, in my experience both judicially and as a commercial barrister, plead even a very complex and high-value claim in no more than 25 pages.

“I do not accept that this case is anywhere near as complicated as the detail in this amended defence suggests. As I indicated in argument, the particulars of claim are not, at least to my taste, as tightly drafted as they might be.

“Nevertheless, once one ignores the cover sheet, they succeed in setting out the claimants’ case over 17 pages. I see no reason why Mr Gamson has not been able to plead Ms B’s case within the same number of pages, and certainly in no more than 25 pages.”

Mr Pepperall said counsel for the claimant was right to argue that the case could not be allowed to go to trial on the basis of the current defence.

“I know from my own involvement in this protracted interlocutory hearing that the document is unwieldy and that its very length and complexity tend to obfuscate rather than clarify the issues.

“Having heard detailed submissions, I have given anxious consideration as to whether the court should itself undertake a line-by-line analysis of the pleading striking out the material that should not be there in the hope that it leaves an intelligible defence of an appropriate length.

“Ultimately, I have, however, concluded that it is not for the court to redraft a party’s pleading.”

The High Court heard in Brown and another v AB [2018] EWHC 623 (QB) that Dr Ernest and Mrs Brenda Brown are founders and owners of Maple Hayes Hall, a special school in Lichfield.

In their litigation against AB, the mother of a former pupil, Dr and Mrs Brown claim that Ms AB “falsely and maliciously” published statements in 2016, alleging that Mrs Brown verbally abused and beat their daughter with a walking stick.

Dr and Mrs Brown applied to strike out the defence or for summary judgment, while the defendant sought to amend her defence or strike out most of the claims, or for summary judgment.

Mr Pepperall gave permission for Mr Gamson, who did not have rights of audience in the senior courts, to address him.

The judge gave AB permission to amend her defence and withdraw an admission that it was not true to say that “lots of children had been treated badly”.

However, he dismissed the defendant’s application to strike out the claim and for summary judgment, although he did strike out one allegation from the particulars of claim, based on a Facebook post.

Mr Pepperall struck out the defendant’s amended defence and ordered the defendant to file a fresh defence, no longer than 25 pages in length.

“For the avoidance of doubt, I direct that the defence should be printed on A4 paper in not less than 11-point font and 1.5-line spacing. Overall length is not to be achieved at the expense of legibility.”

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