OVER-LENGTHY PLEADINGS SOME EXAMPLES AND SOME LESSONS
The recent post on the Court of Appeal upholding a decision not to grant permission for over-elaborate particulars of claim has led to some comments on the length of pleadings (“229 paragraph Particulars of Claim” “I’ve got 32 page prof neg PoC in front of me where damages were pleaded at £1k-£1.5k!”). There are some other interesting examples of over-elaborate pleadings and requests, with the courts almost desperate to ensure proportionality.
The claimant was a barrister who had acted for the company under the direct access scheme. When the defendant received the Particulars of Claim they sought legal advice and an application was made to strike out the particulars on the grounds that they were an abuse of process. The claimant barrister was suing for fees allegedly due. The Particulars of Claim was some 221 pages long. The judge observed:
- The Particulars of Claim is 221 pages long. According to Mr Dunn he has devoted a total of 628.25 hours in drafting it and the documents comprising what he describes as the pre-action protocol. At the end of the Particulars of Claim Mr Dunn seeks a number of declarations as to a number of points of the contract between himself and Glass Systems. He then seeks £50,212 (unpaid cash flow instalments) and continuing at the rate of £5,000 per month from 1st January 2007, payment of £166,602.32 as damages in the alternative to costs or in the further alternative as fees. He also claims interest and costs on the indemnity basis.
- Before dealing with criticisms of the Particulars of Claim in detail Mr Grant made a number of general points:
1. This is a fee dispute between a barrister and his client under a Public Access Agreement. The dispute arises in the context of an instruction given at the end of July 2005 to prepare Particulars of Claim. Those Particulars were eventually prepared, or purportedly prepared, in April 2006.
2. It follows that on the face of it the dispute (absent the novel fact that the claimant is not a solicitor but a barrister) is of a fairly run of the mill nature. It is analogous to a claim by solicitors for their fees.
3. At the very heart of the Public Access Rules, which of course constitute a new and fundamental departure in respect of the way barristers are retained, is the requirement for transparency and clarity as regards the nature of the work the barrister is required to do and the fee basis for that work. This requirement is embodied in those Rules at Rule 6:
“A barrister who accepts public access instructions must forthwith notify his lay client in writing, and in clear and readily understandable terms of [the various aspects set out therein]”. Given the necessity for clarity, any dispute about fees arising of a direct access agreement should be capable of being stated with conciseness and brevity.
- He submits that it should be possible to plead a case for overdue fees in a relatively few pages. There can be no justification for a 221 page document.
A FLAVOUR OF SOME OF THE CRITICISMS
“6.4. Criticisms in the skeleton argument
- In paragraphs 49 – 64 of the skeleton argument Mr Grant sets out his criticisms of the Particulars of Claim. Although it will necessarily lengthen this judgment I think it important to set out paragraph 49 in full and to summarise the remainder:
49.Simply reading through the Particulars of Claim reveals that it is prolix and largely unintelligible. The disproportionate length at which the document is pleaded renders it impossible to identify the actual points which it seeks to make. It is not merely that the Particulars of Claim do not constitute a concise statement of the facts on which Mr Dunn relies, but that no identifiable statement of those facts is offered at all. It would be disproportionate to attempt to set out fully even the major faults with Mr Dunn’s statement of case (the topic will, insofar as necessary, be addressed in oral argument), by way of example:
(1) Paragraph 5 purports to deal with “Particulars of the Contract”. It is 32 pages long [2/3/22-52]. It is not clear what aspect of the alleged contract Mr Dunn seeks to particularise over those pages: the pleading seems to be simply a collection of evidence, observations and allegation, none of which appear aimed at narrowing or identifying the issues in dispute between the parties. For instance “Particular mm” is simply “13.12.05 Claimant’s e-mail containing further detailed explanation of 3rd draft fee agreement”. Why has Mr Dunn included this? What contractual significance does it have? How is Glass supposed to plead to it? The authors of this Skeleton do not know the answers to these questions.
(2) What is important is that this section is not a statement of the terms of the Contract: that is to be purportedly found at Paragraphs 7 – 24, themselves 21 pages long [2/3/52-73]: yet the written fee agreement Mr Dunn attaches as Appendix 4.1 is only 6 pages long. It is submitted that a plea of 21 pages of “terms” of a contract between barrister and client under a direct access basis is scandalous and oppressive.
(3) Despite the space devoted to the topic, however, it is not possible to identify which terms Mr Dunn wishes to rely on, what the source of those terms is, and what relevance they have to the causes of action which Mr Dunn seeks to assert. There is no obvious link between the matters pleaded by Mr Dunn in his statement of case, and the causes of action asserted against Glass in his Claim Form. Mr Dunn includes allegations which clearly are irrelevant to his claim in breach of contract. See, for example, the allegation that Glass’ director Mrs Wallis acted with an “intention to deceive”: paragraph 33.h.iii [2/3/117].
(4) Mr Glass sets out the purported breaches of contract by Glass over 38 pages, under the heading “Breach+chronology” [2/3/93-131]. Again, it is impossible to ascertain from the statement of case “the facts on which the claimant relies” (CPR 16.4(1).
(5) Paragraphs 36 to 37 [2/3/131-141] contain no less than 10 pages of “Particulars of wilful default and bad faith” and “collateral intent”. Indeed these phrases are littered throughout the Particulars of Claim. The purpose of these paragraphs, other than to be prejudicial is not apparent. But in any event it is quite inappropriate for a barrister to be making such allegations in such a form.
(6) Paragraphs 38 to 40 [2/3141-146] relate to “Inaccuracy of assumptions and misrepresentations” and “Inappropriateness of assumptions and representations” and “Defendant acting with collateral intent – laying foundation to impose terms”. The authors of this Skeleton are bewildered by these paragraphs, not just because they have nothing to do with any cause of action asserted, but because they are unintelligible. Take Paragraph 40: “In the premises the Defendant’s inappropriate assumptions…were made with admitted collateral intent”.
(7) Paragraphs 41-55 of the statement of case, running to over 80 pages [2/3/146-226] do not even purport to contain any statement material to Mr Dunn’s causes of action. Instead, they consist of lengthy extracts from correspondence, supplemented by comment and invective. This is not the proper content of a statement of case.
- In paragraph 50 Mr Grant makes the point that the claim for fees is for £50,000. It is grossly disproportionate for Mr Dunn to spend 628 hours in preparing the Particulars of Claim. He makes the point that it is disproportionate for Glass Systems to have to incur the expense of instructing lawyers to deal with the allegations.
- In paragraph 51 he submits that the situation is analogous to that in Wallis v Valentine  EWCA Civ 1034, on which the White Book comments at 3.4.3:
“The claim was being brought not to vindicate a right, but to cause expense, harassment or commercial prejudice beyond that normally encountered in the course of properly conducted litigation.”
- In paragraphs 52 to 57 Mr Grant submits that it is impossible to plead to the Particulars of Claim because of a number of stylistic devices employed by Mr Dunn:
1.The use of referential pleadings. Even where Mr Dunn has chosen to head a section “Particulars” it is not the case that all relevant particulars are contained therein. Instead, allegations are made by reference to other parts of the document. Mr Grant gives as example the references in paragraph 28, 34, 5 and 40.
2.Unfocussed peppering of allegations. Mr Dunn saturates almost every paragraph of his Particulars of Claim with unfocussed allegation against Glass and its directors, allegations whose relevance to Mr Dunn’s claim in breach of contract is not made clear, yet to which Glass is expected to plead. On occasion those allegations are preceded by the words “it is alleged and averred that”; often they are not. Extracting the allegations from this morass, let alone collating and then pleading to them, would be an enormous, not to say impossible, task. Mr Grant gives as examples the particulars given in paragraph 5, and the allegations of bad faith, deceit in paragraph 33.
3.Irrelevance. Mr Grant submits that part of the Particulars of Claim is wholly irrelevant: He cites the allegation in paragraph 34 that Mrs Wallis hindered and prevented compliance with the Code of Conduct. In paragraph 35 Mr Dunn has set out the procedure for making a complaint to the Bar Standards Board.
- Paragraph 58 represents a completely separate allegation incorporating what is – in effect – Basis 4 of the application.
58.Inappropriate Content/Persistent pleading of evidence. In breach of CPR r.16.4(1), Mr Dunn’s pleading makes no attempt to include “a concise statement of the facts on which the claimant relies”. Mr Dunn does not just include evidence instead of fact, he actually reproduces verbatim the contents of (privileged) correspondence between the parties. These extracts are more often than not followed by Mr Dunn’s comments on their contents, e.g.:
(1) Paragraph 45 [2/3/158-181] comprises 24 pages of lengthy, verbatim extracts from correspondence between the parties, with each extract followed by comment, purportedly in the form of allegation and averment, on the matters contained therein.
(2) Paragraph 48 [2/3/190-203] consists entirely of block, verbatim quotations from privileged emails between the parties followed by comment and further evidence. These comments appear to be a muddle of observation and allegation, which in turn make identifying allegations almost impossible.
(3) As a practising barrister Mr Dunn must be well aware that the inclusion of lengthy extracts from documents is not permitted by 16PD paragraph 8.1, and comment on documents is a matter for witness statements.
(4) The view that Mr Dunn has failed to distinguish between the role of pleadings and witness statements in drafting the Particulars of Claim is supported by other elements of the Particulars of Claim. Although paragraph 28, for example, is headed “Particulars”, it in fact amounts to a 16-page chronology/witness statement, littered with allegations, averments and lengthy quotations of evidential documents.
A complaint was made that the Particulars also dealt with privileged matters which the claimant had no authority to waive.
THE JUDGE’S VIEW
- In my view these submissions are wholly unrealistic – I may have used somewhat stronger language during the course of Mr Dunn’s submissions. If I did I apologise. The facts of this case are a mile from the facts in either the Three Rivers case or the Arrow Nominees case. The observations of Tomlinson J and Chadwick LJ plainly have no application.
- This is a claim where the only actual work carried out by Mr Dunn for Glass Systems is the production after some 10 months of a Particulars of Claim. He is seeking to charge in excess of £85,000 for that work. He is further alleging that his retainer entitles him to £5,000 per month irrespective of any work carried out. He is further contending that he is entitled to costs (which he describes as damages) which already exceed £300,000. In addition he seeks to persuade the court to grant punitive costs in excess of this. To suggest that such a claim is suitable for summary judgment and/or that Glass Systems should not be allowed a proper amount of time to prepare a defence or to apply to strike out the claim is to my mind fanciful. The case bristles with highly arguable defences. Indeed I shall examine some of them later in this judgment.
- It may be that some of the language used by Mr and Mrs Wallis in some of the e-mails may have been somewhat strong. It may well be that they will contend that their comments were justified. However the comments do not begin to justify a case of dishonesty against Mr and Mrs Wallis.
- Equally the conduct in what Mr Dunn describes as the pre-action protocol period does not begin to justify the relief sought by Mr Dunn. During that period Mr Dunn sent amongst other things a 40 page document which he alleged summarised his case. At one stage in his oral submissions he said he knew what their answer to it was; at another he said they did not reply. Either way it is not conduct that justifies a refusal to allow Glass Systems to defend the action. Furthermore as Mr Dunn was contending that he was entitled to charge Glass Systems £265 per hour in respect of the preparation of the document it was probably prudent of them not to answer.
- In my view all of Mr Dunn’s submissions under this head and in relation to his application to strike out the application are hopeless and to be rejected. Mr Grant however makes the point that they are part and parcel of the oppressive way that Mr Dunn has been conducting this litigation. I shall return to this point at the end of the judgment.
THE EXCESSIVE LENGTH OF THE PARTICULARS OF CLAIM
- I am satisfied on the basis of the authorities cited by Mr Grant that there is power to strike out the Particulars of Claim on the grounds relied on by him. The Court, however, will only take such a course in an extreme case as a matter of last resort – especially if it is open for the Claimant to bring a new claim. As Mr Dunn points out to strike out a claim may only add to the delay and the cost.
- I have read the Particulars of Claim and am satisfied that the complaints made by Mr Grant are justified. I agree with the view that it ought to be possible to plead the claim in comparatively few pages. The sheer length of the pleading makes it oppressive. It takes over a day to read it in detail. If a full defence is to be filed it will no doubt take many days and many hours to respond. In my view any trial based on this document will be unmanageable and excessively long. I also agree with the criticisms that it contains a mass of details which are irrelevant to the cause of action. There can, for example, be no justification in devoting 18 pages to analysing one e-mail that is not on any view a contractual document. I agree that it was not appropriate for the Particulars of Claim to attempt to deal with points that Mr Dunn assumed would be in the Defence. He should have waited for the Defence. I agree that the Particulars of Claim contains a large amount of evidence. I also agree that it contains a large number of terms that are simply incomprehensible – such as collateral intent, continuing to withhold on basis of presumption, continuing to withhold on basis of presumed fault. Mr Dunn does not appear to understand the meaning or relevance of the word dishonesty. His claim is a claim for fees under a contract and/or damages for breach of contract. It is neither relevant nor appropriate to make allegations of dishonesty simply because Glass Systems are challenging those fees. It could equally be said that Mr Dunn was being dishonest in seeking to claim those fees and costs in this action. However Mr Grant was careful (and in my view correct) to make it clear that he was not making an allegation of dishonesty against Mr Dunn.
The action was struck out on the grounds that the Particulars were in themselves oppressive. The conduct of the action was oppressive and claims were made which were unrealistic.
PLEADINGS IN A DEFAMATION ACTION
REQUESTS FOR FURTHER INFORMATION
Issues over requests for further information can also be wholly disproportional. In Lexi Holdings -v- Pannone and Partners  EWHC 1416 (Ch) Mr Justice Briggs considered the claimant’s opposite to a lengthy request for further information from the defendant.
(“the RAPOC”), and to replies, dated 19th December 2008, to an earlier request for
information dated 1st December 2008 (“the Replies”). It consists of some thirty one
questions, covering ten pages. To some extent it repeats earlier, unanswered, requests. In
other parts it seeks information for the first time about the important re-amendments in the
RAPOC, which I permitted to be made on 8th July 2009, in circumstances described in
paragraphs 16 and 71 to 81 of the 2009 Judgment.
4. It is not suggested by the defendants that they need the information requested in order to plead
a full defence, or to understand the ambit of their disclosure obligations. A full re-reamended
defence was served in March 2010, and disclosure has now been given, albeit after
the present application was issued on 31st March 2010. Rather, it is said that the defendants
require the information for the purpose of completing work on their witness statements (now
due for exchange in October this year) and in certain respects in order for them fully to
understand the case which they have to meet. Emphasis was placed by Mr Patrick Lawrence
QC for the defendants upon the fact that the RAPOC now alleges that the defendants had both
actual and constructive knowledge of the fact that the managing director of the claimant, one
Shaid Luqman, had no authority to instruct the defendants to make the payments complained
about in this claim, but made them nonetheless, in circumstances where those payments are
alleged to have formed part of the process by which Shaid Luqman dishonestly
misappropriated tens of millions of pounds from the claimant. The allegation that solicitors
made payments of the claimant’s money knowing that the instructions to make those
payments were unauthorised is, as is common ground, a very serious allegation of dishonesty.
5. The claimant’s response to the RFI was, by letter dated 11th March 2010 from its solicitors, to
decline to provide any of the information requested, on the grounds that:
“The requests set out in that document (the RFI) are not reasonable,
necessary or proportionate in order for your clients to understand our
client’s claim. Our client’s claim is more than adequately
particularised in the Particulars of Claim, Reply, Points of Reply in
relation to the illegality defence and responses to previous Requests
for Further Information.”
The claimant has (according to a costs schedule served for the purposes of this application)
since then incurred costs in excess of £50,000 in defending its refusal to respond to the RFI,
including a sum in excess of £29,000 in counsel’s fees. To have provided the information
requested, regardless whether the defendants strictly needed it, would (taking a necessarily
broad brush) have cost the claimant rather less then one tenth of the total sum expended in
resisting the provision of any of it. Mr Philip Marshall QC for the claimant explained that, in
the claimant’s view (and, I infer, the view of its legal team) the defendants’ conduct of the
case thus far had been characterised by an extravagant, improper and inappropriate attitude, including excessive requests for early disclosure, a misconceived summary judgment
application, and repetitive requests for information, such that it was time for the defendants’
approach to be curtailed by what he described as “a good rap on the knuckles”.
6. The court was presented with no less than ten lever arch files of documents supposedly
relevant to the application, one from the defendants and nine from the claimant, without any
attempt by the claimant to confine their contents to what was either necessary or likely to be
needed by the court. The result of the claimant’s apparent wish to enforce procedural
rectitude on the defendants has been a hearing attended by leading counsel on both sides
lasting more than half a day, a further day’s judicial preparation and judgment writing, and
the expenditure of more than 150 hours of time by the parties’ solicitors and counsel, in
relation to a purely procedural dispute which, so far as I have been able to ascertain, the
parties made no attempt whatsoever either to compromise or significantly to narrow.
7. It ought not to be necessary, more than ten years after the introduction of the overriding
objective and the CPR, to have to say that such an approach to the resolution of interim
procedural disputes is wholly unacceptable. The litigation of issues of bad faith and
dishonesty may of course generate intense feelings of bitterness on both sides, and a
determination to leave no stone unturned, regardless of cost, and all the more so in high value
cases such as this one. Nonetheless the parties and their legal teams are obliged by CPR 1.3
to help the court to further the overriding objective. While a case is being prepared for trial
this requires the parties and in particular their legal teams to put on one side their
understandable feelings of mutual outrage and hostility, and to cooperate with each other in a
process of preparation for trial which incurs only proportionate costs and uses no more than
an appropriate share of the court’s resources.
8. As will appear from the remainder of this judgment, neither party is solely to blame for the
disproportionate expense and court time taken up by this application. In many respects the
RFI went well beyond what is contemplated by the CPR, (in contrast with the regime for
further and better particulars under the RSC), and was pursued in full in the face of
correspondence from the claimant which should have led to a substantial reduction in the
information sought. Nonetheless some of the requests were properly made and the claimant’s
decision to oppose the provision of any of the information requested out of a desire to
administer a procedural rap on the knuckles to its opponent was in my judgment equally
inappropriate, at least without a serious attempt to identify what might sensibly be provided,
at modest cost, by way of response, or some real prior attempt to explore a procedural
THE TEST FOR PART 18 QUESTIONS
9. The regime for further information introduced by Part 18 is based upon the tests of necessity
and proportionality. Paragraph 1.2 of the Practice Direction to Part 18 provides that:
“A Request should be concise and strictly confined to matters which
are reasonably necessary and proportionate to enable the first party to
prepare his own case or to understand the case he has to meet.”
The CPR thus takes a more restrictive approach to what used to be regarded as an entitlement
to particulars under the RSC, for reasons explained by Lord Woolf MR in McPhilemy v.
Times Newspapers Ltd  3 All ER 775 at 792 to 3:
“The need for extensive pleadings including particulars should be
reduced by the requirement that witness statements are now
exchanged. In the majority of proceedings identification of the
documents upon which a party relies, together with copies of that
party’s witness statements, will make the detail of the nature of the
case the other side has to meet obvious. This reduces the need for particulars in order to avoid being taken by surprise. This does not
mean that pleadings are now superfluous. 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.
As well as their expense, excessive particulars can achieve directly
the opposite result from that which is intended. They can obscure the
issues rather than providing clarification. In addition, after disclosure
and the exchange of witness statements pleadings frequently become
of only historic interest.”
I shall apply the test identified in paragraph 1.2 of the Part 18 Practice Direction in the
remainder of this judgment.
10. Some indication that the defendants’ request was not framed with that test in mind appears
from its preamble, which is as follows:
“Where a request seeks particulars of matters relied upon in support
of an allegation of knowledge (actual or constructive), the claimant is
requested to set out all matters so relied upon with the utmost
particularity so that (for instance) where a particular communication
is relied on, it is identified by author, recipient, date. The defendant
may apply for an order striking out any allegation of knowledge
which is insufficiently particularised.”
This paragraph is to my mind redolent of an attitude which treats particulars as a rigid
entitlement, and particulars of knowledge as having to achieve a preconceived level of detail,
regardless of its practical effect in terms of providing enlightenment as to the claimant’s case.”
The judge then carried out a detailed examination of the requests and the claimant was ordered to provide replies to some but not others. The order made for costs, who paid the costs and the amount is not recorded.