PLEADINGS: ARE THEY STILL IMPORTANT? THREE RECENT CASES REVIEWED

There has yet to be a definitive review of the principles relating to pleadings under the Civil Procedure Rules.  Here we look at some recent cases where the Court of Appeal has considered the importance of pleadings.

Skrzynski –v- Metropolitan Police   [2014] EWCA Civ 9

The case related to an incident where the police stopped two (wholly innocent) young men. There was a collision between two cars. An issue came upon the defendant’s pleaded case in that it was said that the defence that was put was not compatible with the defendant’s pleaded case.  Tomlinson L.J. observed:-

1. 3.     The Defence in this action unsurprisingly asserted the contemporary belief of the officers that the Claimants were implicated in the recent burglary and also asserted that at a critical point in the incident the driver of the Audi had driven into a police vehicle whilst moving forward and accelerating. The evidence in support thereof, in the shape of the witness statement of the driver of the police vehicle, Sergeant Holt, asserted the sergeant’s belief that in so doing the driver of the Audi was attempting to evade being stopped by the police. At the beginning of his cross-examination of the driver of the Audi Mr Julian Waters for the Commissioner tendered an apology to the Claimants for the incident which had occurred, explaining that it was accepted by the Commissioner that the Claimants had had nothing to do with the burglary which had occurred. In putting his case as to the manner in which the Audi came to strike the police vehicle Mr Waters suggested, not unnaturally in the circumstances, that in manoeuvring into the police vehicle the driver of the Audi had acted accidentally rather than deliberately – the significant feature of course being not the motivation of the driver of the Audi but the reasonable inference which the officers would derive from his conduct. Mr Simon Browne QC for the Claimants objected, suggesting that it was not open to the Commissioner to put his case on this basis and suggesting also that the Commissioner was now put in difficulty in defending the case by his belated acceptance that the Claimants were not implicated in the burglary.
2. 4.     Mr Browne did not follow up his objection by seeking a formal ruling on the question whether the case being run was open on the pleadings, so that is an end of the matter. Guidance as to how situations of this nature should be dealt with was given by Lawton LJ in Rolled Steel Products Holdings Limited v British Steel Corporation & Others [1986] 1 Ch 246 at 309-310:-

“I wish however to add a comment about the pleading points which have had to be considered in this appeal. From the way they were raised by counsel and dealt with by the trial judge, I was left with the impression that neither the judge nor defending counsel appreciated as fully as they should have done the need for precision and expedition when dealing with pleading points.

My recent experience in this court shows that some counsel and judges are not giving pleadings the attention which they should. Pleadings are formal documents which have to be prepared at the beginning of litigation, they are essential for the fair trial of an action and the saving of time at trial. The saving of time keeps down the costs of litigation. A plaintiff is entitled to know what defences he has to meet and the defendant what claims are being made against him. If the parties do not know, unnecessary evidence may be got together and led or, even worse, necessary evidence may not be led.

Pleadings regulate what questions may be asked of witnesses in cross-examination. When counsel raises an objection to a question or a line of questioning, as Mr Morritt did on a number of occasions, the trial judge should rule on it at once. He should not regard the objection as a critical commentary on what the other side is doing. If the judge does not rule, counsel should ask him to do so. If a line of questioning is stopped because it does not relate to an issue on the pleadings, counsel should at once consider whether his pleadings should be amended. If he decides that they should, he should forthwith apply for an amendment and should specify precisely what he wants and the judge should at once give a ruling on the application. The principles upon which amendments should be allowed are well known and are set out in the current edition of the Supreme Court practice.”

See also Hawksworth v Chief Constable of Staffordshire and Another [2012] EWCA Civ 293 where the above passage was cited. However there was nothing in Mr Browne’s objection which was in my view quite misconceived. The pleading was simply to the effect that “the driver of the Audi accelerated and drove into the police carrier”. It was entirely open to the police to assert at trial that that had occurred as a result of an accident rather than as a deliberate act, albeit that it was reasonably perceived by the officers at the time as a deliberate act. The pleading encompasses both possibilities. It was in fact the Claimants’ case that the police vehicle had deliberately rammed the Audi. The judge rejected that case and concluded that neither driver had intended to make contact with the other vehicle. What had occurred was an accident, explicable in the light of the honestly held beliefs of each driver as to what the other was trying to achieve. There is no substance in the argument that the judge reached a conclusion which was not open to him on the basis of the Defendant’s pleaded case. The judge concluded that the vehicles came into contact in a manner which reasonably fuelled the officers’ suspicion that the occupants of the Audi were implicated in a recent crime. That was the pleaded case.”

Hawksworth v Chief Constable of Staffordshire and Another [2012] EWCA Civ 293 

This was an appeal by a claimant who was unsuccessful at trial in a case for injury to hearing whilst she was hearing earphones. There was an issue as to whether the defendant’s pleaded case covered the provision of sound attenuation software.   Tomlinson L.J. cited the passage from Rolled Steel Holdings above and dealt with an argument from the claimant that the defendant’s pleaded case was inadequate.

“From that passage in the judgment of Lawton LJ it is apparent that the approach taken by Mr Pratt at the trial was simply insufficient. If Mr Pratt was concerned that the defendants were adducing evidence and seeking to rely upon it in a manner which departed from their pleaded case, it was plain that it was incumbent upon him to invite the judge to rule upon his objection. Had that course been taken, then it would have been incumbent upon Mr Rankin in turn to apply for an amendment to the pleadings if that was thought necessary. I have to say for my own part that I am very doubtful whether the judge would in fact have upheld Mr Pratt’s objection or acquired an amendment to the pleadings. I have already referred to the form of the defence which is not a model of clarity, but from which it is certainly possible in my judgment to deduce that the point that was being made by the defendants was that the EDAIU, or the fixed parts of the integrated communication control system, did not contain any internal noise limiter and that did not prevent them from pointing out that there were other pieces of noise limitation equipment inherent both in the headset — to which specific reference was made in paragraph 5 of the pleading — and in the handset, about which evidence was given by Mr Lovell and which formed a very significant part of the debate at trial. I doubt therefore whether the objection would have been successful, but, even so, if the line which Mr Pratt wished to take on behalf of the appellant was that this evidence should not be permitted or that its giving was prejudicial, he should have insisted on the judge making a ruling on it. Had that been done, and had the judge been prepared to accede to the application, there would have been an opportunity for Dr Holliday to test the sound attenuation software, if he thought that necessary”

 RUTH IRELAND v DAVID LLOYD LEISURE LTD [2013] EWCA Civ 665

This was an appeal by a defendant after judgment had been given for the claimant who was injured whilst using some gym equipment.  The defendant argued that the claimant’s pleaded case was inadequately particularised. The judge made preliminary findings of fact and then invited the parties to make submissions as to the law. Ryder L.J. stated the position.

 “17. The defendant declined to join issue with the Recorder’s request for assistance on the legal issues raised on the facts as found or the submissions made by the claimant. Instead, the defendant reserved its position on the law and submitted that the court

had misdirected itself in that the findings of fact were not open to the court on the

claimant’s pleaded case. It was submitted that that left the court with only two

options: either to decide the facts on the pleaded case and find against the claimant or

in effect put the claimant to her election and consider an application if made to amend

the pleadings”.

Having decided to base the defendant’s case on an allegation of inadequate pleadings the defendant lost. One of the primary grounds of appeal was that the pleadings were inadequate.

“The thrust of the defendant’s primary complaint from the adjournment of the trial to

date has been that the pleadings are inadequate. Let me say straight away that

inadequate pleadings are the bane of a judge’s life and can cause real injustice to the

party who is misled, particularly where there is no skeleton argument to explain the

case. That said, it is all too often the case that good pleadings are supplemented by

verbatim explanations of the obvious in skeletons that involve considerable repetition

to no good effect. Again, Mr McDonald helpfully focuses his complaint in the

following way:

i) The claimant was required to set out all of the facts necessary to establish the

cause of action she asserts i.e. a concise statement of facts upon which she

intends to rely at trial: CPR 16.4(1)(a)

ii) The claimant’s case differed from the judge’s findings both as to the

mechanism of the injury and the hidden nature of the danger in respect of

which a specific warning was required

iii) The prejudice to the defendant could only have been met by an application to

amend the pleading which the defendant concedes could only properly have

been refused.

31. It is perhaps unsurprising that a claimant who has been the victim of a traumatic

amputation which occurs in a way that she had not foreseen and which she had little

opportunity to analyse contemporaneously is thrown back on a general pleading. The

task of determining how the accident occurred was not assisted by the failure of the

defendant to ask for particulars of the position of the rubber block identified in the

Part 18 replies. That was then aggravated by the genuine mistake that was made on

the part of the defendant’s witness in exhibiting to his witness statement a photograph

of a Smith machine that is neither the actual machine nor, it is said, the same model as

the actual machine. In any event, the photograph relied upon until a better quality

photograph was produced to the court during evidence did not show a machine which

had a rubber block in the same position as that which trapped the claimant’s finger.

32. The defendant sought and obtained clarification about the claimant’s pleaded case in

her replies to a Part 18 request. The mechanism of injury was adequately pleaded in

the Part 18 reply. The purpose of a Part 18 request is to obtain clarification of a

party’s pleaded case. The mischief asserted is that the defendant did not understand

the significance of the position of the rubber block because it was not particularised

and because their operations manager did not have a photograph of the actual machine

until the latter part of the day on which he gave evidence. In so far as the operations

manager was disadvantaged by not having an adequate photograph of his own

machine until the court asked for one to be produced, one has limited sympathy

bearing in mind that the manager concerned asserted in evidence that he had inspected

the machine for the purposes of an ‘assessment’ after the accident. The defendant had

ample opportunity to request an adjournment to adduce additional evidence or to

undertake an inspection during the period of the adjournment that was necessitated.

Just as it chose not to ask for further particulars of the Part 18 reply, so it chose not to

ask for an adjournment. A party who seeks to rely upon an entirely proper but tactical

decision on the pleadings must weigh up the possible consequences of that decision.   

33. The consequence here is that the judge and this court might consider the pleadings to

be adequate. I do. The Recorder was generous to the defendant in analysing the fact

that the position of the block was not identified and that a specific warning was not

pleaded in terms even though the mechanism and particulars of breach were perfectly

adequate in general terms. The Recorder examined the asserted prejudice to the

defendant and given the fact that it is conceded that he would have likely refused an

application to amend the pleadings at that late stage, the only question was whether

the defendant was being denied the chance to adduce evidence about the block and the

specific danger it represented. Given that the defendant’s witnesses knew nothing of

the block and the defendant chose not to ask for an adjournment, it is unsurprising that

the Recorder concluded as he did that further evidence would not assist.”

 GENERAL POINTS ABOUT PLEADINGS

Many Particulars of Claim, particularly in road traffic accidents, tell the courts nothing about how the accident occurred.  Many defences “deny” everything, without appreciating the differences between a denial and a non-admission (In the first you are going to call evidence to contradict the claimant’s assertion, in the second you are putting the other side to proof of what they say).

CONCLUSIONS AND PRACTICAL ADVICE

• Pleadings remain important.
• If a point is going to be taken about the nature of the other side’s pleaded case this has to be taken at once and the judge asked to rule on the point.
• It is brave to base a case on the basis of inadequate pleadings alone.