IF YOU ARE GOING TO DRAFT PLEADINGS THEN DO IT PROPERLY: A REPLY AND DEFENCE TO COUNTERCLAIM IS NOT A MERE FORMALITY
A post last month highlighted a case where a defendant obtained judgment in default on a counterclaim. The judge refused to set aside the judgment and, in effect, the claimant’s entire claim failed. There is a clear and obvious need for a Defence to Counterclaim to be lodged. However a failure to do this properly could be just as bad as not doing it at all. The problems that inadequate pleadings can cause can be seen in the judgment of Master Matthews in Muhammad -v- ARY Properties Limited  EWHC 1698 (Ch). The judgment also contains important observations on the matters that must be pleaded in a defence (which includes a defence to counterclaim).
- A short Reply and Defence to Counterclaim was inadequate and was liable to be struck out.
- The Defence to Counterclaim should comply with CPR 16.5 and give reasons for the denial of allegations and details of the claimant’s case with appropriate particularlity.
- It was no answer to state in the Defence that an allegation lacked particularity and was “embarrassing”, it had been open to the claimants to ask for further information.
- The proposed amended Reply and Defence to Counterclaim did not fully comply with CPR 16.5 and a peremptory order was made giving the claimants a last opportunity to plead their case properly.
The claimants were bringing an action for moneys allegedly due, rectification of a property register and possession of a property. The First Defendant filed a defence and counterclaim. The claimants filed a short Reply and Defence to Counterclaim. The Defendant applied to strike out the Reply and Defence.
THE MASTER’S COMMENTS ON THE DEFENCE AND COUNTERCLAIM
The Claimants’ Reply to the amended Defence and defence to counterclaim of the First Defendant is dated 9 October 2015. It was not signed by counsel, and was evidently drafted by the Claimants’ solicitors. It consists of eight short paragraphs, four for the Reply, and four for the defence to counterclaim. The latter read as follows:
“5. Paragraph 54 of the counterclaim is admitted, in that the Claimants sought and obtained the entry of the unilateral notice, but not that the Claimants had in any sense improperly altered the 2009 Charge.
6. The express and implied implications of dishonesty made at paragraphs 55 and 56 of the counterclaim are strenuously denied.
7. Paragraph 58 of the counterclaim is admitted, in that the Claimants do not agree to vacate the unilateral notice, but is denied as to the balance of that paragraph.
8. The entitlement to relief claimed at paragraph 59 of the counterclaim and in the Prayer to the counterclaim is denied.”
It will be noted that there is no pleading as to para 57 of the counterclaim (altered 2009 charge not executed by or on behalf of, and not a valid instrument binding on, the First Defendant).
The Claimants’ solicitors subsequently provided what they called a “Clarification” of the reply and defence to counterclaim, dated 3 November 2015. It is six paragraphs long. It says in para 1 that it is to provide voluntary clarification of the Claimants’ case in relation to paras 55-57 of the Amended Defence and counterclaim of the First Defendant. In summary, the remainder says that during a meeting in Pakistan between the First Claimant and ARY, the latter produced a copy of the original 2009 charge and offered the Claimants the benefit of it. It was then altered in the way already described, and the director of Turquoise was asked for and gave his consent. It does not however plead to para 57 of the counterclaim.
“1. That the Claimants’ Defence to the First Defendant’s counterclaim be struck out;
a. Fails to comply with the requirements of CPR Part 16.5 in that it fails to respond to material allegations raised by the counterclaim at paras 55 and/or 56 and/or 57, does not explain denials set out in the defence to counterclaim and does not set out the Claimants’ version of events in respect of matters raised by the counterclaim; and
b. Discloses no reasonable grounds for defending the counterclaim.”
In the alternative the First Defendant seeks summary judgment. I will come back to that. For the moment I will concentrate on the striking-out part of the application.
“(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.
(2) The court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.”
CPR rule 16.5
By the application notice, the First Defendant seeks to strike out the defence to counterclaim on two bases. The first is a failure to comply with CPR rule 16.5. The second is that there are no reasonable grounds for defending the counterclaim. As to the first of these, rule 16.5 so far as material provides as follows:
“(1) In his defence, the defendant must state –
(a) which of the allegations in the particulars of claim he denies;
(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and
(c) which allegations he admits.
(2) Where the defendant denies an allegation –
(a) he must state his reasons for doing so; and
(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.
(3) A defendant who –
(a) fails to deal with an allegation; but
(b) has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant,
shall be taken to require that allegation to be proved.
[ … ]
(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.
[ … ]”
“10.1 Rule 16.5 deals with the contents of the defence.
10.2 A defendant should deal with every allegation in accordance with rule 16.5(1) and (2).
10.3 Rule 16.5(3), (4) and (5) sets out the consequences of not dealing with an allegation.
[ … ].”
1. In relation to para 55 it does not deal with the allegations as to the parties to the original 2009 charge, nor the allegation that the altered 2009 charge was not a genuine instrument; nor (if they are denied) does it give reasons;
2. In relation to para 56, no reasons are given for the denial;
3. Para 57 is not pleaded to at all.
In consequence, it says it “is left in the dark as to the case it will have to meet at trial”. It also says that the Claimants have had “every opportunity” to put things right.
In my judgment there is some force in these criticisms of the pleading, and if it were to remain in this form there would be a basis for granting at least some relief (eg an unless order giving the party an opportunity to put the matter right). However, between the original and the adjourned hearing of this application, the Claimants prepared and served a proposed Amended reply and defence to counterclaim, settled by Mr Roseman. It is a much longer and more detailed document than the current version, some ten pages against less than two. In my judgment this sufficiently deals with the criticism set out above at no 3 in paragraph 18.
But in my judgment it does not sufficiently deal with no. 1 or no. 2. As to no. 1, it is still not clear what the Claimants say about the allegations as to the parties to the original 2009 charge, or the allegation that the altered 2009 charge was not a genuine instrument, and nor (if denied) is it explained why. The claim that the averment is “embarrassing” is not enough. If the Claimants wished more information about this allegation they could have asked for it. As to no. 2, it is simply unclear whether the Claimants are proffering paragraphs 8 and 11 as reasons or not. If they are not, they need to give reasons. If they are, it is unclear what the reasons actually amount to.
Whilst it appears that the First Defendant has no objection in principle to this amendment being permitted, but has something to say about the costs, I do not think I can leave the matter once raised in this state. But given the willingness of the Claimants to amend to put right pleading defects, it would not be right for me to strike out immediately when there is no reason at this stage to suppose that these problems cannot be put right. What I propose therefore to do is to make an unless order giving the Claimants 14 days to produce a draft amended reply and defence to the First defendant’s defence and counterclaim, which complies fully with CPR rule 16.5 and the Practice Direction para 10, in default of which I will refuse permission to amend and strike out the existing defence to counterclaim.
RELATED POSTS ON PLEADINGS
- A case you must read if you think pleadings are not important.
- Increasing costs and mystifying pleadings: a warning to those drafting defences
- Plead a defence properly or be struck out
- Pleading a defence properly: the difference between a “non-admission” and a “denial” explored.
- Pleadings – are the still important? Three recent cases reviewed.
- Pleadings should contain facts not argument or rhetoric
- Pleadings, evidence and putting the claimant to proof
- Pleadings must be concise – or else!
- Over-lengthy pleadings some examples and some lessons
- Back to basics with pleadings
- Pleading proof & evidence: confusion in one often leads to problems with the other.
- Late amendment of pleadings: a relative concept
- Amending pleadings: A review of the principles: what is meant by “late”?
- Amending pleadings late 1.
- Amending pleadings late 2.
- Amended pleading filed late: relief from sanctions refused.
- Litigate in haste and you won’t necessarily be allowed to amend at leisure.
- Late amendment to pleadings should not have been allowed.