A “DEFENCE STRAIGHT OUT OF THE 1970S”: DEFENDANT’S PLEADINGS 40 YEARS OUT OF DATE

Some defences are inadequate. Some are (rightly) struck out. Some do not recognise the essential difference between a non-admission  and a denial. A series of denials is, the case law makes clear, an inappropriate and archaic way of proceeding.

“Churchill’s defence could not be more basic. It is a combination of bare denials and non-admissions of the kind that the Civil Procedure Rules was designed to sweep away. It is, bluntly, an insurer’s defence straight out of the 1970’s”

A DEFENCE OUT OF THE 1970’s

Mr Justice Coulson’s judgment  Findcharm Ltd -v- Churchill Group Ltd [2017] EWHC 1109 (TCC) has gained  attention for the observations  he made in relation to Precedent R and costs budgeting. There is also a telling paragraph in the judgment about the way in which the defence is pleaded.

1. In contrast to Findcharm’s detailed pleaded claim, Churchill’s defence could not be more basic. It is a combination of bare denials and non-admissions of the kind that the Civil Procedure Rules was designed to sweep away. It is, bluntly, an insurer’s defence straight out of the 1970’s. For example, despite the fact that the explosion happened in its hotel, Churchill does not even formally admit the cause of that explosion.

    THE DIFFERENCE BETWEEN A NON-ADMISSION AND A DENIAL

   It is worthwhile having a look at the requirements of CPR 16.    There is an important difference between a non-admission and a denial.

• If you don’t admit an allegation you are merely asking the claimant to prove it.
• If you deny the allegation then you have to go on to state why you are denying it and, if you have a different version of events, what the version of events is.

POLICING THE RULES

This distinction was considered  by Mr Justice Bean in Dil -v- Commissioner of Police for the Metropolis [2014] EWHC 2184 (QB).   The defendant in that casepleaded that certain allegations were “neither confirmed nor denied”.

Mr Justice Bean stated:-

“One of the most important recommendations made by Lord Woolf in his Access to Justice report in 1996 was that pleadings should not be technical documents, and in particular that “the Defence will set out the defendant’s detailed response to the claim and make clear the real issues between the parties”

The judge rejected an argument that a failure to fully plead the case should lead to the defence being struck out. Rather, if the defendant failed to plead a fully particularised case within the time specified he was to be taken to admit them.

THE RULES

CPR 16.5.

Content of defence

16.5

(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.

(4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.

(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.