STRIKING OUT A DEFENCE: FONT SIZE, LINE SPACING AND A MAXIMUM PAGE LENGTH ORDERED: PLEADINGS THAT “TEND TO OBFUSCATE RATHER THAN CLARIFY THE ISSUES”

In Brown & Anor (t/a Maple Hayes Hall School) v AB [2018] EWHC 623 (QB) Mr Edward Pepperall QC (sitting as a Deputy High Court Judge) struck out a defence that was . In giving the defendant another chance he made clear directions about the format of the pleading, including font size, line spacing and the use of A4 paper.

“the Amended Defence bears no resemblance to a professionally prepared statement of case… the document is unwieldy and that its very length and complexity tend to obfuscate rather than clarify the issues.“

THE CASE

The claimants operated a specialist school. They brought an action against the defendant stating the defendant had made untrue assertions about an incident at the school which concerned the defendant’s daughter.  A defence was filed.   One of the applications before the court was to strike out the amended defence.

STRIKE OUT OF THE DEFENCE

After considering a number issues the judge considered the nature of an Amended Defence.

1. 1. While there are further points of detail, Mr Howard’s overarching submission is that the Amended Defence is an impediment to the orderly trial of this case. He argues that it is a woefully drafted and confused document, that it is impossible to plead a Reply to such a pleading and that neither the Claimants nor the judge will know at trial the case that the Claimants must meet. Swathes of the pleading are castigated as irrelevant or incoherent. Parts are said to amount effectively to a witness statement.

   2. While Mr Howard recognises that it is a Draconian sanction, he seeks an order striking out the Amended Defence. He describes it as the fourth iteration and says that it should be the final bite of the cherry.

   3. In response, Mr Gamson conceded that the Amended Defence might not be a pleasing document, but submitted that provided the judge could find Ms B’s defence within the document, that was all that was required. He submitted that in pleading the Reply, Mr Howard would be able to sift comments from facts just as, Mr Gamson argued, Mr Howard had very ably demonstrated in his analysis of the Defence in oral submissions.

   4. In my judgment, the Amended Defence bears no resemblance to a professionally prepared statement of case:

107.1 It starts with a 3-page table of contents.

107.2 There are then two further tables summarising the contents of the pleading that run to a further 8 pages.

107.3 The pleading ends with a 3-page index.

107.4 The body of the pleading runs to 319 paragraphs over 55 pages, although in fairness some of that material has been struck through in an attempt to comply with my instruction at the end of the January hearing that Mr Gamson should take a red pen to his pleading.

107.5 The document is not just far too long and impenetrable, it is littered with unnecessary commentary and excessive recitation of evidence.

1. 1. Lord Woolf MR observed in McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775, at 793A, that statements of case are required to “mark out the parameters of the case that is being advanced by each party.” A pleading should identify the issues and the extent of the dispute between the parties, making clear the general nature of the case being advanced, but the exchange of witness statements should avoid the need for extensive detail. A statement of the facts relied upon by a defendant is required but should be concise.

   2. Lord Woolf MR cautioned as to the problems with excessive detail, at 793C:

“As well as their expense, excessive particulars can achieve directly the opposite result from that which is intended. They can obscure the issues rather providing clarification. In addition, after disclosure and the exchange of witness statements, pleadings frequently become of only historic interest.”

1. 1. In Tchenguiz v Grant Thornton UK LLP [2015] EWHC 405 (Comm), [2015] 1 All E.R. (Comm) 961 Leggatt J observed, a [1]:

“Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Still less should they contain arguments, reasons or rhetoric. These basic rules were developed long ago and have stood the test of time because they serve the vital purpose of identifying the matters which each party will need to prove by evidence at trial.”

1. 1. The usual expectation is that parties should be able to plead their cases within no more than 25 pages. Paragraph 1.4 of Practice Direction 16 provides:

“If exceptionally a statement of case exceeds 25 pages (excluding schedules) an appropriate short summary must also be filed and served.”

1. While the Practice Direction does not say never, it is plainly intended to discourage parties from filing longer statements of case. 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.

2. 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.

3. What then should the court do about this? Mr Howard is right in my judgment to submit that this case cannot 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.

4. 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.

5. In Tchenguiz, Leggatt J struck out a 94-page pleading and ordered the service of compliant particulars of claim. I consider that the same approach is appropriate here. I therefore strike out the Amended Defence.

6. I acknowledge the force of Mr Howard’s submission that Ms B has already amended her pleading once, and that she failed properly to reduce the length of her pleading when I made clear that that was required at the end of the hearing in January. Nevertheless, I am far from persuaded that she does not have an arguable defence and I do not consider that it would be proportionate simply to enter judgment against her. In my judgment, the Defendant should be afforded one last opportunity to file a proper defence in this case.

7. I therefore direct that the Amended Defence stands struck out and that the Defendant do file a fresh Defence that is 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.

8. I shall hear Mr Gamson at the conclusion of this judgment as to the time that should be allowed for that exercise, but I shall direct that unless the Defendant complies with my order, the Claimants be at liberty to enter judgment for damages and other relief to be assessed.”