LET US JUST IGNORE THE PLEADED CASE (MY PLEADED CASE ANYWAY): WHEN THE PARTIES COULDN’T EVEN AGREE ON A STATEMENT OF ISSUES
There is an interesting passage in the judgment of HHJ Klein (sitting as a judge of the High Court) in UK Learning Academy Ltd v The Secretary of State for Education  EWHC 2915 (Comm). It relates to the statements of case of both parties. If one party stated that it was appropriate for the court to go “off piste” in relation to the pleaded case, that applied equally to the other side’s pleadings. More fundamentally it raises important issues as to how how far the court should, in fact, depart from the pleaded cases in any event.
The claimant was bringing an action for additional sums due as a result of (it said) a variation in a contract to provide training. The defendant counterclaimed, stating that it was due the return of certain funds because of error rates in the claimant’s calculations.
THE STATEMENTS OF CASE
The statements of case
The parties’ statements of case are discursive, unstructured and, in places, difficult to follow.  Counsel who represented the parties at trial did not draft the initial statements of case and, although they may have had some input in the amendment of those documents, understandably, those documents were used as the framework for the amendments. As I reminded the parties at the pre-trial review and at trial, the statements of case ought, at the very least, to identify the issues to be determined. I recognise that a prevailing view may be that parties should not be held to their pleaded cases but it is unhelpful if parties proceed on the basis that the statements of case do not act as a limit on the issues to be tried. I was left with the clear impression, by the conclusion of the trial, that, in many significant respects in this case, both parties, more or less, were advancing cases which were unpleaded.  As it appeared to me that both parties encouraged me to determine the proceedings on the basis of the cases they actually advanced at trial, that is what I propose to do. But for the very great assistance given to me by counsel, this would have been an even more difficult task that it has been”.
THE TWO FOOTNOTES
The two relevant footnotes to the judgment are interesting.
“ I sought to overcome this problem by requiring the parties to agree a list of issues, which they apparently did. However, this led to further dispute between the parties when it became clear that they interpreted the agreed issues differently.
 Indeed, in closing, Mr Fryer-Spedding encouraged me to follow the evidence wherever it might lead, whatever UKLA’s pleaded case. If that is the appropriate course, so far as UKLA’s pleaded case is concerned, as a matter of logic it ought to be the appropriate course in relation to the Defendant’s pleaded case”
A REMINDER OF EARLIER CASES
A cavalier approach to pleadings must stop
The Prudential Assurance Company Limited -v- Commissioners for Her Majesty’s Revenue and Customs  EWCA Civ 376 should be compulsory reading for anyone who considers that pleadings can be approached in a casual manner.
“it soon became clear that the lack of pleadings meant that the parties disagreed about what was the scope of the trial; what were the issues that the judge had to decide; whether points had or had not been raised; whether or not they could be raised on appeal; and even what the judge had decided. This is no way to conduct litigation involving millions of pounds. We were told that this unacceptably cavalier approach to pleadings was a common feature of this kind of litigation. It must stop.”
Why pleadings are important
Skrzynski –v- Metropolitan Police  EWCA Civ 9
- 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  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.”
Inadequate pleadings – the bane of a judge’s life
RUTH IRELAND v DAVID LLOYD LEISURE LTD  EWCA Civ 665