THE IMPORTANCE OF STATEMENTS OF CASE: THE TRIAL SHOULD NOT BECOME A “FREE FOR ALL”: COURT OF APPEAL SENDS OUT A WARNING

In Dhillon v Barclays Bank Plc & Anor [2020] EWCA Civ 619 the Court of Appeal reiterated the importance of statements of case in relation to civil litigation.  The statements of case should define the issues at trial.

“It is too often the case in civil litigation that the pleadings become forgotten as time goes on, and the trial can become something of a free-for-all. That is not appropriate”

THE CASE

The appellant was appealing against a decision not to remove a charge from the property register.  The Court of Appeal considered the nature of the Chief Land Registrar’s p[leaded case.

THE JUDGMENT ON THE STATEMENTS OF CASE

Lord Justice Coulson made some preliminary observations about the pleaded case.

2.2 The Pleaded Issues

1. 1. As explained in greater detail below, the relevant statutory provisions distinguish between an alteration of the Register, on the one hand, and a rectification of the Register, on the other. A rectification is an alteration which corrects a mistake and prejudicially affects the title of a registered proprietor.

   2. On 11 February 2016, Mrs Dhillon issued the present proceedings seeking rectification of the Register by the removal of the BB charge. The claim for rectification is noted on the claim form, issued on 11 February 2015; and it is identified at paragraph 19 of the Particulars of Claim and paragraph (1) of the prayer. Moreover, at paragraph 19.4 of the defence of the CLR, the CLR expressly raised what became the central issue before the judge, namely that, because there were exceptional circumstances within the meaning of paragraph 3(3) of Schedule 4 to the 2002 Act, there should be no rectification of the Register. In her reply, Mrs Dhillon put that contention in issue. The centrality of this debate is also reflected in Mrs Dhillon’s grounds of appeal, which are all concerned with paragraph 3 and the concept of ‘exceptional circumstances’.

   3. Neither the CLR, nor anyone else, has ever pleaded that this was somehow not a claim for rectification, but merely a claim for alteration of the Register under rule 126 of the Land Registration Rules 2003. Although Mr Trompeter (on behalf of the CLR) sought to argue before the judge that this was a claim for alteration not rectification, because that potentially strengthened the CLR’s case that he was not obliged to indemnify BB if the Register was rectified, I have concluded that this submission is not open to the CLR. It has never been pleaded; indeed, on one view, it is contrary to the CLR’s pleaded defence.

   4. This is not, I hope, a dry technical point. The question of the relief being claimed by Mrs Dhillon was central to this case. If the CLR had wanted to say that this was not a case of rectification at all, then it was required to plead such a contention. That was in order that the parties could properly marshal their arguments to address that submission and so that, in due course, the court would know what issues it was being asked to decide. It is too often the case in civil litigation that the pleadings become forgotten as time goes on, and the trial can become something of a free-for-all. That is not appropriate. I can only echo and agree with the recent warning by David Richards LJ in UK Learning Academy Ltd v Secretary of State for Education [2020] EWCA Civ 370 when he said:

“47. I would add here that I endorse the view expressed by the judge to the parties at the trial and repeated in his judgment at [11] that the statements of case ought, at the very least, to identify the issues to be determined. In that way, the parties know the issues to which they should direct their evidence and their challenges to the evidence of the other party or parties and the issues to which they should direct their submissions on the law and the evidence. Equally importantly, it enables the judge to keep the trial within manageable bounds, so that public resources as well as the parties’ own resources are not wasted, and so that the judge knows the issues on which the proceedings, and the judgment, must concentrate. If, as he said, there was “a prevailing view that parties should not be held to their pleaded cases”, it is wrong. That is not to say that technical points may be used to prevent the just disposal of a case or that a trial judge may not permit a departure from a pleaded case where it is just to do so (although in such a case it is good practice to amend the pleading, even at trial), but the statements of case play a critical role in civil litigation which should not be diminished.”

1. For these reasons, therefore, I reiterate my view that the central issue in this appeal was whether the judge was wrong not to rectify the Register pursuant to paragraph 3(3) of Schedule 4 of the 2002 Act.