THE ABSENCE OF A REPLY TO A DEFENCE DOES NOT MEAN THAT IT COULD BE ASSUMED THAT THE ACCOUNT IN THE DEFENCE WAS ACCEPTED

There is a breach statement in the judgment of Lady Justice Andrews in Zanatta v Metroline Travel Ltd [2023] EWCA Civ 224 that highlights a crucial point in relation to the drafting of a Reply. Whereas a Reply and Defence to counterclaim is necessary if a defendant makes a counterclaim,  a Reply to a Defence is not.

“The fact that the claimant did not serve a Reply did not mean that it could be assumed by the defendant, let alone the judge, that the version of events pleaded in the Defence was accepted.”

THE CASE

The Court of Appeal heard an appeal for a judgment in a personal injury action where the trial judge had found in favour of the defendant bus company when a pedestrian had been struck by a bus.  The court dismissed the appeal.

THE POINT ABOUT THE REPLY

Lady Justice Andrews set out some of the issues as to whether facts were agreed or no.

52. The fact that the claimant did not serve a Reply did not mean that it could be assumed by the defendant, let alone the judge, that the version of events pleaded in the Defence was accepted. In fact, the bus driver’s evidence was criticised at trial as being unreliable, because of variations in his accounts over time, and the judge was urged to treat it with caution. The claimant was fully entitled to make those submissions, but she would not have been if the version of the facts pleaded in the Defence (based on the driver’s witness statement) had been common ground. Despite this criticism, the claimant sought to rely on selective parts of that evidence as a foundation for her case, as the judge recorded at [64](c) of the judgment. By so doing, the claimant was doing no more than urging the judge to make certain fact findings. He was not obliged to do so.

WHAT THE RULES SAY: CPR 16.7

Although not mentioned expressly in the judgment CPR 16.7 makes the position clear.

Reply to defence

16.7

(1) A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence.

(2) A claimant who –

(a) files a reply to a defence; but

(b) fails to deal with a matter raised in the defence, shall be taken to require that matter to be proved.

ANOTHER CASE ON THIS ISSUE: PISTACHIOS IN THE PARK

In Pistachios In the Park Ltd & Anor v Sharn Panesar Ltd [2022] EWHC 2088 (QB) Mr Justice Freedman pointed out that the appellant’s argument in relation to pleading and burden of proof ran contrary to the rules.  There is no obligation on a claimant to file a Reply to a defence. In the absence of a Reply there is an assumption that the claimant joins issue with the defence. The burden remains on the defendant to prove matters set out in the Defence.

THE CASE

The appellant defendants appealed a finding that they were liable in the tort of deceit and also appealed the award of damages that the claimants had been awarded.  One of the arguments the appellants made was that they had terminated the agreement with the claimants.  It was argued that the claimants had not joined issue with this and the judge was wrong to find to the contrary.

THE JUDGMENT ON THIS ISSUE

The judge did not accept the appellants’ argument. The burden remained with the defendants to prove the matters set out in the defence. The absence of a reply made no difference, the burden was on the defendants to prove the issues asserted in the defence.

1. 1. The Appellants’ case can be summarised as follows:

(1) its pleaded case was that the Franchise Agreement had been validly terminated in November 2014 for repudiatory breach;

(2) there was no positive case pleaded in response: indeed there was no Reply pleaded;

(3) there was no case put to the Appellants’ witnesses by way of cross-examination;

(4) there was no Respondents’ notice;

(5) the Judge was therefore wrong to conclude that to consider that the Franchise Agreement had not been validly terminated.

1. 1. In this characterisation is a difference which goes to the heart of Ground 3. The Judge did not make a positive finding that the Franchise Agreement had not been validly terminated. His finding was that there was insufficient evidence to suggest that it was a valid termination. That was because it was for the Appellants to prove a valid termination and not for the Respondents to show that the termination was not valid.

1. 1. This arose out of the formulation of the matters which have given rise to Ground 3. There was no pleaded cause of action of a repudiatory breach giving rise to a claim for damages. Indeed, there was no counterclaim. The matter was pleaded by way of defence. The submission of the Appellants in their closing speaking note at trial was as follows:

“Repudiatory breach

41. There is no pleaded case that Ds were not entitled to terminate the franchise agreement in November 2014. Taking into account Clause 20 of the franchise agreement together with the evidence of Cs’ conduct, the court is entitled to consider that, neutrally, there is no material showing that Ds were not entitled to terminate.”

1. 1. The Appellants submitted that whereas damages had been sought by the Respondents up to 2016, there ought to be a cut-off point as at November 2014 when the Franchise Agreement had been terminated.

1. 1. Here lies the problem for the Appellants. It does not suffice for the Appellants to rest their case on the absence of a positive case on the part of the Respondents that they did not repudiate the Franchise Agreement. By the absence of a Reply, there was an implied joinder of issue. In the context of defending the claim for damages for deceit, the onus was on the Appellants to prove on the balance of probabilities that (1) the Franchise Agreement was validly terminated in November 2014, and (2) that termination was a break in the chain of causation such that damages ought to be calculated only up to November 2014. Yet the submission of the Appellants as cited above from the closing speaking note of the Appellants was that this point ought to be decided in their favour absent any material showing that the Appellants were not entitled to terminate.

1. 1. In my judgment, that was to express the onus of proof in the wrong way. Although the matter was being considered only in the context of a defence, the onus of proof in respect of the allegation of a break of causation was on the Appellants to show the two numbered points in paragraph 45 above. It was in this context that the Judge said that “there is insufficient evidence before me to suggest that it was a valid termination”. The Appellants had failed to provide sufficient evidence to suggest that it was a valid termination and therefore could not succeed in the case that there was a novus actus interveniens. It followed that the attempt to stop the damages as at November 2014 failed.

1. 1. The Appellants’ closing speaking note that there was no material to show that the Appellants were not entitled to terminate did not suffice. The incidence of the onus was that it was for the Appellants to provide material to show that it was entitled to terminate. The Judge’s finding was that this had not been done. The Judge was correct in para. 108 of this judgment in finding that there was insufficient evidence to suggest that it was a valid termination. It did not matter that at the start of para. 108 the Judge apparently said that he had not been asked to determine whether the termination was valid given that he went on to determine that the validity of the termination had not been proven. Although it matters not, it is possible that the opening words were a shorthand for the fact that the Appellants had not pleaded a cause of action/counterclaim about a wrongful termination.

1. In my judgment, the Judge was entitled to come to the conclusion which he did, namely that there was insufficient evidence to suggest a valid termination.