THE CURRENT IMPORTANCE OF PLEADINGS 95: THE DEFENDANT’S ARGUMENT THAT THE JUDGE HAD AWARDED THE CLAIMANTS MORE THAN THEIR PLEADED CASE
This is another case relating to pleading damages. Here the objection was that the judge had awarded the claimants more than they had pleaded. In some circumstances this may have made a difference. On the facts of this case it…
THE CURRENT IMPORTANCE OF PLEADINGS 93 : CAN YOU CLAIM £2.569 MILLION IN DAMAGES WHEN YOU HAVEN’T PLEADED IT? NOW THAT’S AN IMPORTANT QUESTION…
If ever there was a case that would persuade you of the importance of pleadings it is this one. The claimant had succeeded on many issues at a trial. It now wanted to claim £2,569 million in damages. However an…
THE CURRENT IMPORTANCE OF PLEADINGS 92: THE NEED TO PROVIDE PARTICULARS OF SIGNIFICANT ALLEGATIONS: DEFENDANTS’ (LARGELY) SUCCESSFUL REQUEST FOR FURTHER INFORMATION NEEDED BEFORE THEY FILED A DEFENCE
Reports relating to requests for further information are relatively rare. In this case the judge considers the defendants’ request in detail. The claimant was not ordered to answer all of the questions raised. However the judgment does illustrate important issues…
THE CURRENT IMPORTANCE OF PLEADINGS 91 : THE COURT FINDS FOR THE CLAIMANT ON A POINT NOT PLEADED: THE IMPORTANCE OF THE STATEMENT OF THE AGREED ISSUES FOR TRIAL
The previous post looked at the costs consequences of a claimant pleading a case on a wide basis and then succeeding on the basis of a case that was not specifically pleaded. It is worthwhile looking at the judgment on…
THE REPLY: THE THEME OF THE DAY: SIX USEFUL CHECKLISTS: MAKING SURE YOUR PLEADING DOESN’T FAIL THE BASIC TESTS
A post earlier today promised checklists on the essential elements that need to be considered when drafting a Reply. There are six here (we will deal with drafting a Defence to counterclaim separately). These should be useful in relation to…
DRAFTING A REPLY: WHAT IT SHOULD CONTAIN AND WHAT IT SHOULD NOT: THE KEY ISSUES CONSIDERED
You may have noted that the theme of today is the Reply. Here we look at how a Reply should be drafted if a decision is made that one should be served. “A Reply should not, however, be used to…
BACK TO BASICS MONDAY: THE RIGHT TO REPLY: WHEN MUST YOU DO IT AND WHEN SHOULD YOU DO IT? THE CRITICAL IMPORTANCE OF A DEFENCE TO COUNTERCLAIM
There are a surprising number of cases that deal with the drafting of a Reply. Today we are having a detailed look of the rules and case law relating to the Reply. Here we take a look at the rules…
MORE ABOUT THE CASE AGAINST A SOLICITOR BEING STRUCK OUT: THE ABSENCE OF AN ASSUMPTION OF RESPONSIBILITY MEANT THERE WAS NO CASE: A CLAIMANT CANNOT HOPE THAT “SOMETHING WILL TURN UP” ON DISCLOSURE…
We looked at this case earlier today in relation to the procedural aspects. However the substantive judgment, on which the defendant was successful, is of considerable interest to the legal profession generally. There are also issues as to how the…
THE CURRENT IMPORTANCE OF PLEADINGS 90: THE COURT OF APPEAL WAS WRONG TO HOLD ONE DEFENDANT TO HIS PLEADED CASE WHILST EXONERATING A CO-DEFENDANT: THIS LED TO A FINDING THAT WAS AN “ABSURDITY”
In this case the Judicial Committee of the Privy Council considered whether the Court of Appeal in Trinidad and Tobago was correct to hold one defendant in a clinical negligence case to their pleaded case whilst, effectively, exculpating a co-defendant. …
THE CURRENT IMPORTANCE OF PLEADINGS 89: AN APPELLANT CANNOT PURSUE AN UNPLEADED “NEW, NEW CASE”: APPEAL IN CASE AGAINST SOLICITORS WAS “WASTEFUL OF TIME AND RESOURCES”
This is a case that started off as a consideration of the way in which a defendant firm of solicitors adduced evidence to support assertions that there was a history of fraud in motor accident claims. The appellants here, the…
THE CURRENT IMPORTANCE OF PLEADINGS 88: ANOTHER CASE STRUCK OUT BECAUSE OF INADEQUATE PLEADINGS: “THE DEFENDANTS ARE ENTITLED TO KNOW THE CASE AGAINST THEM…”
I am always wary of being repetitive yet here we have our second case today of a claimant being struck out because of inadequate pleadings. This repetition is simply a reflection of the cases that are going through the courts….
THE CURRENT IMPORTANCE OF PLEADINGS 87: A CLAIM CAN BE STRUCK OUT ON AN ANALYSIS OF THE PLEADED CASE
This judgment confirms a decision to strike out a case on the basis of inadequate pleadings. It emphasises the fact that there is no need to wait for a defence to be filed before such an application is heard. It…
CAN THE COURT REFUSE TO ISSUE A CLAIM FORM? CAN THE STAFF LAWFULLY REFER THE ISSUE TO THE JUDGE? AN UNUSUAL APPLICATION FOR JUDICIAL REVIEW
Here we look at an unusual application for judicial review. It is all about the powers of the County Court to refer matters, upon issue, to the judge for consider. It makes clear that court staff have no power to…
THE CURRENT IMPORTANCE OF PLEADINGS 86: DEFENDANT REFUSED PERMISSION TO AMEND DEFENCE ON THE MORNING OF TRIAL
Here we look at what can only be described as a “very late” application to amend a defence. It was made on the morning of the first day of trial. Surprisingly there was no explanation as to why an application…
THE CURRENT IMPORTANCE OF PLEADINGS 85: THERE IS NO “FREE PASS” WHEN AN ACTION IS BROUGHT ON BEHALF OF MULTIPLE CLAIMANTS: “THERE IS A DEFINITE SENSE OF THE CLAIMANTS THRASHING ABOUT, TRYING TO FIND ANY ISSUES WHICH COULD BE TRIED WHICH AVOIDED ANY INVESTIGATION OF ANY FACTS.”
We are returning to this Court of Appeal decision for a second time. Initially we looked at the judgment in relation to the outcome – that the claims could be brought together. However there are important points made here in…
THE CURRENT IMPORTANCE OF PLEADINGS 84 : DEFENCE STRUCK OUT “THE SMALL PARTS OF THE PLEADINGS THAT DO ADDRESS THE CLAIMANT’S CARE ARE LIKE TINY ISLANDS LOST IN A VAST OCEAN OF IRRELEVANCE”
This is a case where the judge had no hesitation in striking out both a defence and counterclaim. The counterclaim had no prospect of success, the defence breached every rule and principle relating to statements of case. The judge, helpfully,…
THE CURRENT IMPORTANCE OF PLEADINGS 83: THE CASE OF THE SOLICITOR’S LIEN: THE JUDGE SHOULD NOT HAVE DECIDED AN APPLICATION TO STRIKE OUT ON THE BASIS OF AN UNPLEADED CASE
We look at a case that relates to a solicitor’s lien and alleged breach of duty by those solicitors. It also deals with the basis upon which a judge should determine an application to strike out/summary judgment – making it…
THE CURRENT IMPORTANCE OF PLEADINGS 82: THERE MAY BE A POTENTIALLY VIABLE CLAIM HERE BUT YOU HAVEN’T PLEADED IT: COURT OF APPEAL OVERTURN A DECISION TO GRANT PERMISSION TO AMEND COUNTERCLAIM
Here we have an unusual example of the Court of Appeal overturning a decision granting permission to amend a statement of case (in this case a counterclaim). The Court of Appeal held that the pleading did not give the information…
THE CURRENT IMPORTANCE OF PLEADINGS 81: IF YOU ARE RELYING ON A STATUTE THAT WASN’T ACTUALLY IN FORCE ON THE DATE IN QUESTION IT MAY HAVE BEEN BETTER FOR YOU TO HAVE PLEADED THIS…
Here we have an unusual case where the trial judge’s findings in favour of the defendant were overturned on appeal. One particular feature of this case is the fact that the claimant relied on a statute that was actually in…
THE CURRENT IMPORTANCE OF PLEADINGS 80: THE PARTICULARS OF CLAIM “FAILED TO FORMULATE A LEGALLY RECOGNISABLE CASE AGAINST EACH DEFENDANT”: THE ACTION WAS STRUCK OUT
Here we look at a case where an unrepresented litigant’s action against five defendants was struck out because the Particulars of Claim did not show any legally recognisable case against any of the defendants. This judgment shows the importance of…
THE CURRENT IMPORTANCE OF PLEADINGS 79: COURT REJECTS CLAIMANT’S AMENDMENT APPLICATION BECAUSE THERE WERE “REASONABLY ARGUABLE” ISSUES IN RELATION TO LIMITATION
Here we continue the theme of today in looking at applications to amend. In this case the application was unsuccessful because it sought to raise issues that may be subject to a limitation defence. The judge rejected the argument that…
THE CURRENT IMPORTANCE OF PLEADINGS 78: CLAIMANT REFUSED PERMISSION TO AMEND PARTICULARS IN CLINICAL NEGLIGENCE/FATAL ACCIDENT CLAIM
The theme for today may well be unsuccessful applications to amend pleadings. Here we have what may be regarded as an “extreme” case. The claimant issued proceedings relying on medical evidence that actually contradicted the pleaded case. This was pointed…
THROWBACK FRIDAY: AMENDING PLEADINGS : A REVIEW OF THE PRINCIPLES: WHAT IS MEANT BY “LATE”? (MAY 2015)
If we have a theme for today it relates to applications to amend pleadings. This is, needless to say, a regular topic on this site. The issues and problems that litigants faced 11 years ago still occur in cases we…
THE CURRENT IMPORTANCE OF PLEADINGS 77: CASE STRUCK OUT: THERE WAS “INSUFFICIENT PLEADINGS OF FACT FROM WHICH IT COULD BE INFERRED THAT ANY OF THE ALLEGATIONS HAVE A REAL PROSPET OF SUCCESS”
Here we look at a case where the Master struck out the claimants’ pleaded case alleging unlawful means conspiracy, breach of contract and a claim in negligence. The Master held that that the pleadings were non-compliant and did not plead…
THE CURRENT IMPORTANCE OF PLEADINGS 76: APPLYING FOR PERMISSION TO AMEND THE DAY BEFORE THE COURT OF APPEAL HEARING, WITH NO NOTICE GIVEN: HAVE A GUESS HOW THIS WENT…
There have been quite a few cases about pleading recently. This case is interesting because it makes the point that after a default judgment is entered a claimant is only entitled to have damages assessed on the basis of their…
THE CURRENT IMPORTANCE OF PLEADINGS 75: A CLAIMANT DOES NOT ALWAYS NEED TO PLEAD A CLAIM FOR INTEREST: AN INTERESTING POINT… BUT BE VERY WARY…
Here we look at an argument that a claimant was not entitled to interest because it was not pleaded. The judge rejected the argument on two grounds. Firstly that CPR 16 does not apply to Part 8 claims; secondly that…
THE CURRENT IMPORTANCE OF PLEADINGS 74: A PARTY CANNOT SIMPLY SEEK TO AMEND THE LIST OF ISSUES TO INCLUDE AN ISSUE THAT IT HAS NEVER PLEADED
Here we have an unusual case in that the defendant, rather than seeking to amend its defence, sought permission to amend the list of issues to enable it to argue a new point which (the judge found) had not been…
THE CURRENT IMPORTANCE OF PLEADINGS 73: COURT STRIKES OUT CLAIM FOR £2.1 MILLION FOLLOWING McLAREN CATCHING FIRE: THE CASE WAS NOT PROPERLY PARTICULARISED
Here we have a case where the judge considers in considerable detail the principles relating to pleading, the striking out of pleadings, and the possibility of being allowed to amend. None of these favoured the claimant. “It is not sufficient…
THE CURRENT IMPORTANCE OF PLEADINGS 72: THE COURT WOULD NOT ALLOW THE CLAIMANTS A “FALL BACK” POSITION OF A SECOND HEARING: “A TRIAL IS THE FIRST AND LAST NIGHT OF THE SHOW; IT IS NOT A DRESS REHEARSAL”
Here we have a situation which presents a real dilemma for those seeking, and pleading, a claim for damages. In this case there were a large number of permutations in the claimants’ claim for damages. Only some of these had…
THE CURRENT IMPORTANCE OF PLEADINGS 71: COURT REFUSES CLAIMANT PERMISSION TO AMEND EVEN THOUGH THE CURRENT CASE WAS “UNTENABLE”: LESSONS HERE FOR EVERYONE
Here we have a case where the judge refused the claimant permission to amend the Particulars of Claim in circumstances where it was conceded that the current pleading was “untenable”. There are important lessons here for everyone involved in preparing…
THE CURRENT IMPORTANCE OF PLEADINGS 69: ALLEGATIONS OF DISHONESTY SHOULD HAVE PLEADED: IT IS INAPPROPRIATE TO QUESTION WITNESSES ON THE BASIS THAT THEY HAD ACCEPTED A PROPOSITION WHEN THEY HAD NOT DONE SO
There are several matters of interest in this judgment given last Friday. Firstly that allegations of fraudulent conduct were made when those assertions had not been pleaded. Secondly the judge was critical of the attempt to cross-examine witnesses on the…
THE CURRENT IMPORTANCE OF PLEADINGS 68: COURT OF APPEAL HOLDS THAT THE JUDGE SHOULD NOT HAVE ALLOWED AMENDMENTS: THE PLEADINGS WERE “INCOHERENT, SELF-CONTRADICTORY AND INSUFFICIENTLY PARTICULARISED”
Here we have a rare case where the Court of Appeal overturns a decision of the first instance judge to allow a party to amend their pleadings. There is a detailed analysis of why the proposed amendments were deficient. “I…
THE CURRENT IMPORTANCE OF PLEADINGS 66: WHEN THE CLAIMANT TRIES TO ADVANCE ALLEGATIONS NOT STATED IN THE STATEMENT OF CASE THOSE MATTERS ARE NOT CONSIDERED BY THE JUDGE
This case illustrates the need for allegations to be pleaded, particularly in relation to assertions of fraud. It took 38 days of court time and concerned a loss of US $715 million. Still the judge was concerned that allegations were…
THE CURRENT IMPORTANCE OF PLEADINGS 65: THE REASON WHY PLEADINGS ARE IMPORTANT IN ALL TYPES OF CASES: “IF THE DEFENDANT FEELS SHE HAS FAILED TO ESTABLISH ANY PART OF HER CASE BY REASON OF INADEQUATE PLEADINGS … SHE MAY NEED TO TAKE THAT UP WITH HER SOLICITORS…”
I appreciate that today has been a “pleadings heavy” day on this site. However the reason for this is that pleadings are important across the board. Earlier today we looked at pleadings in a multi-million pound dispute between two banks. Here…
THE CURRENT IMPORTANCE OF PLEADINGS 64: THE DEFENDANT TRIES – AGAIN – TO RELY ON EXTERNAL REPORTS AS FACTUAL PARTS OF ITS DEFENCE…
We continue our examination of this judgment where the judge considered the factors relating to amending pleadings in detail. In this case the defendant attempted (for the second time) to rely on the contents of an external report. The judge…
THE CURRENT IMPORTANCE OF PLEADINGS 63: WHEN ARE AMENDMENTS TO PLEADINGS “CONSEQUENTIAL” – DOES A PARTY HAVE “GENERAL RIGHT” TO INTRODUCE NEW MATTERS?
Here we continue with our examination of attempts to amend pleadings. We are looking at the same case as the previous post but a different judgment from a different judge. Here the claimant amended its Particulars of Claim and the…
THE CURRENT IMPORTANCE OF PLEADINGS 62: REFERRING TO AN EXTERNAL REPORT IN A DEFENCE MAY NOT BE HELPFUL: “A PLEADING NEEDS TO BE UNAMBIGUOUS AND COHERENT”
Today we are going to look in detail at attempts to amend a defence. There is much to learn about pleadings, pleading defences and applications to amend. We start off with an application made last year. However as we shall…
THE CURRENT IMPORTANCE OF PLEADINGS 60: FAILING TO PLEAD A CLAIM FOR “LOSS OF CHANCE” LEADS TO TRIAL BEING RESTRICTED TO LIABILITY (AND THE CLAIMANT’S FACING RESPONSIBILITY FOR ADDITIONAL COSTS)
Here we are looking at a failure to plead the claimant’s case as to damages fully. The claimant wanted to advance a claim for “loss of chance” in addition to seeking damages on the balance of probability. The judge rejected…
AVOIDING THE PITFALLS OF DRAFTING PLEADINGS: WEBINAR 2nd APRIL 2026
The series on the “Current importance of pleadings” has now reached 59 posts. There are other posts in the series that are imminent. This webinar looks at issues in relation to drafting statements of case. BOOKING DETAILS Are available…
BACK TO BASICS MONDAY: THE IMPORTANCE OF SERVING THE PARTICULARS OF CLAIM WITHIN THE TIME FOR SERVICE OF THE CLAIM FORM: THE “BEAR TRAP” IN WAITING
The back to basics point today is based on a recent case which shows the importance of serving the particulars of claim within the four month period allowed for service of the claim form. The claimant served the particulars three…
THROWBACK FRIDAY: PLEADINGS SHOULD CONTAIN FACTS NOT ARGUMENT OR RHETORIC: (MARCH 2015)
The issues raised in the Current Importance of Pleadings series are not new. We see points as to pleading raised in March 2015. Here the judge considered a pleading that “leaves much to be desired.” “The overall result of these…
SERVICE POINTS 29: WOULD THE COURT STRIKE OUT THE ACTION WHEN THE CLAIMANT FAILED TO COMPLY WITH A r. 7.7 NOTICE?
It is unusual to see cases about the operation of CPR 7.7. This rule allows a defendant to serve a notice requiring that a claim form be served. In this case the claimant did not comply and the defendant applied…
THE CURRENT IMPORTANCE OF PLEADINGS 59: IT IS TOO LATE TO RAISE THIS NOW: CLAIMANT ALLOWED TO RELY ON AMENDED PLEADINGS EVEN THOUGH THEY DID NOT HAVE PERMISSION TO DO SO
Here we have a case where the claimant amended his pleading extensively, going beyond the limited permission that the court had granted. The defendants noted that and objected to it, however they did nothing about it for 10 months. At…
THE CURRENT IMPORTANCE OF PLEADINGS 58: THE DEFENDANTS’ PLEADING DID NOT CONTAIN AN “ADMISSION”: APPLICATION TO STRIKE OUT AMENDMENTS DISMISSED
This is a case where the court had to consider whether a defence had originally contained an “admission” such that the defendants required express permission to resile from it. The court found that, on close analysis, there was no such…
THE CURRENT IMPORTANCE OF PLEADINGS 57: A CASE ALLEGING PROFESSIONAL NEGLIGENCE AGAINST A SOLICITOR WAS NOT ADEQUATELY PLEADED
We are looking at the same case as in the earlier post, but from a different angle. The case has some particular pleading points. The claimant pleaded that the solicitor was negligent in not instructing counsel, but did not plead that…
BACK TO BASICS MONDAY: WHAT HAS TO HAPPEN WHEN A LEGAL REPRESENTATIVE SIGNS THE STATEMENT OF TRUTH: A STARK REMINDER
There are major dangers when a lawyer signs a statement of truth on behalf of their client. I had actually planned a post on this issue before seeing the judgment last week which features below.. For many years this site…
THE CURRENT IMPORTANCE OF PLEADINGS 55: THE PARTICULARS OF CLAIM CONTAINED A (SIGNIFICANTLY) FALSE FACT: JUDGE FINDS THAT THIS WAS PRINCIPALLY DUE TO THE FAULT OF “BARRISTER M”
It is rare for a judgment about pleadings to be “gripping” reading. We have such a case here. From the opening lines, to the detailed consideration of how the pleadings went wrong, the narrative is compelling. We even have an…
THE CURRENT IMPORTANCE OF PLEADINGS 54: ALTHOUGH THE PARTICULARS WOULD NOT BE STRUCK OUT SOME WORDS NEED TO BE CHANGED: CHOOSE YOUR WORDS WITH CARE…
We are returning to look at the case where the Master refused to strike out pleadings on the grounds that they were an abuse of process. However it was also made clear that the use of certain words in the…
THE CURRENT IMPORTANCE OF PLEADINGS 53: THE HIGH COURT REJECTS AN ALLEGATION OF IMPROPER CONDUCT IN THE DRAFTING OF THE PARTICULARS OF CLAIM: A CLAIMANT CAN BE “TORMENTED” AND THIS IS NOT ABUSIVE…
We are looking at a judgment that goes to the very heart of what a lawyer can properly draft in relation to pleadings. It considers what the line is between putting the case in an “effective and high level way”…
WITNESS EVIDENCE WEDNESDAY i : COURT WOULD NOT DRAW ADVERSE INFERENCES FROM WITNESSES WHO WERE NOT CALLED TO GIVE EVIDENCE “THE PERMISSIBLE FUNCTIONS OF CROSS-EXAMINATION DO NOT INCLUDE ENABLING THESE DEFENDANTS TO FISH FOR MATERIAL IN SUPPORT OF A CASE THAT IS (i) UNPLEADED (ii) IS INCONSISTENT WITH THE CASE THAT IS PLEADED”
As you may guess from the title we are looking at witness evidence more than once today. Firstly we are going to look at an argument from the defendants that a claimant’s failure to call witnesses to give evidence meant…
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