SEARCHING FOR “THE GOLDEN RULE OF PLEADING”: BREVITY, BRER RABBIT AND – GOING TO HELL

October 24, 2017 · by · in Statements of Case, Statements of Truth

It is interesting to note the search term that leads people to this blog.  Today I commented on one that led many, many practitioners to a search for the golden rule of pleading. Be warned not all of these replies are deadly serious. Interspersed with these tweets is some of the guidance on this blog in relation to pleadings.

“Pleadings are intended to help the Court and the parties. In recent years practitioners have, on occasion, lost sight of that aim. Documents are drafted of interminable length and diffuseness and conspicuous lack of precision, which are often destined never to be referred to at the trial, absent some dispute as to whether a claim or defence is open to a party, being overtaken by the opening submissions. It is time, in this field, to get back to basics.” Christopher Clarke L.J.

Hague Plant Ltd -v- Hague [2014] EWCA Civ 1609

 

THE TWEETS AND SOME LINKS

Search term today “golden rule of pleading” – Anyone got any ideas?

DON’T SIGN IT

 5h

Don’t sign it on behalf of your client?

THE PROFOUND LACK OF WISDOM IN SIGNING STATEMENTS OF TRUTH ON BEHALF OF YOUR CLIENT

 

YOU HAVE TO AVER A LOT

 5

Using the word “averred” is compulsory

 4

Haha I’m a LIP+if you remove, ‘the defendant avers,’ from the defence, there is hardly anything left. I had never even heard the word before

AND PURPORT

    2

Use some variant on ‘purported’ to describe everything the other side does / says / serves.

A CASE YOU MUST READ IF YOU THINK PLEADINGS ARE NOT IMPORTANT

BREVITY IS BEST

  1

Brevity

  4

Accuracy brevity & clarity.

 24

Brevity and relevance!

TO READ MORE

OVER-LENGTHY PLEADINGS SOME EXAMPLES AND SOME LESSONS

PLEADINGS MUST BE CONCISE – OR ELSE! TOO MANY COUNSEL SPOILING THE BROTH?

PLEADINGS: ARE THEY STILL IMPORTANT? THREE RECENT CASES REVIEWED

 3

Boring answer: balance of completeness/brevity. Cultured answer: creating (legitimate) problems for other side

 18

Don’t turn the statement of case into a witness statement, or append pages of unnecessary documents.

READ MORE

INCREASED COSTS AND “MYSTIFYING” PLEADINGS: A WARNING TO THOSE DRAFTING DEFENCES: IT’S GOING TO COST YOU

BACK TO BASICS WITH PLEADINGS: PROPORTIONATE LITIGATION AND BREVITY ESSENTIAL ON APPEALS

 3h

KISS? Keep It Simple Stupid!

  1

Brev.

SEND IT TO COUNSEL….

Was taught by Robert Hill @ Chester that pleadings only fit for counsel…

  4

Remember that defendants can be highly speculative and claimants are fundamentally dishonest?

DON’T BE A PRAT

    1

My Sensei would say “Balance forensic intensity with calm self-awareness” or, as I see it, “Be good, grasshopper, don’t be a prat.”

  58

Also paragraphs that last for more than a full page, no indents or sub-paras. By actual lawyers (LiPs get a pass). Awful.

FAMILY ANGST

  39

Facts not law (not that anyone pays attention to that!)

    31

You probably shouldnt get me started on the drafting of threshold documents

Unless its a care case. & then any old ramble about the “concerns” of a social worker /how rubbish the parents are will do (or so it seems)

AVOID PREGNANCY (IT COULD BE AMBIGUOUS)

  35

 Avoid pregnancy of ambiguity…

EMPLOYMENT

  33

Unless it’s an ET1 discrimination case and then it’s the history of employment since before the contract* was signed. *Never got one obvs.

 32

This isn’t a joke incidentally. It’s often better from a professional standpoint to include it all.

IF YOU ARE GOING TO DRAFT PLEADINGS THEN DO IT PROPERLY: A REPLY AND DEFENCE TO COUNTERCLAIM IS NOT A MERE FORMALITY

BRER RABBIT

 13

Display a combination of Brer Rabbit and Tar Baby when defending (advice from Leading Counsel years ago, which I have always borne in mind)

A “DEFENCE STRAIGHT OUT OF THE 1970S”: DEFENDANT’S PLEADINGS 40 YEARS OUT OF DATE

LONG PARAGRAPHS

 1

Also paragraphs that last for more than a full page, no indents or sub-paras. By actual lawyers (LiPs get a pass). Awful.

BE OPTIMISTIC

 2

Boundless optimism

SOME SERIOUS STUFF

 2

If your pleading can be interpreted in more than one way, you’ve done it wrong. Start again.

 2

Don’t plead anything you haven’t got evidence to support – surprisingly common.

PLEADINGS SHOULD CONTAIN FACTS NOT ARGUMENT OR RHETORIC

   2

Leave no room for interpretation.

A SPECIAL PLACE IN HELL…

    

There is a place in hell for people who make wholesale amendments and don’t mark them. Permitted under the rules but…

e
 3

Use the word “fraud” liberally and see how it plays out.

PARTICULARS OF CLAIM MUST BE IN A FORM THAT THE DEFENDANT CAN RESPOND TO: PLEADINGS STRUCK OUT ALTHOUGH THE CLAIM WAS NOT

MALTON TOM DEROGATES FROM HIS GRANT

 3

And don’t plead ‘derogation from grant’ unless you know what it means

 3

Don’t put the other side to ‘strict proof’. It is meaningless and its sole purpose is to annoy and confirm a latent inferiority complex

CAT’S SIGNATURE GIVES PAWS FOR THOUGHT

 4

Otherwise titled: “How the judiciary screwed up by allowing Defendant lawyers to get away with the office cat signing statements of truth.”

BANTER IS NEVER A DEFENCE

 9

The “it was just Bantz” defence rarely, if ever works.

 3

It’s as successful as “but I treated them like family”..which is right, as family probly didn’t have statements of T&c’s, but misses point

   19

He that has the gold makes the rules.

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