Order 13 - Pleadings Flashcards
13.01 Formal requirements (description/date; numbered paras; signed by counsel settler or sollie or party)
● (1) Every pleading shall bear on its face (a) description of pleading and (b) the date it was served
● (2) Consecutively numbered paras, each allegation in a separate para
● (3) Signed by counsel if settled by counsel, or otherwise by sollie for party, or by the party
13.02 Content of pleading (summary facts not evidence; provisions; relief; may point; conclusion)
(1) Must:
● (a) Contain in summary form summary of material facts on which party relies but not the evidence by which those facts are to be proved
● (b) Where statutory provisions relied on for any claim, defence or answer, include the provision
● (c) State specifically any relief or remedy claimed
(2) May:
● (a) Raise a point of law
● (b) Plead a conclusion of law if the material facts supporting the conclusion are pleaded
13.03 document or conversation
Just plead the effect of any document or purport of any conversation, not the precise words, unless they are material
13.04 fact presumed true (if presumed by law or burden on other party, need not plead unless other party has specifically denied it)
Party need not plead any fact if it is presumed by law to be true or burden of disproving it lies on the opposite party, unless the other party has specifically denied it in that party’s pleading.
13.05 condition precedent (alleged performance of CP implied)
An allegation of the performance or occurrence of any condition precedent necessary for the claim or defence of a party shall be implied in that party’s pleading
13.06 Implied contract or relation (from series of letters/convos, allege fact and refer generally to xyz w/o the detail)
If contract or relation between persons is to be implied from series of letters or conversations or other circumstances, it shall be sufficient to allege contract or relation as fact, and to refer generally to letters, conversations or circumstances without setting out in detail.
13.07 Matter which must be pleaded (in any subsequent-to-SOC pleading; not maintainable; surprise; new Q of fact; in land, describe; plead defence); plead ED
(1) In any pleading subsequent to statement of claim, party must plead specifically any fact or matter which:
● (a) Party alleges makes any claim or defence of the opposite party not maintainable
● (b) If not pleaded specifically, might surprise opposite party
● (c) Raises Qs of fact not arising out of preceding pleading
(2) In a proceeding for the recovery of land:
● (a) Describe land in indorsement/SOC so it’s physically identifiable
● (b) D must plead each ground of defence on which D relies and plea D/D’s tenant is in possession of land is insufficient
(3) Must plead any claim for exemplary damages, together with the facts on which the party pleading relies.
13.08 subsequent fact (can plead at any time, whether arose before/since commencement)
Party may plead any fact /matter which has arisen at any time, whether before or since the commencement of the proceeding
13.09 inconsistent pleading
(1) Can make inconsistent allegations of fact if pleading makes it clear that the allegations are pleaded in the alternative.
(2) Shall not make any allegation of fact or raise any new claim, inconsistent with any allegation or claim made in a previous pleading by that party
(3) does not affect right to amend or to apply for leave to amend or to plead allegations in the alternative.
13.10 Particulars of pleading (to enable/define/avoid; shall contain misrep fraud etc.; disorder, disability, malice etc.)
(1) Must contain the necessary particulars of any fact or matter pleaded. (2) W/o limiting, shall be given if they are necessary:
● (a) To enable opposite party to plead
● (b) To define questions for trial; or
● (c) To avoid surprise at trial
(3) Without limiting, shall contain particulars of any:
● (a) Misrepresentation, fraud, breach of trust, wilful default or undue influence alleged; or
● (b) Disorder, disability, malice, fraudulent intent or other condition of mind, including knowledge or notice, alleged
(4) Pleading claiming damages for bodily injury to state: (a) particulars (dates/amounts) of all consequential earnings loss (b) particulars of loss of earning capacity from injury
(c) party’s DOB; (d) name and address of each employer commencing from 12 months before sustained injury, commencement time and duration of each employment + total net amount post–tax-deduction earned in each employment.
(5) In proceeding for libel, indorsement of claim on writ or, if that indorsement does not constitute a SOC, the SOC shall state sufficient particulars to identify the publication in respect of which the proceeding is commenced.
(6) Particulars of debt/damages/expenses exceeding 3 folios shall be set out in separate document referred to in pleading and pleading shall state whether document—
(a) has already been served (and if so when); OR (b) is to be served with the pleading.
13.11 Order for particulars (incl further and better particulars) - can order, but generally not before defence served unless necessary for defendant to plead, can refuse if no written request made first
(1) Court may order party to serve on any other party particulars or F/B particulars of any fact/matter stated in party’s pleading or an affidavit filed and ordered to stand as a pleading.
(2) Court shan’t make that order before defence is served unless its necessary or desirable (a) to enable the D to plead or (b) for some other special reason.
(3) Court can refuse to make order under (1) if party doesn’t first write to other party requesting further and better particulars
13.12 admission and denials
(1) Every allegation of fact taken to be admitted unless denied or not admitted expressly or by necessary implication or is stated not to be admitted (or if 13.13 joinder applies) - general denial or general non-admission is not sufficient.
(2) Where party intends to plead contrary facts, not enough to deny or not admit. Need to actually plead those contrary facts.
(3) Any allegation that a party has suffered damage and any allegation as to the amount of damages shall be taken to be denied unless specifically admitted.
13.13 Denial by joinder of issue
(1) No reply/subsequent pleading merely joining issue shall be served. (2) At the close of pleadings a joinder of issue on the pleading last served shall be implied
(3) No joinder of issue, express or implied, shall be made on a SoC or CC.
(4) Joinder of issue operates as denial of every material allegation of fact made in pleading upon which issue is joined unless, in the case of express joinder, any such allegation is excepted from joinder and is stated to be admitted, in which case joinder operates as denial of every other allegation.
13.14 Money claim as defence
Where D has a claim against P for recovery of debt/damages, claim may be relied on in whole/part as defence to a claim made by P for recovery of debt/damages and may be included in the defence and set off against the P’s claim whether or not D also CCs for that debt or damages.
13.15 Counterclaim
This order applies with any necessary modification (a) to a CC as if it were a SOC and (b) to a D to a CC as if it were a D.
