Written Pleadings I Flashcards
What are written pleadings?
There is a requirement for the parties to set out in writing the details of their claim/defence in advance of any hearing of evidence about the case. These details are called their written pleadings.
It provides the court and each other with advance notice of the claim or defence.
Written pleadings provide a Summary of each party’s case - explaining what each party wants the court to do and why and when to do it
3. They set the whole agenda for the action
4. And set the Scope of the evidence the parties will be allowed to lead as proof at the end of the action.
These are at the heart of the Scottish system of civil procedure. They are used to set out the positions of the respective parties and provide a summary which explains what each party want the court to do and why the court should do it.
What are averments?
A party’s pleadings are known individually and collectively as their “averments”.
ERDC Construction Ltd v HM Love & Co (No. 2)
“a means of giving fair notice to the the other side and helping to focus and cut down issues in dispute but also, and fundamentally, as an encouragement to each party to analyse the substance of the case before trying to give it expression in writing.”
What is the basic requirement of written pleadings?
Good pleadings should be expressed in plain language as far as possible.
A reading of the pleadings in a record should enable anyone to understand the crux of the dispute between the parties and the kind of evidence which will probably have to be led to resolve these issues.
It is unnecessary and undesirable to put in one’s written case the details of the evidence which support the basic essential facts.
What is the role of written pleadings?
– Summary of each party’s case.
– Agenda for the action.
– Scope of the evidence.
What is the overarching function of written pleadings?
The overarching function of written pleadings is to:
- Define the factual and legal issues in dispute between the parties (these are the issues which require judicial determination)
- The pursuer begins the process by drafting a doc known as the initial writ - where he/she says what she wants the court to do and sets out in a series of averments the facts which he/she says justifies the court granting the remedy sought and one or more legal propositions which summarises why the facts which have been averred justify or compel the court to grant the remedy sought. The defender will then answer the pursuers factual averments in the defences.
The function of the written pleadings is to provide:
1. Notice to the Court of the issues it will have to decide
– Substantive issues.
– And forms basis of Procedural issues, e.g. Decisions about whether action should be decided by legal debate alone or hearing evidence, further procedure, recovery of evidence, deciding which party leads at any diet of proof, also any res judicata etc.
- Notice to your opponent.
– Notice of issues which he/she has to meet (see Morrison’s Associates Cos Ltd v. James Rome & Sons Ltd 1964 SC 160 per Lord Guthrie at p.190 — “it is a fundamental rule of our pleading that a party is not entitled to establish a case against his opponent of which the other has not received fair notice of on record, it follows that a defender cannot be held liable on a ground which is not included in the averments made against them by the pursuer. These are not mere technical rules as their disregard would impose injustice by reason of which defender would have no ability to refute ”).
– If a proof is allowed and you try to ask a question which relates to a matter which is not foreshadowed in the pleadings then your opponent can reject to your question on the basis that you have no record for it.
- In the third place the written pleadings provide Notice to yourself about preparations required for proof:
– You can ascertain which issues remain in dispute after adjustment of thew written pleadings
- Enables you to work out what you need to do in order to prove what you need to prove in order rot succeed with your action
- The Pleadings enable you to draft a note on the line of evidence.
– And for the preparation of examinations and cross- examinations.
What is the process of written pleadings?
Defining the factual and legal issues.
1. The initial Writ
2. The defences - defender answers and says which of pursuers defences are admitted, denied or not admitted, and will set out his/her own legal propositions which he/she says justify court or compel the court to refuse remedy sought by pursuer
3. Adjustment - once defences are lodged, the parties have several weeks to adjust their written pleadings by responding to any matters raised by the other side. Once this period of adjustment is completed the written pleadings will be incorporated into:
4. The record - the respective pleadings are set out in a single document
What is the rule of relevance?
– This requirement can be summarised by saying that: the pleadings must disclose a position in fact and in law which, if the facts were admitted by your opponent, would justify the court granting the remedy sought.
– A party to the action can challenge the relevance of opponents pleadings. If he or she does so the argument is that even if the other party proves everything he/she avers, he/she is not entitled to obtain the remedy sought.
The party challenges the others case by saying “So what?”.
Examples: X v Y by divorce is irrelevant if X and Y have never been married, or party sought to rely on implied term in contract on basis that it is simply reasonable (not enough to imply a term). Lord Norman said there is no onus on the party whose pleadings are under attack, to show that he/she proves his/her averments - they are bound to succeed.
– The concept of relevance is that the court should be allowed to weed out entirely unmeritorous actions at a relatively early stage. Thereby either eliminating or reducing the expense and inconvenience to the parties by disposing case.
A party can make an informed decision about whether to challenge the relevancy only once the pleadings are set out clearly and fully. Whether or not to mount such a challenge may depend on whether the relevance is curable or incurable.
If the action is simply misconceived the relevance will be incurable and will be worthwhile debating the relevance of the pleadings. If the action is badly plead, e.g vital ingredient of action is remitted, then there is a tactical decision to make as to whether or not to challenge the relevance of pleadings for debate as the opponent may be able to cure the problem.
Jamieson v. Jamieson 1952 SC (HL) 44
leading authority about relevance. In this case in rejecting a formulation of test of a judge in the inner house, Lord Norman said at p.50 that true proposition Is that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer’s averments are proved. The onus is on the defender who moves to have the action dismissed and there is no onus on the pursuer to show that if he prove his averments he is bound to succeed.
It is more usually a defender who challenges the relevancy of pursuers averments. But pursuer is entitled to take a plea to the relevance of defenders pleadings.
What is the concept of specification?
The concept of specification is a sub-species of relevance
- The requirement is that the opponent must give fair notice of the pleadings so that they can properly prepare for proof. If the pleadings do not give fair notice then the particular averments can be attacked as lacking in specification and the court may refuse to allow evidence to be lead in support of those averments because the other party could not properly prepare its response.
This refusal to allow evidence may have consequences.
Example:
– Consequences of lack of fair notice.
– Refusal to permit certain averments to probation: e.g. Pursuer is not allowed to lead evidence on those averments. If the pursuer does not give defender fair notice then his claim can proceed under deletion of some of those averments.
– Knock-on effect on relevance of whole action.
– Same rules apply to pursuer and defender.
Common for one part of the case to be plead for lack of specification and excluded from probation but for the remainder of the case to be sent to proof. However, it may be that the issue was fundamental to the relevancy of the pursuer’s claim. If so, the fact that the averments about that issue have been excluded may render the pursuers pleading’s irrelevant and the action will be dismissed. If the pursuer failed to give fair notice about how the accident was said to have occured as a result of the fault of the defender, the action will be dismissed as without averments of the fault of the defender, the action is irrelevant.
It is more usual for defender to attack specification of the pursuer’s claim. But the same rules apply to defenders pleadings as they do to pursuer’s pleadings. Whether a pleading is sufficiently specific turns on the facts and circumstances of the case.
Lord Advocate v. Johnston 1983 SLT 290
Specification is a matter of fact and circumstance. Lack of specification is a lack of fair notice and it is a question of degree in the particular case whether that lack of fair notice is sufficiently weighty to warrant the plea in relevancy being sustained. This is common sense,) (cf. action for damages for breach of contract the parties may only have one relationship in breach of contract and action for negligence in failing to maintain a footpath — the local authority is likely to be responsible for miles of footpaths and more detail will be required in order to provide fair notice and allow the local authority to locate the defect and to prepare its defence. In any case the onus is on the person that they have not been given fair notice of their opponents case to point to some prejudice which results from that lack of notice).
Avery v. Hew Park School for Boys 1949 SLT (Notes) 6
Negligence case - A pupil, following an invitation by head teacher looked at eclipse of the sun without adequate eye protection and suffered damage to eye sight. Pupil claimed for loss as a result from damage to eyesight caused by the incident. The defender challenedg the specification saying the pursuer failed to give fair notice of the nature or degree of injury suffered by the pupil and the court was critical of the pleadings but held that the defenders had fair notice of the claim and in particular that they were able to have the pupil medically examined as they had done and pleadings allowed them to instruct an appropriate expert for this purpose. There was accordingly no real prejudice to the defenders. That reflects the general principal that actions for damages for PI will rarely be dismissed on lack of specification in the pleadings.
Thomson & Company v. Pattison, Elder, & Company (1895) 22 R 432
Fraud and criminality case - In these cases a high degree of specification is required. In this case the pursuer accused the defenders of fraud but failed to say whether fraud was perpetrated by a partner or an employee. The defender’s complaint of lack of fair notice was held to be legitimate and the action was dismissed.
What is the wider significance of lack of specification?
When pleadings are debated the requirement of specification focuses on whether or not you have given parties fair notice of your case.
– But there is wider significance of lack of specification
– An absence of pleadings on proof lead to an objection on the basis of “no record” for the facts which your questions seek to illicit.
An alternative is to decide not to take the case to debate and object on the basis that there is no record for it.
Accordingly, it is vital that you think about whether you have adequate specification of the evidence you need in order to lead/prove your case
British Railways Board v. Strathclyde Regional Council 1981 SC 90
There is a distinction between a claim with a lack of fundamental lack of specification and fundamental nullity which is therefore incompetent - in this case initial writ competent setting out relevant claim but which would require extensive adjustment in order to make it relevant for the purposes of civil procedure).
