Written Pleadings IV

Question 1

What is the starting point for drafting your initial writ?

Answer 1

The starting point for preparing to draft initial writ is submissions following proof.

Question 2

What do you do in your submissions?

Answer 2

In your submissions you will invite your court to believe your evidence therefore find your submissions proved.

You will ask the court to accept that certain legal consequences flow from that.

e.g, ask the court to find defender breached terms of contract and as a matter of fact that breach caused you loss and as a matter of law those losses are not too remote. Your pleadings must foreshadow that submission.

Question 3

What is the first stage in written pleadings?

Answer 3

Discovering the facts. This depends on the law in the particular area. When sheriff issues judgement this will contain Sheriff’s findings-in-fact and findings-in-fact in law where the law is applied to the facts. The findings in law and in fact and law can be appealed but generally speaking an AC will not interfere with the sheriff’s primary findings of fact because the sheriff benefits from hearing the witnesses and judging their demeanour etc, so even if case reaches supreme court the findings of fact are likely to remain undisputed on appeal.

A duty you owe to the court is not to plead facts for which there is no Evidential basis for making the averments. Accordingly, before making any averments you need a sufficient body of evidential material. Evidence can be of variable quality. You must discriminate between what your client suspects, thinks, claims he knows and what he can prove is the case. It is critical to obtain a full statement from the client and other witnesses where their version is challenged by other evidence to ensure it stands up to scrutiny.

Question 4

What is a statement?

Answer 4

A Statement is given spontaneously and voluntarily often in the context where not speaking to a lawyer in the context of litigation, e.g. Eye witness statements from police. Police read this back and get witness to sign it. So this is reasonably good quality evidence. These statements are important bc if the witness comes up with different statement then you can discredit them and demand they explain the difference

Question 5

What are precognitions?

Answer 5

taken by lawyers in contemplation of litigation, after the incidence, compiled by lawyer getting answers. It is important to get completed, accurate precognitions as this is what witness will say when they reach the witness box. Must test what the witness says and not blankly accept their word. It is filtered through the mind of the lawyer. It is therefore not treated as being the witnesses own words as any difference is said to be a result of a misunderstanding by the precognosa.

Question 6

What is documentary evidence?

Answer 6

Never believe a client which says he/she saw a letter when they are unable to produce it - cynical approach.
Demand to see doc or a copy, do not act until this.
Distintiguish between:
Documents which are the subject-matter of the cause (e.g. Where the action relies on document - must produce this as essential for presentation) and
Documents which are to be used for evidential purposes (not themselves the subject matter of the action. This includes plans, vouchers, photographs, letters, medical records etc).

Expert reports - some types of case cannot succeed without this e.g medical negligence case needs medical report, or expert conveyancer. This are necessary to establish liability.

Claim for personal injuries arising out of accident at work or road traffic accident.

Question 7

What are real productions?

Answer 7

These are objects or articles other than documents or statements.
This has gone out of fashion
Some cases have evidential requirement to produce this in court e.g. Conditions of piece of machinery is subject matter of the dispute - in this situation the real productions are likely to be crucial.

Question 8

What is the best evidence rule?

Answer 8

Best evidence rule means real evidence itself must be produced. Court only allows secondary evidence if it has been lost or destroyed not by fault on the party wishing to rely on this. Rule set out in:

Question 9

Scottish and Universal Newspapers Ltd v. Gherson’s Trs 1987 SC 27

Answer 9

x

Question 10

Peackock Group Plc v. Railston Ltd 2007 SLT 269 (and the subsequent action at [2010] CSOH 173) — more recent example

Answer 10

X

Question 11

Why must you obtain updated proofs?

Answer 11

The facts may change over time and it is necessary to obtain updated reports nearer to the proof eg. Relying on medical evidence.

Question 12

What are the questions to answer before drafting the writ?

Answer 12

Once you have all the information you can draft the writ
Should you raise any action? Is there a winning argument using that material?
What are the factual and legal bases of the claim? What do you want the court to do, e.g. Specific implement or damages? Is it damages for breach of term or negligent representation or unjustified enrichment? Conduct legal analysis of the case even before you meet the client.
Which court has jurisdiction to determine it? What facts do you need to prove before the court will do what you want it to do?
Who is to be the defender? Is there more than one? Is liability joint and several?
Who is to be the pursuer?
Once answered these questions then you can draft the writ.

Question 13

What is the process drafting the initial writ?

Answer 13

Decide where you will raise the action
Who the pursuer/defenders will be
What do you want from them?
It is usually best to think generally about Craves and pleas-in-law.
Once these are straight form an Outline structure of condescendence e.g. Descriptive title and content.
Add the detail.
Revise and revise again

Question 14

What is the process for drafting the defences?

Answer 14

Similar process for drafting the Defences.
Analysis pursuer’s case as well.
May need to lodge skeletal defences - acceptable to do this if there is doubt about facts or law and position requires investigations. After investigations it is then necessary to expand on defences or withdraw, to state a defence once there is none is an abuse of process and may lead to solicitor being personally liable.

Question 15

What is the language of pleadings?

Answer 15

The general approach you should take for language:
Logical order
Chronological order
Use short sentences with clear and precise language.
Avoid use of pronouns such as he/she because though it may be clear in initial writ it may not be clear in the defences and therefore the record - refer to pursuer or defender.
Use past tense unless wrong to do so.
Important words and phrases used daily in pleadings - which we have mentioned already e.g. Instance, crave, articles of condescendence, averments, not known, not admitted, admitted, explained and averred etc.

Question 16

What is incorporation brevitatis causa?

Answer 16

This means for the sake of brevity.
The effect is that the contents of the documents are deemed to form part of the pleadings.
It is as if you had typed the document out verbatim
Any document which has been incorporated in this way can be referred to in debate when discussing relevance of pleadings as it forms part of the pleadings
You should not incorporate this as a matter of course however - your pleadings are the first opportunity you have to put pleadings before sheriff. This becomes less persuasive if you are constantly referring to other documents.
The second reason is a legal one - fair notice
Meaning and effect.

Question 17

Eadie Cairns v. Programmed Maintenance Painting Ltd 1987 SLT 777

Answer 17

case on fair notice, in this case the pursuers sued a painting contracted for damages arising out of defective performance of work. In this pleadings the pursuers gave very little detail about the defects and instead referred to an expert report which they incorporated with the pleadings brevitatis causa. It was held that the defender was not given fair notice of the pursuer’s case by simply being referred to the expert’s report. The problem is that the reports had been produced and referred to and not incorporated into the pleadings. Incorporated pleadings can be referred to in a debate prescisely because they are deemed to be part of pleadings.

Question 18

Steelmek Marine and General Engineers’ Trustee v. Shetland Sea Farms Ltd 1999 SLT (Sh Ct) 30

Answer 18

“as the decision is closely linked to its own facts it would in many respects be left unreported.

Question 19

How should you use documents?

Answer 19

As a matter of generality it is preferred not to incorporate documents into pleadings. However if the document forms part of the subject matter of the case such as a contract then it may be appropriate to incorporate it so the doc can then be referred to at debate, e.g if the case involves the contract then the contract can be incorporated so all the terms can be looked at on debate. This follows from the rule of pleading that you plead fact and not evidence.

Question 20

What is a call?

Answer 20

Overused in pleadings.
The formulation is: the pursuer is called to aver X and Y the pursuers failing to answer this call will be founded upon.
Not averments in the true senses as not assertions of fact and not entitled to lead evidence of their content. Nor does the mere prescene of a call give rise to obligation of other party to answer it.
Only function is to give advance warning of complaint of lack of specification.
If there is an element of opponents case which makes you think: “i cannot answer this as there is not enough detail” then might put a call in your pleadings addressing this to the other side demanding they give you further information.
You opponent, if they think there is merit in implied suggestion of lack of specification then they may adjust or alter pleadings. If they ignore or refuse to respond then when it comes to debtae challenging the specification or relevancy of your opponents pleadings then can say to the court that there is prejudice here since the call has been present and pursuer has not responded.

The existence of unanswered calls can lend significant weight to any criticisms you make of your opponents pleadings e.g. Lack of specification -adds further weight that complaint is meaningful and not technical.
There is no obligation to answer the call and by placing call in pleadings there is no obligation to make averments about those particular facts if there is otherwise no requirement to do so e.g. By relevance or fair notice. In this regard see:

Question 21

Gordon v. Davidson and Others (1864) 2 M 758

Answer 21

Use and effect discussion

Question 22

What does believed and averred mean?

Answer 22

can be used where you do not have direct evidence to enable something to be averred from primary facts.
Where an inference of fact can be drawn from certain primary facts.

Question 23

Burnett v. Menzies Dougal 2006 SC 9

Answer 23

extra division of CoS said formulation could be used to plead any necessary averment provided there was sufficient primary facts from which to draw the inference.

Question 24

What does Esto mean?

Answer 24

be it that or in the event that: -

Can introduce an alternative case e.g. It did not happen but, in the event the court found it did, esto such and such did happen (which is denied) it is explained that the defender should succeed for some other reason.
Peacock Group case - pursuer raised an action for damages it said were caused by defective plumbing works, the defender denied the works were defective but said in the alternative (psto) that it was the fault of a third party.

Question 25

What is the weaker alternative role?

Answer 25

James Hope and Others v. Hope’s Trustees (1898) 1 F (HL) 1; Lord Watsons says at p3 in cases where there is an alternative averment of fact relevancy must depend on the weaker alternative. This weaker alliterative is the only one which the pursuer absolutely offers to proof.

Haigh & Ringrose Ltd v. Barrhead Builders Ltd 1981 SLT 157; and

Question 26

Haigh & Ringrose Ltd v. Barrhead Builders Ltd 1981 SLT 157

Answer 26

pursuer claimed damages from the defender and the two separate clauses of the contract/ there were no averment’s which were proved which allowed the pursuer to succeed under the first of those clauses. But there were averments which were proved which allowed the pursuer to succeed under the other. There was therefore no logical reason saying that the claim in relation to the second clause would fail - could claim under the second clause only.

Question 27

Kenyon v. Bell 1953 SC 125

Answer 27

pursuer claimed damages for medical negligence which led to his daughters eye having to be surgically removed. His primary position was that as a result of the defender’s negligence, his daughter lost her eye. However in the alternative he said that negligence meant that his daughter lost the material chance that her eye would be saved. It was clear from that that the pursuer was doubtful that he could prove the primary position and so he had to fall back on a less onerous alternative. Lord Guthrie said that materiality of the chance deepened on expert evidence so it was possible, although doubtful, that following proof the jduge/jury might be satisfied that the negligence was causative of the loss. Accordingly it could not be said that the pursuer’s claim would necessarily fail.

Now recognised test of material contribution in relation to causation.

Question 28

What is the “weaker alternative rule”?

Answer 28

if in order to succeed with an action, the pursuer must prove (a) that in his pleadings he merely offers to prove either (a) or (b) where proof of (b) is not sufficient for him to succeed then pleadings are irrelevant.
Rather than simply refusing to admit averments of (b) the action will be dismissed. This is because the court is entitled to assume that a responsible pleader has looked at the case and understood that the law requires them to prove (a) and formed the view that in these circumstances court time should not be taken up with hearing evidence that the pleader does not think will establish the necessary facts.

Question 29

What does separatim mean?

Answer 29

Means “separately”.
Practical examples.
Inter-relationship with “esto”.

Question 30

What are the expressions to be avoided?

Answer 30

Keep to the tried and tested responses to averments.
Avoid legalese - such as the said or in respect of etc. Refer to the car rather than the motor vehicle etc.
Never use specific denials
Simply rest on your general details
Never say averred that such and such because any statement you make in a statement of facts is an averment.

Question 31

How do you plead in Personal injuries actions?

Answer 31

Relevant rule: OCR, Chapter 36.
Initial writ in: Form PI1. This requires an abbreviated form of pleading without pleas in law.
Defences are in the usual form but with a note of pleas in law attached.
Contrast with ordinary actions.
Court sets out more detailed timetable and includes dates of diet of proof at the outset.
Allows parties to take certain steps designed to encourage early settlement of cases.

Question 32

How do you plead in commercial actions?

Answer 32

Rule: OCR, Chapter 40.
Requirements for initial writ and defences same with ordinary actions
Form G1A.
Contrast with ordinary actions.
Defences have to be lodged sooner than ordinary actions
Each case is case managed by an allocated sheriff who takes an action role in trying to move the case towards resolution by case matter conferences.
Particular rules were introduced into CoS in response to long procedures

Question 33

How do you plead in family actions?

Answer 33

OCR, Chapter 33.