Written Pleadings V Flashcards
How should you argue irrelevancy or specification?
in order to argue that your opponents pleadings are irrelevant or lacking in specification you must take opponents pleadings pre veritati - which means that you must assume that your opponent will prove their pleadings even though at proof you may be offering to prove something quite different.
Specification arguments are really quite fact specific. The best way of understanding is to conduct debates.
What is the function of written pleadings?
The overarching function of written pleadings is to define the factual and legal issues in dispute between the parties which require judicial determination.
That overarching function has a number of aspects including providing notice to court and opponent and to you about preparation required for proof. The principle rules of written pleadings are those of “relevance” and “specification” or “fair notice”.
Whether a case is relevant or sufficiently specific is quite heavily dependent on the particular circumstances.
• Requirements depend on the circumstances, but there are a number of general principles which can be seen from the case law.
Jamieson v. Jamieson 1952 SC (HL) 44.
– The background - this case is routinely referred to. In this case the pursuer raised an action of divorce against her husband alleging mental cruelty. The case remains important because of its discussion of the requirement of relevancy. The Lord Ordinary dismissed the action and the other one adhered. The matter reached house of lord and held wife’s averments were relevant. Held that the test for relevance in divorce action was the same as any other action.
• – Lord Normand’s speech (p.54): “[t]he 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,” and , “[t]he 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 proves his averments he is bound to succeed.”
• – Lord Reid’s speech (p.63): “[i]f it can be shown that, even if the pursuer succeeds in proving all that he avers, still his case must fail, it appears to me to be highly advantageous that time and money should not be spent on fruitless inquiry into the facts”.
He also said:
• – Lord Reid’s speech (p.62): “[i]f a case is to be remitted to proof, it is very undesirable to say anything which may embarrass the future conduct of the case”.
• As a result of this remark you may reasonably see a judge allowing a proof before answer and say it would not be appropriate to reach firm conclusions about a case until evidence has been led.
Southside Housing Association Ltd v. David Harvey, Alex Scott and Partners and Others, unreported, 2 July 1992, Court of Session, Inner House (First Division).
The background - the pursuer sought damages from its architects (first defender). And its building contractor (second defender) for breach of contract arising out of contract to carry out construction works in which works were completed in 1976.
• The first defenders position was that the pursuer’s claim had subscribed and pursuer’s averments were irrelevant.
• Pursuer responded that it could not by exercise of reasonable diligence discover the defects until point within 5 years of the action and also to compete the relevancy of the first parties averments while accepting the submissions made on behalf of the defenders .
• The sheriff said that while accepting the submissions made on behalf of the defenders that it was right was whether there had been actual damage he also accepted the pursuer’s submissions that reasonable diligence had been exercised.
• He went on to say that in these circumstances february 1983 was the date at which the pursuers would be made aware of the loss occurred due to defenders negligence.
• Under these circumstances he considered at Feb 1983 was the date the pursuers could be said to be aware of the loss as a result of the neglience having been occurred. The fact the action was raised in Sept 1986 the claim had not been extinguished, the sheriff propelled the first defenders plea in law and quaod ultra allowed the proof before answer.
• The first defender appealed and argued that sheriff ought to sustain its pleas in law and dismiss the action. The first division rejected the primary argument and pursuer had given fair notice of features which demonstrated reasonable diligence on its part and in light of these features of the case it is very much fact and degree as to whether the pursuer had exercised reasonable diligence and to a limited degree it will invariably be resolved after hearing evidence.
• The first defender’s second argument was that the sheriff ought to allow proof before answer as to relevance of averments relating to prescription rather than concluding the averments were relevant.
• – The following is helpful. The Lord President’s (Hope) opinion (p.3): “[t]here are signs in the sheriff’s note that he misunderstood the nature of the exercise which he was being required to perform in a debate on relevancy”. It was made clear in Jamieson v Jamieson that even if the pursuer succeeds in proving everything that he intends to aver the case must still fail.
• – The Lord President’s (Hope) opinion (p.4): “The debate was, of course, taking place before any enquiry into the facts. The advantage of this procedure is that it enables points to be disposed of on relevancy without spending time and money on what would be a worthless enquiry, if it appears that, even if the party were to succeed in proving all his averments, he would nevertheless fail to make out his case. If this test cannot be satisfied the proper course is to sustain the plea to the relevancy, and to dismiss the action, repel the defences or exclude averments from probation as the case may be.”
• – About limits of discussion of relevancy: The Lord President’s (Hope) opinion (pp.4-5): “But it is a misconception of the procedure to go further and to assume that the party has proved his averments and, on that assumption, to grant him the remedy to which he would be entitled after proof. A debate on relevancy is not to be treated as a substitute for a proof of the averments. It is assumed as the test of relevance that the party will be able to prove all his averments. But that is only an assumption, and all decisions on the merits of the action which cannot be resolved on relevancy must be reserved until after the proof.”
• There are a number of possible ways in which an action can succeed after action of relevancy: sometimes it is clear that if pursuer proves all he avers then eh will be entitled and challenge based on relevancy fails. In others it may be clear that the proper course is to sustain the plea to the relevancy. So there are some cases where pursuer’s case will obviously fail and action may be dismissed. In cases of doubtful relevancy were appropriate that facts be enquired into then a proof before answer will be appropriate. This is because there are some cases where an argument may or may not be relevant depending on what view is taken.
What is the specification/fair notice requirement?
The specification/fair notice requirement — this is a subspecies of relevance. What is required by way of fair notice depends on the particular circumstances of the case. For present purposes the most important consequence is to require parties to provide fair notice so they can properly prepare for the proof. The onus is on the person alleging that they have not been given fair notice to point to some prejudice resulting from that fair notice.
Macdonald v. Glasgow Western Hospitals 1954 SC 453 at p.465 per Lord President Cooper:
“[t]he plea of lack of specification finds its proper application in a case where the defender does not know the case to be made against him and objects to being taken by surprise at the proof”.
The plea ought not to be entertained when defender is throwing up smoke screen but if lack of specification does result in prejudice then the material averments will be excluded from probation - party pleading will not be allowed to plead evidence - which may in turn result in the remaining aspect of the plea not being relevant.
The party should also plead sufficient facts to enable them to lead all the required evidence of the proof. If he does not then although his claim may/may not be relevant he will not be able to prove aspects of claim apparently lacking in specification.
• No record.
What about the subsidiary principles?
- Relaxed requirements for rules of relevance of some actions for damages for personal injuries (cf. new rules). e.g. Less may need to be said.
2. In any discussion of relevance the focus is on pleadings of party whose averments are being challenged. The defender is challenging the averments of the pursuer’s claim. In the usual case the focus is on pursuer’s pleadings e.g. Whether they prove all pleadings they will succeed. In general the focus is not on the defender’s pleadings. It is however permissible to have regard to any admission of pursuer of defender’s averments: Pringle v. Bremner and Stirling (1867) 5 M (HL) 55. - Not an exception to general rule but sometimes forgotten about.
• BUT MacPhail, Sheriff Court Practice, 3rd edition, paragraph 9-33: “A bare general denial of the defender’s averments as to a matter essential to the relevancy of the pursuer’s case about which the pursuer himself has made no averments may, however, be considered (Murray v. Edinburgh DC 1981 SLT 253, per Lord Maxwell at 256). In certain circumstances, the pursuer’s failure to make his meaning perfectly distinct, in the face of an averment in answer by the defender, may be taken into account (Potter & Co v. Braco de Prata Printing Co Ltd (1891) 18 R 511, per L.P. Inglis at 517).” — The first statement is a simple application of the normal rules of pleadings. If it does not do so it will fail. The second is a fact which has a bearing on how the pursuer’s own averments should be understood by the court.
Baikie v. Glasgow Corporation 1919 SC (HL) 13 at p.17 per Lord Shaw of Dunfermline
Shows the proper approach to construction of pleadings.
“[i]n scrutinizing a record … [the jurisdiction to construe the pleadings as containing no relevant case] … ought to be exercised with the most reasonable and ordinary construction of the words employed, and so as to avoid such an analysis as, pushed to an extreme, would evacuate simple and plain statements and tear their meaning to pieces”.
An admission must therefore be read in light of any subsequent explanation. If ambiguous then construction which enables it to be lead which makes it consistent with explanation ought to be referred. This principle applies in reverse if explanation is also ambigous.
Mack v. Glasgow City Council 2006 SC 543
– In this case the purser raised an action for damages caused by losses cause by severe water penetration and damp and breach of contract on part of the defenders. The claim included the discomforting and social embarrassment of living in such a house. The action was commenced on 10.08.2004 the defender argued that claim for inconvenience was properly analysed as a claim for personal injuries and was thus timbered by s17 of 1973 Act. The pursuer accepted that she could not rely on 1973 Act. The material averments made by pursuer were:
– Material averments:
“As a consequence of the defenders’ said breaches of duty, the pursuer has suffered loss, inconvenience and damage. She has suffered the inconvenience and discomfort of having to live in a house which was suffering from severe water penetration, dampness and mould growth for a period of some 2 years and two months. she has suffered the inconvenience of living in a house which was damp and smelly, and the social embarrassment of living in such a house. She has suffered the inconvenience of having had to complain to the defenders. She has required to redecorate and clean the house due to water penetration and dampness…. The pursuer’s claim is for solatium and economic loss arising from the defenders’ breach of contract.”
– Sheriff’s and Sheriff Principal’s judgments - agreed with defenders that those averments were irrelevant but allowed a proof before answer on all averments and all pleas. Following a review of the authorities the extra division held:
– Opinion of the Extra Division at paragraph [17]: “[i]nconvenience sounds in damages not because it is a species of personal injury, but because it is a recoverable head of general damages for breach of contract, whether the pursuer is a natural person (capable of suffering personal injuries) or a body corporate (not so capable)”.
Accordingly they held the pursuer’s averments were relevant because if she proved what she averred she was not bound to fail.
Kyle v. P & J Stormonth Darling WS 1993 SC 57.
– The pursuer sued his former solicitors for damages for delict under contract because of admitted failure of solicitors to comply with court an earlier plea had been abandoned.
So far as loss was concerned the pursuer argued that they had reasonable prospect of success or action settled by compromise. He valued this loss by reference to expenses which he had become liable for. The defenders admitted negligence but argued that the pursuers had made no relevant averments on loss or damage. They argued that in order to be successful the pursuer required to prove that on balance of probabilities he would have succeed with appeal and could not argue reasonable prospect of success or compromise. The sheriff held that the pursuer’s averments were relevant. The defenders appealed:
The Grounds of Appeal:
“(1) The Lord Ordinary erred in law in holding that the loss of a legal right per se constituted a ‘completed wrong’ irrespective of the prospects of recovering damages by decree or compromise.
(2) The Lord Ordinary erred in law in holding to be suitable for inquiry the pursuer’s averments which fail to specify, or[,] in any event, to give sufficient specification of (a) the grounds upon which the appeal possessed any real prospects of success or (b) any offer which the pursuer was prepared to make which the other party to the litigation would probably have accepted.”
– The Extra Division of the Inner House of the court of session held that an ordinary case based on negligence a pursuer has to aver (1) the negligent act (2) the loss injury and damage and (3) casual link between negligent act and loss injury and damage.
Here the negligent act was failure to mark appeal timelessly, the loss was inability to pursue the claim and the causal link was obvious. The likelihood of success or compromise is a matter relating to the value of the loss and not to the existence of loss. Not necessary for pursuer to prove on balance of probabilities that appeal would have succeeded. It was unnecessary to aver the basis of which the other party would be entitled to settle.
Vaickuviene and Others v. J Sainsbury plc 2013 SLT 1032.
– The relatives of an employee of the defender who had been murdered at work by colleague sued for damages based on defender being vicariously liable for murder which it said was a course of conduct within meaning of section 8 of Harassment Act 1987.
It is accurate to say that for employer to be VL there must be a sufficiently close connection between proper conduct of employers act and wrongful act.
There was nothing in the pursuers averments which suggest that the defenders enterprise or tasks entrusted to the wrong doing employee carried with then any sort of risk that the employee would commit the wrong it committed. Accordingly, the pursuer’s averred that they would fail with their action even if they proved everything they averred.
– The averments.
– The opinion of the Second Division.
RHM Bakeries (Scotland) Ltd v. Strathclyde Regional Council 1985 SC (HL) 17.
– Pursuers sought damage from local authority in respect of damage caused by sewer. The claims were advanced under statute and common law.
The third article of condescendence was in the following terms:
“The collapsed sewer in Paton Street constituted a potential nuisance at common law. Said flooding was caused by said nuisance. The defenders being in occupation of said sewer in their capacity as local authority responsible for said sewer are accordingly strictly liable for any loss arising from the existence of said nuisance.”
– The decision - the cause of the collapse was unknown so pursuer argued that strict liability rule applied. The defenders maintained that these averments were irrelevant and you need fault on their part. Appeal was allowed and 2nd division allowed the argument. Appeal by defenders to house of lords saw that liability for nuisance in scotland requires culpa on the part of the defender, the fact that defender was public authority did not alter this. Since pursuer did not offer to prove fault on defender then even if it proved all it had averred it was bound to fail so accordingly its case was irrelevant.
Weir v. East of Scotland Water Authority 2001 SLT 1205.
The pursuer and his family raised action claiming damages sustained from unwholesome water because of the proscence of a dead fox in the mains pipe. The action was raised under Water Scotland Act 1980
The pursuer pled that it was defender’s duty to take reasonable care to supply defender with water and this had been breached by certain areas of defenders contractor.
– Lord McCluskey’s opinion was critical and criticised pursuer for not making clear whether this was a case of vicarious liability or personal fault not he part of the defender.
In discussing the relevancy of pleadings and lack of specification he boiled it down to:
– At paragraph [14]:
“Is it suggested that the defenders employed incompetent experts to check the pipes? Is it suggested that the defenders knew or ought to have known that the testing was inadequate? If so, how should they have known? Should they have conducted an inspection themselves?”
This is not a particularly imp. Case so pick another to read in more detail. The formulation of questions like this is a common appproach by judges when arguing that case is lacking in specification. If you have to ask these how can you properly prepare for proof?
[See 2013 Exam Worked Example]
British Railways Board v. Strathclyde Regional Council 1981 SC 90.
pursuer suffered loss and damage when a tunnel collapsed. In 1977 the last day of period of 4 years the pursuer raised an action in Glasgow Sheriff Court action. The averments were very brief. – The Court of Session action in 28 Feb 1978 - the issue which was subject of discussion is whether the 1977 claim was a relevant claim in appropriate proceedings for the purpose of interupting prescription. – The issue for the Court of Session. – The issue for today.
The initial writ.
– The articles of condescendence:
“1. The parties are as designed in the instance.
2. On 29th July 1972 a tunnel in West Street, Glasgow collapsed.
3. The said collapse was due to the fault of the defenders or one or other of them. The pursuers have incurred costs of £1,291,000 repairing the said damage. This is the sum sued for.”
– The pleas-in-law:
“1. The pursuers having suffered loss and damage through the fault of the defenders or one or other of them, they are entitled to reparation from them therefor.”
2. The sum sued for being reasonable, decree therefor should be pronounced as craved.”
• If faced with these pleadings in closed record - possible challenges to relevance/fair notice:
– Insofar as the facts giving rise to the action are concerned, which tunnel was it? Who owned it? Who was responsible for it? What was it that actually caused the collapse?
– Insofar as the fault is concerned, nothing is said about the underlying duty and the breach of that duty which gives rise to fault. What is the duty of reasonable care which is said to have been owed? For that matter, is it a duty to take reasonable care or is it some sort of absolute duty? Why is it said that failure to fulfil that duty meant it was reasonably foreseeable that the pursuer would suffer loss? What are the factors which create the necessary degree of proximity between the pursuer and each of the defenders? Why is it said to be fair, just, and reasonable for a duty to be imposed? What act or omission by each defender is said to have amounted to a breach of this duty?
– Finally, insofar as loss and damage is concerned, what are the “costs” which are said to have been incurred? Is it damage to property such as track and rolling stock? Is it loss of profits? Is it some other loss which is said to be connected to the collapse of the tunnel?
Which of these challenges are good in law? e.g. To justify dismissal of the claim. The complaints relating to facts are less important as only likely to be one collapsed tunnel however given the passage of time the failure to provide info of mechanism may be prejudicial to defenders. The absence of a properly formulated duty is regarded as causing prejudice to the defender e.g. Because nothing is said about cause of collapse as defenders are giving no notice as to why alleged breach of duty gave rise to accident and loss. Lack of detail of pursuers costs means defender cannot reasonably prepare for proof. Loss is thought to fall within knowledge of pursuer alone and must be plead with a high degree of specification.
