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(b)
Application to subsequent pleadings
Some respondents
have suggested that a rule requiring substantive pleadings should
also be applied to the reply and any subsequent pleadings.
In our view, that suggestion should not be accepted. The rule requiring substantive
pleadings makes sense in relation to defendants who are obliged to plead to the
plaintiffs' allegations. If a defendant ignores a factual allegation made by the plaintiff,
he is deemed by O 18 r 13(1) to admit it.
Such a rule is required to enable the
parties and the court to know where each party stands in relation to each issue.
However, there is no obligation on the plaintiff to plead a reply at all. He does so
where he wishes to raise previously unpleaded facts which the defence has made
relevant. He is therefore not concerned with responding to each allegation pleaded in
the defence but with introducing further facts material to his case. The approach of
both the RHC (by O 18 r 14) and the CPR (by CPR 16.7(1)) has accordingly been to
imply a joinder of issue in the reply in relation to all untraversed factual allegations in
the defence. It follows that a rule requiring the reply to plead substantively to all
factual allegations in the defence is inappropriate. The same applies to any subsequent
pleadings.
Recommendation 24: Proposal 10 should not be extended to pleadings
subsequent to the defence.
Notes
Including the Bar Association and one set of barristers' chambers.
This is subject to the proposed introduction of the exception that a defendant need not traverse an
allegation if his case in relation to that allegation is clear.
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