CJR Final Report, Section 9: Pleadings

The current rule is that a party is permitted to make alternative and inconsistent

allegations of material fact in his pleadings.

How then is verification to work in

such cases

This question, which is not without difficulty, was considered by Patten J in Clarke v

Marlborough Fine Art (London) Ltd [2002] 1 WLR 1731, whose approach may be

summarised as follows. Cases may arise where the party has no personal knowledge

of the facts, but has evidence pointing to alternative possibilities. Provided that each

alternative can be justified by some evidence (a requirement reflected in the Bar's

Code of Conduct), the pleading and verification of such alternative pleas is

permissible. CPR 22 is aimed at excluding dishonest or opportunistic and speculative

claims. It is not intended to exclude honest claims reasonably advanced on the basis

of incomplete information which points to alternative sets of fact, each of which

would be legally viable as part of the party's case.

The Working Party's view is that a similar approach should be adopted in Hong Kong

and set out in a rule. Each case would have to be examined separately. If the matter

pleaded is plainly within the party's knowledge so that there could be no justification

for him putting forward inconsistent factual alternatives, the pleading is embarrassing

and cannot properly be put forward or verified. The same is true of inconsistent and

mutually destructive allegations advanced, not as alternatives, but as part of a unified

case.

Where, however, the party putting forward the pleading has a reasonable basis

for putting forward alternative and mutually inconsistent versions, the pleading is

permissible and ought to be verifiable on the basis that the party believes, on the

evidence available, that the facts correspond to one or other of the possibilities

pleaded.

Notes

See J&G pp 55-56.

At 1742-3 and 1745, §§20-22 and §§28-30.

Patten J so held in Clarke v Marlborough Fine Art at §18 and §28.