K5. Pleadings and statements of truth
K5.1. The problems with pleadings
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As Lord Woolf noted,
pleadings, intended as a procedural tool to promote fair and efficient litigation, have
become subverted from their proper purpose :- |
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"Whether through
incompetence or deliberation, pleadings often fail to state the facts as the rules
require. This leads to a fundamental deficiency, namely the failure to establish the
issues in the case at a reasonably early stage, from which many problems result." (Note 220) |
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| 285. |
Some of the particular
defects with the present practice of pleadings were identified as follows :- |
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They often fail to set
out the facts clearly and so impede identification of the issues; |
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they concentrate too
much on causes of action and defences, rather than on facts, which in turn contributes to
over-use of alternative positions; defences in particular are deliberately framed to keep
all options open for as long as possible; |
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affirmative defences
are not pleaded; |
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longwindedness; and |
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the original pleadings
get out of date as they are superseded by amendments and further and better particulars;
after the exchange of witness statements, they become less relevant for the purpose of the
trial agenda." (Note 221) |
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| 286. |
Similar difficulties have been reported in
Australia, with a couple of additional points :- |
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"* |
Inexact pleading and
frequent amendment of pleadings is allowed by courts and there is no incentive for
respondents to define the issues too closely as they are entitled to put the applicant to
proof on each matter pleaded |
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'Such ease [in amending
pleadings] permits and indeed encourages inexact pleadings; an applicant is aware that
pleadings can be developed, reformulated and "tidied up" in due course, and as a
consequence less care and less specificity than would otherwise be the case ensues.' |
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lawyers frequently use
pleadings in counter-productive ways: for example, by failing to admit matters pleaded
that they know from their instructions to be true or making allegations that they cannot
prove at trial." (Note 222) |
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| 287. |
Experience indicates that all of these
deficiencies are frequently encountered in relation to pleadings filed in this
jurisdiction and that improvements are clearly called for. |
Notes
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