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K5.2. The main responses in the CPR
| 288. | The CPR reforms seek to meet these deficiencies, first, by attempting to bring the focus of the claim form and particulars of claim back to the key facts of the dispute. They seek to discourage a style of pleading determined by causes of action and numerous alternatives.(Note 223) |
| 288.1 | CPR 16.2(a) provides that the claim form "must contain a concise statement of the nature of the claim" and CPR 16.4(1) states that the particulars of claim (which should either accompany the claim form or be served shortly afterwards) must include "a concise statement of the facts on which the claimant relies".(Note 224) |
| 288.2 | The accompanying Practice Direction (Note 225) expands on this, stating that a party may :- |
| "(1) | refer in his statement of case to any point of law on which his claim or defence, as the case may be, is based, | |
| (2) | give in his statement of case the name of any witness he proposes to call, and | |
| (3) | attach to or serve with this statement of case a copy of any document which he considers is necessary to his claim or defence, as the case may be (including any expert's report to be filed in accordance with Part 35)." |
| 289. | Secondly, the CPR requires substantive defence pleadings intended to expose the real issues between the parties and not merely "stonewalling" denials or non-admissions. (Note 226) The defendant must state which of the allegations in the particulars of claim he denies; which of them he is unable to admit or deny, but which he requires the claimant to prove; and which allegations he admits. If he denies the allegation, he must state his reasons and if he intends to put forward his own version, he must state what it is. |
| 290. | Thirdly, the CPR have introduced the requirement that the allegations in all statements of case be verified by a "statement of truth", ie, a statement by the party putting forward the document that he believes the facts stated in the document are true, signed by that party or by his legal representative on his behalf. (Note 227) |
| 290.1 | This requirement extends to amendments and further particulars (referred to as clarification or information). Failure to verify the document puts it at risk of being struck out. (Note 228) |
| 290.2 | Where a legal representative signs the statement of truth :- |
| "...... his signature will be taken by the court as his statement (1) that the client on whose behalf he has signed had authorised him to do so, (2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client's belief that the facts stated in the document were true, and (3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts." (Note 229) | ||
| 290.3 | Making a statement of truth without an honest belief in its truth is punishable by contempt in proceedings brought with the court's leave. (Note 230) |
| 291. | The NSW Supreme Court has also adopted rules (Note 231) requiring verification of pleadings, in support of the broad principle stated in its rules as follows :- |
| "(1) | A party to proceedings must not in a pleading or at a trial or hearing make, or put in issue, an allegation of fact unless it is reasonable to do so. | |
| (2) | A party to proceedings who has in a pleading or at a trial or hearing made, or put in issue, an allegation of fact must not maintain that allegation or its controversion unless it is reasonable to do so." (Note 232) |
| 292. | The complaint has sometimes been aired that rules requiring a statement of truth also result in a front-end loading of costs because they require the parties to invest enough effort and expense at the pleadings stage to be sufficiently sure of their case to comply. This is not an impressive complaint :- |
| 292.1 | One is concerned in this context with a case that is not going by default and has at least to go through the pleadings stage. The expense of preparing and filing pleadings therefore has to be incurred in any event. |
| 292.2 | If filing pleadings that are carefully and accurately drawn costs more than pleadings which merely "fudge" the position and may not reflect the party's true position, the lower expense is not a true measure of what is required. The "additional" cost may be no more than what is actually needed if one is to adopt a proper approach to the litigation. |
| 292.3 | Moreover, the "lower cost" of an ill-instructed pleading is likely to be a false economy since any inaccuracies and superfluous allegations will often generate irrelevant work and useless expense as the case proceeds. |
| 293. | Fourthly, Lord Woolf concluded that many of these deficiencies were due to the absence of judicial scrutiny in the pleading process. (Note 233) One of his recommendations was therefore for the introduction of such scrutiny. He envisaged the procedural judge examining the claim and defence to see whether the issues can readily be identified. If he thinks not, he can give directions to clarify particular points in the claim or defence, without a hearing or by a telephone conference. If the difficulties are not straightforward, he might require a case management conference to elucidate the issues and to deal with any other matters requiring treatment. (Note 234) |
| 294. | This recommendation has been implemented in CPR 18.1 which provides as follows :- |
| "(1) | The court may at any time order a party to clarify any matter which is in dispute in the proceedings; or give additional information in relation to any such matter, whether or not the matter is contained or referred to in a statement of case. | |
| (2) | Paragraph (1) is subject to any rule of law to the contrary. | |
| (3) | Where the court makes an order under paragraph (1), the party against whom it is made must file his response; and serve it on the other parties, within the time specified by the court." |
Notes
| 223 | A similar approach is recommended by the LRCWA: WAR - Project Summary, p 17. <back> |
| 224 | It must also include details of any interest and aggravated damages etc claimed and any other details stipulated by applicable Practice Directions (eg in personal injury actions, where limitation defences are raised, and so on): CPR 16.4. <back> |
| 225 | 16PD §14.3. <back> |
| 226 | CPR 16.5. <back> |
| 227 | CPR 22.1. In the case of a company, it must be signed by a "person holding a senior position" such as a director, the treasurer, secretary, chief executive, manager or other officer of the company: 22PD §§3.4 and 3.5. <back> |
| 228 | CPR 22.2. <back> |
| 229 | 22PD §3.8. <back> |
| 230 | CPR 32.14. <back> |
| 231 | Supreme Court Rules (amendment No 337) 2000, r 15.23. <back> |
| 232 | Ibid, r 15A.1. <back> |
| 233 | WIR p 154, §7. <back> |
| 234 | WIR p 156, §10 and §11. <back> |
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