Please, please – get your pleadings right

We all know that the pleadings filed in a case are crucial to how the case is run: what evidence is called, what law is relied on.  Often, though, for tactical reasons and to keep the case moving without running up costs, strike out applications and demands for further particulars are not made even though one side is left guessing a little at another side’s case.  A recent decision of the Victorian Supreme Court has highlighted the risks of not carefully revisiting your own side’s pleadings as a case comes closer to trial, to be sure that the evidence you want to lead and the way you want to argue your case is in line with your pleadings: see the judgement of Davies, J in ICM Investments Pty. Ltd. v San Miguel Corporation [2012] VSC 509.  Her Honour referred in the case to what Harper J had said in Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust)Pty Ltd:

[1] Litigation is sometimes conducted to judgment with barely a glance at the pleadings.  It remains generally true that good pleadings are an important, and often crucial, element in the civil justice system.  When well drawn, as they always should be, they form the touchstone by which the uses are identified and the relevance of the evidence assessed.  

[2] Consistently with this, one of their primary purposes is to reveal to the opposite party how the party pleading puts its case.  On reading a well-drawn statement of claim, the defendant to whom it is directed will be able to say: “These are the material facts that will be the subject of the plaintiff’s evidence.  They tell a coherent, comprehensible story; and, to the extent that any additional evidence is to be called that might cause me to be taken by surprise, here is that evidence outlined in the particulars”.  

[3] A complaint that the pleadings do not achieve this is often met with the response that the opposite party knows very well, from documents and perhaps other sources, what the case against it is.  This no answer at all, at least unless the relevant documents are properly incorporated into the pleading.  It is, as a general proposition, true to say that each pleading should be sufficient in itself.  And although an element in an adversarial process, pleadings are themselves intended to be the opposite of adversarial, at least to the extent that they must, if they are to perform one of their proper functions, inform the opposite party of the case that party will have to meet at trial.

In the case before Davies, J the cost of getting it wrong (albeit inadvertently: Young QC’s statement that he had believed  his client’s pleading did show the case to be answered was of course accepted by the Court) was an adjournment of the trial, with costs of the adjournment to be paid by the party whose pleadings did not comply with the case that was opened for it.

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