3.3
Pleadings
–
45
Submissions received 36 For the most part, the submissions on pleadings are from members of the
30 – profession who understand the way the court system is run and have an
13
interest in the way that it is changed.
15 – 12
7
4
0 –
No case should be prejudiced because it has been badly pleaded. [See
Oral Stakeholders Total Recommendation 45]
Written Consultation Drafts
These words summarise the general position in all the submissions on
pleadings. Throughout the debate over whether reform should take place,
the common aim expressed by all is to ensure the fair administration of
justice.
Should the system According to one submission, the proposals for pleadings reform are not
change? revolutionary.
[The proposals were] reflected in the evolutionary changes to the Supreme
Court and District Court Rules evident at present.
There is a general view that perceived difficulties within the current system
of pleadings, their complexity and their lack of utility, is quite over-stated
… and not sufficiently based on practical experience. Pleadings continue
to particularise the precise issue in dispute and which must be determined
by a court at trial.…
The difficulty with the current system of pleading may be that pleadings
are not skilfully drafted and not enough attention is given in the training
of lawyers to the skill required.
Pleadings are often ignored entirely by the parties during the course of a
trial, only to be resorted to at the last moment by a party who thinks he
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REVIEW OF THE CRIMINAL AND CIVIL JUSTICE S YSTEM — S UBMISSIONS S UMMARY
or she is unlikely to succeed, in an attempt to demonstrate that an issue,
dealt with by both parties, was not squarely or appropriately raised on
the pleadings.
[T]here are many cases in which formal written pleadings serve the
useful purpose that they are intended to serve. [H]owever … there are
many cases where pleadings are simply unnecessary or add very little to
the adjudicative process [and] much time is wasted on striking out and
objecting to pleadings which are matters of law.
Some submissions, however, acknowledge a distinction in the value of
pleadings for particular types of cases.
There are some classes of case (for example personal injuries) in which
pleadings are generally recited by rote and are of little utility. In other
areas, complex commercial disputes being one, they perform a vital role
in identifying the essential matters of contention with clarity.
We suggest that the need for pleadings be determined at the first
status conference in the Case Management regime. [See
Recommendations 35-37]
Another submission claims the pleadings reform proposals are one-
dimensional and do not contemplate a wide range of case types.
One criticism … is that it [the proposals] have been written with a
particular case type in mind (a common law claim, such as a personal
injury case.)
Should the term Regarding the proposal to abolish the term 'pleadings,' one submission argues
‘pleadings’ be against this.
abolished? [T]he term 'pleadings' should [not] be abolished. 'Pleadings' is a term of
art, with a well-defined and understood meaning, and there should be
no change to the terminology. [See Recommendation 23]
Should pleadings be Those who favour change welcome the proposal to simplify procedure but
replaced with a less emphasise the need to identify the issues in contention.
formal system?
There is room for less formal pleadings so long as the objective of
defining the issues is achieved.
Abolish pleadings as we know them and replace them with a Statement
of Facts for both the plaintiff and the defendant. How often have we
heard a judge saying after a trial 'such and such a matter was not
pleaded — therefore the plaintiff must fail. [See Recommendations 24 &
26]
Nevertheless, not all submissions are in favour of abolishing formal pleadings.
Some are of the view that 'refinement and compliance with the existing
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S UBMISSIONS ON PLEADINGS
rules' is preferable to 'radical reform,' others are sceptical of the legal
profession's ability to adapt to a new procedure.
In civil litigation I would be inclined to stay with pleadings. Many lawyers
do not know how to plead properly so one often sees a rather rambling
novel type approach masquerading as a pleading. I suspect any change
as proposed would exacerbate this practice.
It is true that the preparation, filing and exchanging of pleadings is time
consuming and expensive. That is a tautology. One can equally say that
a modern passenger aircraft is expensive. The introduction of what is
called a less formal narrative of fact and law, would in any event, very
quickly become pleadings.
Others recognise an inherent value in the role of pleadings.
It had been remarked in the past by a senior judge that well drafted
pleadings are of much greater value than all of the huge boxes of materials
which are often wheeled into the civil courts, and indeed the criminal
courts.
Case statements As for the Commission's suggestion that parties state the nature of their
case together with the law to be relied upon and the remedies sought, the
following assertion is made by one submission.
[C]ompelling a party to provide an accurate formulation of the legal
principles and statutory provisions to be relied upon forces that party to
focus more accurately on the nature and strength of its case and would
substantially increase the prospects of earlier compromises of an action.
This would mean that lawyers would not be so concerned with 'striking out
and objecting to pleadings which are matters of law,' and would focus more
on refining the legal propositions that are the basis of cases. [See
Recommendations 26- 28]
Pleadings are too structured.… There is also a need for less specific
pleadings at first and for the solicitor to verify by oath the pleadings to
knock out any nonsense. [See Recommendations 32-34]
The importance of plain English in court documents is reiterated in the
following submission.
I think there is a lot to be said for the alternatives of either using pleading
or affidavits, depending upon the complexity of the case. In my view
plain English in court documents is essential.
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Suggestions • Solicitors should verify pleadings on oath.
• Parties should provide an accurate formulation of the legal principles and
statutory provisions to be relied upon.
• Abolish pleadings and replace them with Statements of Facts for both
the plaintiff and the defendant.
• Various standard form court documents should be readily available and
in plain English so that they can be properly completed.
• Determine the need for pleadings at the first status conference in the
Case Management regime.
66