Pleadings: Please, Please Tell Me Now, Is There Something I Should Know?

The commercial world generates enormous amounts of information. Transactions produce great quantities of documentation, helped by the incontinent use of email and electronic communication. When disputes arise, there is usually a great deal of material to sift through. But the complexity of the subject matter does not give lawyers license to expand their pleadings commensurately.

The English courts have issued clear warnings against the ever increasing length of statements of case. Recently, Mr Justice Leggatt sent a powerful reminder, lest anyone had forgotten how much judges dislike a verbose party, in Tchenguiz & Others v Grant Thornton UK LLP & Others [2015] EWHC 405 (Comm). The claimant's legal team has had to go back to the drawing board because the statement of claim was simply too long. This article looks at how English courts control statements of case in commercial claims, and considers the role of so-called 'pleadings' in English civil litigation.

Pleading in the English tradition - what is it all about?

Going back to basics, it is necessary to recall that statements of case in English litigation are meant to serve a specific purpose. That is to assist the court by identifying all the facts that are necessary to support a cause of action (or a defence), thereby identifying precisely what a party would have to prove at the trial to be successful.

If one were to adhere strictly to that purpose, here are some things that have no place in a traditional English pleading:

The background facts, or matters that serve to 'set the scene' or (as happens in practice) are intended to portray one party in a particular light. Evidence. Pleadings should be limited to the facts on which the claim rests, not on how those facts are known, or how they will be established at trial. Legal argument, or even legal authorities. The legal basis of the claim is not to be spelt out in a pleading. Reasons why one party's case is right and the other party's case is wrong. 'Rhetoric'. Instead, the language should be businesslike and neutral. If the claim is that the defendant did something dishonest, use that word, and use it once for each allegation. The result of this is that a perfect English court pleading would probably please nobody but the judge. It would be dry, and a client might be tempted to ask: where is all the good stuff that is going to convince the judge? The answer lies in the distinction that is drawn in English litigation between statements of case, and submissions that will be presented before, during and (usually) after the trial, when the case is argued. The meat of the case will be put onto the bones of the pleading in the further course of the proceedings. This may seem counterintuitive. Should a claimant not provide all the information and arguments on which the case is going to rest at the outset, so that a defendant can deal with the allegations that are being made? Not so, say the English...