Silence Is True Wisdom's Best Reply ' The Use And Misuse Of The Reply

• Published date: 29 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Gatehouse Chambers
• Author: Ms Jasmine Murphy

Reply or Amended Particulars of Claim?

The recent judgment of Pepperall J in Martlet Homes Ltd v Mulalley and Co Ltd [2021] EWHC 296 emphasised the point that a new case or new allegations should not be pleaded in the Reply, but in an Amended Particulars of Claim instead.

In that case, the claimant filed a Reply which contained allegations of a new alternative case based upon matters set out in the Defence. Pepperall J held that these belonged in an Amended Particulars of Claim instead. Advancing a new claim in a Reply was contrary to the terms of the Practice Direction and meant claimants could always have a second bite of the cherry when pleading the Reply. It also denied the defendant the means of responding to it in a Defence.

When should a Reply be filed?

CPR 16.7 makes it clear that a Reply is optional. If a claimant does not file a Reply, they are not taken to admit the matters raised in the Defence.

The judgment in Martlet included a discussion of situations where a Reply is appropriate. Of relevance to personal injury practitioners is the situation where limitation has been raised in the Defence and the claimant wants to assert a later date of knowledge or make a plea under s.33 Limitation Act 1980. Although this would involve pleading new facts, it would not be pleading a new claim. Pepperall J also said that a Reply may usefully admit a fact asserted in the Defence while explaining why such an admitted fact does not provide a defence to the claim, or a Reply can deny an allegation of...