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Where am I now? Lawlink > Law Reform Commission > Publications > Common Law Pleadings - Part 1: Introduction
Working Paper 14 (1975) - Procedure: Common Law Pleadings; Scott Schedules
Common Law Pleadings - Part 1: Introduction
1.1 The Nature and Objectives of Pleadings. Pleadings are the statements in legal form which set out shortly the plaintiff’s claim, the defendant’s answer to that claim and where this is relevant, the plaintiff’s reply to that answer.
In the Common Law Division of the Supreme Court the pleadings commence with the plaintiff’s “statement of claim” which is answered by the defendant’s “defence”.1 In the majority of cases this concluded the pleading since a joinder of issue by the plaintiff with the defendant’s defence is implied if there is no reply to the statement of claim.2
In the District Court the corresponding pleadings are called an “ordinary statement of claim” or, if the claim is for a debt or liquidated sum of money, a “statement of liquidated claim” and a “notice of grounds of defence”.3
Pleadings are generally claimed to have one main objective and two subsidiary objectives. The main objective is to define the issues.4Subsidiary objectives are to give to each of the parties notice of the cases intended to be set up by the other and to provide a permanent record of the issues decided.5
1.2 Are Pleadings Achieving These Objectives? Prior to preparing this proposal a random survey was made of pleadings filed in the Common Law Division of the Supreme Court. In practically none of the pleadings examined could it be said that an issue, rather than a multiplicity of issues, was produced.
The typical “running down” case commenced with a statement of claim which was reasonably precise except in relation to the allegations of negligence which were generally framed so widely as to be of little assistance in formulating any issue. The defence effectively put in issue all of the allegations in the statement of claim (including allegations not essential to the success of the claim) a distinction being usually drawn between matters apparently genuinely in dispute (which were denied) and other matters (which were “not admitted”). Contributory negligence was commonly pleaded (sometimes quite inappropriately) and again the particulars were framed in extravagant terms.
The “industrial accident” statement of claim was also usually framed in reasonably precise language except as regards particulars of negligence and breaches of statutory duty. The only allegation however which was commonly not traversed, either by denial or non-admission, was the incorporation of the defendant company.
Statements of claim in other types of actions for tort, such as occupiers’ liability claims and claims for damages for conversion, trespass, nuisance and defamation were subject to similar defects in that they frequently contained extravagant claims and non-essential matter. Defences to these effectively put in issue all of the plaintiffs allegations.
Statements of claim in contract cases frequently employed the common money counts and were usually unintelligible unless amended by further statements of claim filed pursuant to notices to plead the facts.6 The defences to these in some cases traversed only the matters apparently in dispute; in others the defence denied some matters and did not admit the remainder7 thus putting all the plaintiff’s allegations in issue.
The survey confirmed the opinions we had formed as a result of our professional experience, namely that pleadings
(a) are not defining the issues;
(b) do not adequately inform the parties of the nature of the cases they will have to meet;8 and
(c) provide unsatisfactory records of the issues decided.9
FOOTNOTES
1. S.C. Forms 5, 9.
2. S.C. Act Fourth Schedule Part 15 r. 21.
3. D.C. Forms 8, 9, and 21.
4. “As the object of all pleading or judicial allegation is to ascertain the subject for decision, so the main object of that system of pleading established in the common law of England, is to ascertain it by the production of an issue” (Stephen on Pleading (1866) p.122).
5. Bullen and Leake 10th edn. p.1.
6. S.C.R. Part 15 r. 12(4) - D.C.R. Part 9 r.8.
7. The defences to these claims were verified in accordance with the rules where the claim was a liquidated one. Where the verification was of some matter in dispute the affidavit had some point. The situation was otherwise however, where the affidavit was merely verifying the truth of the fact of non admission.
8. Even when supplemented by particulars, discovery and inspection, interrogatories and notices to admit, a Scott-type Schedule or pre-trial conference or summons for directions is often necessary to ascertain the true nature of the case intended to be set up at the hearing.
9. Neither the extravagant claims nor the non-essential matter frequently contained in pleadings are intended to be the subject of a finding on a general verdict.
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