|
|
 |
Where am I now? Lawlink > Law Reform Commission > Publications > Common Law Pleadings - Part 7: Possible Criticisms and Difficulties
Working Paper 14 (1975) - Procedure: Common Law Pleadings; Scott Schedules
Common Law Pleadings - Part 7: Possible Criticisms and Difficulties
7.1 Disadvantages according to Master Jacob. Master Jacob - an ardent supporter of formal pleadings - lists these disadvantages of the originating summons-
“1. The issues cannot emerge until after the close of the evidence filed by the parties;
2. The issues can only be defined by analysing the evidence of the parties, if necessary after the close of the evidence at the trial;
3. It is difficult as well as artificial to raise by means of affidavits which are meant to deal with fact only, issues or contentions which are conclusions arising out of the facts as for example, a plea of waiver or of estoppel;
4. Issues may be raised at the trial which have not been raised in the affidavit, and so take the opposite party by surprise;
5. Discovery on an originating summons cannot be obtained except upon special circumstances being shown;
6. Further and better particulars of the allegations in the affidavits cannot be ordered.”57
7.2 Our answers to Master Jacob. We have already dealt with the ineffectiveness of pleadings in defining the issues and avoiding the element of surprise. In relation to running down cases Master Jacob’s remarks would, in any event, seem to have little point. In this type of action the issues are usually very obvious and very simple thus-
1. Was the defendant negligent?
2. Was the plaintiff negligent?
3. What damages should be awarded for the injuries sustained?
True, in any type of action the plaintiff should be protected from the surprise of the pregnant negative58 - but the statement of defence does not do this. The defendant should be protected against a claim by the plaintiff for some item of damage or loss that the defendant has not had the opportunity to investigate - but the pleadings do not so protect him.59
By contrast, if the proceedings were by summons the defendant would be required to put his affirmative case on affidavit and the plaintiff would be required to swear to his injuries and disabilities in a tort claim and to his losses in a contract claim.
Discovery (mentioned by Master Jacob) is generally not available in a running down case60 and would as we have pointed out, be usually unnecessary in a contract case commenced by summons. The Supreme Court Rules Part 33 (setting down for trial) provide for filing and serving of particulars of injuries, out of pocket expenses and loss of earnings61 but this Part applies to proceedings commenced by summons only “to such extent and with such modifications as the Court may direct.” However the requirement for the filing and serving of the Schedule prescribed by Supreme Court Practice Note No.7 (which is deemed to be a sufficient compliance with Part 33 r.8A) would apply to personal injury cases proceedings to trial on summons.
7.3 Possible difficulties. We do anticipate some problems, for example-
(i) Many common lawyers firmly believe that disputed issues of fact can only be satisfactorily decided on oral evidence. Affidavit evidence it is said (and with justification) is more the evidence of the legal adviser than the witness. Counsel, and the court, cannot “get the feel of the witness” through an affidavit.
Whilst appreciating some force in these views we do not think the arguments are unanswerable or indeed all one way. Oral evidence in chief is led from a proof of evidence prepared by a legal adviser. If the court needs to evaluate a witness it is not difficult for counsel, or the court, to keep the witness long enough in the witness box to form a judgement of his honesty and accuracy. There are many honest witnesses who cannot do themselves justice in the witness box. An affidavit in such a case may save them from the consequences of their nervousness or poor memory. Counsel cross-examining on an affidavit will seldom suffer any disadvantage by reason of the affidavit, in unravelling the truth. Indeed he is in one sense better off than where no affidavit has been filed - it is as though he had the witness’s proof of evidence which he can compare with the oral version in the witness box.
We believe that such opposition is in a large measure an indication of habit and conservatism. We do not however on that account underrate it.
(ii) It would be difficult to persuade common lawyers to change their habits and adopt the new procedure.
Initially at least, we would not suggest that the procedure should be other than optional. An encouragement to use it would therefore be necessary. This is readily available in preferred or accelerated hearing dates when there is, as at present, a considerable delay in the Common Law Division in the Supreme Court. In the District Court there is at present no substantial delay. Full use of the summons procedure in the District Court accordingly may well await its general acceptance in the Supreme Court.
FOOTNOTES
57. Current Legal Problems, Vol.13, p.181.
58. See Winn Committee Report, Cmnd, 3691 (1968) para. 261. The pregnant negative is a traverse which conceals an affirmative case on causation - for example that the defendant’s brakes failed. Our rules are the same as the English rule. (See S.C.R. Part 15 r.13 D.C.R. Part 9 r.9).
59. Particulars of personal injuries are required to be filed in the Supreme Court pursuant to r. 8A of Part 33. However these are often so widely drawn as to leave the defendant in doubt as to the real claim.
60. See S.C.R. Part 23 rr.1 and 5.
61. In rule 8A.
|
