Please plead me

In a world where there is ever increasing pressure on time and money, the use of standard or precedent templates for pleadings is all too tempting. Here Partner Melanie Mooney takes a look at some genuine examples where a failure to plead at all, or a failure to plead cases properly, proved costly.

I will begin with taking a look at my Court of Appeal case, Singh v Yaqubi.

It had been identified prior to proceedings being issued that the need to hire was going to be an issue. The claimant was therefore put to proof as to their need to hire within the defence and it further requested details of other vehicles available. The position was reiterated in the part 18 request to which no useful answer was ever received. The consistent pleading of what the defendants required was referred to both in the first instance decision and in the Court of Appeal.

As we all now know, the claimant did not discharge the burden of proving the need to hire and as the loss of use of the vehicle had not been pleaded in the alternative, the claim failed.

Who is the claimant?

In another Keoghs case we were defending a claim for hire charges in the sum of £88,334.49, pre-accident value of the vehicle of £4,440.00 (paid without prejudice), storage and recovery of £2,179.00 and miscellaneous expenses of £30.00.

All the hire agreements were in the name of an individual however we understood that this individual was a director of an events company. Enquiries revealed that the vehicle was registered to the company, not the individual.

At the time of the accident the individual was not driving the vehicle.

When proceedings were issued they were issued in the name of the individual, not the company. We raised issue with the fact that the individual claimant had no need or perhaps any right to hire in these particular circumstances.

Throughout the proceedings the claimant referred to the vehicle as being his personal vehicle despite the evidence to the contrary. The position was reiterated within part 18 responses and within his witness statement, both of which must of course be signed with a statement of truth.

Further witness evidence was subsequently served which contradicted all that had been said previously.

The matter came before the court for trial and counsel for the defendant raised the issue again. The court adjourned the hearing giving the parties permission to make applications.

The claimant made an application to join in the company and to plead in the alternative that it was either the claimant's claim or the company’s.

We made an application for the claimant's claim to be dismissed.

The matter came before HHJ Mithani in June 2015 and the claimant's claim was dismissed in its entirety.

Had the matter been pleaded correctly from the outset, the outcome may have been entirely different albeit there were other issues with the claim in terms of quantum.

Failure to plead all points

In the Court of Appeal case of Zurich v Umerji the court expressed the view that they were interested in an argument that the claimant’s failure to use their comprehensive policy of insurance either within a reasonable time or at all, represented a failure to mitigate. Unfortunately, the court felt unable to deal with it as the point had not been pleaded or indeed raised at all until the appeal hearing. This is therefore an argument which is likely to be taken forward at some point in the future in an appropriate case.

Admissions

The issue of inconsistent pleadings was discussed by the court in the case of Akhtar v Boland.

In that matter, the defence referred to sums of money not being in issue but then proceeded to put the whole of the hire claim in dispute. Allocation to the small claims track was contended for and granted. This allocation was the subject of the appeal. The court noted that those parts of the defence which were inconsistent, could have been struck out. The following guidance was provided by the court:

• Where an admission is ambiguous or inconsistent with other allegations in the defence, the claimant may, and should, seek further information or clarification of the defendant’s case under CPR 18.1.
• If the court (where the claimant fails to act as above) considers that it is uncertain what the issues between the parties that fall to be determined at trial are, it may itself make an order for clarification, and in extreme circumstances, where the defence is truly incoherent, the court may strike out the defence.

Who are the parties?

Sometimes the issue is as simple as knowing who your opponent actually is.

Many insurers use claims handling agents and claimants then attempt to sue them under the EC directive. Even when the error is pointed out, some claimant solicitors when given the opportunity to amend the pleadings refuse to rectify the position. We are then left with no option but to apply to strike out the proceedings on the basis there is no right of action against that party. Such applications are, not surprisingly, routinely granted with costs penalties against the claimant and/or their representatives. Again this only serves to increase costs, claim cycles and waste the court's precious time.

Please plead

Despite it being made clear in Zurich v Umerji that impecuniosity has to be pleaded, one firm of claimant solicitors simply says they intend to "raise" the issue. This is not the same as a positive pleading and it should be referred to in any defence.

Courts are regularly ordering that the claimant must properly plead impecuniosity if they intend to raise it. The failure to properly set out the position simply wastes the courts’ resources.

The moral of this story is a very simple one. Please plead it, plead it right and make sure it relates to the facts of your case, whether you are a claimant's or a defendant's representative. Failure to do so can prove costly and potentially be fatal to your case.