Thursday, April 3, 2008

CIVIL COURT PLEADING

PLEADINGS IN CIVIL COURT
Pleadings are statements in writing drawn up and filed by each party to an action stating what his contention will be at the trial and giving all such details as his opponents needs to know in order to prepare his case in answer. It is a cardinal rule that parties are bound by their pleadings and are not allowed adduce facts which they had not pleaded. In the case of Blay v Pollard & Morris (1930) Scrutton LJ observed that “cases must be decided on the issues on the record; and if it is desired to raise other issues they may be placed on the record by amendment.

Some of the documents which comes within the definition of pleadings are statement of claim, defence, reply, counterclaim, defence of counterclaim, a statement of claim indorsed on a writ of summons, and further and better particulars of pleadings. Some of the documents, which fall outside the definition of pleadings, are a general indorsement on a writ, a petition, summons or preliminary act, an originating summons and any affidavit or notice of appeal. An affidavit may stand as a pleading if specifically ordered by the court. When further and better particulars are furnished it amounts to pleadings. The objects of pleadings are as follows: (a) to define with clarity and precision the issues in dispute, (b) to require each party to give fair and proper notice to his opponent, in order to enable him to prepare his case and (c) to inform the court the issues, which are, required to be determined by the court.

The importance of pleadings was emphasized by the Supreme Court in the case of Lee Ah Chor v Southern Bank Bhd (1991). The court stated that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal. The rules regarding pleadings are set out under Order 18 of The Rules Of The High Court, 1980.

Under Order 18 of The High Court Rules it is stated that a pleading must state the facts and not the law. In the case of Song Lian Chye v Tai Kian Cheong (1983), the Federal Court stated that it is a cardinal rule of pleading that law should not be pleaded. Order 18 Rule 7 states that pleadings must only contain material facts on which the party pleading relies for his claim or defence. It must state only the facts on which the party pleading relies for his claim or defence, and not the evidence by which they are to be proved. It also states that the facts must be in form of a concise statement, but in aiming at conciseness precision should not be sacrificed.

According to Order 18 Rule 6, the pleadings where necessary, shall be divided into paragraphs, numbered consecutively and each allegation being so far as is convenient contained in a separate paragraph. Dates, sums and figures shall be expressed in figures. It is also stated under Order 18 R 7(3) that allegation in anticipation of the opponent’s answer should not be made. The pleadings should be confined to what is material at the present stage of the action. Facts necessary for the enforcement of a legal right or duty must be mentioned. Thus in an action for breach of contract, it has to be stated specifically the terms of the contract and the breach thereof by the defendant.

According to Order 18 R 7(3), facts, which the law presumes in ones favour or as to which the burden of proof lies upon the opponent need not be pleaded. The party also should not plead conclusion of law. However foreign law and certain customs and usage which are not judicially taken notice by the court, must be pleaded as facts.

All pleadings must be filed in the registry of the High Court where the writ issued and served within the prescribed time as stated below, unless the court gives leave to the contrary. According to Order 18 R 1, a statement of claim must be filed and served with the writ unless there is a general indorsement or within fourteen days after the defendant has entered appearance. Under Order 18 R 2, a statement of defence must be filed and served within fourteen days after the time limited for the appearance, or after the statement of claim is served on him. If the plaintiff intends to serve a reply he must do so within fourteen days after the service of the defence. This can be found under Order 18 R 3(4). If the defendant serves a defence with a counterclaim, the plaintiff must serve a reply if any, within fourteen days after the service of defence. If there is a counterclaim, a defence to the counterclaim within fourteen days after the service of the defence and counterclaim. Generally both the reply and the defence to the to the counterclaim are joint and is served as one document. No pleading subsequent to a reply or a defence to a counterclaim can be served unless the court grants leave.

Generally parties are bound by their pleadings and they are not permitted to raise any issue at the trial if it is not pleaded. In the case of Mat bin Lim & Anor v Ho Yut Kam & Anor (1967), the plaintiff brought an action to recover damages for personal injuries. The defendant in their defence pleaded that the plaintiff’s claim was barred by limitation. In reply the plaintiff alleged there has been an acknowledgement of liability. The defendant applied for the plaintiff’s statement of claim to be struck out on the ground that it disclosed no reasonable cause of action. The court held that the acknowledgement should have been pleaded in the statement of claim and, as this was not done, the plaintiff’s statement of claim to be struck out must be allowed.

Pleadings are statements in writing prepared by the parties and served on each other. They consist of all the material facts on which the parties rely for the purpose of establishing a claim or defence. The pleading process only applies to an action commenced by writ. The term pleading is not positively defined by the rules but is expressed to exclude a petition, summons and preliminary act. An affidavit is not a pleading unless there is a specific order that it stands as one. Nor is a general endorsement on neither a writ, nor a notice of appeal a pleading. Pleadings include a statement of claim, a counterclaim, a defence and defence to counterclaim, a reply and subsequent responses served with the leave of court. When particulars of pleadings are given pursuant to a request or an order of court or voluntarily, they form part of the pleadings.

Every pleading must comply with the formal requirements laid down by the rules. These requirements ensure that the pleading is appropriately identified, that is it has the necessary details in relation to the suit, that the terminology used in respect of certain matters is consistent, that the content of the pleading is expressed in the appropriate form, and that it is properly endorsed and signed. Accordingly, every pleading must ‘bear on its face’ the year in which the writ in the action was issued and the number of action, the title of the action and the description of the pleading. The pleadings must, if necessary, be divided into paragraphs numbered consecutively, ‘each allegation being so far as convenient contained in a separate paragraph’. Dates, sums and other numbers must be expressed in figures and not in words. Where the party sues or defends in person, the pleading must be endorsed with his name and address. In any other case, it should be endorsed with the name of the firm and business address of the solicitor by whom it was served. The pleading must be signed by the party’s solicitor or by the party, if he sues or defends in person. Specific provisions as to the paper used for the court documents must be considered in relation to the pleadings.

According to Order 18 R 20, pleadings in an action is deemed to be closed at the expiration of fourteen days after the service of the defence. However if there is a reply or defence to counterclaim pleadings is deemed to be closed after fourteen days of the service of the reply or defence to the counterclaim. It also can be noted under Order 18 R 22 that either party may, after the defendant has entered appearance apply to the court for an order that the action be tried without pleadings or further pleading as the case may be. The court may make an order provided it is satisfied that the issues in dispute between the parties can be defined without pleadings or further pleadings.

5 comments:

jamme said...

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Mr Bharath said...

welcome!

Anonymous said...

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Anonymous said...

i am currently facing difficulties as to how i should submit my case in front of the SAR for a summary judgement for breach of contract. i do not know how to start the formalities and what should i say. pls help me.

Mr Bharath said...

kindly contact me through my email at bharathmahatma@gmail.com for more details and advice..thanks.