UK: Pleadings: Please, Please Tell Me Now, Is There Something I Should Know?

The commercial world generates enormous amounts of information. Transactions produce great quantities of documentation, helped by the incontinent use of email and electronic communication. When disputes arise, there is usually a great deal of material to sift through. But the complexity of the subject matter does not give lawyers license to expand their pleadings commensurately.

The English courts have issued clear warnings against the ever increasing length of statements of case. Recently, Mr Justice Leggatt sent a powerful reminder, lest anyone had forgotten how much judges dislike a verbose party, in Tchenguiz & Others v Grant Thornton UK LLP & Others [2015] EWHC 405 (Comm). The claimant's legal team has had to go back to the drawing board because the statement of claim was simply too long. This article looks at how English courts control statements of case in commercial claims, and considers the role of so-called 'pleadings' in English civil litigation.

Pleading in the English tradition – what is it all about?

Going back to basics, it is necessary to recall that statements of case in English litigation are meant to serve a specific purpose. That is to assist the court by identifying all the facts that are necessary to support a cause of action (or a defence), thereby identifying precisely what a party would have to prove at the trial to be successful.

If one were to adhere strictly to that purpose, here are some things that have no place in a traditional English pleading:

  • The background facts, or matters that serve to 'set the scene' or (as happens in practice) are intended to portray one party in a particular light.
  • Evidence. Pleadings should be limited to the facts on which the claim rests, not on how those facts are known, or how they will be established at trial.
  • Legal argument, or even legal authorities. The legal basis of the claim is not to be spelt out in a pleading.
  • Reasons why one party's case is right and the other party's case is wrong.
  • 'Rhetoric'. Instead, the language should be businesslike and neutral. If the claim is that the defendant did something dishonest, use that word, and use it once for each allegation.

The result of this is that a perfect English court pleading would probably please nobody but the judge. It would be dry, and a client might be tempted to ask: where is all the good stuff that is going to convince the judge? The answer lies in the distinction that is drawn in English litigation between statements of case, and submissions that will be presented before, during and (usually) after the trial, when the case is argued. The meat of the case will be put onto the bones of the pleading in the further course of the proceedings. This may seem counterintuitive. Should a claimant not provide all the information and arguments on which the case is going to rest at the outset, so that a defendant can deal with the allegations that are being made? Not so, say the English Courts, because the ultimate aim is to identify precisely only the necessary building blocks on which the case is going to be constructed, no more (and no less). Lengthy and embellished pleadings distract from the legal essentials underlying the case.

Are lengthy pleadings a new phenomenon?

It seems the problem of loquacious litigants is not entirely new. Possibly the oldest recorded example of judicial chastisement appeared some 419 years before Tchenguiz v Grant Thornton. In Mylward v Weldon (1596) Tothill 102, 21 ER 136, the son of a party filed a reply on 120 sheets of paper when, according to the Lord Keeper, he would have had ample room to say what needed saying on 16 pages. He was promptly imprisoned in the Fleet (a notorious debtor's prison near Farringdon) until he paid £10, then an enormous amount, to the Crown, and a further not insignificant sum to the defendant for the affront caused by having to read the document.

Not content with an adverse costs order, the Lord Keeper ordered the following unusual further sanction:

"... that the Warden of the Fleet shall take the said Richard Mylward ... and shall bring him into Westminster Hall on Saturday next, about ten of the clock in the forenoon and then and there shall cut a hole in the myddest of the same engrossed [reply] ... and put the said Richard's head through the same hole and so let the same [reply] hang about his shoulders with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting and shall shew him at the bar of every of the three Courts within the Hall and shall then take him back to the Fleet ....".

Things were simpler then.

The modern approach

In 2007, the Commercial Court Long Trials Working Party produced a report that ultimately led to provisions on pleadings being introduced into the Commercial Court Guide in 2009. One of the new measures adopted at that time was a guillotine - a 25 page limit, not to be exceeded without the permission of the court. It is expressly stated that permission to exceed the page limit would only be given exceptionally, where there are good reasons, and following an application for permission. Pausing for a moment, and not naming any names, one can imagine a number of lawyers who might be capable of already exceeding the 25 page limit when making such an application.

Pleaders in the Commercial Court however seem to have continued to provide overlong submissions, which moved the Court of Appeal to declare in Standard Bank PLC v Via Mat International Ltd [2013] EWCA Civ 490 that:

"Overlong pleadings and written submissions ... which are manufactured by parties and their lawyers have become the bane of commercial litigation in England and Wales."

The commercial court has been clear that the complexity of claims has only reinforced the need for concision and surgical accuracy. In Tchenguiz v Grant Thornton, Mr Justice Leggatt emphasised that point:

"As commercial transactions have become more complex and more heavily documented (including electronically), adhering to the basic rules of pleading has become both increasingly difficult and all the more important. It is increasingly difficult because it is harder for pleaders to distil what is essential from the material with which they are provided and because they can feel pressure to show their mettle and enthusiasm for their client's case by treating the pleadings as an opening salvo of submissions in the litigation. It is all the more important because prolixity adds substantial unnecessary costs to litigation at a time when it is harder than ever to keep such costs under control."

Background

Tchenguiz v Grant Thornton follows on from a failed criminal investigation. In 2011, Mr Vincent Tchenguiz and his brother Robert were the subject of a high-profile investigation by the Serious Fraud Office ("SFO"). Their homes and business premises were searched. Arrests were made. They say that the investigation had a very serious impact on them professionally and personally. In July 2012, the High Court found that the search warrants issued to the SFO were unlawful. The warrants had been obtained by misrepresentation and failures to disclose material matters to the judge issuing them.

The transactions that the SFO were investigating primarily concerned events following the collapse of Kaupthing, the Icelandic bank. The suspicion was that corporate vehicles ultimately controlled by the Tchenguiz brothers had fraudulently sought to put assets beyond the reach of Kaupthing's liquidators, so that they could not sell these assets for the benefit of the bank's creditors. A series of claims were commenced in the English courts in the fallout from Kaupthing's collapse. Grant Thornton prepared a number of reports for the purpose of such litigation (instructed by a party to the proceedings). Grant Thornton then contacted the SFO, stating that, in the course of their work, they had discovered evidence of dishonesty and fraudulent accounting to which the Tchenguiz brothers appeared to be parties. The SFO was allowed to see some of Grant Thornton's reports, and decided that there were reasons to suspect criminal offences had been committed. The warrants against Vincent and Robert Tchenguiz were issued following a hearing during which the SFO presented what they had been told by Grant Thornton (amongst other matters) to a criminal judge.

As has been widely reported, the SFO was heavily criticised for failing to investigate (and understand) the commercial background to the transactions. Vincent Tchenguiz was awarded damages of £3 million. When setting aside the warrants, the High Court noted that the SFO had placed too much reliance on what Grant Thornton had said, noting that they had "... owed duties to their own clients which rightly took precedence over the interests of the public." In November 2014, Mr Tchenguiz then commenced the present proceedings against Grant Thornton and Kaupthing bank, alleging that they had conspired against him by unlawful means and had committed the tort of malicious prosecution. It will come as no surprise that Mr Tchenguiz's claim for damages of £2.2 billion involves complex facts and multiple causes of action.

How not to plead

The claim in Tchenguiz v Grant Thornton was not, as the Commercial Court found, difficult or complicated to plead. The allegations were that the defendants together conspired to bring about an SFO investigation on a false basis, and that they did this by making statements to the SFO which the defendants did not believe to be true. That case required particulars as to what false statements were made, by whom and to whom, and when, and particulars of the matters relied on in the assertion that the defendants did not believe that the statements were true. Pleading dishonesty or fraud is a serious matter, and such a case should only be advanced if there is cogent evidence in support of it.

The statement of claim amounted to 94 pages, and it had been served without applying for permission to exceed the 25 page limit. The judge found that the necessary particulars of the untrue statements had been addressed, but unfortunately only from page 61. The preceding part of the document is said to have consisted only of background narrative, "liberally interspersed with allegations of fraud, falsity, dishonesty and improper motive" of a general nature, without any specifics or particulars. It did not help that much of the language used was tendentious, and that headings introducing the defendants called them: 'The Conspirators'. Other headings declared the existence of "The Plot", before stating: "The Plot Evolves". In contrast, the Commercial Court Guide is hopeful that headings will be "in a form that will enable them to be adopted without issue by the other party".

Counsel were taken to task by the judge as to whether they were aware of the Commercial Court Guide's 25 page limit. The most senior of the four authors is reported to have said that they had been "conscious" of the limit at the outset of the drafting process, which took months, but that by the end of it, when the document had emerged in its full length, they were "no longer conscious" of the relevant provisions. The judge may have chosen his words quite carefully here. Ultimately, having heard further argument as to the merits of going back to the drawing board or simply soldiering on with the deficient document, Legatt J struck out the claim, disallowed all the claimant's costs and required a new pleading of no more than 45 pages within 21 days. The learned judge so held in 17 succinct paragraphs.

Comment and conclusion

It is difficult to conceive of any lawyer who sets out to draft a pleading with the aim of preparing a long, overly complicated document that is short on particulars and long on hyperbole. However, there is a danger that even with the best of intentions, statements of case may end up longer and less helpful to the decision-maker than they could be. One driver behind this is that the lawyer drafting the claim cannot be sure precisely what point the judge will find holds the key to the case. An abundance of caution may lead to an abundance of causes of action, just to make sure all the bases are covered. Being selective, short and very much to the point is a bold move that requires strong conviction, and perhaps also a straightforward case. Some pleadings are long because, as the old adage tells us, it is easier and quicker to write a long document than a short one, which requires more thought, precision and careful drafting.

A factor to bear in mind may be a desire to put on a good show for the client: few would find a traditional English pleading to be an entertaining read. Ultimately, though, when in court, the interests of the client are best served by advancing the case in the manner expected by the English courts, even though that may seem sterile and technical at the outset of the case.

One can contrast the approach taken in English civil litigation with the prevalent practice in international arbitration. Long documents are not unusual in complex arbitration claims, but they usually comprise full details of the supporting evidence (factual and expert), legal arguments, reasoning and authorities, together with a narrative account of what happened, and why. Statements of case in arbitrations seek to combine the role played by both pleadings and submissions in English litigation.

The long and short of it is that, however tempted we are to hang overly lengthy submissions around our counterparty's neck, the best course is to appreciate that different fora have very different rules and requirements for pleadings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.