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."


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.

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