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HOW TO PLEAD YOUR CASE

It is an action or application  that illustrates the position and/or intention of a party to the proceeding, along with its status. It is a document to start  a proceeding; or to support a step being taken by a party after the proceeding has been started; or to end a proceeding;  or to  follow the final determination of a matter.

One has to be exceedingly cautious  about pleading fraud,  misrepresentation,  breach of trust,  malice,  or bad faith and should have clear and unequivocal evidence and instructions to do so. These are very serious allegations and, if cannot be proved, would have serious and adverse cost consequences. Pleadings are meant to:

  1. Define the issue(s) between litigants with clarity and precision;
  2. Give fair notice of the case that has to be met so that the opposing party may direct its evidence to the issues disclosed;
  3. Define the issues for documentary discovery and examination for discovery;
  4. Assist the court in adjudicating on the allegations made by the litigants; and
  5. Constitute a record of the issues involved in the action, which can be referred to at a later date, if necessary.

Material Facts

These are defined as the facts on which the party relies for his or her claim or defence, and are different from the evidence by which those facts are to be proved.  Every pleading must contain a concise statement of the material facts because they constitute, support, or are necessary to establish a cause of action.  If that is not there, the case may be dismissed.

Clear Statement

Narratives giving the material facts should be  clear and concise. They are not to be picked  from vague or ambiguous wordings, or from statements of circumstances supporting different conclusions. Verbose pleadings are unacceptable, and may be thrown out on that ground alone.  At the same time, the pleadings should not be thinly worded. If precision is not attainable, let there be broad allegations.

When they are pleaded, facts  must be material at that stage of the action; hence timing is important.  Possible defences are not to be anticipated by a plaintiff, nor should a defendant plead to a cause of action absent in the Statement of Claim.

Evidence in the form of stated facts are to be proved, and should not be stated in the pleading. An allegation is one method of pleading evidence.  Care should be taken while making an allegation because it may be thrown out if challenged. For example, pleading the fact that a party has made an admission. This fact is a form of evidence to be proved at trial, but not pleaded.

It is very difficult to distinguish fact from evidence. Usually, motions brought to attack pleadings solely on the ground that the pleading pleads evidence often do not succeed. It is not uncommon for a party to raise a point of law in a pleading. Consequences of law may be pleaded only if the material facts supporting them are pleaded.

Pleadings are to be in the form of consecutively numbered paragraphs. Each allegation should be contained in a separate paragraph so as to avoid the situation in which a defendant, in its Statement of Defence, denies an entire paragraph in the Statement of Claim.  Conversations need not be pleaded, unless they are material (for example, in a defamation action).  Of course, quoting word for word from a contract or document can make an appreciable impact on the party reading the document.

When alleging fraud, misrepresentation, breach of trust, malice, or intent, the pleading must contain full particulars about the allegation(s). The allegations must be specifically and distinctly pleaded, with the utmost particularity, so that the party knows what he or she has to answer for.  The rule of evidence known as res ipsa loquitur or “the thing speaks for itself”, has some case law that suggests it must be pleaded by the plaintiff, it may be sufficient for the Statement of Claim to contain all of the facts from which the application of the rule is alleged to arise.

A Defence can be of four general types :

  • A Traverse, which is an express contradiction or denial of an allegation of fact;
  • A Confession and Avoidance  is a plea admitting or confessing that the allegations in the Statement of Claim are true, but seeks to avoid the legal inference  by stating additional facts to show that the inference  is unwarranted. It is usually an alternative to a traverse;
  • A Objection in Point of Law is a convenient method of raising the issue at an early stage. The objection will ordinarily be disposed of by the judge presiding at the trial, although it may be decided on a motion.
  • A Plea in Abatement is making issues of non-joinder of parties, the incapacity of the plaintiff to sue and so on.

If there is any statute/law invalidating the plaintiff’s claim, the court will take that into account.  A statute that bars the plaintiff’s right, as well as the remedy he or she seeks, need not be pleaded. The exception is a statute barring only a remedy or recovery, which must be pleaded, since the right continues to exist and the statutory remedy, if not pleaded, may take the opposing party by surprise. Likewise,  in order to  raise an issue that has not been raised in the opposite party’s pleading, the Statute of Frauds or the Limitations Act, should be specifically pleaded.

An allegation made for the purpose of abusing or prejudicing the opposite party is called scandalous. The point is that nothing that is relevant to the cause of action or defence is scandalous.  It also means that any pleading  relevant to the cause of action should not be struck out, even if it causes delay in the trial or expense.  If it is felt that the pleading will prejudice or delay the fair trial of the action, the matter should be left to the trial judge.

A pleading becomes embarrassingwhen it raises an issue having no effect on the outcome of the action. Drafting your pleadings is not an easy task, it is often found frustrating and tricky, contact the lawyers at Levy Zavet PC the next time you find yourself traversing through a claim or putting together a defence.

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