All you need to know about pleadings

At the beginning of a lawsuit, the parties formally submit their claims and defences.

IN civil litigation, the word “pleadings” is used by lawyers. What does the word mean and what does it involve?

Sometimes it is argued that a claim cannot be made because the matter is not pleaded and that therefore it cannot be relied upon.

One reader says that he has come across cases when a contention has been made to have a case dismissed because some particular matter was not pleaded.

In matters that come before the High Court and the Subordinate Courts (which comprise the Magistrate’s Court and Sessions Court), the subject of pleadings is governed by the Order of the Rules of Court 2012, Order 18 and the rules made under it.

It is said that a pleading does not include a notice of application or a preliminary act.

However, Order 18 Rule 6 (1) sets out what pleadings are and the formal requirement of pleadings:

“Every pleading in an action shall bear on its face (a) the year in which the writ in the action was issued and the number of the action; (b) the title of the action; and (c) the description of the pleading.”

Order 18 Rule 1 states that unless the court gives leave to the contrary or a statement of claim is endorsed on the writ, the plaintiff must serve a statement of claim on the defendant or, if there are two or more defendants, on each defendant, and shall do so either when the writ is served on that defendant or at any time after service of the writ but before the expiration of 14 days after the defendant enters an appearance.

This means that a statement of claim could either be endorsed on the writ itself or prepared separately and served at the same time.

Otherwise, the statement of claim could be served after the memorandum of appearance has been filed.

Every pleading is required to be divided into paragraphs numbered consecutively, each allegation being, so far as convenient, contained in a separate paragraph.

Dates, sums and other numbers need to be expressed in figures and not in words.

Every pleading of a party must be endorsed, where the party sues or defends in person, with his name and address and in any other case, with the name or the firm and busi ness address of the solicitor by whom it was served.

Every pleading of a party shall be signed by the party’s solicitor or by the party, if he sues or defends in person.

Once the writ of summons and statement of claim is received by the defendant, this will be followed by the filing of a memorandum of appearance and defence by the defendant and, after that, a reply which will also be part of the pleadings.

A defendant may, on the other hand, have a claim or say that he has a claim against the plaintiff.

In this connection, he will prepare and then forward, together with his defence, his claim which is referred to as a “counterclaim”.

This is also part of the pleadings. In the context of a counterclaim, he becomes the plaintiff and the plaintiff becomes the defendant.

Of course, they continue to be referred to as “plaintiff ” and “defendant” as at the initial point of time of commencement of proceedings.

Every pleading must contain a statement, in a summary form, of all the material facts on which the party pleading relies for his claim or defence.

However, it is not to include the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.

Pleadings will set out the framework of the plaintiff ’s claim and the defendant’s defence, the framework of the defence. This is also the case with the “counterclaim” and “defence to the counterclaim”.

While each party sets out the framework, there are certain aspects that need to be specifically pleaded.

In this connection, Rule 12 sets out the requirement: “... every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words – (a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and (b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, par ticulars of the facts on which the party relies”.

There could therefore be matters where the main contention has been pleaded but some details have been left out.

Can or will the claim be dismissed, just because some details have not been set out in the pleadings?

If an objection is raised during the course of the trial that such details have not been set out, a party can always apply for amendments to be made.

When the opposite party does not raise an objection to the evidence being led on matters arising out of what would otherwise be further details, it could be said that the other party has waived its right to object.

However, if the substantial cause of action or ground on which the party relies is not pleaded, it could be fatal. This could be best left to be discussed at a later date.