pleading

The examples and perspective in this article deal primarily with the United Kingdom and do not represent a worldwide view of the subject. Please improve this article or discuss the issue on the talk page. (April 2009)

This article only describes one highly specialized aspect of its associated subject. Please help improve this article by adding more general information. (July 2007)

In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, such as a complaint, a demurrer, or an answer. A complaint is the first pleading filed by a plaintiff which initiates a lawsuit. A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief. In some situations, a complaint is called a petition, in which case the party filing it is called the petitioner and the other party is the respondent. A demurrer is a pleading filed by a defendant which challenges the legal sufficiency of a complaint; an answer is a pleading which admits or denies the specific allegations set forth in a complaint and constitutes a general appearance by a defendant. A defendant may also file a cross-complaint as well as bringing other parties into a case by the process of impleader.

Types of pleading

Common law pleading

Common law pleading was the system of civil procedure used in England, which early on developed a strong emphasis on the form of action rather than the cause of action (as a result of the Provisions of Oxford, which severely limited the evolution of the common law writ system). The emphasis was on procedure over substance.

Even worse, law and equity evolved as separate judicial systems, each with its own procedures and remedies. Because the list of types of claims eligible for consideration was capped early during the development of the English legal system, claims that might have been acceptable to the courts' evolving sense of justice often did not match up perfectly with any of the established forms of action. Lawyers had to engage in great ingenuity to shoehorn their clients' claims into existing forms of action.

Code pleading

Code pleading was introduced in the 1850s in New York and California. Code pleading sought to abolish the distinction between law and equity^[1]. It unified civil procedure for all types of actions as much as possible. The focus shifted from pleading the right form of action (that is, the right procedure) to pleading the right cause of action (that is, a substantive right to be enforced by the law). Under code pleading, the required elements of each action are supposed to be set out in carefully codified statutes.

Code pleading required the pleading of "ultimate facts." This means that to plead a cause of action, the pleader has to plead each element and also allege specific facts which, if proven with evidence at trial, would constitute proof of that element. Failure to provide such detail could lead to dismissal of the case if the defendant successfully demurred to the complaint.

Code pleading was criticized because many lawyers felt that it was too difficult to fully research all the facts needed to bring a complaint before one had even initiated the action, and thus meritorious plaintiffs could not bring their complaints in time before the statute of limitations expired. Code pleading has also been criticized as promoting "hypertechnical reading of legal papers"^[2].

Notice pleading

Notice pleading is the dominant form in the United States today. In 1938, the Federal Rules of Civil Procedure were adopted. One goal was to relax the strict rules of code pleading. Code pleading had served four purposes: notice, issue narrowing, pleading facts with particularity and eliminating meritless claims. The Federal Rules eliminated all of those requirements except for the notice requirement^[3] (hence we call it notice pleading). The requirements that were eliminated were shifted to discovery (another goal of the FRCP). In notice pleading, plaintiffs are required to state in their initial complaint only a short and plain statement of their cause of action. The idea is that a plaintiff and their attorney who have a reasonable but not perfect case can file a complaint first, put the other side on notice of the lawsuit, and then strengthen their case by compelling the defendant to produce evidence during the discovery phase.

Alternative pleading

In alternative pleading, legal fiction is employed to permit a party to argue two mutually exclusive possibilities, for example, submitting an injury complaint alleging that the harm to the plaintiff caused by the defendant was so outrageous that it must have either been intended as a malicious attack or, if not, must have been due to gross negligence.

Specific jurisdictions

England and Wales

In England and Wales, pleading is covered by the Civil Procedure Rules (CPR). Pleadings are referred to as 'statements of case'.

Formal proceedings should be preceeded by an initial exchange of correspondence in accordance with the Practice Direction on Pre-Action Protocols. These exchanges are not technically part of the pleading process, and parties are not encouraged to take points on any discrepancy between pre-action correspondence and the formal statements of case.

Part 16 of the Civil Procedure Rules and its accompanying Practice Direction (CPR PD 16) govern the content of the claim form (equivalent to a Summons) and statements of case.

The claim form must contain a concise statement of the nature of the claim and specify the remedies which the claimant seeks.^[4] It must also contain a statement of value in accordance with CPR 16.3.

The Particulars of Claim (equivalent to a Complaint) must contain a concise statement of the facts on which the claimant relies, together with details of any interest claimed and whether aggravated damages or provisional damages are claimed.^[5]

The Defence (equivalent to an Answer) must state which allegations of the Particulars of Claim are admitted, which allegations are denied, and which allegations the defendant is unable to admit or deny, but which the claimant is required to prove.^[6] A defendant must give reasons for any denial, and must put forward his or her own version of events if different from the claimant's version.^[7] The Rules do not speak to affirmative defences (save that CPR PD 16 paragraph 13.1 requires the defendant to give details of the expiry of any limitation period relied on), but a concise statement of any facts relied on in support of any affirmative defence should be included in the Defence.

The claimant may, but need not, respond to the Defence by means of a Reply. Further statements of case following a Reply are possible, but require the court's permission.^[8]

The Practice Direction accompanying Part 16 sets out various items which must be included in or served with statements of case in particular circumstances, for example medical reports (paragraphs 4.3 and 12.1) and written contracts (paragraph 7.3).

Statements of case may refer to points of law and include names of witnesses whom it is proposed to call. A party may also attach to or serve with a statement of case any document which is considered necessary to the claim or defence, but which is not required to be attached or served.^[9]

The claim form and all statements of case must be verified by a statement of truth, signed by the party or his or her legal representative.^[10] A person who makes a false statement in a document verified by a statement of truth without an honest belief in its truth is liable to be prosecuted for contempt of court.^[11]

Counterclaims, claims for contribution or indemnity against another party, and third party claims (collectively referred to as 'additional claims') are governed by CPR Part 20.

A counterclaim should normally be included in the same document ('Defence and Counterclaim') as the defence and should follow on from it.^[12] The claimant's defence to the counterclaim should be included in the same document ('Reply and Defence to Counterclaim') as the reply and should follow on from the reply.^[13]

A claim for contribution or indemnity against another party is made by serving and filing a notice containing a statement of the nature and grounds of the claim.^[14]

A third-party claim is made by issuing and serving a third-party claim form (equivalent to a Summons), together with particulars of the third party claim.^[15]

An additional claim is treated as a normal claim unless Part 20 otherwise provides, so the rules on contents of claim forms, Particulars of Claim, Defences and Replies apply accordingly^[16], although the title of the statement of case should be modified to make clear who is pleading, and which statement of case, if any, is being responded to.

Amendment of statements of case is governed by CPR Part 17, and requests for information about statements of case are governed by CPR Part 18.

References

1. ^ e.g., Hurwitz v. Hurwitz, 78 U.S. App. D.C. 66, 136 F.2d 796, 799 (1943)
2. ^ United States v. Uni Oil, Inc., 710 F.2d 1078, 1080-81 n.1 (5th Cir. 1983)
3. ^ F.R.Civ.P. 8.
4. ^ CPR 16.2(1)(a), (b)
5. ^ CPR 16.4(1)
6. ^ CPR 16.5(1)
7. ^ CPR 16.5(2)
8. ^ CPR 15.9
9. ^ CPR PD 16, paragraph 13.3
10. ^ CPR 22.1(1)(a)
11. ^ CPR 32.14(1)
12. ^ CPR PD 20 paragraph 6.1
13. ^ CPR PD 20 paragraph 6.2
14. ^ CPR 20.6
15. ^ CPR 20.7
16. ^ CPR 20.3(1)

See also

• prima facie
• general denial
• negative pregnant
• further and better particulars