Plain Guide to Litigation: Written pleadings

4. How to set out the Statement of Facts

Although we are dealing at this stage with the completion of an Application, most of what we say also applies to other forms of written pleadings. It is always helpful to aim for simple language and to avoid any attempt to use big words just because it seems right to try to use them for important things. The simple aim is to set out the important material as fully and clearly as possible and in separate, short, numbered paragraphs. This process helps you see that you have thought things through properly. It makes it easier for the other side to identify what they dispute. It is easier to work with an Application which is carefully prepared in this way. It allows the opponent to answer each point fully and clearly. It helps avoid misunderstandings.

You should follow an identifiable order either dealing with a logical sequence of issues or simply dealing with things in chronological order. Be straightforward and businesslike. It is always worth drafting pleadings first and then going back later to have a fresh look at them before sending in the final version.

Making your case easy to answer

You may think that the last thing you want to do is make your case easy to answer! But, if you have a good case, the clearer the pleadings the better. You do want to set out your averments in a straightforward way so that you force the respondents to be straightforward in their replies. Generally speaking, Answers have to adopt the style of layout chosen by the applicant. If the Statement of Facts consists of a few big paragraphs with a variety of facts squeezed into each, the material set out in the Answers will also be squeezed into the same type of paragraphs. When the applicant comes to adjust in response to the Answers he will not be able to abandon the whole scheme of the original. New material will simply be squeezed in – with the result that each paragraph grows to be a great amalgamation of indigestible facts. The Answers will, necessarily, be the same.

On the other hand, if the initial case is set out in a series of short paragraphs dealing with specific topics, the drafting of both Answers and adjustment is much easier. Brand new material can be added at the end as new paragraphs, or inserted as extra paragraphs using numbers such as 1A, 1B etc, to avoid disrupting the original pleadings and knocking the numbers in the Answers out of kilter.

It is worth bearing in mind that all assertions will be scrutinised by real people on the other side – not just lawyers! It is important to realise that your opponents are likely to be fighting the case because they genuinely think that they have the better legal rights. They will seldom be litigating just to be difficult. (They may, of course, be litigating mainly in the hope of persuading you to reach a compromise agreement.) If you can recognise that your opponent is not acting out of “pure badness” or “pig headed stupidity”, it should be easier to discuss a sensible compromise. But, if your pleadings say something which is plainly wrong, misleading or even just exaggerated, this may lead your opponent to think that you are the pig headed one. Errors or exaggerations in pleadings not only lead to extra expense in being challenged and corrected, but can add to the aggravation factor. All unnecessary aggravation tends to increase cost and reduce the chances of sensible agreement. Where a case is set out accurately and moderately, the other side may reply in kind. Parties may then find it easier to understand that there is a real question between them which needs a sensible answer rather than an emotional squabble.

We often find that Applications contain very little detail. This may be because it is hoped that the mere raising of the action will force the other side to give serious consideration to the problem and reach an agreement. There may seem no point in drafting a lengthy application if it is not likely to be opposed. But this may be a false economy. Once it is clear that a case has to go to court the aim should be to set out the relevant facts as clearly and completely as possible and as soon as possible. That allows the other side fully to understand the case it has to answer at as early a point as possible. Faced with a clearly stated case an opponent has to make up his mind whether opposition is worthwhile. In other words a well stated claim helps ensure that if there is opposition it will be because there is a genuine issue to be resolved and not because there is any misunderstanding.

If the application is in skeleton form it is likely that the answers will be the same. Both sides will then realise – or be told – that they need to set things out fully. They will often adjust by deleting the first statement and replacing it with a much more elaborate statement. That will mean that their opponent has to do the same. The expense of the first statements will have been wasted.

The legal basis of a case

We do not insist on formal “pleas in law” in the pleadings. This is partly because many Land Court cases raise issues which are purely factual. For example, if the Court is asked to determine a boundary or fix a croft rent it is often the case that no legal points are in dispute. But in some types of case but it will be necessary to say why you think you are entitled to the Order you are asking for. This may involve setting out briefly the legal propositions you are founding on.

The legal basis of a case can be set out at the end of the Statement of Facts under a separate heading of “Pleas in law”. That is how it is done in other Scottish courts. The name does not matter. You could call them “legal contentions”. Sometimes a legal proposition can simply be set out as part of the narrative of fact. If for example, you were making a claim based on a provision of an Act of Parliament, you might refer to the section in question and then just go on to explain why your case was covered by it. In most cases a separate statement of the legal basis of your claim is best set out at the end but the aim is clarity not legal formality. The legal contentions upon which you rely must be based on the facts you have set out.

Setting out clearly the legal basis of your case forces you to look closely at the case you are presenting. It helps the court see in advance what issues are likely to arise and this is important when deciding on the best procedure to follow.

It is important to stress that there is a difference between setting out the main legal propositions on which your case is based and actually setting out the arguments you will advance in support of them. Pleadings are not intended as a place for argument. You will see above some discussion about written submissions. That may help explain why we do not expect to find lengthy argumentative material in the pleadings. That is not their purpose and it leads to confused pleadings which can hide more than they reveal. If you want to persuade your opponent of the strength of your case, you can do so by sending him a letter setting out your arguments. You should not do so in the pleadings.

It may seem sensible to try to put your whole case, arguments and all, into your written pleadings so that your opponent cannot complain of ever being taken by surprise. But this tends to create its own problems. Experience has shown that simple pleadings are best. If you keep in mind the difference between pleadings and arguments it should be easier to avoid the type of pleadings which are so convoluted that no one really knows what case is to be made. Remember that the main aim of pleadings is to give notice of the basis of your case and to do so in such a way that the parties together can identify what is agreed and what is in dispute. Inclusion of argument or unnecessary reference to evidence makes this much more difficult.

Referring to documents

There is a difference between documents which are founded on, in other words relied on as creating a legal right of some sort, and documents which are simply relied on as evidence to support a case. A written agreement such as a lease would be in the former category; most documents fall into the latter category. An expert’s report is a good example. You might tend to think of it as showing the “basis” of your case, but it is really just a piece of evidence.

We refer again below to different types of material which might be sent to the Court. It will all go to the Court staff in the first instance. Material which is to be founded on or relied on as part of the evidence in the case should be put in formally as productions. We talk about “lodging” material when it is done in a formal way even that word is not actually used. This can be contrasted with, say, letters dealing with procedure which are not part of the evidence in the case itself.

Documents which are founded on as the basis of a case in the sense that they are essential to the right being claimed should be lodged, that is, sent to the court along with the application or response. They should be referred to in the pleadings to the extent necessary to explain what they are and why they are relied on, but need not be quoted in full.

A report is different. It should simply be lodged as a production. If that is done in good time it will usually be accepted as giving sufficient notice of the facts it contains. It may be referred to in the pleadings but no purpose is served by incorporating it as part of the pleadings. Lawyers sometimes say in their pleadings that a particular document or report is “adopted” or is “incorporated and referred to for its terms for the sake of brevity” – they might even put the last bit in Latin and say “brevitatis causa”. Unless a document is relied on as the basis of a legal right there is seldom any need to incorporate its terms in the pleadings and we suspect that in most cases when lawyers purport to “adopt” a report, this is done without thinking about the implications.

As an applicant, you might mention a report in your pleadings to draw attention to it but do not try to “incorporate” or “adopt” it as part of the pleadings, just because you have seen this done in other cases. Adopting a report in this way without repeating its terms expressly is seldom helpful. You realise this immediately you find yourself trying to answer such a form of pleading. One problem is that reports often contain a lot of opinion evidence which does not require to be answered in pleadings. However, a report may very well set out a lot of factual detail. Many of such facts may be so obvious that, taken individually, you would not see any need to give notice of them in formal pleadings. Putting them all in not only creates work but also tends to distract attention from more important matters which might be in dispute. However, the real difficulty is that facts in a report are seldom in a format which can easily be answered. Accordingly, it is virtually impossible to use the pleadings to identify what is agreed and what is to be determined by the court.

If there is material in a report which you would like an opponent to answer, you might adopt some identified part of the report if it lays the material out in a way which allows that to be easily done. If that is not possible – and it seldom is – you should repeat the essential material in your own pleadings or identify it in a way which forces your opponent to deal formally with it and allows him or her to answer each point in a clear way. Time spent on this will not be wasted.

Often the only way to respond to a report produced by an opponent and purporting to be adopted as part of his pleadings is for your own expert to prepare a report in answer and to incorporate that. This is seldom helpful in clarifying issues.

It is important to keep in mind that pleadings are not a place for submissions. You do not need to try to use pleadings to persuade the court that the opponent’s report should be rejected. You do not need to set out the reasons for rejecting all the points made by an expert in a report. As long as it is clear from the report that you are denying the essential point, the reasons for rejection of individual arguments can be left until the hearing or until you are asked to lodge a written submission. You can always write a letter to your opponent if you wish to persuade him that his arguments are bad.

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