Definitions

defective pleading

Pleading

[plee-ding]
In law as practiced in countries that follow the English model, 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, where each cause of action had its own separate procedure: law and equity were entirely different judicial systems, each with its own causes of action and available remedies. Because the list of causes eligible for consideration was capped early during the development of the English legal system, claims that might be acceptable to the evolving court often did not match up perfectly with any of the established causes. Lawyers might have to engage in great ingenuity to shoehorn their clients' claims into the necessary "elements" required to bring an action. Some claims for debt were alleged together in common counts in an effort to prevent the defendant from squirming out of liability on some technicality on one of the counts.

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. It unified civil procedure for all types of actions as much as possible, and the required elements of each action are set out in carefully codified statutes.

However, 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.

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 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 (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

Alternative pleading is a legal fiction permitting a party 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. Pleadings are referred to as 'Statements of Case'.

A variant of 'Notice Pleading' is used wherever possible, which is called the 'Pre-Action Protocols'. There are various Pre-Action Protocols, covering different types of dispute, and one general practice direction covering everything else. Whilst they vary slightly, the protocols all follow the same idea. As soon as someone becomes aware they are likely to bring a claim against someone, they should first write a short letter to their prospective opponent telling them. Once they have sufficient information to set out roughly what the claim is about, they should write what has now been termed a 'protocol letter', setting out all the information they base their claim on, confirming all the details of the claim, and including a request for any documents held by the opponent.

The opponent should acknowledge having received the letter, and after that, within a reasonable time (usually three months), write a letter of response, enclosing any requested documents.

The parties should then negotiate a settlement. Only if a settlement cannot be reached, or if the statute of limitations is due to expire, should a Claim be formally commenced in the court, and by that time each party should have all the information they need to provide comprehensive pleadings.

If a party does not co-operate with the pre-action protocol, they could find themselves penalised by having to pay the other party's legal bills, and / or getting an order made against them for disclosure (discovery)

Once proceedings formally start, there is a strict timetable for Statements of Case, which this time have to be fully plead, setting out all the main allegations each party will make. The Claimant must deliver his / her pleadings to the opponent within four months of starting the claim (in fact the court usually does this for the Claimant automatically as soon as the Claim is commenced).

The Defendant has two weeks to respond with either a tender of a sum of money, an admission of liability, an admission together with a request for time to pay, a Defence (the Defendant's pleading), a Counter-claim or a combination of the above.

If two weeks is insufficient, if the Defendant acknowledges to the court that they have received the documents, that period will be extended to four weeks. The parties can agree an extension of up to eight weeks if they wish.

If a Defence is filed, the Claimant may provide a further pleading called a 'Reply', although that is optional. If there is a Counterclaim, the Claimant needs to either admit that or provide a further pleading called 'Defence to Part 20 Claim'.

Once all this has happened, a stage known as 'Close of Pleadings' is reached, and the case will progress, although it is not uncommon for Pleadings to be amended after this point if the court agrees.

References

See also

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