18 St John Street’s Christopher McNall offers some thoughts on King v Stiefel [2021] EWHC 1045 (Comm)…
Call me old-fashioned, but I love writing pleadings. Perhaps I have already revealed myself as old-fashioned by my use of the word ‘pleadings’ rather than ‘Statements of Case’.
I am probably one of the youngest people alive to have written a Surrejoinder, and I once reached the giddy heights of a Re-Re-Re-Re Amended Particulars of Claim (not my fault: as more and more facts about the conspiracy came to light, we had to add more parties). I hope that litigators of the traditional variety will appreciate my signature from that (see below), following the mandated ‘rainbow’ (see CPR 17 PD 2.4: but yellow ink is impractical – does it even exist? I used a nice orange).
I was well-taught, by many teachers: Alan Coulthard at Bar School, my pupil-supervisor Jonathan Dale, my colleagues at 18 St John Street (especially Malcolm McEwan) and every opponent who has done something neat and interesting which I have not come across before, and which I have squirrelled away for future use. There are some great pleaders at the Bar in Manchester.
Pleadings are not easy. They are a bit like making a watch: you need to assemble all the bits you need on your work-bench, and then painstakingly put them together, and then … it should tick! You need all the right bits, and no more. If you try and squeeze in an extra bit which won’t quite fit, then your watch won’t work. Likewise, if you are a bit short. So, it has to be ‘just right’.
If the matter is unfamiliar (as it often is in Chancery work – old-fashioned me again), I usually start with Atkin’s Court Forms (2003 edition – so early CPR, before it went off the rails). What is surprising is that most of these templates are really really short – less than a page. You could genuinely fit them onto the back of the claim form in the box which says “Particulars of Claim”. That is perhaps itself a hint as to how long particulars are supposed to be. But maybe that is too short, and, because we are often scared of missing something out, Particulars ramble and sprawl. How long is ‘just right’ is all a matter of experience coupled with instinct. And remember the page-limit backstop in most of the procedural guides – usually 25 pages.
This brings me to King v Stiefel, a recent decision of Cockerill J in the Commercial Court handed down following a 6 day hearing of an application to strike-out Particulars. It is, frankly, one hell of read (the judge has form: in her spare life, she writes popular biographies of medieval queens).
She devotes a section of her judgment (Paras 143-168) to an astringent dissection of the (24 page) Particulars, preceded by an exposition of the purpose:
“…The process of pleading a case operates (or should operate) as a critical audit for the claimant and its legal team that it has a complete cause of action or defence” (Para 148). This is a useful reminder – you need a complete cause of action (e.g., duty, breach, causation, loss). Wishful thinking and/or stitching together a case from sellotape and string won’t get you there. If you haven’t got one, you haven’t got a case to plead/state.
She refers to the guidance of the Court of Appeal in Hague Plant [2014] EWCA Civ 1609: “Pleadings are intended to help the Court and the parties. In recent years, practitioners have, on occasion, lost sight of that aim. Documents are drafted of interminable length and diffuseness and conspicuous lack of precision, which are often destined never to be referred to at the trial…It is time, in this field, to get back to basics.”
One difficulty which she identified in King, was this: “The pleading is unclear in the extreme, and combines tendentiousness with a combination of oversupply of evidence and undersupply of proper particulars” (Para 162).
The claim in King was one of unlawful means conspiracy (see Lonrho v Shell [1982] AC 173) – a hard thing to plead at the best of times – but which the Judge described as ‘defying any powers of precis’ and which she struck out, describing it as ‘structurally fatally flawed, abusive and lacking in pleadable substance’ (Para 455).
The whole judgment is a tour-de-force, and deals with other interesting matters such as when and how to plead fraud (again, never easy at the best of times). Make yourself a cup of tea and sit down and enjoy.
Finally, for aficionados, what the signature on a Re-Re-Re-Re-Amended Particulars of Claim looks like:
CHRISTOPHER MCNALL
CHRISTOPHER MCNALL
CHRISTOPHER MCNALL
CHRISTOPHER MCNALL
CHRISTOPHER MCNALL
CHRISTOPHER MCNALL
Christopher McNall is the only barrister in the North of England recommended for work in Agricultural
Law in the latest edition of The Legal 500.
Christopher specialises in disputes about tenanted and freehold farms and land (and especially agricultural tenancies under the Agricultural Holdings Act 1986), taxation (especially of agricultural land), proprietary estoppel, and inheritance.
He has appeared in many leading agricultural and tax cases in the Court of Appeal, the High Court, the Agricultural Lands Tribunal, and the First-tier Tribunal. He is Chairperson of the Agricultural Lands Tribunal for Wales, a Deputy District Judge, and a fee-paid Judge of the Tax and Property Chambers of the First-tier Tribunal.
Christopher was Consultant Editor for the ‘Agricultural Holdings and Allotments’ title in the 2018 edition of Halsbury’s Laws of England and writes the ‘View from the Bar’ column for the Agricultural and Rural Affairs section of Practical Law. His book, ‘A Practical Guide to Agricultural Law and Tenancies’, was published recently.
For more information on Christopher McNall please contact a member of our Business and Property Clerking Team on 0161 278 8261 or email businessproperty@18sjs.com