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. 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".
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 (hence the term
"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.
However, the leniency of the modern notice pleading regime often
resulted in poorly-drafted complaints with vaguely phrased,
incoherent and conclusory allegations.
The U.S.
Supreme Court responded in 2007 and 2009 with decisions which
imposed strict new standards for specificity and "plausibility" in
pleadings.
Fact Pleading
Louisiana
, a state that derives its legal tradition from the
Spanish and French (as opposed to English common law), employs a system of fact pleading
wherein it is only necessary to plead the facts that give rise to a
cause of action. It is not necessary even for the petitioner
to identify the cause of action being pleaded. Mere conclusory
allegations such as, "the defendant was negligent" are not, by
themselves, sufficient to sustain a cause of action.
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 preceded by an initial exchange of
correspondencein accordance with the
Practice Direction on Pre-Action Protocols.
Theseexchanges are not technically part of the pleading process,
and parties arenot encouraged to take points on any discrepancy
between pre-actioncorrespondence 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 statementsof case.
The claim form must contain a concise statement of the nature of
the claim andspecify the remedies which the claimant seeks. It must
alsocontain 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 whichthe claimant relies,together with details of any
interest claimed and whether aggravated damages orprovisional
damages are claimed.
The Defence (equivalent to an
Answer) must
state which allegations of the Particulars of Claim areadmitted,
which allegations are denied, and which allegations the defendantis
unable to admit or deny, but which the claimant is required to
prove. A defendant must give reasons for any denial, and must
putforward his or her own version of events if different from the
claimant's version. 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 thecourt's permission.
The Practice Direction accompanying Part 16 sets out various items
which mustbe 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
ofwitnesses whom it is proposed to call. A party may also attach to
or serve witha statement of case any document which is considered
necessary to the claim ordefence, but which is not required to be
attached or served.
The claim form and all statements of case must be verified by a
statement oftruth,signed by the party or his or her legal
representative. A personwho makes a false statement in a document
verified by a statement of truthwithout an honest belief in its
truth is liable to be prosecuted for contemptof court.
Counterclaims, claims for contribution or indemnity against another
party,and third party claims (collectively referred to as
'additional claims') aregoverned 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. Theclaimant's defence to thecounterclaim should be
included in the same document ('Reply and Defence to Counterclaim')
as the reply and shouldfollow on from the reply.
A claim for contribution or indemnity against another party is made
by servingand filing a notice containing a statement of the nature
and grounds of theclaim.
A third-party claim is made by issuing and serving a third-party
claim form (equivalentto a
Summons),
together with particulars of the third party claim.
An additional claim is treated as a normal claimunless Part 20
otherwise provides, so the rules on contents of claim
forms,Particulars of Claim, Defences and Replies apply accordingly,
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 forinformation about
statements of case are governed by
CPR Part 18.
References
See also
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