CASE FAILS BECAUSE OF MATTERS NOT PLEADED: ANOTHER LESSON FOR PLEADERS

The decision of His Honour Judge David Grant yesterday in Bridgland -v- Earlsmead Estates Limited [2016] EWHC B9 (TCC) makes salutary reading for anyone who drafts pleadings.  If the claimants had pleaded their case differently they may have won.  It highlights the need to consider pleading a case in the alternative.  In particular it is usually perfectly appropriate for a claimant to plead an alternative case based on the defendant’s evidence or version of events.

“The purpose of function of a claimant’s statement of case is not only for a claimant to state the material facts upon which it relies, but also to enable a defendant to know the case which it has to meet”

“Thus, as a consequence of the way in which the parties conducted their respective cases at trial, fashioned as they were by their respective statements of case, the defendant is entitled to apply for judgement to be entered in its favour.”

KEY POINTS

  • The judge found the source of damp damaging the claimants’ property was from the defendant’s property.
  • However the claimants had pleaded a totally different source of the damp to that found by the trial judge.
  • Because the claimants had not pleaded this as a possible source of the nuisance their case could not succeed, judgment was given for the defendant.

THE CASE

The claimants brought an action alleging nuisance.  The judge found that the cause of damp was not the source complained of by the claimants but by long-standing damp penetration from lateral ground moisture.

THE CLAIMANT’S PLEADED CASE

H: The allegations of breach of the measured duty of care
  1. The amended particulars of claim did not state what duty the claimants contended the defendant was under and/or what the defendant should have done, when and why. Accordingly, during the trial I gave Mr Hackett permission to file and serve a document headed ‘Additions to pleading’, which is in effect a re-re-amended particulars of claim, in which the claimants set out their case on duty, breach, foreseeability of damage, and causation in respect of two periods: first at the time of demolition of the former Trafalgar Works; and second during the period following demolition, which is in effect when the claimants complained to the defendant of damp being caused to 31 Trafalgar Street.
  1. The claimants’ case as regards the duty which arose in both periods is predicated on the proposition or supposition that the cause of damp was the demolition of the former Trafalgar Works, leading to water penetration of the flank wall, all of which is reflected in Mr Moore’s ‘mechanism 1′. That is stated expressly in the claimants’ statement of the duty which is alleged in respect of the first period:
“The defendant owed the claimants a duty to do what was reasonable in all the circumstances to reduce or alleviate any reasonably foreseeable risk that the demolition of the Trafalgar Works might increase water ingress into the gable wall or the wall below ground.”
It is also to be implied from the references to the various e-mails and communications made by the claimants (in particular to Anita Bridgland’s first e-mail of 7 September 2010) in their allegation of breach of duty in respect of the second period.
  1. That leads to the second substantial problem for the claimants in this case, which is that the whole focus of what was the defendant’s duty, what was foreseeable, and what were the defendant’s breaches of such duty, are all based on or derive from the proposition or supposition that the cause of damp to 31 Trafalgar Street was the demolition of the former Trafalgar Works, which it was not. It will be necessary to consider this point further below.

THE MISMATCH

There was a mismatch between the cause of the damp

  1. It is apparent that there is a mismatch between (a) the way the claimants advance their case on foreseeability and causation, and consequently also on breach; and (b) the content, and thus impact, of the evidence which was adduced at trial. This is all because the claimants’ case on causation was that damage was caused by damp penetration through the gable wall, and water then travelling down inside and then laterally through the gable wall; whereas the defendant’s case on causation is the damage to the gable wall was in fact caused by damp penetration from lateral ground moisture coming from the soil or material underneath the ground floor slab of the former Trafalgar Works. I have found that the cause was the latter i.e. as the defendant contended.

THE CONSEQUENCES: IN THE ABSENCE OF A PLEADING ON THIS POINT THE CLAIMANTS’ CASE FAILED

  1. There are thus two positions to be considered:
(1) Given the findings made above, the claimants might feel a sense of injustice if the defendant was able to avoid liability because the claimants had failed to identify in their statements of case the correct cause of the damage to 31 Trafalgar Street, i.e. that it had always been caused by the state or condition of the defendant’s property, viz by penetration of long-standing lateral ground moisture coming from the soil or material underneath the ground floor slab of the former Trafalgar Works, rather than by “surface water” i.e. rain water penetrating the upper parts of the flank wall, and then percolating down inside the flank wall in the way which Mr Moore described as his ‘mechanism 1’..
(2) On the other side of the coin: given the way in which the claimants advanced their case through the medium of their statements of case, in particular the re-amended particulars of claim, the defendant might feel a sense of injustice if it was unable to submit that it had successfully defended the case on primary liability (in particular the elements of foreseeability and causation) which the claimants advanced at trial.
  1. It is to be borne in mind that the purpose and function of statements of case is to define the ambit of the dispute: see ‘ Bullen & Leake & Jacobs: Precedents of Pleadings‘: 18 th edition at paragraph 1-15. In that context, CPR rule 16.4 (1) (a) provides that:
“Particulars of claim must include … a concise statement of the facts on which the claimant relies;”
The purpose of function of a claimant’s statement of case is not only for a claimant to state the material facts upon which it relies, but also to enable a defendant to know the case which it has to meet: see ‘ Halsbury’s Laws of England’ volume 11 on Civil Procedure, paragraph 345 note 2, citing Pantelli Associates Ltd v Corporate City Developments (No 2) Ltd [2010] EWHC 3189 (TCC) as authority for that proposition.
  1. It is also to be borne in mind that this was the trial of an action which has been going on since November 2013, and which related to events which occurred at various times between 2007 and 2012. There is considerable interest in there being finality in the proceedings. It is also to be recalled that the claimants were given permission during the course of the trial to re-re-amend their case on breach and foreseeability. Even at that late stage, the claimants did not plead an alternative case on causation and consequentially on foreseeability. It could well be said that, in such circumstances, “enough is enough”.
  1. Thus, as a consequence of the way in which the parties conducted their respective cases at trial, fashioned as they were by their respective statements of case, the defendant is entitled to apply for judgement to be entered in its favour. “

IS THERE A SOLUTION IN A CASE LIKE THIS? PLEADING IN THE ALTERNATIVE

It is always worth looking at the judgment in Binks -v- Securicor [2003] EWCA Civ 993. A claimant in a personal injury case wanted to advance and plead an alternative case in relation to liability based on the defendant’s account of how the accident occurred.  This was rejected by the trial judge on the basis that the claimant could not sign a statement of truth verifying that this was correct.

The Court of Appeal, however, allowed the claimant to plead the case

The judge found

“Pleadings nowadays have to bear a statement of truth and it is quite clear that the Claimant is in no position to sign a statement of case which would advance wholly conflicting versions of his complaint against the Defendant.”
Mr Justice Maurice Kay observed:
8. In my judgment it was erroneous for the judge to express himself in that way. For one thing, rule 22.1 (2) enables the court to dispense with verification by a statement of truth when a statement of case is amended. It does not specify circumstances in which the power of dispensation might arise but I take the view that amendment to plead in the alternative a case derived from an opponent’s documents, pleadings or evidence is capable of being such a case. To the extent that the practice direction to part 17 suggests otherwise, I give precedence to the rule over the practice direction. Moreover, I do not accept that the purpose or effect of part 22 is to exclude the possibility of pleading inconsistent factual alternatives. In this, I take comfort from the judgment of Patten J in Clarke v. Marlborough Fine Art Limited 2002 1 WLR 1731 at paragraph 30. It is true that Patten J was not concerned with a dishonest claimant who was clinging to a false account and a defendant whose witnesses, at least on one view, were providing evidence for an alternative factual basis of liability. Nor was he concerned with other possible scenarios that readily spring to mind – for example, a claimant in a personal injury case who simply does not know what happened but relies on a independent witness who proves unreliable in circumstances where the defendant’s evidence nevertheless provides him with a positive case; or the claimant who honestly believes in, because he has wrongly convinced himself of, the truth of his case, but who can nevertheless advance a case on the basis of the defendant’s pleadings or evidence. Such scenarios and the history of the present case dispose me to the view that it is necessary to adopt a broader approach to Part 22. In my judgment, it does not in all cases prevent a party from submitting or amending a pleading which includes an allegation which he is not putting forward as the truth, provided that there is an evidential basis for it. If it is in the form of an amendment, then, as I have said, it may be appropriate for the court to permit it without requiring a statement of truth. Moreover, I do not consider it objectionable in principle for a claimant to advance an alternative case based on material put forward by his opponent. In such circumstances, it may be possible for him append a statement of truth, suitably drafted, making it clear that whilst his primary case is not an assertion of the truth of his opponent’s account, if the court find that to be the truth, he will seek to rely upon it as an alternative basis for liability. There is some support for this approach in Kelly v. Chief Constable of South Yorkshire Police [2001] EWCA Civ 1632. There, at the conclusion of the evidence, counsel for the claimant sought permission to amend particulars of claim so as to include an alternative factual basis of liability based not on her own evidence but on that of one of the police officers with whom she had been struggling in a car. Neither at first instance nor in the Court of Appeal does there appear to have been a discussion of Part 22. Nevertheless, May LJ concluded (paragraph 18) that the grounds for refusing permission were not sufficient to outweigh the justice of permitting the claimant to advance an alternative case based upon, or close to, the defendant’s evidence. Agreeing, Sedley LJ said (paragraph 21): “It is not uncommon for a version of the facts to emerge as a possible deduction from the evidence which has so far been neither side’s pleaded case but which one side wants now to plead as an alternative basis, either of liability or of defence. In my experience it is normal and proper practice in the County Courts, and in the High Court too, to allow an amendment to such effect at the conclusion of the evidence if, on any terms which are appropriate as to costs or recall of witnesses, this can be done without injustice to the other party or parties.” I acknowledge that the factual circumstances were different from those of the present case. On the other hand, if an unduly narrow view were taken of Part 22, it is difficult to see how the Court of Appeal could have come to the conclusion it reached. 9. Although I accept that the purpose of Part 22 is to deter or discourage claimants from advancing a case which is inherently untrue or wholly speculative (a purpose which will never be wholly achieved), I do not accept that its purpose extends to the possibility of relieving of liability a defendant whose own evidence may establish a cause of action against him. That would not be consistent with the overriding objective of dealing with a case justly (CPR 1.1(1)).

RELATED POSTS: THE IMPORTANCE OF PLEADINGS

LATE AMENDMENT

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