Keep it Brief
24 February 2015As the Commercial Court demonstrated just this week in Tchenguiz & ors v Grant Thornton & ors, over-lengthy pleadings are unacceptable and likely to be struck out, with embarrassing consequences for those concerned.
Therefore, since brevity is the soul of wit,
And tediousness the limbs and outward flourishes,
I will be brief: your noble son is mad…
[Polonius, in Hamlet, Act 2 scene 2]
Not only, as Shakespeare says, is brevity the soul of wit; it is the essence of written advocacy. It is also a quality emphasised in the CPR and, sometimes more specifically, in the Procedural Guides adopted by the various specialist courts and divisions of the High Court. In Tchenguiz [1] the court struck out Particulars of Claim which were 94 pages long and flouted the principles set out in the Commercial Court Guide. The costs of drafting them were disallowed. A retrospective application for permission to serve the pleading was rejected and, no doubt to the embarrassment of all concerned, leading and junior counsel who had signed the Particulars of Claim were asked to explain individually whether they were aware of the requirements of the Guide and whether they had deliberately not complied.
The case was not a particularly complicated one, and the necessary allegations were in fact pleaded, starting at page 61 of the Particulars of Claim. However, that operative part of the statement of case was preceded by about 50 pages of narrative, liberally interspersed with assertions of fraud, falsity, dishonesty and improper motive which were not particularised. A proper pleading, said Leggatt J, which omitted the large tracts of unnecessary narrative and rhetoric that had been included, could be accomplished in a document no more than half the length.
Pleadings of such immensity are not something with which most of us may be familiar, so where should one look for guidance if asked to draft a complicated claim or wanting to respond to such a document with a suitable challenge?
CPR 16.4 (1)(a) provides that Particulars of claim must include “a concise statement of the facts on which the claimant relies”. The Practice Direction to Part 16 goes on to identify details of specific matters that, for particular types of claim, must be included; but it says no more about what is an acceptable length for a statement of case.
The Chancery Guide, at para 2.10, says that “In the preparation of statements of case, the guidelines in Appendix 2 should be followed.” These include the requirements that:
- The document must be as brief and concise as possible.
- The document must be set out in separate consecutively numbered paragraphs and sub-paragraphs.
- So far as possible each paragraph or sub-paragraph should contain no more than one allegation.
However, it is in some of the more specialist parts of the Queen’s Bench Division that greater control seems to be exercised. In the Admiralty & Commercial Court Guide, mentioned above, paragraph C1.1 includes the following :
(a) Particulars of claim, the defence and any reply must be set out in separate consecutively numbered paragraphs and be as brief and concise as possible. They should not set out evidence. They should also comply with Appendix 4 to the Guide [2]
(b) Statements of case should be limited to 25 pages in length. The court will only exceptionally give permission for a longer statement of case to be served; and will do so only where a party shows good reasons for doing so. Where permission is given the court will require that a summary of the statement of case is also served. Any application to serve a statement of case longer than 25 pages should be made on paper to the court briefly stating the reasons for exceeding the 25 page limit.
(c) It is seldom necessary for the proper understanding of the statement of case to include substantial parts of a lengthy document, but if this is necessary the passages in question should be set out in a schedule rather than in the body of the case.
Paragraph 5.1 of the Mercantile Court Guide is more restrictive of length, stating that:
Statements of case should be as succinct as possible. They should not set out evidence. They should be limited to 20 pages in length. The court will give permission for a longer statement of case to be served where a party shows good reasons for doing so. Any application to serve a statement of case longer than 20 pages should be made on paper to the court briefly stating the reasons for exceeding that limit. It will rarely be necessary to plead large parts of a lengthy document in the statement of case. If this is necessary the parts should be set out in a schedule not in the body of the case.
And brevity is required even in the County Court where, although the CPR states that a case summary should be no more than 500 words long [3], many courts seem to have substituted the much lower limit of 250 words. In all but the most complex cases, however, the advocate should have no difficulty in expressing succinctly within 250 words the essence of both the claim and the defence so that the judge has a clear grasp of what is at stake.
© Graham Sinclair 2015
Notes:
1.Tchenguiz & ors v Grant Thornton UK LLP & ors [2015] EWHC 405 (Comm) (Leggatt J, 20th February 2015)
2. See Appendix 4, paras 1 & 17. Para 1 copies that in the Chancery Guide; para 17 repeats the 25 page limit.
3. PD29, para 5.7(c)
