1. What are pleadings and their purpose?
Pleadings kickstart the process of civil proceedings as written documents filed by parties to set out their respective claims and defences. Pleadings serve to outline the issues in dispute, the relevant facts, and the legal basis relied upon by each party.
Pleadings are vital in ensuring clarity and transparency on parties’ respective positions to avoid surprises during trial, where the dispute will be determined based on parties’ pleaded case. Below are pleadings governed by Order 18 of the Rules of Court 2012 (“ROC”) and their respective purposes:
| Type of Pleadings | Purpose |
| Statement of Claim | Sets out material facts forming the Plaintiff’s cause(s) of action and relief(s) sought. |
| Defence | Sets out the Defendant’s legal and factual replies to the contents of the Statement of Claim as a rebuttal against the Plaintiff’s claim, be it through denials, admissions and / or absence of knowledge. |
| Counterclaim | A Counterclaim is filed by the Defendant together with the filing of its Defence. A Counterclaim is filed to set out the material facts of the Defendant’s cause(s) of action and relief(s) (if any) against the Plaintiff based on the existing factual matrix as set out in the Statement of Claim. |
| Reply to Defence | Sets out factual replies by the Plaintiff to the Defendant’s Defence. |
| Defence to Counterclaim | If the Defendant has also filed a Counterclaim, a Defence to Counterclaim may be filed by the Plaintiff together with its Reply to Defence. Sets out the Plaintiff’s legal and factual replies as a rebuttal to the contents of the Defendant’s Counterclaim, be it through denials, admissions and / or absence of knowledge. |
2. What is the significance of pleadings being deemed closed?
Prior to pleadings being deemed closed, parties to proceedings have an opportunity to amend the same once without obtaining leave of Court. Once pleadings are deemed closed, any party seeking to amend their pleadings must file an application to amend their pleadings in order to obtain leave of Court to do so.
Pleadings are deemed to be closed at the expiration of 14 days after the service of the Reply to Defence or, if no Reply is served, 14 days after the Defence and Counterclaim are served.
3. Is it possible for a party to reply to new facts which have been pleaded by the counterparty in its Reply to Defence or Defence to Counterclaim?
Yes, if met with new facts in the Reply to Defence or Defence to Counterclaim, such party being served with these pleadings may seek leave of Court to file further pleadings subsequent to a Reply to Defence or Defence to Counterclaim to address the new facts not raised in prior pleadings.
That said, any facts or allegations forming the subject matter of a claim or defence ought to be included in the Statement of Claim, Defence or Counterclaim (as the case may be). As such, it is prudent for parties to file an amendment application to incorporate any additional facts within the ambit of their pleadings for leave of Court to be obtained to incorporate the same.
4. What are matters that must be specifically pleaded in pleadings?
In essence, pleadings in a civil action should contain the following (as may be applicable) :-
- A statement in summary form of the material facts (not evidence) relied upon for a party’s claim or defence, as the case may be.
- Specific pleadings must be included if a party relies on performance, release, statute of limitation, fraud or any fact showing illegality which he alleges makes any claim or defence of the counterparty not maintainable.
- Necessary particulars of any claim, defence or other matter pleaded including but not limited to particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party relies upon.
Lack of sufficiently pleaded facts or particulars may attract a striking out application by the defendant or a summary judgment application by the plaintiff, as the case may be.
5. What happens when there is a departure from pleadings when the trial ensues?
Parties ought not be departing from the ambit of their pleadings in conduct of the trial before the Court. Where evidence or testimony is adduced during trial outside the ambit of a party’s pleaded case, this immediately allows the counterparty to object to the inclusion of or reliance by the Court on such evidence or testimony adduced.
If the Court is met with an objection by a counterparty that the production of evidence or testimony presents as a departure of pleadings, the Court will ascertain from the pleadings if the nature and ambit of the same has been sufficiently pleaded to allow for evidence or testimony to be led by the counterparty on the same and a ruling shall then be made on whether the objection is allowed or overruled.
Nevertheless, evidence given at the trial may overcome defects in the pleadings if circumstances show that the counterparty is not taken by surprise, especially if the evidence was given without any objection taken by the counterparty.
6. How and when can pleadings be amended?
| Without Leave of Court | Parties may amend their pleadings once without leave of the Court at any time before the close of pleadings. |
| With Leave of Court | After the close of pleadings, parties who intend to amend their pleadings would need to seek leave of Court, where in such instance the Court may at any stage of the proceedings allow such amendments on terms as to costs if the Court deems just to do so. While amendments to pleadings with the leave of Court can be made any stage of the proceedings, the Court will determine if any amendments which seek to introduce any new cause of action or defence ought to be scrutinised as being a tactical manoeuvre and whether such proposed amendment has a real prospect of success. |
| By parties’ agreement | Any pleading may by written agreement of all parties, be amended before commencement of the trial. |
7. What happens if pleadings set out reference to documents unknown to a counterparty?
Tactically, a party should consult their solicitors on steps to be taken when met with a pleading setting out reference to documents unknown to them. However, where it is pivotal to a case and it is relevant for a party to sight such document before pleading a full reply to the same, an option would be to consider the filing and issuance of a Notice to Produce pursuant to Order 24 Rule 10 of the ROC to the counterparty seeking production and inspection of such pleaded document. If such request is opposed or resisted, an application for discovery may be filed.
An application for discovery may also be filed if, based on assessment of pleadings, there are documents on which the counterparty relies and such documents could adversely affect its own or the counterparty’s case, or support the counterparty’s case.
8. What can be done if a counterparty has not pleaded sufficient material facts to enable a party to plead its reply?
Aside from an application for striking out or summary judgment (as the case may be) as an option by a counterparty to address deficiencies in pleadings, below are other interlocutory applications which may be pursued in instances where a party’s pleadings are unclear and vague:
| Further and Better Particulars | Subject to legal advice, if the pleadings are vague or lacking in material facts to enable a reply, a party may consider whether an application for further and better particulars ought to be pursued to clarify the issues stated within the relevant pleading. |
| Interrogatories | Subject to legal advice, if a pleading lacks sufficient particulars for an assessment of merits to be made, a party may consider filing an application for an order giving it leave to serve on the opposing party interrogatories relating to any matter in question, and requiring that the opposing party answer these interrogatories within a specific period of time. |
9. Is a bare denial considered a sufficient pleading
Order 18 Rule 13 of the ROC sets out that a party is deemed to admit factual allegations raised in a Statement of Claim unless it is traversed in their pleading or through joinder of issues. A bare denial of facts presented in any party’s pleadings, although coupled with a statement placing the counterparty to “strict proof”, has been criticised by the Courts as being insufficient to traverse the contents of the pleading replied to and in meeting the standards of proper pleading.
10. How can the framing of pleadings serve as a strategic tool in litigation?
Focused and proper framing of pleadings serves immense benefits to litigants as follows:-
- Presents a compelling narrative which highlights the strengths of a party’s case and exposing weaknesses in the counterparty’s position.
- Sets the tone in proceedings where well-drafted pleadings demonstrate seriousness, preparation, and clarity of legal thought.
- Well-drafted pleadings minimise the ability of or prospects of success for a counterparty to file interlocutory applications for summary disposal of a claim or defence.
- From a commercial standpoint, well-drafted pleadings could potentially lead to counterparties reconsidering their litigation appetite and risk exposure which may lead to early settlement of a dispute without the necessity for a protracted trial.
Ultimately, pleadings are not just procedural documents. Being documents which kickstart the process of civil proceedings between parties, it is important for clients to seek legal advice in ensuring that pleadings representing their position are crafted in a compelling and strategic manner to ensure that their rights and needs are fully addressed.
For further information, please contact:
Nimisha Jaya Gobi, Partner, LAW Partnership
nimishagobi@law-partnership.com
