Pleading points

Despite the current shutdown of much of the economy, the world continues to turn, the seasons change and amendments to the Civil Procedure Rules and its Practice Directions grind forward with the remorseless force of the law.

Last week saw the coming into force of some much heralded amendments to Practice Direction 16, Practice Direction 22 and Practice Direction 32 which have direct relevance to credit hire claims and how they are litigated.

Beginning with Practice Direction 16, the amendments to the practice direction  are meant to force a claimant to set out their case for a substantial award of damages for credit hire and enable a defendant to know the case they have to meet and to define and limit the issues in the case.

Particulars of Claim in these cases are often drawn in the fashion of a Japanese brush painting: sparse and enigmatic in their beauty but usually lacking in utility.

There is a new paragraph 6.3 but paragraph 8.2 also repays consideration. This latter provision is not a new obligation but it is currently honoured more in the breach than the observance.

6.3 Where the claim includes the cost of hire of a replacement motor vehicle following a road traffic accident, the claimant must state in the particulars of claim—

(1) the need for the replacement vehicle at the relevant time;

(2) the period of hire claimed (providing the start and end of the period);

(3) the rate of hire claimed;

(4) the reasonableness of the period and rate of hire; and

(5) impecuniosity (if the claim relates to credit hire).


8.2 The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim:

(8) any facts relating to a claim for mitigation expenditure.

A key tenet of pleading practice, long pre-dating the introduction of the Civil Procedure Rules, is that the pleader should plead fact and not evidence.

The distinction between the two is not necessarily straightforward: I characterise it that “facts” are primary facts, the allegations which must be established to prove the case, and “evidence” is the secondary facts which tend to support or undermine the primary facts.

The requirement to plead facts in greater particularity will require ensuring those facts are provided by the claimants.

When dealing with credit hire claimants, the majority of them do not read letters, draft particulars of claim and draft witness statements which are sent to them. They simply sign whatever they are presented with complete with the misunderstandings and mistakes of those who have drafted the documents.

The difficulties are magnified when dealing with clients for whom English is not their second language. It follows in turn that errors in these documents frequently creep in.

The only solution is for the clients to be spoken to, and their instructions obtained in detail and their assertions tested against the available documents. A robust case management system will be directed at the clients it is meant to service, not the hypothetical alert and engaged client.

Further reform has taken place to the obligation to give a statement of truth under Practice Direction 22.

It has always surprised me that the rules allow (and continue to allow) a solicitor to make a statement of truth on behalf of a client, and that a solicitor will take on the responsibility of signing the statement of truth. In my view the client should always sign it, and take ownership of their document.

Amendments to Practice Direction 22 provide as follows;

2.1 The form of the statement of truth verifying a statement of case, a response, an application notice or a notice of objections should be as follows:

‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’

2.2 The form of the statement of truth verifying a witness statement should be as follows (and provided in the language of the witness statement):

‘I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’

Finally Practice Direction 32 has been amended, not least to make clear how a witness statement from a non English speaking client should be taken. It should be taken in the witness own language, and then translated.

18.1 The witness statement must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language, the statement should be expressed in the first person and should also state:

(1) the full name of the witness,

(2) his place of residence or, if he is making the statement in his professional, business or other occupational capacity, the address at which he works, the position he holds and the name of his firm or employer,

(3) his occupation, or if he has none, his description,

(4) the fact that he is a party to the proceedings or is the employee of such a party if it be the case; and

(5) the process by which it has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter.

I am reasonably sure that these provisions will be used to launch a new round of interlocutory warfare: part 18 requests will start to fly and the district bench will have to become the arbiter of what the new provisions require a claimant to provide.

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