 |  |
|
 |
 |
 |
 |
|  | |  | |
(b)
The fundamental approach
In assessing such other initiatives, the proper functions and purposes of pleadings
must be borne in mind. Pleadings have important functions before, during and after
trial.
Thus, in the pre-trial context, by defining each party's case with some precision, the
pleadings may provide the basis for an early settlement
or for making an open offer
of settlement or a payment into court. If the action has to proceed, the pleadings set
the parameters of discovery, expert evidence, witness statements and trial preparation.
They also form the basis for case management by the court.
At the trial, the pleadings "define the issues and give the other party fair notice of the
case which he has to meet."
By limiting the parties to the pleaded issues, they are
prevented, without first obtaining leave to amend, from introducing fresh issues which
might take the other side by surprise and lead to disruptive adjournments.
After the trial, the pleadings may be referred to in order to identify the questions
decided for the purposes of the doctrine of res judicata.
Defective pleadings hamper such functions. Three main defects exist: (i) inaccurately
stating a party's case, (ii) being too sparse, or (iii) being prolix and excessively
detailed.
Any reforms should address these shortcomings.
They should encourage
pleaders to obtain proper instructions and to give the case due thought so as to avoid
pleading a false case which will require amendment and give rise to wasted
interlocutory effort and expense. Rules and reforms should also impel the pleader
towards striking a balance which avoids both excessive sparsity and excessive detail.
Notes
See BLJ, p 9, §1-11 and §1-12; and J&G pp 2-4.
Which could, of course, preferably be reached on the basis of letters before action and before issue of
the writ.
Per Lord Hoffmann in Barclays Bank v Boulter [1999] 1 WLR 1919 at 1923.
See Halsbury's Laws of Hong Kong, Vol 11, §170.024, n7; and the approaches adopted in Hoystead
v Commissioner of Taxation [1926] AC 155 and in Yat Tung Investment Co Ltd v Dao Heng Bank
Ltd [1975] AC 581.
|
 |
|