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The need for such a balance was recently recognized by the House of Lords in Three
Rivers DC v Bank of England [2001] 2 All ER 513 at 528, where Lord Hope, referring
to the pre-CPR position, stated :-
"In my judgment a balance must be struck between the need for fair notice to be given on the
one hand and excessive demands for detail on the other. In British Airways Pension Trustees
Ltd v Sir Robert McAlpine & Sons Ltd (1994) 45 Con LR 1 at 4-5 Saville LJ said:
‘The basic purpose of pleadings is to enable the opposing party to know what case is
being made in sufficient detail to enable that party properly to prepare to answer it. To
my mind it seems that in recent years there has been a tendency to forget this basic
purpose and to seek particularisation even when it is not really required. This is not
only costly in itself, but is calculated to lead to delay and to interlocutory battles in
which the parties and the court pore over endless pages of pleadings to see whether or
not some particular point has or has not been raised or answered, when in truth each
party knows perfectly well what case is made by the other and is able properly to
prepare to deal with it.'"
As indicated in the passage from Saville LJ, this need for a balance applies not only to
the original pleadings but also to requests and applications for further and better
particulars. Since present-day procedures involve pre-trial exchanges of witness
statements, expert reports and so forth, alerting each party to the details of the other
side's case, there is much less justification for engaging in satellite litigation merely to
clarify the pleadings. This was emphasised by Lord Woolf MR in the English Court
of Appeal
in McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 at 792-3 as
follows :-
"The need for extensive pleadings including particulars should be reduced by the requirement
that witness statements are now exchanged. In the majority of proceedings identification of
the documents upon which a party relies, together with copies of that party's witness
statements will make the detail of the nature of the case the other side has to meet obvious.
This reduces the need for particulars in order to avoid being taken by surprise. This does not
mean that pleadings are now superfluous. Pleadings are still required to mark out the
parameters of the case that is being advanced by each party. In particular they are still critical
to identify the issues and the extent of the dispute between the parties. What is important is
that the pleadings should make clear the general nature of the case of the pleader. This is true
both under the old rules and the new rules."
It is with these principles in mind that the other possible reforms should be addressed.
Notes
And endorsed by Lord Hope in the Three Rivers case at para 50.
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