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(c)
Annexing documents and identifying witnesses in pleadings
In England and Wales, the relevant practice direction provides that in claims based on
written agreements, a copy of the contract or documents constituting the agreement
should be attached to the particulars of claim.
It also permits a party to attach to his
statement of case "any document which he considers is necessary to his claim or
defence".
These ideas did not find favour with some respondents to the consultation.
Nor does
the Working Party consider it desirable to introduce such a rule.
The rule presently
applicable
requires parties to state briefly, where relevant, "the effect of any
document or the purport of any conversation" referred to in the pleading. It
discourages setting out the precise words of the document or conversation "except in
so far as those words are themselves material".
In our view, the present rule encourages the pleading to convey a more focused
account of the nature of each party's case. To allow contracts and other documents to
be annexed to pleadings could well lead to slackness and less precision. Pleaders may
seek to rely on such documents to plug gaps in the pleadings or they may put forward
the undifferentiated terms of the agreement rather than highlighting the specific
aspects of the contract or other document relied on. The other party may be left to
hunt for the significance of such documents and may have to incur the trouble and
expense of seeking further and better particulars.
If a party served with a pleading which refers to a written agreement or other
document so desires, he can, under the present rules, obtain inspection pursuant to O
Notes
16PD7.3.
16PD13.3(3).
Including the Bar Association and a set of barristers' chambers. The Law Society thought
documents should be attached if they were not too bulky.
Without prejudice to existing contrary procedures such as those adopted in the Personal Injuries list
requiring particular documents (eg, medical reports) to be filed with the pleadings.
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