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(d)
Pleading law
The RHC are permissive as to the raising of points of law in the pleadings.
This has
not changed under the CPR.
However, certain respondents to the consultation have
suggested that points of law should not be permitted to appear in the pleadings or that
such references should in some way be limited.
The Working Party's view is that the current position should remain unchanged. In
some cases, the pleading of a point of law usefully makes a party's case clearer to the
other side. Barclays Bank Plc v Boulter [1999] 1 WLR 1919 at 1923, is an example of
such a case. The defendant wished to contend that a bank had constructive notice of
alleged undue influence and misrepresentation but, while having pleaded the material
facts, had not expressly alleged such notice. Lord Hoffmann pointed to the pragmatic
virtues of doing so :-
"...... the question of whether notice of certain facts amounted to constructive notice of other
facts is a question of law. If, therefore, the pleading alleged all the facts which would, as a
matter of law, give rise to constructive notice on the part of the bank of the alleged undue
influence and misrepresentation, that should technically be enough. It would enable Mrs
Boulter to argue the legal consequences of the facts she had alleged or proved: see
Independent Automatic Sales Ltd v Knowles & Foster [1962] 1 WLR. 974, 981. However,
as Buckley J said in that case, this is ‘not . . . a convenient course normally to be followed'
because it may result in the question of law taking the other side by surprise. Mr Coney
would have avoided a lot of trouble if he had taken a less austere approach to the rules of
pleading and said expressly that he was alleging constructive notice on the part of the bank."
In such circumstances, a reference to the legal point helpfully conveys the nature of
the party's case. On the other hand, while points of law can be raised in a pleading (as
O 18 r 11 states), it is not permitted to "plead law" as such.
In other words, the
pleading should not be turned into a legal submission or skeleton argument.
Notes
APAA.
HKCP 18/7/4.
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