Rules for the correct drafting of pleadings and the consequences of violating them

According to established case law of the Supreme Court, pleadings constitute the foundation of the trial as they are what determine its parameters and constitute the exclusive means for determining the issues in dispute (see Athanasiou v. Reana Manufacturing & Trading Co Ltd et al. 2001, 1 (C) A.A.D).

The precise determination of the issues in dispute is directly related to the adversarial system of trial, which applies in the Cypriot legal system and is a consequence of natural justice that requires the safeguarding of the right of each party to a substantive opportunity to respond to the allegations of his opponent (see Papageorgiou v. Louis Clappa 1991 1 A.A.D. 24). According to the adversarial system, the parties, through their pleadings, draw the tracks of the railway line on which the train of the adversarial litigation of the parties will roll as the Court of First Instance cannot extend itself to the resolution of issues that are not included in the Pleadings (see Exalco SA v. Aluminex Ltd et al. (2007 1 A.A.D. 991).

However, for the sake of the proper conduct of the legal proceedings, the content of the pleadings cannot be arbitrary. Therefore, rule 4 of Order 19 of the Rules of Civil Procedure clearly and imperatively sets out the rules for drafting pleadings. Two of the most basic rules according to it are that the Pleadings should contain in summary form the facts relevant to the dispute, giving the essence of the case in question (material facts) and that they should not contain testimony. The interpretation of the term relevant fact always depends on the specific circumstances of each case. According to the English decision Bruce v. Odhams Press Ltd (1936) 1 All ER 294, the word “material” which is used in the corresponding English rule means what is absolutely necessary for the purpose of formulating a complete statement of claim.

The consequences of violating these rules of drafting pleadings are provided for in Article 26 of Order 19 of the Rules of Civil Procedure, which states that “The Court may at any stage of the proceedings order the deletion or amendment of any matter in any endorsement or pleading which may be considered unnecessary or scandalous or which would tend to prejudice,

“The delay complicates the entire trial of the action.” By virtue of D.19 I.26, in the event that the Plaintiff or the Defendant considers that there is a violation of the aforementioned rules for drafting pleadings by the opposing party, then he has the possibility of registering an Application for deletion or amendment of paragraphs of the Defense or the Statement of Claim respectively. However, the simple mention that the specific words, sentences or paragraphs whose deletion is requested are unnecessary, scandalous or tend to affect or disturb or delay the fair conduct of the trial, is not sufficient for the success of such a type of Application as the Applicant must adequately justify and record the reason why he considers that the pleading of his opposing party suffers from what he accuses him of. The passage in Bullen and Leake and Jacob’s Precedents of Pleadings, pp. 141 and 142, which states that: “The applications should specify precisely what order is being sought, eg to strike out, or to stay or dismiss the action or to ender judgment and precisely what is being attacked and on what grounds”. As regards the time for submitting an Application of the nature under consideration, D.19, I.26 does not set any time limits, on the contrary it expressly provides that an Order of Removal may be issued at any stage of the proceedings. However, it is preferable that the Application be submitted to the Court without delay and as a rule before the closure of the pleadings, as otherwise the Court may refuse to positively exercise the discretion it has on the matter.

However, of particular importance for exercising the remedy provided for in D.19, I.26 and at the same time for avoiding its violation, is its understanding. According to the book Annual Practice, 1958, pp.477-479, the phrase “Tend to prejudice, embarrass or delay the fair trial of the action” has been liberally interpreted by the Courts, so that simple verbiage does not cause embarrassment, as long as there is no violation of the rules of drafting the case file. A clear statement of when a Pleading can be characterized as embarrassing is stated on page 147 of Bullen and Leake and Jacob’s Precedents of Pleadings where it is stated that “Accordingly a Pleading is embarrassing which is ambiguous or unintelligible or which states immaterial matter and so raises irrelevant issues which may involve expense, trouble and delay and thus will prejudice the fair trial of the action, and so is a pleading which contains irrelevant or unnecessary allegations.”

In addition to irrelevant and unnecessary allegations, the presentation of testimony in a Pleading is equally unacceptable. A reference to this issue is made with

strict and clear manner in the case law and specifically in Merchants’ and Manufacturers’ Insurance Co. v. Davies (1938) 1 KB 196, 207 where it is stated that “testimony by which any of the disputed matters can be proven has no place in a Pleading and if it intrudes it must be struck out”.

In a recent decision issued by the Nicosia District Court following an Application by our office for the deletion of paragraphs of the Claimant’s Statement of Claim, the Court ruled that there was a violation of the rules for drafting the Statement of Claim as it contained testimony and allegations unrelated to the issues in dispute and therefore ordered the deletion of the relevant paragraphs. The remedy provided by D.19, I.27 can be characterized as a drastic measure as it essentially allows the Court to intervene in the pleadings of both parties, therefore as has been established by numerous decisions of the Supreme Court, it must be exercised with caution and sparingly and where this is deemed necessary. The most apt sentence describing the power of D.19, I.27 is found in the decision Lavar Shipping Co Ltd & Another v. Souras Bros Ltd & Another (1972) 4 JSC where the Court states: “Through the Order 19, Rule 26 is wide, its operation is limited”.