Many accomplished American litigators find themselves “separated by a common language” when first exposed to UK legal proceedings, notably including arbitrations. The following is a brief primer to assist those who may well be more strangers in a strange land than they realize. This starts with the pleadings that frame the litigation: typically the Points of Claim, Points of Defence, Reply and, sometimes, a Rejoinder.
To many American-trained lawyers, the UK style may seem frustratingly technical and devoid of a certain element of bombast betraying, they may intuitively feel, a lack of conviction in the position. In short, American lawyers are used to notice pleadings often punctuated by flourishes of advocacy. UK-style pleadings, by contrast, tend to be characterized by distinctly modest, technically detailed and, yes, dry accuracy. Why should the former style yield to the latter, beyond the hackneyed observation “When in Rome …”?
The answer begins with the purpose of pleadings in the UK: to identify the specific issues between the parties, the legal theories in play, the elements of those issues, and the factual allegations which the parties intend (and need) to prove to make good their respective cases. Thus, what is required is more than simply putting the other side’s advocates on notice of the general nature of the dispute such that they can engage in broad-ranging discovery (including third parties) so as not to be unfairly surprised about arguments their adversaries may raise. That said, UK pleadings are not an occasion for advocacy in the absence of evidence. Failure to maintain an appropriate and disciplined balance between sufficient technical detail and excessive hyperbole, in either direction, quite often leads to adverse unintended consequences that may be severe in the extreme.
Reliance on American-style notice pleadings, which often gloss over the fundamental elements required to prevail on the issues truly in dispute, may prove too superficial and, potentially, fatally so by precluding a necessary point on the basis that fair and timely notice was not provided. As a matter of practice, Tribunals tend not to be attracted to these so-called “pleading points”, especially if the objection is late arising, but it can happen, and this author has seen it.
More common, however, and nearly as forensically prejudicial, are extensive requests for Further and Better Particulars (“FBPs”) by the aggrieved party left to scratch its head about the case it needs to meet. Importantly, and though FBPs may read like American interrogatories, they are not. Rather they are polite demands to clarify a case that should have been properly and unambiguously articulated from the beginning. This is inevitably compounded by multiple cycles of FBPs in response to inadequate further pleadings. Tribunals are often frustrated by what appears to be a party that either does not understand its own case, or intends to rely on an element of surprise that cannot be allowed to exist consistent with the obligation to conduct a fair proceeding.
Contrarily, overbroad allegations in UK pleadings (e.g., indulgences in advocacy) can themselves pose entirely avoidable tactical difficulties in the disclosure process that follows. Traditionally, UK proceedings have required every party to provide standard disclosure (subject to privilege, etc.) of all evidence in its possession: (1) on which it intends to rely; (2) which adversely affects its or another party’s case; or (3) which supports another party’s case. The scope of the second prong is particularly sensitive to the pleadings. Although standard disclosure is no longer universal in the UK, the scope of disclosure is defined by the issues raised in the pleadings. Accordingly, if a party has engaged in a free-flowing stream of consciousness in an attempt to persuade the Tribunal, rather than merely setting forth the facts on which its case relies, that party’s disclosure obligations may be gratuitously broader (and more troublesome) than otherwise required. Parties seeking to streamline their disclosures do well to keep their pleadings to those allegations which are truly necessary.
Finally, and although not to be persuaded on the merits (for this, UK Tribunals look to the submissions), they do read and rely upon pleadings for the reasons previously explained. Extravagant allegations about facts that ultimately find no home in the evidence are no more than hollow promises abandoned by the party that made them. They therefore reflect an “evolving” case in search of itself. Such cases tend not to age well, and are seldom received warmly.
In short, advocates for all litigants involved in UK-style matters do their clients a great service by stating what needs to be said in the pleadings — nothing less, and nothing more.
John C. Lenzen, FCIArb