The Principles of Pleading and Practice in Civil Actions in the High Court of Justice

ODGERS’

PRINCIPLES OF

PLEADING AND PRACTICE

IN

CIVIL ACTIONS

IN THE

HIGH COURT OF JUSTICE

THIRTEENTH EDITION

BY

W. BLAKE ODGERS, K.C., M.A.,

OF BALLIOL COLLEGE, OXFORD, THE MIDDLE TEMPLE, AND

THE WESTERN CIRCUIT, METROPOLITAN MAGISTRATE

AND

LEWIS FREDERICK STURGE,

OF THE INNER TEMPLE, AND THE MIDLAND CIRCUIT,

BARRISTER-AT-LAW

PREFACE

TO THE THIRTEENTH EDITION

THIS work has now reached its fifty-fifth year—a remarkable achievement when one remembers that the practice of the Courts, when studied in the abstract and without the stimulus of actual litigation on hand, is a very tedious subject. It is a great tribute to the author’s gaiety of spirit that he was able not only to instruct, but also upon occasions to amuse, his readers. We have gratefully retained those passages that reveal his lightness of touch, but we must confess that we have been unable to reproduce it when dealing with such matters as a garnishee order nisi or a further and better affidavit of documents.

The major alteration in this edition is the re-writing of the first chapter. This was, in our humble opinion, necessary because the old Chapter I, as it were, lured the reader into the wood and gave him a close-up view of the trees in it, without first giving him some idea of the shape of the wood as a whole. We have also re-arranged much of the matter that follows, with a view to greater clarity. Important procedural steps, which were mentioned incidentally in the chapters on pleading, are now introduced and explained, we hope, in their logical sequence.

During the War—as one would expect in this country—the work of our Courts was carried on without interruption, though hardly without interference, by enemy action. We have duly noted those decisions of the Courts and those alterations in the Rules which appear to have affected our systems of practice in any permanent degree; but we have omitted all reference to the emergency legislation caused by the War. If any of it survives in time of peace, it must be dealt with in the next edition.

In order to save space—more valuable than ever in these days—we have had to restrict the number of case references in the body of the book. Those who desire further references will, we hope, find the ones they need in the Table of Cases, where the dates of all cases are set out, whether they form part of the official reference or not.

We desire to record our indebtedness to Mr. Anthony Gordon of the Middle Temple for his able assistance in the preparation of this edition, which we trust will assist both the student and the junior practitioner in his struggle to master the essentials of so difficult a subject as the law and practice of our Courts.

W. B. O.

L. F. S.  

PREFACE

TO THE FIRST EDITION

THE system of pleading introduced by the Judicature Acts is in theory the best and wisest, and indeed the only sensible, system of pleading in civil actions. Each party in turn is required to state the material facts on which he relies; he must also deal specifically with the facts alleged by his opponent, admitting or denying each of them in detail; and thus the matters really in dispute are speedily ascertained and defined. Some such preliminary process is essential before the trial.

How is it, then, that it is the fashion to decry our modern pleadings, to treat them as waste-paper, and to deplore the less of the ancient method with its counts and pleas known by fantastic names, half Latin and half Norman-French? There are many reasons why the new system has not yet met with the success which it deserves. It has hitherto been worked mainly by men educated under the former practice. The modern system has never been so thoroughly taught to the younger generation of pleaders. Moreover, the reform was not, in one or two instances, sufficiently thorough. Some antiquated fragments of the old procedure remain (such as the plea of Not Guilty by Statute) which destroy the symmetry of the modern rules. There is yet another reason why our present system of pleading does not work so well as it should. Each party in turn ought to admit clearly or to deny expressly each fact alleged by his opponent. But counsel cannot do this, unless he is fully instructed as to the actual facts. The solicitor cannot fully instruct counsel as to the facts without thoroughly getting up the case; and the taxing master always discourages his doing so at this stage. The amount allowed for Instructions for Defence and Reply is wholly inadequate to recompense the solicitor for the time and labour involved in properly instructing counsel how to plead. Hence admissions which ought to be made are not made.

It is in the hope of removing one cause of this want of success that I have written this Book on the principles of our present system of pleading. I have embodied in it notes made from time to time for the use of my own pupils. The rules of law are stated in large type: explanations, historical matter, and practical hints are given in smaller type, but larger than that used for the Illustrations. These have often been drawn from the older reports. It is to the sixteenth and seventeenth centuries that we must turn for a clear exposition of the rules of pleading at common law; and it was only in those days that the rules of pleading were rigorously and inflexibly enforced. Now, our regard for the merits overrides our respect for nice questions of pleading, though such questions still largely affect costs. But while the old law is freely referred to, all relevant decisions since 1875 will be found cited under their appropriate headings.

I am indebted to my friend and former pupil, Mr. M. STEWART PRITCHARD, of the Inner Temple, for the full and convenient Index which he has prepared, and also for his kindness in revising the proof sheets.

W. B. O.

TABLE OF CONTENTS

Preface to the Thirteenth Edition

Preface to the First Edition

Table of Cases

Table of Statutes

Table of Rules and Orders

CHAPTER I

AN INTRODUCTORY SURVEY

The Supreme Court

An Action in the King’s Bench Division

The Writ

Issuing the Writ

Service of the Writ

Entering an Appearance

Default of Appearance

Summary Judgment

Pleadings

Summons for Directions

Discovery

Trial

Execution

Appeal

CHAPTER II

MATTERS TO BE CONSIDERED BEFORE WRIT

Parties

To Actions of Contract

of Tort

for the Recovery of Land

Classes of Persons

Joinder of Causes of Action

1. Same Plaintiffs: same Defendant

2. Different Plaintiffs: same Defendant

3. Same Plaintiff: different Defendants

  (i) Claims in the Alternative

 (ii) Joint and Several Claims

(iii) Separate Claims

4. Different Plaintiffs: different Defendants

Jurisdiction of the High Court of Justice

CHAPTER III

INDORSEMENT ON WRIT

General Indorsement

Indorsement for an Account

Special Indorsement

Advantages of

Must give full Particulars

Claim of Interest in

CHAPTER IV

SERVICE, APPEARANCE, ETC.

Service

Appearance

Default of Appearance

Setting aside judgment in

CHAPTER V

PROCEDURE UNDER ORDER XIV

Plaintiff’s Affidavit

Defendant showing Cause

Amending the Indorsement

Costs of unnecessary Application

CHAPTER VI

PLEADINGS

The Function of Pleadings

History of Pleading

When Pleadings will be dispensed with

Modern Pleadings

Time for Pleading

CHAPTER VII

MATERIAL FACTS

Fundamental Rule

Pleadings must state Facts and not Law

Ambiguity of former System of Pleading

Only Material Facts must be stated

All Material Facts must be stated

Do not leap before you come to the Stile

Pleading Matter of Law

Statutory Claims, etc.

Conditions Precedent

Matters affecting Damages

Immaterial Facts

Pleading must state Facts and not Evidence

How to plead Material Facts

Be clear

Be brief

CHAPTER VIII

CERTAINTY

Degree of Certainty required

Certainty of Time

Certainty of Place

Certainty of Title

Pleading Authority

Charges of Misconduct

Uncertainty

CHAPTER IX

ANSWERING YOUR OPPONENT’S PLEADING

Different Ways of Answering Opponent’s Pleading

Traverses

Facts not denied are admitted

Denials must be specific

Denials must not be evasive

Dangers of a literal traverse

Negative pregnant

Matters in Confession and Avoidance

Objections in Point of Law

CHAPTER X

ATTACKING YOUR OPPONENT’S PLEADING

Applications at Chambers

To strike out Opponent’s Pleading

Objection in Point of Law

To amend Opponent’s Pleading

For Particulars

To amend your own Pleading

CHAPTER XI

STATEMENT OF CLAIM

Old Forms of Action

Parties

Joinder of Causes of Action

Statement of Claim in Tort

Statement of Claim in Contract

Allegation of Breach

Damages

The Claim for Relief

Account stated

Action on a Bond

Replevin

CHAPTER XII

DEFENCE

Consideration before Drafting Defence

Denials must be specific

Pleading to Particulars

Do not plead to Damages

Plea of Possession

Special Defences

Matter arising since Writ

Third Parties

Severing Defences

CHAPTER XIII

SET-OFF AND COUNTERCLAIM

Set-off

Counterclaim

How far a Counterclaim is an Independent Action

Costs of Set-off and Counterclaim

CHAPTER XIV

REPLY, ETC.

Delivery of Reply

Joinder of Issue

Departure

Defence to Counterclaim

Rejoinder, etc.

CHAPTER XV

WITHDRAWING OR SETTLING AN ACTION

Discontinuance

Withdrawal of Defence

Payment into Court

CHAPTER XVI

SUMMONS FOR DIRECTIONS

Matters dealt with on the Summons

Place and Time of Trial

Mode of Trial

Notice of and Entry for Trial

Consolidation of Actions

CHAPTER XVII

DISCOVERY OF DOCUMENTS

Inspection of a particular Document

General Discovery

Affidavit of Documents

Claim of Privilege

Further and better Affidavit

Production and Inspection

CHAPTER XVIII

INTERROGATORIES

Object of interrogating

What Interrogatories are admissible

Answers to Interrogatories

Objecting to Answer

Further and better Answers

Default in making Discovery

Notice to Admit Facts

CHAPTER XIX

ADVICE ON EVIDENCE

Prior Considerations

Burden of Proof

Matters which need not be proved

Witnesses

Commission to examine before Trial

Documentary Evidence

Copies

Evidence in Aggravation or Mitigation of Damages

Mode and Place of Trial

CHAPTER XX

TRIAL

Right to begin

Opening the Case

Examination in Chief

Leading Questions

Hostile Witness

Witness Refreshing his Memory

Cross-Examination

Questions which the Witness may refuse to Answer

Re-examination

Documents

Proof of Handwriting

Letters without prejudice

State documents

Secondary evidence of documents

Rebutting evidence

Nonsuit

Settlement

Verdict

Judgment

CHAPTER XXI

APPEALS

Jurisdiction of Court of Appeal

Interlocutory Appeals

Notice of Motion

Questions of law and of fact

New Trial

Appeal as to costs

Appeal to the House of Lords

CHAPTER XXII

EXECUTION AND ENFORCEMENT OF JUDGMENTS

Execution

Fi. fa.

Elegit

Equitable Execution

Attachment of Debts

Charging Order

Writs of Possession and Delivery

Writ of Sequestration

Bankruptcy Notice

Judgment Summons

CHAPTER XXIII

COSTS

Judge’s Discretion

Where the Action could have been commenced in the County Court

Special costs

Costs of separate issues

Payment into Court

Married Women

Several plaintiffs or defendants

Costs at Judge’s Chambers

Costs in the Court of Appeal

APPENDICES

Rules particularly affecting Pleadings

Precedents

INDEX

TABLE OF CASES