THE ROLE OF LAW IN PLEADINGS

• Citation: (1998) 10 SAcLJ 127
• Published date: 01 December 1998
• Date: 01 December 1998

Introduction

‘No set of rules could have been more carefully devised’. These words, taken from the Report of the Committee on Personal Injuries Litigation, 1968,1 reflect a general consensus on the precision achieved by Order 18 of the English RSC (RSC, 1965), and correspondingly, Order 18 of the Singapore Rules of Court, 1996 (RC, 1996), the Order governing the procedure for pleadings. Yet, there is at least one area which has not always promoted accord among practitioners or consistency on the part of the courts; and that is the status of law in pleadings. The primary function of the pleading process is to ensure, through the parties’ respective allegations and counter-allegations of fact, that they are aware of, and can focus their preparation on, the issues in dispute. The pleading of law may also help in this respect if it clarifies the basis of the claim or defence in relation to the legal principles either party may need to establish at trial. However, as it is the material facts which form the mainstay of the pleading process, matters of law can only have a limited role, and only then, if appropriate. The difficulty lies in defining the extent and nature of that role, particularly in the context of Order 18, rule 11 and its relationship with rules 7 and 8 of that Order.

The rules

Order 18, rules 7 and 8 are the general provisions governing the substantive content of pleadings.2 Rule 7(1) provides:

Subject to this Rule and Rules 10, 11 and 12, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.3

Rule 8 concerns responses to the opposing party’s allegations and applies to all pleadings filed after the statement of claim:

8.—(1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance,

release, any relevant statute of limitation, fraud or any fact showing illegality —

1. (a) which he alleges makes any claim or defence of the opposite party not maintainable;

2. (b) which, if not specifically pleaded, might take the opposite party by surprise; or

3. (c) which raises issues of fact not arising out of the preceding pleading.4

These pleas must be specifically expressed in the defence (including a defence to counterclaim), reply or subsequent pleading.5 As the requirements imposed by rule 7(1) apply to ‘every pleading’, the response pleas contemplated by rule 8(1) must, as in the case of the allegations in the statement of claim, be stated ‘in a summary form of the material facts on which the party pleading relies for his claim or defence’. Evidence is not permitted and ‘the statement must be as brief as the nature of the case admits’.

Order 18, rule 7(1) refers to rules 10, 11 and 12 of that Order, which are specific rules governing the content of pleadings.6 Rule 11 is of direct relevance to the subject-matter of this article. It provides:

A party may by his pleading raise any point of law.

Rule 11 is the only provision which refers to the pleading of law itself. Rules 7 and 8 are concerned with the pleading of material facts which establish the legal principle(s) a party seeks to rely upon to succeed on his claim or defence. Indeed, by providing that ‘every pleading must contain, and contain only, a statement in a summary form of the material facts,’ rule 7(1) prohibits pleas of law.7 That is why the rule 7(1) is made subject to rule 11. Similarly, rule 8(1) requires the party to ‘plead specifically any matter’ which is within the scope of paragraphs (a) to (c) of that rule. This ‘matter’ must be a material fact in accordance with the

mandatory direction in rule 7(1).8 The other rules governing the content of a pleading are likewise concerned with the pleading of material facts9 and particulars.10

Rule 11 is not limited by words of qualification. On a literal construction, a party may plead any point of law if it is appropriate to do so. Accordingly, the injunction in rule 7 that a pleading must contain material facts only is not absolute for it must be read with rule 11. This does not appear to be a comfortable relationship, for it is not clear from the reading of the rules to what extent rule 11 may encroach upon the general prohibition in rule 7(1). Rule 11 gives rise to a number of questions. What is a point of law? May the party express propositions of law in his pleading? If he can raise statutory provisions and other legal authorities, may he incorporate legal argument? To what extent must the legal point be related to the facts? What would be the consequence if he fails to refer to a legal provision which should have been included in his pleading? Rule 11 is not expressed in mandatory terms; yet the omission of a plea concerning law may constitute an infringement of the pleading principle that the parties must notify each other of their claims and defences to avoid surprise. These questions are not hypothetical, for the courts have shown that this is an uncertain area in the pleading process. An attempt will be made to resolve these difficulties by examining the historical background of rule 11 and considering the scope for raising law in pleadings and the significance of such pleas.

Background to Order 18, rule 11

The words of rule 11 first appeared as part of section 307 of the Civil Procedure Code, 1907, which provided:

Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial, provided that, by consent of the parties, or by order of the court or a judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

The section was retained by the Civil Procedure Code, 1926 and reconstituted as Order 26, rule 2(1) and (2) (RSC, 1934).11 This provision

linked the pleading of a point of law with its disposal before, at or after the trial. By providing that ‘any point so raised shall be disposed of …’, the plea was a basis for its disposal by the court. In Independent Automatic Sales Ltd v Knowles & Foster,12 Buckley J, in construing the corresponding Order 25, rule 2 of the English RSC, 1883, accepted that a party who intended to apply for determination of a point of law had to raise it on his pleading.13 However, the requirement of Order 26, rule 2 (RSC, 1934) that a point of law be pleaded before it could be the subject of separate disposal did not affect the court’s entitlement under Order 33, rule 2 (RSC, 1934)14 to order a point of law not raised by the pleadings to be determined before the trial (on the basis that it would partially or entirely resolve the issues in dispute).15 Therefore, up to the time of the RSC, 1934, points of law were normally pleaded pursuant to Order 26, rule 2 (RSC, 1934) for the specific purpose of early resolution in the interest of saving time and costs.

It should be emphasised that Order 26, rules 1—5 (RSC, 1934) and its predecessors (section 326—330 of the Civil Procedure Codes, 1907 and 1926) were specifically concerned with issues of law rather than the general procedure for pleadings. Section 326 of the Civil Procedure Code, 1907 abolished the procedure of ‘demurrer’ which had operated under Ordinance V of 1878.16‘Demurrer’ was a formal process of pleading which involved the parties alleging that the facts pleaded by the other party did not legally justify the claims or defences which he asserted. As the dispute concerned issues of law rather than the facts, the court would summarily determine those issues after hearing argument. Section 326 of the Civil Procedure Code, 1907 was retained in the Civil Procedure Code, 1926, and became Order 26, rule 1 (RSC, 1934). It was entitled: ‘No demurrer shall be allowed’. The remaining provisions (sections 327—330 of the Civil Procedure Codes 1907 and 1926, and later the corresponding provisions in Order 26, rules 2—5 (RSC, 1934) replaced the old system with new procedures. Order 26, rule 2 (RSC, 1934)17 concerned pleas of law which would become the basis of summary disposal. Order 26, rule 3 (RSC,

1934)18 provided that the court, having determined the point of law, could dismiss the action or make other appropriate orders. Order 26, rule 4 (RSC, 1934) concerned the separate process by which a party could apply to strike out a pleading for not disclosing a ‘reasonable cause of action or answer’.19 Finally, Order 26, rule 5 (RSC, 1934) provided that there could be no objection in law to an application for declaratory relief.20

As Order 26 (RSC, 1934) specifically concerned issues of law rather than pleadings in general,21 Order 26, rule 2 (which allowed a party to plead a point of law so that it could be the subject of summary disposal)22 probably did not intend that such a plea be made for the purpose of clarifying the issues in dispute and giving appropriate notice to the other party for the purpose of the pleading process. Order 26, rule 2 (RSC, 1934) may be contrasted to the current Order 18, rule 11, which simply allows a party to raise a point of law. Order 18 governs pleadings generally and for the most part is concerned with the content and manner of pleading. As rule 11 does not attach a purpose or condition to the plea, it may be assumed that there are advantages to be gained from pleading a point of law other than its summary disposal. Indeed, Order 33, rule 2 (RC), by providing that the court may order the trial of preliminary issues of law (or fact) ‘whether raised by the pleadings or otherwise’, makes it abundantly clear that a point of law not pleaded does not bar its consideration by the court before, at or after the trial. What then is the significance of Order 18, rule...