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The limits of a reply

A claimant who receives a defence is not required to take any further step in relation to the statements of case. It can consider the pleadings closed and seek to move on to directions, disclosure, evidence and ultimately trial.

Nevertheless, sometimes the claimant will want to react to or deal with the allegations made in the defence. In particular, the claimant or its advisors may think that there is some additional or alternative way of putting the claim which is not defeated by the pleaded defence. In principle, the Pre-Action Protocol process should mean that by the time proceedings are issued, the claimant knows the key elements of the defence it will have to meet, but that will not always be the case in practice.

It is tempting, in that situation, to plead the additional or alternative way of putting the claim in a reply. Key advantages of a reply, of course, include that it may be filed and served as of right and does not require the consent of the other parties or the permission of the court, and that it does not carry the usual costs consequences of amendment.

Martlet Homes Ltd v Mullaley & Co Ltd

Earlier this year, in Martlet Homes Ltd v Mulalley & Co Ltd, Pepperall J gave guidance on the matters that can usefully be pleaded in a reply, and those which require amendment.

The facts of Martlet were, briefly, as follows.

  • The claimant had engaged the defendant to carry out refurbishment works on five high-rise towers, including design and installation of external cladding.
  • The particulars of claim alleged various defects in the cladding including defective fire barriers and inadequate fixing.
  • The defence pleaded that the cladding boards used were combustible, such that (following the Grenfell Tower tragedy) the claimant was in any event required to replace the cladding, and so there was no causal link between any breaches of contract by the defendant and the remedial works undertaken by the claimant.
  • The reply joined issue on the causation case, but also put forward an “alternative case” that the use of combustible cladding was itself in any event a breach of contract entitling the claimant to recover.

The court struck out the “alternative case” on the basis that it was not properly raised by way of reply (but gave permission for a post-limitation amendment of the particulars of claim). In doing so, it considered Practice Direction 16, paragraph 9.2:

“A subsequent statement of case must not contradict or be inconsistent with an earlier one; for example, a reply to a defence must not bring in a new claim. Where new matters have come to light the appropriate course may be to seek the court’s permission to amend the statement of case.”

The claimant argued that the new claim was not “inconsistent with” or a contradiction of the particulars of claim. Nevertheless, the court came to:

“…the clear conclusion that any ground of claim must be pleaded in the Particulars of Claim. New claims must be added by amending the Particulars of Claim and cannot simply be pleaded by way of Reply.”

Although it was not cited on this point, it is also worth noting that in Herbert v Vaughan, Goff J held that the word “inconsistent” in RSC Order 18, rule 10 (the precursor to PD16, paragraph 9.2) does not mean “mutually exclusive” but merely “new” or “different”.

The claimant also argued that such an approach deprived a reply of all purpose, since it is inevitable that a reply will contain new lines of argument and additional allegations not found in the particulars of claim. The court disagreed, pointing out that a reply can usefully:

  • Refute a ground of defence, such as limitation or an exemption clause.
  • Plead that the defendant is estopped from pursuing a particular argument or allegation.
  • Admit facts alleged in the defence, thereby saving the time and cost of proving them, while explaining why such facts do not defeat the claim.
  • Deny facts alleged in the defence, giving reasons why the allegation must be wrong.

It was emphasised that the reply is not intended to be a “second bite of the cherry”.

These principles are not new. The headnote of Williamson v London and North Western Railway Company states:

“A reply must not set up new claims.”

Likewise, the examples of matters that can usefully and properly be included in the reply are consistent with Hall V-C’s expression of the proper ambit of a reply in argument in Williamson (which Goff J helpfully set out in Herbert v Vaughan):

“Anything is legitimate which adds to, qualifies, or explains the allegations of the defence, unless it is shewn to be wholly irrelevant.”

Therefore, although Martlet does not as such say anything novel, it is a clear and useful restatement of longstanding principles of pleading, and an illustration of the approach that the courts today will take to breach of those principles.

Two related points

There are two more points arising out of Martlet that are worth bearing in mind.

The first is the claimant’s submission (based on Renton Gibbs & Co Ltd v Neville & Co and Herbert v Vaughan), that a new claim could be pleaded in a reply where it arose out of a line of defence. The court held that those cases allow a claimant to set up in a reply matters that could have been a new claim as an answer to a defence – as a shield, rather than as a sword – but do not allow a new claim to be positively advanced simply on the basis that it arises out of a line of argument taken in the defence. It is important to draw the distinction clearly.

The second is a question: what is the effect where, in breach of the above principles, the claimant does in fact plead a (purported) new claim in the reply? Is it a conceptual impossibility and so a nullity? Or is it a breach of the rules and principles of pleading (and so liable to be struck out) but nonetheless effective?

The answer is likely to affect the outcome if a limitation period expires following the reply, as well as the question of whether the court has jurisdiction in an appropriate case to refuse strike-out and instead give permission for a rejoinder under CPR 15.9.

There is a tension between the decision of the Court of Appeal in Maridive & Oil Services (SAE) v CNA Insurance Company (Europe) Ltd (where Mance LJ said that such a claim is not a nullity) and the later remarks of Briggs LJ in D&G Cars Ltd v Essex Police Authority (saying that material in a reply can never amount to a new claim). It seems that the answer here is probably that Maridrive is binding below the Supreme Court, and Briggs LJ’s remarks were obiter and/or per incuriam, but the issue does not seem to have arisen since D&G Cars and was not addressed in Martlet.

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