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Hud- Judgment

out both the contracts at length; but no breach of the first contract was alleged. There were also a number of allegations in the claim that the defendants had refused to fence, that they had interfered with the work, that the plaintiff was apprehensive of an arch falling, and that his work was exposed to the weather, but none of these things were assigned by the plaintiff as breaches by the defendants of either of the contracts. dleston, B., in giving judgment, said :“The statement of account of Huddlebetween the parties shows that the above claim arises out of the ston, B. second contract. It would have been sufficient to have stated that there was a contract made in May, 1874, between the plaintiff and the defendant for certain works; that on that contract certain disputes arose; and that another contract was then entered into in January, 1875, by which it was agreed that the plaintiff should complete the works in a good and business-like manner. I would undertake to put this statement of claim which now occupies five sheets, which is equal to fifty folios, into half a sheet, which would be equal to about four folios. The first principle of pleading under the Judicature Acts is to aroid prolixity." Watson v. Rodwell (45 L. J. Ch. 744) was an action insti. Watson, v.

Rodwell. tuted by a lady against her solicitor to obtain an account of moneys received by him on her behalf and particulars of certain securities executed by her in his favour, and for damages for his alleged misconduct in managing her affairs. The statement of claim gave a lengthy account of the transactions in which the defendant had been engaged for the plaintiff, alleging various acts of misconduct, and stating in detail a large number of payments made by the defendant on behalf of the plaintiff, and alleging that they were improperly made. Paragraph 51 was as follows : “ It has been the habit and practice of the defendant to impose upon the plaintiff's inexperience and credulity by an affectation or pretence of indignation when any inquiries were made or questions asked of him touching the affairs of the testator, and whenever such inquiries were made the defendant has diverted the same by simulation of being offended at doubts of his honour, and by profuse assurances that if everything were left in his hands it would be perfectly right." Malins, V.-C., before whom the case first came on an application to have the statement of claim amended under

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Order XXVII.r. 1 as embarrassing, allowed all the claim to stand except the paragraph above set forth, which was struck out. On appeal, the Court of Appeal, though they thought other parts of the claim unnecessarily prolix, refused to interfere with the ViceChancellor's discretion. Mellish, L. J., remarked: "In an action of this sort against a solicitor for negligence, the facts must be to a certain extent stated, but there should be no rhetoric."

Davy Brothers v. Garrett (38 L. T. N. S. 77) is an instructive case on this head. It is impossible within reasonable limits to give any summary of the statement of claim,

which occupied forty-three printed pages. The reader is Davy v. referred to the Law Times' report, where an epitome of it Garret.

extending over five or six columns is given. Vice-Chancellor Hall, who first heard an application to have the claim struck out under Order XXVII. r. 1 as embarrassing, although he thought it prolix, refused the application; but on appeal the Court of Appeal ordered it all to be struck out, with leave to the plaintiff to deliver an amended statement of claim.

In giving judgment, James, L. J., said he was startled to see a document of this kind put forward under the new system of procedure . . . . Nothing could be more embarrassing than

a quantity of statements with which the defendant did not Judgment know what to do. A number of facts, many of which appeared of James, L. J.

to have no connection with the defendants, were stated at great length, and it was impossible for the defendant, without knowing the inferences intended to be drawn from such facts, to know what he was to do with them. Was he to deny or admit them? If he admitted them, how was he to know that he might not be prejudiced in some way by such admission at the hearing of the action? This was an embarrassment to which no one had a right to expose his adversary in this Court. Under the new practice established by the Judicature Acts, it was essential that the statement of claim should be as brief as the nature of the case would permit, and that all irrelevant matter should be excluded. In this case many of the statements introduced were quite useless, and those which were useful were not only unnecessarily long, but were mixed and confused to such an extent that it was almost impossible for the defendants or any one else to say what was the precise nature of the case they had to meet. First there was a statement showing how

Messrs. Froom & Co. became bankrupts in Russia, followed by a balance-sheet. It was stated that this balance-sheet was set out in order that it might be contrasted with some statements in a letter subsequently set out, and that some conclusion could be drawn from such contrast. How any wrong was intended to be made out to have been done by the defendants or any of them did not appear, nor did the balance-sheet appear to have any connection with the relief claimed. Then the 9th paragraph contained an allegation that M. Lischine was Froom's legal adviser on the matters therein mentioned. That was a James,

L. J. conperfectly innocent transaction; but on being asked why it was inserted, the plaintiff's counsel said that in another paragraph the same gentleman was stated to be employed by the defendants as their legal adviser, and that a case of fraud and collusion was to be inferred from the two together. But how were the defendants to know what fraud and collusion were intended ? Then there was a statement of the result of a meeting of creditors at St. Petersburg, and the powers and duties of the Russian administrators. Why was that inserted ? Not for anything contained in the account of such proceedings, but for something not contained in them; that is, because they did not authorise the administrator to sell. The defendants might well ask what they had to do with that. Proceeding further, his Lordship continued, under the new system it was positively forbidden to plead matters of evidence. The object of the new provisions was to get rid of the old charges and countercharges. It was entirely premature to deal with matters of evidence until it was ascertained what were the definite issues raised in the action. The statement of claim ought to state the facts constituting the wrong of which complaint was made, and the damage resulting from such wrong; but no evidence ought to be introduced into the pleadings. What had the defendants to do with all these letters which passed between some of the defendants and some other persons who were neither the plaintiff nor in the same category with the defendants, and of which the claim was full ?

Baggallay, L. J., said prolixity of pleading might be of two Bagallay, kinds : first, the prolixity might consist in necessary facts being L. J. stated at undue length ; and, secondly, it might consist in the statement of unnecessary facts. The first kind of prolixity was

not so objectionable, as it was not calculated to embarrass the defendant, and it might be remedied by the Court under Order XIX. r. 2, which empowers the Court to order the costs occasioned by unnecessary prolixity to be borne by the party chargeable with the same. The second kind of prolixity was more serious, and might embarrass the defendant by rendering it difficult or impossible for him to know how to deal with the

unnecessary facts. Thesiger, Thesiger, L. J., said that the statement of claim must be L. J.

struck out in this case as offending against the rules, both by undue prolixity and by setting out evidence instead of facts. Seven pages of the claim were devoted to the administration of Froom & Co.'s business in Russia, and two pages to the powers. of the administrator by the Russian law. Foreign law should be pleaded like any other matter of fact. The particular proposition of Russian law should have been stated, that the defendant might meet it, and all these documents on the subject should not have been set out. The resolutions of the creditors. were perhaps rightly set out, but the statement contained thirty pages of the most vague and uncertain allegations. It had been argued that under Order XXVII. r. 1, the defendant must prove that the prolixity complained of was embarrassing. In

his lordship's opinion prolixity of this kind was necessarily emGreat pro- barrassing. Prolixity standing by itself, when carried to an ground for extreme degree, would be a sufficient ground for striking out striking the pleading, still more so when it was coupled with statements out apart from em

of evidence; and in the present case the statements of fact were barrass. so mixed up with the statements of evidence that it was imment.

possible for the defendants to know what was the case they had to meet. But the statement of claim was embarrassing on another ground. Plaintiffs' counsel said at the bar that they intended to shape their case in a triple alternative form. Alternative cases should not be mixed up together, but should be classed under separate headings, and alternative claims to relief should be clearly stated, as in Appendix C. Form 5, in the first schedule to the Judicature Act, 1875. It was stated at the bar that the plaintiffs alleged a case of gross fraud against the defendants. Now the statement of claim contained no distinct charge of fraud; and if one thing was established more clearly than another by the practice of the old common law courts, it

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was that fraud must be distinctly alleged and as distinctly proved. The Court would not infer fraud from a mere statement of facts from which, under certain collateral circumstances, fraud might be inferred. It had been urged that this was not the practice of the old Court of Chancery, but if not, it was a matter for rejoicing that a system of pleading was now in force which, in that respect, was more in accordance with the old common law than with the Chancery procedure.

Any undue prolixity in a pleading may be dealt with in The effects one of two ways. 1. Under Order XIX. r. 2, the Court shall, in

lixity. adjusting the costs of the action, inquire at the instance of any party into any unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with it. 2. Or where the prolixity is greater, and is such as really to embarrass the other party in drawing his pleading in reply, he may apply under Order XXVII. r. 1, to have the whole pleading struck out or amended. Order XXVII. r. 1 is to the following effect : “The Court or a judge may at any stage of the proceedings allow either party to alter his statement of claim or defence or reply, or may order to be struck out or amended any matter in such statements respectively which may he scandalous, or which may tend to prejudice, embarrass or delay the fair trial of the action, and all such amendments shall be made as may be necessary for the purpose of determining the real question or questions in controversy between the parties." The case last quoted (Davy v. Garrett) is one where, because of prolixity, the whole statement of claim was struck out as embarrassing, and the remarks of Baggallay and Thesiger, L. JJ., as to what prolixity will amount to an embarrassment within this rule, are especially worthy of attention. In the cases of Golding v. Wharton Saltworks Company (L. R. 1 Q. B. D. 374), and Watson y. Rodwell (L. R. 3 Ch. D. 380), it was laid down by the Court of Appeal that striking out pleadings under Order Though XXVII. r. 1, was a matter of discretion, and that except in

Appeal very extreme cases, or where the judge had adopted a wrong averse to principle, the Court of Appeal would not interfere with his dis

decisions cretion, but the later cases, and especially Davy v. Garrett, on interloshow that the Court of Appeal, while as much as possible dis- cutory

matters, it couraging contests on interlocutory matters, will take care that will ala party shall not be embarrassed by improper pleading, and that ways dis

courage

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