The most important matter dealt with by the rules is the mode of
pleading. The authors of the Judicature Act had before them two
systems of pleading, both of which were open to criticism. The common
law pleadings (it was said) did not state the facts on which the
pleader relied, but only the legal aspect of the facts or the
inferences from them, while the chancery pleadings were lengthy,
tedious and to a large extent irrelevant and useless. There was some
exaggeration in both statements. In pursuing the fusion of law and
equity which was the dominant legal idea of law reformers of that
period, the framers of the first set of rules devised a system which
they thought would meet the defects of both systems, and be
appropriate for both the common-law and the chancery divisions. In a
normal case, the plaintiff delivered his statement of claim, in which
he was to set forth concisely the facts on which he relied, and the
relief which he asked. The defendant then delivered his statement of
defence, in which he was to say whether he admitted or denied the
plaintiff's facts (every averment not traversed being taken to be
admitted), and any additional facts and legal defences on which he
relied. The plaintiff might then reply, and the defendant rejoin, and
so on until the pleaders had exhausted themselves. This system of
pleading was not a bad one if accompanied by the right of either party
to demur to his opponent's pleading, i.e. to say, "admitting all your
averments of fact to be true, you still have no cause of action," or
"defence" (as the case may be). It may be, however, that the authors
of the new system were too intent on uniformity when they abolished
the common-law pleading, which, shorn of its abuses (as it had been by
the Common Law Procedure Acts), was an admirable instrument for
defining the issue between the parties though unsuited for the more
complicated cases which are tried in chancery, and it might possibly
have been better to try the new system in the first instance in the
chancery division only. It should be added that the rules contain
provisions for actions being tried without pleadings if the defendant
does not require a statement of claim, and for the plaintiff in an
action of debt obtaining immediate judgment unless the defendant gets
leave to defend. In the chancery division there are of course no
pleadings in those matters which by the rules can be disposed of by
summons in chambers instead of by ordinary suit as formerly.
Public-domain text, read in full here on John Shaqi.
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