For all those who have watched the Olympics over the past couple weeks, you would have heard the commentators talk about what kind of ‘start‘ the athletes got ‘out of the blocks‘. Its important to have a good start as it effects the execution of the whole race. Interestingly, every athletes foot position on the blocks is a little different, unique.
I think a runners start is analogous to a lawyer preparing a Statement of Claim (‘SOC‘). A well pleaded SOC (defined in Schedule 11, definitions UCPR i.e. ‘pleading’) can help to get a ‘good start‘ in med neg proceedings. If its not drafted in a way that puts your clients case in the most persuasive way, it may, amongst other things, add costs to your clients case, be struck out or dismissed. What are some basic principles that drafters of SOC need to keep in mind when initiating proceedings in medical negligence? How is P/N 5 – Common Law – General Case Management, useful to consider at the outset of proceedings?
I lectured Civil (and Criminal) Practice and Procedure at Sydney University (JD) for three years and my personal opinion is that they are the most boring subjects to teach and listen to (I have vivid memories from the period, when I studied law), so talking about practice and procedure is only due to me viewing many SOC’s, as I draft and junior for SC’s, draft for senior barristers and also settle solicitor’s draft SOC and all of them have their own unique ‘foot position’ on the blocks when starting proceedings. They are all varied, which is understandable, its a personal view of what should be included, form & style. So as to get a handle on how to draft effectively, it would assist if we knew the function and purpose of pleadings;
The function of pleadings is to, amongst other things:
- identify the issues, the resolution of which will determine the outcome of the proceedings
- limits relevant and admissible evidence
The purpose of pleadings (including particulars), amongst other things;
- is to apprise the opposite party of the case to be met and provides a fair opportunity to meet the case.
What are some of the basic practical principles to meet the function and purpose of pleadings as well as to consider and utilise in an effort to implement the case management principles found in ss 56-60 Civil Procedure Act 2005 (NSW) (“CPA‘) i.e. just, quick, and cheap resolution of proceedings, of course balanced with the dictates of individual justice.
We need to go back to basics and review the UCPR on pleadings, particularly SOC;
- UCPR 6.3 – specifies when a Statement of Claim is required i.e. what type of causes of action
- UCPR 6.12 – specifies the relief claimed and how it must be pleaded
- Part 14- Division 3 – form of pleadings generally;
- UCPR 14.7: a pleading must contain only a summary of the material facts (subject matter related to the facts or circumstances that would be important to the decision required to be made) on which the party relies, and not the evidence by which those facts are to be proved. I’m of the belief that one fact per paragraph is the best method to accomplish this.
- UCPR 14.8; a pleading must be as brief as the case allows
- UPCR 14.10; A fact presumed by law need not be pleaded, except as necessary to answer a specific denial
- UCPR 14.14(1) provides that a plaintiff must plead specifically any matter that may otherwise take the defendant by surprise.
- UCPR 14.14(2) provides that, in a defence or subsequent pleading, a party must plead specifically any matter that might otherwise take the opposite party by surprise (r 14.14(2)(a)), or that allegedly makes any claim, defence or other case of the opposite party not maintainable (r 14.14(2)(b)), or that raises matters of fact not arising out of the original pleading (r 14.14(2)(b)).
- UCPR 19.1: A plaintiff may amend a Statement of Claim within 28 days of filing, without leave, but not after a date for trial has been set (as well as rules about amending after a defence is filed).
- An amendment, duly made, takes effect, not from the date when the amendment is made, but from the date of the original document which it amends.
- When leave to amend is granted, it is usually on terms that the party seeking leave pay the costs of the other parties caused by the amendment. This includes costs thrown away by the amendment and costs of any consequential amendments by the other parties.
- Amending a SOC is another subject to be deal with in its own right.
Defective Pleadings
- Not in correct form [14.6]
- Plead evidence [14.7]
- Not specific or brief [14.14/14.8]
- Inconsistent allegations of fact [14.18]
- No reasonable cause of action and abuse of process [13.4/14.28]
- Prejudice, embarrassment or delay[14.28]
- Abuse of Process [14.28]
- Frivolous [13.4];
- Vexatious[13.4]
Practice Note 5 – Common Law – General Case Management List (‘P/N 5’)
The GCM document:
- A plaintiff must file the GCM document at the same time as filing the originating process unless the proceedings are only for a liquidated demand or only for a liquidated demand and interest under Section 97 of the Civil Procedure Act (“default proceedings”).
The plaintiff’s GCM document is to contain, – full list in P/N 5:-
P1.1.1 a concise narrative of the facts the plaintiff intends to prove on the issue of liability, so drafted as to expose the specific matters of fact, but not law, upon which liability is likely to depend; (this allows a wide narrative of the plaintiffs factual case on liability)
Also review what is required of practitioners under the heading “First Directions Hearing” so as to comply, to ensure the just, quick and cheap disposition of proceedings in accordance with the overriding purpose set out in section 56 of the CPA.
I will deal with Particulars, in the next medical negligence blog.
If you are require a med neg/personal injury barrister or mediator who has had 15 years experience employed in medicine in the areas of; ophthalmology, plastic and reconstructive surgery, neurosurgery, neurology, gynaecology/obstetrics, urology and oncology contact Louise on (02) 9336 5399 or louise.mathias@sydneybarrister.net.au
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