Five Fundamental Principles of Pleadings: Lessons & Reminders from Recent Case Law
Prof. Barbara Billingsley
Family Law Trial Fundamentals (2016/2017)
Learn a bit more about Prof. Barbara Billingsley’s paper, Five Fundamental Principles of Pleadings: Lessons & Reminders from Recent Case Law, in today’s blog.
In the context of civil procedure, drafting and filing pleadings may be considered merely a formal step that must be fulfilled to trigger more functional components of litigation. In reality, pleadings do more than just serve as a gateway to the litigation process. A court may rely heavily on the pleadings, both for what they do not say as well as for what they do say. As such, counsel must pay serious attention to the content of pleadings when drafting.
Within this context, Billingsley considers 5 fundamental, interrelated principles of pleadings. She uses select court decisions from Canada, and, more specifically, Alberta, to supplement analysis of these principles and shed light on how they are applied.
The paper begins by examining the general principle that the content of a pleading has a significant impact on both the process and the outcome of a lawsuit. Next, the impact of pleadings and their inherent ability to define the parameters of litigation is analyzed. Furthermore, the requirement that pleadings must include sufficient content to support a cause of action or defence, or risk being struck out by the court, is discussed and the fundamental principle that judicial determinations must be limited to issues raised by the pleadings is set out. Finally, the principle of amendment of pleadings before the conclusion of a trial, when they are allowed, and their impact defining the parameters of litigation are examined.
The paper also offers a brief comment on how judicial expectations regarding pleadings have been or might yet be affected by the Supreme Court of Canada’s recent call for a “culture shift” in litigation. It is more important now than ever for counsel to ensure that pleadings are carefully drafted and in accordance with the aforementioned 5 fundamental principles.
Click here to read sample pages from this paper.
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