Once a formal dispute has been instigated by some form of initiating process, such as a writ or a notice to concur in the appointment of an arbitrator, the parties then set about defining the scope of their disagreement. Traditionally this has been done by exchange of pleadings.
Pleadings are much misunderstood documents. It is true that they are not a very exciting read. The popular view is that they are convoluted, costly and basically an unnecessary paper exercise embarked on to give the lawyers something to do; that experts steer clear of them, lest their independence be tarnished by the one-sidedness of the document; and that arbitrators put them under the table (or use them to prop it up) but otherwise ignore them or devise alternatives.
Alternatives include exchange of lists of issues or statements of case or even 'brainstorming': perhaps the ouija board should be included. The best known alternative pleading is the jct-style statement of case which includes a list of all documents and a summary of the evidence relied upon. Having ploughed through one recently, comprising five lever-arch files of largely extraneous material, I thought I'd say a word in defence of traditional pleadings.
Pleadings are a vital tool since they define the matters that are in issue between the parties. Unless one side sets out its case within a formal framework and the other admits or denies it, the parties do not know what they are fighting about: they do not know what points they are asking the judge or arbitrator to resolve. It is a failure to use the pleadings as they were intended, and to analyse what is in issue from the outset, that leads to much that is costly and wasteful in the subsequent preparation of cases.
The point can be illustrated using the example of the favoured statement of case, for example for an extension-of-time/loss-and-expense claim, which identifies each delaying event alleged with evidence that the event delayed a particular activity and by how long.
Collating that evidence is a massive task and requires amassing contract correspondence, site diaries and statements, all of which are copied and served with the statement of case which shows how the relied-upon delay delayed the project as a whole, by means of a critical-path analysis explained by an expert's report which would also be included.
All of this is produced to establish the delay alleged before the direct loss and expense caused by that delay is calculated and substantiated. The statement of case takes four months to prepare and costs several thousands of pounds in lawyers', consultants' and experts' fees. The claimant then has to wait four months to receive the statement of defence. When it arrives, the respondents admit the delay. They admit that the claimants are entitled to an extension of time. They dispute only the loss and expense claimed.
Had the parties used formal pleadings, within a month or so the plaintiff would have known that the defendant did not dispute its delay claim but that the battle would be fought over its financial consequences. No documents, experts or factual evidence would be required to prove delay.
Instead, all the work carried out substantiating the delay claim is fit only for the bin. It might be said that if the work had not been done, the extension of time would not have been admitted. The cynics among you will appreciate that a respondent, bent on putting off the evil day, would readily take advantage of the eight-month timetable before accepting the inevitable.