A Pleading Mess

“Very, very few solicitors show competence in pleading cases - either as Statements of Claim or as Defences. They seem to direct themselves to complicating the events and the issues in as prolix and indigestible a form as possible.” These are the words of Mr. Justice Seagroatt in Chan Siu Wah v Wu Kwok On [HCPI 1123/1997] commenting on the state of affairs in 1997.

The standard of pleadings in Hong Kong in 2019 is still abysmal. As Seagroatt J put it

“Proper, sensible and effective pleading is a skill or art. I rarely see examples of that.”

One consequence of this sorry state of affairs is that city firms send their cases to England where the pleadings are drafted by counsel, swiftly, efficiently and at a lower cost than the going rate in Hong Kong.

However, counsel who draft such pleadings do not have their name on them, the firm of solicitors append their name to the pleading thus circumventing the requirement that Hong Kong counsel be instructed in litigious matters. It is a devious practice which cannot be condoned but is, nevertheless, entirely understandable.

Why is the standard so abysmally low? The reasons are manifold.

Pleading is one of the subjects taught in the PCLL and in some LLB courses too. I trust I will be forgiven for observing that the students appear to be working from aged protocols that owe little to the objectives of the succinct and pithy and nothing at all to elegant or even adequate pleading.

Two or three weeks’ University instruction based on these examples is hopelessly inadequate. The result is that generations of young barristers start out with a set of fundamentally flawed blueprints. Rather than proforma pleadings, they should be instructed in the basic principles. Learning how to plead is like the answer to a young musician’s question “How do I get to Carnegie Hall?” Answer “Practice, practice, practice.” To illustrate the point, as a busy Junior in London Chambers I would do an average of 6 to 7 sets of pleadings every night.

The same judge’s words, though in the context of a Personal Injury case, apply across the board to both High Court and District Court actions:

“High Court ...actions are conducted when they come to trial, by counsel. Counsel are also trained pleaders - or are expected to be, since that is part of their traditional craft...They are required in their advocacy to advance the case on the strength of the pleaded case...”

Regrettably, this traditional craft is dying from neglect in Hong Kong. Worse, too many pupil masters perpetuate their shortcomings on successive generations of young counsel. One does not have to look very far for reasons why there is a long-standing solicitors’ syndrome of thinking “I can do that.” The vicious circle of low level competence, delay and cost means that the opportunities for acquiring pleading skills are diminishing exponentially. Hence the necessity of sending the instructions to London in so many instances.

Over and above this systemic weakness, probably the most powerful force against the employment of counsel to plead cases is Hong Kong’s taxation system.

Most certainly since the judgment in Chan Siu Wah Taxing Masters have operated to exclude counsel from drafting the pleadings, asserting that this is a job for solicitors. Even the Legal Aid Department quotes the case as authority for the proposition that it is for solicitors not counsel to draft the pleadings. This upside-down state of affairs is the consequence of Seagroatt J’s unfortunate misuse of one word, ‘settle’. Describing counsel’s responsibilities he said:

“If they settle the pleading they are responsible for it and must shoulder the consequences if that pleading is defective.”

The convention is that by signing the pleading, counsel accepts responsibility for it. There is no room for the absurdity of counsel excusing him or herself by saying that in actuality the pleading was drafted by the instructing solicitor.

The pleading is counsel’s plan of battle, one to be fought on the terms delineated in it.

With respect, the taxing Masters treat the judge’s use of the word “settle” in Chan Siu Wah as ex cathedra, whereas in point of fact it is per incuriam. Since time immemorial, the practice has been for Junior Counsel to draft the pleadings, leading counsel (QCs and SCs) settle the pleadings. This is so basic a professional tenet that it is truly extraordinary that the misconception has enjoyed such an extended life. But perhaps one cannot blame the Taxing Masters entirely because they have grown up in the same system and merely perpetuate Hong Kong’s erroneous habit. Nor can one blame the Taxing Masters if they accept Seagroatt J’s word as gospel. Seasoned practitioners know that it comes from the Apocrypha.

An added layer of confusion arises from Taxing Masters’ over-rigid interpretation of ‘settle’. There are and will continue to be cases the complexity or gravity of which necessitate the primary pleading be drafted by leading counsel. It flies in the face of reality to tax leading counsel’s fee on the basis that the pleading was merely settled by them.

Hong Kong does not have the English equivalent of the practice Master. One of the joys of “the Bear Garden” in the Royal Courts of Justice was the ability to knock on the Practice Master’s door and get two minutes of invaluable advice. The Queen’s Bench Masters were drawn from practitioners with many years of hands-on experience who brought that experience with them onto the bench.

In many ways, they were the workhorses of the judicial system, disposing of interlocutory matters with the insight and expedition born of many years practice. Seagroatt J’s lapsa lingua would never have acquired the currency it has acquired if it had come before the likes of Master Jacob or suffered exposure to the coruscating wit of Master Ritchie.

The art of pleading lies in developing the ability to digest a mass of detailed material, winnow out everything irrelevant and reduce the client’s case to a clear exposition of its substance. Indeed, before the unhappy introduction of lists of issues and skeleton arguments, cases used to be contested on the basis of the pleadings which set out the respective claims. Acquiring the necessary skills is time consuming and, in an ideal setting, is best learned in a homogenous, properly structured set of chambers where brother and sister barristers assist each other. Sadly, this is another aspect largely missing from the Hong Kong Bar.

The rationale for counsel to draft the pleadings, as the learned judge correctly pointed out in the same judgment, is that counsel is held responsible for a pleading with his or her name on it. This is why experienced solicitors know that any change to a pleading must be approved by counsel who drafted it. In this day and age when counsel are just as answerable for their negligence as any other professional, it is doubly important.

Counsel have to anticipate how the pleaded case will impact on their tribunal, it is no exaggeration to say that many a case has been determined on the strength of the pleadings, often before the judge enters the courtroom. As more and more applications for leave to appeal are determined ‘on paper’ with no oral hearing, so the need for the ability to plead a compelling case will only increase.

Opposing parties often take the measure of the other side’s strength or weakness by the quality of the pleadings. Ignorance and prolixity are sure signposts to a weak legal team, all too often concealing a sound case underneath the weight of verbiage.

Instructing counsel to do the pleadings is also one of the fields in which the solicitor can, in almost all instances, be protected from allegations of negligence by sheltering behind counsel.

Once the engine of pleading is restored to counsel’s tracks, one example of incompetence that the Bar must excise itself of is the notion that the quality of a pleading is judged by its length.

I have seen pleadings which can only have been drafted by the yard in the expectation that they would command a stupendous fee. Any competent judge’s expression will darken when faced with a set of pleadings like the libretto to The Ring Cycle. In almost every case, pleadings answer to the maxim ‘less is more’.

Even when the misconstruction of ‘settle’ has been rectified so that counsel can resume their traditional role, solicitors will need to mend their misspent ways, cease to massacre their own pleadings and instruct counsel to draft them as a matter of course. In England, no solicitor would dream of doing the pleadings when he could get counsel to do them for a fraction of what he would charge at his hourly rates.

This critical change needs to be implemented as a matter of urgency. The Junior Bar is seriously underemployed and under-exercised in the art and this vicious circle needs to be broken. Once that step is taken, it will be up to the Bar to respond to the challenge. The disastrous perpetuation of generations of incompetent pleaders must be reversed and the drafting placed where it should be, with counsel. The equally necessary corollary is that pleadings be paid for properly: that is a two-way stretch, counsel’s fees need to be proportionate and both delivery and payment prompt.

In some respects, the Hong Kong Bar illumines the administration of justice. Multi-racial, multi-lingual, its professional ethics are set at the highest level and it provides a phalanx of widely different fields of expertise. In addition to which, it is essentially apolitical, bowing neither to fear or favour. In these troubled times, great responsibility rests on the Bar. It must answer to the needs of the legal community and a major element of its professional services lies in skillful pleading. At present, too much of this is either being done badly by solicitors or the capacity of the Hong Kong Bar is being hollowed out by instructions going to London. Balance must be restored, promptly.

Jurisdictions: 

π Chambers

Mr. Sarony is, first and foremost, an advocate who relishes trial work which he likens to a cross between a knight errant and a street fighter both of whom are constrained by the rules and the conventions of courtesy to Court and opponent. Though sometimes pigeon-holed as a P.I. specialist, in fact his practice covers almost the entire spectrum. When not writing, cooking or sailing, he can be found playing jazz piano.