EXPERT GUIDANCE FOR THE ART OF GOOD PLEADING
An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
This book stands on its own because it’s clearly an expert guide to the techniques, rules, language and drafts which form what we all consider to be the ‘art’ of good pleading. We can, (at least some of us), probably remember the Bar School drafting courses with a certain amount of despair. However, all that has changed with the arrival of this book by Charles Macdonald QC and Chirag Karia.
So, what does this book actually do? As the editors explain, it “is intended to be, not a work of scholarship, but a practical guide to those who wish to know how to plead a case in the Commercial Court or in a City of London commercial arbitration”. The editors see their readership as wide to include pupil barristers, trainee solicitors, younger practitioners in the relevant fields, and practitioners in the Commercial Court generally.
A most sensible suggestion is made at the outset: “it is probably true to say that the only way to learn to plead is to do it”. So, it is a bit like advocacy then! The editors do say in their preface that the various sets of precedents set out are prefaced by assumed facts whilst traditional precedent books leave such facts to be deduced. I do agree that it assists to set out some assumed facts and, as a result, it makes the work all the more valuable as a contribution to the range of books of precedents. In fact, it is a refreshing change to see this because books of precedents tend (unfairly) to reflect the stuffy, old-fashioned and ponderous nature of ‘the law’ as it then was.
The book is split into three parts, and each chapter has named persons as the individual chapter editors. Part I covers the overall introduction and then we move to Part II which is entitled ‘Commercial Court Pleadings’. There are ten chapters in Part II covering:
• Shipping – Charterparties/Bills of Lading/Marine Insurance • Carriage of Goods by Road and Air • Commercial Insurance – Non Marine • Reinsurance • Banking • International Trade and Sale of Goods • Agency • Professional Negligence
Moving to the final Part III, which is entitled ‘Commercial Court: Other Documents’, the editors have included what can be described as all the bits that cannot find another home! These include:
• Appeals • Conflict of Laws and Stays • Search and Freezing Orders • Arbitration Applications • Case Memorandum and List of Issues • Offers to Settle and Payments into Court
The individual sub-parts of each chapter have been assigned to a total of thirty-three specialists in their own fields. Each of the main chapters starts off with a heading entitled ‘Law’ and gives a short introduction covering the relevant aspects but the point is made that the introduction is not intended to be exhaustive or comprehensive. In fact, this is a welcome approach because the memory can fade sometimes so it is useful to have this refresher. The pleadings set out in each case follow the standard format to be expected and it is clearly useful to have assumed facts.
Each individual editor explains, piece-by-piece, the applicable rules and gives advice on the art of good pleading. The mixture of precedents for common forms of pleadings, applications, and other formal documents most likely to be encountered in the commercial field are well laid out and I am sure this expert guide will be invaluable to all barristers and solicitor advocates who are involved in Commercial Court and Arbitration Pleadings.
Whilst it is right to say that actually ‘doing it’ is the only sure fire way to learn, the editors (through their thirty-three experts) show how some techniques can be learned. What will impress our colleagues on the Bench is the decision by Macdonald and Karia to include what they term ‘reflections on the correct and effective use of English’. This is to be welcomed because whatever one does in and around the law; it is about words and their meaning.
One aspect of the book which we found most appealing concerns those ‘quasi pleading’ areas. The chapters on jurisdictional challenges, search and freezing orders and arbitration applications comprise largely draft statements. Do look at Chapters 17 and 18 which are clearly not pleadings in the traditional sense because they cover ‘Case Memorandum’ and ‘Offers to Settle and Payments into Court’ – just the sort of information a busy barrister often needs when time is pressing. So the narrow constraints of the book’s title ‘Commercial Court and Arbitration Pleadings’ will certainly have a wider audience, and rightly too. We look forward to a possible further expansion of these sections so that the work appeals to more specialists in future.
Even those barristers and solicitor advocates who are well versed in this type of pleading should read the very excellent and entertaining piece on ‘Use of English and effective communication’ at paragraphs 2.25 to 2.45. It starts off with the problem we all have to face- “Lawyers have a bad reputation for using impenetrable legalese: to their clients and each other”. Hear, Hear!!
What Macdonald and Karia on ‘Butterworths Commercial Court and Arbitration Pleadings’ achieves is the modern approach to the use of good English and effective communication in a technical field which is a complete mystery to many, notably the paying client. The book has a very modern feel for a subject often steeped in tepid prose so thank you Tottel Publishing for this excellent contribution to the art of pleadings now that you have taken responsibility for a large number of books on the LexisNexis list – and good luck with your new task.