Pleadings: Do not overlook these points!

Two subscribers to this channel asked me to speak about Pleadings. I have already done a detailed video on pleading. I will now say something I have not said before…

[1] Listen to your client

Study all the evidence you can get your hands on first. Do not jump into anything.

Do not start drafting. Wait.

Pretend that you are at the end of a trial and draw up a draft end of trial submission or submissions or speech.

That will give you an idea of the case that you have against the other side, and the case the other side has against you.

It will give you an idea of where you are going, what you are supposed to do, and what you should ask for.

[2] The court in which you are going to file your papers

Some of the relief that you are asking for may not be given by the court because it may not have jurisdiction.

So, you must think about the court where you are going to file the papers.

You must ask yourself whether the court is empowered to give you the relief you want.

[3] Decide what relief you want

So, when I am drafting a pleading, I will only concern myself with the tail end of it.

What is the relief I am going to ask the court at the end of the trial.

If I am the plaintiff, the first thing I want to do is I want to first ask for a declaration of my rights, almost everybody forgets it.

If you think the defendant is a trustee then ask for a declaration.

We ask for a declaration that the defendant was constituted a constructive trustee of the beneficiary in relation to the property.

Then ask for another declaratory order that regulates your rights.

Then ask practical orders that will make the declaration into concrete results and an order that the defendant render to the plaintiff the all accounts, all monies received and all monies expended and the location, the amount and nature of the assets of the estate.

Then ask for injunctive relief. You might ask for a receiver and a manager to be appointed over the property.

Then you have to study the Rules of Court in relation to receiver and manager.

If you are going to appoint a receiver and a manager, there are certain preconditions or trigger points that you have to clear. Clear those trigger points then think about discovery.

[4] Discovery

If I am going to ask for these documents, I will ask for discovery. If I do not ask it in the statement of claim, I have to ask during the interlocutory proceedings.

Think about third parties. In the old days we used to call it a Norwich Pharmacal order: when a person who is not a party to an action is in possession of documents,  without making that person a party you can make an application, serve it on the third party and demand that person renders documents to you.

It is an exception. The Rules of Court 2012 included a new rule that deals with this now. You can expressly go and ask for the document. Think about those things.

[5] Costs

Most lawyers ask for legal costs and stop there.

You are entitled to interest on the judgment sum and interest on the cost awarded by the court.

Sometimes when an order of cost is made, the defendant will not pay. He will take five years. You can ask for interest.

The unpaid interest will help you to cross the quantum barrier when you are going to go for bankruptcy proceedings against the defendant.

So, think about these practical points.

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