There is a widespread misconception that in civil claims a defendant can, by non-admissions, simply put the claimant to proof of the matters pleaded in the particulars of claim – whether that be with regard to the service of notices, allegations of anti-social conduct, etc.
In housing fraud cases, these failures to positively plead can be seen, by way of example, in respect of:
- Details of visits to the demised premises;
- Names of sub-tenants/occupiers;
- Representations made leading to allocation of the premises;
- Connections with other accommodation;
- Monies received for use of premises.
How does such an approach sit with the CPR, especially rule 16.5 (emphasis added)?
“(1) In his defence, the defendant must state –
(a) which of the allegations in the particulars of claim he denies;
(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and
(c) which allegations he admits.”
The short answer is “not well”, a longer answer being “not well at all”. To understand why, aside from reading CPR r. 16.5 (1)(b) and paragraph 10.2 of Part 16’s practice direction (“a defendant should deal with every allegation in accordance with rule 16.5(1) and (2)”), it is instructive to also read the judgment of Lord Justice Henderson in SPI North Ltd v Swiss Post International (UK) Ltd & Anor [2019] 1 W.L.R. 2865. Early in his judgment he explained:
“2…Under the Civil Procedure Rules , unlike the previous Rules of the Supreme Court (“RSC”), a non-admission may only properly be pleaded by a defendant where he is, in fact, unable to admit or deny the allegation in question, and therefore requires the claimant to prove it.
3. Plainly, a defendant is able to admit or deny facts which are within his own actual knowledge, or which he is able to verify without undue delay, difficulty or inconvenience, by reference to records and other sources of information which are under his control or otherwise at his ready disposal.”
A breach of 16.5 may well lead to a strike out application. It may also be the case that the claimant seeks to “fill in the gaps” by means of a Part 18 Request for Further Information, bearing in mind the latter’s purpose:
“1.2 A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet.” [Practice Direction to CPR Part 18]
One note of caution is that Henderson LJ went on in his judgment, at paragraphs 49 & 54, to state that defendants were not obliged to make enquiries of third parties before pleading non-admissions.
“49. In my judgment, a number of factors point towards the conclusion that a defendant is “unable to admit or deny” an allegation within the meaning of rule 16.5(1)(b) where the truth or falsity of the allegation is neither within his actual knowledge (including attributed knowledge in the case of a corporate defendant) nor capable of rapid ascertainment from documents or other sources of information at his ready disposal. In particular, there is no general obligation to make reasonable enquiries of third parties at this very early stage of the litigation. Instead, the purpose of the defence is to define and narrow the issues between the parties in general terms, on the basis of knowledge and information which the defendant has readily available to him during the short period afforded by the rules for filing his defence.
54…I have little hesitation in concluding that the wording of rule 16.5(1)(b) does not import any duty to make reasonable enquiries of third parties before putting the claimant to proof of an allegation which the defendant is “unable to admit or deny”. But that is not the end of the matter, because Mr Drake advanced a further argument against the claimant’s approach which I find equally compelling. The argument was, in short, that rule 16.5(1) does not import a “process” requirement, of which the defendants were arguably in breach and which could for that reason alone have arguably justified striking out the defence (or parts of it) if the offending non- admissions were not remedied. In order to justify such a draconian remedy, submits Mr Drake, it would have been necessary for the claimant to establish, to the civil standard of proof, that the defendants actually could have had available to them knowledge (whether or not derived from third parties) which meant that they were in fact able to admit or deny specific allegations which they had chosen not to admit. In other words, it would not be enough merely to show that the defendants failed to make reasonable enquiries of third parties which they ought to have made. It would be necessary to go further, and to establish that the impugned non-admissions were in fact improper because the relevant allegations should have been either admitted or denied.”
Finally, it is worth noting that CPR r. 16.5 also provides:
“(3) A defendant who –
(a) fails to deal with an allegation; but
(b) has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant,
shall be taken to require that allegation to be proved.
…
(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.