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02 March 2004
The Court of Appeal has considered the extent to which a claimant may plead inconsistent factual alternatives in its claim, in light of the requirement under the Civil Procedure Rules (CPR) for a party to sign a statement of truth verifying its case.
In Binks v Securicor Omega Express Ltd  EWCA Civ 993 the claimant claimed that he had sustained an injury while working for the defendant company. He contended that having finished unloading a van owned by the defendant, he was moving a conveyor belt out of the van when the van suddenly set off, causing him to fall out of the back of the van. The defendant contended that the claimant had mounted the conveyor belt with a view to using it as a means by which he might exit the van. When the van started to move, the claimant had panicked and fallen off the belt onto the ground.
At the end of the trial, the claimant submitted that the defendant's negligence in allowing the van to move while he was still inside could be used to establish liability against the defendant, even if the version of the facts he had originally given - and in respect of which he had signed a statement of truth - was disbelieved. No application was made by the claimant to amend his statement of case.
The judge at first instance rejected the claimant's submission, stating that:
"I do not accept that the purpose or effect of Part 22 is to exclude the possibility of pleading inconsistent factual alternatives….In my judgment, it does not in all cases prevent a party from submitting or amending a pleading which includes an allegation which he is not putting forward as the truth, provided there is an evidential basis for it. If it is in the form of an amendment, then it may be appropriate for the court to permit it without requiring a statement of truth.
Moreover, I do not consider it objectionable in principle for a claimant to advance an alternative case based on material put forward by his opponent. In such circumstances, it may be possible for him to append a statement of truth, suitably drafted, making it clear that whil[e] his primary case is not an assertion of the truth of his opponent's account, if the court find that to be the truth, he will seek to rely upon it as an alternative basis for liability."
The effect of Part 22 does not therefore extend to relieving from liability a defendant whose own evidence may be sufficient to found a cause of action against him. The Court of Appeal could find nothing in Part 22 to indicate an intention to exclude altogether the possibility of raising factual alternatives. Indeed, the judge stated:
"In my experience it is normal and proper practice in the County Courts, and in the High Court too, to allow an amendment to such effect at the conclusion of the evidence if, on any terms which are appropriate as to costs or recall of witnesses, this can be done without injustice to the other party or parties."
In Binks the Court of Appeal took comfort from the earlier judgment in Clarke (Executor of the Will of Francis Bacon) v Marlborough Fine Art (London) Limited  1 WLR 1731. In that case Justice Patten had no objection to inconsistent facts being pleaded within a claim. In relation to Part 22, he found that those verifying particulars of claim could plead inconsistent facts in the alternative if they did not have personal knowledge of the matter, provided there was plausible evidence to support both alternatives.
The requirement for a statement of truth concentrates the minds of the parties when setting their statement of case. It is intended to, and does, deter parties from advancing untrue or wholly speculative cases. However, the Binks Case and earlier cases show that it will not prevent alternative facts being pleaded, either at the outset or as the evidence emerges, in appropriate cases.
For further information on this topic please contact Kate Hurford at Herbert Smith by telephone (+44 20 7374 8000) or by fax (+44 20 7374 0888) or by email (email@example.com).
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