When a defendant is unable to admit or deny an allegation in the particulars of claim, is it required to make reasonable enquiries of third parties before pleading the same under CPR, r16.5(1)(b)?
The Court of Appeal rejected the existence of such a duty under the Civil Procedure Rules.
Under CPR, r16.5(1), a defendant must state in its Defence (a) which allegations it denies; (b) which allegations it cannot admit or deny, but which it requires the claimant to prove; and (c) which allegations it admits. As Henderson LJ noted at , a defendant is able to admit or deny facts which are within his or her own actual knowledge, or which he or she is able to verify without undue inconvenience, by reference to records and other sources of information which are at his or her ready disposal. In the case of a corporate defendant, which can only act through human agents and has no mind of its own, its actual knowledge must clearly be understood as that of its individual officers, employees or other agents whose knowledge is to be attributed to it in accordance with the relevant rules of attribution. A limited company should make proper enquiries from its own officers, employees and agents: Southwark and Vauxhall Water Co v Quick (1878) 3 QBD 315, 321.
The issue in the appeal was whether a corporate defendant was obliged to make reasonable enquiries of ‘third parties’, such as a former officer or employee of the corporation, whose knowledge would have been attributed to it at a material time, but who no longer works for the corporation. A defendant must respond to Particulars of Claim fairly rapidly, in either 14 or 28 days depending on whether an Acknowledgement of Service has been filed. 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 it during the short period afforded by the rules for filing it defence. The wording of r.16.5(1)(b) does not import any duty to make reasonable enquiries of third parties before putting the claimant to proof.
David Sawtell / 28th Jan 2019
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