A High Court judge has - apparently reluctantly - allowed a trial to continue even though both parties significantly changed their pleadings.  

His Honour Judge Klein, sitting at Leeds Combined Court Centre, said he recognised the ‘prevailing view’ may be that parties should not be held to their pleaded cases.  But he still stressed in UK Learning Academy Ltd v The Secretary of State for Education it was ‘unhelpful’ when parties simply carried on without a limit on the issues to be tried. 

The case involved an education and training provider which contended that the defendant was liable to pay it £800,000 because of an effective variation in a contract entered into in 2008. 

The judge described the parties’ statements of case as ‘discursive, unstructured and, in places, difficult to follow.’ 

‘I was left with the clear impression, by the conclusion of the trial, that, in many significant respects in this case, both parties, more or less, were advancing cases which were unpleaded,’ said HHJ Klein. 'As it appeared to me that both parties encouraged me to determine the proceedings on the basis of the cases they actually advanced at trial, that is what I propose to do.’

In footnotes to the judgment, it was explained the judge sought to overcome the issue of pleadings by requiring the parties to agree a list of issues, but this led to further dispute between the parties when it became clear they interpreted the agreed issues differently. 

Encouraged by the claimant to ‘follow the evidence wherever it might lead’, whatever the pleaded case, the judge said as a matter of logic he would grant the same benefit to the defendant. 

Parties' deviation from pleadings has been cited in various judgments in recent years as a source of irritation for the judiciary. Nowhere was this more evident than in The Prudential Assurance Company v HM Revenue & Customs, when Lord Justice Lewison in the Court of Appeal criticised parties for a ‘cavalier approach’ to litigation and warned this would no longer be tolerated.