The best defence is to state all the particulars of a case from the outset. But in reality things are seldom so straightforward. District Judge Margaret Langley looks at court rulings on applications for an amended defence


Part 16 of the Civil Procedure Rules 1998 (CPR) specifies what must go into a statement of case, unless the procedure under part 8 is used. A statement of case includes the claim form, particulars of claim, defence, part 20 claim and reply to defence.



The claim form must contain a concise statement of the nature of the claim, the remedy sought, a statement of value and the representative capacity of the claimant or the defendant. Notably, there is specific provision that the court may grant any remedy to which the claimant is entitled, even if the remedy is not sought in the claim form.



The necessary contents of the particulars of the claim are set out in CPR rule 16.4 and include a concise statement of the facts on which the claimant relies together with any claim for interest and aggravated or provisional damages. The claimant may also attach any document on which he seeks to rely. CPR practice direction 16 details other provisions.



The contents of the defence are governed by CPR rule 16.5. The defendant must state which of the allegations in the particulars of claim he denies, which he requires the claimant to prove and which he admits.



Where the defendant denies an allegation, he is required to state his reasons for doing so and, if he intends to put forward a different version of events, he is to give his own version in the defence.



If a defendant does not deal with an allegation, he will be taken to have admitted it. A statement of case should tell a story so that other parties are clear as to the material facts relied on.



How, then, is the court to deal with a case in which a defendant makes an admission in the defence that is based on facts that are not correct, but fails to apply at trial for permission to amend the defence? Decisions under the Rent Act 1977 and the Housing Acts establish that the court should look behind any admissions as to entitlement to possession that have been made.



This is because the legislation requires the court to be satisfied that one of the statutory grounds for possession has been made out and that it is reasonable for the court to make an order for possession.



Accordingly, if the landlord attends court with a purported 'consent order' and in the absence of the tenant asks the court to make a possession order, the court cannot do so unless the landlord proves one of these grounds and satisfies the court that it is reasonable to make the order (R v Bloomsbury & Marylebone County Court, ex parte Blackburne [1982] 2 EG 157; R v Newcastle upon Tyne County Court, ex parte Thompson [1988] 20 HLR 430).



It is likely that the court will adjourn the case so that the tenant has a real opportunity to attend the hearing in such circumstances. Only if the tenant specifically admits not only the statutory ground for possession but that it is reasonable to make the order, both of which should be recited in the order, can the court approve a consent order.



Where the claim for possession is made under the Mobile Homes Act 1983, the structure of the legislation is that protection is given to the occupier by implying terms into his licence agreement. The site owner has to establish a right to terminate the licence having regard to its terms, both express and implied.



In Loveridge and Another v Healey [2004] EWCA Civ 173, [2004] All ER (D) 359 (Feb), the Court of Appeal considered how the court should be satisfied that the terms implied into the licence by schedule 1 of the 1983 Act were met.



The defendant had pleaded in the amended defence that 'the defendant admits the matter of the notice referred to in' the relevant paragraph of the amended particulars of claim, although the parties were actually agreed that the requirements of schedule 1 were not satisfied.



The defendant, without applying to reamend his defence, sought to persuade the trial judge that the terms of the amended defence meant the service of the notice was admitted but not its validity. The trial judge accepted this submission and found that he was bound to have regard to the notice failure and gave summary judgment for the defendant.



The Court of Appeal rejected the submission and ruled that the admission in the amended defence as to the notice related to its validity and not just its service. Because the preconditions to the exercise of the court's discretion were satisfied, it was not open to the court to go behind the admission. Where a matter was admitted on the pleadings, no evidence was admissible in relation to it and the court should proceed on that basis.



Interestingly, CPR practice direction 16, paragraph 13.3(1) allows parties to refer in their statement of case to any point of law on which their case is based. Lord Justice Buxton in Loveridge considered this to be valuable. Parties should not be left to speculate on the relevance in law of a purely factual narrative.



But although CPR rule 16.5(5) provides that a defendant who fails to deal with an allegation shall be deemed to admit it, Lord Justice Buxton doubted that this applied to a point of law. The result is that parties must ensure that all material facts on which they wish to rely are set out clearly in the statements of case.



Once facts are admitted, the court will not permit the parties to stray from them unless it is clear that permission to amend would be granted without the need for any adjournment. It frequently happens that at trial a party will formally seek permission to amend a statement of case in respect of factual matters mentioned to the other party in advance. If unopposed, permission is normally granted.



However, if the amendment would prejudice the other party - for example, where he has not had the opportunity to serve any evidence in rebuttal - the application to amend may be refused. The court will apply the overriding objective under part 1 of the CPR and, if it should decide to grant an adjournment, will consider the issue of the costs of the incurred.



District Judge Margaret Langley sits at Central London Civil Justice Centre