Silence is true wisdom’s best reply – the use and misuse of the Reply
Reply or Amended Particulars of Claim?
The recent judgment of Pepperall J in Martlet Homes Ltd v Mulalley and Co Ltd  EWHC 296 emphasised the point that a new case or new allegations should not be pleaded in the Reply, but in an Amended Particulars of Claim instead.
In that case, the claimant filed a Reply which contained allegations of a new alternative case based upon matters set out in the Defence. Pepperall J held that these belonged in an Amended Particulars of Claim instead. Advancing a new claim in a Reply was contrary to the terms of the Practice Direction and meant claimants could always have a second bite of the cherry when pleading the Reply. It also denied the defendant the means of responding to it in a Defence.
When should a Reply be filed?
CPR 16.7 makes it clear that a Reply is optional. If a claimant does not file a Reply, they are not taken to admit the matters raised in the Defence.
The judgment in Martlet included a discussion of situations where a Reply is appropriate. Of relevance to personal injury practitioners is the situation where limitation has been raised in the Defence and the claimant wants to assert a later date of knowledge or make a plea under s.33 Limitation Act 1980. Although this would involve pleading new facts, it would not be pleading a new claim. Pepperall J also said that a Reply may usefully admit a fact asserted in the Defence while explaining why such an admitted fact does not provide a defence to the claim, or a Reply can deny an allegation of fact and explain why an allegation is wrong. For example, in personal injury practice, matters which are often raised in a Reply are responses to allegations of failing to wear a seatbelt or failing to mitigate losses (although paragraph 8.2 of PD 16 states that any facts relating to a claim for mitigation expenditure should be set out in the Particulars of Claim).
When is silence best?
Some Replies do not appear to have a purpose and merely read like a repetitive defence to a Defence. At paragraph 15.8.1 of the White Book 2021 the authors specifically deprecate this practice. They say: It follows both from Martlet and general pleading practice that a reply should not be used simply as opportunity to repeat or embellish what appears in the particulars of claim. They also remind practitioners that if a reply is pleaded, but adds nothing, a point may arise on costs. In that case, silence is true wisdom’s best reply.
28 September 2021
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