Silence is true wisdom’s best reply – the use and misuse of the Reply

28 Sep 2021

Reply or Amended Particulars of Claim? 

The recent judgment of Pepperall J in Martlet Homes Ltd v Mulalley and Co Ltd [2021] 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.

Jasmine Murphy
28 September 2021


Jasmine Murphy

Call: 2002


This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.


Please note that we do not give legal advice on individual cases which may relate to this content other than by way of formal instruction of a member of Gatehouse Chambers. However, if you have any other queries about this content please contact: