The need to plead a positive case in defence if you have a positive case in defence

In Man v St George’s University Hospital NHS Foundation Trust [2024] EWHC 1304 (KB), the High Court exercised its case management powers to exclude witness evidence which put forward a positive case on an issue which had been neither admitted or denied in the defence on the basis that the matter was outside the Defendant’s knowledge. The Judge found that this was not permissible. 

This article considers how this issue arises in the housing disrepair context. 

Factual background

The overriding claim was one for clinical negligence. The Defendant had put the Claimant to proof in respect of her complaint of extreme pain on the basis that the same was outside its knowledge. Later, the practitioner who was alleged to have been negligent filed a witness statement in which she put forward a positive case denying that the Claimant was in extreme pain.

The court’s findings

The court considered that the witness statement dealt with matters that were not properly in dispute in the proceedings as the Defendant’s position in its defence was that the complaint of extreme pain fell outside the knowledge of the Defendant.

The court considered that this was not a proper pleading as, had the Defendant spoken to the practitioner said to have been negligent, it would have been able to answer the point in respect of extreme pain and would have properly been able to put it in issue.

The court reiterated the commentary at 16.5.2 of the White Book which provides that “the language of non-admission should not be used and a practice of pleading numerous non-admissions can only be justified where a defendant is truly unable to admit or deny an allegation and so requires the Claimant to prove it. [Rule 16.5(1)] raises a positive duty for a defendant to admit or deny pleaded allegations which he or she is able to do so and so to prevent merely “a stonewalling defence with indiscriminate non-admissions”. (Per Lord Justice Henderson in SPI North Ltd v Swiss Post International (UK) Ltd [2019] EWCA Civ 7.” The commentary continues to say the same case went on to confirm that “there is no general obligation on a defendant to make reasonable enquiries of third parties at such an early stage of the litigation but instead, plead the defence on the basis of knowledge and information the defendant has readily available to him.”

The Judge held that asking “the very practitioner who is alleged to be negligent is not, in these circumstances, an obligation to make enquiries of third parties” and that since this was a vicarious liability case, the practitioner should have been asked what she recalled. It was “not appropriate for an NHS Trust, in a clinical negligence case, simply to say, “Oh well, we have not been able to ask” … it does not appear that…there is any reason why the Defendant was unable to speak to her before drafting a defence responding to allegations of negligence against her. In those circumstances, there is an onus on the Defendants to plead properly, and if there is a matter that is of central importance, such as the level of pain that a claimant was feeling at a particular time, then that has to be positively pleaded.”

The Judge held at paragraphs 34 and 35 of his judgment that “there is a purpose to pleadings, and it is to make clear what is in issue and what each party’s case is on matters in issue. It is the scheme of Part 16, and always was, that if the Defendant is putting forward a different version of events, that that should be pleaded; and it has not been. The defence is in breach of part 16.5(1). In any event “putting the claimant to proof” means just that. The Claimant must lead evidence to prove their allegation but the Defendant is not able to lead evidence on matters put in issue that way. That is consistent with the scheme of Part 16. If the Defendant is unable to plead because it does not have knowledge of the issue, they can put to proof. If they have positive evidence they wish to rely on, they must plead a positive case.”

How does this apply to housing cases?

It is not uncommon for landlords, particularly social landlords, to simply put claimants to proof in respect of disrepair and notice within its defence, and then to put forward a positive case in respect of works, notice or access in witness evidence down the line. This judgment from the High Court makes it clear that this is not permissible and that if a positive case has not been pleaded in the defence such that a matter is not properly put in issue, witness evidence putting forward a positive case is liable to be struck out on the basis that it is not relevant. 

This judgment underlines the importance of making sufficient enquiries as to what is and is not known such that appropriate admissions and denials can be pleaded and an alternative positive case put forward if a matter is denied as required by CPR 16.5. 

In the disrepair context, the landlord ought to check its readily available disrepair records when pleading its defence, and not only when required by the court following directions for disclosure and witness evidence. Those acting for tenants should be applying for strike out of witness evidence which puts forward a positive case that was not pleaded in the defence in circumstances where the Defendant landlord has pleaded that it does not have knowledge. 

Interestingly, the Judge struck out parts of the witness statement on a line by line basis, so any applications for strike out on this basis will need to clearly set out what parts of the witness statement specifically are liable to exclusion on this basis.