The Abuse of “embarrassing and abuse of process”

The complaint “Your Honour, these pleadings are embarrassing and an abuse of process” is one that tends to get used quite loosely by some lawyers, particularly in lower courts. Of course these terms sound impressive and so we enjoy hurling them about, often as a veiled shorthand opinion about the prospects of an opponent’s case, or lack thereof.

However it is always worth asking, as a Supreme Court judge did to a colleague of mine the other day, “….but Mr Smith how is this an abuse of process and/or embarrassing.” In fact, at least as far an application for pleadings to be struck out for being embarrassing is concerned, the standard is quite high.

In Shelton v National Roads and Motorists Assn Ltd [2005] VSC 251 at [14] to [15] Tamberlin J said:

‘ “Embarrassment” in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense.‘ (emphasis mine)

If pleadings do not properly define the issues it has many adverse flow on effects, such as creating unfairness by disenabling an opponent to properly prepare their case and clouding the issue of relevance in the context of discovery and admissibility of evidence.

It is these kinds of prejudice, resulting in additional wasted expense, that should be pointed to in any application to strike out pleadings for being embarrassing.

The term abuse of process is even more serious when it comes to pleadings. Ritchies Commentary on the Civil Procedure Rules at [14.28.5] describes such claims as those which are “doomed to fail” or “untenable in the known or admitted circumstances”. That is, not even at the very least arguable. This would be have to be the slim minority of cases given that s347 of the Legal Profession Act (NSW) requires a solicitor to sign off on the reasonable prospects of any claim filed.

Before filing a motion on these grounds (eg. under UCPR 14.28) it is wise to have a close read of the pleadings to see if what you really need is just a few more particulars, rather than to have part or all of it struck out. Although the latter feels good and impresses a client, it is an application upon which it is difficult to succeed without strong grounds. Where possible, courts are obliged to have all issues prosecuted in any given set of proceedings and so will give a party the opportunity to do this unless they should be denied that right, through their own ineptitude or because there simply isn’t a claim/defence at all.

Although they sound impressive the terms “abuse of process” and “embarrassing” have a quite technical meaning and should only be used with proper justification, rather than as an accusatory yet hollow rhetorical device.

NB – for an example of a pleading that does fit within these rubrics see Stephen Warne’s blog post  “How not to plead a contract”.

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1 Comment

Filed under Civil, pleadings

One response to “The Abuse of “embarrassing and abuse of process”

  1. Your style is unique compared to other folks I have read stuff from.

    Many thanks for posting when you have the opportunity, Guess I will just book mark this site.

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