Pleadings pro tip #2: "full force and effect" has no force or effect
Updated: Feb 16, 2021
This is the second in what may someday become a series of posts aimed at stamping out bad pleadings habits (first one here). This time we are taking aim at the words "relies on [document] for its full force and effect" and the equally unsatisfactory formulation "relies on [document] as though it were set out in full herein".
These formulations most often comes up in defences. A common example would be where the statement of claim has said something like "it was a term of the sale agreement that the defendant would pay $50,000 by no later than the Instalment Date". In response, the defence will say something along the lines of:
(a) relies on the terms of the sale agreement ['for their full force and effect' or 'as though set out in full herein']; and
(b) otherwise does not admit the allegations."
Unfortunately such pleadings are not limited to contractual terms. Another common place they pop up is in response to allegations concerning correspondence, such as "five days after the Instalment Date the plaintiff sent the defendant a letter demanding the payment of $50,000."
Again, many defences will: (a) admit the letter was sent; (b) "rely on the letter for its full force and effect"; and (c) otherwise not admit the allegations.
Pleadings of this type also are not limited to defences. While most plaintiffs at least realise that if they are referring to a document they should say what it says, one occasionally sees a statement of claim where, for example, the plaintiff alleges that a letter was sent and then, in the particulars, relies on the letter "as though set out in full herein".
This is a bad habit. Don't do it.
Why is it a bad habit? First of all, it goes against the rules of pleading. In New South Wales the relevant rule is UCPR 14.9, which says:
"If any documents or spoken words are referred to in a pleading:
(a) the effect of the document or spoken words must, so far as material, be stated, and
(b) the precise terms of the document or spoken words must not be stated, except so far as those terms are themselves material."
Other jurisdictions have similar rules. As far back as 19th Century England it was necessary for the "purport of the document" to be set out in the pleading: Phillips v Phillips (1878) 4 QBD 127 at 130 (Bramwell LJ).
The practice of referring to a document and then purporting to rely on its terms as though they were set out in the pleading, or purporting to rely on it for its "full force and effect" (whatever that means), does not comply with these rules. The pleading fails to state the effect of the document.
Second, somewhat ironically, such pleadings have no force or effect. The purpose of referring to the document in the pleading is to put the opposing party on notice of what you say the document says. If the effect of the document is not stated in the pleading then the reference to it is meaningless. As neatly stated by Brereton J in Hill End Gold Ltd v First Tiffany Resource Corp  NSWSC 1412 at  in relation to the defence in that case:
"whereas the further amended statement of claim pleads the relevant effect for which the plaintiff will contend of each relevant document, the defence, by stating only that it 'relies on the terms of that document for its full force and effect', leaves entirely open whether the defendant accepts that the document has the effect pleaded by the plaintiff, or attributes some and if so which other relevant effect to it."
That leads me to the third problem with this type of drafting: its true impetus is simply laziness or caginess. The proper practice would be (as a plaintiff) to state the effect of the document or (as a defendant) either to admit that the document was to the pleaded effect or to state what the actual effect of the document was. The reason for relying on a document "as though set out herein" or for its "full force and effect" is to avoid having to take a position, either because the pleaders want to leave their options open, or because they can't be bothered actually reading the document and working out what it says. Either way, it is contrary to what they are supposed to be doing in the pleading.
Finally, the conclusion from the above is that the formulations in question are embarrassing and liable to be struck out. That is what happened in the Phillips and Hill End Gold cases that I referred to above, and a number of other cases. Sure, most of the time you will get away with lazy pleading of this type because your opponent will decide that it is not worthwhile to pick that particular fight, but if they do decide to take it on you may find yourself having to explain to your client that they have just lost a strike out application and had a costs order made against them because you ignored that blog post you read a while ago on some barrister's website. "Embarrassing" has a technical meaning when it comes to pleadings, but in that scenario I'm sure the embarrassment would be all too real.