Justice Endlaw’s Lessons on Legal Drafting

Earlier this year, Justice Rajiv Sahai Endlaw made a concluding remark on the “non-essential verbosity” of a plaintiff in a civil dispute [Nikita Gupta v. Alok Gupta (May 21, 2019)]. He observed that the plaint filed therein was a classic textbook case of how not to draft a plaint, which he felt should have been taught in law schools.

Justice Endlaw has raised similar concerns in the past even in IP cases. In Vifor (International) v. Suven Life Sciences Ltd., decided in March this year, he had remarked that the effort to expedite, endeavoured by the Commercial Courts Act, must be not only by the courts, but also by other stakeholders such as litigants and counsel. He stressed the need for counsel to pay attention to making concise pleadings, avoiding unnecessary pleas and filing relevant documents as evidence. He denounced the habit of counsel not paying attention to their client’s claim or defence in the beginning, then filing a plethora of applications to make up for the lacunae and seeking extension of time to file reply, despite knowing that it is not permitted. He observed that in such situations no time should be wasted or else the Commercial Courts Act would remain a piece of legislation only on paper.

In September, yet again, he made similar observations in a copyright infringement case, Zee Entertainment Enterprise Ltd. v. Saregama India Ltd. In that case, the plaintiff’s request to file additional documents post framing of issues was rightly rejected by him as he felt that entertaining a request to exercise discretion in allowing such requests would defeat the purpose of the legislative mandate under the Commercial Courts Act, and that litigants and lawyers must wake up to the change required to be brought about in the conduct of commercial suits.

In the latest case of GSK Consumer Healthcare S.A v. EG Pharmaceuticals & Ors., involving trademark infringement and passing off, where the suit parties were manufacturers of pharmaceuticals, Justice Endlaw once again gave some lessons on legal drafting and the requirements under the Commercial Courts Act, this time to the defendant therein.  I have summarised these below:

1. Mechanical denial of averments in a plaint by repeating the phrase “wrong and denied” and putting a plaintiff to proof without verifying the same is unacceptable in an era of information explosion where all details of the parties are available in the public domain. He found it incredulous that the parties of the case being two renowned pharmaceutical companies and competitors in the trade, would not keep track of each other’s affairs and performances.
2. The progressive changes brought forth by the Commercial Courts Act through the establishment of Commercial Courts and the Commercial Appellate Division have timelines for parties to abide by and these changes offered no scope for litigants and advocates to indulge in the game of litigation. According to Justice Endlaw, such progressive changes are defeated by the practice of lawyers perfunctorily denying every averment in the opposite party’s pleadings including those which are easily verifiable.
3. Dealing with the drafting of verification in pleadings, he referred to the amendment to Order 8 of the CPC dealing with verifications as applicable to commercial suits where verifications are to be done with reference to each allegation in the pleading and the denial of the allegations of the other, supported by reasons for doing so. He noted that lawyers continue to make verifications in complete ignorance of this amendment and that this would leave the court with no option but to reject such pleadings under the Commercial Court Act or requisition the presence of the officials of the parties who are in the know of things and quiz him or her in the court.
4. Pleadings relating to intellectual property rights are found to be signed, verified and supported by an affidavit of counsel who are not aware of the facts pleaded, which he pointed out, is a wrong practice. Unless signed by the parties to the suit, he stated that no credence could be given to such pleadings.

One cannot agree more with Justice Endlaw’s observations in the above-discussed cases. It is indeed a nightmare to deal with verbose pleadings that run into several pages, be it before a court or a tribunal, where counsel must separate the proverbial grain from the chaff while drafting a reply.  Crisp drafting is an essential skill for lawyers. It is not very often that one comes across plaints or written statements drafted in a razor-sharp manner. Though many law schools today have courses on legal drafting, this is a craft that most of us learn through experience and through one’s mentors in the legal profession, if one is fortunate to have such mentors.

So how does the rest of the world curb verbosity in pleadings? A clue may lie in the practice by courts in many developed countries which impose restrictions on page limit, word limit, font size and line spacing. Such restrictions exist in varying forms in courts in Singapore, Canada, New Zealand, European Union and the United States.  Currently, the Commercial Courts Act or the Rules thereunder have no such restrictions. If such a change were to be brought in, it would compel lawyers to practice the art of brevity.