Exception

Notice of Intention to Defend

Substantive grounds

Technicality

Plea

Exception/ Appl to strike out

Rule 19 (MCR) and 23 (HCR) Where a pleading is vague and embarrassing or does not disclose a cause of action, an opposing party may file and deliver an exception/. Amounts to an objection based on a formal aspect of the pleading.

Previously you could except on one of 5 grounds in the Mag Court. Now rules brought in line with HC. Only 2 grounds: - Summons does not disclose a cause of action - summons is vague and embarrassing.

every fact which is material to be proved to entitle the plaintiff to his claim. NB: facta probanda and not facta probantia

Following

are examples of instances where there is no cause of action:

- Necessary allegations missing - A plea/summons which relies on an allegation that cannot be proved - Relying on a prior verbal agreement which is inconsistent with a subsequent written agreement - Allegations in summons not entitle plaintiff to the damages requested

 Means the summons is capable of

more than one interpretation. So unclear defendant is not clear on what case is being made against him Accepted Test: does the pleading contain sufficient particularity to enable the defendant to prepare his defence. vagueness must amount to embarrassment and embarrassment to prejudice.

The following are examples of instances where the pleading will be deemed to be vague and embarrassing: - not clear whether plaintiff is suing in contract or delict - or what basis sin delict - if there is inconsistency amounting to contradiction between the summons and the further particulars - more than one claim and the relief claimed in respect of each is not separately set out.

Notice of Exception Must set out the basis of exception i.e. What aspect of the pleading is excipiable If raised on the grounds that pleading is vague and embarrassing, def must give Plaintiff a chance to rectify the cause of complaint Prayer appears at the end of the notice of exception Exception must be raised within 10 days of sending NID

Exception usually raised in writing Once filed, matter is enrolled and a formal hearing proceeds Onus of proof rests on the party raiisng the exception Court can either: - Uphold (dismiss plaintiffs claim/ appl for leave to amend) - Dismiss (plea must follow)

Pete

& Hulme pg209 - 215 Eckard Chapter 12 Jones & Buckle (old Rule 17) Course Handout