MAKING IT UP
It sometimes happens that one of the parties seeks to run a different case at trial from that pleaded. Gosh. Really. That in itself is unsatisfactory and can cause difficulties, as Nugee LJ observed in Satyam Enterprises Ltd v Burton and another [2021] EWCA Civ 287, [2021] All ER (D) 32 (Mar). As had recently been said in two other cases before the Court of Appeal, the critical role that statements of case play in civil litigation should not be diminished and too often the pleadings became forgotten as time went on and the trial became something of a free-for-all. Satyam, though, was in a class of its own. There, the deputy High Court judge decided the case on a basis that had neither been pleaded nor canvassed before him. That was impermissible and a misunderstanding of the judge’s function which is to try the issues the parties have raised
