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Where there are ambiguous or contradicting terms appearing throughout the text of a contract, it is customary to interpret it in a way that is most contrary to the interests of the party who has prepared and proffered the draft of the contract.

But what is the operative principle when a party brings a legal claim, and in different sections of the various legal paperwork filed with the court, there are contradictory statements? Does the same interpretative principle apply?

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    Are the statements contradictory? Or are they advancing different and mutually incompatible theories? It is perfectly normal for a legal claim to say that they should win for reason X but notwithstanding a loss for reason X they should win for reasons Y and Z. It's perfectly reasonable that there are elements of X, Y, and Z that are incompatible with each other because each theory stands on its own. Jan 10 at 16:31
  • No, as in the question they are contradictory. Jan 10 at 16:43

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The Civil Procedure Rules require the claimant to sign a Statement of Truth, saying that they actually believe that the factual claims being put forward are true. It would seem that a person cannot rationally believe two different versions of events. And if a claimant is to plead many different versions of the facts, it makes life unnecessarily difficult for the respondent (who has to rebut every piece of spaghetti being thrown at the wall) and for the judge (who has to preside over lengthy and complex proceedings and somehow make sense of it all). In these ways, the procedural aspects of case management "ought" to push the claimant towards making the most brief and coherent version of their argument.

Applying contra proferentem would presumably mean that the claimant is forced to pick the least favourable version of events, out of all those put forward. This is not a rule. Ultimately the judge would just assess, on the balance of probabilities, what is most likely to have happened - if that had not been narrowed down in case management. And many inconsistencies can remain latent; they may not be relevant for determining the claim.

It is possible to plead in the alternative, which is not inconsistent with being able to make a statement of truth. This is explained in Clarke v Marlborough Fine Art [2001] EWHC B4 (Ch) at paragraphs 18-30. The artist Francis Bacon had a business arrangement with the Marlborough gallery. After his death his executor, Clarke, sought to bring a claim against the gallery, alleging that Bacon's relations with them were affected by undue influence, because (1) he was overly loyal to them, being naive in the ways of business, and (2) they had been blackmailing him since 1978. The judge said that these could not be pleaded together on the specific facts claimed, but could be presented as alternatives. For the CPR,

If the alternative set of facts is clearly pleaded as such then the claimant is not necessarily stating that he believes both sets of facts are true. In the present case if [the two claims] are properly expressed as alternatives leading to an allegation of undue influence then what the claimant is affirming is his honest belief that on the basis of either one set of facts or the other Bacon was the subject of undue influence in his dealings with the Defendants. It is really a matter of drafting but unless it can be said that one of the alternatives is unsupported by any evidence and is therefore pure speculation or invention on the Claimant's part he is entitled in my judgment to sign a statement of truth in these circumstances.

This was followed in the Court of Appeal in Binks v Securicor Omega Express [2003] EWCA Civ 993. Binks had made a personal injury claim; the judge at first instance found that the circumstances of the incident were other than as Binks had described. Binks wanted to put an alternative case, saying that based on the facts now accepted, there were further arguments he could make. The judge denied this opportunity but the Court of Appeal reversed, saying that the CPR provision "does not in all cases prevent a party from submitting or amending a pleading which includes an allegation which he is not putting forward as the truth, provided that there is an evidential basis for it." (para 8) The hope is that people will not put forward a case that is "inherently untrue or wholly speculative" (9, 18) but there can be latitude in the interests of justice when details are disputed, or when key information is not known until later in the process.

It's also possible in Scotland to advance inconsistent averments, but the overall procedural context is different. It was approved in Smart v Bargh 1949 SC 57 if it would not be in the interests of justice to require a choice between alternatives. In that case, Joan Smart said that she had bought a property from William Bargh's late father. Bargh said his father's signature had been forged, or else that he had been tricked into signing while drunk. These are inconsistent, but he was allowed to argue both - partly because of a rule that the defender had to put all their defences forward at the same time, and partly because there was a genuine justifiable uncertainty over what had happened. In other instances, substantial justice would mean that the court would force a litigant to make their mind up. Generally, alternative arguments (esto arguments) are common and unremarkable, provided the alternatives are not known to be untrue.

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