Don’t forget to plead mitigation!

Gemma Witherington reminds us of the importance of pleading mitigation arguments properly.

Many Defendants overlook the requirement of pleading the Claimant's alleged failure to mitigate their loss in their Defences and then seek to raise the issue at trial. A quick thinking Claimant will object to the suggestion of the failure to mitigate being put to a Claimant in cross examination, or referred to in closing submissions, if it has not been pleaded or there has been no express notice given prior to the trial that the argument would be raised.

In response to such an objection, Defendants often seek to rely on the fact that there is no express requirement in the CPR which states Defendants ought to plead the failure to mitigate. In fact paragraph 8.2 of CPR 16 requires the Claimant to plead "any facts relating to mitigation of loss or damage.” This would, wrongly, suggest the burden is on the Claimant to prove they have mitigated their loss. This is plainly incorrect and contrary to the authorities that the burden is on the Defendant to prove the failure to mitigate and not the Claimant, except for in credit hire claims.

There is no obligation on the Claimant to plead that he or she has mitigated their loss. The leading case, referred to in McGregor on Damages, is Geest Plc v Lansiquot [2002] UKPC 48 where the Defendant raised a point on mitigation of loss during the course of an assessment of damages hearing, without having given prior notice to the Claimant. The leading Counsel took no issue with the point being raised at the trial. The Privy Council noted that a Defendant that intends to contend that a Claimant has failed to act reasonably to mitigate his or her damage must give notice of such contention and it should be clearly given to the Claimant long enough before the hearing to enable the Claimant to prepare to meet it.

If the opportunity of pleading the point has been missed then a letter putting the Claimant on notice that mitigation is in issue will be sufficient (and making sure that the letter is in the trial bundle or available to the trial Judge). The Claimant ought to have the opportunity then to respond by way of Reply to the points against him or her.

In summary:

• Plead the allegation of a failure to mitigate in the Defence where appropriate.
• Plead as much detail as possible; a generic paragraph at least reserves the Defendant's rights to raise the failure to mitigate, but it is likely to be attacked by a robust Claimant for lacking detail.
• If acting for the Claimant file a Reply to respond to the alleged failure to mitigate.
• If the Defence does not plead a failure to mitigate or perhaps the evidence changes and an allegation of the failure to mitigate is then relevant, consider giving express notice in the Counter Schedule or in correspondence.
• Ensure the notice/letter is included in the trial bundle for the Judge to see it was raised in good time.
• What is good time is likely to be a question of fact and degree, but should enable the Claimant sufficient time to rebut the points made.