[*530] 1986 June 28
(KALLIS, D.J.)
IN THE DISTRICT COURT OF NICOSIA
Elit Zipper Manufacturing Ltd.,
Plaintiff,
V.
Zeta Agricultural Company Ltd. and Another,
Defendants.
(Action No. 6730/85).
Civil Procedure - Pleadings - Further and better particulars - The function of particulars - Extensive reference to authorities - The matter of particulars is a matter of discretion - The Civil Procedure Rules, 0.19, Rules 4 and 6.
A. Xenophontos, for the Plaintiffs.
G. Chrysanthou, for the Defendants.
RULING
The following ruling was delivered by:-
KALLIS. D.J.:- According to the statement of claim plaintiffs are a Limited Company duly registered in Cyprus. Zeta Management Services is a trade name of Zeta Agricultural Co. Ltd. (defendant 1), which is a private Company of limited liability duly registered In Cyprus; and defendant 2 is the Managing Director of defendant 1 Company. At all material times defendant company through Zeta Management Services upon agreement with plaintiffs and at a remuneration were keeping the accounts and the books of the plaintiffs. On or about 21.7.84 defendant 2 received from a customer of the plaintiffs (St. Martin) a cheque for £250 towards his account for purchase of goods from the plaintiffs and issued receipt No. 528 on behalf of plaintiffs. The said cheque was issued to and/or to the order and/or benefit of plaintiffs by the said customer for goods which plaintiffs sold to him and plaintiffs had [*and still have immediate right of possession and/or ownership thereof and/or of the said amount. Defendants 1 and/or defendant 2 have converted the said cheque to their own use and they have wrongfully deprived the plaintiffs thereof. Defendant 1 and/or 2 cashed the said cheque and collected the said amount of £250 but same or any part thereof has not been deposited in any account of the plaintiffs and has never been given to them; and hence this action for £250.
Defendant company denied all the allegations about conversion and in paragraph 2 of the defence alleged that the amount in question was deposited in a fund and/or account of the plaintiffs and/or was disposed for the satisfaction of commitments of the plaintiffs in the ordinary course of business as very well appears in the books of accounts of the plaintiffs and as certified by the Auditors of the plaintiffs P. Kalopetritis & Co.
By means of a letter dated 2.10.85, which counsel for the plaintiffs addressed to counsel for the defendants, the former requested to be provided with further and better particulars in respect of para. 2 of the defence. By his reply dated 8.10.85 counsel for the defendants enclosed "a statement of account in confirmation of the allegations in para. 2 of the statement of defence". The said statement of account is headed:
"Elit Zipper Manuf. Co. Ltd.
Yearly transactions
Account Name: Zeta Bros. (Invest) Co. Ltd."
and in such account there is, along with other entries, an entry concerning an amount of £250- and which concerns a certain "St. Martin".
Counsel for plaintiffs reverted to the matter again, by his letter dated 18.11.1985, wherein he informed counsel for the [*defendants that he was not satisfied with the particulars given and requested to be given the following particulars:
"(a) The fund in which you as you allege the said amount was deposited;
(b) The account of plaintiffs in which as you allege the said amount was deposited;
(c) How this amount was disposed in satisfaction etc.;
(d) Which are the commitments of plaintiffs for which as you allege this amount was deposited;
(e) Where does this appear and in which books of accounts of the plaintiffs;
(f) How this act/acts are certified by the auditors of the plaintiffs Messrs. P. Kalopetritis & Co."
Counsel for the defendants in his reply dated 8.1.86 invited attention to the copy of the account which he enclosed in his letter dated 8.10.85 and added that any clarifications may be given by the Auditors. Counsel for the plaintiffs not being satisfied with the contents of the above letter by his letter of 9.1.1986 informed counsel for the defendants that he will, by virtue of 0.65 of the Civil Procedure Rules, apply to the Court on the day of hearing for an order for further and better particulars as requested in the letter of 18.11.1985; and so it was done.
In support of his application for further and better particulars, learned counsel for the plaintiffs submitted that the particulars given - the statement of account - do not answer the queries (a) - (f) in the letter of 18.11.1985. He further submitted that since "Zeta Bros." - which is referred to in the statement of account sent by counsel for the defendants ("the statement of account") - is not a litigant in these proceedings, the accounts [* - referring to them - "Zeta Bros." - do not amount to the particulars he has sought.
On the other hand, counsel for the defendants mainly contended that he cannot give the particulars sought because such particulars are in the possession of the plaintiffs since March 1985.
The application for further and better particulars has as a legal basis rules 4 and 6 of Order 19 of the Civil Procedure Rules which run as follows:
"4. Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums, and numbers shall be expressed in figures and not in words. The pleadings shall be signed by the advocate, or by the party, if he sues or defends in person.
6. A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars, may in all cases be ordered upon such terms, as to costs and otherwise, as may be just".
Under the heading "Function of particulars" in the Supreme Court Practice 1979 the following are stated:
"Function of Particulars: This rule imposes on the parties a primary obligation to state in their pleadings all the 'necessary particulars' of any claim, defence or other matter pleaded, and if any pleading does not state such particulars or states only some or insufficient or inadequate particulars, the rule enables the Court to order a party to serve either [*(1) particulars or further and better particulars of any claim, defence or other matter pleaded, or (2) a statement of the nature of the case relied on, or (3) both such particulars and statement. It is therefore an essential principle of the system of pleading that particulars should be given of every material allegation contained in the pleading.
The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to reduce costs (cited with approval by Edmund Davies L.J. In Astrovlanis Compania Naviera S.A. v. Linard (1972) 2 Q.B. 611; (1972) 2 W.L.R. 1414 at p. 1421). This function has been stated in various ways as follows:
(1) to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved (per Lindley, L.J., in Duke v. Wisden (1897), 77 L.T. 67, 68; per Buckley, L.J., in Young & Co v Scottish Union Co.(1907), 24 T.L.R. 73, 74: Aga Khan v Times Publishing Co. (1924) 1 K.B. 675, 679);
(2) to prevent the other side from being taken by surprise at the trial (per Cotton, L.J., in Spedding v. Fitzpatrick (1888), 38 Ch. D. at p. 413: Thomson v. Birkleg (1882), 31 W.R. 230);
(3) to enable the other side to know what evidence they ought to be prepared with and to prepare for trial (per Cotton, L.J., Ibid.; per Jessel, M.R., in Thorp v. Holdsworth 118.75), 3 Ch. D. 637, 639: Elkington v. London Association for the Protection of Trade (1911), 27 T.L.R. 329, 330);
(4) to limit the generality of the pleadings (per Thesiger, L.J., Saunders v. Jones (1877), 7 Ch.D. 435) or of the claim [*or the evidence (Milbank v. Milbank (1900) 1 Ch. 376, 385);
(5) to limit and define the issues to be tried, and as to which discovery is required (Yorkshire Provident Life Assurance Co. v. Gilbert (1895) 2 Q.B. 148; per Vaughan Williams, L.J., in Milbank v. Milbank (1900) 1 Ch. 376, 385);
(6) to tie the hands of the party so that he cannot without leave go Into any matters not included (per Brett, L.J., in Philipps V. Philipps (1878), 4 QB.D. 127, 133: Woolley v. Broad (1892) 2 Q.B. 317), see (n.) 'All material facts' to r.7, supra; and Woolley v. Broad (1892) 2 Q.B. 317). But if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings (Dean of Chester v. Smelting Corp. (1902) W.N. 5; Hewson v. Cleeve (1904) 2 lr. R. 536)".
In Bullen and Leake and Jacob's Precedents of Pleadings, 12th ed. p. 110 - cited by Triantafylides, P. in Panayiotou v. Solomou (1979) 1 C.L.R. 779 at p. 787 - the following are stated:
“The practice as to particulars demands in every pleading such a sufficiency of detail as will elucidate the issues to be tried and prevent 'surprise' at the trial. No hard - and - fast line can be laid down as to the degree of particularity which is required of the pleader and which an opponent may demand of him when formulating his claim or defence.
……………………………………………………………………………………………………
The precise degree of particularity required in any particular case cannot of course be predicated, but as much certainty and particularity must be insisted on as is reasonable having regard to the circumstances and the nature of the acts alleged".
In the case of Brooms v. Cassel & Co. Ltd. and Another Same [*v Same (1971) 1 All E.R. 262 - also cited In the Panayiotou case (supra) the following are stated at p. 264:
"The object of pleadings is to enable: first, the parties to know what case is being made by the other side; and, secondly, for the Court to know what are the issues to be tried. The days when pleadings were a form of catch-as- catch-can are over".
In Pinson v. Lloyds and Nat. Prov. Foreign Bank (1941) 2 All E.R. 636 - cited by HadjiAnastassiou, J. in National Bank of Greece v. Masonou (1980) 1 C.L.R. 195 at p. 205 - the following were said at p. 638:
"The proper function of 'particulars' is not to state the material facts omitted from the statement of claim, in order, by filling the gaps, to make good an inherently bad pleading, however common that pernicious practice may have become. On this topic I made some observations in Bruce v. Odhams Press Ltd. (1). at pp. 712, 713 ((1936) 1 All E.R., at p. 294), and will not repeat them beyond saying that I still hold the opinion that it is not the function of particulars to take the place of necessary averments in the pleading. Their function is to put the opposite party on his guard and prevent his being taken by surprise at the trial of an action, the 'material facts' of which should have been already averred. Nor have mere statements of evidence, as such, a place in particulars, any more than in the pleading, although the dividing line between statements which contain sufficient Indication to prepare the opponent's mind for what he will have to meet at the trial and mere statements of evidence is sometimes hard to draw, and should not invite meticulous criticism. The essential rules of modern pleading embody a common-sense view of litigation, and, if complied with [*substantially and in accordance with their real Intention, are well-calculated to keep down the cost of litigation".
In the National Supply Corporation of the Libyan Arab Republic v. Achaia Shipping Limited (1975) 1 C.L.R. 427 at p.429, A. Loizou, J. cited the following passage from the Annual Practice, I960, p. 458:
"A traverse by a defendant even of a negative allegation which plaintiff must establish in order to succeed is not a matter stated of which particulars will be ordered (Weinberger v. Inglis (1918) 1 Ch. 133), but particulars may be ordered where the traverse involves a positive “allegation (McLulich v. McLulich (1920) P.439). The principle may be thus stated: where a negative allegation by a plaintiff is traversed in the defence, the question whether or not the defendant can be ordered to give particulars depends on whether the traverse is a mere traverse, or whether, though negative in form, the negative is pregrant with an affirmative. If the latter is the case, particulars of such affirmative must be given; Pinson v. Lloyds, etc.. Bank Ltd. (1941) 57 T.L.R. 558, C.A.; but see Duke's Court Estates Ltd. v. Assoc. British Engs. Ltd. (1948) Ch. 458".
In Kapatais-v-the London & Lancashire Insurance Co. Ltd. (1959-60) 24 C.L.R. 66, Zekia, J., as he then was, said at p. 72:
"No doubt the onus of proof is bound up to some extent with the materiality and sufficiency of the facts which ought to be pleaded in a statement of claim. A plaintiff is not expected to plead matters which the law presumes in his favour. But he must, however, plead sufficient facts which if proved would entitle him to succeed". It is well settled that the question whether particulars [*538] should be ordered is one of discretion which depends on the facts of each case.
In this case reading through para. 2 of the defence it is evident that it contains material allegations; and the question arises whether these material allegations contain sufficient particulars. Having anxiously considered the matter, in the light of the above case-law, I have arrived at the conclusion that the allegations in question do not contain sufficient particulars because they do not at all Inform the other side of the nature of the case it has to meet; and because they are too general, vague and obscure and they do not contain the material facts on which defendants will rely at the trial. Further, the allegations in question in the statement of defence are such that they do not enable the plaintiffs "to know what evidence they ought to be prepared with and to prepare for trial" and if no particulars of the said allegations are given plaintiffs will be taken by surprise at the trial and, also, the pleadings will be left in a very general state - one of the functions of particulars being to limit the generality of the pleadings - Also, the issues to be tried will remain unlimited and undefined - another function of particulars being "to limit and define the issues to be tried".
For all the above reasons I have decided to exercise my discretion in favour of making an order for particulars. Accordingly an order for giving particulars, as requested in paragraphs (a)-(f) of the letter of 18.11.1985 within 15 days from today, is made against the defendants. The costs of the application to be borne by the defendants. The action to be placed before me with a view to giving a date of hearing after particulars are given.
Having concluded as above I would add that the allegation of the defendants that the particulars sought are in the possession of plaintiffs and, therefore, they cannot be given, has not been sub- [* stantiated by any evidence so as to enable the Court to know whether it is genuine. But even if such objection were to be genuine, it could be "met by an order that he shall deliver forthwith the best particulars which he can at present give” (vide Supreme Court Practice, 1979, p. 300).
Order accordingly.