Court orders pre-defence particulars on delivery location to establish jurisdiction despite lack of local connection.

[*226] 1980 December 11

(Pikis, P.D.C.)

IN THE DISTRICT COURT OF LARNACA

Alte Maritime Compania Naviera S.A.,

Plaintiff,

v.

Toubia KMEID,

Defendant.

(Action No. 951/1980).

Practice - Particulars of statement of claim before delivery of the defence - Discretion of the Court - Particulars may be ordered In the light of special reasons - Claim for goods. sold and delivered Particulars regarding inter alia, place of delivery ordered - Order 19 rule 8 of the Civil Procedure Rules.

P. Ioannides for T. Papadopoulos, for applicant-defendant I.

D. HjiChambis for L. Montanios, for respondents-plaintiffs.

JUDGMENT

The following judgment was delivered by:

PIKIS P.D.C. : This is-an application[*227]

for particulars before delivery of defence, requiring details surrounding the execution of the agreement, giving rise to the delivery of a specified quantity of goods as well as the place where the goods were delivered. Also particulars are sought with regard to the documentation of the transaction, mainly concerning the payment of an amount of sixty thousand dollars. Further the defendant is asked to furnish particulars about the capacity of defendant 2 and his relationship to plaintiff.

The application is opposed firstly on the ground that the particulars asked for relate to matters of evidence and as such need not be disclosed and secondly because no merits are disclosed justifying departure from the general rule that particulars should not be ordered before the delivery of the defence. Ord.19, r.8 of the Civil Procedure Rules lays down that no particulars should be ordered before defence unless this course is deemed necessary or desirable in order to enable the defendant to plead to the statement of claim or in the face of special reasons.

There is no

decision of the Supreme Court on the interpretation of 0rd.19, r.8 or any

decision exemplifying its application. English decisions on the application of an identical rule of the English Supreme Court do suggest, as learned counsel for the respondents submitted, that particulars may be ordered where plaintiff is under a specific duty to particularize his claim in order to enable the defendant either to plead thereto or make a[*228]payment into Court.(See.Monke v. Redwing Aircraft Co.(1942) I E.B. 182 - Phipps v. Orthodox Unit Trusts Limited (1958) I Q.B. 311 - Selengor United Rubber Estates Ltd. v. Cradock and Others (1965) I Ch. 896).

However there is nothing restricting the discretion of the Court to direct particulars at this early stage in the light of special reasons. Special reasons may be found ip the face of uncommon or extraordinary circumstances making it necessary, in the interests of justice, to order particulars before defence. (On the meaning of special circumstances see Clarks of Hove Ltd. v. Bakers’ Union (1979) I All E.R. I52).

Counsel inclined to the view that some guidance may be derived as to the application of Ord. 19, r.8 from the decisions of the Supreme Court on the subject of further and better particulars after defence. (See, inter alia, Kapatais v. The London & Lancashire Insurance Company, 24C0L0R. 66 - Cyprus Asbestos Mines Ltd. v. Pingos & Co (1965) I C.L.R. 345 - Kyriacou v. Licences & General Insurance Company Ltd. (1969) I C.L.R. 505 - Koulias v. Polydorides & Others (1969) I C.L.R. 616 - and Libyan National Supply Corporation v. Achaia Shipping Limited (1975) I2 J.S.C. 1807). The object of particulars after defence is to avoid surprises at the trial and enable a party to prepare for the trial with the necessary degree of certainty as to the case of his opponent. The general principle is that particulars may be ordered with regard to material-facts as opposed to evidence supporting such facts on the ground[*229]that such knowledge is absolutely essential. for preparation for the trial. In any event a duty to disclose material facts is cast on the parties by. a specific rule of Court, notably Ord.19, r.4. Exceptionally particulars may be ordered with regard to evidence if this course is essential in the interests of justice.

I have received conflicting submissions as to what the statement of claim should contain in an action for the recovery of the balance for goods sold and delivered. Learned counsel for the defendant submitted that the statement of claim should furnish particulars of the agreement giving rise to the delivery of goods and must at least specify whether the agreement was made orally or in writing and stipulations as to payment. (He cited Atkins Court Forms,2nd edition, volume 34, P.288). Mr. HadjiChambis for the plaintiffs submitted that in an action for goods sold and delivered all that the plaintiffs need particularize is the balance due. He cited Atkins (supra), 2nd edition, volume I4, at p. 270.

The conflicting submissions originate from differences in their standpoint as to the nature of the, claim in this case. Certainly the form suggested by Mr. HadjiChambis, is appropriate to sales of goods effected, so to say, across the counter whereas that indicated by Mr. Ioannides refers to a transaction for the sale of goods preceded by an agreement envisaging subsequent delivery . In the latter case the claim is for damages for breach of the agreement whereas in the former for the balance due from the sale of goods. [*230]

In this case the plaintiffs have chosen to base their action on a straight forward, transaction of sale of goods, presumably unconnected with any prior agreement and stand by it. It is very much for them to frame their cause and label their action. If any attempt is made to deviate from the course chosen they can be stopped at the appropriate time. Some of the inadequacies of the statement of claim concerning vital aspects of the transaction were remedied by the particulars of the claim furnished to defendants 2, after the delivery of defence by specifying the date on, which the goods were sold. However the plaintiffs purposely refrained, in supplying those particulars from indicating where the goods were delivered beyond making a negative statement to the effect that the goods were not delivered in Cyprus.

I need not venture any opinion as to the fate that this application would likely have if made after defence inasmuch as similar issues may be raised before the Court after defence, except perhaps mention that some of the particulars sought relate to evidence, e.g. the documentation of the transaction. I have directed my mind exclusively to deciding whether the particulars sought are either necessary or desirable to enable the defendant to plead at this stage.The answer is in the negative inasmuch as the defendant is not hindered in raising any possible defence by the formulation of the claim. Lastly, I must examine whether there are any special reasons for ordering any of the particulars sought at this stage. I was impressed by the argument that defendants may, depending on the disclosure of particulars as to the place[*231]where the goods were delivered, be in a position to contest the jurisdiction of the Court, notably its competence to try the action. And if goods were delivered following any antecedent agreement it would, for the same reasons, be imperative to disclose the place of execution of such agreement. Mr. HadjiChambis submitted that the applicants entered an unconditional appearance and cannot, therefore, be allowed to challenge the jurisdiction of the Court. My understanding is that if the competence of the Court is challenged, as opposed to its territorial jurisdiction, the matter may be taken up at any stage and certainly the sooner the better. After all both the plaintiffs and defendant I are foreign subjects and the plaintiffs seek to invoke the jurisdiction of the Court with regard to the delivery of goods made out of Cyprus. On the face of things the parties have no connection with Cyprus. I consider it necessary, in the interests of justice, that plaintiffs should give particulars within one week with regard to -

(a) the place of delivery of the goods;- and

(b) the place of execution of any agreement giving rise to such delivery if antecedent to delivery.

The applicant is only partly successful and a fair order as to costs is that costs should be in cause, and I so order.

Order as above.

Costs in cause.