Court orders defendant to provide case particulars to prevent trial surprise, rejecting evidence disclosure request.

[*228] 1983 Dec. 12

(ELIADES, D.J.)

IN THE DISTRICT COURT OF FAMAGUSTA

SITTING AT LARNACA

Kallis Matsangos,

Plaintiff,

v.

OROMARE DEVELOPMENTS LTD. ,

Defendants.

(Action No. 169/83).

Civil Procedure -Pleadings - Particulars of Statement of Defence -Order 19 rule 6 of the Civil Procedure Rulea - Principles applicable - Particulars asked for are particulars which must be given in order to elucidate the case the applicant has to meet and are not particulars of the evidence - Order for particulars as applied for,

T. Koumis, for the Applicant.

Z. Toulouras, for the Respondents.

RULING

The following ruling was delivered by:-

ELIADES. D.J.:- The applicant-plaintiff [*229] claim against the respondents-defendants, is for an amount of £380.-

for allegedly extra work carried out by him in his capacity as a painter in a block of flats which was under construction at Larnaca by the respondents-defendants.

By their statement of defence the respondents alleged that they have paid the applicant in full for the services rendered by him and that as a result of applicant's failure to perform properly his obligations and the abandoninq of the painting of the block of flats they have suffered damages estimated at £230.-.

As no details were provided as to how the amount of £230.- was arrived at, the applicant's Lawyer by a letter dated the 21.10.83 asked for the following particulars:

a) Which part of the work was deficient,

b) Which part of the work was left unfinished,

c) What other deficiencies were left,

d) When did the applicant abandon the project,

e) When did the respondent discover the deficiencies,

f) Why did the respodents pay the applicant as the work was left bv him uncompleted, [*230]

g) Where was the amount of £230.- paid to the applicant,

h) Details of labour and materiel costs comprising the £230.-, and

i) TO whom was the amount of £230.- paid?

As no answer was given by respondents, the applicant filed on the 3.11.83 an application by which he asked for an order of the Court directing

the respondents to deliver the particulars which, were asked for by his letter. On the 26.11.83 counsel for respondents

addressed a letter to applicant’s advocate by which he informed him that concerning items (a) (b) (c) the deficient work included -

a) Paintings of the verandas at £130.-.

b) Painting of the bathrooms at £ 60.-

c) Painting of wardrobes and

curtain-holdings at £40.-

Total £230.-.

Concerning the particulars under items (d), (e), (f) (g), (h) and (i), counsel for respondents alleged that they form a matter of evidence and that as such the respondents were under no obligation to provide the applicant with any details. [*231]

In fact the contents of this letter form the substance of the respondents' opposition to the applicant’s application.

At the hearing of the application counsel for the respondents clarified that all the verandas and bathrooms required to be repainted and argued that he was under no legal duty to provide the applicant with any other particulars. Needless to say applicant’s counsel argued the opposite.

The application is based on 0.19 R.6 which provides that:

"A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in the pleading, notice, or written proceeding requiring particulars, may in all cases be ordered upon such terms, as to costs and otherwise as may just."

This order corresponds exactly to o.19 R.7 of the English Rules of the Supreme Court (see The Annual Practice 1956) end a reference to English Authorities on the matter would afford a good guidance.

As it was laid by Cotton L.J. in Phillips v. P.,

4 Q.B.D. p. 139:

"In my opinion it is absolutely essential that the pleading, not to be embarassing to the defendants, should state those facts which will put the defendants on their guard, and tell them what “they have to meet when the case comes on for trial. Each party [*232] must plead all the material facts on which he means to rely at the trial; otherwise he is not entitled to give any evidence of them at the trial. No averment must be omitted which is essential to success. Those facts must be alleged which must, not may, amount to a cause of action."

It would be time saving to summarise the basic propositions upon which particulars may be ordered. These are, (a) The need to inform the other side of the nature of the case he has to meet as opposed to the mode of proving such case, (see Duke and Sons Ltd. v. Wisden and Co.(1897)77 L.T. 67), and (b) To prevent the other side from being taken by surprise (see Spedding v. Fitzpatrick (1889) 38 Ch. D. 410.)

By a series of decisions the Supreme Court of Cyprus has adopted the principles enunciated and followed by the English decisions, the cardinal rule being that an opponent is entitled to know what is to be proved as opposed to how it is to be proved. (See Kyriacou v. Licences & General Insurance Co. Ltd. (1969) 1 C.L.R. 505, Kapatais v. The London & Lancashire Insurance Co. Ltd. 24 C.L.R. 66, P. Koulias v. Ioannis Chr. Polydorides (1969)

1 C.L.R. p. 616) .

As it was said by A. Loizou J. in Libyan Arab Republic v. Achaia Shipping Ltd. (1975) 1 C.L.R. p. 427:

"As already stated, the function of particulars, as it is well established, is to ensure clearness and to prevent surprise at [*233] the trial, by having each party stating his case with precision, so that the opponent will know for certain what is the real point in dispute and prepare for the trial."

In the same context Triantafyllides P. had these to say:

"... particulars may be ordered to enable a party to know, before the trial, with a degree of certainty, the case of his opponent, but that by an order for such particulars a party should not be made to disclose evidence supporting allegations in his pleadings,

" (See Kassapis v. Louca (1981) 1 C.L.R. 666) .

Reverting to the facts surrounding the present application I am of the view that the particulars asked for are particulars which must be given in order to elucidate the case the applicant has to meet and are not particulars of the evidence which will be adduced by the respondents in establishing their case. General allegations by the defence that the painting work carried out by the applicant in a block of flats is deficient, that the applicant has abandoned his contractual obligations and that he has been fully compensated for the work carried out by him must be accompanied by specific details so that the applicant will be prepared for the trial. Justice is best served by excluding surprise and channellinq litigation on the material substance of the dispute between the litigants.

I have considered carefully the contents of the respondent's letter dated the 26.11.83 and I have arrived at the decision that the respondents must provide and they are hereby ordered to provide the applicant with the following particulars: [*234]

a) Which parts of the work (excluding the paintings of the verandas and bathrooms) were deficient and when did the respondents discover these deficiencies,

b) Which part of the work was left unfinished,

c) When did the applicant abandon the project, and

d) When, where and by whom the amount of £230.- was paid by the respondents to the applicant.

The particulars are ordered to be delivered within 4 weeks from today. Failing delivery of the particulars the applicant may apply to the Court for directions as to the fate of these proceedings. costs of this application against respondents.

Application granted with costs