Court dismissed pre-defence particulars application as no special reasons existed to embarrass defendants.

[*235] 1983 Dec. 21

(ARTEMIS, S.D.J. )

IN THE DISTRICT COURT OP LIMASSOL

Lefkios Rodosthenous,

Plaintiff,

v.

Nicolaos Constantinou Varvia and Others,

Defendants.

(Action No. 891/83).

Civil Procedure - Pleadings - Particulars of statement of claim before defence - Principles applicable - Particulars may be ordered before defence where the plaintiff is under a specific duty to give particulars of his claim in order to enable the defendant either to plead thereto or make a payment into Court or where the defendant would otherwise be prejudiced or embarrassed in his pleadings - No special reasons existing in this case making it necessary to make an order for particulars - Order 19 rules 6 and 7 of the Civil Procedure Rules.

Civil Procedure - Practice - Interlocutory application - Specification of the rules relied upon - Whether a mere formality or a substantive procedural provision - Application for particulars before defence - Whether to be based on rule 8 of Order 19 of the GiviL procedure Rules in addition to rules 6 and 7.

Y. Agapiou, for Applicants-Defendants 1 and 3.

A.P. Anastassiades, for Respondent-Plaintiff.

RULING

The following ruling was delivered by:-

ARTEMIS. S.D. J.:- This is an application [*236] for further and better particulars of paragraph 3 of the Statement of Claim which followed a request for particulars by letter dated 2/5/83. This application is made before the filing of a Statement of Defence. The relevant parts of paragraph 3 of the Statement of Claim read as follows:

"Κατά ή περί τας αρχάς του έτους 1983, ο

Ενάγων συνεφώνησε όπως αγοράση και οι Εναγόμενοι 1 και/ή 2 και/ή 3

ενεργούντες προσωπικώς και/ή δι'αντιπροσώπων, συνεφώνησαν όπως πωλήσουν εις τον Ενάγοντα εν

οικόπεδον ............"

Some of the particulars asked for were given in reply to the afore-mentioned letter and the particulars now required by the application are the following:

(a) when the alleged agreement was made and where,

(b) whether it was made with the Applicants personally or through an agent, and,

(c) if it was made through an agent or agents to be named.

The application is based on 0.19, rr.6 and 7 and o.48, r.9(l) of the Civil Procedure Rules. Learned Counsel for the Respondent argued that this application must fail as, 2 by requiring particulars before defence, the Applicants should have based their application on r.8 as well. He further argued that, whereas no affidavit is necessary to accompany the appli- [*237]

cation if it is only based on rr.6 and 7, by implication if one reads o.48, such an affidavit would be necessary in applications based on r.8. Furthermore, he argued that the Applicants are not entitled to the particulars asked for as what they seek to do is to obtain evidence and the names of witnesses.

Learned Counsel for the Applicants, citing authorities on the particulars to be given in respect of agreements, submitted that he is fully entitled to what he asks, including the names of the agents, if any, even though this may mean that names of witnesses will be disclosed, as he is fully entitled to the particulars asked for, and the disclosure of such names is merely incidental.

I shall first deal with the failure to make reference to rule 8 in the body of the application. Although generally rules of procedure must never be allowed to dominate the judicial process, Pikis, P.D.C., as he then was, had the following to say in District Court case Kouppa & Another v. Vassiliades (1981) 1 J. S.C. , p. 120, at p. 125:-

"The specification of the rules relied upon in interlocutory proceedings is not, to my comprehension, a matter of mere formality but a substantive procedural provision that should be strictly adhered to. For interlocutory proceedings are proceedings of an extraordinary nature in that [*238] deliberations are made without a complete trial, the normal process through which a cause is ventilated before the Court. Hence procedural safeguards designed to elicit the questions in issue and put the matter in a proper perspective should be meticulously observed especially mandatory provisions like those set out in Ord. 48, r.1".

Turning now to 0.19 of the Civil Procedure Rules, r.8 thereof reads as follows:-

" Particulars of a claim shall not be ordered under rule 6 of this Order to be delivered before defence unless the Court or Judge shall be of opinion that they are necessary or desirable to enable the defendant to plead or ought for any other special reason to be so delivered."

It is plain from the wording of this rule that any order for particulars given by the Court, even before the filing of a Statement of Defence, is not given pursuant to this rule but to rule 6, and rule 6 is one of the rules on which this application is based. What rule 8 regulates is in what circumstances an order for further and better particulars will be made before the filing of the defence "under r.6 of this Order". Thus, it may be legitimately argued that, as rule 8 merely restricts rule 6 and gives a discretion to the Court whether to order particulars before defence or not and does [*239] not give any substantive right to apply for particulars under it, the inclusion of this rule is not necessary as suggested by learned Counsel for the Respondent. The purpose of the Rules of Court is to provide for procedural safeguards designed to elicit the matters in issue; the fact that the application is made before the filing of a Statement of Defence makes it amply

obvious that the discretion of the Court under rule 8 is actually sought by this application without reference to rule 8. Therefore, on this issue I would be

inclined to dismiss the objection of learned Counsel for the Respondent.

Coming now to the substance of the application, the purpose of. .particulars (after defence) is to avoid any surprises at the trial and to enable a party to prepare for it with the necessary degree of certainty as to what the case of his opponent is. The general principle is that the particulars that may be ordered are with regard to material facts and not to evidence supporting such facts on the ground that knowledge of material facts is absolutely necessary for preparation for the trial. Exceptionally, however, particulars may be ordered with regard to evidence if this is essential in the interests of justice . If the only object of the application is to obtain names of witnesses or other clues to the evidence of the opponent, it will be dismissed. Where, however, the information asked for is clearly necessary to enable the applicant to preparerfor trial, then the information must be given even though it discloses some evidence on which the other party proposes to rely at the trial or even if it discloses the names of witnesses. (See Marriott v. Chartbarlain, [*240] 17 Q.B.D. 154, 161; Ziereriberg v. Labouchere (1893) 2 Q.B. pp. 187, 188; Bishop v. B., (1901) 325; etc.)

I have been unable to trace any

decision of our Supreme Court on the interpretation of 0.19, r.8. What English decisions on the application of a similar rule of the English Supreme Court suggest is that particulars may be ordered before defence where the plaintiff is under a specific duty to give particulars on his claim in order to enable the defendant either to plead thereto or make a payment into Court or where the defendant would otherwise be prejudiced or embarrassed in his pleadings. (See Monkev. Redwing Air craft Co. (1942) 1 K.B. 182; Phipps v. Orthodox Unit Trusts Limited (1958) 1 Q.B. 311; Selengor United Rubber Estates Ltd. v. Cradock and Others (1965) 1 Ch. 896).

If, therefore, there are special reasons, the Court may order particulars at this early stage. Such special reasons may be found in a case of uncommon or extraordinary circumstances, making it necessary in the interests of justice to grant such an order before defence.

Bearing in mind the above principles and having given due consideration to the circumstances of this case, I am unable to say that such special reasons exist. There is an allegation of the existence of an agreement reached directly or through agents. Surely the Defendants can plead to this allegation in their defence without being at all embarrassed [*241] or prejudiced at this stage. Their argument that they may want to make a payment into Court is neither here nor there, in the circumstances, as what they apply

for is not particulars of special damage. Even though prima facie, and without wishing to pre-judge the outcome of a subsequent similar

application, it seems that they might be successful in a similar application after delivery of defence, I am not at present satisfied that they are entitled to the particulars asked for before defence.

I therefore dismiss the application with costs against the Applicants. Costs to be assessed by the Registrar.

Application dismissed

with costs.