Court orders plaintiff in libel action to specify defamatory passages before defence is filed.

[*477] 1985 May 24

(DEMETRIOU, AG.P.D.C.)

IN THE DISTRICT COURT OF NICOSIA

Andreas Kambitis Tsioullos,

Plaintiff,

v.

“ALITHIA” Ekdotiki Eteria Ltd.,

and Others,

Defendants.

(Action No. 4343/83).

Civil Procedure - Pleadings in a libel action - Better and further particulars of the statement of claim before defence - Whole article set out as constituting the libel - In the circumstances plaintiff should be ordered to give particulars of the portions that he alleges to be untrue.

N. Markidou with X. Syllouris, for applicants-defendants 1 and 3.

A. Kagos, for Respondent-Plaintiff.

RULING

The following ruling was delivered by:-

DEMETRIOU, P.D.C.:- The plaintiff in this action is suing the defendants for damages for alleged libels published in “Alithia” daily newspaper on 12th and 14th May, 1984. The typed copies of the so called articles are attached to the statement of claim and marked by the [*478] plaintiff’s counsel as Exhibits A, B, Γ, Δ, Ε, Στ,, and are referred to in paragraphs 4, 6, 8, 10, 12, 14 of the statement of claim. With the exception of the last one the said articles are lengthy publications and are copied in full without any reference to particular passages.

After the filing of the statement of claim and before the delivery of the defence the above applicants moved the Court on their application dated December 1st, 1984 requesting particulars of the passages intended to be relied on by the plaintiff at the hearing. The respondents further require particulars of the facts and matters on which the plaintiff relies in support of the meaning alleged in innuendoes in paragraphs 5, 7, 9,

13 and 15 of the statement of claim.

The application is opposed on the ground that it is legally unfounded and for this the respondent advances in his affidavit four reasons which may be summarized as follows:-

(a) The application was filed before the delivery of the defence.

(b) The applicants do not disclose sufficient reason that the said particulars are necessary or desirable for the drafting of the defence. [*479]

(c)The application was not filed within reasonable time after the filing of the statement of claim, and

(d) In the alternative, the respondent alleges that article (a) is as a whole defamatory but as regards paragraph 4 of the affidavit reference is made to a paragraph which could not be traced.

The application is based on 0.19, rr. 6, 7, 8, 9 of the Civil Procedure Rules. Order 19, r.6 reads as follows:

“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”.

0.19, r.8, however, lays down that no particulars should be ordered before defence unless this course is deemed necessary or desirable to enable the defendants to plead to the statement of claim or for any other special reason to be delivered.

It is, therefore, my intention to decide whether the particulars asked for or any of them should be given bearing in mind the provisions of r.8. [*480] In deciding this issue the Court may have in mind the provisions of 0.19, r.4 which provides that 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. Thus only material facts should be pleaded and what is material is a question of fact depending on the circumstances of the particular case. (See Philipps v. Philipps (1887)

4 Q.B.D. 127 at page 139). At the same time the Court should bear in mind that the parties should not be told how to frame their case (Knoles v. Roberts (1888) 38 Ch. D. 263 at page 270). A certain amount of detail is necessary in every pleading to ensure clarity and to prevent taking the other side by surprise at the time of the hearing of the case. In the Annual Practice 1960 the following is observed at page 450:

“In every pleading a certain amount of detail is necessary to ensure clearness, and to prevent ‘surprise’ at the trial. Each party must state his case with precision; otherwise his opponent will not know for certain what is the real point in dispute, and, therefore will not be able to properly prepare his evidence for the trial…”. [*481]

The above passage was cited with approval in the case of National

Supply Corporation of the Lybia Arab Republic etc. v. Achaia Shipping Ltd. (1975) 1 C.L.R. 227 at page 228. See also Panayiotou v. Solomou (1979) 1 C.L.R. page 779.

Considering the above it may be said that particulars may be ordered when the plaintiff is under a specific duty to particularise his claim in order to enable the defendants properly to prepare for the trial avoiding surprises. This the Court can do in the exercise of its discretionary power and the discretion must be a judicial one. If the party applying is entitled to the information which he seeks the order should be made. In the case of D.D.S.A. Ltd. v. Times Newspapers (1972) 3 ALL E.R. p.417, at page 419 where an application to strike out of certain parts of the pleading Lord Denning said the following:-

“In the second place, the pleading is defective because it throws - and I use that word deliberately - on to the defendant a long article without picking out the parts said to be defamatory. Some of the article is not defamatory of anyone at all. It describes only the method of importing drugs. Other parts of the article are defamatory of some unnamed chemists, but not of the plaintiffs at all. Yet other parts may be defamatory of the plaintiffs. To throw [*482] an article of that kind at the defendants and indeed at the court - without picking out the particular passages, is highly embarrassing. Master Bickford Smith put it very sensibly:

‘It is tremendously embarrassing to claim the whole of the article as a libel. There is a tremendous amount of the article which is not defamatory of (the plaintiffs). You must pick out the particular bits and rely on the rest as extrinsic or surrounding facts giving a defamatory meaning to the words’”.

I considered carefully the submission of Mr. Magos that this is a case where the plaintiff can set out the whole article in the statement of claim and rely on the affect it makes as a whole. I have referred for this purpose to Gatley on Libel and Slander, at para. 1069. The reference given for this proposition, however, namely, Loughans v. Odhams Press Ltd. (1963) 1 Q.B. 299, is not on the same lines with the present case. “There, the defendants applied for a paragraph of the statement of claim to be struck out on the ground that under the relevant English rule (0.19, r. 6(2)), an innuendo could only be lawfully pleaded when the plaintiff relied on facts and matters other than the actual words of the libel itself as giving to those words a defamatory meaning different from their natural and ordinary meaning”. It was held that the said [*483] 0.19, r.6(2) merely required a plaintiff to give a defendant notice by particulars of any facts or matters which he intended to prove in support of the contention made in his innuendo that the words bore a particular meaning; and if the defamatory meaning was a matter of inference from the terms of the statement complained of, and the plaintiff intended to rely on no extraneous facts in support of the inference, it was a sufficient compliance with the rule if he so stated in his particulars, and that, since the case was one in which, if the words did bear the meaning alleged, it could only be an inference from the terms of the article as a whole, the plaintiff was entitled to plead an innuendo to that effect”.

In this case the libel complained of is of great length and is to be found in long articles. In such a case the plaintiff may be ordered to give particulars of the portions which he contends are untrue. See Halsbury’s Laws of England, 3rd Ed., Vol. 24, para. 163. Similarly where innuendo is relied on particulars should be given if the plaintiff alleges that the words complained of were used in a defamatory sense other than their ordinary meaning. See para. 162 of the same book. This is the general rule in the case where the application is filed after the delivery of the statement of claim. There is nothing to prevent the Court from directing the [*484] party to give particulars before defence is filed in the light of the provisions of 0.19, r.8.

In the case of Gastone v. United Newspaper Ltd. (1915) 32 T.L.R. 143 C.A., as reported in the English and Empire Digest, Vol. 32,

p.331. The Court in a libel action directed that particulars should be given before the filing of defence and was held where this should be given was a matter of discretion. As it was stated in the case of Alte Maritime v. Kmeid

(1982) 2 J.S.C., p.226, at p. 228, by Pikis, J.:-

“Special reasons may be found in the fact of uncommon or extraordinary circumstances making it necessary in the interest of justice to order particulars before defence”.

Having considered carefully what has been said by both sides and all the material before me, I find that the defendants are entitled to the particulars of the passages intended to be

relied on by the plaintiff at the hearing as per para. A (1) of the application. This order should be made even though such

particulars were applied before the defendants. As regards para. A(2) of the application I have decided, having read the statement of claim and in the light of the above authorities, not to make an order for particulars. [*485]

In the result, I make an order directing the plaintiff to give the particulars applied for only under para. A

(1) of the application within 25 days from today. Costs usually follow the event, but under the circumstances of the present application, including the fact that some delay was caused by the defendants in proceeding under the relevant rules, I make no order as to costs.

Order that plaintiffs give particulars under para. A(1) within 25 days.

No order as to costs.