Hillview Limited v Construction (Fiji) Limited [2012] FJHC 869; HBC41.2008 (10 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 41 of 2008

BETWEEN:

HILLVIEW LIMITED
a company incorporated in the Fiji Islands and having its registered office at
C/- KPMG, Suva Central, Renwick Road, Suva.
PLAINTIFF

AND:

CONSTRUCTION (FIJI) LIMITED
a company incorporated in the Fiji Islands and having its registered office at
385 Princess Road, Samabula, Suva.
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. S. Singh for the Plaintiff
Mr. P.Sharma for the Defendant

Date of Hearing : 21st October, 2010
Date of Ruling : 10th February, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff is seeking an order for further and better particulars and for an unless order to strike out the counter claim of the Defendant in the event of noncompliance with a court order to provide such particulars. The Plaintiff has sought certain information and the Defendant has replied to the said letter andbeing not satisfied with it the Plaintiff is seeking an order of the court, but the Defendant state that the Plaintiff is on a 'fishing expedition' and they have provided all the materials. In the counter claim the Defendant has alleged dishonest intention and the Plaintiff is seeking particulars on the said allegations. The Defendant has replied to the letters of the Plaintiff seeking further particulars and stated it had already supplied the particulars. The summons seek to obtain further information.
   

2. FACTS AND ANALYSIS
   

2. The Plaintiff has filed an application by Summons dated 05 May 2010 for an Order for further and better particulars.
   
3. This application is made under Order 18 Rule 11 (3) of the High Court Rules 1988.
   
4. The Defendant in the counter claim at paragraph 32 under the heading of 'Particulars of Fraudulent and False Representations' stated as follows
   

'[a] The Plaintiff represented that it was entering into the Deed to identify all claims the parties had against each other.

[b] The Plaintiff undertook that it would pay to the Defendant the monies specified under clause 2.4 of the Deed.

[c] The Plaintiff did not specify in the Deed that it had right of offset against any monies payable to the Defendant under the Contract of Deed.

[d]. The Plaintiff agreed in the Deed that it would not have any claim for liquidated damages under the Contract if the Defendant complied with the terms of the Deed.

[e] The Plaintiff knew that it had no intentions of making payment to the Defendant.

[f] . The Plaintiff knew that the Defendant would rely on the Deed to complete the works it was required to do in the belief that it would get paid as specified in the Deed.

[g]. The Defendant preformed under the Deed and completed the works it was required to do.

[h] In order to willfully and deliberately deny payment to the Defendant the Plaintiff put up a false and dishonest claim for liquidated damages as well as claim for compensation for works taken out of Defendant's hands.'

5. The Plaintiff has sought further and better particulars of matters arising out of the Defendant's Statement of Defence and Counter Claim on 07 April 2008 and more specifically on the above paragraph 32 of the counter claim.
   
6. The Defendant responded to that letter on 21 January 2010 but again, by letter dated 07 April 2010, the Plaintiff has advised the Defendant that it considered that the response by the Defendant was deficient and that it did not provide adequate particulars of key aspects of the allegations in paragraph 32 of the Counter Claim.
   
7. In the pargraph 3 of the letter of 7th April, 2008 the Defendant has requested further and better perticulars as follows
   

'3. In relation to paragraph [a] of the particulars to pargraph 32 of the Counter claim:

1. Who made the alleged representation;
   
2. The date and time the alleged representation was made;
   

100. How the alleged representation was made;
     

4. If the alleged representation was in writing, provide a copy of the document; and
   
5. If the alleged representation was oral, state the precise words used.
   

8. The reply to the said letter by the Defendant is as follows
   

'6. In response to paragraph 3

1. This representation was stated under the Heading Background –paragraph [D] in the Deed of settlement dated 21 November 2006.
   
2. 21 November 2006.
   

100. The Plaintiff signed the Deed of Settlement whilst having no intention to honour this term.
     

4. In writing as a term of the Deed of Settlement.
   
5. You already have a copy of the Deed of settlement since your client signed the same.
   

9. Again, after two years, by the letter dated 7th April, 2010 the Plaintiff is wrote back to the Defendant's solicitors (see annexure "C" of the affidavit of Martha Ieli, sworn and filed on 5 May 2010) advising that the response provided was deficient and that the following further and better particulars were required:
   
   • (a) In respect of paragraph 6(c) of the Response (in respect of paragraph (a) of the particulars of paragraph 32 of the Counter Claim);
     
     • (i) Specify the facts, matters and circumstances relied upon to support the allegation that the Plaintiff "signed the Deed of Settlement whilst having no intention to honor this term",
       
     • (ii) In respect of the pleading of "no intention", specify whether this is to be inferred and if so, what is relied upon to support the inference.
       
10. The Defendant by its letter dated 13th April, 2010 has stated as follows
    

'We have supplied you previously with whatever information that out client has in its possession. This is a case pertaining to an interpretaion of common documents.'

11. The Defendant has further in the said letter has refused to any further particulars and requested to seek a court order if they so wish.
    
12. The Defendant in its response to the further and better particulars have used the word 'intention' and this was done without providing further and better particulars of the said intention. Plaintiff has sought further and better particulars of the state of mind pleded in the counter claim as mentioned in terms of Order 18 rule 11(1)(b). In the case of Feeney v Rix [1968] 3 All E.R 22 where the Plaintiff in that cased in the statement of claim stated
    

"the Plaintiff never intended or proposed that any contribution by him to the said joint account or fund or to any of the transactions or matter referred to in para1 hereof should be a gift and none of his contributions was or ever became a gift"

In an appeal against the judge's decision allowing further and better particulars, at page 24 stated

'The judge took the view that the plaintiff's allegation in the present case was an allegation with regard to the "condition of mind of a parson" viz., that of the plaintiff himself, and that it was and allegation such as to entitle the defendant to further and better particulars so that she might know what the plaintiff's pleading really means. As he put it himself in the penultimate sentence of his judgment (3):

"What, of course, she wants to know is whether the plaintiff is simply saying, that he contributed to the purchase and that he in his own mind did not intend his contribution to be gifts or whether he is also saying that he let the defend know that he did not intend his contributions to be gift."

For my part I cannot see, any more that the judge could see, why the plaintiff should not be called on to give that information,without which as it seems to me the pleading in its present form is embarrassing.'

Ratio of the above case is clear that if intention is alleged in a pleading further particulars needed to be given on that intention and providing further and better particulars as to the state of mind. What the Plaintiff in the present action is seeking why such an allegation is made and to explanation as to arriving at such an allegation, in order to avoid any surprise at the trial. This cannot be considered a 'fishing expedition' and it is a trite law that particualrs as to state of mind has to be provided if pleaded.

13. Order 18 Rule 7(1):"A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, ... fraud or any fact showing illegality –
    
    • (a) Which he alleges makes any claim or defence of the opposite party not maintainable; or
      
    • (b) Which, if not specifically pleaded, might take the opposite party by surprise ..."
      
14. Order 18 Rule 11(1): "... every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words –
    
    • (a) Particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and
      
    • (b) Where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies."
      

Order 18 rule 11 (3) states as follows

'(3) The Court may order a party to serve on any other party particualrs of any claim, defence or other matter stated in this or her pleading, or inany affidavit of his or her ordered to stand as pleading, or a statement of the nature of the case on which he or she relies, and the order may be made on such terms as the Court thinks just.'

15. In Superme Court Rules of 1999 at page 328 (18/12/2 )
    

'The purpose of pledings is not to play a game at the expense of the litigants but to enable the opposing party to know the case against him. There is tendency to forget this basic purpose and to seek paritculars which are not necessary when in truth each party knows the others' case (Trust Securities Holdings v Sir Robert McAlpine & Sons Ltd (1994) The Times, December 21, CA)

Whenever either party is imputing fraud, negligence, or misconduct to his opponent, the facts must be stated with especial particurity and care.'

'Again under sub heading 'knowledge' it is stated (White Book 1999)

'Where knowledge is pleaded as a fact, particulars fo the facts on which a paty relies in support of such allegation may, but need not be contained it the pleading itself, but such particulars should be given on request or the Court may order them to be given.

In page 337 18/12/56 under 'Particulars ordered by Court' it stated as follows

'The question whether and what paritulas should be ordered is one of discretion. The Court may refuse to order [particulars of pleading to which a party would otherwise be entitled, where there has been inedcusable dealy in making the application or the applicaton is made at late stage, e.g. when there might be substantial risk tht a fixed date of trial would have to be vacated (Astrovlanis Compania Naviera SA v Linard [1972] 2QB 611; [1972] 2 All ER 647, CA)

16. The principles on grant of further and better particulars are set out in the judgment of Byrne J in In re Estate of Harry Janson Ho [1993] FJHC 43:
    

"The general principle governing the delivery of further particulars of any pleading is that these will be ordered by the Court if it considered desirable to 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 a pleader and which an opponent may demand of him when formulating either a claim or defence.

It is, however, essential that each party should give his opponent a fair outline of the case which will be raised against him at the hearing, and for this purpose he must set out in the body of his pleading all particulars which are necessary to enable his opponent properly to prepare his case for trial.

Particulars need be given only of facts and not of evidence but as much certainty or particularity will be directed in a particular case as is reasonable having regard to the circumstances and the nature of the acts alleged – see Ratcliffe v. Evans [1892] UKLawRpKQB 131; (1892) 2 Q.B. 524, at 532. In Bullen and Leake and Jacob's Precedents of Pleadings 12th Edition the authors remark at p.113 that the tendency of modern practice is to give full particulars as may be necessary of the matters pleaded, and to respond to a request for further and better particulars of pleading more fully than previously. However, the law has always hel against a party to litigation attempting to obtain information by way of particulars which can only be obtained by interogatories – see Lister & Company Limited v. Thompson (1891) 7 T.L.R. p.107. The practical reason for this rule of practice is that whereas when interogatoriesare delivered, the answers must be on oth and various objections to provide the answers such a privilege, oppressiveness and fishing andxexatiousness may be taken by the other party, the same is not true of further particulars. In addition, because answers to interogatories must be sworn if, when the matter comes to trial the person interogated when giving evidence appears to resile from or vary his answers to interrogatories, an attack may be made on his credibility.

This is not true of further and better particulars so that a party may obtain an advantage over his opponent if further and better particulars are supplied when they would not necessarily have been if interrogatories had been delivered."

So, what has to be distinguished is the evidence and facts from a case. In Pacific Green Industries (Fiji) Limited v Sun Insurance Company Limited [2006] FJHC 60 the High Court held at paragraphs 6 to 9 on page 2.

"[6] The nature of the distinction between fact and evidence is often difficult to apply. The example discussed by the learned author of Australian Civil Procedure 4th edition at page 182 provides a simple illustration by example of the distinction between fact and evidence, and I quote:

"To take an obvious example, in action for negligence, the plaintiff must prove a duty of care and a breach of that duty by the defendant. The plaintiff alleges the duty of care and the defendant's breach of it. The facts that constitute the breach are evidence. If, for example, the defendant owes the plaintiff a duty to provide a safe system of work, facts that the defendant maintained machinery by a particular ineffective method are evidence. The ultimate fact in support of the breach of duty is, inter alia, that the defendant failed to properly maintain the machinery. What constitutes the actual impropriety is evidence".

[7] A fact which is relevant only to establishing an ultimate fact is evidence. Those facts must not be pleaded. I must decide what facts constitute the defence and what facts go to prove the existence of those facts. Only the former facts are required to be alleged in the pleadings, since the latter class of facts are evidence.

[8] Denman CJ explained the nature of the distinction between fact and evidence in Williams v Wilcox, [1838] EngR 305; 112 E.R. 857 at 863 referred to in the above text on the same page as follows:

It is an elementary rule in pleading that, when a state of facts is relied on, it is enough to allege it simply, without setting out the subordinate facts which are the means of producing it, or the evidence sustaining the allegation....It is true that this mode of pleading does not disclose to the defendants the case on which the plaintiff relies: but to object to it on this ground, is to misconceive one object of pleading, and to forget another: the certainty or particularity of pleading is directed, not to the disclosure of the case of a party, but to informing the court, the jury, and the opponent of the specific proposition for which he contends, and a scarcely less important object is the bringing the parties to issue on a single and certain point, avoiding that prolixity and uncertainty which would very probably arise from stating all the steps which lead up to that point".

17. The above mentioned Green Industries (Fiji) Limited v Sun Insurance Company Limited [2006] FJHC 60 is not a case where any state of mind or misrepresentation was alleged and particurals sought in terms of Order 18 rule 11(1)(b) and what was held in that case cannot be applied in toto as it can be clearly distinguished from the case before me where the particulars of the state of mind is the main issue.
    
18. The other objection taken by the Defendant for the summons seeking further and better particulars is delay. There is obviously a delay as no such matrials were requested for more than two years till the Defendant took intitiative to proceed with the action, but the delay itself would not be a reason for the rejection of any application for better particulars. The matter has not proceeded even to pretrial conference and in the circumstances the objection based on delay should be rejected. In Pacific Green Industries (Fiji) Limited v Sun Insurance Company Limited [2006] FJHC 60 in the High the discovery was refused as the delay amounted to the said matter being re fixed for trial if the discovery is grntedand the application for the discorvery if granted would invariabley delayed the trial and the said facts are different from the matter before me.
    
19. In the case of Druma and Ors v Nakete and Ors (HBC No 214/2007 the Court had to consider a pleading of fraud and commented as follows:
    

"Fraud is a most serious matter and a most serious allegation. 'Fraud' cannot be asserted in a court of law without a proper foundation ...the [defendant] has raised this in its contentions as to a lack of particulars, and particulars of fraud are essential to a claim of fraud. 'Particulars' are set down in relation to 'fraud' in the Statement of Claim. However, the particulars must or must also focus itself – that is, what are the particulars of the fraud or fraudulent conduct. It is not enough, in my opinion, simply to say that various monies have been said 'fraudulently' or as a result of 'fraud'. Particulars must, as noted, incorporate with precision the actual conduct involved in the payout of the monies andin decision-making as to the payout, etc which supports (in the Plaintiff's contention) actual fraudulent conduct."

20. By its solicitors' letter dated 13 April 2010, the Defendant advised that it had supplied more than adequate particulars and that the Plaintiff was to file a formal application in Court and also stated that it is a case of interpretation of common documents.
    
21. In Supreme Court Rules (1999) at page 339 (18/12/63) it is stated
    

'(7)Facts within applicnt's own knowledge- It is sometimes ureged as an objeton to an application for particulrs that the applicant must know the ture facts of the case better than his opponent (Harbord v monk[1878] UKLawRpCh 267; (1878) 38 L.T. 411; Keogh v Incorporated Dental Hospital of Ireland (1910) 2 Ir.R. 166 CA). But this objection is misconceived: each party is entitled to know the outline of the csse that his adversary is going to make against him, to bind him down to a definite story.'(emphasis is mine)

22. In terms of Order 18 rule 11(1)(b) the particulars sought by the Plaintiff as to the answer provided by the Defendant as 'The Plaintiff signed the Deed of Settlement whilst having no intention to honour this term.' Needs further clarification based on the reasoning I have stated before. The Plaintiff in its letter of 7th April, 2010 seeks further clarification as to the said 'intensition' and specifically stated 'in respect of the pleading of "no intention", specifywhether this is to be inferred and if so what is relied upon to support the inference.' This needs to be replied by the Defendant. This is similar to the particulars sought in the case of Feeney v Rix [1968] 3 All E.R 22 where the person who stated that he never intended to gift the money was ordered to provide further particulars of intension. So the alleged 'intention' not to honour, needs to be further particularised by the Defendant and letter dated 7th April, 2010 (a) (i) and (ii) is granted subject only to the facts relied by the Defendant as to the intention in the exercise of the discretion of the court and now I will proceed to the remaining requests by the Plaintiff that deals with the paragraphs 10 and 11 of the letter of 21st January, 2010
    
23. In respect of paragraph 10 of the Response ( in respect of paragraph (h) of the particulars of paragraph 32 of the Counter Claim) the Plaintiff sought following;
    
    • (i) Specify the facts, matters and circumstances relied upon to support the allegation that the Plaintiff seeks to willfully and deliberately deny payment of the Defendant;
      
    • (ii) In respect of the pleading of particulars that the Plaintiff "would have known from the outset it was going to use this excuse":
      
      • (A) Provide details of the Plaintiff's knowledge as alleged;
      • (B) If this is to be inferred, what facts are relied upon to support the inference;
        
    • (iii) In respect of the pleading of particulars that the "Plaintiff's conduct in entering into the Deed of Settlement was nothing but a sham" provide details of the basis upon which it is alleged that entering into the Deed of Settlement was a "sham".
      

Paragraph 10 of the Defendant's letter of 21st January, 2010 stated as follows

'10. In response to pargraph 7, the Plaintiff issued a Notice of Dispute on 7th August, 2007 and raised a claim for damages in order to deny and negate having to pay the Defendant.When the Supervisor gave his ruling on 18th September 2007 to say that the Plaintiff's reliance on clause 44.6 of the Original Contract was misconceived the Plaintiff still refused its obligation to pay the Defendant. The Plaintiff would have known from outset tht it was going to use this excuse to deny making payment to the Defendant. The Plaintiff's conduct in entering into the Deed of settlement was nothing but a sham.

24. The Plaintiff sought further particulars into its letter of 7th April, at paragraph 7 as follows
    

'7. In relation to paragraph[h] of the particulars to paragraph 32 ofthe Counter Claim, specify the facts, matters and circumstances relied upon to support the allegation that the Plaintiff seeks to willfully and deliberately deny payment to the Defendant.'

25. In the reply the Defendant has described the circumstances as to why it has pleaded pargraph 32[h], sufficiently and why it call it a sham and no further particulars are needed as the said paragraph is self explanatory and the Plaintiff is not misled as to the allegation and has suffiently provided particulars to prevent any surprise and the request for furher particulars is refused.
    
26. In respect of paragraph 11 of the Response (in respect of paragraph (h) of the particulars of paragraph 32 of the Counter Claim) the Plaintiff sought following;
    
    • (i) Specify the facts, matters and circumstances relied upon to support the allegation that the Plaintiff put up a false and dishonest claim for liquidated damages as well as a claim for compensation for works taken out of the Defendant's hands; and
      
    • (ii) In respect of the pleading of particulars that "it was dishonest on the part of the Plaintiff to raise [a claim for liquidated damages] to negate the Defendant's claim for payment":
      
      • (A) Provide details of the Plaintiff's dishonesty as alleged;
      • (B) Provide details of the Plaintiff's dishonest intention as alleged;
      • (C) If this is to be inferred, what facts are relied upon to support the inference.
        
27. The above mentioned paragraph 11 state as follows
    

'In response to paragraph 8, when the Deed of Settlement was negotiated and signed on 26 November 2006 the parties had agreed that it was for any claims that the parties had against each other. The Plaintiff made no mention of any claim under clause 44(6) of the original contract. However, once the Defendant had complete the works and was cleared to receive payment the Plaintiff resorted to a claim for damages under clause 44.6 of the Original Contract. The words "any claims they may have against each other are clear and unambiguous. The claim for liquidated damages was not raised in the Deed of Settlement and it was dishonest on the part of the Plaintiff to raise such a claim to negate the Defendant's claim for payment. This apathy is also shown by the Plaintiff's reluctance to move this case expetitiously to trial.

28. The Plaintiff's letter of 07 April 2010 (Annexure "C" of the Affidavit of Martha Ieli, sworn and filed on 05 May 2010) outlines the particulars sought from the Defendant.
    

'The particulars sought are as follows:

(a) In respect of paragraph 6(c) of the Response (in respect of paragraph (a) of the particulars of paragraph 32 of the Counter Claim):

• (i) Specify the facts, matters and crcumstances relied upon to support the allegation that the Plaintiff "signed the Deed of Settlement whilst having no intention to honor this term",
  
• (ii) In respect of the pleading of "no intention", specify whether this is to be inferred and if so, what is relied upon to support the inference.
  

(b) In respect of paragraph 11 of the Response (in respect of paragraph (h) of the particulars of paragraph 32 of the Counter Claim):

• (i) Specify the facts, matter and circumstances relied upon to support the allegation that the Plaintiff put a false and dishonest claim for liquidated damages as well as a claim for compensation for works taken out of the Defendant's hands; and
  
• (ii) In respect of the pleading of particulars that "it was dishonest on the part of the Plaintiff to raise [a claim for liquidated damages] to negate the Defendant's claim for payment":
  
  • (A) Provide detaile of the Plaintiff's dishonesty as alleged;
  • (B) Provide details of the Plaintiff's dishonest intention as alleged;
  • (C) If this is to be inferred, what facts are relied upon to support the inference.
    

29. In the circumstances, the explanation given by the Defendant in said paragraph 11 is sufficient and there is no need for further and better pariculars as requested by the Plaintiff. The Defendant has sufficiently described the circumstances and facts that leads to the allegation of dishonesty.
    

100. CONCLUSION
     

30. The Plaintiff has sought further and better particulars on three specific paragraphs of the letter that provided particulars sought by the Defendant. The answer 'The Plaintiff signed the Deed of Settlement whilst having no intention to honour this term' is not sufficiently particularised applying the ratio in Feeney v Rix [1968] 3 All E.R 22, but the particulars are sufficiently described in paragraph 10 and 11 of the said letter, and no further particulars are ordered as the said paragraphs are self-explanatory and the request for further particulars on the said paragraphs are refused as the purpose of pleadings is not to play a game at the expense of the litigants and there is tendency to forget this basic purpose and to seek particulars which are not necessary when in truth each party knows the others' case (Trust Securities Holdings v Sir Robert McAlpine & Sons Ltd (1994) The Times, December 21, CA) as stated in the Supreme Court Rules (1999).
    

4. FINAL ORDERS
   

1. The Defendant is ordered within 21 days, to Specify the facts, relied upon to support the allegation that the Plaintiff "signed the Deed of Settlement whilst having no intention to honor this term", and in respect of the pleading of "no intention", specify whether this is to be inferred and if so, what is relied upon to support the inference.
2. All other requests contained in the summons dated 5th May, 2010 is refused.

100. The cost of this application will be cost in the cause.
     

Dated at Suva this 10th day of February, 2012.

.................................................
Mr. Deepthi Amaratunga
Master of the High Court
Suva