Kurop v Adrenalin Watersports (Fiji) PVT Ltd [2016] FJHC 21; HBC83.2013 (15 January 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 83 of 2013

BETWEEN :

URI KUROP of 34 Wasawasa Road, Newtown, Nadi,
FIRST PLAINTIFF

AND:

AQUA BLUE (FIJI) LIMITED a duly incorporated limited liability company having its registered office at Crosbie and Associates, 3 Cruikshank Road, Nadi, Fiji.
SECOND PLAINTIFF

AND:

ADRENALIN WATERSPORTS (FIJI) PVT LIMITED a duly incorporated limited liability company having its registered office at Shop 8 Port Denarau, Nadi, Fiji.
FIRST DEFENDANT

AND:

PAUL COOK of Shop 8 Port Denarau, Nadi, Fiji.
SECOND DEFENDANT

AND:

ZDENKA COOK of Shop 8 Port Denarau, Nadi, Fiji.
THIRD DEFENDANT

AND:

LOATA VULASE of Shop 8 Port Denarau, Nadi Fiji.
FOURTH DEFENDANT

Mr. Nemani Vakacakau for the Plaintiffs
(Ms.) Lara Dawn Jackson & Mr Jone Salabuco Bale for the Defendants

Date of Hearing : - 12th October 2015
Date of Ruling : - 15th January 2016

RULING

(A) INTRODUCTION

(1) The matter before me stems from the Plaintiffs Summons for further and better particulars and/or for leave to file and deliver interrogatories. The application is made pursuant to Order 18, Rule 11 (3) and Order 26, Rule 1 of the High Court Rules 1988 and the inherent jurisdiction of the Court.

(2) The Summons is supported by an Affidavit sworn by "Uri Solomon Kurop", the first named Plaintiff and a shareholder and Director of the second Plaintiff.

(3) The Summons is strongly resisted by the Defendants.

(4) The Defendants filed an Affidavit in Opposition opposing the Summons, sworn by "Loata Vulase", the fourth Defendant and the director of the first named Defendant.

(5) The Plaintiffs filed an Affidavit in reply.

(6) The Plaintiffs and the Defendants were heard on the Summons. They made oral submissions to Court. In addition to oral submissions, the Counsel for the Plaintiffs and the Defendants filed a careful and comprehensive written submission for which I am most grateful.

(B) THE LAW

(1) It is necessary to turn to the applicable law and judicial thinking in relation to the principles governing the exercise of the discretion to make the order the Plaintiffs now seek.

(2) Rather than refer in detail to the various authorities, I propose to set out with only important citations, what I take to be the principles of the play.

(3) The Plaintiffs application is made pursuant to Order 18, Rule 11 (3) of the High Court Rules, 1988. I should quote Order 18, Rule 11 (3) which provides;

"The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading or in any affidavit of his ordered to stand as a pleading or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just".

In Supreme Court Practice, 1999 at page 328 (18/12/2) it is clearly outlined that:

"The purpose of pleadings is not play a game at the expense of the litigants but to enable the opposing party to know the case against him. There is a tendency to forget this basic purpose and the 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".

In Supreme Court Practice, 1999 at page 337 (18/12/56) under the heading "Particulars Ordered by Court" it is stated that:

"The question on whether and what particulars 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 inexcusable delay in making the application or the application is made at a late stage e.g. when there might be a substantial risk that a fixed date of trial would have to be vacated (Astrovlanis Compania Naviera SA v Linard [1972] 2 QB 611; [1972] 2 All ER 647, CA).

(4) 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: His Lordship held;

"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 held against a party to litigation attempting to obtain information by way of particulars which can only be obtained by interrogatories – 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 interrogatories are delivered, the answers must be an oath and various objections to provide the answers such a privilege, oppressiveness and fishing and may be taken by the other party; the same is not true of further particulars. In addition, because answers to interrogatories must be sworn if, when the matter comes to trial the person interrogated 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."

(5) In Pacific Green Industries (Fiji) Ltd v Sun Insurance Company Ltd [2006] FJHC 60, HBC 070.2005 (9 August 2006) it was held;

"[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 an 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 is evidence.

[8] Denman CJ explained the nature of the distinction between fact and evidence in Wiiliams 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".

(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 an 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) "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 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".

(8) In the case of Radravu v Tuimavana [2012] FJHC 1196, the Honourable Court held;

"9... 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 of the case as held in Ratcliffe v. Evans [1892] UKLawRpKQB 131; (1892) 2 Q.B. 524, at 532. The circumstances of this case is that the cause of the fire is not an external factor and the bus was ignited when it was driven by 1st Defendant and in such circumstances whether there was a defect of the bus at the time of the inspection is a matter of evidence that the 2nd Defendant has to prove at the trial..."

(9) The Supreme Court Practice [1999] describes succinctly the purpose for the requirement to give particulars. The Supreme Court Practice says under Order 18 Rule 12 (2);

"General – The requirement to give particulars reflects the overriding principle that the ligation between the parties, and particularly the trial, should be conducted fairly, openly, without surprises and, as possible so as to minimize costs (a view approved by Edmund-Daviez L.J. in Astrovlani Compania Naviera SA v. Linard [1972] 2 Q.B. 611; [1972] 2 All ER 647). The function of particulars is accordingly;

(1) To inform the other side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved (per Lindley L.J. in Duke v Wisden 918970 77 L.T. 67 at 68, per Buckley L.J. in Young & Co. [1924] 1 K.B. 675 at 679;

(2) To prevent the other side from being taken by surprise at the trial (per Cotton L.J. in Speding v Fitzpatrick [1888] UKLawRpCh 86; (1888) 38 Ch. D 410 AT 413; Thomson v Birkley (1882) 31 W.R. 230;

(3) To enable the other side to know with what evidence they ought to be prepared and to prepare for trial (per cotton L.J. ibid; per Jessel m.r. in Thorp v Holdsworth 918760 [1876] UKLawRpCh 167; 3 Ch. D 637 AT 639; Elkington v. London Association for the Protection of Trade (1911) 27 T.L.R. 329 at 330);

(4) To limit the generality of the pleadings (per Thesiger L.J. Saunders v Jones [1877] UKLawRpCh 345; (1877) 7 Ch. D 435) or of the claim or evidence (Milbank v Milbank [1900] UKLawRpCh 29; [1900] 1 Ch. 376 at p.385);

(5) To limit and define issues to be tried, and as to which discovery is required (Yorkshire Provident Life Assurance Co v Gilbert [1895] UKLawRpKQB 67; [1895] 2 Q.B. 148, per Vaughan Williams L.J. in Milbank v Milbank [1900] UKLawRpCh 29; [1900] 1 Ch. 376 at 385);

(6) To tie the hands of the property so that he cannot without leave go into any matters no included (per Brett L.J. in Phillips v Phillips [1878] UKLawRpKQB 96; (1878) 4 Q.B.D. 127 at 133; Wooley v Broad [1892] 2 O.B. 317)

The purpose of pleadings is not to play a game at the expense of the litigant but to enable the opposing party to know the case against him. There is a tendency to forget this basic purpose and to seek particulars which are not necessary when in truth each party knows the others case. Whenever either party is imputing fraud, negligence, or misconduct to his opponent, the facts must be stated with special particularity and care. Thus, in an action of wrongful dismissal, a plea justifying the dismissal on the ground that the servant was incompetent or dishonest must state the charge specifically and in detail; so must a plea justifying the publication of defamatory words on the grounds that they are true; so must all charges of bad workmanship, want of skills, negligence, and contributory negligence. The Court will require of him who makes a charge that he shall state that charge with as much definiteness and particularity as may be done, both as regards time and place" (per Lord Penzance in Mariner v Bishop of Bath and Wells [1893] p.145 and see the remarks of Thesiger L.J. in Saunders v Jones [1877] UKLawRpCh 345; (1877) 7 Ch. D. 435 at 452)"

(10) In the case of Singh v Australia and New Zealand Banking Group Limited [2013] FJHC 31, the learned Master Tuilevuka (as he was then) upheld the deliberations of the New Zealand High Court in the case of Fitzpatrick Property Syndicate v White Fox & Jones [2009] NZHC where he stated;

[11]. In Fitzpatrick Property Syndicate v White Fox & Jones [2009] NZHC, Associate Judge Osborne said at para [4]:

[4] I adopt these as principles applicable to the consideration of any application for further and better particulars:

(a) The primary purpose of pleadings is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it.

(b) The statement of claim should state the claim in each case so that the Court has sufficient clarity and detail to understand the issues it has to rule on, and the defendant knows the case which is to be met and is able to prepare for trial.

(c)Specifically required by r 5.26(b) are such particulars '... of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances as may suffice to inform the court and the party or parties against whom relief is sought of the plaintiff's cause of action'.

(d) The pleadings must set out the facts or circumstances relied upon as giving rise to each cause of action alleged and the relief claimed as a consequence.

(e) The nature and level of particulars will depend on the facts of the particular case.

(f) The distinction between particulars and interrogatories is important, particulars are matters of pleadings designed to make plain to the opposite party the case to be raised whereas interrogatories are sworn statement of facts, procured by the opposite party to assist that party in proving his or her case.

(g) A request for further particulars can be resisted if the request goes beyond the scope of particulars and probes for evidence.

(h) Questions which a Court can usefully ask itself are:

(i) Has sufficient information been provided to inform the other party of the case they have to meet and to enable them to take steps to respond?

(ii) Is there a real risk that the other party may face a trial by ambush if further particulars are not provided?

(iii) Is the request oppressive or an unreasonable burden upon the party concerned?

(11) Further, in the case of Hillview Limited v Construction (Fiji) Limited [2012] FJHC 869, the Honourable Court under paragraph 21 reiterate the White Book at page 339 Order 18, Rule 12 (63) where it stated;

"(7) Facts within applicant's own knowledge – It is sometimes urged as an objection to an application for particulars that the applicant must know the true 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 case that this adversary is going to make against him, to bind him down to a definite story."

(12) In the case of Khan v Westpac Banking Corporation [2011] FJHC 83; the Honourable Justice Tuilevuka stated circumstances upon which further particulars are sort. His Lordship held;

"[4]. Further and better particulars are often sough when the statement of claim – although disclosing a reasonable cause of action:

(i) Lacks the necessary particulars of allegations of the type set out in Order 18 Rule 11 (1)1 (1) to (7) or,

(ii) To borrow the phraseology of Pathik J in Prasad v University of the South Pacific [1998] FJHC 254; (1998) 44 FLR 272 (9 November 1998), when the cause of action "appears to be hidden in a wealth of prolixity and therefore difficult to understand and get at the issues".

(C) ANALYSIS

(1) Before passing to the substance of the application, let me record that the Counsel for the Plaintiffs and the Defendants in their written submissions has done a fairly exhaustive study of the judicial decisions and other authorities which they considered to be applicable.

I interpose to mention that I have given my mind to the oral submissions made by the Counsel for both parties as well as to the written submissions and the judicial authorities referred to therein.

(2) Before I pass to consideration of the substance of the application, let me make this preliminary comment.

At the oral hearing of the matter, the Plaintiffs withdrew their application to file and serve interrogatories on the Defendants since in the case before me the discovery has not been completed or attended to.

Moreover, the Court expunged paragraphs 5(a) and 5(b) of the Plaintiffs Affidavit in reply, sworn on 08th October 2015 as the deponent has deposed his belief in respect of certain matters without disclosing his source of belief.

(3) Leave all that aside for a moment and let me proceed to examine the substance of the Plaintiffs application bearing aforementioned legal principles uppermost in my mind.

The Counsel for the Plaintiffs submit that the particulars requested are relevant to the issues between the parties and that the Defendants counter claim does not contain the necessary particulars for its claim.

I note without comment that the Defendants have three causes of action against the Plaintiffs; they are:

❖ Claim for wrongfully obtaining and using confidential information

❖ Claim for breach of confidence

❖ Claim for unpaid invoices.

The Plaintiffs contend that the Defendants pleading lack material facts and therefore are defective.

In adverso, the Counsel for the Defendants in both in her oral and written submissions contended that the Defendants have sufficiently provided the particulars sought by the Plaintiffs. Where the particulars sought have not been provided, they maintain that they are not required to provide or disclose evidence which they submit is being sought under the guise of particulars. Moreover, the Defendants submit that the Plaintiffs application for further and better particulars is a belated one and would further delay the trial.

(4) First, addressing myself to the question, "is there a delay in making the application for further and better particulars?" I would answer that, on the face of it, "Yes".

The Defendants Statement of Defence and Counter Claim to the Amended Statement of Claim were filed on 12th May 2015. It is of interest to note that the Plaintiffs application for further and better particulars was made to Court about two months and eighteen days after the filing of Statement of Defence and Counter Claim to the Amended Statement of Claim. What is the reason for the belated application?

The Counsel for the Plaintiffs has presented me with a kind of timetable of events nothing like an adequate explanation for the great delay has been adduced.

The Plaintiffs say that about three (03) weeks after the service of the Statement of Defence and Counter Claim to the Amended Statement of Claim i.e.; 09th June 2015, they sent a request to the Defendants Solicitors for further and better particulars (Annexure UK 01). I wish to emphasise that the Defendants Statement of Defence and Counter Claim to the Amended Statement of Claim has remained unchanged since 2013.Therefore, it is clear beyond question that the Plaintiffs were in possession of material disclosing the Statement of Defence and Counter Claim since 2013. They were informed of the case they have to meet. Therefore, the request should have made as soon as the Statement of Defence and Counter Claim to the Amended Claim was delivered.

Therefore, the delay of three weeks in making the request to the Defendants for further and better particulars constitutes both inexcusable and inordinate. The delay of around three weeks could not possibly describe as "reasonable" even in the most generous minded and indulgent view. With breathtaking disingenuousness, the Counsel for the Plaintiffs submits that the delay of three (03) weeks is reasonable considering the nature of the request, the allegations against the Plaintiffs and the causes of action.

I do not agree at all. I remind myself that the Plaintiffs were in possession of material disclosing the Defence and Counter Claim since 2013 as the Statement of defence and Counter Claim has not been changed. The defence was put forward in 2013. I must confess that I remain utterly unimpressed by the Plaintiffs explanations/reasons for the belated request. I sympathise with the proposition advanced by the Plaintiffs. I completely reject the excuse presented by the Plaintiffs. I cannot regard the Plaintiffs submission in relation to the belated request as of any weight.

At this point, I cannot resist in saying that an application for further and better particulars is not a card that the Plaintiffs can keep up their sleeve and play at their convenience. The delay is an important consideration in the determination of an application for further and better particulars because it is capable of causing an abuse of the Courts process and a delaying tactic to prolong the early resolution of the matter.

It is worth remarking that the Solicitors for the Defendants promptly responded to the Plaintiffs request by way of a letter dated 11th June 2015 clearly stating that the Statement of Defence and the Counter Claim has remained unchanged since 2013. (Annexure UK 02).

To make matters worse, the Plaintiffs waited till 30th July 2015 to make an application to Court for further and better particulars. I am curious to know as to why the Plaintiffs waited till 30th July 2015 to make an application to Court.

From 11th June 2015 to 30th July 2015, that is for seven (07) weeks the Plaintiffs had all the time to make an application to Court for further and better particulars.

The Plaintiffs on their own volition chose not to do so. I must confess that this does not leave a good impression. I get the distinct impression that the Plaintiffs slept on the matter on 11th June 2015 and did not wake up at all from their slumber until 30th July 2015. The conduct of the Plaintiffs in this respect and in deliberately deciding not to make an application to Court for further and better particulars until 30th July 2015 is a matter to be taken into account in assessing the justice of the case.

In my view, the Plaintiffs application comes far too late. I echo the words of Lord Denning in "Astavlanis Compania Naviera SA v Linard" (1972) 2 A.E.R. at page 649 where his Lordship said, "Without going into the rights or wrongs of the matter, the application should have been made as soon as the defence was delivered". In the case before me, that would be the Statement of Defence and Counter Claim to the Amended Statement of Claim.

Since the Plaintiffs were in possession of the material disclosing the Defendants Statement of Defence and Counter Claim to the Amended Statement of Claim from well before the service of the Statement of Defence and Counter Claim to the Amended Statement of Claim, the Plaintiffs should have promptly made a request to the Defendants after the service of the Defence on 12th May 2015. Moreover, the Plaintiffs should have made a prompt application to Court after the receipt of the response from the Defendants on 11th June 2015.

Therefore, the delay on the part of the Plaintiffs gives rise to a waiver of the Plaintiffs entitlement to further and better particulars.

Acting on the strength of the rule of law enunciated by Lord Denning in "Astavlanis Compania Naviera SA v Linard" (1972) 2 A.E.R. I have no doubt personally and I am clearly of the opinion that the application should be dismissed because the Plaintiffs are guilty of inexcusable and indefensible delay in making the application for particulars.

My clear conclusion is that, it is too late now to entertain an application for particulars. I get the distinct impression that the belated application for particulars (on the eve of Pre-Trial Conference) is a clear delaying tactic to prolong the early resolution of the matter with consequent indefensible inconvenience and expense to the Defendants. I could see nothing to change my opinion even on the basis of exhaustive work contained in "Precedents of Pleadings", by Bullen and Leake and Jacobs", 12th Edition.

(5) Leave that aside for a moment and let me consider whether the Defendants be ordered to provide further and better particulars for both their Statement of Defence and Counter Claim.

Are there any general principles governing the delivery of further particulars? Is there any authority on this point?

"The general principle governing the delivery of further particulars of any pleading is that these will be ordered by the Court if it is 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 f the acts alleged – see Ratcliffe v. Evans [1892] UKLawRpKQB 131; (1892) 2 Q.B. 524, at 532. In Bullen and Leake and Jacobs 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 leading more fully than previously. However the law has always held against a party to litigation attempting to obtain information by way of particulars which can only be obtained by interrogatories – See Lister & Compnay Limited v. Thompson (1891) 7 T.L.R. p.107. The practical reason for this rule of practice is that whereas when interrogatories are delivered, the answer must be an oath and various objections to provide the answers such as privilege, oppressiveness and fishing and vexatiousness may be taken by the other party, the same is not true of further particulars. In addition, because answers to interrogatories must be sworn if, when the matter comes to trial the person interrogated when giving evidence appears to resile from or vary his answers to interrogatories, an attack may be made on his credibility." per John E.Byrne, Hon Judge, in "In re the Estate of Harry Jonson 110, (1993) FJHC"

(6) It is these principles that I apply. Having considered the particulars sought, I am of the view that the Defendants have provided the particulars they are required to provide. My conclusion pertaining to the particulars sought in the Statement of Defence and Counter-Claim are outlined beside the paragraph of the defence below:

❖ Paragraph	5 (1), (2)	The particulars sought are really seek evidence and not facts
	5 (3)	The particulars sought can be obtained at the discoveries.
	5 (4)	The particulars sought are adequately contained in the defence.

❖ The Plaintiffs request for further and better particulars of paragraphs 6, 11, 24, 25, 26, 28, 29, 30, 31, 34, 35, 37, 38, 40, 41, 42, 44 and 45 of the Defendants Statement of Defence and Counter Claim to the Plaintiffs Amended Statement of Claim go beyond the scope of particulars and probes for evidence.

❖ The Plaintiffs request for further and better particulars of paragraph 14, 15, 17, 21 and 22 of the Defence are adequately provided in the Defence.

(D) CONCLUSION

(1) I uphold the objections of the Defendants.

(2) The Plaintiffs Summons seeking further and better particulars is dismissed, first on the ground that it comes far too late; and secondly, because the request goes beyond the scope of particulars and probes for evidence.

(E) FINAL ORDERS

(1) The Plaintiffs Summons seeking further and better particulars is dismissed.

(2) I award costs of the application to the Defendants summarily assessed in the sum of $500.00 which is to be paid within 14 days from the date hereof.

.......................................
Jude Nanayakkara
Master of the High Court

At Lautoka
15th January 2016