Kento (Fiji) Ltd v Naobeka Investment Ltd [2022] FJHC 125; HBC027.2016 (21 February 2022)

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KENTO (FIJI) LIMITED a limited liability Company having its registered office at P O Box 124, Nadi.

NAOBEKA INVESTMENT LIMITED a limited liability Company having its registered office at P O

SOUTH SEAS LIMITED a limited liability Company having its registered office at P O Box 718, Nadi.

iTAUKEI LAND TRUST BOARD formerly known as NATIVE LAND TRUST BOARD a statutory body registered under the provisions of the Native Land Trust Act having its head

Mr. J. Apted for the first Defendant (HBC 100 of 2012) and first and second Defendants (HBC 27 of 2016)

Ms. Raitamata for the second Defendant (HBC 100 of 2012) and third Defendant (HBC 27 of 2016)
Date of Hearing: 02 December 2021
Date of Ruling: 21 February 2022

I require the Plaintiff, within 28 days from the date this ruling is delivered to file and serve an amended statement of claim complying with the directions given, and – in those situations where I have not actually made a direction, responding to my comments about what should be included.

50. In paragraph 15 of the Further Amended Consolidated Statement of Claim, Kento alleges that it paid for and otherwise assisted NIL and Messrs Varo, Vatunitu and Gadai to obtain the issue of the Headlease and the Kento Sub-Lease. Justice Stuart had originally considered that this was background information, but subsequently realised that it was pleaded in support of a claim for $1,500,000 in Special Damages in paragraph 25. In sub-paragraphs (a) to (d), Kento had particularised that it had paid for the removal of Oceanic Schooner by Court proceedings, travel around Viti Levu in 2016 collecting landowners’ signatures, TLTB expenses for the issue of the Headlease to NIL, and legal costs for the dismissal of court proceedings brought by a rival faction of the Mataqali Nakovacake. It pleaded that the legal fees and expenses amounted to more than $100,000 so the amount is not insignificant. It had originally pleaded that “particulars could not be provided at this stage” indicating an admission that it was required to provide the particulars and would do so later.

51. His Lordship noted that Kento would not need to particularise this claim if it had made relevant discovery. Unfortunately Kento has not discovered anything relevant, leaving the Orders in the dark about how much is being claimed.

52. It is also to be noted that although it is sometimes permissible to particularise special damages a short time before trial, this is where those damages continue to be incurred. In contrast, the claim in paragraph 15 concerns expenses allegedly incurred many years ago and which should be capable of reasonable particularisation.

“If details of and documents related to the payments referred to in this paragraph have not already been included in the plaintiff’s discovery of documents (in a way that makes it clear what they relate to) the plaintiff is to provide the particulars sought by the plaintiff in its application.”

54. In response to the order to provide the particulars, Kento simply says that it is unable even to specify how much it claims to have paid because the documentary evidence was either lost or destroyed in floods. It pleads that it will rely on a passage from Newbrook v Marshall [2001] NZCA 332; [2002] 2 NZLR 606 as follows –

“Where there are variables involved, as usually occurs in assessments of business profits or losses, if precise figures had to be proved few plaintiffs could succeed. Where, as here, it is established that a particular factor was causative but its precise contribution to the loss could not be correctly calculated in precise dollar terms, a more robust approached is required of the Courts. It is not a matter of whether an expert could give a reasoned assessment and could defend the number he or she came up with. As Lord Mustill said in Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1996] UKHL 3; [1997] AC 254 at p269. The assessment of damages often involves so may unquantifiable contingencies and unverifiable assumptions that in many cases realism demands a rough and ready approach to the facts.”

55. It also says it will rely on oral evidence to be given by Michael Clowes, the alter ego of Kento and other unless to be given at trial.

56. With respect, its answer is wholly inadequate. In order to establish its claim, Kento will have to provide the Court with evidence of some kind. The best evidence would be documentary evidence of the payments. Even if Kento has lost its records, documentary evidence could still be obtained from its Bank and from the lawyers and other service providers whom it allegedly paid.

57. However, the obligation is not to detail the evidence but to particularise its claim giving advance notice of what its evidence will prove at trial so that the Defendants can prepare. Thus, even if Kento were only to rely on oral evidence, it should still know by now what its witnesses are proposing to say and should be able to provide particulars of the evidence that they will give.

58. The case of Newbrook v Marshall does not excuse Kento from providing the particulars ordered. That case was about evidence proving loss of profits, which is always a speculative exercise as the Court must assess something which did not happen based on the best evidence to hand.

59. The claim in paragraph 15 is fundamentally different. It is a claim for what Kento has allegedly already spent. Even if its evidence of that might not be perfect, it must already have an idea of what each component supposedly cost in order to come up with “$100,000” and “$1.5 million” that it has pleaded. It should be able to give particulars of this.

60. It is submitted that in the circumstances, Kento is intentionally defying the Court’s order. It clearly intends to unfairly “surprise” the other Defendants with its claims and evidence at the trial, despite the Court’s orders to the opposite effect.

Particular (a) relates to para 15 of the Claim. This particular applies only where it is contained in more than 3 folios: rule 11 (2). Now para 15 of the Claim (see annexure AR8) of the Abilash Ram affidavit) pleads 6 particulars, the latest of which in compliance with the court order, set out the reasons and circumstances under which the Plaintiff will prove its case at the trial. Firstly, there is no suggestion that the required particulars will require more than 3 folios. So in this respect, the Defendants are not as a matter of law and fact entitled to an order for particulars. Secondly, the Defendants cannot surely complain that they will be surprised and ambushed at the trial. Whether the Plaintiff will be able to prove his case will only be judged at the trial and certainly not at this summary stage. The strength of his case is a matter for the Trial Judge and his Lordship alone. It is not true that no particulars have been provided. We respectfully submit therefore that the Plaintiff has complied as a matter of law and fact.

“In relation to each of the defendants against whom the plaintiff is claiming for this incident the plaintiff is to provide particulars of

Particular (c) relates to para 17 of the Claim. The complaint is that the Defendants are unable to identify how they might be responsible. Para 17 of the Claim refers to the persons as ‘’employees’’. Order 18 rule 6 (4) says that in such a case, the condition precedent, i.e. that “employees” are involved, and the resultant liability is to be implied into the pleading, that is to say, vicariously. Therefore, as a matter of law, the Defendants are not entitled to and order for the particulars claimed. In any event, it should be abundantly clear that this is so, hence the rule. Further, the names of such employees are matters of evidence and in any case those names should be known to the Defendants. The can either deny or admit or put the Plaintiff to proof at trial. Certainly, it should not be a proper ground for striking out the claim summarily.

“The plaintiff must plead or provide particulars (including details of the date the contract is said to have been entered into) sufficient to identify the contract, and specify (to the extend relevant to the claim) the terms of the contract that it says was entered into and is said to have been breached.

“The Plaintiff will rely on the evidence of Michael Clowes and other witnesses to be given at trial as to the precise dates and the circumstances under which the agreement was signed. The Defendants should be well aware of when they signed the agreement.”

Particular (d) relates to para 20. The Defendants complain that the sublease agreement has not been properly identified. That cannot be correct. The sublease has been expressly pleaded and discovered both in the supporting affidavits of the Plaintiff (see the very first affidavit of Michael Clowes filed in action HBC 100/12 on 9 May 2012) and in the documents discovered so far. Further, the Defendants in previous applications and in their pleadings have never denied that this is the agreement that is in issue. Paragraph 20 (a) of their Amended Defence admits that it signed the very sublease in question. They cannot surely be mistaken or in doubt as to the identity of the document. There are other issues as its execution and so forth but that is a different thing altogether from being surprised or ambushed at trial. There is only but one sublease agreement and there cannot be any mistake as to its identity. This ground too must fail.

“If this paragraph is intended to be the foundation for a claim by the plaintiff for the cost of the refurbishment and clean up, or if the refurbishment/ clean-up is said to be consideration for the contract, or give rise to an estoppel in some way, the plaintiff is entitled to the details sought, plus details of the work involved, and the cost/value of that work.”

Particular (e) relates to para 21. The complaint is that there is no clarification that costs are being claimed and particularized accordingly. There is no specific claim expressly pleaded. That should answer the complaint. It is now becoming abundantly clear that the Defendants are just picking at straws and trying to dictate how the Plaintiff is to plead its case. This cannot be any grounds for an order for particulars or summary dismissal.

“The plaintiffs are to provide the particulars sought in respect to the second, fourth and fifth notices. In relation to the first notice the plaintiff is to provide further particulars of the basis upon which it is saying that the time given for compliance with this notice is not sufficient. In relation to the third notice, the plaintiff is to provide further particulars of:

Particular (f) relates to para 23. The Defendants complain that the Plaintiff has not provided particulars of unlawfulness of each notice of termination. This is not correct. It is obvious from reading para 23 as pleaded in the claim. Indeed, the Plaintiff has complied with the order for particulars. This too cannot be a ground for summary dismissal.

“Of the allegation that the 2nd, 3rd and 4th Defendants knew of the Plaintiff’s sublease agreement with the 1st Defendant, specifying how the Second Defendant allegedly knew of the existence of the Plaintiff’s sublease agreement.”

“The plaintiff is to either provide the particulars required, or is to answer interrogatories asked by the defendants as to the information sought.”

“The plaintiff is to provide the further particulars set out in the Court Ruling column of Schedule I in relation to this paragraph.”

“(a) Of the allegation that “despite that knowledge, the said defendants encouraged, counselled, assisted and caused the 1st Defendant to unlawfully terminate the Plaintiff’s sublease” specifying:

(d) Of particular (e), how the “repeated attempts” specified in paragraphs 22 and 23 (which are alleged of the First Defendant) are relevant to the Second, Third and Fourth Defendants (of whom the allegations in this paragraph 28 are made).

Furthermore, in relation to the defendants’ alleged responsibility for actions of ‘other members of the mataqali’, if the plaintiff wishes to maintain this pleading it will need to provide the further particulars referred to in relation to paragraph 17 of the statement of claim, including details of who these other members of the mataqali were, what they did and in what way the defendants are responsible for their actions.

Particular (g) relates to para 28. Again this is not picking. With great respect, special condition B (1) speaks for itself and its effect should be obvious from the wording of the special condition. The pleading refers specifically to the Plaintiff’s right to transfer under the special condition. I don’t know how much clearer it can be pleaded. The para also sets out the particulars which the Plaintiff say constitute the activities complained of.

“I agree that the plaintiff must set out in the pleadings the meaning and effect of the Deed of Settlement relied on. It is not satisfactory to mention the Deed of Settlement for the first time in the particulars, and then without spelling out what the Deed is, who are the parties to the deed, what it provides for, and in what manner and by whom it has been breached by the grant of a subsequent sublease to the 2nd defendant.”

“The plaintiff is to provide further pleadings or particulars as to the parties to, circumstances of entry into, and relevant terms of the Deed of Settlement said to have been signed on 21 May 2013, and in what manner the first and fourth defendants are said to be estopped from denying the validity of the plaintiff’s sublease.”

Particular (h) relates to para 31. The complain that the deed had not been identified. This is not correct. The document is identified in the pleading in paragraphs 28 (f) and 31 (b). The document speaks for itself. There is no element of surprise or ambush. The document has been discovered and discussed and analyzed in previous proceedings. This complaint cannot stand.

“I agree that each defendant is entitled to know which of the alleged actions it is said to be responsible for, and how that action interfered with the plaintiff's rights under the sublease it had from the 1st defendant. If it is alleged that any defendant is responsible for, the actions of another defendant, or another person, how that responsibility arises.”

ii) how that action interfered with the plaintiff’s rights under its sublease from the first defendant,

iii) if it is alleged that any defendant is responsible for the actions of another defendant, or another person, how that responsibility arises.

“It is not clear whether this figure represents loss of profits or loss of revenue, or what facts/assumptions the forecast relies upon. This is information that must be provided by the Plaintiff in its statement of claim. ... I would expect that there would be some reference to historical figures, compared to turnover post termination, and ...

The pleadings on this issue are so deficient it is hard to know where to begin with an order to provide further particulars other than to reiterate the underlying principle, that the defendants are entitled to a full and fair understanding of the nature and extent of the claim against them, including the basis for the claim for damages. This information must be known to the plaintiffs, and would have been known at the time the proceedings were commenced in 2012, otherwise they would not have been advised to commence these proceedings. Certainly, it must have been known when the plaintiff issued the new claim against the 2nd defendant in 2016.”

“The plaintiff is to provide further particulars of the basis upon which a claim for loss of future earning is sustainable (having regard to its other pleadings), the actual and/or anticipated revenue and expense figures upon which this calculation is made, and the underlying facts/assumptions that the forecast and the claim rely upon.”

Particular (i) relates to para 32. The complaint is that the actions complained of were not identified. With the greatest of respect these have been particularized in paras 27 to 31. Again, the Defendants seem to read the various paragraphs of the Claim in isolation without any reference to each other and to lack understanding of the Claim. This complaint is unfounded.

... lawyers’ – including judges’ – opinions on what is a good and sufficient pleading often differ in the same way, and to the same extent as people will differ in the ways they adopt to express and idea. It is much easier to find agreement on what is an insufficient, prolix or embarrassing pleading, than to define and agree on what is sufficient. There is plenty of scope for disagreement on whether pleadings, and particulars, are clear and sufficient, and a demand for further particulars can be just as oppressive and unhelpful as is a refusal to provide them. Recognition that there is no such thing as a perfect pleading, and the implicit need for the parties to compromise to reach a sensible solution, is the foundation of Rule 11(6) of Order 18. As has happened in this case, the court will expect the parties to exchange views on the need for further particulars, and the court can refuse to order them if the party asking for them has not first tried to reach agreement on the issue.

(a)	Particulars are important. They enable the other side to know what evidence they ought to be prepared with and to prepare for trial, to limit the generality of pleadings, and to define clearly the issues to be tried and flowing, from that, the discovery process required. This all augurs well for a fair trial.
(b)	The nature and level of particulars will depend on the facts of the particular case (e.g. a claim where fraud, negligence, misconduct, breach of contract, future losses, loss of profits and special damages). However, such particulars as time, place, amounts, names of persons, nature and dates of instruments are important. In addition to these, any other fact or circumstances relied upon to give rise to the plaintiff’s cause of action, must be pleaded.
(c)	A request for further and better particulars can be resisted if the request goes beyond the scope of particulars. For example, if a request for particulars is really a probe for evidence. On this note, it is important to note that particulars need be given only of facts – not evidence.
(d)	What the Court must ask are: (i) has sufficient information been provided to inform the other party of the case they have to meet 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? (iv) whether a request is oppressive or unreasonable, depends on the circumstances and the nature of the acts alleged.

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 this 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 his adversary is going to make against him, and to bind him down to a definite story.

(a)	if proper particulars are not served within a certain time, the action shall stand dismissed or the defence struck out (Davey v Bentinck (1893).
(b)	initially, the view in England was that a Court does not have a discretion to modify the effects of an unless order which had not been complied with. In other words, an unless order was self-executing, so if there was to be non-compliance, the striking out took place automatically leaving no discretion in the Court (Reiss v Wolf [1952] 2 All ER 3.
(c)	however, at some point, some English Courts began to move away from the above position and to hold that when an unless order was not complied, the court still has a discretion to extend time for compliance (Samuel v Lingi Dress Ltd [1981] 1 QB 115)
(d)	the above case however, as Sir Nicolas Browne-Wilkinson VC noted in Re Jokai Tea Holdings Ltd [1993] 1 All ER 630 “ did not give any direct guidance as to the approach to the exercise of the court's discretion except to say that such a discretion should be exercised ‘cautiously’.
(e)	Sir Nicolas Browne-Wilkinson VC then attempted to lay some guideline in Re Jokai Tea Holdings Ltd when he held that the Court should only strike out a pleading for disobedience to an unless order for further and better particulars if the failure to comply was intentional and contumacious.
(f)	As Sir Nicholas Browne-Wilkinson V.V said at p. 637: In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an unless order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore docs not disentitle the litigant to rights which he would otherwise have enjoyed.”
(g)	There is also a view, albeit an obita view, that where an unless order was breached, the Court should consider whether to strike out the whole pleading or only the affected paragraph (as per Purchas LJ in the English Court of Appeal in Grand Metropolitan Nominee (No 2) Co Ltd v Evans [1992] 1 WLR 1191 at p.1195
(h)	In Hytec Information Systems Ltd[1996] EWCA Civ 1099; , [1997] 1 WLR 1666, Lord Justice Ward said at pp.1674-1675: An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party's last chance to put his case in order; Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed; This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure; It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred), flouts the order then he can expect no mercy; A sufficient exoneration will almost inevitably require that he satisfies the court that something beyond his control has caused his failure to comply with the order; The judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice; The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weigh very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two;” (our emphasis)

“In short, the position is now very different to that obtaining at the time of Reiss v Woolf. If today an unless order is breached, the court, so far from being powerless, has a wide general discretion to do whatever is required in the interests of justice. In these circumstances there can be no justification for construing unless orders for particulars as narrowly (and I would add, artificially) as in times past.

... It was not, I conclude, necessary for the judge to have found the particulars as a whole “illusory” and nor, therefore, was it necessary, as the plaintiffs supposed, to establish that “in relation to a substantial number of the requests no genuine attempt had been made to answer them”. The order should properly have been found breached and the court’s discretion thus engaged on a less exacting test than this.”

“First, an order for further and better particulars (whether or not in Unless form) is not to be regarded as breached merely because one or more of the replies is insufficient. If the answers could reasonably have been thought complete and sufficient, then the correct view is that they require only expansion or elucidation for which a further order for particulars should be sought and made.

Second, although I would regard an unless order as breached whenever a reply is plainly incomplete or insufficient, I would not expect the court’s strike out discretion to be invoked, let alone exercised, unless the further and better particulars considered as a whole can be regarded as falling significantly short of what was required. Whether this would be so would depend in part on the number and proportion of the inadequate replies, in part upon the quality of those replies (including whether their inadequacies were due to deliberate obstructiveness, incompetence or whatever), and in part upon their importance to the overall litigation. Satellite strike out litigation is not to be encouraged and it must be recognised that even to strike out part of a pleading (unless of course ... that would in any event be appropriate because, unparticularised, it is “vague and embarrassing”), is essentially penal.”

“It is clear that where an order for particulars is made it is in breach of that order to respond “not entitled” or to give an answer which suggests that the matter is already sufficiently pleaded or which does not deal in any way with the request ... It is also worth mentioning that if a pleading is defective for want of particularity, although it will not normally be struck out where that lack can be remedied, it may well be struck out if the failure to particularise is in blatant disregard of court orders ... The extent and quality of the breach must obviously be taken into account in considering as a matter of discretion whether and to what extent the sanction should be enforced...

... what the court is concerned to examine is whether there has been a genuine attempt to answer the request. That is so, because the court will not contemplate enforcing the sanction of strike out either of the particular allegation unparticularised or of the whole pleading, unless there has been a failure, or failures, to make genuine attempts to answer the request or requests.” (our emphasis)

.........................................................
Anare Tuilevuka
JUDGE
Lautoka

High Court of Fiji

Kento (Fiji) Ltd v Naobeka Investment Ltd [2022] FJHC 125; HBC027.2016 (21 February 2022)