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Khan v Westpac Banking Corporation [2011] FJHC 83; HBC129.2009 (21 February 2011)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

HBC No. 129 of 2009

BETWEEN:

HAKIM KHAN (father's name Mohammed Jan) of Namaka, Nadi.
Plaintiff

AND:

WESTPAC BANKING CORPORATION a Commercial Bank having its principal place of business in Suva, Fiji.
Defendant

Before: Master Anare Tuilevuka
Solicitors: Janend Sharma Lawyers for the Plaintiff
Munro Leys Solicitors for the Defendant
Date of Hearing: 24th January 2011
Date of Ruling: 21st February 2011

RULING

[1]. By their summons filed on 22nd June 2010 pursuant to Order 18 Rule 11 of the High Court Rules, the defendant seeks further and better particulars of paragraph 4 of the statement of claim issued on 16th May 2006.

[2]. The claim was filed on 16th May 2006 and the defence on 13th June 2006. Some two and a half weeks after the defence was filed, Munro Leys sent a letter to Janend Sharma Lawyers seeking further and better particulars. On 17th August 2006, Janend Sharma lawyers responded. Then some 11 days later on the 28th of August 2006, Janend Sharma Lawyers filed their reply to defence and also summons for directions. On 02nd October 2006, Munro Leys responded to Janend Sharma Lawyers' letter. Then on 16th April 2008, Munro Leys wrote a letter to Janend Sharma Lawyers concerning Pre-Trial-Conference and reiterating the need for further and better particulars. Both parties have filed their lists of documents. There is yet no copy pleadings or Minutes of Pre-Trial Conference filed.

[3]. I will not recite Order 18 Rule 11 of the High Court Rules 1988 here. Suffice to say that the principles which guide the courts when considering whether or not to order for further and better particulars are clearly set out in the following extract of Byrne J's ruling in In the Estate of Harry Janson Ho [1993] FJHC 48:

The general principle governing the delivery of further and better particulars of any pleading is that the Court will order these if it is considered desirable to elucidate the issues to be tried and prevent "surprise" at the trial.

[4]. Further and better particulars are often sought 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) 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".
  

[5]. Particulars will not be ordered where, to require them, would be oppressive or unreasonable. Courts will also refuse to make such orders if the information sought is not in the possession of either party and/or the information could only be obtained through great difficulty.

[6]. Below, I set out the gist of Munro Leys' submissions and the corresponding response to each as provided by Janend Sharma Lawyers vide their letter of 17th August 2006:

• (i) the plaintiff pleads that the defendant breached the Memorandum of Agreement by wrongfully terminating the plaintiff's employment. So give particulars of the exact clauses of the Agreement that were breached?
  

JSL: "Your client has breached the whole of the Agreement, and in particular clauses 11,12 & 14 of the Agreement dated 09th September, 1997".

(ii) the plaintiff alleges that the defendant failed to follow certain procedures in the Agreement. What procedures and where in the Agreement are these procedures set out?

JSL: "The Procedures are set down in the Agreement dated 9th September 1997"

(iii) the plaintiff alleges that the defendant took into account irrelevant factors instead of the relevant factors to reach the decision to terminate the plaintiff. What were these factors? Why and how were they irrelevant/relevant?

JSL: "Since your client did not take into account relevant factors, it follows that your client took into account irrelevant factors. One instance of irrelevant factor is a complaint by a Customer against our client in respect of an alleged stop payment of a cheque. Your client also took into consideration our client's relationship with Network Builders. Evidence would be led at trial on the issue of your client taking into account irrelevant factors.

(iv) the plaintiff alleges that the defendant was biased in arriving at the decision to terminate his employment. How was the defendant biased?

NB. This was not addressed by JSL in their letter.

(v) the plaintiff alleges that the defendant failed to consider his representations. What representations? Why should they have been considered?

JSL: Representation was made to your client and by the Finance Sector Managerial Staff Association on behalf of your client. Information was also provided by other staff members of your client to your client. None of these were considered by your client. This is also a matter for evidence at the trial.

[7]. Janend Sharma Lawyers is adamant that Munro Leys is driven by a quest for evidence under the guise of an application for further and better particulars. They submit that the answers to the above would entail their having to divulge evidence.

[8]. They also submit that the proper time to apply for further and better particulars was at the first hearing of the summons for directions which has long lapsed.

[9]. But the passage from Odgers of High Court Pleadings and Practice 23rd Edition, D.B Casson – (Sweet & Maxwell) at page 194 which Mr. Sharma relies on does not quite bear him out.

The mere fact that the defendant has already served his defence is no waiver of his right to particulars of the allegations in the statement of claim. And where the pleadings contain sufficient particulars to raise issues which ought to be investigated by the court, neither further particulars nor discovery will be ordered before defence. Accordingly, unless such particulars are necessary in order to enable him to plead, the proper time for his application is upon the first hearing of the Summons for Directions. If he makes a separate application earlier or later, as he may so long as he is not guilty of unreasonable delay, he will probably have to bear the costs, unless there was some very good reason for taking this course.

[10]. In this case – I do not think that Munro Leys has been guilty of unreasonable delay considering that they had written letters asking for further and better particulars in 2006 shortly after the filing of the defence.

[11]. Mr. Sharma's response may have been appropriate once upon a time many decades ago when the practice according to Odgers - was to conceal as much as possible what was to be proved at trial. However – that response does not accord with the modern practice and procedure which puts a very high emphasis on clarity and precision in the definition of issues to be tried.

[12]. In my view, the trial of this matter will no doubt centre around one document – that is, the Memorandum of Agreement. All that Munro Leys is requesting is some clarity and precision as to what its client allegedly did and/or did not do pertaining to the agreement as claimed by the plaintiff. I agree that the responses set out in Mr. Sharma's letter (see paragraph 6 above) seem elusive and do nothing in achieving clarity and precision on the issues. However – as stated, because the issues have all arisen out of and/or centre around the Memorandum of Agreement – and seeing that the parties are at discovery and pre-trial conference stage – I direct that these issues be clarified in their Pre-Trial Conference Minutes pursuant to Order 34 Rule 2(4)(a) and (b). To order that the pleadings be amended now will just trigger a whole new process of pleading and counter pleading that will set this case back considerably.

[13]. Accordingly – I direct that the parties are to convene and attend to Pre-Trial Conference in the next 21 days and the Minutes are to reflect inter alia the following:

• (i) the particular clauses of the Memorandum of Agreement the defendant is alleged to have breached by terminating the plaintiff's employment?
  
• (ii) what are the specific clauses in the Memorandum of Agreement that set out the procedure(s) that the defendant should have but did not follow(ed)
  
• (iii) what are the factors that the defendant allegedly took into account in the process of reaching the decision to terminate the defendant's employment. Why and how were these factors irrelevant? What factors did the defendant allegedly not take into account and why/how were they relevant? Are the instances cited in Janend Sharma Lawyers' reponse (see above) the only ones relied on by the plaintiff?
  
• (iv) how was the defendant was biased in arriving at the decision to terminate the plaintiff's employment.
  
• (v) how did the defendant fail to consider the plaintiff's representations or representations made on his behalf?. Why should they have been considered?
  

[14]. Costs in the cause. This case is adjourned to 15th of March 2011 for mention at 8.30 a.m. Pre-Trial Conference Minutes to be filed by 14th of March 2011.

Anare Tuilevuka
Master

At Lautoka
21st of February 2011.