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International Shop Fittings (Fiji) Ltd v QBE Insurance Fiji [2017] FJHC 735; Civil Case HBC 183 of 2016 (2 October 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 183 of 2016

BETWEEN : INTERNATIONAL SHOP FITTINGS (FIJI) LIMITED a limited liability company having its registered office at Lot 11, Wekamu Industrial, Nadi in the Republic of Fiji.

PLAINTIFF

AND : QBE INSURANCE FIJI a duly registered company under the laws of Fiji having its registered office at Victoria Parade, Suva in the Republic of Fiji Islands.
DEFENDANT

BEFORE: Master Vishwa Datt Sharma

COUNSEL: No appearance for the Plaintiff/Counsel

Mr. John Apted with Ms. Chan for the Defendant

Date of Ruling: 02^nd October, 2017

RULING
[Summons for Further and Better Particulars of the Plaintiff’s Statement of Claim pursuant to Order 18 Rule 11 of the High Court Rules and under the inherent jurisdiction of this Court]

1. INTRODUCTION
   

1. The Defendant filed this Summons and sought for the following Orders:
   
   • (i) The Plaintiff do serve on the Defendants within 7 days of the Court making such order further and better particulars in writing of the Statement of Claim dated 27^th July, 2016 and filed therein as set out in a tabulated form the Particulars required.
     

Upon the Following Grounds;

(a) The allegations contained in the Statement of Claim which the Defendant seeks particulars of are in general terms and insufficient. They ought to be supplementary by further particulars giving more specific information, and/or
(b) The particulars are necessary to enable the Defendant to properly plead to the Statement of Claim by amendment if necessary, and properly conduct its defence, and/or
(c) The particulars will ensure that the trial is conducted fairly and openly by requiring the Plaintiff to give such particulars as are necessary to enable the Defendant to be informed of the case it has to meet, and/or
(d) The Defendant ought to be told of any and every particulars as are necessary to enable the Defendant to be informed of the case it has to meet, and/or
(e) The provision of the particulars will shorten the length of the trial.

2. This application is made pursuant to Order 18 Rule 11 of the High Court Rules and under the inherent jurisdiction of this Court.
   
3. The application was heard unopposed since the Plaintiff failed to appear and defend the application nor did it file and serve any Response to the Defendant’s application.
   

2. BACKGROUND
   

4. The Plaintiff claims from the Defendant the sum of $544,834.90 being monies due and owing by the Defendant to the Plaintiff for an insurance claim made by the Plaintiff and not paid in full. The Plaintiff therefore claims against the Defendant a Breach of Contract as the Defendant did not perform its part of the Contract, the Plaintiff having full insurance cover with the Defendant and the claim which was assessed was $651,881.90. The Defendant only paid $107,047.04. The Plaintiff claims the balance of $544,834.90 from the Defendant did not perform its part of the Contract, the Plaintiff having full insurance cover with the Defendant and the claim assessed was $651,881.90. The Defendant only paid $107, 047.04. The Plaintiff claims the balance of $544,834.90 from the Defendant.
   
   5. The Defendant in its Statement of Defence denies any monies are due or owed to the Plaintiff for any insurance claim whether as pleaded or at all.
      
   6. It denies it breached a contract with the Plaintiff or did not perform its part of the said contract.
      
   7. The Plaintiff had full insurance cover with the Defendant.
      
   8. The Plaintiff’s insurance claim was assessed at $651,881.90.
      
   9. The Plaintiff is entitled to damages against the Defendant whether as pleaded or at all.
      

100. PRINCIPLES OF DISCOVERY
     

10. The Defendant’s application is made pursuant to Order 18, Rule 11 of the High Court Rules, 1988 which provides for the Particulars of Pleadings:

11.-(1) Subject to paragraph (2), 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.

(2) Where it is necessary to give particulars of debt, expenses or damages and those particulars exceed 3 folios, they must be set out in a separate document referred to in the pleading and the pleading must state whether the document has already been served and, if so, when, or is to be served with the pleading.

(3) 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.

(4) Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3) the Court may, on such terms as it thinks just, order that party to serve on any other party-

(a) where he alleges knowledge, particulars of the facts on which he relies, and

(b) where he alleges notice, particulars of the notice.

(5) An order under this rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason.

(6) Where the applicant for an order under this rule did not apply by letter for the particulars he requires, the Court may refuse to make the order unless of opinion that there were sufficient reasons for an application by letter not having been made.

(7) Where particulars are given pursuant to a request, or order of the Court, the request or order shall be incorporated with the particulars, each item of the particulars following immediately after the corresponding item of the request or order.

11. 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 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".

12. 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).

13. 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.

14. An application for discovery ordinarily falls into the following two distinct categories-
    
    • (i) Firstly, there is the discovery of documents which are disclosed in the affidavit verifying list of documents; (O. 24, rule 2); or mutual discovery (O. 24, rule 1(2). Largely they are disclosed voluntarily in the ordinary course of the pre-trial discovery.
      
    • (ii) The second category falls into discovery of specific documents, or those which are not disclosed; (O. 24 rule 4). This may include documents which are not listed in schedule A, Part 2 of the affidavit verifying list of documents.
      
15. The rule permits the discovery of documents. Order 24, rule 4(2) provides:-
    

(2) Where in an action begun by writ an order is made under this rule for the determination of an issue or question, Order 25, rules 2 to 7, shall, with the omission of so much of rule 7(1) as requires parties to serve a notice specifying the orders and directions which they desire and with any other necessary modifications, apply as if the application on which the order was made were a summons for directions.

16. The overall purpose of this rule is to vest a wide jurisdiction to the court to order discovery and inspection of documents. Behind this robust approach, is the philosophy that, with proper discoveries, and the more discovery there is between the parties, the better disposed they are in thrashing out the issues between them in the pleadings. Ultimately, the Court will be far better disposed to determine the real issues raised in the pleadings. This is cost effective in that it saves time.
    
17. An applicant will need to be heedful of accumulated case law material that Courts will not allow the discovery process to be used towards assisting a party upon a fishing expedition such as to fish for witnesses or a new case (Martin and Miles Martin Pen Co. Ltd v Scrib Ltd [1950] 67 RPC 1-7 as cited in Singh v Minjesk), Calvet -v- Tomkies [1963] 3 All ER 610. Nor will discovery be ordered in respect of documents which are not related to or may not affect the actual outcome of the action: Martin and Miles Martin Pen Co. Ltd. -v- Scrib Ltd. [1950] 67 RPC 1-7). Furthermore, discovery will also be prohibited if it is for a general purpose of enabling a party.
    

4. ANALYSIS AND DETERMINATION
   

18. The issue for this Court to determine is whether an order be made that the Plaintiff file and serve the Defendant with Further and Better particulars in writing of the Statement of Claim within 7 days as sought for in the Defendant’s application. The Defendant also seeks an order for costs.
    
19. Thus, the Defendants are seeking for an order that the Plaintiff provide further and better particulars in terms of its Statement of Claim at paragraphs 3, 4, 5, 6, 7 and 8 respectively as set out in a tabulated form within the Summons for Further and Better Particulars.
    
20. The Plaintiff is well aware of the particulars sought by the Defendant since the Summons seeking for further and better particulars enumerates the particulars required in each of those paragraphs of the Statement of claim and has been duly served on the Defendant who had made two (2) prior appearances in court on this application but failed to file any Response to the Plaintiff’s application.
    
21. According to the Defendant, this application would not have been necessary if the Plaintiff had either pleaded the Claim properly or given particulars when asked by the Defendant’s Solicitors on 06^th and 09^th September, 2016.
    
22. The Defendant submitted that in response to the Defendant’s Solicitors request for particulars dated 06^th September, 2016 (Exhibit KN-1 pp. 5-11 annexed in Kamlesh Narayan’s affidavit); the Plaintiff’s Solicitors only furnished documents (Exhibit KN-2, pp.13-350 in Kamlesh Narayan’s affidavit.
    
23. The Plaintiff must understand that Documents and Particulars are not the same thing. Particulars as Pleadings bind a party and can be relied on by the other side as indicating the case it has to meet, the provisions of documents do not bind the party. It is free to use (or not to use) the documents as it sees fit at the trial so that the requesting party remains unsure of the case that it must meet at the trial.
    
24. The Particulars sought by the Defendant at various paragraphs of the Plaintiff’s Statement of Claim and the grounds for seeking the same to be furnished to the Defendant are all clearly set out in the table at Appendix 1 of the written submissions as well as within the Defendant’s Summons seeking for further and better particulars which I reiterate the Plaintiff/Counsel is very well informed of.
    
25. Further, the Plaintiff had asked Court time to file an answering affidavit and later to amend its Claim, but did not do so. This Court does note and confirm from its file record that at least four (4) opportunities were granted to the Plaintiff file an answering affidavit and later to amend its Claim on 29^th March, 05^th May, 12^th June and 12^th July, 2017.
    
26. I have also thoroughly perused the Defendant’s Statement of Defence and the Plaintiff’s Reply to the Statement of Defence. The Plaintiff’s reply to each of the paragraphs in the Defendant’s Statement of Defence, either the Plaintiff joins issues or acknowledges the same.
    
27. An application for particular discovery is only necessitated where a mutual or even a general discovery under Order 25 of the High Court Rules, 1988 fails. It should also be noted that successful discovery of documents will definitely assist the parties in mitigating the pending claim in terms of any quantum or otherwise necessary in the circumstance.
    
28. A fundamental prerequisite to discovery of specific document is that an applicant, (Defendant), must establish a prima-facie case that the specific documents do in fact exist or have existed, and are relevant and they were in ‘possession, custody or power of the opposing party (The Plaintiff).
    
29. The Plaintiff has failed to file and serve any Affidavit Response to the Defendant’s Summons seeking orders for further and better particulars nor did he appear in Court at the Hearing to challenge the Defendant’s Summons.
    
30. Needless to say at this juncture of the proceedings of which the notation is made by the Court that the Plaintiff commenced this proceeding on 27^th July, 2016. The Plaintiff took the final cause of action by filing the Summons for Directions (SFD) on 23^rd February, 2017 and thereafter did not even bother to seek for the orders be made so that the proceedings can be moved further and the matter eventually heard and determined expeditiously. Instead it seems that the Plaintiff went off to sleep and that is the very reason he may have failed to file any Affidavit Response to the current application.
    
31. Taking into consideration the Defendant’s Summons seeking orders for further and better particulars coupled with the Affidavit in support and the grounds for seeking the particulars, it leaves Court with no option but to accede to Defendant’s application.
    
32. It is only appropriate that this Court makes an order against the Plaintiff to furnish the discovery sought in terms of the Table set out in the Defendant’s Summons and the Affidavit in Support of Kamlesh Narayan filed herein accordingly. The Plaintiff cannot just escape this procedural and legal requirement in Law which the Plaintiff is very well informed and aware of.
    
33. This application by the Defendant would not have been necessary if the Plaintiff had either pleaded the Claim properly or thought fit to deal with particulars (if any) as sought by the Defendant’s Solicitors on 06^th and 29^th September, 2016 accordingly. I am sure that further satisfactory communication and discussions with Counsels would have resolved this issue.
    
34. The Plaintiff’s filing of the Affidavit Response to the Defendant’s current application for further and better particulars and making Court appearances may have assisted the Court in mediating the issue with the parties and arrive at a resolution or deal with the matter otherwise.
    
35. It has become appropriate and it prompts me without any hesitation to impose substantial costs summarily assessed at $1,500 against the Plaintiff for the abovementioned reasons and his failure to attend Court and explain why he should or should not furnish all the particulars as requested by the Defendant. Counsels representing litigants must ensure to be present in Court at each and every adjournment of the case to represent the client’s interest in the best way possible.
    
36. In conclusion, for the aforesaid rational, I make the following order:
    

FINAL ORDERS

1. The Defendant’s Summons seeking Further and Better Particulars succeeds.
   
2. Order in terms are granted in terms of the Defendant’s Summons filed 15^th March, 2017 as set out in the Table therein.
   

100. The Plaintiff is hereby ordered to serve the Defendant with Further and Better Particulars within 7 days timeframe.
     

4. The Plaintiff is ordered to pay the Defendant summarily assessed cost of $1,500 within 7 days timeframe.
   
5. The High Court Civil Registry is ordered not to issue any further application and or documents lodged by the Plaintiff until the ordered cost of $1,500 is paid by the Plaintiff.
   
6. The failure of the Plaintiff to adhere to the abovementioned Court Orders at Paragraph B, C and D will result in the Striking Out of the Plaintiff’s Writ of Summons and the Statement of Claim accordingly.
   
7. Orders accordingly.
   

Dated at Suva this 02^nd Day of October, 2017

............................................................
VISHWA DATT SHARMA

Master of High Court, Suva

cc. Lateef & Lateef Lawyers, Suva
Munro Leys Solicitors, Suva.