N5340

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 348 OF 2003
WS 1701 OF 2001

BETWEEN:

GOLOBADANA NO. 35 LIMITED
Plaintiff

AND:

BANK SOUTH PACIFIC LIMITED FORMERLY TRADING AS PAPUA NEW GUINEA BANKING CORPORATION
Defendant

Waigani: Davani .J
2013: 22nd, 23rd August

INTERLOCUTORIES – Request for further and better particulars – claim for special damages – not particularized – National Court Rules, Order 8 Division 2

INTERLOCUTORIES – questions arising over claims made – interrogatories can be filed – National Court Rules Order 9 Division 2

Facts

The defendant requests that the Court order the plaintiff to provide further and better particulars of its claim. However, the defendants draft attached, raised other questions which were more interrogatories, then a request for further particulars.

Held

The function of particulars is to carry into operation the overriding principle that the litigation between the parties and particularly the trial, should be conducted fairly, openly and without surprises and incidentally, to reduce costs. (cited with approval by Edmund Davies LJ in Astrovianis Comparua Naviera S.A v. Linard [1972] 2 Q.B 611). This function has been stated in various ways, as follows;

i.	To inform the other side of the nature of the case 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 (1897) 77 L.J 67 p. 68)

ii.	To prevent the other side from being taken by surprise at the trial (Thomas v. Birkley (1882) 31 W.R 23)

iii.	To enable the other side to know what evidence they ought to be prepared with and to prepare for trial (Elkington v. London Association for the Protection of Trade (1911) 27 T.L.R 329 p. 330)

iv.	To limit the generality of the pleadings or of the claim or the evidence (Milbank v. Milbank [1900], Ch. 376, p. 385)

v.	To limit and define the issue to be tried and to which discovery is required (per Williams L.J in Milbank v. Milbank [1900] CH. 376 p. 385)

vi.	To tie the hands of the party so that he cannot without leave go into many matters not included. Wooley v. Broad [1892] 2 Q B 317)

Cases cited

Thomas v. Birkley (1882) 31 W.R
Wooley v. Broad [1892] 2 Q B 317
Duke v. Wisden (1897) 77 L.J 67
Hayward v. Pullinger and Partners Ltd [1950] All E R 58
Ilkiw v. Samuel [1963] W.L.R 1991
Edmund Davies LJ in Astrovianis Comparua Naviera S.A v. Linard [1972] 2 Q. B 611Milbank v. Milbank [1900] CH. 376
Elkington v. London Association for the Protection of Trade (1911) 27 T. L.R 329

Counsel:

Mr S. Malaga, for the plaintiff
Mr E. Mukwesipu, for the defendant/applicant

RULING
23rd August, 2013

1.	DAVANI .J: Before the Court is Amended Notice of Motion filed on 29th April, 2012 by Gadens Lawyers for and on behalf of the first defendant/cross-claimant ('applicant bank'), on 29th April, 2013. This motion seeks orders that the Court extends time for the first defendant/cross-claimant to file and serve its Request for Further and Better Particulars within 7 days and for the Plaintiff/Cross-defendant to provide Answers to the Request for Further and Better Particulars ('Request') within 7 days after receipt of the Request. Those orders are sought under Order 1 Rules 7 and 15 and Order 12, Rule 1 of the National Court Rules ('NCR').

2.	Alternatively, the applicant seeks orders pursuant to Order 8 Rules 34 and 36 of the NCR and Order 10A rule 19 (d) (e) and Rule 21 of the Commercial List Rules that the plaintiff provide answers to the Request. A draft of the Request is attached as annexure 'MM 6' to the affidavit of Mr Mukwesipu sworn on 5th October, 2012 and filed on 8th October, 2012.

3.	Basically, this is an application by the Bank South Pacific Limited ('BSP') for the Court to order that the plaintiff provide further and better particulars to the BSP.

4.	This matter has a long convoluted history. In his affidavit sworn on 5th October, 2012, Mr Mukwesipu deposes to the brief history of the matters WS 1701 of 2001 and WS 384 of 2003. Mr Mukwesipu deposes to the fact that on 11th November, 20012 in proceedings WS 1701 of 2001, the National Court heard the plaintiff's application for Declarations and ruled that the Management Agreement, subject of these proceedings, was unlawfully terminated. Mr Mukwesipu deposes that the effect of this is that it extinguishes claims pursued by the plaintiff for alleged loses arising from breach of the Management Agreement.

5.	WS 384 of 2003, are separate proceedings filed by the plaintiff over the alleged breach of the Management Agreement where the plaintiff's claim unpaid management fees arising from breach, referred to herein. It was not until 23rd June, 2011, when the plaintiff submitted to the bank its settlement proposal, that the bank noted the settlement proposal also contained or included a claim for damages being loss of trading profits, losses suffered as a result of the applicant's termination of the lease, amongst others, which the defendant's claim, is already settled.

6.	The bank's lawyers responded by letter of 16th August, 2011 rejecting the proposal and explaining that none of the claims were substantiated and were incorrectly calculated. It was for those reasons, that the bank's lawyers requested full and better particulars of each of the heads of the damages sought in the plaintiff's lawyers' letter of 23rd June, 2011.

7.	By BSP's lawyers letter dated 1st October, 2012, they enclosed an unsealed copy of the Request. In the absence of a response from the plaintiff's lawyers, the applicant's lawyer filed this Notice of Motion for an order for further and better particulars, motion filed on 8th October, 2012, which was subsequently amended on 29th August, April, 2013 and now before me.

8.	Mr Mukwesipu submits that the Answers to the Request will assist in indentifying which claims have been settled, which have not and the genuine outstanding claims. He also referred to and relied on O. 10A R. 21 and R. 19 (d) of the Commercial Listings Rules which provides that the provision of essential particulars will ensure the just, quick and cheap disposition of proceedings.

9.	Mr Malaga on the other hand, submits that a similar request for Further and Better Particulars was made in 2004 and that the plaintiff had complied. He submitted also that litigation will be protracted if the Court were to order the provision of further particulars. 

10.	Mr Malaga submitted that the proper thing to do under the circumstances is for the matter to go to trial and the applicant bank to issue summonses to Expert witnesses to then give evidence on the queries raised by the applicant bank contained in the draft Request, before me.

11.	No doubt, both parties have invoked the Court's powers under the National Court Rules to enter into interlocutories and interrogatories. That right is available to them.

12.	Order 8 Division 2 of the NCR, is the division that governs the production of particulars. It provides in short, that every pleading must contain the necessary particulars of any claim, defence or other matters pleaded.

13.	Order 8 Rule 29 states that a party pleading shall give the necessary particulars of any claim, defence or other matter pleaded by him.

14.	The function of particulars is to carry into operation the overriding principle that the litigation between the parties and particularly the trial, should be conducted fairly, openly and without surprises and incidentally, to reduce costs. (cited with approval by Edmund Davies LJ in Astrovianis Comparua Naviera S.A v. Linard [1972] 2 Q.B 611). This function has been stated in various ways, as follows;

i.	To inform the other side of the nature of the case 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 (1897) 77 L.J 67 p. 68)

ii.	To prevent the other side from being taken by surprise at the trial (Thomas v. Birkley (1882) 31 W.R 23)

iii.	To enable the other side to know what evidence they ought to be prepared with and to prepare for trial (Elkington v. London Association for the Protection of Trade (1911) 27 T.L.R 329 p. 330)

iv.	To limit the generality of the pleadings or of the claim or the evidence (Milbank v. Milbank [1900], Ch. 376, p. 385)

v.	To limit and define the issue to be tried and to which discovery is required (per Williams L.J in Milbank v. Milbank [1900] CH. 376 p. 385)

vi.	To tie the hands of the party so that he cannot without leave go into many matters not included. Wooley v. Broad [1892] 2 Q B 317)

15.	In relation to special damages, which are what the plaintiff is claiming, he will not be allowed to give evidence of any special damages which is not explicitly claimed either in his pleading or particulars. (Hayward v. Pullinger and Partners Ltd [1950] All E.R 58). Special Damages in the sense of a monetary loss which the plaintiff has maintained up to the date of trial must be pleaded and particularized otherwise it cannot be recovered (Ilkiw v. Samuel [1963] W.L. R 1991)

16.	The Supreme Court Practise 1985 Volume 1 provides a comprehensive discussion on the type of particulars to be provided and the relief available to a defendant if these claims are not properly particularized (pgs 268 to 297).

17.	In this case, the Writs in both proceedings plead that further particulars will be provided prior to trial (pars. 10, 11 in WS 384 of 2003; pars. 7, 8 and 13A in WS 1701 of 2001). The plaintiff has yet to do that. Of course it may be that the plaintiff has already done that which Mr Malaga attempted to demonstrate at the hearing by the productions of his affidavit, which Mr Mukwesipi objected to and which I refused to accept, the basis of the objection being that Mr Mukwesipi had not been served with that affidavit.

18.	In the absence of any explanation, which Mr Malaga could have done by referring me to documents in the Court file he intended to rely on, the general rules of pleading is that a party cannot claim what is not pleaded. The plaintiff must provide those further particulars if it wishes to pursue those claims. Order 8 Rules 29, 35 and 36 of the NCR provides that a party must file further particulars to their claim.

19.	In this case, the applicant bank is looking to have certain questions answered. These are called interrogatories and can be obtained, guided by Order 9 Division 2 of the NCR. Order 9 Rule 18 provides that a party who is required to answer interrogatories, must do so, subject to Rule 19, by filing an answer. Order 9 Rules 21 and 22 provides that the Court may also order, that any party file and serve a Statement in answer to interrogatories.

20.	In this case, although the applicant bank is seeking further particulars, it has come before this Court in the way of interrogatories.

21.	As I understand it, the applicant bank wishes the Court to order the plaintiff to serve particulars. Relying on Order 8 Rule 36, I will exercise my discretion in making an order, that the Request be filed.

22.	Additionally, the plaintiff should also seriously consider filing the Further particulars to substantiate its claims for special damages it has pleaded in its respective Statements of Claim if not already done. The defendant is also at liberty to file interrogatories.

Orders

23.	These are the orders of the Court:

1.	The first defendant/cross-claimant will file and serve its Request for Further and Better Particulars upon the plaintiff/cross-defendant and to do so within 7 days from today, to address only the particulars of special damages;

2.	The plaintiff/cross-defendant, will file and serve the Particulars to the said request, within a further 14 days, by or before 12th September, 2013;

3.	The parties or defendant more particularly, is at liberty to file and serve interrogatories, raising queries it has in relation to the claims for special damages and other claims allowed by law;

4.	The plaintiff /cross-defendant will pay the first defendant/cross-claimant's costs of this application, such costs to be assessed and taxed, if not agreed;

5.	Time is abridged to the time of settlement, to take place forthwith.

___________________________________________
Henaos Lawyers: Lawyer for the Plaintiffs 
Mukwesipu Lawyers: Lawyer for the Defendants