Further Particulars

Notice for Particulars

Where a party to proceedings has insufficient information about the case required to be met,  he or she may seek further and better particulars of pleadings. A notice for particulars may be served.

If the other party does not furnish replies, the party serving the notice may apply to the court for an order compelling the replies. The court on the application has jurisdiction to order a further and better statement of the nature of the claim or defence or further and better particulars of any matter stated in any pleading on such terms, including as to costs, is maybe just.

The courts have cautioned against the practice of serving wide-ranging and indiscriminate notices for particulars, particularly in stereotyped form. They may be regarded as an abuse of process.

Function

A party is entitled to know the nature of the case being made against him. However, the role of particulars is not to require a party to give detailed particulars about each specific aspect of the case. It is sufficient that the issues between the parties should be adequately defined and that the parties know in broad outline what is going to be said at the trial of the action.

A party is not entitled to know the evidence which will be advanced by his opponent at trial. This is a matter for evidence and not  for pleading. Sometimes there can be a fine line between the two. Requiring information about how or why something has occurred is not necessarily a request for evidence.

Notice for particulars cannot be a substitute for proceedings at trial. A party is entitled to know the case against him but not the evidence to prove it and extraneous matters.

Scope

Notice for particulars sought may not range outside the scope of the statement of claim or defence. Notice for particulars may be resisted as oppressive and excessive. Once the nature of the claim is reasonably apparent, the courts may decide that further particulars are unnecessary.

The basic principle is that a party should know the case he or she is expected to meet. He should not be taken by surprise at the trial in relation to the issues in question.

It does not entitle a party to require detailed particulars of specific aspects beyond this. It is sufficient that the issues have been adequately defined and the parties know in broad outline what is going to be said at the trial.

Pleadings

The Rules of Court state that every pleading shall contain only a statement in a summary form of material facts on which the reading relies for his claim or defence of his case but not the evidence by which they are proved.

The purpose of particulars may be viewed in the light of the fact that they are directed towards the trial and, in most cases, will ultimately be decided by reference to oral evidence. Particulars in pleading should facilitate the trial and not be a substitute.

The defendant is entitled to be told of the facts as the plaintiff alleges. It is not a ground for refusing particulars that the defendant may know the true facts.

Parties are not generally required to give details of a denial in response to pleadings. However, if he makes an affirmative case, further particulars may be required.

It may be insufficient to give particulars by way of examples. More specific details may be required.

Complex Cases

In complex cases, more detailed protectors may be properly required. The parties are entitled to know the range of evidence rather than any particular item of evidence that they will have to deal with in trial.

Where proceedings are complex, the courts aim to identify and reduce the issues where possible prior to trial. Accordingly, more detailed particulars will often be justified in complex cases.

Procedures requiring the exchange of a written statement may reduce the risk of a party being taken by surprise. However, this does not mean that less is required by way of particulars.

Particular Requirements

Where wrongdoing or misconduct is pleaded, more detailed particulars will be required. This does not necessarily extend to the full circumstances from which deliberate misconduct, fraud, or malice can be inferred.

Where it is claimed that a party has not met a relevant standard, particulars may be required of the standard claimed to be required.

Particulars of special damage must be furnished. This is quantifiable measurable damage.

Witnesses

Although a party is not required to furnish evidence as to how he will prove his case, he may be required to give particulars to inform the other party regarding the range of evidence that will be raised at trial. The particulars of witnesses’ identities will not generally be required.

Names and addresses of witnesses may be ordered if not to do so would cause litigation disadvantage to the party pleading a defence and considerable advantage of the plaintiff in a manner that would be unfair. This derives from a need to ensure a fair trial for both parties.

Legal Basis

Questions of the legal basis on which a case is founded will not generally be ordered.

If the case fails to reach legal standard, then the application may be made to dismiss the case at trial or beforehand. However, if the case as pleaded is so general or is alternative in nature that the pleadings obscure or confuse the claim or fail to point out the source of the rights, further particulars may be ordered.

Relationship to Discovery

One important function of particulars is to limit the range of discovery, which can be burdensome and expensive for the parties.It may be insufficient to give particulars by way of examples. More specific details may be required.

It is not proper to seek documentation by way of notice for particulars. This is the subject matter of discovery inspection and interrogation. Separately, a party is entitled to serve notice to require the party to produce a document in the pleadings or affidavit or discovered documents to produce that document for inspection and allow copies to be taken.

The fact that a party may be able to give more detailed particulars upon obtaining discovery does not absolve the obligation to define the claim as best it can. Discovery takes place only upon completion of pleadings.

Otherwise, a party would be able to trawl the other side’s confidential information without justification for seeking the basis for a claim. However, a party will not be required to plead in detail what he cannot reasonably obtain other than by discovery.

Timing

Particulars may be sought at any time in proceedings, not before pleadings close. If a party unduly delays in bringing an application, it may be refused on this ground alone.

A party is required to furnish particulars as of the date of the pleadings. There is no general obligation to update them. However, if new information emerges in relation to matters that have been provided which would cause surprise if relied on,  then supplemental protectors or other notice should be given.

Strike Out and Sanction

If a party has been ordered to provide particulars and does not do so, the court may make an order striking out the relevant pleadings or even the proceedings. The statement of claim or defence may be struck out.

When the court makes an order for further and better particulars further and better particulars it can provide terms and conditions including striking out of pleadings or proceedings if the term of the order is not complied with.

Striking out is a severe sanction which may be more appropriate where there has been persistent and blameworthy failure to provide particulars.

Motion

A party seeking to enforce notices for particulars may be required to issue a motion. If replies are inadequate or late, he may be held to have accepted them if he does not take a motion.

If a party does not choose to seek any further particulars, a broad allegation cannot complain if something capable of being brought in within the scope of the pleadings emerges at trial. In such cases, further particulars should properly have been sought.