A recent High Court decision(1) has confirmed the purpose and rationale behind seeking particulars of an opposing party's pleaded case and has highlighted that they are not appropriate for eliciting evidence which would otherwise be brought out at trial. The decision confirms other cases which have held that seeking particulars of a pleaded case is limited to understanding the broad outline of the case, and that it is inappropriate to seek to broaden seeking particulars beyond that.
The applications before Judge O'Malley related to four categories of investor in a property scheme, with one application per each category of plaintiff investor. In each case the investors had been invited to subscribe to a fund to purchase properties on the basis that if the subscriptions met a target figure by a given date, moneys were to be invested; while if the target amount was not reached, the moneys were to be returned. It appears that the funds invested in the project were not used to purchase properties and went missing. The plaintiffs contended that the funds should have been returned on the basis that the target amounts were not reached by the relevant dates. The defendants contended that in each case funds were transferred because the target had been reached. Discovery requests by the plaintiffs had been agreed in full, but the plaintiffs served a notice for further and better particulars and ultimately issued a motion to compel replies. The defendants resisted the motion on the basis that the outstanding issues related to matters of evidence and that the plaintiffs were essentially seeking to use particulars as a means of cross-examination or interrogation.
In broad terms, the particulars sought requested that the defendants identify:
- the investors whose sums invested were contended to make up the target subscription amount; and
- the sums allegedly received which made up the target subscription.
The particulars in relation to the identification of the investors related to a plea that the target subscription was met by the relevant date, while the particulars sought in relation to the sums involved related to pleas in respect of the investment structure. The defendants had resisted the requests in the first instance by contending that they were not proper matters for particulars, but were matters for evidence at the trial, in respect of which discovery had already been agreed. The plaintiffs contended that the delivery of replies with the information sought would assist in saving costs and time at trial by compelling the defendants to identify with precision the pleas made by them in their defence and counterclaim.
The genesis for seeking particulars with regard to pleas set out in pleadings arises from Order 19, Rule 7 of the Rules of the Superior Courts:
"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, notice or written proceedings requiring particulars, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just."
O'Malley also referred to Delany and McGrath in Civil Procedure in the Superior Courts,(2) who record that:
"the general principle is that particulars will be ordered if they are necessary to clarify the issues so that the party requesting them can know the case he has to meet or if there is a danger that he may be taken by surprise at the trial of the action. An order compelling a party to reply to a notice for particulars will be refused where the court is satisfied that the party seeking the particulars knows the broad outline of the case that will have to meet."
She also referred to a number of authorities that confirm the purpose of particulars. In particular, she acknowledged that the early test in Mahon v The Celbridge Spinning Co Ltd(3) was approved in McGee v O'Reilly,(4) where Judge Keane observed:
"In our system of civil litigation, the case is ultimately decided having regard to the oral evidence adduced at the trial. The machinery of the pleadings and particulars, while of critical importance in ensuring that the parties know the case that has been advanced against them and that matters extraneous to the issues as thus defined will not be introduced at the trial, is not a substitute for the oral evidence of witnesses and their cross examination before the trial judge."
She also cited Judge Dunne in Quinn Insurance Ltd v Tribune Newspaper plc,(5) where she stated that:
"there is no doubt whatsoever that a party is entitled to know the nature of the case being made against them. However, the role of particulars is not to require a party to furnish detailed particulars of specific aspects of the case. It is sufficient that the issues between the parties should be adequately defined and that the parties should know in broad outline what is going to be said at the trial of the action."
Finally, O'Malley referred to Judge Hogan's decision in Burke v Associated Newspapers (Ireland) Ltd(6) to the effect that:
"In general, therefore, while a litigant is entitled to know from the pleadings the nature of the case he has to meet, he is not entitled to learn in advance the evidence which his opponent will lead in support of that contention. The distinction between what is a matter for pleadings on the one hand and what is a matter for evidence on the other is often a fine one and it is also one which is sometimes difficult to apply consistently in practice. Nevertheless, it seems clear that a plaintiff (or a defendant, as the case may be) is not entitled to further particulars once the essence of the case which he has to meet is clear from the proceedings."
O'Malley ruled that the defendants were correct in resisting the request and she ruled against the attempt by the plaintiffs to compel the provision of what would in effect be witness statements without the benefit of the witness being able to put his or her answers in context. She felt that the plaintiffs knew what the defence in the case was and had been given everything they asked for in discovery relevant to the defence, and it was neither necessary nor desirable that the defendants be obliged to provide further particulars.
The case is a useful restatement that particulars are limited to seeking enough information about the pleadings so that a party may know the case it has to meet. They are not appropriate to seek to obtain evidence and any attempt to do so should result in failure. Accordingly, a party looking to raise particulars of a pleading (eg, a statement of claim or defence) should think carefully about the necessity of the information sought with regard to its understanding of the case.
Gearóid Carey
