WILLIAM THOMSON v. TANNER DE WITT (a firm)

BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3389OF 2005

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(Heard Together)

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J U D G M E N T

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Introduction

1.  This is an application by the Plaintiff to strike out certain parts of the Second Defendant's (“2^nd Defendant”) Defence in the respective cases for failure to answer Further and Better Particulars pursuant to an unless order made by Master Poon on 6 January 2006.

2.  The facts pertaining to this application are identical in both cases.  Subsequent to the filing of the Defence by the 2^nd Defendant (“the Defence”), the Plaintiff filed and served a Summons for Further and Better Particulars of the Defence returnable on 4 November 2005.  At the hearing, with the assent of the 2^nd Defendant, Master Yu made an order for the 2^nd Defendant “to furnish to the Plaintiff and file an answer to the Request within 21 days”.  Time for filing of the answer was extended twice and on the second occasion, on 6 January 2006, Master Poon made an unless order for both cases in identical terms as follows:

“Unless by 4.00pm on 26 January 2006 the 2^nd Defendant do furnish to the Plaintiff and file an Answer to his Request for particulars of the Defence of the 2^nd Defendant dated 15 October 2005, pursuant to the Order of Registrar Yu dated 4 November 2005 ordering the same to be furnished within 21 days, Paragraph 2 (3^rd sentence), Paragraph 3 (3^rd sentence), Paragraph 4 (1^st to 4^th sentences), Paragraph 5 (2^nd to 5^th sentences), Paragraph 6 (4^th sentence), Paragraph 7 (3^rd sentence), Paragraph 10, Paragraph 13 (2^nd sentence), Paragraph 15(b) (1^st and 2^nd sentences), Paragraph 15(c) (1^st sentence), Paragraph 15(d) of the Defence of the 2^nd Defendant be struck out.” (“the Unless Order”)

3.  In pursuance to the Unless Order, a document titled “Answers to the Plaintiff's Request for Particulars of Defence of the 2^nd Defendant” (“the Answer”) was filed and served on 26 January 2006.

The Plaintiff's Case

4.  The Plaintiff agreed that the Unless Order is a time order but submitted that in compliance with it, the Answer filed must not be illusory.  The Plaintiff contended that the Answer is only giving a blanket and global response that the nature of its case had been sufficiently pleaded in its Defence and that most of the particulars ordered were matter of evidence or discovery.  The Answer is not a proper reply to the Request and wholly inadequate leaving the Plaintiff in the dark and unable to understand the Defence case.  Since the Unless Order has not been complied with in this regard, the particular parts in the Defence as stated in the Unless Order should be struck out.  Alternatively, the Plaintiff is inviting this court to consider an order for further compliance by the 2^nd Defendant.

The Second Defendant's Case

5.  The 2^nd Defendant submitted that the Unless Order has been complied with in every respect.  The wordings of the order is to “file an Answer” which means filing of the pleadings itself.  All that the 2^nd Defendant agreed is to file a reply to the Request and not to furnish the particulars.  This is done within the time allowed and the Unless Order has been complied with timely.  The Answer given are in standard forms and is not an uncommon way to plead in this way.  Adopting the test in the case of Reiss v Woolf [1952] 2 QB 557, the 2^nd Defendant submitted that the Answer filed is not illusory and can be entitled “particulars”.  It is also submitted that a further order for compliance is not necessary in this case since the Request will not take the Plaintiff's case any further and the filing of witness statements in due course will set everything in focus. 

Whether the Answer is illusory

6.  It is not in dispute that the 2^nd Defendant has complied with the Unless Order timely.  The issue is whether the Answer is “made in good faith and which can be fairly be entitled ‘particulars'.  It must not be illusory” (Reiss v Woolf (supra). 

7.  The Answer filed, all except for the reply to Request 1(1) of DCCJ 3388/2005, consisted of reply in the followings wordings: “the matter has already been pleaded in the Defence” and/or “this is not a particular of pleadings as the nature of the case is already known by the pleadings, rather this is a matter of evidence to be given on discovery and/or to be dealt with at the trial of the matter”. 

8.  I can't see how the latter answer can be accepted as a reply, least to say an adequate reply to the respective question posed.  If the 2^nd Defendant is of the opinion that the requests are not appropriate, such challenge should be voiced out at the hearing of the Summons before Master Yu.  By purportedly giving a reply which is in effect disputing the reasonableness of the request, the 2^nd Defendant has clearly failed to answer the requests. This kind of answer is clearly illusory and cannot be fairly entitled “particulars”.  And I found the 2^nd Defendant's contention that they had not agreed to furnish the particulars is unfounded.  By assenting to the filing of the Answer at the hearing before Master Yu without any challenge to the reasonableness of the request, the 2^nd Defendant had in fact indicated their agreement to provide the particulars requested.  By arguing otherwise is an affront to common sense and legal practice.

9.  For those answers that alleged the matter has already been properly and adequately pleaded, a close scrutiny of the Defence and the other pleadings showed that this is clearly not the case.  I am indebted to Mr. Ip for the Plaintiff who had highlighted all the inadequacy of the Answer in his written submission and I agreed with his observation.  Each party's case should be known from the pleadings and not the witness statements.  The purpose of giving particulars is to enable the litigation between the parties, particularly the trial, could be conducted fairly, openly, without surprises and to minimize costs.  The particulars enable the other side to know with what evidence they ought to be prepared and to prepare for trial.  The Answer filed by the 2^nd Defendant clearly failed to serve this purpose and cannot be fairly be entitled “particulars”.

Conclusion

10.  I am satisfied that the 2^nd Defendant is in breach of the Unless Order by furnishing an illusory Answer to the Request and the result on default stipulated in the Unless Order should follow.  I have also considered the alternative suggested by the Plaintiff of giving the 2^nd Defendant further time to comply with the order.  But I found ample opportunity has already been given to the 2^nd Defendant in this regard and further order for compliance will cause further delay in these proceedings which is not justified.

11.  I order that Paragraph 2 (3^rd sentence), Paragraph 3 (3^rd sentence), Paragraph 4 (1^st to 4^th sentences), Paragraph 5 (2^nd to 5^th sentences), Paragraph 6 (4^th sentence), Paragraph 7 (3^rd sentence), Paragraph 10, Paragraph 13 (2^nd sentence), Paragraph 15(b) (1^st and 2^nd sentences), Paragraph 15(c) (1^st sentence), Paragraph 15(d) of the Defence of the 2^nd Defendant in both cases be struck out.

Costs

12.  The 2^nd Defendant should pay the Plaintiff's costs, to be taxed if not agreed.  This is an order nisi to be made absolute upon expiry of 14 days.

Mr. John Ip of Messrs John Ip & Co for the Plaintiff

Mr. Jose Marrellet instructed by Messrs Tanner De Witt for the 2^nd Defendant