A.T. CONSULTING ENTERPRISES v. THE H.K. CITY PARK RESTAURANT

HEAD NOTE

                 Criteria for ordering and not ordering further and better particulars - Allen Pat Yung Waung . Sir Yue Kong Pao Civil Appeal No. 45 of 1984 followed - Application des Gaz S.A. v. Falks Veritas Ltd. F.S.R. 363 (cited at page 319, Volume 1, White Book, 1982) considered.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO.7506 OF 1984

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BETWEEN

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EX TEMPORE REASONS FOR RULING

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1. This is an application by the Plaintiff for further and better particulars from the Defendant. The request consists of two pages. Suffice it to summarize it by stating that a good part of it consists of a demand for particulars of evidence to be adduced by the Defendant and for clarification of certain denials which have been made clear to be denials in the Statement of Defence. In law, the Plaintiff is plainly not entitled to such particulars which I shall briefly identify later.

2. The Plaintiff's case is for work done and professional fees due. The Plaintiff is a firm of consulting engineers and the Defendant is a business of restauranteurs. The defence is one of inadequate and inferior supervision, workmanship and general performance on the part of the Plaintiff and the Defendant counterclaim.

3. As recently summarized in Sir Yue Kong Pao in Civil Appeal No. 45 of 1984 the judgment of which was delivered on 18th of May 1984 by Hong Kong Court of Appeal: "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" (per Edmund Davies L.J. in Astrovlanis Compania Naviera S.A. v. Linard [1972] 2 Q.B. 611; [1972] 2 W.L.R. 1414 at p, 1421).

4. It is settled law and practice that one party in mitigation is entitled to know so much of the case of the other so that that one party not only can meet his opponent's case but also be able to decide on what evidence that the party itself ought to be prepared with and to prepare for trial. Hence the issues must be so limited and defined and the hands of the parties must be so tied that they cannot without leave go into any matters not included. On the other hand, the issue may be obsoured by too much detail. Besides, the party who pleads with unnecessary particularity may thereby fetter his hand at the trial.

5. Whenever negligence or misconduct is alleged, the fact must be stated with especial particularity and care. (Volume I, White Book, 1982, Order 18/12/2A at page 319 paragraph 3 and cases cited therein refer. )

6. In the recent case of Application des Gaz S.A. 1975 F.S.R. 363 (referred to at page 319 of the said White Book), it was held that particulars of a defence that the plaintiff is abusing a dominant position within the EEC contrary to Art. 86 of the Treaty of Rome must be given. A merely general plea is embarrassing because the defendant does not know what case he has to meet or what matters are relevant to discovery.

7. Having reminded myself of the relevant principles involved, I rule that the Plaintiff is not entitled to the particulars in the form as asked for but are entitled to the following particulars:-

8. The particulars above-ordered are necessary for the Plaintiff to prepare this case and to decide on what evidence the Plaintiff (as opposed to Defendant) must call at the trial.

9. As I have said much of the particulars asked for involved the nature of evidence to be adduced by the Defendant-understandably so because the Plaintiff not being lawyers albeit a firm of consulting engineers did not appreciate that it is not entitled to particulars of evidence.

10. In B and C under request, the clarification of proposals and denials in question are unnecessary as what appear in the Statement of Defence are sufficiently clear as denials.

11. The above particulars ordered to be supplied shall be supplied within 14 days from date and the hearing date namely 21st September 1984 is hereby set aside and this case should be put on the fixture list with 2 days reserved as requested by Solicitor.

12. Costs shall be cost in the cause for today's hearing.