DISCREET LTD v. CUBIERTAS Y. MZOV S.A. AND OTHERS

-----------------

OPINION

-----------------

1. The plaintiff is claiming injunctions and damages from the defendants on the basis of an unlawful interference with the plaintiff's right of way. The defendants have filed a defence in which the basis for the plaintiff's claim is denied. Broadly, the defendants say that an alternative access road was provided by the government, the pre-existing access road was closed permanently, and the defendants have not interfered with the plaintiff's access. The defendants also say that, in any event, by virtue of the Roads (Works, Use and Compensation) Ordinance, the plaintiff has no claim against the defendants.

2. The defendants filed a request for further and better particulars and obtained an order on 22 October 1997 that the plaintiff do reply to this. The defendants complained that the plaintiff has not supplied all the particulars requested, and sought an order from me that it do so. Some further particulars were supplied on 9 December 1997. The defendants were not satisfied with these particulars, and I agreed that they were not adequate. On 18 December 1997, I ordered that the plaintiff supply the particulars requested by the ninth and tenth requests, and provided that "in default that the defendants be at liberty to apply to have the action dismissed." The plaintiff supplied some further particulars on 23 December 1997. Again, the defendants were not satisfied, and issued a summons on 29 December 1997 seeking an order that the plaintiff's action be dismissed. This summons came on for hearing on 20 January 1998. Unfortunately, the particulars of 23 December 1997 were filed out of order in the court file, and I did not read them before the hearing on 20 January 1998. The hearing was listed for only five minutes, and there was insufficient time to deal with the matter. I said that I would adjourn the summons, read the particulars supplied, and express my tentative views so that the parties could then decide what to do.

3. I have now read the further particulars supplied on 23 December 1998 in the light of what Miss Landon has to say in a very full written submssion.

4. My preliminary view is that, although some of the criticisms made by Miss Landon may be justified if one is seeking a perfect set of pleadings, the plaintiff has particularised its case sufficiently to enable the defendants to know the case they have to meet and the other purposes summarised at paragraph 18/12/1 of the Supreme Court Practice. It may be that the plaintiff has not fully complied with my order, but my feeling is that it has done its best, and its failures are not contumelious. It must be accepted that the plaintiff did not have a witness who was present during the whole of the time concerned, and so the plaintiff cannot give the wealth of detail that the defendants seek. Where there are lacunae in the particulars, the trial judge will take it that the plaintiff is unable to supply those particulars. The consequence of this is that the plaintiff will be unable to lead any evidence of a particular not supplied, and will be unable to argue that it should be inferred that something has been proved of which particulars have not been given.

5. As to costs, as I have said, there is some room for complaint by the plaintiff, so I would be inclined to order that the costs of the application be in the cause.

6. If the parties wish to argue this matter further, it should be set down for two hours.