XCHRX CHAN WAN KEUNG, WILLIAM v. GROCERY HOLDINGS PTY. LTD.

1994, Nos. CL 161, 207 and 208

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

___________

___________

JUDGMENT

__________

1. In his statement of claim, the plaintiff alleges that "there had been a course of dealing between the Plaintiff and the Defendant" and went on to allege, in fairly broad terms, what had happened during this course of dealing.

2. The defendant requested further and better particulars of this allegation - "Specify all facts and matters, documents and/or overt conduct relied upon by the plaintiff in support of the allegation that there was such a course of dealing between the plaintiff and the defendant.".

3. The plaintiff's answer was - "The Defendant is not entitled to ask for evidence. The relevant documents will be disclosed at the stage of discovery."

4. The defendant's solicitors protested about this in correspondence, but the plaintiff's solicitors would not budge.

5. I am now asked to order that the plaintiff supply the particulars.

6. The pleadings are closed.

7. In so far as it might be said that the defendant's request asks for evidence, as well as facts relied upon, the defendant has made it clear in correspondence that it is not doing so. The plaintiff is not, of course, obliged to disclose its evidence, and, in answering the request, would be entitled to refuse to do so. The plaintiff has somewhat shifted its ground from that stated in his reply. Mr Chan now suggests that the defendant's request is also not sufficiently particular. Two of the particulars stated by the plaintiff as part of the course of dealing between the parties are that the plaintiff has sold houseware to the defendant and these sales have invariably been sales by sample. In response to my query, Mr Chan said that, if the defendant had asked for particulars of these sales, they would probably have been supplied. I do not think it is necessary for the defendant to be that specific. The request, when related to such particulars as are given by the plaintiff, is asking, in this instance, for details of these sales, including a specification of the documents relied upon. The same applies to the other allegations made. It is necessary for the defendant to know which documents are relied upon to support a particular allegation; discovery will not tell it that. It may be that the request is framed somewhat widely, but the plaintiff is not prejudiced by that. It is not going to face an "unless" order. By way of reply to the request, it may furnish such particulars as it considers meet its obligations. If the defendant is not content with what is supplied, it may make a further application, and the detail can be thrashed out. But I do not think the plaintiff is entitled to give a blanket refusal to supply any particulars of any facts, matters or documents relied upon. Certainly, some particulars of the allegation must be supplied to enable the defendant to know the case it has to meet.

8. The defendant had, in its summons, asked for an order that particulars in respect of another allegation be supplied, but this falls away because these were supplied on 21 November 1995, after this summons was taken out.

9. I make an order that the plaintiff answer the request in relation to paragraph 5 of the consolidated statement of claim. Once the defendant has seen the particulars supplied, it will be able to judge whether it should seek further particulars.

10. On the face of it, there seems to me no reason why the defendant should not have its costs of this application in any event, and I make an order nisi accordingly.