Seram v Carr Lawson and Co Limited (Civil Case No. 71 of 1939) [1938] EACA 185 (1 January 1938)

## ORIGINAL CIVIL

## Before THACKER J.

## REGINALD MORGAN DE SARAM, Plaintiff v.

## CARR LAWSON & CO., LIMITED, Defendant Civil Case No. 71 of 1939

Practice—Pleading—Defence—Particulars—General denial—Civil Procedure Rules Order VI.

Plaintiff sued defendant for damages for trespass and conversion and alleged in his plaint that "on 11th April, 1939, defendants by their agents wrongfully seized and took motor car No. T4974 and a quantity of petrol in the tank of the said car, and wrongfully deprived plaintiff thereof, plaintiff then having a valid and substantial interest as hirer of the car and being owner of the petrol".

The written statement of defence was as follows:—

"1. The plaint as filed in this suit does not disclose any reasonable cause of action and the defendants are about to make an application to this Honourable Court to strike out the plaint on these grounds.

2. Alternatively and without prejudice to the above the defendants deny the allegations contained in the plaint and also the claims put forward on behalf of the plaintiff and put him. to the strict proof thereof.

Wherefore the defendants pray that the plaintiff's suit may be dismissed with costs."

Plaintiff applied for an order under Order VI Rule 6 requiring the defendants to furnish further and better particulars of the value of the defence as under: $-$

"1. Whether it is intended to deny that plaintiff had possession of the car on the material date (11th April, 1939).

2. Whether, if plaintiff's possession on the material date is intended to be admitted, it is intended to deny that there was any taking of the car by defendants and/or their agents or servants against the will of the plaintiff.

3. If taking is intended to be admitted, but leave and licence of the plaintiff to such taking is intended to be set up as a defence, then particulars are required of such leave and licence: if verbal, identifying time, place and defendants' agent or servant to whom it was given; if in writing, identifying the document or part of document.

4. So far as applicable the foregoing particulars are also required as to the petrol in the car's tank referred to in the plaint."

Held (1-7-39).—That the plaintiff was entitled to the order for particulars as prayed.

Sir Charles Belcher for the Plaintiff.

Barret for the Defendant.

RULING.—The question before me is whether certain particulars asked for by the plaintiff should be ordered.

The relevant Order VI and Rules of this Colony are, as the Comparative Table at the end of the Civil Procedure Code will show. much the same in substance as the Rules of the Supreme Court. England, and Orders 19 and 28 of the Rules of the Supreme Court, England, are the Orders upon which are based our Order VI Rules 3 to 26. The note to Order 19 Rule 6 in the Annual Practice, 1938, under the heading "Particulars" is as follows:-

"In every pleading a certain amount of detail is necessary to ensure clearness, and to prevent 'surprise' at the trial. Each party must state his case with precision; otherwise his opponent will not know for certain what is the real point in dispute and therefore will not be able properly to prepare his evidence for the trial. (See the remarks of Jessel, M. R. in Thorp v. Holdsworth, 3 C. D., p. 639, and of Cotton, L. J. in Spedding v. Fitzpatrick, 38 C. D., pp. 413, 414) '... What particulars are to be stated must depend on the facts of each case ... ' (per Cotton, L. J. in Phillips v. P., 4 Q. B. D., p. 139; and see Bowen, L. J., in Ratcliffe v. Evans (1892) 2 Q. B., pp. 532, 533; Weinberger v. Inglis (1918) 1 Ch., p. 138). They should sufficiently indicate to the opponent the nature of the evidence required by him (Elkington v. London Association, etc., 27 Times Reports, 329)."

Under the heading "Malicious Prosecution": —

"It is submitted that mere denial of acting without reasonable and probable cause does not entitle plaintiff to particulars (Weinberger v. Inglis (1918) 1 Ch. 140), Semble, where reasonable and probable cause is affirmatively pleaded, particulars may be ordered. See Green v. Garbutt (1912) 28 Times Reports, 575."

Under the heading "Traverse by Defendant":-

"A traverse by a defendant even of a negative allegation which plaintiff must establish in order to succeed is not a matter stated of which particulars will be ordered (Weinberger v. Inglis (1918) 1 Ch. 133) but particulars may be ordered where the traverse involves a positive allegation (McLulich v. McLulich $(1920)$ P. 439)";

and under "Generally": $-$

"... The Court will not sanction an attempt to deliver interrogatories under the guise of seeking particulars (Lister $v$ . Thompson, 7 Times Reports, 107) ...

Here I may say that I do not consider this application as an attempt to administer interrogatories.

Under the heading "Disclosing names of witnesses, etc.":—

"If the only object of the summons be to obtain the names of witnesses or some other clue to the evidence of the other party, it will be dismissed (Temperton v. Russell, 9 Times Rep., p. 321; Briton Medical Association v. Britannia Fire Association, 59 L. T. 888). But where the information asked for is clearly necessary to enable the applicant properly to prepare for trial, or in other respects the application is a proper one, the information must be given, even though it discloses some portion of the evidence on which the other party proposes to rely at the trial (Marriott v. Chamberlain, 17 Q. B. D., 154, 161; Zierenberg v. Labouchere (1893) 2 Q. B., pp. 187, 188; Bishop v. B. (1901),<br>P. 325; Wooton v. Sievier (1913) 3 K. B., 499, C. A.; and compare Spiers and Pond, Ltd. v. John Bull. Ltd. (1916) 114 L. T., 641; 32 Times Rep. 317, C. A., a decision as to interrogatories).

I do not consider that it can seriously be argued that the only object of the application is to obtain the names of witnesses and only the real object is to find out the defence or defences which the defendant will set up at the trial and "Immaterial Averment":-

"The Court will never order particulars of any immaterial allegation (Cave v. Torre, 54 L. T., 515; Gibbons v. Norman, 2 Times Rep., $676$ ; or of one as to which the burden of proof lies on the applicant (James v. Radnor County Council, 6 Times Rep., 240; Roberts v. Owen, Ibid. 172)."

Rule 15 of the English Rules similar to our Order VI Rule 5 savs as follows: $--$

"The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counter claim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality either by Statute or common law or Statute of Frauds".

And in the footnote: $-$

"But all these various defences must be clearly and distinctly pleaded and the facts upon which each is grounded should be stated separately ... ""It is often not enough for a party to deny an allegation in his opponent's pleading; he must go further and dispute its validity in law, or set up some affirmative case of his own in answer to it. It will not serve his turn merely to traverse the allegation; he must confess and avoid it...

A defendant, however, is not bound to admit an allegation which he seeks thus to avoid, or which he alleges is bad in law. He may at the same time deny its truth, so long as he makes it quite clear how much he is denying. He may indeed take all three courses at once; the same allegation may be traversed in point of fact, and objected to as bad in law, and at the same time collateral matter may be pleaded to destroy its effect. Any number of defences may now be pleaded together in the same defence, although they are obviously inconsistent ..."

Rule 17 of the English Rules similar to our Order VI Rule 7 says as follows:-

"It shall not be sufficient for a defendant in his defence to deny generally the grounds alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counter claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages." $\sim$ $\mathcal{O}(\mathcal{O}_{\mathcal{O}_{\mathcal{O}_{\mathcal{O}_{\mathcal{O}}}}})$

Now the defendants in this case have denied the plaintiff's allegations generally. Paragraph 2 of the statement of defence reads as follows:-

"Alternatively and without prejudice to the above the defendants deny the allegations contained in the plaint and also the claims put forward on behalf of the plaintiff and put him to the strict proof thereof."

The plaintiff's claim is quite a short one and reads as follows: $-$

"On 11th April, 1939, defendants by their agents wrongfully seized and took motor car No. T4974 and a quantity of petrol in the tank of the said car and wrongfully deprived plaintiff thereof, plaintiff then having a valid and subsisting interest as hirer of the car and being owner of the petrol".

To that claim, as I have pointed out, the defendants have pleaded a general denial.

It seems to me that the answer-to this question is very clear when one looks at Bullen and Leake's Precedents of Pleadings, 9th Edition, at p. 545, where it is stated: $-$

"Again, if the statement of claim contains an allegation that the defendant did a certain act in a certain manner, e.g. that he wrongfully entered certain premises or unlawfully removed certain goods, a literal traverse of this allegation—such as 'The defendant never wrongfully entered the said premises', or 'The defendant denies that he unlawfully removed the said goods' would be ambiguous; for it is not clear whether the defendant intends to deny the fact of entry or removal, or whether he means to assert that he had a right to act as he did. Such a traverse will be construed as denying the bare act only, and not its wrongful character under the particular circumstances. The defect may often be cured by adding the phrase 'or at all' if the defendant desires to raise both points—e.g. 'the defendant never entered the said premises wrongfully, or at all'. But it is better as a rule to raise each defence in a separate paragraph, alleging in the first that 'the defendant never entered the said premises', and in the second setting out the facts which justify the entry, if any."

Upon this reasoning the defence in this case is clearly ambiguous. It would appear from the evidence already heard in the case, that of Mr. Gilbert, that there may be an intention to set up inter alia the defence that the car was taken from the plaintiff with his leave and licence. The defence does not give the plaintiff any precise idea of the case which the defendants will set up.

It is no answer to this application to say as Mr. Barret has said that the plaint is insufficient. If the defendants do not know the case they have to meet, it is open to them to apply for particulars just as the plaintiff is doing in this application.

In my judgment the plaintiff is entitled to know approximately the case for the defendants which he has to meet while at the same time it is of course understood that the onus is upon the plaintiff to prove his own case.

I shall therefore make an order for particulars which the plaintiff seeks to be supplied by the defendants.