IN THE HIGH COURT OF JUSTICE Sub-Registry, San Fernando. VSN INVESTMENTS LIMITED Claimant AND. SEASONS LIMITED (In Receivership)

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Sub-Registry, San Fernando CV. NO BETWEEN VSN INVESTMENTS LIMITED Claimant AND SEASONS LIMITED (In Receivership) Defendant BEFORE THE HONOURABLE MADAM JUSTICE JONES Appearances: Mr. R. Dass instructed by Mr. A. Maraj for the Claimant Mrs. L. Maharaj S.C. instructed by Ms. K. P. Khan for the Defendant. RULING 1. For various reasons, the details of which are not essential to the determination of this application, this action has not followed the path usually followed by actions under the Civil Proceedings Rules 1998 as amended ( the CPR ) particularly with respect to timeliness. The claim form and statement of case in this action were filed on 23 rd May The defence was filed on the 20 th September Although directions have been given for the filing of witness statements no witness statements have as yet been filed but there is outstanding an application for an extension of time for the filing of same before me. 2. By the order of Harris J. made on the 1 st October, 2013 discovery was completed on 15 th November Further, and in accordance with the continuing Page 1 of 11

2 duty of disclosure, an order made by me on the 19 th December 2014 for the filing by the Claimant of a supplemental list of documents. This supplemental list was filed on 15 th January By a request made by letter dated 9 th October 2006 the Defendant sought further and better particulars of paragraphs 4 and 7 of the statement of case. The relevant paragraphs of the statement of case read: 4. Pursuant to the Deed of Mortgage, the Bank made advances in the name of the Defendant which together with interest on 24 th May 2002 amounted to $2,096, Following the said demand, on the 19 th July 2002 the Claimant in furtherance of its obligation under the Deed of Mortgage paid to the bank the sum of $2,545, Loan Account Particulars Amount Accrued Interest Outstanding balance on prior mortgaged by Plaintiff $340, Nil Land Cruiser PBG 56 $181, $6, Hiace Panel Van TBK 2274 $81, $2, Overdraft in name of Defendant $1,714, $62, Credit Card in name of Defendant $115, $5, Legal Fees of Bank $36, TOTAL $2,545, The Claimant voluntarily provided some but not all of the particulars requested. 4. The outstanding requests are: 1. with respect to paragraph 4: give particulars of the advances made by the Bank in each instance the date and amount advanced as well as how and to whom each advance was made; Page 2 of 11

3 2. with respect to paragraph 7: (i) as to the loan accounts , , , and provide details of all advances made giving the date/s and amount/s of each advance. State how the monies were advanced and to whom. (ii) as to the legal fees to the Bank: (a) give particulars of the work done and the costs incurred which accumulated in the sum of $36,091.25; (b) state whether any of the payment made to the Bank were made from funds belonging to Seasons Limited; (c) state the accounts and/or sources from which the monies were drawn to make the payments identifying specifically all funds from assets and/or accounts of or held on behalf of Seasons Limited. 5. On 26 th September 2008 the Defendant filed this application for further information pursuant to Part 35 of the Civil Proceedings Rules 1998 as amended ( the CPR ). The grounds of the application include a statement that the information sought is relevant to matters in issue between the parties and is necessary in order to dispose fairly of these proceedings and/or to save costs. 6. The Claimant opposes the application on the basis that: (i) the application is premature as further information pursuant to Part 35 of the CPR is only available after evidence has been filed and (ii) in any event the particulars sought are not necessary to fairly dispose of the claim. Page 3 of 11

4 7. Despite accepting that Part 35 requires that the witness statements be filed prior to the making of an order under the rule the Defendant does not seek to defer the application until that time but rather submits that the Court ought to treat the application as an application for further and better particulars or alternatively as an application for specific disclosure. 8. Unlike the 1975 rules the CPR makes no provision for further and better particulars of a statement of case. Rather the Rules provide for the provision of further information pursuant to Part 35. Part 35 specifically provides that an application for an order compelling a reply to a request for information may not be made before the time for serving the witness statements has expired nor less than 42 days before the date fixed for the trial Despite the absence of a specific rule for the provision of further and better particulars it has now been established in the case of Real Time v Renraw Investments 2 that the conjoint effect of the overriding objective and the Court s case management powers as established by Part 26 of the CPR vest in the Court the power, in an appropriate case, to order further and better particulars of a statement of case In the Real Time case the application before the Court was an application to strike out the claim as lacking proper particulars. At the time of making the application no defence had been filed by the Defendant. Both the Court of Appeal and the Privy Council determined that the justice of the particular case militated against such a drastic action as striking out and in the circumstances Rule 26.1(1)(w) which 1 Part Civil Appeal No. 238 of 201;[2014] UKPC 6; 3 the CPR defines a statement of case as including a defence, counterclaim etc. Page 4 of 11

5 allows a court to give any other direction or make any other order for the purpose of managing the case and furthering the overriding objective permitted the Court to make an order for the supply of further details. The overriding objective enjoins the Court in the exercise of any discretion under the Rules to deal with cases justly Given the present state of the law and the submissions by both sides it seems to me that the appropriate method of dealing with the application is to first consider whether the information sought is necessary in order: (a) to fairly dispose of the claim or save costs as is required to obtain an order for the provision of further information under Part 35; or (b) for the purpose of managing the case and furthering the overriding objective as required in the case of further and better particulars as established by the Real Time case. If in my opinion the information is necessary to meet the requirements of either (a) or (b) then the requirements of the rules with respect to the timing of such an application and the factors influencing the exercise of my discretion become relevant. 12. The first stage therefore is to examine the issues for determination by the Court. In the Real Time case no defence had been filed and the application before the Court was essentially that given the cause of action the Claimant would be unable to succeed at trial because the statement of case lacked the necessary particulars. The application was an application to strike out the claim pursuant to Part 26.2 (1)(c). This is not the position here. The application before me is clearly not an application to strike out the claim. Indeed an application for further and better particulars is appropriate when a pleading is defective or inadequate but not irremediably so. 5 As 4 Part 1.1 and per Jamadar J.A Civil Appeal No. 238 of 201 at paragraph 31 Page 5 of 11

6 well in the instant case, unlike in Real Time, a defence was filed. The issues therefore for the Court s determination will be established by what has been pleaded by both sides and, in particular, the admissions and denials contained therein. 13. The Defendant submits that, except with respect to one allegation which allegation is irrelevant to the claim, in accordance with Part 10 of the CPR the defence does not amount to a denial of the allegations pleaded in the statement of case in support of its claim for the repayment of the sum of $1,934, advanced on behalf of the Defendant. In the circumstances, the Claimant submits, the particulars sought are unnecessary. 14. In essence the defence filed denies the allegations raised in the statement of case and posits as a defence that the money, if paid, was paid in settlement of the Claimant s liabilities to the Defendant or to the Bank. In particular with respect to paragraphs 4 and 7 of the statement of case the Defendant pleads: 3. Until discovery and inspection is complete the Defendant does not admit paragraphs 4 to 6 inclusive of the Statement of Case and avers that from February 2002 Mr. Dev. Debideen shareholder and director of both the Claimant and Defendant company assumed total control of the Defendant Company until 2 nd May 2002 when the Defendant was put into receivership. 4. The Defendant does not admit paragraph 7 of the Statement of Case and contends that if the Claimant in fact paid the sum of $1,934, or any part of it (which is not admitted) it did so by Page 6 of 11

7 way of a settlement of its liabilities to the Defendant for assets of the Defendant which were transferred to DaiTech Limited, a limited liability company with its registered office at 246 Eastern Main Road, Barataria and of which Mr. Dev. Debden and his wife Mrs. Debby Debden are the two shareholders and directors. 6. In further answer to paragraph 7 the Defendant avers that the sum of $115, claimed under Loan Account as Item 5 was actually incurred by Dev Debideen for his personal expenses. 15. With respect to paragraphs 3 and 4 therefore by the use of the words does not admit the Defendant seeks to deny the contents of the corresponding paragraphs of the statement of case. In neither paragraph however does the Defendant state the reason for the denial. Neither does the Defendant in either case put forward a different version of events. 16. Paragraph 6 does not deny the payment of the sum of $2,545, by the Claimant but merely avers that part of the money paid was used for settling the personal expenses of a third person albeit someone closely connected with the Claimant. In truth and in fact paragraph 6 really addresses another paragraph of the statement of case, paragraph Part 10 of the CPR requires that where an allegation is not admitted in a defence a defendant condescend to details. It is mandatory in its effect. It requires a defendant to admit or deny each allegation made in the statement of case. Where a Page 7 of 11

8 defendant denies an allegation the defence must state the reason for doing so and, if proffering a different version of events, must state that version. The only exception to this mandatory requirement occurs where a defendant states it is unable to admit or deny an allegation because it does not know and therefore requires the claimant to prove. 18. Although the averment in paragraph 3 of the defence suggests that the Defendant is alleging a lack of knowledge in the running of the company the Defendant does not employ the device of neither admitting or denying the allegation but rather specifically denies the allegation at least until discovery and inspection. Unfortunately for the Defendant in the particular circumstances of this case this qualification does not assist. Discovery, which includes disclosure and inspection, was completed since 15 th November There has been no attempt by the Defendant to amend the defence. A supplemental list of documents, in accordance with the continued duty to disclose, was filed by the Claimant since 15 th January Again the Defendant has not sought to amend its defence. 19. The Defendant s position therefore remains an incomplete and ineffectual denial of paragraphs 4 and 7 under the CPR. Further there is nothing in any of the other paragraphs of the defence that provides a different version of events or amounts to a denial of the allegations contained in paragraphs 4 and 7 of the statement of case. In accordance with the decision in MI5 Investigations Limited v Centurion Protective Agency Limited 6 I am entitled therefore to treat the allegations in the statement of 6 Civil Appeal No. 244 of 2008 Page 8 of 11

9 case as undisputed or the defence as containing no reasonable defence to that allegation. 20. In these circumstances I agree with the Claimant s submission that, in the context of the applicable rules, there has been no denial of the allegations contained in the statement of case and in the circumstances no particulars are necessary. Put another way, given the defence filed, the particulars sought are not necessary for the purpose of managing the case and furthering the overriding objective. That said I am not prepared to go as far as to state, as submitted by the Claimant, that under these rules a defendant must elect whether to apply for particulars or file a defence. 21. While in the instant case by filing a defence in those terms this defendant, in my opinion, has forfeited its ability to apply for further and better particulars of the specific paragraphs as a general rule, it would seem to me that, the ability of a court to have resort to 26.1(1)(w) where the justice of the case requires can be exercised at any time during the case management process. This to my mind accords with the reasoning of both the Court of Appeal and the Privy Council in the Real Time case. 22. Under normal circumstances the exercise by a court of its case management powers is triggered by the service of a defence. It therefore cannot be a hard and fast rule that a defendant must elect either to serve a defence or apply for particulars. Each case must depend on its own facts. On the facts before me I am satisfied that the particulars sought do not assist in the management of the case and furthering the overriding objective and are unnecessary. Insofar as the application falls to be treated as an application for further and better particulars it must fail. Page 9 of 11

10 23. Insofar as the application before me seeks an order for further information given the pleadings filed it is difficult for me at this stage of the proceedings to see how the provision of the particulars sought would be necessary to fairly dispose of the claim or save costs. The rule permits a party to obtain from another party information about any matter that is in dispute in the proceedings and requires that any application for an order to compel a reply to a request for information not be made before the time for serving the witness statements has expired nor less than 42 days before the date fixed for the trial. Not only is the application premature but, given the state of the pleadings, it cannot be said that the information requested is about any matter in dispute in the proceedings. Insofar as the application is one for the provision of further information pursuant to Part 35 of the CPR therefore it must also fail. 24. The Defendant submits that should I not be minded to grant its request for information then I should treat the application as one for specific disclosure. To my mind such an application cannot succeed for two reasons. The first and more fundamental is that an application for disclosure only applies to documents directly relevant to the matters in question in the proceedings. 7 In other words the application must be with respect to matters in issue in the proceedings. As we have seen the allegations raised at paragraphs 4 and 7 of the statement of case are not in issue in these proceedings. There is no dispute that the sum of $2,096, was advanced in the name of the Defendant by the Bank pursuant to the deed of mortgage nor is there any dispute that the Claimant paid the said sum to the Bank in satisfaction of the accounts specified thereunder. In my opinion therefore these are not matters in question in the proceedings. 7 Parts 28.1 (4); 28.4 and 28.5(5) Page 10 of 11

11 25. The second reason for such an application failing is that the application contains absolutely no description of the documents for specific disclosure, whether by describing the class to which the documents sought belong or in any other manner. This is understandable since the application is directed to information rather than documents. In this regard the Defendant s request can be answered quite effectively by the question, assuming that I were to treat the application as one for specific disclosure, what are the documents in the control of the Claimant that are to be disclosed to the Defendant. There is nothing in either the notice of application or the evidence in support which answers that question. For these reasons even if I were to treat the application as one for specific disclosure it too must fail. 26. In the circumstances therefore the Defendant s application is dismissed. Dated this 29 th day of April, Judith Jones Judge Page 11 of 11