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Being particular about particulars
PRACTICE AREA GROUP: Commercial Litigation and Dispute Resolution
Although parties set out their formal legal position in pleadings, it is open to the opponent to seek particulars of aspects of the positions being adopted in those pleadings in order to understand better the case being made against them. In Mahon v Celbridge Spinning Co Ltd(1) it was stated that the object of pleadings and particulars was to ensure that a party knew in advance, in broad outline, the case it had to meet at trial. In Armstrong v Moffatt(2) the High Court recently considered the common practice of seeking broad-ranging and extensive particulars of pleadings, and concluded that the strict legal requirements are somewhat narrower.
In this case, the court considered particulars raised in respect of a personal injury claim brought by the plaintiff. Under the Civil Liability and Courts Act 2004 the personal injury summons (the originating summons) must set out detailed information regarding the claim being made by the plaintiff. Section 11 allows the defendant to a personal injury action to request specific classes of further information.
Two of the defendants issued a notice for particulars which sought a range of different information arising out of the relevant incident, which particulars were said to derive from the plaintiff's personal injury summons. The plaintiff's solicitors refused to provide the particulars sought, save insofar as required by Section 11. In response, the defendants' solicitors contended that Section 11 did not confine them in seeking other particulars and the particulars sought were reasonable. No agreement could be reached and the court was asked to consider whether the particulars sought should be provided.
At the outset, the court noted that the general principles regarding the delivery of particulars are unaltered by the act. Order 19, Rule 7(1) of the Rules of the Superior Courts provides:
"A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceedings requiring particulars, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just."
The court recited that the object of particulars was identified in Cooney v Browne in the following terms:
"Where particulars are sought for the purposes of delivering a pleading, they should not be ordered unless they can be said to be necessary or desirable to enable the party seeking them to plead, of for some other special reason… where the pleading in question is so general or so imprecise that the other side cannot know what case he will have to meet at the trial, he should be entitled to such particulars as will inform him of the range of evidence (as distinct from any particular items of evidence) which he will have to deal with at the trial."(3)
On this basis, the court concluded that particulars will be ordered in the interests of fair procedures and to ensure that a litigant will not be surprised by the nature of the case which it must meet.
Notwithstanding the statement of principle, the court observed that one cannot help thinking that the reported cases did not quite reflect the reality of practice on the ground and that the particulars sought in many cases had reached "something of an art form". The court went on to state that quite often no possible detail or dimension of a statement of claim remained unexplored by pleaders who revel in "this glorious new art form". Instead of taking a stand on principle, Judge Hogan felt that parties often simply yield to such requests, as it is more convenient and expedient to do so. The court further suggested that the courts should have prepared to strike out many requests as oppressive and, in certain cases, as an abuse of process. The modern practice, sadi Hogan, has meant that "an important and useful forensic tool had become partially debased by the habitual and indiscriminate use of the notice for particulars procedure".
The court noted that for personal injury litigation, Parliament had sought to curb such excesses through the act since, if a personal injury case is properly pleaded in the manner required by Section 10, the necessity for further extensive particulars should be the exception and not the rule. The court observed that significant details regarding the alleged negligence and breach of duty had been furnished and it disallowed requests for particulars which fell outside the scope of Section 11.
Although the court observed that in the context of personal injury litigation the scope for particulars has been curtailed by the act, it stated that independent of this, requests for particulars have been allowed to proliferate in many areas of legal practice far beyond the boundaries stipulated by Order 19, Rule 7(1). Indeed, the court suggested that the requests for particulars advanced in this case were representative of contemporary practice and thinking with regard to particulars generally. Notwithstanding that they may be either irrelevant or impermissible, their consistent advancement demonstrated that "many pleaders have simply gone astray in their enthusiasm to interrogate every possible detail of their opponent's claim". Consequently, the court felt that the true purpose and object of particulars as delineated in particular by Order 19, Rule 7(1) has been lost. The court concluded that:
"The misplaced enthusiasm for this practice calls to mind Lee's words in respect of a subordinate general who rashly and indiscriminately confronted his opponents at every possible opportunity: 'too much of the lion and not enough of the fox'. Perhaps, accordingly, what is called for is a more discriminating approach on the part of the general legal community to the question of particulars which avoids the prolix, the unnecessary and the irrelevant and which opts instead for the well placed question which genuinely clarifies a matter which actually is contained in the pleadings. In this – as in much else in litigation – the fox is more likely to prevail than the lion."
Although the case arose in the context of personal injury litigation, it is necessarily of more general application to litigants in Ireland. A party looking to seek particulars should appreciate that the decision represents a clear warning to ensure that particulars to be sought are appropriately tailored to obtaining an understanding, in broad outline, of the case it will have to meet. Similarly, a party which is the recipient of a request for particulars should consider whether those sought are appropriate and necessary. It would certainly seem to be the case that in light of this decision the courts are more likely to be vigilant to ensure the proper object and purpose of seeking particulars is preserved.
(1)  IR 1.
(2)  IEHC 148.
(3)  IR 185, 191.
This article was first published by International Law Office on 23 July 2013