Takilla Ltd v Olse Backhurst Dorey [2001] JRC 17 (16 January 2001)

judgment the bailiff: 1. This is a summons issued by the defendants seeking further and better particulars of the plaintiffs' amended Order of Justice and of their Particulars of Special Damage which are set out in schedules one and two respectively of the summons. Some of the requests have been agreed and this judgment will deal only with the remaining requests upon which I have heard argument.

2. Both counsel agreed that the relevant law was conveniently summarized by Hamon , Deputy Bailiff, in Daisy Hill Real Estates Limited v. Rent Control Tribunal 1995 JLR 176 at 180 - "At the commencement of his judgment, the Judicial Greffier had regard to the principles that guide the English courts in relation to further and better particulars set out in 1 The Supreme Court Practice 1995, para . 18/12/1, at 306/307. He did not set them out. He might well have done so. They read (ibid): The function of particulars is accordingly: (1) To inform the other side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved ... (2) to prevent the other side from being taken by surprise at the trial ... (3) to enable the other side to know with what evidence they ought to be prepared and to prepare for trial ... (4) to limit the generality of the pleadings ... (5) to limit and define the issues to be tried, and as to which discovery is required ... (6) to tie the hands of the party so that he cannot without leave go into any matters not included ... but if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings." We must recall that an application for particulars is a method of attacking pleadings that have been filed and "the object of particulars is to enable the

party asking for them to know what case he has to meet at the trial, and so to save unnecessary expense and avoid allowing parties to be taken by surprise." ( Spedding v. Fitzpatrick (9) (38 Ch. D. At 413, per Cotton, L. J.)" As Miss Langlois for the defendants rightly said, this litigation represents the latest chapter in a sorry saga which has lasted for far too long. The first plaintiff bought a property " Eulah " in Mont Cochon on 8th June 1979 with a view to development. It is alleged that the first plaintiff relied upon certain representations as to the nature of a development to be undertaken by Ernest Farley & Son Limited ("Farley") which was the vendor of " Eulah ". The first plaintiff began its first action against Farley in 1984. It began its second action against Farley in 1989, which culminated in a judgment of the Court of Appeal in February 1992. It is said that both those actions failed as a result of the negligence of and/or the breach of contractual duty by its legal advisers. The plaintiffs accordingly began their third action in June 1992 against those legal advisers. The third action continued until November 1998 when it was struck out for want of prosecution. This action was commenced by the plaintiffs against the defendants, their legal advisers in the third action. Counsel for the defendants put it to me that the plaintiffs were claiming inflated damages and that settlement negotiations were being inhibited by uncertainty as to what exactly was being claimed. That may be so, but I must nevertheless apply the principles adopted by this Court.

3. I turn to the first schedule attached to the summons. Requests 1 and 2 (paragraph 12( i ) of the amended Order of Justice The defendants seek quantification in percentage terms of what the plaintiffs say would have been their chances of success in the third action in respect of that part of the claim which relates to the alleged failure by the plaintiffs' then legal advisers to include in the deed of sale of " Eulah " a development restriction in the terms pleaded. The defendants also seek full particulars in support of that quantification. Counsel conceded that this would be a difficult exercise but it was one which she submitted was essential in order to enable the defendants to know the case that they have to meet. Mr. Winchester, for the plaintiffs, contended that his clients were being asked for an expression of an opinion; they were not being asked to define their case or the issues involved. I accept that the defendants may be at a disadvantage in not knowing how the plaintiffs view their notional prospects of success in the third action. But that is one of the inherent risks of litigation. Litigants receive advice and, on the basis of that advice, proceed to litigate or endeavour to settle. The extent to which a litigant elects to disclose, as part of the process of negotiation, the advice which he has received must be a matter for him. The fact that the advice on the chances of success of which particulars are sought is at one or two removes from the current litigation does not in my judgment affect the underlying principle. This request must therefore be refused.

4. Request 7 (paragraph 12(vi) of the amended Order of Justice) This paragraph of the amended Order of Justice reads: "(vi) the Plaintiffs have lost the opportunity of pursuing their claim against the defendants in the Third Action in respect of the inability of the First Plaintiff to sell " Eulah " (in its intended market) or the shares of the First Plaintiff soon after the intended development of " Eulah " because of the ensuing litigation relating to the Development Restriction in the Deed of Sale;" The defendants seek particulars as to how precisely the litigation relating to the development restriction in the deed of sale prevented the sale of " Eulah " or the sale of shares in the first plaintiff. Counsel for the defendants submitted that this was a straightforward request for information as to why they could not sell the property. Counsel for the plaintiffs submitted that this was a matter for expert evidence. I agree with counsel for the plaintiffs and this request is also refused. So far as the remaining requests in the first schedule are concerned, the plaintiffs have responded that they will give such further particulars as they can, and that appears to me to be an appropriate and reasonable response.

5. SCHEDULE 2 Request 1 The dispute here is whether the report of Hampton's which is referred to in paragraph 12(1)(c) of the Particulars of Special Damage should be disclosed at this stage. Counsel for the defendants argues that because the plaintiffs have incorporated the conclusions of the expert into their pleadings, it should be disclosed pursuant to Rule 6/16(5) of the Royal Court Rules 1992. Counsel for the plaintiffs offers disclosure on a reciprocal basis provided that the report of the defendants' expert is also disclosed. Whatever may be decided at a later stage, it seems to me that the plaintiffs, having expressly referred to a part of the report for their own purposes, should be required to produce the report for inspection and copying and I so order.

6. Request 5. Request 5 is in these terms - "Please state to what extent (if any) the alleged diminution in value of " Eulah " is attributable to the fact that part of Block B has been constructed to a height in excess of the relevant sight lines". The plaintiffs claim that this is a matter of evidence. This may be so, but it seems to me that the defendants are entitled to know whether this factor is material so as to "enable [them] to know with what evidence they ought to be prepared and to prepare for trial". I order that this request be answered.

7. Request 6 This request is in these terms - "Please state the significance of the year 1985 in calculating the market value of " Eulah " and confirm that the Plaintiffs will not be seeking to calculate the damages claimed in respect of the alleged diminution in the value of " Eulah " by reference to any other date save that specified in paragraph 12(iv) of the Plaintiffs' particulars of special damage." Counsel for the plaintiffs submitted that 1985 was the relevant date but was not prepared to say why. I agree with counsel for the defendants that the defendants are entitled to know why the plaintiffs take the view that 1985, rather than 1979 (when the property was acquired) or 1984 (the end of the five year development period) is the relevant date. I order that this request be answered.

8. Requests 7, 8, 9, 16 and 22. All these requests seek quantification in percentage terms of the plaintiffs' prospects of success in different respects. For the reasons given in relation to Requests 1 and 2 of the first schedule, I refuse these Requests.

9. Request 15. This request is in the following terms - "Of: In the event that the first Plaintiff had been in a position to require Ernest Farley & Son Limited or its successors in title to demolish the two blocks of flats on the Site ...".

15. Please state whether it is indeed the Plaintiff's case that, had it not been for the negligence of the Defendants in the Third Action, the Plaintiffs would have been able to require Ernest Farley & Son Limited to demolish Blocks A and B in their entirety, as opposed to simply those parts of the said Blocks which were constructed to a height in excess of the relevant sight lines. If so, please provide particulars in support of this claim." If one returns to the amended Order of Justice, paragraph 12(iv) provides - "the First Plaintiff has lost the opportunity of pursuing the defendants in the Third Action in respect of the damage suffered by the First Plaintiff by way of diminution of the value of the property " Eulah " as a result of the First Plaintiff being unable to require that Ernest Farley & Son Limited should demolish the flats on the Site, or alternatively being unable to secure an advantageous settlement to compensate the First Plaintiff for allowing the said flats to remain as constructed on the Site." This seems to me to make it clear that the plaintiffs' case is that the first plaintiff in the third action would have been able to require Farley to demolish the flats. I agree with counsel for the defendants that this is a surprising proposition, bearing in mind that only a small part of the building apparently exceeded the sight line limit, but nonetheless that is what is pleaded. It follows that this Request must be refused, as being essentially a Request for the evidence by which the allegation is to be proved.

10. Request 19. This Request also seeks information as to the significance of the year 1985 in calculating the value of Blocks A and B and I order that this Request be answered.

11. Request 21 This Request is in the following terms - "21. Please give full particulars of the allegation that the Plaintiffs would have been entitled to recover from the Defendants in the Third Action the capital amounts loaned by the Second Plaintiff to the First Plaintiff." This Request stems from paragraph 12(v) of the amended Order of Justice and the Particulars of Special Damage claimed. Paragraph 12(v) provides - "(v) the second Plaintiff has lost the opportunity to pursue his claim in the Third Action against the defendants in those proceedings in respect of the difficulties he has encountered in recovering loans including accrued interest in excess of £863,611.49 made by the Second Plaintiff to the First Plaintiff in order to provide for the purchase and development of " Eulah ", which indebtedness has increased in capital and interest;" The Particulars provide - "In relation to sub-paragraph 12(v) the Second Plaintiff claims £6,178,800 as at 30 June 2000 that sum being comprised of the initial sum of £863,611.49 to which is added interest on the total amount of the said loans at the court rate from time to time from 15 June in each year shown on the schedule hereto annexed in relation to each item and amount of expenditure specified therein which rate happens to be the rate of interest agreed to be paid by the First Plaintiff to the Second Plaintiff on the capital

loaned originally." As Miss Langlois submitted, it is difficult to ascertain the basis for this head of damage. It seems that " Eulah " was purchased by the first plaintiff with the aid of loans from the second plaintiff. The first plaintiff continues to own " Eulah " and, I assume, to owe money to the second plaintiff in respect of those loans. I also assume that the first plaintiff continues to be owned beneficially by the second plaintiff. I agree with counsel for the defendants that the nature of this part of the case is not clear. I accordingly order that this request be answered.

12. Request 26 Counsel for the defendants also seeks to know whether it is the plaintiffs' case that the defendants are liable for the total amounts of interest on the sums loaned by the second plaintiff to the first plaintiff from the date(s) of the loans to the present day, and, if so, what is the basis of such a claim. In my judgment, this is a proper request for information as to the nature of the case which the defendants have to meet, and I order that this request be answered.

13. Requests 27 and 28 These are requests for particulars of the basis of a valuation of £2,500,000 relied upon in assessing a head of damage. Counsel for the plaintiffs submits that this is essentially a request for evidence. I agree and these requests are accordingly refused.

14. Request 29 This request for clarification of the plaintiffs' case appears to me to be unnecessary; the claim, whether well founded or not, is in my view clear and this request is refused.

15. Finally, I express the hope that steps will now be taken to bring this action on for trial within the shortest possible delay. Authorities Daisy Hill Real Estates Limited v. Rent Control Tribunal (1995) JLR 176 . Royal Court Rules 1992: Rule 6/16(5). Page Last Updated: 19 Aug 2015 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII