David Cooney and Gillian Davitt v KBC Bank Ireland Plc

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 30 June 2021
• Neutral Citation: [2021] IEHC 436
• Court: High Court
• Docket Number: [2018 No. 5653 P]

Between

David Cooney and Gillian Davitt

Plaintiffs

and

KBC Bank Ireland Plc

Defendant

[2021] IEHC 436

[2018 No. 5653 P]

THE HIGH COURT

Further and better particulars – Breach of contract – Compensation – Plaintiffs seeking further and better particulars – Whether the compensation offered was sufficient

Facts: The plaintiffs, Mr Cooney and Ms Davitt, applied to the High Court for further and better particulars in the context of a case in which a breach of contract had been admitted by the defendant, KBC Bank Ireland Plc (KBC), apology made, and remedial steps taken that included an offer of compensation. KBC believed that the compensation offered was sufficient and the plaintiffs disagreed.

Held by Barrett J that: (1) where particulars are sought for the purpose 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, or for some other special reason (Cooney v Browne (No. 2) [1985] I.R. 185); (2) where the particulars are sought for the purpose of the hearing, they should not be ordered unless they are necessary or desirable for the purpose of a fair hearing (Cooney) (3) 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 (Cooney); (4) where a pleading is so general/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 particular items of evidence) which he will have to deal with at trial (Cooney); (5) the courts will look askance on over-expansive requests for particulars (Armstrong v Moffatt [2013] IEHC 148); (6) any particulars sought/ordered must relate a matter stated in the pleadings (Armstrong); (7) the court will not entertain an application for further and better particulars which are oppressive or unreasonable (AIB Plc v AIG Europe Ltd [2018] IEHC 677); (8) the court will not direct a party to provide particulars of a denial in a pleading and the same principle must apply to a non-admission (AIB v AIG); (9) particulars of a denial will be ordered where the denial amounts in substance to a positive allegation (AIB v AIG); (10) a party is not entitled to hide behind a traverse in those cases governed by O. 19, r. 15 RSC (AIB v AIG); (11) if a matter has not been appropriately pleaded in accordance with O. 19, r. 15 RSC, the court may refuse to allow the party responsible to subsequently make a positive case (within the ambit of application of these rules) at the trial (AIB v AIG); (12) it is no answer to a request for particulars for a party to contend that the relevant facts are already known by the party making the request (AIB v AIG); (13) the requirement in the Commercial Court that, prior to trial, the parties must exchange witness statements, can be relevant in the context of an application for further particulars as the question of a party being taken by surprise is of reduced significance in proceedings involving witness statements (AIB v AIG); (14) there may be circumstances where it is appropriate to direct that particulars should only be furnished after discovery (AIB v AIG); (15) the purpose of pleadings and of particulars is to ensure that the issues in the case are sufficiently identified in advance of the trial (AIB v AIG); (16) a party to proceedings is not when seeking particulars entitled to be furnished with copies of documents and records cited or referred to in the pleadings (Aranwell Ltd v Pura Food Products [2004] Lexis Citation 3810); (17) a party is at risk of losing the costs of motion for further and better particulars if that party does not write a letter to its opponent prior to the motion issuing indicating in what respects the reply is inadequate and giving an opportunity for a further and better reply (Tromso Sparebank v Beirne and Ors [1988] Lexis Citation 3235).

Barrett J held that the application of those principles yielded the consequence that none of the further and better particulars sought would be ordered.

Application refused.

Summary

This is an unsuccessful application for an order for further and better particulars. This summary is part of the court's judgment.

JUDGMENT of Mr Justice Max Barrett delivered on 30 ^th June 2021 .

1 . This is an application for further and better particulars brought in the context of a case in which a breach of contract has been admitted by KBC, apology made, and remedial steps taken that include an offer of compensation. KBC believes that the compensation offered is sufficient, the plaintiffs disagree, and hence the proper amount of compensation is going to be a key issue at the trial. This application falls to be decided in accordance with some well-worn principles concerning particulars and notices for particulars. Unfortunately for the plaintiffs, when one applies those principles to the application, their application must fail in every respect. To understand why, it is useful to consider those principles first.

2 . The first authority to consider is Cooney v. Browne (No. 2) [1985] I.R. 185. That case concerned an application by the plaintiff for an order directing the first and second named defendants to furnish replies to the particulars sought by him by a notice dated 26th July 1984 in the context of defamation proceedings. In his judgment, Henchy J. observed, inter alia, as follows, at p.191:

“ The determining considerations seem to be these. Where particulars are sought for the purpose 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, or for some other special reason: see O19, rule 6, (3). Where the particulars are sought for the purpose of the hearing, they should not be ordered unless they are necessary or desirable for the purpose of a fair hearing. ‘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 (1888) 38 Ch D 410, at p 413. Thus, 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 . Four principles it seems to the court are readily identifiable in the foregoing:

• (1) Where particulars are sought for the purpose 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, or for some other special reason. ( Cooney)

• (2) Where the particulars are sought for the purpose of the hearing, they should not be ordered unless they are necessary or desirable for the purpose of a fair hearing. ( Cooney).

• (3) 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. ( Cooney; Spedding)

• (4) Where a pleading is so general/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 particular items of evidence) which he will have to deal with at trial ( Cooney).

4 . Another leading judgment in this area is that of Armstrong v. Moffatt [2013] IEHC 148. At issue in that case was the extent to which the plaintiff there was required to respond to a notice for particulars served by the defendants. In the application the court was also called upon to re-examine the extent to which the traditional understanding regarding the extent to provide particulars in personal injury cases had been affected by the enactment of the Civil Liability and Courts Act 2004. In the course of his judgment, Hogan J., following consideration of a number of leading cases, observes, inter alia, as follows:

“18. [O] ne cannot help thinking that the reported cases did not quite reflect the reality of practice on the ground. Not least in personal injury cases, the particulars sought in many cases had reached something of an art form. Quite often no possible detail or dimension of a statement of claim (or, since the 2004 Act, the indorsement of claim required for a personal injury summons) remained unexplored at the hands of pleaders who at times seemed to revel in this glorious new art form. It was by no means uncommon to find notices for particulars stretching to twenty or more paragraphs, often replete with individual sub-paragraphs. Most litigants (or, perhaps more accurately, their solicitors and junior counsel) simply yielded dutifully to these requests, as it was often more convenient and expedient to do so rather than to take a stand on principle. In retrospect, the courts should, perhaps, have been more prepared to strike out many of the pre-rehearsed requests as oppressive and, in some cases, as constituting quite simply an abuse of process”.

5 . Of note also are Hogan J.'s observations, at paras. 23–27 concerning what he perceived to be an interrogatory dressed up as a pleading:

“ 23 ….[A] request of this nature reflects a widespread and ingrained practice whereby what amounts to an interrogatory is dressed up as a request for particulars. Here it may be recalled that Ord. 19, r. 7(1) 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...