Aktieselskabet Dansk Skibsfinansiering v. Wheelock Marden & Co. Ltd. and Others

CACV000088/1992

HEADNOTE

Further and Better Particulars of Statement of Claim. Where fraud alleged particulars of insolvency must be given. Particulars necessary when fraud, misrepresentation and conspiracy pleaded. Distinction between necessary particulars and discretionary particulars. Importance of clear concise and precise pleading. Purposes of particulars.

1992, No. 88
(Civil)

IN THE SUPREME COURT OF HONG KONG

COURT OF APPEAL

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(On Appeal from High Court
Miscellaneous Proceedings No. MP2625 of 1988
and High Court Action No. A1670 of 1989)

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Coram: Hon. Fuad, V-P, Mortimer, J. and Barnett, J.

Dates of hearing: 15, 16, 17, 18, 22, and 23 December 1992

Date of handing down judgment: 15 March 1993

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J U D G M E N T

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Mortimer, J.

1. This is the judgment of the Court.

2. Before turning to the nature of this appeal it is necessary to set the scene.

The Consolidated Action

3. By an order of 28th June 1991 two actions between the same parties were consolidated. Consequentially the Plaintiff's claims against the Defendants for fraudulent trading, fraudulent misrepresentation, negligent misrepresentation, misrepresentation under the Misrepresentation Ordinance and conspiracy are now pleaded in one Statement of Claim.

4. The action concerns two loans made to subsidiaries of Wheelock Maritime International (WMI):

(i) On the 8th April 1983 to "Adleship" for the building of a ship called "Sealock";

(ii) On the 22nd March 1984 to "Mastship" for the building of a ship called "Annalock".

5. These loans were to finance the purchase of those ships and were guaranteed by WMI. Later the loans were renewed in favour of other subsidiaries and any shortfall was guaranteed again by WMI.

6. In August 1985 WMI was put into voluntary liquidation. The loans were not recovered. The action is for in excess of US$70 million.

7. WMI was a subsidiary of the 1st Defendant, and the 1st Defendant was its General Manager and Secretary by written agreement. The other defendants (not concerned in this appeal) save for the 7th Defendant were directors of WMI.

8. The 1st Defendant is alleged to have been a shadow director of WMI under Section 275(5) of the Companies Ordinance then in force.

9. The basic allegation is therefore that the 1st Defendant was guilty of fraudulent trading, misrepresentation and conspiracy and that the loans were negotiated, accepted and continued at a time when the 1st Defendant knew WMI was insolvent.

This Appeal

10. The consolidated Statement of Claim was served on the 29th June 1991 and on the 28th November 1991 the 1st Defendant served a Request for Further and Better Particulars. The Plaintiff was ordered to give these particulars on the 13th January 1992. They were served on the 19th February 1992. On the 31st March 1992 the Plaintiff served certain additional voluntary particulars.

11. The 1st Defendant contends that the Plaintiffs have not complied with the order for further and better particulars. After a five day hearing, Jones J. rejected the Defendants' contention and ruled "having considered the matter carefully, I am quite satisfied that the further and better particulars as supplemented by the voluntary particulars are adequate. The 1st Defendant is fully aware of the case that it has to meet." Against this ruling the 1st Defendant appeals.

The Applicable Principles

12. There can be little dispute about the principles applicable to particulars which must be given in pleadings, and which will be ordered by the Court if the original pleading is lacking in this respect.

13. Pleadings are essential and predominant in every civil action. They define the issues to be decided at trial. They contain the particulars of each party's case. In consequence, they govern the discovery which will be required. They disclose and limit each party's case and enable the evidence for trial to be prepared upon defined issues.

14. The fundamental rule is that a party must plead the material facts upon which he relies to establish his claim but not the evidence nor the subsidiary facts by which he will seek to prove that claim.

"... a party is well served whose pleading states his case with clarity and precision, with full particulars and details, with understanding of the law, an insight into the substantive rights of the parties, and intelligent anticipation of how the case of the party will need to be prepared and presented to the Court." - Pleadings Principles and Practice. Jacob and Goldrein. Page 10.

15. Certain particulars are required by the rules.

16. Allegations of fraud require special consideration. It is the duty of counsel not to plead fraud "unless he has clear and sufficient evidence to support it". Associated Leisure Ltd. v. Associated Newspapers Ltd. [1970] 2 Q.B. 450 per Lord Denning M.R. at 456. Charges of fraud must be pleaded with utmost particularity (Garden Neptune Shipping v. Occidental Worldwide Investments [1989] 1 Lloyd's Rep. 305 at 308) and the necessary particulars of the fraudulent intention relied upon must also be contained in the pleading (R.S.C. Order 18 rule 12(1)(b)). The pleading must set out not only the facts but all matters and circumstances relied upon to establish the fraudulent intention.

17. Misrepresentations also have to be pleaded with particularity. The statement of claim must show the nature and extent of each misrepresentation (Newport Dry Dock and Engineering Co. v. Paynter (1886) 34 Ch. D. 88). This involves giving particulars showing by whom and to whom each misrepresentation was made, whether it was made orally or in writing and if in writing identifying the relevant document. (Seligmann v. Young [1884] W.N. 93). Further, if a party alleges that entries in books or documents are false in support of his allegation of misrepresentation or fraud he must give particulars showing in what respects each statement or entry was false. Newport Dry Dock & Engineering Co. v. Paynter, (above) and Harbord v. Monk (1878) 38 L.T. 411.

18. The same rule (R.S.C. Order 18 rule 12(1)(b)) requires that a party alleging any condition of the mind in pleading must particularize the facts on which he relies. By R.S.C. Order 18 rule 12(4)(a) where a party alleges knowledge of a fact or matter the Court may order particulars of the facts relied upon.

19. Where a party alleges a duty of knowledge by the words "ought to know" or similar, particulars of the facts upon which the party will rely as giving rise to the duty of knowledge will usually be ordered. Fox v. H. Wood (Harrow) Ltd. [1963] 2 Q.B. 601.

20. In summary, particulars of misrepresentation, fraud or any condition of mind except knowledge must be given in the original pleading. If not given this does not usually render the pleading liable to be struck out but the necessary particulars will be ordered so that the pleading complies with the rules. Such orders are not made in the exercise of discretion but in compliance with the rules. Particulars relied upon to establish knowledge are not always given in the original pleading but will usually be ordered in the exercise of the judge's discretion specifically provided for in Order 18 rule 12(4)(a).

21. Similarly, particulars of facts relied upon to establish a duty of knowledge will usually be ordered in the exercise of the judge's general discretion under Order 18 rule 12(3).

22. In exercising his discretion whether or not to order particulars the judge will seek to ensure that particulars ordered fulfil their functions. These vary from case to case and are succinctly stated in the note to Order 18 in the Supreme Court Practice 18/12/2 page 307. For present purposes these can be stated as follows:

(i) To inform the other side of the nature of the case it has to meet and to avoid surprise at trial;

(ii) to enable the other side to properly prepare its evidence for trial;

(iii) to limit the generality of the pleadings; (iv) to limit and define the issues (as to which discovery is required); and,

(v) to tie the hands of the party so that it cannot go into matters not relevant to those issues.

23. The basic rule of pleading is to be found in R.S.C. Order 18 rule 7. Sub-rule (2) deals with documents and conversations. It provides ".. the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material." This rule applies equally to Further and Better Particulars as to the original pleading.

24. As we have indicated in the instant case, several causes of action are joined. There are claims against each defendant for:

(i) Fraudulent trading;

(ii) fraudulent misrepresentation;

(iii) negligent misrepresentation;

(iv) misrepresentation under the Misrepresentation Ordinance; and

(v) conspiracy to make misrepresentations.

25. These matters are complicated by other allegations, such as:

(i) That the 1st Defendant was acting as a "shadow" director of W.M.I.;

(ii) that misrepresentations were made by omission in not informing the plaintiff of W.M.I.'s "true financial position";

(iii) that where the representations were not made by or on behalf of any defendant that defendant allowed them to be made, or authorised them to be made or failed to rectify the representations knowing them to be false; and

(iv) that where misrepresentations were not made by or on behalf of the defendant that defendant counselled and or procured and or aided their making by others.

26. These matters are germane to a consideration of the pleadings and Further and Better Particulars because where claims are based on fraud and misrepresentation which may be framed on different grounds the pleadings "must state the allegations relied on in support of each ground clearly and distinctly and in separate paragraphs" Bullen and Leak & Jacobs 13th edition page 427. Also, see Davy v. Garrett (1878) 7 Ch. D. 473 at 489 per Thesiger, L.J.:

"Now, in any properly constituted system of pleading, if alternative cases are alleged, the facts ought not to be mixed up, leaving the defendant to pick out the facts applicable to each case; but the facts ought to be distinctly stated, so as to show on what facts each alternative of the relief sought is founded."

27. There is a number of other relevant but unconnected matters upon which we have heard submissions but about which there can be little dispute.

Particulars before or after Discovery

28. Even where one party is not a fiduciary it may be allowed to give particulars after discovery (both discovery of documents and interrogatories) in unusual circumstances where the requesting party knows the full facts and the party required to give particulars does not. The court has declined to lay down hard and fast rules. The question whether particulars will be ordered before or only after discovery depends upon the circumstances of each case. The exception is where fraud is alleged. Full particulars must be given in the original pleading and if not so given will be ordered before discovery although in an appropriate case there remains the possibility of them being supplemented after discovery.

Immaterial Averments and Admissions

29. The court will not order particulars to be given of immaterial averments. Such would be a waste of time and costs. Nor will the court order particulars of an averment which is unequivocally admitted in the pleading as the matter is no longer in issue.

Knowledge of the Facts

30. A party may not resist the giving of particulars on the ground that the other party knows the facts - one of the main purposes of particulars is to tie down the party to his case.

31. Further, it is quite improper for a party to answer that further particulars will appear from expert or other evidence. This conceals rather than discloses the case and is contrary to Order 18 rule 7 which forbids the pleading of evidence.

General

32. Further and Better Particulars are part of the pleadings. As such they are equally central to the case. The general rules as to pleading apply. They may not be used to remedy the omission of a material allegation but if the rules are breached as to particulars which must be given in the original pleading Further and Better Particulars may remedy the breach. The general rules that pleadings must be precise, clear and concise apply. Where therefore the original pleading is wide, general or vague the particulars given must be precise, clear and concise and must specify what will be relied upon at trial, so that the other party may know the outstanding issues, the precise case he must meet and the matters upon which he must prepare his evidence. It follows that general answers to specific requests will not suffice. Having specified the material facts upon which he will rely, he will not be allowed to adduce evidence upon others without leave. Answers which use 'in particular' or similar words do not suffice. They do not fulfil the objects of particulars and are open to further requests.

Particulars of Insolvency

33. The dispute between the parties is mainly limited to the way in which these principles should be applied to the particular requests and answers in dispute. There is one matter about which there is a serious issue as to the practice of the court. Mr. Johnson contends that the 1st Defendant is entitled to particulars of the allegations that WMI was insolvent and unable to pay its debts as they became due with no reasonable prospect of survival at the material times. He says that he is entitled to know the facts and matters upon which the plaintiff will rely to establish these propositions and that those facts and matters are material facts not evidence and therefore ought to be pleaded.

34. The plaintiff submits through Mr. Cullen that this is not the practice of the court; that such particulars would not be ordered by the Companies Court; and even if asked for would lead to derision such as might be portrayed in a Bateman cartoon.

35. In usual winding up proceedings in the Companies Court concerning insolvency we have little difficulty in accepting Mr. Cullen's contentions. The present case however involves different considerations. When allegations of fraudulent trading, fraudulent misrepresentation and conspiracy are made the rules and practice require them to be particularised. In our judgment, in the circumstances of this particular case the general allegation of insolvency and inability to pay debts as they fall due without a reasonable prospect of recovery are general allegations which will not suffice. The plaintiff must give particulars of the dates the material facts upon which it will rely without which the Defendant cannot know the case which it has to meet nor can the issues be narrowed for trial.

The Judge's Discretion

36. The learned judge did not distinguish in his judgment between those matters upon which the rules require particulars to be given and those upon which the court may order particulars. It is not completely clear but if he approached the case on the basis that all the particulars requested were within his discretion, in our judgment he was in error. Where however, he dealt with matters which were within his discretion, it is important to note that this court will be reluctant to interfere with that discretion unless justice so requires in accordance with well recognised principles. See Evans v. Bartlam [1937] A.C. 473 at 480, 486.

The Consolidated Statement of Claim

37. Mr. Johnson for the 1st Defendant has attacked the consolidated Statement of Claim as so lacking clarity conciseness and particularity that this court should exercise it inherent powers by striking out the pleading and requiring it to be redrafted with the necessary qualities. These criticisms are demonstrably valid. However, save (as an example) where the words are scandalous, it is not for this court to strike out pleadings for the draftsman's choice of language. The choice of language is for the draftsman and not the court. It is to be noted that an earlier application to strike out the pleadings in one action now consolidated failed in front of the judge and this court.

38. If however the pleading lacks the necessary qualities and the party responsible fails to remedy this by precise, clear and concise particulars the court has an important role. Our system depends upon the skill of advisers in identifying the issues and calling evidence upon them at trial and only upon them. This can be achieved only by means of pleadings which define and limit the issues, tie down the parties to their cases and disclose each to the other the case he has to meet. A failure to do this puts justice at risk and may cause the proceedings at trial to degenerate into a shambles. In appropriate cases it is the duty of the court to take firm action to ensure that particulars remedy any earlier defects.

39. In many obvious respects the language used in the consolidated statement of claim is general, imprecise, unclear, and unconcise. Allegations of fraud and states of mind lack particularity. It suffices to mention some of the expressions used which include:

4.1.1 The Plaintiff was ..... given to understand that ..... Such impression was first given .....

5.13. ..... made the critical condition of WMI doubly dramatic and noticeable to ..... when such gloomy news was reported.

16.2. ..... Until after discovery and interrogatories the Plaintiff contends that such total commitment could not have been reasonably expected at this or any later stages given the state of the market and the parlous state of WMI .....

16.13.(7)

The Plaintiff will also refer to the loan position and its accounts generally. Further particulars will be a matter of expert evidence;

The questions for this Court are:

1. Whether the mandatory rules of pleading have been complied with in the original pleading;

2. If not, whether the particulars given have remedied the defects; and

3. In other respects whether the particulars given are sufficient and proper having regard to their functions already described above. This court will not interfere with the exercise of the judge's discretion unless justice so requires.

40. Before the hearing and in the course of argument Mr. Johnson for the 1st Defendant abandoned his appeal in respect of the answers given to requests: 42(3), 86, 157, 176, 177, 188, 190, 194 and 198 and we make no order in respect of them.

41. For his part Mr. Cullen for the Plaintiff conceded the inadequacy of the answers and does not resist the appeal under paragraphs: 44(4-7), 46, 47(2)-(5), 53, 54, 64(5), 144, 145(2) and (3) and 149(1) and (2) and we order particulars. He did not fully resist some other requests and we deal with these later in this judgment.

42. The remaining answers which are the subject of this appeal have been strongly contested on both sides.

43. Having heard the argument, however, the following matters are clear:

1. That the allegations of fraud and misrepresentation are not sufficiently particularized in the consolidated statement of claim;

2. That this defect has not been remedied in the particulars given by reason of the insufficiency of certain answers considered later in this judgment.

3. Similarly, the facts relied upon where conditions of mind are alleged and the duty of knowledge is alleged are not sufficiently particularized;

4. In many cases general answers are given which neither limit the Plaintiff's case nor inform the Defendants of the precise case they have to meet;

5. There are answers which open the possibility that the Plaintiffs will call evidence or rely upon other matters not specifically mentioned (the use of words such as 'in particular' before the particulars).

44. The Plaintiff's undertaking given at the hearing not to call other evidence does not remedy the inadequacy.

6. General references to all matters pleaded elsewhere in the Statement of Claim or in the Particulars; references to other paragraphs which are not particular in themselves; answers to the effect that the matters are within the Defendants' knowledge; or that particulars will be the subject of expert or other evidence, do not suffice. It is for the pleader to specify his case, not for the other party to work out what his case may be.

45. As we have mentioned earlier, in appropriate cases the pleader may defer particulars until after discovery but not where fraud is alleged. It is improper to allege fraud unless the evidence upon which it is based is known. Of course, if after discovery further matters come to light an application for leave to deliver voluntary particulars can be made. This will be considered on its merits.

The Schedule of Insolvency

46. The particulars given have annexed a 'Schedule of Insolvency' not related to any request. It is simply a long list of documents and events in chronological order. The body of the document extends to 35 pages and nowhere in it is there any reference to any allegation in the Statement of Claim or the Particulars. However, the contents are incorporated wholesale into the answers given under various paragraphs. This incorporation may well be inappropriate and embarrassing as it seems the Plaintiff may not rely upon each and every fact and matter set out for each averment in which this is alleged. It is not for the Defendants to trawl through the pleadings in order to discover the case the Plaintiff relies upon in each ground of its claim.

47. Although we reject Mr. Johnson's criticism that the judge failed to deal with the 123 requests seriatim applying the principles we have set out at some length we are unable to accept that all the particulars given are adequate nor can we accept that from the pleadings the 1st Defendant is fully aware of the case it has to meet. With respect to the learned judge the exercise of his desertion in this respect was plainly wrong and justice requires that this court should interfere.

48. Further for the reasons we have set out earlier we are unable to accept that in this case particulars of fraud and misrepresentation may be given after discovery of documents and interrogatories. The Defendant is not a constructive trustee accountable to the Plaintiff as in Arab Monetary Fund v. Hashim [1990] 1 All E.R. 673 and the usual rule of pleading applies. This concerns requests 56, 57, 58, 113 and 114 dealt with by the judge.

49. The judge concluded that the allegation in Para. 1.3 of the Statement of Claim that the 1st Defendant was a shadow director was sufficiently particularised. We are unable to agree. The allegation is that the 1st Defendant was a person in accordance with whose directions the directors of WMI were accustomed to act. The 1st Defendant must know the case it has to meet. This must include the period of time and the directions relied upon. We have dealt with a number of other general matters upon which we differ from the learned judge. It is unnecessary to repeat them.

50. With these matters in mind we turn to our decisions upon the individual requests and answers:

REQUEST 1.

The allegation that the 1st Defendant was a shadow director amounts to an allegation of fraud. The 1st Defendant is entitled to the particulars requested so that it may know the precise matters upon which the Plaintiff will rely.

It is insufficient to say that the claim appears sufficiently in the Statement of Claim.

Answers which leave open the allegations using the words 'in particular', 'the extent to which' or 'the way in which' are vague and inadequate.

If alleged to be material the effect of the reports and instructions must be pleaded.

We order accordingly.

REQUEST 2.

The answer given appears not to be relevant to the allegation but there is no reason for this Court to make any further order as the Plaintiff is bound by the answer.

REQUESTS 3 and 7.

In the course of the hearing Mr. Johnson did not pursue these requests. In any event we would not have ordered further particulars as the answers suffice.

Had this not been so the Plaintiff could not have relied upon its answer in Request 3 that the matters were within the Defendants' knowledge.

REQUEST 6.

This court makes no further order in respect of these answers.

REQUEST 8.

The 1st Defendant is entitled to the particulars requested of knowledge and the duty of knowledge alleged. These are not provided in the Paragraphs in Statement of Claim referred to in the answers. Nor is reference to the Schedule of Insolvency adequate. The 1st Defendant is entitled to know each fact or matter upon which the Plaintiff will rely and the case it has to meet.

Also, the 1st Defendant is entitled to know upon what material facts the Plaintiff will rely in support of its allegation that WMI was insolvent and unable to pay its debts as they became due.

We order that particulars be given.

REQUEST 9.

The 1st Defendant is entitled to the particulars requested. The answers given save for that in 9(9) are inadequate. The Schedule of Insolvency does not give particulars of knowledge or duty of knowledge nor does it give particulars of insolvency.

The material matters upon which the Plaintiff will rely must be succinctly pleaded.

REQUEST 11.

The 1st Defendant submits that this allegation is at the centre of the Plaintiff's case. It is. It is mandatory that misrepresentations are fully pleaded. However they do not have to be pleaded twice. They may be pleaded by reference to other paragraphs but if so the references must concise and specific.

The present answer incorporates lengthy pleading and is unspecific. The reference to 22 Paragraphs of the Statement of Claim, the lengthy particulars already provided and the Schedule of Insolvency is wholly unacceptable, improper and embarrassing. The Plaintiffs must provide proper particulars or risk the consequences.

REQUEST 12.

Paragraph 2.6 of the Statement of Claim contains very serious allegations. The 1st Defendant is entitled to the particulars requested or (if the Plaintiff cannot give them) the full nature of the Plaintiff's case. The answer does not address the request. Paragraphs 9 and 20 simply repeat the allegation. Paragraphs 4 and 14 do not mention aiding, counselling or procuring. Reference to all the particulars given and the Schedule of Insolvency as in answer to request 11 is wholly unacceptable. The proper particulars must be given.

REQUEST 13.

Again the answer to this request is wholly unacceptable for similar reasons to those given in relation to requests 11 and 12. In this request there is the added factor that the Plaintiff seeks to avoid giving further particulars until after discovery. This is not proper in an allegation of this nature. Proper particulars must now be given or the allegation must go.

REQUEST 19.

We differ from the learned judge in that we consider the request to be justified. The pleading leaves open the question whether the Plaintiff will rely upon any other security and the answer is unacceptable (see earlier in this judgment). If the Plaintiff relies upon any other security it must be specified.

REQUEST 20.

The substance of the request is admitted in the Defence. We make no order.

REQUEST 21.

We agree with the learned judge that no further order should be made.

REQUEST 22.

So far as correspondence is concerned the particulars given are sufficient and the Plaintiff's case is limited to them.

In other respects the particulars do not relate to the allegation. If the Plaintiff wishes to rely upon them it must seek to amend.

REQUEST 23.

We make no further order. The request is for evidence.

REQUEST 24.

The allegation which is the subject of this request concerns the making of the misrepresentations. The 1st Defendant is entitled to clear and specific answers which disclose the exact case it has to meet.

We regard the Plaintiff as limited to the telephone conversations particularised.

The gist of what is relied up on in telephone conversations and correspondence must be pleaded. If this is by reference the passages must be specified.

REQUEST 25.

The Plaintiff contends that this averment is simply a link. If it is not material to the Plaintiff's case we make no order. If it is material, particulars must be given if the Plaintiff is to rely upon it.

REQUESTS 26, 28, 29.

The 1st Defendant is entitled to proper particulars of these allegations even if by specific reference to full particulars in other requests.

REQUEST 30.

The 1st Defendant is entitled to the particulars requested and must clarify that these are the only particulars relied upon.

REQUESTS 31 & 32.

Without accepting the reasons given the particulars are adequate.

REQUESTS 33, 34, 40, 41.

Provided that the other requests and paragraphs mentioned are particularised we make no order.

REQUEST 42.

42(3) was not pursued by the 1st Defendant. The remainder is sufficiently answered.

REQUEST 43.

We accept the 1st Defendant's contention that the answers are too vague, too general and not particularised. It is entitled to proper particulars in accordance with the principles we have set out.

REQUEST 45.

The 1st Defendant is entitled to the particulars requested under 45(2).

REQUEST 49.

Provided that other particulars requested under Paragraph 4.1 are properly given this request is adequately answered.

REQUESTS 50 & 51.

The particulars given are not adequate for the 1st Defendant to know the precise case it has to meet in relation to these averments. Proper particulars must be given including those requested under 50(6) or at least under this request the Plaintiff must state the nature of its case.

REQUEST 52.

The 1st Defendant is entitled to the particulars requested. The answer is inadequate and leaves open the possibility that the Plaintiff will rely upon matters not particularised.

REQUESTS 55 & 56.

These allegations relate to fraud. The appellants are entitled to know precisely how the case is put against each Defendant. The particulars must be given and given before interrogatories and discovery.

REQUEST 57.

The Plaintiff must give the material matters upon which it relies and cannot delay until after discovery and interrogatories.

on the assumption that these are the best that the Plaintiff can give we make no further order.

REQUEST 58.

Under request 58(2) the 1st Defendant is entitled to particulars of intention which is a state of mind in spite of not pursuing any appeal under Request 165. We order that they be given.

REQUESTS 61, 62, 63, 64, 66.

References to the Schedule of Insolvency and the cash flow forecast are not adequate and do not particularise the allegations. If any matters in these documents are to be relied upon they must be specifically and properly pleaded.

REQUEST 67.

Save for the request for 'the source of the obligation' the 1st Defendant is entitled to know precisely what is relied upon. This should be particularised either here or by specific reference to other pleading.

REQUEST 68.

The allegation is that it was apparent to the Defendants. This is a state of mind. The 1st Defendant is entitled to know the facts and matters upon which the Plaintiff will rely. This is not answered by the statement that it is a matter for expert evidence and the particulars are not thereby widened. However, certain matters are pleaded and we make no order.

REQUEST 69.

General references to the Schedule of Insolvency are not adequate. If the Plaintiff wishes to rely upon any fact or matter it must be pleaded.

REQUEST 71.

In our discretion we make no further order. The allegation is sufficiently clear and 71(2) adds nothing to the meaning of the averment.

REQUEST 72.

The 1st Defendant is entitled to the particulars and they must be given before discovery and interrogatories. Reference to expert evidence is not an answer.

REQUEST 73.

The 1st Defendant is entitled to particulars of the facts and matters upon which the Plaintiff will rely to show knowledge. General reference to the Schedule of Insolvency is inadequate. If publications are relied upon they must be specified and properly pleaded. The particulars must be suitably specific.

REQUESTS 74, 75, 76.

These requests must be answered without reference to expert evidence.

REQUEST 78.

It is accepted by Mr. Cullen for the Plaintiff that the particulars requested must be given. We so order.

REQUESTS 80, 81.

Although the language used in the original pleading is vague and unusual, the pleading and particulars given are sufficient and we make no further order.

REQUEST 83.

The 1st Defendant is entitled to particulars. Those given are inadequate. They must be given properly without reference to expert evidence and they must be specific.

REQUEST 85.

The particulars are adequate. We make no further order.

REQUEST 87.

The 1st Defendant contends that 'committed' indicates a state of mind. Whether the Plaintiff is alleging a self-imposed or some external obligation the 1st Defendant is entitled to know the case alleged. The Plaintiff must answer request 87(1).

Request 87(2) does not ask for the facts and matters relied upon and we make no order.

REQUEST 93.

The answers given are not sufficient. The Plaintiff cannot rely upon what may be given in expert evidence and other matters must be specifically particularised as under Request 8. General reference to the Schedule of Insolvency will not suffice.

REQUESTS 95, 98, 102, 103.

In respect of each of those requests the Plaintiff must give particulars in relation to alleged knowledge or duty of knowledge. We so order.

REQUEST 104.

The 1st Defendant is entitled to particulars of the allegation that it 'allowed' representations to be made. Request 104(2) must be answered.

REQUEST 105.

The 1st Defendant is entitled to know the case it has to meet and these particulars must be given. The Plaintiff cannot await discovery before doing so. There are allegations of fraud.

REQUEST 106.

The Plaintiff must give particulars of the matters relied upon in its allegation that the Defendants were reckless so that they may know the case put against them. Request 106(2) must be properly answered and particularised.

REQUEST 107.

This request arises out of the use of the words 'critical moments'. If the Plaintiff wishes to rely upon this averment at trial it must be properly particularised without general references to earlier pleading and the Schedule of Insolvency.

REQUEST 108.

The Plaintiff cannot rely upon a general reference to Paragraph 5 and the Schedule of Insolvency but when other particulars are given the nature of this allegation ought to be clear. We make no order on this appeal.

REQUEST 110.

The answers, which relate to the alleged duty of knowledge, are inadequate. The particulars must be given specifically. We so order.

REQUEST 113.

This request relates to particulars of fraud. Particulars must be given of requests 113(1), (2) and (3) but not of (4) which was not pursued. They must be given before discovery and interrogatories. We so order.

REQUEST 114.

This request is for particulars of conspiracy to defraud. They must be given before discovery and interrogatories. We order proper particulars under requests 114(1) and (2).

REQUEST 128.

The learned judge found this not to be a material averment. Provided that the Plaintiffs do not wish to adduce evidence or rely upon matters other than those specifically pleaded we agree and make no order.

REQUESTS 129, 130, 131.

Paragraph 13.2 of the Statement of Claim is substantially admitted and details are pleaded in the defence. Also the same meetings are dealt with in Paragraph 13.3 onwards. Further particulars under these requests are not necessary and we do not order them.

REQUEST 132.

Paragraph 13.3 makes the allegations which have to be particularised under later paragraphs of the pleading. In the circumstances we make no order.

REQUEST 133.

The Plaintiff contends that this averment is sufficiently particularised later. There is no dispute that particulars must be given. They must be given even if only by specific reference to later pleading.

REQUEST 134.

The 1st Defendant is entitled to particulars of the representations. The answer given in 134(1) does not deal with the request. It must do so. No further particulars are required under 134(2). 134(3) should specify where the particulars are given.

REQUEST 142.

The learned judge held that the 1st Defendant was not entitled to the names of the 'representatives' as they were mere witnesses. The averment, however, indicates that they may have been participants. If the Plaintiff contends they or any of them took part in the meeting the 1st Defendant is entitled to particulars of the identity of those who the Plaintiff says took part in the meeting.

REQUEST 143.

The particulars given are sufficient. We make no order.

REQUEST 146.

These particulars are sufficient. We make no order.

REQUEST 151.

The Defendant did not pursue the giving of proper particulars under 151(3). Those given under 151(6) are mostly general and inadequate. We order request 151(6) to be answered.

REQUEST 153.

The Plaintiff must state the matters upon which it will rely. The 1st Defendant is entitled to know what it has to meet. The answers to both 153(1) and 153(2) must be specific and we so order.

REQUESTS 155, 156.

The general references in the particulars given are not adequate. The Plaintiff must succinctly state the material facts on which it will rely. We so order.

REQUESTS 160, 161, 162, 163, 168, 169, 170.

Particulars of these allegations must be given in the manner we have ordered under requests 54, 55, 56, 67 and 61.

REQUEST 183.

This request has not been answered. We order particulars to be given. We reject the Plaintiff's arguments that the 1st Defendant is not entitled to know the Plaintiff's case on this matter.

REQUEST 189, 191.

The Plaintiff must provide particulars of the allegation and cannot reserve its position which may or may not fall to be decided after discovery.

REQUEST 195.

The Plaintiff must provide particulars of the allegation and cannot reserve its position.

REQUEST 203.

The 1st Defendant is entitled to the particulars requested which must be specific and must indicate what material matters are relied upon which took place during the meetings. We so order.

REQUEST 211.

The Plaintiff cannot rely upon any assumed knowledge of the 1st Defendant. If the Plaintiff relies upon any further material matters it may provide particulars but we make no order.

REQUEST 216.

The Plaintiff must give the particulars requested or at least state the nature of its case, so that the 1st Defendant may know what it has to meet.

REQUEST 221.

Particulars of this averment must be given if necessary by specific reference to earlier pleadings.

REQUESTS 237, 243, 244.

These particulars relate to the fraud alleged and must be given save as to 243(4). We so order. The Plaintiff cannot reserve its position as it seeks to do in Answer 243(1)-(3) and 244(1). Mr. Cullen conceded that particulars of at least one overt act must be provided.

REQUEST 245.

This is a matter for evidence. We make no order.

REQUEST 254.

These particulars will be given in accordance with earlier parts of this order. We make no further order in respect of this request.

REQUEST 259.

The 1st Defendant is entitled to particulars of this vague and general averment. They must be given and reliance cannot be placed upon expert evidence to provide the necessary particulars.

REQUEST 260.

If the Plaintiff seeks to rely upon this averment particulars must be given. We so order.

REQUEST 266.

The particulars given are not proper. The particulars must be given.

REQUEST 272.

The 1st Defendant submits that the request arises because of the use of unsuitably ague language in the pleading. We agree. The Plaintiff must give particulars of any material facts upon which it will seek to rely and may not rely upon expert evidence to fill the gap.

REQUEST 274.

The Plaintiff must give particulars of both knowledge and the duty of knowledge as requested. The particulars must be specific and it cannot reserve its position. We so order.

REQUEST 275.

The bald assertion of bad motive alleged must be particularised if the Plaintiff seeks to rely on it. Speculative particulars are not proper. The Plaintiff must give the particulars, or state the full nature of its case and may not reserve its position.

REQUEST 278.

The thrust of this allegation is that the Defendants allowed WMI's assets to be dissipated. The 1st Defendant is entitled to know precisely what case it has to meet on this point. The Plaintiff must give the particulars requested by reference if necessary.

REQUEST 279, 280.

The Plaintiff must give particulars of these averments as requested. We so order.

REQUEST 281.

This request relates to an averment of law and in the circumstances we make no further order.

51. To the extent indicated above this appeal is allowed and we make orders accordingly.

52. We make an order nisi that the 1st Defendant should have its costs here and below.

Representation:

Mr. David Johnson, Q.C. & Mr. John Scott (Richards Butler) for Appellant/1st Defendant

Mr. Terence Cullen, Q.C. & Mr. Clifford Smith (Holman, Fenwick, William) for Respondent/Plaintiff