Diversey (HK) Ltd v. American Dry Cleaning & Laundry Co Ltd

HCA002790/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Commissioner Liu, Q.C. in Chambers.

Date of Judgment: 16th June, 1978

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JUDGMENT

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1. The defendant is a laundry to which the plaintiff supplied detergents and other chemicals for washing, bleaching and softening linen and other fabrics. By this action, the plaintiff claims the price of goods sold and delivered as well as charges for services rendered. The defendant company duly caused to be filed a Defence and Counterclaim on which the plaintiff sought further and better particulars. By a Consent Order dated the 22nd February, 1978, the Registrar of the Supreme Court, Mr. Mayo, required the defendant to furnish, within 14 days thereafter, further and better particulars as specified in the plaintiff's written request therefor. On the 7th March, 1978, in purported compliance with the said Consent Order further and better particulars were given by the defendant to the plaintiff. The plaintiff was dissatisfied with the particulars so supplied and on its Summons for Directions obtained an Order from Mr. Registrar O'Dea on the 10th May 1978 in, inter alia, the following terms:-

"The Defence and Counterclaim be struck out unless the Further and Better Particulars ordered by Mr. Registrar Mayo dated the 22nd day of February, 1978 are filed within 7 days from the date of this Order. Liberty to apply."

On the 17th May, 1978, the defendant delivered "Amended Further and Better Particulars of the Defence and Counterclaim" with which the plaintiff was equally dissatisfied. Under "Liberty to apply", the plaintiff invited Mr. Registrar O'Dea to strike out the Defence and Counterclaim and/or to grant leave to sign judgment. Mr. Registrar O'Dea took the view that the Amended Further and Better Particulars filed by the defendant were neither inadequate nor illusory, and he declined to act as invited. From this refusal of the learned Registrar the plaintiff now appeals.

2. The mainstay of the plaintiff's complaint is that the Amended Further and Better Particulars delivered on the 17th May 1978 are insufficient and illusory - illusory in the sense that they are bare repetition of the allegations in the pleading and the originally filed further particulars which admittedly required to be supplemented. An Order for further particulars was made by Mr. Registrar Mayo and purportedly complied with. The subsequent Order of Mr. Registrar O'Dea cannot be taken as a duplication or an enlargement of time for compliance. In my view, the Order appealed from dealt exclusively with the question of sufficiency. It was obtained to ensure supply of the requisite information. The plaintiff charged that the Amended Further and Better Particulars are insufficient, and it was urged that the learned Registrar's Order should be carried into effect. Irrespective of any order, the plaintiff also claimed, the particulars supplied are so illusory and inadequate that the defendant ought not be allowed to defend.

3. Furthermore, Mr. Pirie, counsel for the plaintiff, took exception to the defendant's lack of reference to the cause for the alleged failure of the chemicals supplied and advice rendered to achieve the desired result, but the very core of the defence is to be found in the defendant's reliance on the plaintiff's expertise advice and its assertion that the goods supplied were of unmerchantable quality. On these joined issues, the technical cause for failure can be only a matter of surmise on the part of the defendant.

4. The Court was led by Mr. Pirie through the Amended Further and Better Particulars with microscopic care. It is indisputable that perfection in draftsmanship has yet to be attempted, but the Amended Further and Better Particulars are a great improvement on the original version. Save for some particulars requested under paragraph 7 of the Defence and Counterclaim for identifying "each lot of laundry alleged to have been rewashed" and specifying "in respect of each, the customers concerned", the Amended Further and Better Particulars do, in my view, sufficiently furnish the plaintiff with the information sought and leave the plaintiff in no doubt as to what case it has to meet.

5. Mr. Kwok, counsel for the defendant, brought to my notice, as he did to the learned Registrar, the defendant's inability to identify each lot of the laundry said to have been rewashed or specify the particular customer so involved except for the details given in paragraph (i) at the top of page 6 of the Amended Further and Better Particulars filed. Mr. Kwok submitted that with these particulars, the plaintiff would not be taken by suprise at the trial.

6. Counsel for the defendant directed my attention to the judgment of Greene, L.J. in Abalian v. Innous⁽¹⁾. At page 838, the learned Lord Justice observed:

"Speaking for myself, I think that any order dealing with the dismissal of an action unless something is done should be absolutely and perfectly precise in its terms. The dismissal of an action at an interlocutory stage is a very serious matter and may well work serious injustice. If an order is to be made in the form that, unless one party or another party does something, the action will be dismissed, it is imperative that the thing to be done in order to avoid dismissal of the action should be specified in the clearest and most precise language, so that it may be possible for the party on whom the necessity of doing the act lies - which would normally be the plaintiff - to be in no doubt whatsoever as to the steps which he is to take if he is to avoid his action being dismissed."

7. In this case, there existed one and not two orders for further particulars: Mr. Registrar Mayo's was the only order for further particulars, and it was sought by Mr. O'Dea's order to impose a sanction for default in supplying sufficient information. The latter order was not concerned with the time of compliance as purported further particulars had been filed; this order appealed from dealt exclusively with the mode of compliance. The language of Mr. O'Dea's Order, viewed in its surrounding circumstances, admits of no ambiguity.

8. Both counsel relied heavily on the case of Reiss v. Woolf⁽²⁾ in which a Master ordered the defendant to deliver further and better particulars of his Defence within a specified time, and it was further ordered "that in default thereof paragraphs 2 and 3 of the defence should be struck out". The defendant duly supplied further particulars within the stipulated period but claimed that he was unable to specify some dates or details until after delivery, or possibly not at all. It was held that the Master's order was "a time order" and that there was no default as "default" meant default in delivering particulars within the time stipulated and not default in the sufficiency of the particulars as delivered. At page 559, Somervell, L.J. lent his support to the proposition that an order which has the effect of dismissing a party's claim at an interlocutory stage must be absolutely and perfectly precise in its terms and that unless it is so, it is inoperative. The learned Lord Justice quoted with approval a part of the judgment of the judge below in the same case, Devlin J.:

"If 'default' means default in the sufficency of one or more of the answers I should not consider that the event was defined with precision; whether or not it had taken place might be the subject of a genuine conflict of opinion which could only be resolved by further adjudication. If I thought this to be the right construction of the order, I should follow Abalian v. Innous⁽¹⁾ and treat it as inoperative. The order can conform with the principle in that case only if it is treated as an order that is dealing with the time of compliance rather than with the mode of compliance. The order does fix a time very precisely, and I think it can and should fairly be construed as a time order. So construed, 'default' refers to default in the delivery of a document within the specified time. I do not, of course, mean that any document with writing on it will do. It must be a document made in good faith and which can fairly be entitled 'Particulars'. It must not be illusory; that is the word used by Mr. Bankes in argument in Davey v. Bentinck⁽³⁾. That is the test, in my judgment, and not, as the plaintiff contends, whether each demand for Particulars has been sufficiently met. Applying that test, I think there has been no default."

9. Mr. Kwok laid great emphasis on the absence of the word "default" and the stipulation for a precise time in the Order of the learned Registrar, and counsel sought to persuade me that the order of the learned Registrar and counsel sought to persuade me that the order of the learned Registrar appealed from is "a time order" dealing with, in the words of Devlin J., the time of compliance rather than the mode of compliance. It must not be overlooked that here we are not considering simply the terms of a single order. The order appealed from was made in consequence of the plaintiff's complaint of insufficiency in the particulars already delivered. In the prevailing circumstances, the defendant was left in no doubt whatsoever as to the steps which it was to take if it was to avoid its pleading being struck out.

10. There is no lack of good faith as reflected from the intricate amended particulars supplied. With one exception (the defendant's predicament in which was satisfactorily explained), the demand for particulars has been adequately met. The Amended Further and Better Particulars were extensive and covered six and a half pages. The disclosure appears to be candidly direct. The failure to identify "each lot of laundry alleged to have been rewashed" and specify "in respect of each, the customers concerned" was wholly attributable to the defendant's inability. The plaintiff was given all the other available information except for the break-down figures of rewash as requested. Mr. Kwok reiterated before me the practical difficulties. However, the defendant company did consent to an Order for particulars, and it must supply all of the information in the request acceded to. Mr. Registrar O'Dea ordered the Defence and Counterclaim to be struck out unless every particular ordered in the Consent Order was given. It is abundantly clear that default has been made, but the omission represents only one in the many facets on which particulars were sought, and in my view it falls within the de minimis rule as recognized in the case of Reiss v. Woolf. In recounting the stance of counsel, Somervell L.J. said:

"What does this order mean? Mr. Waters, on behalf of the plaintiff, submits that paragraphs 2 and 3 are automatically struck out unless every particular ordered by the order is given, possibly subject to de minimus".⁽⁴⁾

In my judgment, the defendant has substantially complied with the order for further particulars. In all the circumstances, justice dictates that the defendant's right to defend should not be abrogated. For all these reasons, the appeal is dismissed with costs and a certificate for counsel.

Representation:

Mr. Nicholas Pirie instructed by Messrs. Johnson Stokes & Master for Plaintiff/Appellant.

Mr. Kenneth Kwok instructed by Messrs. T.S. Tong for Defendant/Respondent.

(1) [1936] 2 AER 834

(2) [1952] 2 Q.B. 557

(3) [1893] 1 Q.B. 185 at p. 186

(4) [1952] 2 Q.B. 557 atp. 559