Anson Manufacturing Co Ltd and Others v. The China Engineers Ltd and Others
Read the full judgment text of HCA 1928/1977 on BabelCite. This High Court CFI judgment.
1. This is an appeal against a decision of Mr. Registrar Wilson made on 24th May 1979, when he refused to strike out the plaintiffs' statement of claim on their alleged failure to comply with an order for further and better particulars made by Mr. Registrar Mayo.
Cites 1 case
|
HCA001928/1977
-----------------
----------------- Coram: Mr. Commissioner Bewley in Chambers. Date of hearing: 13 July 1979 Date on which judgment was delivered: 27 July 1979 ----------------- JUDGMENT ----------------- 1. This is an appeal against a decision of Mr. Registrar Wilson made on 24th May 1979, when he refused to strike out the plaintiffs' statement of claim on their alleged failure to comply with an order for further and better particulars made by Mr. Registrar Mayo. 2. The action arises out of the closure and subsequent demolition of a factory building in April, 1977. The ten plaintiffs were tenants and occupiers of the building. When the closure order was made they were forced to move and find other accommodation. They seek general damages from 1st and 2nd defendants for (1) breach of covenant to ensure quiet enjoyment and to maintain the building in tenantable repair; (2) nuisance; and (3) negligence on the part of the architect and contractor. They also seek special damages in respect of the cost of moving and consequential losses. 3. The writ was filed on 22nd July, 1977 and the statement of claim on 3rd February, 1978. The defence was filed on 16th October, 1978 and was immediately followed by the summons for further and better particulars on 21st October, 1978. This was heard by Mr. Registrar Mayo on 25th October, 1978 and an order in terms was made. 4. The particulars were filed on 8th November, 1978 which was the last day for compliance. Leave to appeal out of time against the order of Mr. Registrar Mayo was obtained on 7th December, 1978, but the defendants successfully appealed against this decision on 14th December, 1978. Three days later the defendants took out a summons to strike out the statement of claim and this summons was dismissed on 24th May, 1979. The defendants now appeal. 5. The first paragraph of the order is in these terms: "After hearing the solicitors for the plaintiffs and the solicitors for the defendants, it is ordered that the plaintiffs do within 14 days from the date hereof serve on the 1st and 2nd defendants, further and better particulars of the statement of claim filed in this action as follows:-". The order concludes thus: "And it is further ordered that if the plaintiffs fail to comply with the aforesaid order, the said statement of claim be struck out automatically and that the costs of this application be paid by the plaintiffs to the 1st and 2nd defendants" 6. The particulars were filed in time, but the defendants complain that they are insufficient, incomplete and otherwise defective and that the plaintiffs have therefore failed to comply with the order and must pay the prescribed penalty. 7. The order requested particulars relating to liability under paragraphs 1, 4, 7 and 8 of the statement of claim. Paragraph 1 alleges that the 1st defendant was the agent of the 2nd defendant. In their reply the plaintiffs state that they will seek to amend this paragraph and to withdraw the allegation of agency. No point is taken concerning this answer. 8. Under paragraph 4 the defendants seek details of alleged representations made by the 1st defendant to the plaintiffs. Under paragraph 7 they ask for particulars of their alleged failure to maintain the building in tenantable repair. Under paragraph 8, which alleges nuisance, they enquire what is meant by "the matters pleaded above". 9. Particulars of special damage were also requested, including losses in respect of rent, removal, business, wages, production and claims from clients. 10. It must be said at once that the particulars which were supplied leave much to be desired. In the case of the special damages, they are in some cases non-existent and in others tenuous or contradictory. The question is whether they amount to compliance with the order. I note in passing that counsel for the plaintiffs has given an undertaking to make all amendments to their pleadings that are necessary to remove the contradictions before the summons for directions. 11. Counsel for the plaintiffs submits that this is a time order and, the particulars having been delivered within the stipulated period, that there was no default. For this proposition he relies upon Reiss v. Woolf(1). 12. In that case the Master made an order that the defendant should "not later than four o'clock in the afternoon of the 25th day following the date hereof, deliver ... further and better particulars of the defence, and that in default thereof paragraphs 2 and 3 of the defence should be struck out." The defendant delivered further particulars within the stipulated period, but it was contended that they were not a full compliance with the order, the defendant stating, with respect to some of the matters covered by the order, that he was unable to give dates or details until after discovery, or possibly not at all. Thereupon, the plaintiff, on the assumption that paragraphs 2 and 3 of the defence were automatically struck out, applied to have the action transferred to the Short Cause List. The Master refused the application and, on appeal to him in chambers, Devlin J. upheld the Master's decision. The learned judge referred to the case of Abalian v. Innous(2) in which Greene L.J. said at page 838:
13. Applying that principle, Devlin J. said:
14. On appeal the Court held that Devlin J. was right and that this was the proper construction of the order. 15. The decision in this case has never been questioned and must be considered good law. 16. Mr. Tong, for the defendants, seeks to distinguish it and prays in aid the recent Hong Kong case of Diversey (H.K.) Ltd. v. American Dry Cleaning & Laundry Co. Ltd.(3). 17. Mr. Tong submits that the wording of the order in Reiss(1), i.e. "not later than 4 o'clock" etc., indicates quite clearly that that was a time order. There are also significant differences in the wording of the two orders, such as the use of the word "default" in Reiss, rather that "fail to comply". There is undoubted force in his argument. 18. In the Diversey case Mr. Commissioner Liu held that an order in more similar terms to that of Mr. Registrar Mayo was not a time order, but he refused to enter judgment, on the grounds that the defendants had substantially complied with the order. 19. The Diversey order was in 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." 20. In the course of his judgment Mr. Commissioner Liu said, "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." 21. Mr. Tong invites me likewise to examine the surrounding circumstances and, in particular, the plaintiffs' attempt to appeal against the order for further and better particulars. It is his contention that, if this were a time order, the plaintiffs would instead have applied for leave for an extension of time in which to comply with the order. I think, with respect, that this is a non sequitur. We do not know what prompted the plaintiffs to make the application. They may have felt that the giving of these particulars prejudiced their case, or that the defendants were not entitled to particulars in this form. It is unreasonable to assume that they were anticipating an application for judgment in default of compliance with the order and were attempting to preempt it. 22. Whether the plaintiffs considered it a time order or not is irrelevant. My task is to examine the wording of the order and, having regard also to the circumstances in which it was made, to determine its proper meaning in the light of the principles enunciated in Reiss v. Woolf(1). 23. The particulars requested in the instant case are far-reaching and, as in Reiss, the plaintiffs have failed to give particulars of certain matters, but have done so in respect of others. I think that, on the authority of Reiss, I would have to hold that, if this is not a time order, it is not sufficiently precise and is therefore inoperative. 24. It seems to me that this case falls between Reiss and Diversey(3). In the former, the wording of the order, plus the absence of other circumstances, pointed to its being a time order. The Diversey order, on the other hand, was made in circumstances, which indicated that the Registrar intended to penalize the defendants, unless more satisfactory particulars were forthcoming. 25. I see no reason why this order should not be regarded as a time order. The 14 day limitation appears at the commencement of the order. There are no circumstances pointing in the other direction and it is the Court's duty to give effect to the order if it can. I rule therefore that this is a time order. 26. The next question is whether the plaintiffs' document is made in good faith and can fairly be entitled particulars. So far as the liability issue is concerned, the plaintiffs have answered the questions under paragraphs 4 and 7 shortly and in a manner which is unhelpful to the defendants. Under paragraph 4 precise particulars of the alleged representations made to the 5th plaintiff are pleaded. The plaintiffs stated that they intend to rely on implied representations to the other plaintiffs. If this is the case, I do not see what more they can say. 27. Under paragraph 7 the plaintiffs reply that the defendants' neglect to mention etc. is to be implied from the closure order. Again this is not very helpful, but it is not possible to say that it is an illusory answer, or that it is made in bad faith. 28. Under paragraph 8 the plaintiffs have answered the question precisely. 29. The particulars of special damage are a different story. 30. Two of the plaintiffs - 8th and 9th - have made no attempt to give any of the particulars requested. 1st plaintiff has, in my judgment, made a reasonable attempt to answer two questions out of five, 2nd plaintiff three out of four, 3rd plaintiff four out of six, 4th plaintiff three out of five, 5th plaintiff three out of five, 6th plaintiff three out of four, 7th plaintiff four out of six and 10th plaintiff four out of five. 31. I bear in mind that it can have been no easy task, in the limited time available, to extract these details from ten far-flung factories. Apart from the 8th and 9th plaintiffs, I think the replies may be described as bona fide particulars. Should these two plaintiffs have their claims struck out? 32. I think not. They have complied with the first part of the order. The consequences of their failure to give particulars of special damages are that, as things stand at the moment, they are precluded from claiming any special damages. It is open to the defendants to seek a further order if they so wish. The plaintiffs may themselves seek to deliver the missing particulars before trial. In the latter event, however, they would doubtless only be allowed to do so upon terms. The defendants will suffer no prejudice. 33. I conclude that the particulars supplied may fairly be described as particulars and are not illusory. The plaintiffs have thus complied with the order of Mr. Registrar Mayo. The appeal is dismissed. I will hear counsel on the question of costs. Representation: Mr. Ronny TONG (Wilkinson & Grist) for appellants (1st & 2nd defendants). Mr. Edward CHAN (Yu, Tsang & Loong) for respondents (plaintiffs). (1) 1952 2 Q.B. 557. (2) 1936 2 A.E.R. 834. (3) Action No. 2790 of 1977. Date of hearing: 13.7.1979. Date on which judgment was delivered: 27.7.1979.
Cases cited in the judgment:
Cases cited to the Judge but not mentioned in the judgment:
Representation: Mr. Ronny TONG (Wilkinson & Grist) for appellants (1st & 2nd defendants). Mr. Edward CHAN (Yu, Tsang & Loong) for respondents (plaintiffs). |
Cases cited in this judgment