Particulars - Civil Proceedings

Particulars give specificity to assertions of a more general kind made in the body of the pleading. For example, it may be asserted in the pleadings that the defendant breached a contract, in which case the particulars will specify the respects in which it is said that the defendant did so.

Purpose of Particulars

The facts asserted in the body of the pleading must be sufficient, standing alone, to make out the party’s case. Gaps in the pleading party’s case cannot be filled in by providing particulars[1]. Particulars complement the material allegations in the pleadings but their purpose is not to supplement or expand those issues[2].  Furthermore, a party need not, and should not, plead to particulars[3].   

Importantly, particulars define the scope of the evidence to be lead at trial and are intended to prevent surprise by giving the opposing parties sufficient information to enable them to know the nature of that evidence[4] and may inform the scope of discovery that may be required[5].

Pleadings and particulars have the joint purposes, to identify the issues, resolution of which will determine the outcome of the proceedings, the issues purpose, and to apprise the opposite party of the case to be met, the notice purpose. However, the use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.

Particulars fulfil an important function in the conduct of litigation. They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand, they prevent the injustice that may occur when a party is taken by surprise; they save expense by keeping the conduct of the case within due bounds, as it was stated in Bailey v Federal Commissioner of Taxation,(1977) 136 CLR 214 at 219:

[I]t is a misapprehension to think that the only function of particulars is to reveal to a party facts of whose existence he is unaware. As I have indicated, particulars have the important function of informing a party of the nature of the case he has to meet and of limiting the issues of fact to be investigated by the court.

Particulars are concerned with the nature of the case which is to be made by way of evidence and are not to be used, except in an extraordinary case, to ascertain the legal characterisation which a party places upon the facts and matters already identified in the particulars[6].

In practice it is often difficult to distinguish between a 'material fact', to be included in pleadings and a 'particular' which is to be included in particulars, which it is reasonable to give the defendant in order to tell him the case he has to meet.

RULES ABOUT PARTICULARS

Rule 15.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“The UCPR”) provides that a pleading must give such particulars as are necessary to enable the opposite party to identify the case to be met. Rule 15.9 provides that the particulars must be set out in the pleading or, if that is inconvenient, be set out in a separate document referred to in the pleading and filed with the pleading. So, in concept, particulars are part of the pleading, either physically so or by reference.

A party's obligation is only to supply the best particulars that they can and then supplement the particulars after discovery[7].

It is not sufficient merely to advise the opponent that they can inform themselves by perusing documents[8],  or that a party will rely on such facts as are in the knowledge of the other party and which will appear in the evidence at the hearing of the action[9].

Necessity for Particulars

The determination of what particulars are necessary to allow the party to know the case it has to meet will be influenced by a need to balance between the entitlement to fair notice of the case to be met and the legitimate interest of the pleading party in retaining a degree of flexibility in the preparation of the case. Necessity certainly depends on judgment and on the circumstances of the individual case[10].  Usually the content of the particulars is a formality as they relate to matters of objective relevance to a proper understanding of the pleaded case[11]. However, if requests for particulars go beyond fair view of what could reasonably be necessary to allow the party requesting them to know the case, than these requests may constitute a form of oppression[12]. Ultimately the distinction between what is a proper matter for particulars and what is not depends upon an assessment of what is reasonably necessary to protect the other party against surprise[13].

Particulars will not be ordered of a pleading which merely puts the opponent to proof[14]. On the other hand, if it is apparent that the defence, despite the negative form in which it is couched, will involve the defendant in attempting to make out an affirmative allegation, particulars may be ordered[15]. In the case Johnstone v Sewell [1962] QWN 36 it was said that particulars may also be ordered if the real nature of the denial is in doubt.

There are restrictions upon information that can properly be required by way of particulars as they are permissible, and required, where they are necessary to inform the opposing party of the nature of the case it has to meet - as distinct from the mode in which that case is to be proved[16].

The distinction is difficult to draw clearly because there is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved[17].

Effect of particulars

The particulars limit the evidence that can be given at the trial[18]. The courts allow a degree of flexibility when determining whether evidence is reasonably within the scope of the particulars for example, in relation to particulars of verbal representations[19]. In addition, the courts may use their discretion to allow amendment of particulars in order to determine the true issues of fact[20]. This flexibility is further enhanced as the disparity between the evidence emerging at the trial and earlier particulars does not prohibit a party from obtaining a judgment based upon the actual evidence before the court[21]. There were cases where the particulars were amended even after the evidence in the trial has closed[22].  In all of the above cases the test to be applied is: whether the amendments of the particulars will result in injustice to the other party by raising a point that could possibly have been met by relevant evidence during the course of the trial[23].

Particulars for Specific Causes of Actions

Negligence and Breach of Statutory Duty in Common Law Claims in Tort

R15.5 of UCPR, Supreme Court Rules Part (“SCR”) 16, rule 4; District Court Rules (“DCR”) Part 9, rule 22 and Local Court Rules (“LCR”) Part 8, rule 4 provide that the particulars to be given by a pleading that alleges negligence (whether contributory or otherwise) or breach of statutory duty must state the facts and circumstances on which the party pleading relies as constituting each of the alleged negligent act or omission[24], or breach of statutory duty. It is not sufficient merely to plead negligence generally without specifying the particular deficiencies relied upon[25]. Paticulars of breach must be given[26] about the substance of the breach alleged[27], however need not include all of the facts that may be necessary to establish that an act or omission constituted a breach of duty even if evidence to that effect would be required at the trial. In Collendina Pty Ltd v Murray Darling Basin Commission [2006] NSWSC 776 it was held that it was not necessary to plead that there was a reasonably practicable precaution or alternative course of conduct that could have avoided or reduced the loss or damage.  

Moreover, the case law has developed and established additional rules.

The plaintiff "ought to state the facts upon which the supposed [28]duty is founded, and ... the breach of which the defendant is charged"[29].

The material components of the cause of action, and matters that must be pleaded include:

-                                  - damage where it is an essential element of causes of action;

-                               - the defendant knew or ought to reasonably have known that the information would be                            communicated to the plaintiff and that would be for a purpose likely to lead the plaintiff to                      enter into the particular kind of transaction[30].

The plaintiff must fairly inform the defendant of the nature and extent of the damages claimed, and if the claim is able to be precisely calculated, particulars should be given of the facts which make such a calculation possible[31]. However, particulars are not required to be given of general damages[32]. Particulars are required of special damages[33] which cannot be recovered unless pleaded[34] and of out-of-pocket expenses (r 15.6 UCPR), exemplary damages (r 15.7 UCPR) and aggravated damages (r 15.8 UCPR).

Fraud, Misrepresentation, Breach of Trust, Undue Influence and Testamentary Capacity

Fraud and Misrepresentation involve an explicit allegation of dishonesty or recklessness which requires proper pleading and particulars[35] alleging the nature and extent of each misrepresentation relied upon and the precise circumstances in which it was made, including identifying any document constituting the misrepresentation[36]. These allegations must be specific and unambiguous not to embarrass the adversary[37].

In addition, rule 15.3. UCPR, SCR Part 16, rule 2 and DCR Part 9, rule 20 provide that a pleading must give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which the party relies. Rule 15.4. UCPR provides that pleadings must include particulars of any alleged "condition of mind". Therefore, particulars of good faith, intention and belief, knowledge, malice, and imputed knowledge should be provided. Whenever it is material to allege notice to any person of any fact, matter or thing, it is sufficient to allege such notice as a fact unless the form or the precise terms of such notice or the circumstances from which such notice is to be inferred are material[38].

About allegations of imputed knowledge, that that the opposing party "knew or ought to have known", particulars should be given of the facts and circumstances which it is claimed exist and from which it is said that the defendant ought to have acquired, either by observation or by inference, the relevant knowledge[39].  In Fox v H Wood (Harrow) Ltd [1963] 2 QB 601; [1962] 3 All ER 1100, Diplock L.J. stated at [604]:

An allegation that a person ought to have known something has implicit in it not only an allegation that he did not know something, which is an allegation of a state of mind, but also an allegation that facts and circumstances existed from which he ought to have acquired, either by observation or by inference, the knowledge of which he was deficient, and that some fault, in this case amounting to contributory negligence, lies upon him in having failed to note, or draw an inference from, particular facts and circumstances. Of such facts and circumstances particulars ought to be given.

A defendant is entitled to particulars of the facts alleged to constitute him a trustee[40]. The particulars must include specific identification of the conduct alleged to constitute a breach of trust and the basis for the allegation of breach[41].

If a defendant in probate proceedings alleges that the will was obtained by undue influence, or that the testator lacked relevant testatmentary capacity, the pleading must contain particulars of the character of, and the specific conduct alleged to constitute, the undue influence and particulars of the alleged testamentary incapacity[42].

Contract

In contract cases a party is usually entitled to particulars of the form of the contract, including the form of particular terms, the circumstances of its making and the consideration alleged[43].

Defamation

In defamation, the extrinsic facts relied on to identify the plaintiff should be provided by way of particulars and not pleaded as material facts[44].

Money Claims

In money claims, the particulars should be set out to show how the defendant's receipt of the money was a receipt to the use of the plaintiff. Where the claim is for goods sold and delivered, the particulars should show either the invoice numbers and amounts or the nature of the goods and the dates of supply and the price of each item[45]. In an action for a liquidated sum, the plaintiff should give particulars showing how the amount claimed is made up[46], and should also give particulars of items for which credit is allowed to the defendant in the claim[47].

Order for Particulars

By r 15.10 UCPR,  SCR Part 16, rule 7; DCR Part 9, rule 26 and  LCR Part 8, rule 8, the court may order a party to file various particulars or a statement of the nature of the case on which the party relies.  Whether the court will refuse to make an order for particulars until after discovery involves a balancing of interests of the parties[48]. The grant of an order for particulars is discretionary. In New South Wales, despite the practice elsewhere, it has been customary to seek particulars of a pleading before replying to it. Although an application for an order that particulars be provided may be made at any time, it should be made promptly and may, in the court's discretion, be refused if there has been undue delay[49].

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[1] H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 at [13]–[23]..

[2] Goldsmith v Sandilands (2002) 190 ALR 370; 76 ALJR 1024; [2002] HCA 31;

[3] Pinson v Lloyds & National Foreign Bank Ltd [1941] 2 KB 72 at 75.

[4] Spedding v Fitzpatrick (1888) 38 Ch D 410 at 413-14 ; National Starch Co v Robert Harper & Co Pty Ltd [1906] VLR 8 at 12; (1905) 11 ALR 335; Grollo & Co Pty Ltd v Hammond (1977) 16 ALR 123 at 126.

[5] Saunders v Jones (1877) 7 Ch D 435 at 451; Bailey v FCT (1977) 136 CLR 214 at 219, 221, 227-8; 13 ALR 41.

[6] Master Butchers Ltd v Cmr of Taxation [1974] 1 NSWLR 350 at 359 ; Sims v Wran [1984] 1 NSWLR 317 at 322.

[7] Marshall v Inter Oceanic Steam Yachting Co (1885) 1 TLR 394; Leonard (Cyril) & Co v Simo Securities

Trust Ltd [1971] 3 All ER 1313; [1972] 1 WLR 80.

[8] English, Scottish & Australian Bank v Dwyer [1969] 1 NSWR 459; Engarch Pty Ltd v Ocean Shores Pty Ltd [1970] 3 NSWR 204. 

[9] Atkinson v Stewart & Partners [1954] NI 146 at 158; Zanardo v Ford Motor Co of Australia Ltd [1964] VR.

[10] Ratcliffe v Evans [1892] 2 QB 524 at 532.

[11] Grollo & Co Pty Ltd v Hammond (1977) 16 ALR 123 at 126.

[12] Dougherty v Nationwide News Pty Ltd (1967) 86 WN (Pt 1) (NSW) 181.

[13] Sims v Wran [1984] 1 NSWLR 317 at 321.

[14] Fox v H Wood (Harrow) Ltd [1963] 2 QB 601 at 605; [1962] 3 All ER 1100.

[15] Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72 at 79;

[16] Duke v Wisden (1897) 77 LT 67 at 68 ;  Spedding v Fitzpatrick (1888) 38 Ch D 410 at 413;   Philliponi v Leithead (1958) 59 SR (NSW) 352; 76 WN (NSW) 150 at 151-2; Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517; [1916] HCA 81..

[17] Ritchie's Uniform Civil Procedure NSW – Online, LexisNexis.

[18] Esso Petroleum Co Ltd v Southport Corp [1956] AC 218 per Lord Radcliffe at 241; [1955] 3 All ER 864..

[19] Dominion Factors Pty Ltd v LJ Hooker Ltd [1963] NSWR 573; SR (NSW) 146.

[20] Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 at 133.

[21] Dare v Pulham (1982) 148 CLR 658 at 664.

[22] Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 110; [1956] ALR 795.

[23] Water Board v Moustakas (1988) 180 CLR 491.

[24] Anchor Products Ltd v Hedges (1966) 115 CLR 493 at 499; [1967] ALR 421; (1966) 40 ALJR 330; McCormack v Gilchrist, Watt & Sanderson Pty Ltd [1962] NSWR 462 at 464.

[25] Suvaal v Cessnock City Council (2003) 200 ALR 1; 38 MVR 289; [2003] HCA 41.

[26] Watson v North Metropolitan Tramways Co (1886) 3 TLR 273; McCormack v Gilchrist, Watt & Sanderson Pty Ltd [1962] NSWR 462.

[27] Roe v McGregor [1968] 2 All ER 636 at 641; [1968]1 WLR 925;

[28] Donoghue v Stevenson [1932] AC 562 at 618; [1932] SC (HL) 31; (1932) 48 TLR 494; 37 Com Cas 350.

[29] Gautret v Egerton (1867) LR 2 CP 371 per Willes J, cited in West Rand Central Gold Mining Co Ltd v R [1905] 2 KB 391 at 400.

[30] Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 252, 256-7, 263, 275; 142 ALR 750 at 757, 761, 765, 776; [1997] HCA 8.

[31] Perestrello e Companhia Lda v United Paint Co Ltd [1969] 3All ER 479; [1969] 1 WLR 570 ; see also

Lachaume v Broughton (1903) 3 SR (NSW) 475 ; Illawarra Coke Co Ltd v Le Plastrier (1917) 34 WN (NSW) 23;

Domsalla v Barr [1969] 1 WLR 630; [1969] 3 All ER 487.

[32] Singleton v John Fairfax & Sons Ltd (No 2) [1983] 2 NSWLR 728 at 730.

[33] London & Northern Bank v George Newnes Ltd (1900) 16 TLR 433 ; Mills v Mills (1948) 65 WN (NSW) 115.

[34] Ilkiw v Samuels [1963]2 All ER 879; [1963] 1 WLR 991.

[35] R 14.14(3) and [14.14.25] UCPR.

[36] Newport (Mon) Slipway Dry Dock & Engineering Co v Paynter (1886) 34 Ch D 88; Seligmann v Young [1884] WN 93. .

[37] J Earle Hermann Ltd v Ferry (1915) 32 WN (NSW) 31.

[38] NRNQ v MEQ Nickel Pty Ltd [1991] 2 Qd R 592 at 599 ; Cresta Holdings Ltd v Karlin [1959]

3 All ER 656; [1959] 1 WLR 1055.

[39] Fox v H Wood (Harrow) Ltd [1963] 2 QB 601; [1962] 3 All ER 1100 ; Johnstone v HIH Insurance [2004] FCA 190.

[40] Miller v Registrar General (1926) 43 WN (NSW) 135.

[41] Re Symons (1882) 21 Ch D 757 ; Smith v Armitage (1993) 24 Ch D 727.

[42] Estate of the Earl of Shrewsbury; McLeod v Earl of Shrewsbury [1922] P 112; Queensland Trustees Ltd v Masterson [1987] 2 Qd R 704 at 707.

[43] Cooke v Rickman [1911] 2 KB 1125 at 1130.

[44] Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69; 3 ALR 491 ;Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 2 NSWLR 733.

[45] Parpaite Frères v Dickinson (1878) 38 LT 178; Hall v Symons (1892) 92 LT Jo 337.

[46] George Patterson Pty Ltd v James Wallace Pty Ltd [1964-5] NSWR 1299.

[47] Godden v Corsten (1879) 5 CPD 17.

[48] Lyons v Kern Constructions (Townsville) Pty Ltd (1983) 47 ALR 114; 70 FLR 135 at 148-151.

[49] Murnin v United Assurance Co (1867) 6 SCR (NSW) (L) 262; Astrovlanis Compania Naviera SA v Linard [1972] 2 QB 611.