Central Bank of Trinidad and Tobago and Colonial Life Insurance Company (Trinidad) Ltd v Duprey et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Mohammed, J. |
| Judgment Date | 28 January 2015 |
| Neutral Citation | TT 2015 HC 41 |
| Docket Number | CV 2011-02140 |
| Court | High Court (Trinidad and Tobago) |
| Date | 28 January 2015 |
High Court
Mohammed, J.
CV 2011-02140
Mr. B. St. Michael Hylton, Q.C. leading Mr. Ian Benjamin, Mr. Jagdeo Singh and Mr. Roger Kawalsingh instructed by Ms. Elena Araujo for the claimants
Mr. Martin Daly, S. C., leading Mr. Jason Mootoo instructed by Ms. Sarah Sinanan for the 2nd and 5th defendants
Civil practice and procedure - Inherent jurisdiction — Further and better particulars — Whether ordering the further and better particulars sought by the defendants was appropriate at this stage of the proceedings having regard to all the circumstances of this case where the application was made prior to the disclosure process.
Before this court is the 2nd and 5th defendants' Notice of Application of the 31st July, 2014 seeking an Order pursuant to Part 26.1(1) (w) of the Civil Proceedings Rules 1998 (“the CPR”) and/or the inherent jurisdiction of the court for further and better particulars in relation to the claimants' Re-Amended Statement of Case (“RASOC”) filed on 28th March, 2013 and Reply filed on 8th July, 2014 to the 2nd and 5th defendants' Amended Defence.
The 2nd and 5th defendants (hereinafter referred to as “the defendants”) further seek an order that in default of the claimants complying with the order for further and better particulars, that those portions of the RASOC and Reply in respect of which the claimants have failed and/or refused to supply such further and better particulars as may be ordered, be struck out. They also seek the costs of this Application, such costs to be assessed pursuant to Part 67.11 of the CPR.
In terms of relevant background to the above-mentioned Application, by letter dated the 16th June, 2014, instructing attorney-at-law for the defendants wrote to instructing attorney-at-law for the claimants advising that the defendants were entitled to the further and better particulars set out in the said letter and requested that same be provided within 21 days of the date of same.
On the 16th June, 2014, the said instructing attorney-at-law for the defendants wrote a further letter to attorney-at-law for the claimants stating inter alia, that it appeared prudent for them (the defendants) to provide the claimants with advanced notice of the fact that they considered themselves entitled to further and better particulars on portions of the proposed Reply to which objection had not been taken. The letter also set out the further and better particulars sought and requested that upon a Reply being filed the claimants treat the said request as a formal request for further and better particulars and provide their response thereto.
On the 18th June, 2014, this court delivered its ruling in respect of the several applications made by the claimants to file Replies to the various defences filed in this action. Thereafter, the claimants filed their Reply to the Amended Defence of the defendants on the 8th July, 2014.
By further letter dated the 16th July, 2014, instructing attorney-at-law for the defendants wrote to instructing attorney-at-law for the claimants requesting a response to her earlier letters. By letter dated the 21st July, 2014, attorney-at-law for the claimants responded advising that the claimants would not be supplying the particulars requested for certain reasons which shall be outlined further on in this judgment.
As was stated above, the defendants seek particulars in relation to both the RASOC and the claimants' Reply to their Amended Defence. With respect to the RASOC, the request for particulars may be grouped into the following six categories:
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(i) Particulars in respect of instances where it is alleged that these defendants or either of them “caused” or “procured” that certain things be done or “caused” or “procured” the 2nd named claimant (“CLICO”) to do certain things [The requests falling into this category are made in connection with paragraphs 112,118,119,123(2), 127, 128D, 129, 130, 131, 133, 137, 138, 197, 202, 206, 209, 210, 211B, 211C, 211D, 211E, 218, 218B, 218 F of the RASOC].
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(ii) Particulars of instances in respect of which it is alleged that these defendants or either of them “knew” of certain matters [The requests falling into this category are made in connection with paragraphs 112,140,162O, 202,206 and 215 of the RASOC].
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(iii) Particulars of instances in respect of which it is alleged that these defendants or either of them “should have known” or “ought to have known” of certain matters [The requests falling into this category are made in connection with paragraphs 112,140,162O, 202 and 215 of the RASOC].
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(iv) Particulars of instances where it is alleged that these defendants or either of them “knowingly received” monies or assets in breach of certain duties which they or either of them allegedly owed to CLICO and/or instances where such monies or assets were allegedly subject to trusts in favour of CLICO [The requests falling into this category are made in connection with paragraphs 188,194, 201 and 218E of the RASOC].
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(v) Particulars of instances where it is alleged that these defendants or either of them “dishonestly assisted” certain other defendants to this action in alleged breaches of duties owed by such defendants to CLICO and/or in alleged breaches of trust [The requests falling into this category are made in connection with paragraphs 185, 195, 200, 207, 211B, 211C, 211D and 211E of the RASOC].
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(vi) Particulars of instances where it is alleged that the 2nd defendant “diverted” monies from CLICO to CL Financial Limited who then paid it to the 2nd defendant [The request falling into this category is made in connection with paragraph 197 of the RASOC].
With respect to the Reply, the particulars which the defendants have requested may be grouped into the following three categories:
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(i) Particulars in respect of allegations that these defendants “concealed” and/or “withheld” and/or “failed to disclose” certain facts and information [The requests under this category relate to paragraphs 2c. and 2e. of the Reply].
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(ii) Particulars in respect of the allegation that certain wrongdoing and fraud allegedly committed on the part of these defendants “could not have been discovered with reasonable diligence and without specially commissioned forensic and accounting investigations and/or the Commission of Inquiry into the affairs of CLICO” [The request under this category is made in relation to paragraph 2a. of the Reply].
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(iii) Particulars of instances in respect of which it is alleged that these defendants or either of them “knew” they were in breach of certain duties [The request under this category is made in relation to paragraph 2e. of the Reply].
According to the 2nd and 5th defendants, they are entitled to the particulars sought. They contend that the ability to require a party to provide further and better particulars of its case has long been recognized as a necessary feature of the civil litigation process. Applications for further and better particulars were routinely made under the Rules of the Supreme court 1975 (“the Old Rules”) and were informed by an underlying philosophy of fairness which required that parties know what case they had to meet at trial, ensured that parties were not taken by surprise and enabled parties to know what evidence they ought to be prepared with and to prepare for trial.
The defendants submit that the introduction of the CPR has not done away with or diminished the importance of further and better particulars of pleadings in the landscape of civil litigation in this jurisdiction. The facility to apply for such particulars exists and a court is required to make such orders for supplying same as may be necessary with a view to ensuring the fairness and the efficient conduct of litigation.
The defendants contend that the general position on the authorities has always been for further and better particulars to be ordered at relatively early stages of proceedings (i.e. after the close of pleadings) rather than to require parties to wait until after discovery or service of witness statements. They contend that the logic of this approach is evident as particulars narrow the issues, focus the parties on the evidence which is required, obviate parties having to deploy their resources in pursuing speculative lines of enquiry and/or marshalling evidence in respect of matters which may not ultimately arise and of course, save time.
The defendants further submit that it is well settled that objections to the provision of further and better particulars on the footing that the party applying for same may or even must know the true facts of the case are not valid because a party is entitled to know the nature of the case being made against him and to tie down the other side by his particulars. It cannot be right that the defendants be left to guess or speculate in the preparation of their case for trial as to how the claimants will ultimately contend certain allegations.
According to the defendants, whether in relation to the RASOC or the Reply, the particulars sought are necessary at this stage and will:
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(a) sort out those issues which ought not to be postponed to the trial of the action and/or some other stage and/or may be eliminated at a preliminary stage;
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(b) allow these defendants to properly and fairly know and understand the case which is being made against them;
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(c) prevent these defendants being taken by surprise at trial and allow them to properly prepare their cases;
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(d) allow these defendants to identify at an early stage the evidence which they will need to obtain for the purposes of a...
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