Are you experienced in drafting particulars? Or maybe you have just been asked to draft particulars and you don’t know what you are supposed to do? We all have to start somewhere, being asked to draft particulars, not having done it before. On the other hand, maybe we are really experienced (or somewhere in between; no experience to very experienced ) in drafting and have already formed drafting habits along the way. After lecturing in Civil Practice and Procedure at Sydney University, I am a firm believer in constantly re-evaluating, so that we can learn and improve in our style and/or methods to try achieve the best results in the most cost effective manner. What are some basics when it comes to particulars? Whats good to keep in mind when drafting particulars?
Part 15 of the Uniform Civil Procedure Rules 2005 (NSW) sets out the requirements for particulars. Particulars are an important aspect of pleadings themselves as well as when pleadings have been filed and commonly further and better particulars are sought by an opposing party.
It is common for the defendant to seek further and better particulars prior to filing a defence by serving a letter on the plaintiff setting out the further and better particulars required.
What Is The Purpose of Particulars?
Gibbs J in Bailey v Federal Commissioner of Taxation [1977] HCA 11 stated at [3]:
“particulars fulfil an important function….They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and avoid taking up time with questions that are not in dispute. …..they save expense by keeping the conduct of the case within due bounds“
Particulars are not pleadings and therefore the other side is under no obligation to plead to them in response. In practice, defective pleadings are often cured by delivery of particulars, usually voluntarily, sometimes court ordered.
Particulars and Evidence
Mason P, Giles and Santow JJA in Allianz Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 stated:
….giving particulars of the case to be made out has been distinguished from disclosing the evidence by the case is to be proved, but the distinction is not a clear one and the touchstone must be to achieve the purpose – [so that the evidence to be led can be appropriately confined and costs can be limited by avoiding the expense of preparing to meet issues which will not arise].
The principles are set out by Hunt J in Sims v Wran (1984) 1 NSWLR 317 at 321-322 which includes (inter alia):
- It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet
It is often difficult to draft particulars, due to the fact that there is fine line between providing particulars and disclosing the evidence by which the case is to be proved. It all depends on what is necessary to guard the other party against surprise. If the other party would be taken by surprise, it may be necessary to give a broad outline of evidence. Therefore the starting point is what is necessary to guard the other party against surprise not what can be said without disclosing the evidence to be led.
Of note, if a party wishes to lead evidence to support the pleaded case and its outside of the particulars which have been supplied and the matter goes to hearing, the trial judge will consider whether the evidence unfairly amounts to a case of which the other party has had sufficient warning. [Hunt J in Douglas v Fairfax & Sons Ltd [1983] 3 NSWLR] and has a discretion to:
- permit the evidence (subject to amendments)
- hold the party whose particulars were deficient to the issues of fact, as limited by those particulars
When Are Particulars Required?
UCPR 15.1 states that pleadings must give such particulars as are necessary to enable the opposite party to identify the case that the pleading requires the other party to meet, with specific particulars to be given in certain cases.
If served with a defective statement of claim, request further and better particulars (or particulars). An order for particulars can be made (UCRP 15.10) prior to a defence being filed, however, it should not be assumed that there is an entitlement to an order for particulars at this early stage in proceedings.
Sometimes there may be several requests for further and better particulars (by defendants and plaintiff) and responses if there are matters which remain unclear. The request and responses aren’t filed in court and the court isn’t involved unless an application is made to the court in relation to particulars.
Recently I was asked to settle ‘draft further and better particulars‘ in a medical negligence case I am briefed in. The defendant requested further information about the relationship between the surgeon who operated at hospital X and Hospital X. Obviously the defendant is in a better position than the plaintiff to know what role/position the specialist surgeon had to the Hospital X (1st defendant). However, from my past experience working in medicine for 15 years, I know that surgical specialists are usually Visiting Medical Officers (or VMO’s) in the public hospital where they perform surgery. This was conveyed to the defendant and requested in return, that if was not correct please indicate what the capacity, role, position was of the surgical specialist whilst they were performing surgery at Hospital X…..If the defendant does not provide details and the surgeons position or relationship to Hospital X remains an issue, the plaintiff can seek discovery.
Again, there is no one prescribed way in which to draft particulars, however, when we understand the purpose of particulars and when they are required and how they interact with evidence, it will assist us in drafting, when providing them to our opponents.
If you require a medical negligence or personal injury Barrister or Mediator to assist, please contact Louise on (02) 9336 5399 or louise.mathias@sydneybarrister.net.au
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