Particulars – their importance in civil litigation

In civil litigation, the term ‘particulars’ is frequently used.  The term particulars stems from the ordinary meaning of the noun, ‘particular,’ that being, ‘a detail’.  Despite this rather simple meaning, what exactly a particular is seems to be a subject of some confusion even amongst the legal profession.  This confusion is likely caused by the blurred line between pleaded facts and particulars.

Pleaded facts

Put in the simplest terms possible, pleaded facts are a list of facts or asserted facts that make up the body of a pleading.  Pleadings are court documents that ‘plead’ a case by either claiming or defending an action.   A statement of claim is the most obvious example of a pleading but other forms include a claim, defence or a reply.

A well written pleading will be made up of paragraphs with each paragraph limited to a single pleaded fact, or with multiple pleaded facts split into multiple sub paragraphs.  Together all the pleaded facts should come together to make out the party’s case in a way that is concise and enables the other party to identify the case against them.

Even after a pleading is split into multiple separate pleaded facts there may still be more information which, while not required to identify the party’s case, need to be included in order that the opposite party can fully understand the case, not be taken by surprise or understand what evidence needs to be collected to defend against the allegations.  This further information will be supplied by way of particulars.

A simple example of this is as follows:

Pleaded fact: Tom stole money from Harry.

Particulars: $10 on 4 March and $20 on 18 March.

From the pleaded fact Harry’s case against Tom is clear however, without further details Tom may not be able to prepare for the trial.  With the particulars, Tom is aware of the dates that he is alleged to have taken the money and is able to attend the trial with witness evidence from his doctor showing that Tom was in hospital in a coma on those dates and couldn’t possibly have stolen the money.

If you’re still confused about the difference between pleaded facts and particulars from the example it is may be because particulars can be included in the pleading as pleaded facts instead.  Some legal practitioners will tell you that a clever litigator will be able to draft their pleading without needing to include particulars at all and in some circumstances this may be correct.

Particulars defined

The exact definition of particulars varies depends on what Court proceedings are commenced in.   However, the concept remains the same throughout:

The High Court of Australia’s definition

“Particulars necessary to enable the opposite party to plead or to define questions for trial to avoid surprise at trial, and particulars of any misrepresentation, fraud, breach of trust, wilful default, or like matter.[1]

The Federal Court of Australia’s definition

“A party pleading shall state in the pleading or in a document filed and served with it the necessary particulars of any claim, defence or other matter pleaded by him.”[2]

“The object of particulars is to limit the generality of the pleadings by:

  • informing an opposing party of the nature of the case the party has to meet;
  • preventing an opposing party being taken by surprise at the trial; and
  • enabling the opposing party to collect whatever evidence is necessary and available.”[3]

The Queensland Courts’ definition

The Uniform Civil Procedures Act 1999 (Qld) (UCPR) definition applies to the Magistrates Court, District Court and Supreme Court:

“A party must include in a pleading particulars necessary to—

(a) define the issues for, and prevent surprise at, the trial; and

(b) enable the opposite party to plead; and

(c) support a matter specifically pleaded under rule 150.”[4]

Why are particulars important?

Particulars are what tailor the pleadings to specify the material facts of the case that go towards or making out or defending an action.   Without specificity, a pleading which does not detail a reasonable cause of action, causes prejudice, delay, or embarrassment.  The worst case scenario may involve a finding that a pleading is an abuse of process and may be struck out.[5]

What is a request for further and better particulars?

If for example, in Queensland, the defendant in a proceeding reviews a statement of claim and believes that the plaintiff has not provided enough detail to allow the defendant to be aware of the exact allegations made, it may request further and better particulars pursuant to rule 161 of the UCPR.   The details may include certain documents, emails or information in relation to vague allegations that have been provided.

The defendant may request further and better particulars by using what is called a rule 444 letter (444 Letter).   However, if the plaintiff does not agree to provide further and better particulars after receiving the 444 Letter, the defendant may file an application for further and better particulars pursuant to rule 161 of the UCPR (Application).

Note that pursuant to rule 444 of the UCPR, a 444 Letter must be written and presented to the other side before an Application can be made.   Any party to a proceeding may apply to the Court for an order for further and better particulars of the opposite party’s pleading pursuant to rule 161 of the UCPR.   Thus the above example is not restrictive; the Plaintiff may also request further and better particulars from the Defendant’s pleading.   The party making the Application must provide a 444 Letter to the other side before filing an Application.

Examples of information that should be included in the particulars

What must be included is any information that clarifies the allegation or defends the allegation.   The information can be in the form of specific emails, contracts, patent specifications, fax or minutes for example.

So how should particulars be provided?

Particulars should be provided as concisely as possible.   However they must contain enough information to make the pleading specific and have enough material facts to address the components of the cause of action and assist to define the issues in dispute.[6]

An example pleading for a patent infringement matter:

“The XXX Patent

  1. The Applicant is registered, pursuant to the Patents Act 1990 (Cth) as the proprietor of Australian Standard Patent No. XXXX entitled “XXXX”. 

PARTICULARS

i. The application for the XXX Patent was filed on 1 October 2017.

ii. The complete specification for the XXX Patent was published and became open to public inspection on dd/mm/yyyy.

iii. The XXX Patent was granted on dd/mm/yyyy.

iv. The expiry date of the XXX Patent is dd/mm/yyyy.

An example pleading for an action for breach of confidence:

“Breach of confidence

  1. The formula to create XXX was confidential to the Applicants.
  2. At all material times the Defendant knew, or should have known that the formula to create XXX was confidential to the Plaintiff.

PARTICULARS

i. Pursuant to clause 17 of the employment contract, the Defendant was under an obligation to keep the formula to create XXX confidential.

ii. The applicant had contacted the manufacturer of the supplier for the formula’s ingredients on dd/mm/yyyy.

iv. The applicant started selling the XXX product using the formula on dd/mm/yyyy.”

Further references

Cases

Indoport Pty Ltd v National Bank Ltd [2001] NSWSC 744

Pilato v Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364

Sanrus Pty Ltd v Monto Coal 2 Pty Ltd [2018] QSC 53

Legislation

Federal Court Rules 2011 (Cth)

High Court Rules 2004 (Cth)

Uniform Civil Procedure Rules 1999 (Qld)

Related articles by Dundas Lawyers

Anton Piller orders – preventing evidence destruction

What if neither party to proceedings takes a step?

What is a Mareva Order?

What is a strike out application?

What is an injunction?

What is your duty of disclosure?

Further information

If you need advice on your matter that you believe may potentially lead to litigation, please contact me for a confidential and obligation free discussion:

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 | Mobile: 0419 726 535
e: mburrows@dundaslawyers.com.au

 

 

Disclaimer

This article contains general commentary only.   You should not rely on the commentary as legal advice.   Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] High Court Rules 2004 (Cth) r 27.04.

[2] Federal Court Rules 2011 (Cth) r 16.41(1).

[3] Ibid, r 16.41(2) Note 1.

[4] Uniform Civil Procedures Rules 1999 (Qld) r 157.

[5] Federal Court Rules 2011 (Cth) r 16.21.

[6] Uniform Civil Procedures Rules 1999 (Qld) r 149(1)(a), 157(1)(a)

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