PART 18 REQUEST FOR INFORMATION ABOUT DAMAGES REFUSED: “NEITHER REASONABLE OR PROPORTIONATE”

In Kings Security Systems Ltd v King & Anor [2019] EWHC 3620 (Ch) Master Kaye refused an application that a party provide further information in relation to damages.

“Part 18 requests should be for the purpose of providing further information strictly necessary to understand another party’s case”

THE CASE

The defendant to an action counterclaimed for “tortious abuse of process”.

“Mr King had applied to add the expanded counterclaim to these proceedings to plead that tortious abuse of process saying the proceedings had been brought for an improper purpose, to obtain the King family shares in the claimant at an undervalue and to inflict serious reputational damage, that they were part of a campaign against him. The counterclaim was a claim for the tort of abuse of process and for damages said to flow from that abuse of process aggravated exemplary and reputational damages.”

THE CLAIMANT’S APPLICATION

The Master considered the claimant’s application that the defendant respond to detailed Part 18 questions about damages in relation to its counterclaim.
    1. The defendant was given permission to plead a counterclaim for abuse of process in November 2018 following a contested hearing. The draft amendments were considered by Deputy Master Arkush as part of the application. A re-amended defence and amended counterclaim was served on 29 November 2018 and, as I understand it, in the same form as the form before the Deputy Master which had originally been provided to the clamant in draft in June 2018. The claimant filed and served an amended reply and defence to counterclaim in January 2019. The claimant then sought to amend its reply and defence to counterclaim in February 2019 which was the substance of the application before Deputy Master Linwood. The claimant served a request for further information pursuant to CPR 18 on 26 July 2019. The request for further information sought clarification and further information in relation to the measure and quantum of damages sought by the defendant in his counterclaim for damages to reputation, aggravated and exemplary damages.
    2. The defendant objected by letter dated 6 August 2019. The defendant identified his objections to providing a response to the request. He referred to the time period since the claimant had had the original draft, over a year, the fact that the claimant had already been able to plead to the amended counterclaim and that the pleading itself said it provided the best particulars that could be provided prior to disclosure.
    3. The request for further information seeks further particulars of paragraph 85 of the amended counterclaim. This paragraph is preceded by four paragraphs which set out various matters on which Mr King is said to rely pending disclosure. Paragraph 85 starts with the well-known phrase “by reason of the matters aforesaid”, thus referring back to the previous four paragraphs. It then continues to set out what are said to be the best particulars of loss and damage claimed by Mr King prior to disclosure. There are no figures provided for those four subparagraphs which include claims for damages, for loss of reputation, aggravated and exemplary damages. The request for further information is of the subparagraph in relation to damages for loss of reputation, aggravated and exemplary damages only. It is not for the prior paragraphs.
    4. In summary, it seeks full particulars of the loss and damages claimed/alleged for each of the three subparagraphs and in particular all facts and matters relied on in support of the allegation that a loss has been suffered on the basis alleged and full particulars of the measure and quantum.
    5. On 17 September 2019, the claimant issued an application for further information pursuant to CPR 18 in relation to the amended counterclaim. The application was supported by the evidence in part C or box 10 of the application notice. The claimant said that further information was important as it would provide clarity around the counterclaim including in relation to its value and without the information, the claimant could not fully assess the counterclaim. A response would facilitate fair case and costs management.
    6. Mr McQueen, a solicitor for the defendant, provided a witness statement in opposition and in relation to various case management matters dated 30 September 2019. So far as the application is concerned, this broadly repeats the objections to providing further information that had previously been made in correspondence but in addition sets out what he says the court’s approach should be to an assessment of damages in relation to the heads of damages claimed and to which the request for further information relates.
    7. Mr Downes QC submits on behalf of the claimant that the damages sought by the defendant in relation to the amended counterclaim are unparticularised. Mr Downes QC took me through a detailed analysis of paragraphs 81 to 85 of the amended counterclaim, identifying what he said were its shortcomings in the way it was pleaded and raising issues about the nature of the claim which will ultimately be a matter for the trial judge. I was referred to the decisions in Rookes v Barnard [1964] UKHL on the question of exemplary damages and Thompson v Commissioner of Police of the Metropolis [1998] QB 498 where Lord Woolf sets out the nature of aggravated damages and the approach to the calculation and what a jury should be told to consider when determining the amount. Lord Woolf also sets out the approach to exemplary damages and sets a broad parameter for the quantum of such an award.
    8. Mr Downes QC says that it is fair that the claimant should know the broad scope of the quantum that they are facing and where there is specific evidence relied on, it should be provided. Since Mr King has been able to plead his case, he ought not to have any difficulty providing answers and particularisation sought, says Mr Downes QC. He referred me to the notes in CPR 18.1 of the White Book setting out the court’s broad discretion and the need to have regard to the likely benefit from requiring the further information to be provided, the likely cost of providing it and the financial position of the party asked to give the information. Mr Downes QC says that the fact that the claimant did not ask for Further Particulars earlier does not mean they are not entitled to them now if they are properly sought. Just because the list of issues has been agreed does not mean the claimant is not entitled to know the case they have to meet, including in relation to quantum, he says. He argues it is appropriate for the defendant to have to particularise the matters he relies on in asserting the claim for damages. Although the claimant has provided a general plea in response to the counterclaim, that does not mean that they are not entitled to ask for further particulars. More broadly, he said that Mr King must be able to provide further particulars, given the nature of the pleading. In particular, Mr Downes QC focused on some of the limited detail provided in, for example, paragraph 83 in relation to which I note there was no request for further information.
    9. Mr Howe QC for the defendant says that the application for further information is hopelessly broad and unnecessary. He says the claimant does not need the answer to the request to understand the case they have to meet. He submits that the claimant has made general requests for the particularisation of a claim for general damages. He analysed the request as one that is seeking evidence or propositions of law, that the claimant is asking the defendant to provide particulars of the measure and quantum of damages and to assess his own general damages which ought to be a matter for the trial judge. Mr Howe QC argues this is misconceived as damages are at large and, as I say, will be determined by the trial judge. In short, the defendant says that the further information sought is neither necessary nor proportionate and in any event is seeking particularisation, as I say, of general damages. Paragraph 85 relies on all the matters pleaded in paragraphs 81 to 84 about which no further information is sought although, as I have already indicated, submissions were made about those paragraphs. He further says the claimant had, of course, been able to plead to all of it and further information was not necessary.
    10. Mr Downes QC has not persuaded me that I should make an order directing a response to the RFI at this stage. The request for further information is only relation to paragraph 85 which references back to the previous four paragraphs as setting out the matters relied on. As is clear from the authorities I have been referred to, the calculation of reputation or aggravated and exemplary damages themselves will be a matter for the trial judge.
    11. Part 18 requests should be for the purpose of providing further information strictly necessary to understand another party’s case. There is some force in the argument that the claimant had the draft amended counterclaim for five months before the hearing before Deputy Master Arkush. Deputy Master Arkush was content to give permission on the basis of the pleading that was the subject of the application. There was no suggestion before me that the claimant raised any concern about the draft pleading in specific details rather than their general objection to the counterclaim being allowed. If they did, it was one that Deputy Master Arkush clearly did not take on board and if they did not, it is a matter for them.
    12. Whilst the delay in making the application itself is not determinative of the application, I do take into account that in this case the parties are involved in attritional litigation. There was a substantive hearing about whether the amended counterclaim should proceed at all a year ago. The claimant pleaded to that amended counterclaim and despite other hotly contested hearings and applications did not seek to pursue this request until July 2019. It then waited until 14 days before the CCMC to issue the application so that it could be heard at the CCMC. Having had a response from the defendant setting out why they said they did not need to respond as long ago as 6 August.
    13. In the meantime, in the absence of further particulars does not appear to have caused the claimant any difficulty in preparing for the CCMC. The request appears to be an attempt to require the defendant to provide early evidence in relation to some aspects of his claim in advance of the exchange of witness evidence. Some aspects of the request are clearly seeking advance notice of the position the defendant adopts in relation to the legal principles and/or is asking them carry out the exercise which is a matter for the trial judge to consider at the end of the trial once he has heard all the evidence.
    14. It is not reasonable or proportionate or in keeping with the overriding objective or efficient case management to require the defendant to produce what is going to be primarily fragmented witness evidence. It does not appear to me to be reasonably necessary at this stage given the history of this particular amendment. I am not, therefore, prepared to direct the defendants must provide the answer to the request for further information and that application fails. However, that obviously does not preclude the claimant from making a further application after disclosure and/or witness evidence if appropriate. Such an application would, of course, be considered on its own merits and in the context of the proceedings at that time.