Johnson Pacific Pte Ltd v Hogberg Fred Rickard Robin William and Others [2004] 4 SLR 200

Civil Procedure – Costs – Plaintiff’s appeal against assistant registrar’s
decision that there be no order as to costs for defendants’ applications
– Whether appeal should be allowed

Civil Procedure – Pleadings – Further and Better Particulars – Whether
requests by defendants relevant and valid

Case Summary

Facts

The plaintiff was a company incorporated in Singapore and the first defendant
was the plaintiff’s managing director at the material time. The
second defendant was a company alleged to be in direct competition with
the plaintiff while the third defendant was a company alleged to be the
owner of assets which were for the second defendant’s use. The plaintiff
brought an action against the first defendant for account of profits,
damages for breach of contract, breach of fiduciary duties, breach of
trust, fraud, conspiracy, knowing receipt of moneys, breach of director’s
duties under s 157 of the Companies Act (Cap 50, 1994 Rev Ed) and enticement
of the plaintiff’s employees. The plaintiff also sued the second
and third defendants for unlawful conspiracy.

The defendants denied the various allegations made by the plaintiff. In
particular, the defence of the second and third defendants was one of
bare denial and was encapsulated in no more than two very short sentences.
The defendants then applied for further and better particulars from the
plaintiff. The assistant registrar who heard the applications allowed
only 37 out of 221 requests from the first defendant, and 39 out of 256
requests from the second and third defendants. The assistant registrar
also made no order as to costs of the defendants’ applications.

The plaintiff appealed against the assistant registrar’s decision
that there be no order as to costs of the defendants’ applications
(RA 17/2004 and RA 18/2004). The defendants, on the other hand, appealed
against the assistant registrar’s decision to allow only limited
items of requests for further and better particulars (RA 15/2004 and RA
19/2004). However, a day before the hearing of these appeals, the first
defendant abandoned 58 requests while the second and third defendants
abandoned 144 requests, leaving the remaining requests for determination
on appeal.

Held, dismissing the plaintiff’s appeals in RA 17/2004 and RA 18/2004,
and disallowing the defendants’ appeals in RA 15/2004 and RA 19/2004,
save for nine requests:

(1) Having gone through the summary of the defendants’ requests
with reference to the amended Statement of Claim, the defences filed by
the respective defendants, the documents provided by the plaintiff by
way of discovery, and further particulars subsequently provided by the
plaintiff, it was plain that almost the entirety of the defendants’
requests, with the exception of a few, was redolent of harassment and
oppressiveness: at [13].

(2) On the whole, the particulars provided by the plaintiff from time
to time and incorporated subsequently in its amended Statement of Claim,
as well as what was disclosed by discovery, were more than adequate. It
would be for the defendants to state their position whether the averments
by the plaintiff were to be admitted or denied. As it stood, the second
and third defendants, having denied every averment of the plaintiff in
its entirety, could not be allowed to embark on a fishing expedition:
at [16].

(3) While particulars ought not to be given in every case as of right,
they ought to be provided as a matter of course in relation to averments
such as fraud, conspiracy, dishonesty, misrepresentation and the like.
In this regard, nine of the requests for particulars by the defendants,
which were in respect of averments made in the plaintiff’s amended
Statement of Claim, were valid. However, save for those limited items,
the remainder of the particulars requested by the defendants were to a
large extent excessive: at [17], [21] and [22].

(4) With regard to the plaintiff’s appeals in RA 17/2004 and RA
18/2004 against the assistant registrar’s decision that there be
no order as to costs, her decision could not be faulted and the order
was to remain. As for the appeals brought by the defendants in RA 15/2004
and RA 19/2004, having regard to the manner in which these appeals had
been brought and pursued, the defendants were to pay to the plaintiff
three-quarters of the costs in any event: at [23].

Case(s) referred to
Elgindata Ltd (No 2), Re [1993] 1 All
ER 232 (folld)
Tan Hoe Kock v Ali Akarbara bin Mangudin [1997]
4 MLJ 311 (refd)
Tullio v Maoro [1994]
2 SLR 489 (folld)

Legislation referred to
Companies Act (Cap 50, 1994 Rev Ed) s 157
Rules of Court (Cap 322, R 5, 2004 Rev Ed) O 18 r 12(1)(a), (b)

Judgment

4 August 2004

MPH Rubin J:

Introduction

1 A clutch of four registrar’s appeals was heard by me on 2 and
23 July 2004. Two of them, Registrar’s Appeals Nos 17 and 18 of
2004, were filed by the plaintiff against the assistant registrar’s
decision that there be no order as to costs in relation to Summonses
in Chambers Nos 7880 and 7992 of 2004. Registrar’s Appeal No 15
of 2004 was filed by the first defendant and was initially against the
order disallowing some 184 out of 221 fragmented requests (“requests”)
contained in the first defendant’s SIC 7880/2004. Finally, Registrar’s
Appeal No 19 of 2004, filed by the second and third defendants, was
initially against the order disallowing 217 out of 256 requests contained
in the second and third defendant’s SIC 7992/2004. However, on
12 April 2004 (a day before the first scheduled hearing of these appeals),
the first defendant’s solicitor abandoned 58 requests, leaving
126 requests for determination. Similarly, the second and third defendants’
solicitor also abandoned 144 requests, leaving 73 requests for determination
presently.

Brief outline of background facts

2 The plaintiff is a company incorporated in Singapore and is said to
be in the business of trading, supplying and installing fluid handling
products, and providing engineering services.

3 The first defendant was the plaintiff’s managing director and
was reportedly in control of the operations of the plaintiff until 24
March 2003.

4 The second defendant is another Singapore incorporated company and
is alleged to be engaged in business (including rendering engineering
services) that is in direct competition with the plaintiff. The third
defendant, yet another Singapore company, is alleged by the plaintiff
to be the owners of assets for the use of the second defendant. The
plaintiff alleges that the beneficial owners of the second and third
defendants are the first defendant and three others, namely, Wong Yeng
Foong, Peter Moe and Ng Siew Hoong.

5 The plaintiff’s action against the first defendant is for account,
damages for breach of contract, breach of fiduciary duties, breach of
trust, fraud, conspiracy, knowing receipt of moneys arising from the
said breaches, breach of director’s duties under s 157 of the
Companies Act (Cap 50, 1994 Rev Ed) and enticement of the plaintiff’s
employees. As against the second and third defendants, the plaintiff’s
action is for unlawful conspiracy with the predominant purpose to cause
injury to the plaintiff by unlawful means. The statement of claim, which
has since been amended and amplified by further and better particulars,
is somewhat extensive and detailed.

6 The first defendant’s defence is a vehement denial. In sum,
his defence is that he is not guilty of any of the breaches alleged
against him; he acted at all times in good faith and in the best interests
of the plaintiff; the second and third defendants were not in a business
in competition with the plaintiff; and he never allowed the second and
third defendants to usurp the plaintiff’s opportunities, deals
and contracts at any time. He also denies the plaintiff’s allegations
that he had manipulated, misrepresented or falsified any records of
the plaintiff. He further denies enticing employees away from the plaintiff
or procuring them to leave the plaintiff’s employ without notice
or to bring with them documents or copies of documents belonging to
the plaintiff.

7 The defence of the second and third defendants is unremarkable. It
is one of bare denial and encapsulated in no more than two very short
sentences.

Request for further and better particulars

8 The defendants requested from the plaintiff further and better particulars.
The applications, which were heard by the assistant registrar, met with
only limited success for the defendants. As stated earlier, the assistant
registrar allowed only 37 out of the 221 requests from the first defendant
and 39 out of the 256 requests from the second and third defendants.
As a result of the developments prior to the hearing described in [1]
above, the court had to deal with some 126 requests from the first defendant
and 73 from the second and third defendants. It should also be mentioned
here that the requests of the second and third defendants are substantially
the same as that of the first defendant, so much so, counsel for the
second and third defendants conceded during the hearing of these appeals
that the requests of his clients are in most respects subsumed in the
requests of the first defendant.

The law

9 Order 18 r 12(1)(a) and (b) of the Rules of Court (Cap 322, R 5, 2004
Rev Ed) prescribe that:

12.—(1) Subject to paragraph (2), every pleading must contain
the necessary particulars of any claim, defence or other matter pleaded
including, without prejudice to the generality of the foregoing words
—
(a) particulars of misrepresentation, fraud, breach of trust, wilful
default or undue influence on which the party pleading relies; and
(b) where a party pleading alleges any condition of the mind of any
person, whether any disorder or disability of mind or any malice, fraudulent
intention or other condition of mind except knowledge, particulars of
the facts on which the party relies.

10 The function of particulars of pleading is described by the editors
of Singapore Civil Procedure 2003 (Sweet & Maxwell Asia, 2003) (“SCP”)
at para 18/12/2 as follows:

The requirement to give particulars reflects the overriding principle
that the litigation between the parties, and particularly the trial,
should be conducted fairly, openly, without surprises and, as far as
possible, so as to minimise costs …
11 The functions of particulars is accordingly:
(a) to inform the other side of the nature of the case that they have
to meet as distinct from the mode in which that case is to be proved;
(b) to prevent the other side from being taken by surprise at the trial;
(c) to enable the other side to know with what evidence they ought to
be prepared and to prepare for trial;
(d) to limit the generality of the pleadings or of the claim or the
evidence;
(e) to limit and define the issues to be tried, and as to which discovery
is required;
(f) to tie the hands of the party so that he cannot without leave go
into any matters not included. But if the opponent omits to ask for
particulars, evidence may be given which supports any material allegation
in the pleadings.

12 What ought to be stated and what particulars are to be provided in
one’s pleadings are set out by way of examples in the SCP and
in this regard the following extracts appear relevant:

(a) Agreement:
The pleading should state the date of the alleged agreement, the names
of all parties to it, and whether it was made orally or in writing,
in the former case stating by whom it was made and in the latter case
identifying the document, and in all cases setting out the relevant
terms relied on. If the agreement be not under seal, the consideration
also must be stated. [See para 18/12/5 of the SCP]

(b) Breach of confidence:
The plaintiffs must provide all the particulars sought of the allegations
of breach of confidence in their statement of claim. It is only fair
for the defendants to know the information they are attacked for using.
[See para 18/12/6 of the SCP]

(c) Conspiracy:
In an action for conspiring to induce certain persons by threats to
break their contracts with the plaintiffs, the defendant is entitled
to particulars, stating the name of each such contractor, the kind of
threat used in each case, and when and by which defendant each such
threat was made, and whether verbally or in writing; if in writing,
identifying the document; but he is not entitled to the names of the
workmen in the employ of those contractors whom it is alleged the defendant
threatened to “call out”. [See para 18/12/11 of the SCP]

(d) Dishonesty – bad faith:
An allegation that a party has been guilty of bad faith or lack of good
faith is the equivalent of an allegation of dishonesty, though not necessarily
for a financial motive, and proper particulars of such an allegation
must be pleaded, otherwise the allegation will be struck out.

In order to claim that a person is liable as a constructive trustee,
it is necessary to plead clearly and unequivocally that he had known
that the breach of trust in respect of which it was sought to make him
liable was fraudulent or dishonest. It is not enough merely to plead
that the defendant was aware or ought to have been aware of the facts
necessary to show a dishonest breach of the trust. [See para 18/12/14
of the SCP]

(e) Duty – fiduciary duty:
Wherever a breach of duty arising from any given relation is alleged,
particulars will be ordered of the precise relation from which the duty
is alleged to arise. [See para 18/12/15 of the SCP]

(f) Fraud:
Fraudulent conduct must be distinctly alleged and proved, and it is
not allowable to leave fraud to be inferred from the facts. [See para
18/12/19 of the SCP]

(g) Intention:
If an allegation is made that a person, including a party, had or did
not have a particular intention, particulars will be ordered of any
overt acts and any other facts relied on to support the allegation.
[See para 18/12/21 of the SCP]

(h) Knowledge:
Where knowledge is pleaded as a fact, particulars of the facts on which
a party relies in support of such allegation may, but need not, be contained
in the pleading itself, but such particulars should be given on request
or the court may order them to be given. The usual form would be particulars
of specific facts, documents or overt acts on which a party intends
to rely in support of the allegation that the other party had knowledge
of some fact, matter or thing. [See para 18/12/24 of the SCP]

(i) Secret process:
Particulars may be ordered as to what features of the process are alleged
to be secret. … An order for the inspection of the process by
an expert is a substitute for such particulars, so that there is a duty
to explain to him what elements are claimed to be secret and why.

Cases of alleged breach of confidence ought to be clearly and precisely
pleaded, and particulars of the confidential information must be given.
Moreover some particularity of what is alleged to have been taken is
required.
In an action for misuse of trade secrets, it will often be necessary,
even before defence, for the plaintiff to specify precisely what it
is he alleges are the trade secrets relied upon. For this purpose, the
court may impose safeguards, e.g. a condition that the particulars be
not filed with the pleadings and that the defendants shall undertake
not to make or permit use of them, save such use as may be necessary
for the purpose of the proceedings. [See para 18/12/42 of the SCP]

(j) Breach of trust:
It is not enough for the plaintiff to allege that the defendant has
committed breaches of trust; he must give particulars of the alleged
breaches of trust and wilful default, or the allegation will be struck
out. …
Moreover, it is not enough to plead all the facts necessary to show
a dishonest breach of trust on the part of the defendant or to plead
that the defendant was aware or ought to have been aware of those facts.
It is necessary to clearly and unequivocally plead knowledge on the
part of the defendant of the dishonesty of that breach of trust. [See
para 18/12/48 of the SCP]

Issues and conclusion

13 The issues in this appeal, as stated earlier, revolve around some
126 requests (grouped under 36 broad categories). They are too long
to be entered upon here and can be found in the summary prepared by
the plaintiff’s counsel as an appendix to plaintiff’s submissions
(D), filed on 29 June 2004 (“appendix”). Having gone through
the summary with reference to the amended statement of claim, the defences
filed by the respective defendants, the documents provided by the plaintiff
by way of discovery and further particulars provided by the plaintiff
subsequently, it is plain that, except for a few items which I shall
refer to shortly, almost the entirety of the requests by the defendants
is redolent of harassment and oppressiveness.

14 For example, para 2 of the amended statement of claim reads:
At all material times till 24th March 2003, the 1st defendant was in
total control of the Plaintiff company, and oversaw the day to day operations
and businesses of the Plaintiff and had acted as the Plaintiff’s
Managing Director and despite his appointment as 1 of the directors
and as the Managing Director of the Plaintiff, being terminated on 9th
October 2002.
In this regard, the very first request at p 2 of the appendix, under
the said para 2 of the amended statement of claim, is for “each
and every act and the full particulars thereof by which the 1st Defendant
was allegedly in total control of the Plaintiff company on all material
times … [limited to 9/10/02 – 24/3/03]”.

15 In my view, the first defendant’s request is substantially
frivolous, having regard to the fact that he himself admits in para
15 of his defence that he remained in the employ of the plaintiff “in
some capacity after 9 October 2002 and to, inter alia, assist the board
of the Plaintiffs in their operations and business …”. Similar
comments apply to the next request in relation to para 3 of the amended
statement of claim. Despite further particulars added to the pleadings
by way of amendments by the plaintiff, and despite the extremely skimpy
and bare defence by the second and third defendants, the defendants
are seeking particulars from the plaintiff as to their own shareholdings
in their own companies.

16 In my view, overall, the particulars provided by the plaintiff from
time to time and incorporated subsequently in the amended statement
of claim, as well as what was disclosed in the documents by way of discovery
on 17 March 2004, are more than adequate and it would be for the defendants
to state their position whether the averments by the plaintiff are to
be admitted or denied. As it stands, the second and third defendants,
having denied every averment of the plaintiff in its entirety, cannot
be allowed to embark on a fishing expedition.

17 Let me now deal with those requests which I consider to be relevant
and valid. They are:

(a) Paragraph 5 of the amended statement of claim contains an allegation
by the plaintiff that “[t]he 2nd Defendant was in the business
of rendering engineering services, in direct competition with the Plaintiff.”
The request in relation to the said paragraph appears at p 4 of the
appendix. I consider this request to be valid and the plaintiff ought
to provide best particulars as to which aspect of the second defendant’s
business is in direct competition with that of the plaintiff.

(b) Paragraph 6 of the amended statement of claim contains an averment
that “[t]he 3rd Defendant was in the business of owning assets
for the use of the 2nd Defendant.” In this regard, I find the
request at p 5 of the appendix also to be valid and the plaintiff ought
to provide best particulars as to what assets are being owned by the
third defendants for the use of the second defendants.

(c) Paragraph 15(b) of the amended statement of claim avers that the
“services supplied by the 2nd Defendant to Swee Hong for the $4,197,300.90
had been supplied to the 2nd Defendant by equipment, resources and labour
of the Plaintiff [sic]”. In relation to this paragraph, I find
the request set out at p 7 of the appendix, as regards resources and
equipment, valid. Consequently, the plaintiff is required to provide
best particulars in relation to the said request.

(d) Paragraph 15(c) of the amended statement of claim mentions that
the first defendant made or arranged for the plaintiff to bear certain
burdens and for the second defendant to enjoy certain benefits in relation
to two contracts. The request as concerns this allegation is set out
at p 8 of the appendix. I find this request also to be valid and the
plaintiff is required to provide best particulars on the request.

(e) Paragraph 15(g) of the amended statement of claim alleges that the
first defendant revealed to the second and third defendants trade secrets
and confidential information in relation to business, suppliers, processes,
pricing and customers. The request in relation to the said allegations
is set out at p 12 of the appendix. I find some of the aspects of the
request to be valid and the plaintiff is required to provide best particulars
of the alleged trade secrets and confidential information disclosed
by the first defendant to the second and third defendants.

(f) Paragraph 11(b) and (c) of the amended statement of claim states
that the first defendant did not make any disclosure to the accountants,
auditors, directors and shareholders of the plaintiff and kept secret,
matters relating to the plaintiff’s claim for $1,458,649.80 against
United Engineers (Singapore) Pte Ltd, which had been compromised and
settled for only $375,617.43 on or around 22 April 2002. In this regard,
I find item (b) of the request, as appears at p 18 of the appendix to
be valid. Consequently, the plaintiff is required to provide best particulars
of the alleged acts of the plaintiff adverted to.

(g) Paragraph 12 of the amended statement of claim alleges that the
first defendant had manipulated, misrepresented, falsified and/or caused
the appearance and contents of the financial reports, records and accounts
of the plaintiff to be such that it caused the plaintiff to suffer and/or
led the plaintiff to believe that the plaintiff was suffering from poor
cash flow. The request in relation to this paragraph appears at p 22
of the appendix. Although the said request is couched in extremely wide
terms, the request concerning particulars of the period when the alleged
poor cash flow happened appears to be valid. The plaintiff is therefore
required to provide particulars of the period when the alleged cash
flow appeared.

(h) Paragraph 14(d) of the amended statement of claim states that “on
divers[e] dates from about 25th March 2003, the 1st Defendant has falsely
and maliciously stated to customers and suppliers that the Plaintiff
was not financially viable, closing down or were no longer able to honour
the Plaintiff’s business commitments or execute orders in time
or at all.” The request, as concerns this paragraph appears at
p 30 of the appendix. I find the request to be valid and the plaintiff
is therefore required to provide best particulars on the request.

(i) Paragraph 20 of the amended statement of claim bespeaks of the defendants
having knowingly participated in fraudulent and dishonest designs against
the plaintiff and each of the defendants becoming constructive trustees
for the plaintiff in respect of all moneys received by them. I find
the request, in respect of this paragraph, as appears at p 33 of the
appendix, to be valid. The plaintiff is consequently required to provide
best particulars of the averments.

18 There is a passage in the SCP (para 18/12/63) which states that:
It is sometimes urged as an objection to application for particulars
that the applicant must know the true facts of the case better than
the opponent … But this objection is misconceived: each party
is entitled to know the outline of the case that his adversary is going
to make against him, and to bind him down to a definite story.

However, in the pleadings before me, there is much more than an outline
provided in the plaintiff’s amended statement of claim, amplified
by the particulars provided thus far.

19 The editors of The Supreme Court Practice 1999 (Sweet &
Maxwell, 1998), more commonly referred to as The White Book,
comment at para 18/12/2:
The purpose of pleadings is not to play a game at the expense of the
litigants but to enable the opposing party to know the case against
him. There is a tendency to forget this basic purpose and to seek particulars
which are not necessary when in truth each party knows the others’
case (Trust Securities Holdings v. Sir Robert McAlpine & Sons
Ltd (1994) The Times, December 21, CA).

20 The foregoing principles are reiterated in Tan Hoe Kock v Ali
Akarbara bin Mangudin [1997]
4 MLJ 311 at 320 where the court warned:
[There may be] instances when a defendant requests for particulars purely
as a matter of harassment of the plaintiff or as a fishing expedition.
Particulars ought not to be given in every case as of right. It is a
discretionary right vested with the court to be exercised upon a study
of the pleadings and the averments in the affidavit in support of the
application for particulars.

21 As respects the comment in Tan Hoe Kock that “particulars
ought not to be given in every case as of right”, I would like
to add, however, that particulars ought to be provided as a matter of
course in relation to averments such as fraud, conspiracy, dishonesty,
misrepresentation and the like.

22 Returning to the issues at hand, save for the limited items on which
the plaintiff is required to provide best particulars, the remainder
of the particulars requested by the defendants is to a large extent
excessive. It is an exercise in dilatoriness and any further indulgence
is to promote prolixity and gamesmanship with regard to the proceedings
at hand. In the result, I disallow the defendants’ appeal save
as to the items specifically mentioned. My orders herein however, do
not preclude the defendants from seeking further orders from the court
hearing this action.

23 As regards the appeals of the plaintiff in RA 17/2004 and RA 18/2004
on the question of costs, I am of the view that the decision by the
assistant registrar cannot be faulted and her order that there be no
order as to costs is to remain. As regards RA 15/2004 and RA 19/2004,
having regard to the manner in which the said appeals have been pursued
and argued, I order that the defendants shall pay to the plaintiff three-quarters
of the costs in any event. I should mention presently that in relation
to the costs order, I did bear in mind the principles re-stated in Tullio v Maoro [1994]
2 SLR 489 at [22] to [24] adopting Re Elgindata Ltd (No 2) [1993] 1 All ER 232.

Order accordingly.

Reported by Ang Ching Pin.