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(b)
Applications for further and better particulars
As between themselves, the parties ought to have leeway to request, by
correspondence, such further and better particulars of each other's pleadings as they
consider desirable. However, where voluntary particulars are refused, applications to
the court for particulars to be ordered should only be launched where there is a
genuine need for clarification of the nature of the other side's case in order to ensure
fairness or to avoid wasting costs. Attempts should also be made to schedule any such
applications to be heard at general directions hearings rather than as specific pieces of
satellite litigation.
As emphasised in McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775, given the
modern practice of requiring witness statements, expert reports and so forth to be
exchanged, satellite litigation merely to clarify the pleadings is seldom necessary. A
pleading which conveys the nature of a party's case, stating the material facts, should
not attract an application for particulars even if certain details (which are peripheral or
likely to emerge in the usual course) are not disclosed. The Working Party is of the
view that the rules should make this clear and that unnecessary applications should
attract appropriate costs sanctions.
The present rule, O 18 r 12(3), provides as follows :-
"The Court may order a party to serve on any other party particulars of any claim, defence or
other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or
a statement of the nature of the case on which he relies, and the order may be made on such
terms as the Court thinks just."
It is desirable that this should be amended so that, as with orders for specific
discovery, orders for further and better particulars will only be made where this is
necessary for disposing fairly of the cause or matter or for saving costs.
Recommendation 34: The existing rule should be amended to make it clear
that a court will only order delivery of further and better particulars where such
order is necessary for disposing fairly of the matter or for saving costs.
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