If an opposing party has served you with a statement of claim or notice of defence, you will observe that it is divided into paragraphs. Each of these paragraphs contains a separate allegation, matter or fact relevant to the case. You may also notice that the sub-heading “PARTICULARS” follow some of those paragraphs. Here is an example:
“As a result of the defendant’s failure to pay the plaintiff the amounts stated in the relevant invoices, the plaintiff has suffered loss and damage.
The sum of $2,000.00 remains owing.”
We have previously dealt with the purpose of pleadings (i.e. court documents such as a statement of claim or notice of defence). In this article, we will explore the role of particulars within pleadings.
What is the Purpose of Particulars?
Particulars have four primary functions:
- To inform the opposition of the matters to be dealt with at trial;
- To control the scope of the pleadings and narrow the issues of fact to be tried;
- To avoid surprise at the trial; and
- To allow for the opponent to prepare.
These functions run parallel to the overall role of a pleading which is to set out all the material facts which form the basis of a claim or defence.
The particulars of a pleading provide the necessary details upon which a more general allegation is founded and intended to be proved at trial.
For example, the court will require a party that is alleging it has suffered loss or damage at the hands of another party to particularise the nature of the damage and how it has calculated the amount.
Additionally, to plead that the other party had the intention to cause harm, it will be necessary for the pleading party to particularise the basis upon which that allegation is made (namely the circumstances giving rise to that inference).
Once a party particularises an allegation in a specific way, it will be bound to run the trial accordingly. If a party seeks to prove its case at trial by relying on allegations that are not pleaded and particularised in its court documents, then the other party may object to it.
What if the Pleading Party Does Not Properly Particularise an Allegation?
If one party relies upon a pleading and there are allegations made within it that are too general to understand or address in the context of the case, the other party may request “further and better particulars” of the pleading.
If the party responding to the request does not provide the particulars within 14-28 days (depending on the jurisdiction), the party making the request may make an application to the court to have those particulars provided.
Can a Party Respond Directly to the Other Side’s Particulars in its Pleading?
The answer is that there is no reason to do so. That is because the responding party can plead the facts that it believes are necessary to address the substantive allegations the other party makes.
In doing so, it is addressing the other side’s particulars without getting drawn into a fight about minor or peripheral details that will not determine the case one way or the other.
For further information on pleadings and particulars or the litigation process more generally, get in touch with our specialist disputes lawyers on 1300 544 755.