About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 172
|
|
Owners And Parties who bear risk in and to the Pontoon 'Margaret' and the Cargo of two Floating Docks and Twelve Barges v MT 'Salvaliant' (Application to Compel) (AC81/2009, AC144/2010) [2015] ZAWCHC 172 (16 November 2015)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: AC81/2009
Name
of ship: MT ‘Salvaliant’
In
the matter between:
THE
OWNERS AND PARTIES WHO BEAR RISK
IN
AND TO THE PONTOON ‘MARGARET’ AND THE
CARGO
OF TWO FLOATING DOCKS AND TWELVE
BARGES
...................
Applicant/Plaintiff
And
THE
MT
‘SALVALIANT’
..................................................................................
Respondent/Defendant
Admiralty
action in rem
Case
No: AC144/2010
Name
of ship: MT ‘Salvaliant’
In
the matter between:
L
J BOER HANDEL
B.V
......................................................................................
1
st
Applicant/Plaintiff
L
J BOER VASTGOED
B.V
................................................................................
2
nd
Applicant/Plaintiff
And
SEMCO
SALVAGE (VI) PTE
LTD
.............................................................
1
st
Respondent/Defendant
POSH
SEMCO PTE LTD
Admiralty
action in personam
Coram
:
BOZALEK J
Heard:
15 -17 September 2015 & 5 – 6 October 2015
Delivered:
16 NOVEMBER 2015
JUDGMENT
– APPLICATION TO COMPEL
BOZALEK
J:
[1]
This is an admiralty action in which the
plaintiffs’ complaint against the defendant is in delict,
alleging that the latter
negligently allowed their pontoon, floating
dock and barges to strand at Jacobsbaai on the South African West
coast. Its craft
were wrecked and plaintiff now claims significant
damages from the defendants.
[2]
The defendants now seek an order directing
that the plaintiffs furnish certain particulars sought in a further
request for trial
particulars dated 30 April 2015.
[3]
The plaintiffs replied to the request on 26
May 2015 but the defendants were dissatisfied with the plaintiffs’
refusal to
provide any further particularity in certain respects.
[4]
The litigation in this matter commenced as
long ago as 2009 and the plaintiffs’ particulars of claim were
initially only 16
paragraphs long. In March 2014 the defendants filed
a request for particulars for trial totalling 42 pages and comprising
201 main
paragraphs. The plaintiffs’ reply to the
defendants’ original request ran to 57 pages. A further reply
was filed
of 124 pages (including annexures). The latest request for
trial particulars runs to 59 pages comprising 224 main paragraphs.
The
plaintiffs furnished a reply comprising of 51 pages, excluding
annexures.
THE
GENERAL PRINCIPLES APPLICABLE
[5]
Rule 13 of the Admiralty Rules
provides as follows:
‘
13
Request for Further Particulars
1.
At any time after the close of pleadings a party may deliver a
request for further
particulars with regard to the pleading of any
other party to the action for the purpose of enabling the party
delivering the request
to prepare for trial.
2.
(a) Particulars may be requested
of a denial or
with regard to any matter deemed to have been put in
issue.
(b)
It shall not be an objection to any such request that the purpose of
the request is to obtain
an admission of a matter placed in issue.
3.
Any answer to a request for further particulars shall bind the party
giving the
answer in relation to all parties to the action and not
only in relation to party requesting the particulars.’
[6]
It is well established that the purpose of
permitting a party to call for further particulars for trial is:
1.
to prevent surprise;
2.
that the parties should be told with
greater precision what the other party is going to prove in order to
enable his opponent to
prepare his case to combat such allegations;
and
3.
having
regard to the aforegoing, nevertheless not to tie the other party
down and limit his or her case unfairly at the trial.
[1]
[7]
More recently in
Ruslyn
Mining and Plant Hire Ltd v Alexcor Ltd
[2012] 1 All SA 317
(SCA) at para [18] Heher JA gave the following
exposition regarding further particulars for trial:
‘
To
deal first with the principle, the case as cited by the learned Judge
all deal with applications to amend pleadings. Further
particulars
for trial are not pleadings. The opportunity to request them arises
after the close of pleadings: Uniform Rule 21 (2).
They are limited
to obtaining information that is strictly necessary to prepare for
trial. They do not set up a cause of action
or defence by which a
party is, in the absence of amendment or tacit concurrence, bound and
by which the limits of his evidence
are circumscribed. Nor can they
change an existing cause of action or create a new one (as the trial
Judge appears to have believed).
The purpose of particulars for trial
is to limit waste of time and costs by providing the other party with
additional insight into
the case which has been pleaded, thus
avoiding, where possible, delays or postponements to seek evidence to
meet a case. See for
example, Thompson v Barclays Bank DCO
1965 (1)
SA 365
(W) at 369 D – E … Such particulars are only
required if and when the other party asks for them and what will be
furnished
is to a large extent dependent on the skill and foresight
adopted in the formulation of the request. Because they are not
pleadings
they do not limit the scope of the case being made by the
party that supplies them. A party has a right to rely on all and any
evidence that is admissible and relevant to his pleaded cause and
defence and, save within the parameters set by the purpose of
such
particulars insofar as ensuring a fair trial is concerned, no
stultification of that right should be permitted. Thus, unless
there
is clear evidence of bad faith in furnishing of the original further
particulars or in the withholding of the intention to
change the
thrust of the evidence or irremediable prejudice to the other party
caused by reliance on incorrect or insufficient
particulars furnished
by his opponent relevant evidence which goes beyond the terms of
particulars for trial should be admitted
subject to a postponement,
if necessary and an appropriate award of costs to clear the element
of surprise’.
[8]
In the aforementioned case of
Samuels
,
Ramsbottom J, dealing with the question of what constitutes
particulars stated:
‘
An
examination of the cases in our courts to which we were referred
shows that it is in this sense that the word ‘particulars’
is used. The particulars required ‘to fill in the picture of
the plaintiff’s claim’ may be required in order
that the
defendant may plead to the claim – in which case they will be
ordered before plea. Or they may not be required to
enable the
defendant to plead to the declaration but they may be required to
prevent him from being taken by surprise at the trial
and to enable
him to prepare his case; in that event they may be ordered after plea
and before trial. But in either case, the facts
which the plaintiff
is required to state are facts which ‘fill in the picture of
the plaintiff’s cause of action’;
they are not facts
which form no part of the plaintiff’s cause of action but which
the defendant wishes to allege and upon
which he wishes to file a
plea and confession and avoidance.
…
The
case is no authority for the proposition that a plaintiff can be
ordered to supply information which forms no part of his cause
of
action to enable his opponent to formulate a defence … or the
defendant may require the particulars in order to avoid
being taken
by surprise at the trial and to enable him to prepare his defence …;
in the latter case he requires to be told
with greater precision what
the plaintiff is going to prove at the trial so that he may prepare
to combat the plaintiff’s
allegations.’
[9]
In
Purdon v
Miller
1961 (2) SA 211
(AD) the Court
held that whilst it was fundamental that a party should be adequately
apprised of the case he has to meet, ‘
the
ingenious inquisitor should not be permitted, under the guise of a
request for further particulars of a pleading, in effect
to submit a
series of interrogatories to the opposite party. The increasing
tendency on the part of practitioners to do, or attempt
to do, just
that is to be deprecated. Properly used in appropriate cases, the
further particulars procedure is a useful procedure.
Its true
function, however, is neither to afford a refuge to the slovenly
pleader nor to be the vehicle of what in reality amounts
to a fishing
expedition’.
[10]
I can see no reason why these restrictions
should not apply to Admiralty matters and this conclusion is not
weakened by the absence
of the words ‘
strictly
necessary’
in Admiralty Rule 13.
The particularity sought must at the very least be reasonably
necessary. I accept furthermore, that the particulars
which are
sought must relate to ‘
facts’
as opposed to ‘
evidence’
as appears from the judgment of Munnik AJ in
Hardy
v Hardy
1961 (1) SA 643
(WLD). In that
matter the learned judge held that where a party has pleaded a bare
denial of the allegations made by his opponent
the court will not
order such party to give particulars of any matters placed in issue
by such a denial. It must be noted, however,
that this ruling is in
effect countermanded by the provisions of Admiralty Rule 13(2)(b)
which states that it ‘
shall not be
an objection to any such request that the purpose of the request is
to obtain an admission of a matter placed in issue’
.
Nonetheless, the following general remarks made by Munnik AJ (as he
then was) are of assistance in determining the reach of the
rule in
the present circumstances:
‘
Mr.
Schwarz contended that, if the particulars sought were not furnished,
he may be taken by surprise by the nature of the plaintiff's
evidence. I fail to see how he can be taken by surprise by 'the
nature of her evidence', because, on the pleading, he must reasonably
anticipate 'the nature of her evidence', viz. that her financial
circumstances have not altered. If his fear is based on the fact
that the details of the evidence which she produced in this
regard may come as a surprise to him, this, in itself, does not
entitle him to such particulars, as he will then be merely
experiencing one of the hazards of his profession, as there is no
rule
which obliges a party to disclose the details of his, or her,
evidence. On the contrary, there is ample authority indicating
that a party is not entitled to the details of his opponent's
evidence. Mr. Schwarz also contended that in the absence of
particulars,
he will not know what evidence to lead. The answer to
this is that the defendant has made the allegations in the pleading
and must,
therefore, lead such evidence as he has to his disposal
(sic). A simple analogy will show the fallacies inherent in the
contentions
advanced on behalf of the defendant. In running down
cases one frequently finds an allegation that the defendant was
travelling
at an excessive speed, and as frequently one finds that
this allegation is denied. It is true that by such denial the
question
of the defendant's speed is put 'in issue', but it would be
a startling proposition indeed that defendant, by pleading such
denial,
is obliged to give particulars of the speed at which he was
in fact travelling, although in fact the question of speed is in
issue.
The plaintiff in such a case knows that he has to lead
evidence of the excessive speed which he has alleged, and he knows
that
there will be evidence by the defendant to the contrary.
Clearly, therefore, he is both able to prepare his own case,
and
cannot be said to be taken by surprise if the defendant does lead
evidence negativing the allegation of excessive speed, even though
plaintiff does not, in advance, have the details of such evidence at
his disposal’.
[11]
Against this background of the general
principles applicable I turn to the specific request.
PARA
[66] AND [142] OF THE REQUEST (PARA [64] AND [134] OF THE TRIAL
PARTICULARS)
[12]
LJ Boer Handel BV advanced a claim
for loss of profits in the amount of €13,132,80.00,
alternatively €9,367,952. Having
regard to annexure POC1 to the
particulars of claim the larger sum is comprised of a claim for
€8,491,080 alternatively €4,726,952.00
in respect of the
loss of use of the floating dock plus a claim of €4,641,000.00
in respect of the loss of the use of the
pontoon. The claim in
relation to the floating dock is brought by Handel and Vastgoed
whilst the alternative claim in respect of
the floating dock is
brought by Vastgoed jointly with Handel or in the alternative to
Handel. The claim in respect of the pontoon
is brought by Handel and
Vastgoed. In para [66] of the request the defendant seeks
particularity regarding the nature of the profits
that Handel claims
it has lost in the following terms:
‘
66.
What is the nature of the profits that LJBH claims that it has lost?
In particular, but without
derogating from the generality of the
aforegoing, in relation to both of the amounts claimed, do the
plaintiffs contend that:
66.1
LJBH’s claim relates to the rental of the floating dock by or
to another entity? If so, the identity
of the entity is required.
66.2
LJBH’s claim relates to the operation of the floating dock by
LJBH itself?
66.3
LJBH’s loss of profits arose in some other manner relating to
the floating dock? If so, full
details of the manner in which the
claim arose are required.’
[13]
The plaintiffs respond as follows:
‘
Save
to state that LJBH claims the whole of the amount of € 8,
491,080.00, alternatively €4,726,952.00, in its capacity
as the
owner at the time of the loss, the remaining particulars sought are
not required for any of the purposes envisaged in terms
of the Rules
of Court and are accordingly refused.’
[14]
In addition the defendants seek
particularity regarding the profits that the plaintiffs claim to have
lost arising from the loss
of pontoon in the following terms:
‘
142.
What is the nature of the profits that LJBH claims that it has lost?
In particular,
but without derogating from the generality of the
aforegoing, in relation to both of the amounts claimed, do the
plaintiffs contend
that:
142.1
LJBH’s claim relates to the charter of the pontoon by or to
another entity?
If so, the identity of the entity is required;
142.2
LJBH’s claim relates to the operation of the pontoon by LJBH
itself?
142.3
LJBH’s loss of profits arose in some other manner relating to
the pontoon?
If so, full details of the manner in which the claim
arose are required.’
[15]
The plaintiff responds as follows:
‘
Save
to state the LJBH claims lost charter hire in the amount of
€4,641,000.00 in its capacity as the owner at the time of
the
loss, the further particularity sought is not required for any of the
purposes envisaged by the Rules of Court and is accordingly
refused.’
[16]
However, on the defendant’s own
argument it is already clear from the trial particulars that the
plaintiffs’ case is
that:
1.
at the time of the stranding the floating
dock and pontoon were owned by Handel;
2.
it was intended that in due course the
floating dock and pontoon would be transferred by Handel to Vastgoed
and that the floating
dock would be sold to Vastgoed at its cost
price;
3.
that the floating dock would then be rented
to a third entity (‘SWB’) for operation by it;
4.
that after transfer to Vastgoed the pontoon
would be chartered to third parties;
5.
that Handel’s claim for €8,491,080.00
is made up of earnings the plaintiff alleged the floating dock would
have generated
before income tax, depreciation and amortization
during the provisional claim period of 1 September 2009 – 31
December 2012;
6.
Handel and Vastgoed’s claim for
€4,726,952.00 is made up of rental that the plaintiff’s
alleged that SWB would
have paid to Vastgoed (€700,000.00 per
annum adjusted on a yearly basis for inflation) and that Handel’s
claim for rental
payable to Vastgoed is not included in the loss of
profits claimed;
7.
Handel and Vastgoed’s claims for
€4,641,000.00 are made up of charter hire based on the
assumption that the pontoon would
be chartered out for six years.
[17]
It would appear then that the defendants
already have substantial information concerning the nature of the
loss of profits claimed
and its computation. In my view the real
difficulty of which they complain is the rationality of the basis
upon which Handel and
Vastgoed claim the components parts of the loss
of profits claim, either in whole or in part and either alone,
jointly or in the
alternative to the other party.
[18]
These somewhat confusing permutations
adopted by the plaintiffs appear in turn to arise out of the lack of
certainty as to whether
the claim for loss of profits at the material
time vested either in Handel or Vastgoed. This uncertainty appears to
be compounded
by the complexities relating to the actual and intended
ownership of the various assets and the corresponding lack of legal
certainty
as to which system of law, South African or English,
operates in regard, inter alia, to the question of whether any such
claim
must be advanced by an owner, beneficial owner or both. This
legal debate has been aired and has evolved, at least insofar as
English
law is concerned, through the cases of the ‘Aliakmon’,
Lloyds Law Report [1986] Vol II and Shell UK Ltd and Others v
Total
UK Ltd and Another, a judgment of the High Court of Justice handed
down on 4 March 2010.
[19]
The import and impact of these judgments in
relation to the present matter lies beyond the scope of this
application since in my
view the question of which party is entitled
to bring the loss of profits claimed in the present matter i.e. the
owner or the beneficial
owner, is an issue which can only be
determined on trial.
[20]
On balance, I consider that the defendants
have been given more than adequate information relating to the nature
of the plaintiffs’
claim for loss of profits and are not
entitled to the further particulars demanded under these paragraphs.
PARA
[70] OF THE REQUEST (PARA [68] OF THE TRIAL PARTICULARS)
[21]
The request reads:
’
70.
If not provided in response to the questions posed above, the
plaintiffs are requested to
detail all gross income or revenue and
all costs and expenses taken into account in calculating both of
(Handel’s) claims
for loss of profits’.
[22]
The reply reads as follows:
‘
Save
for what is set out above and in annexures ‘R24’ and
‘R25’, the remaining particulars sought are not
required
for any of the purposes envisaged in terms of the Rules of Court and
are accordingly refused.’
[23]
Annexures R24 and R25, provided by the
plaintiffs gives a highly detailed breakdown of the actual costs of
and earnings from two
floating docks operated by the plaintiffs
between 2009 and 2015 and how those figures were adjusted to provide
the model for the
likely loss of earnings and costs in relation to
the floating dock lost on the stranding insofar as a loss of profits
claim related
to that asset.
[24]
Having regard to the wealth of detail
already provided by the plaintiffs in the aforesaid annexures and
elsewhere, I have no doubt
that the defendants are not entitled to
the further particularity sought.
PARA
[94] OF THE REQUEST (PARAS [90 - 91] OF THE TRIAL PARTICULARS)
[25]
The requests reads:
’
94.
Both annexures FRTP1 and FRTP2 contain a scale on the bottom left
corner of the diagram. The plaintiffs
are requested to make a
rectangle roughly to scale (length of the floating dock being 151.2m
and breadth 33m), on each of FRTP1
and FRTP2, reflecting the position
or positions at which the floating dock was allegedly to be moored
and operated during the claim
period.’
[26]
The reply reads:
’
90.
It was intended that on 1 September 2009 the floating dock would have
been moored in the
waters owned and/or rented by IHC, which waters
form part of the area depicted by the numbers 8637 and 8627 on
Annexure FRTP1.
91.
Save as aforesaid, the remaining particulars sought are not required
for any of the purposes
envisaged in terms of the Rules of Court and
are accordingly refused’.
[27]
The defendants case is that they require to
know with more precision where the plaintiffs intended to operate the
floating dock
at the t'Plaatje development during the provisional
claim period so as to be able to obtain advice from their experts as
to whether
or not it would have been physically possible to operate
the floating dock at the position in question.
[28]
The plaintiffs contend that it is
inappropriate of the defendants to demand by way of trial particulars
that the plaintiff must
draw roughly to scale where the floating dock
was to be situated on diagrams not even referred to in the
defendants’ pleadings.
They point out that the defendants
already know the intended location of the floating dock, which was to
be moored somewhere in
a relatively small area. Bearing in mind that
as a result of the stranding the floating dock never reached Holland
and was never
installed, they point out that its precise location
would always have an element of uncertainty. In these circumstances
to tie
the plaintiffs to a hypothetical location now would be
contrary to the Rules. The plaintiffs point out furthermore that the
tenor
of the defendants’ case appears to be that the defendants
intended setting up a positive defence that the plaintiffs could
not
operate the dry dock at Sliedricht and, to the extent that the
defendants intend relying upon the depth of the water there
as a
factor in this defence, the defendants should have pleaded these
facts. Not having done so, plaintiffs contend that the defendants
may
not embark on a series of interrogatories which are unrelated to any
issue on the pleadings.
[29]
In my view, in the circumstances of this
matter it goes beyond the scope of the Rules to demand that the
plaintiffs indicate on
a diagram where they would have located the
floating dock given that the dock never arrived, the existing degree
of precision already
given and the relatively small area where the
floating dock could have been moored. To the extent that the
defendants may wish
to put up a defence or argue that the floating
dock could not have feasibly have operated at the development, they
already have
sufficient particularity from the plaintiffs of the
intended site for the location of the dock to prepare such case.
These particulars
then are not compellable.
PARAS
[104 – 105] OF THE REQUEST (PARA [100] OF THE TRIAL
PARTICULARS)
[30]
The request reads:
‘
104.
The plaintiffs are required to specify the maximum (should read
‘minimum’) depth of water required
for the operation of
the floating dock.
105.
What was the depth of the water at the location or locations at which
the floating dock was allegedly
to be moored in situ and operated at
t’Plaatje?’
[31]
The reply reads:
‘
Save
to state that the depth of the water and the substrate thereunder
were sufficient for the operation of the floating dock, the
remaining
particulars sought are not required for any of the purposes envisaged
in terms of the Rules of Court and are accordingly
refused.’
[32]
The defendants’ case is that they
need to know what the depth of the water is at the position in
question to enable them to
properly brief an expert to advise whether
it would have been possible to operate the floating dock at that
location during the
claim period as alleged by the plaintiffs.
[33]
The plaintiffs’ case is that the
defendants know the specifications of the floating dock and
apparently intend to do a bathymetric
survey of the t’Plaatje
waters in any event. In the result the defendants will obtain
whatever information they could possibly
require concerning the depth
of water in the development. They contend furthermore, that the
particularity sought does not relate
to causation i.e. whether the
stranding was the cause of the loss or whether the proposed floating
dock could ever operate there
in the first place, since any
insufficiency in the depth of the water would have been corrected by
dredging and would merely have
impacted upon the quantum of the loss.
[34]
In para 103 of the request the plaintiffs
were asked to specify the submerged draught and operating draught of
the floating dock
and were advised, in para [99] of the reply, that
these figures were approximately 3.2m if submerged and 0.5m if
unsubmerged. In
my view that is sufficient information regarding the
specifications of the floating dock to prevent the defendants from
being taken
by surprise at the trial and to enable them to prepare
any defence relevant to this point.
[35]
Regarding the second of the questions or
requests the plaintiffs point out that the defendants have not
pleaded any defence to the
effect that it was not lawful or not
physically possible to operate the floating dock at all; furthermore,
that the defendants
know well that the plaintiffs intended to operate
the floating dock in those particular waters and all of the
specifications and
plans for the floating dock had been previously
discovered.
[36]
For much the same reasons as apply to the
request dealt with in the latter parts of paras 28-29 above I
consider that having regard
to the purposes of the Rule the
defendants are not entitled to the further particulars sought. In my
view they will not at all
be hamstrung in briefing an expert to
advise on the feasibility of the floating dock project at t’Plaatje
or mounting any
defence or attack upon the basis of the claim in the
respects envisaged. These particulars may not be compelled.
PARA
110 – 111 OF THE REQUEST (PARA 105 – 107 OF THE TRIAL
PARTICULARS)
[37]
In para 109 of the request the plaintiffs
were asked whether any agreements had been concluded between them
and/or any other entity
in the Boer group of companies on the one
hand and/or the Sliedrecht Municipality, on the other in relation to
the mooring of the
floating dock and its operation at t’Plaatje.
In response the plaintiffs advise that an agreement had been reached
between
Vastgoed and the Municipality and made reference to a minute
of such meeting.
[38]
The request reads:
‘
110.
In relation to the paras 108 and 109, if any such agreement(s) were
concluded, and were in writing, the plaintiffs
are requested to
identify the agreement(s) in the discovered documents.
111.
Further in relation to the above paragraphs, if any such agreement(s)
were concluded, and were oral,
the following particulars are
requested in relation thereto:
111.1
when and where was/were the agreement(s) concluded?
111.2
who were the contracting parties?
111.3
who represented the respective parties in concluding the
agreement(s)?
111.4
what were the terms of the agreement(s).’
[39]
The reply reads:
‘
105.
Part of the agreement between IHC and/or IHCB and LJBV, and part of
the agreement between Sliedricht Municipality
and LJBV is recorded in
the minute of a meeting at which Sliedricht Municipality, IHC, LJBV
were represented, and an English translation
thereof is annexed
hereto marked ‘R26’ (‘February 2009 Minute’).
106.
At all material times in these negotiations, LJBV acted on its own
behalf and/or on behalf of SWB and/or
any other company in the Group
which ultimately would have operated the floating dock.
107.
Save as aforesaid, the particularity sought is not required for any
of the purposes envisaged by the
Rules of Court and is accordingly
refused.’
[40]
The defendants’ case is that the
existing answer is inadequate and they require the particulars
requested in order to
be able to properly brief their experts to
advise on whether the plaintiffs had any entitlement or prospect of
operating the floating
dock at the t’Plaatje development during
the provisional claim period and that whether or not the plaintiffs
were possessed
of all the required private law permissions to moor
and operate the floating dock at the t’Plaatje during that
period is
one of the issues in dispute. The plaintiffs’ case is
that the defendants have already been furnished with a minute of the
meeting between various interested parties in the Sliedricht
Municipality. They add that since the floating dock never arrived
no
agreements were formalised and accordingly the defendants are not
entitled to the further particulars which they seek. They
contend
furthermore that the further particulars sought constitute evidence
to which the defendants are not entitled.
[41]
Two difficulties arise, however, for the
plaintiffs, namely, that it is not the tenor of their reply that no
such agreements exist
or that any such documentation evidencing such
agreements is already in the hands of the defendants; secondly, their
reply to the
effect that ‘
part of
the agreement’
is recorded in the
minute logically implies that there is another part of the agreement,
either oral or written, elsewhere but
which has not been identified
by the plaintiffs. Given the potential importance of any such
agreement, whether written or oral,
and its relevance to the issue of
whether the floating dock could have been lawfully operated at the
t’Plaatje during the
claim period, I consider that the
defendants are entitled to the further particulars sought.
[42]
In essence the plaintiffs must indicate
whether, extending beyond the minute, there were any other
agreements, written or oral,
which were concluded and must respond to
the questions posed in para [111] in relation thereto.
PARAS
112 – 114 OF THE REQUEST READ WITH PARAS 125.4 - 125.6 THEREOF
(PARAS 108 READ WITH PARA 118 OF THE TRIAL PARTICULARS
[43]
The defendants did not
persist with their prayer that the plaintiffs be compelled to furnish
the particulars requested herein but
reserved their right to renew
their application in due course should it prove necessary to do so.
PARA
145 OF THE REQUEST (PARA 140 OF THE TRIAL PARTICULARS)
[44]
The request reads, to the extent that it is
relevant:
‘
144.
For what period does LJBH and/or LJBV claims loss of profits? A start
date and an end date is required.
145.
if not provided in response to the questions posed above, the
plaintiffs are requested to detail all
gross income or revenue and
all costs and expenses taken into account in calculating both
parties’ claims for loss of profits’.
[45]
The reply reads:
‘
140.
The amount of €4,641,000.00 reflects the gross income or
revenue. The costs and expenses associated
with the operation of the
pontoon would have been borne by the charterers’.
[46]
The defendants’ case is that they are
entitled to details of the costs that would have been incurred in
operating the pontoon
and earning profits therefrom so as to be able
to brief experts to assess the reasonableness of the plaintiffs’
claim.
[47]
In their founding affidavit the defendants
contend that it is inconceivable that Vastgoed would not have
incurred any expenses in
carrying on the business as the pontoon
owner and operator and give examples of such expenses.
[48]
The plaintiffs point out that this is an
instance of where the defendants are in effect interrogating the
reasonableness of their
response inasmuch as they contend that the
answer is not correct. As they correctly point out, however,
such a contention
does not create an entitlement to further
particulars i.e. principally for the purpose of assessing the
‘
reasonableness’
of
the particularity already provided by the plaintiff in regard to the
costs and expenses related to the pontoon.
[49]
In the result in my view the defendants are
not entitled to the further particularity sought.
PARA
189 OF THE REQUEST (CORRESPONDING TO PARA 214 OF THE TRIAL
PARTICULARS)
[50]
It is common cause that the pontoon was
insured in terms of a hull contract insurance policy concluded with
the Peoples Insurance
Company of China (‘PICC’). The
plaintiffs replicated that after the stranding ‘
and
in order to ensure that the correct party was paid’
Ningbo concluded a tripartite agreement with PICC and Handel in terms
of which it was agreed that the proceeds of the insurance
policy
would be paid to Handel. Requested to identify the ‘
correct
party’
the plaintiffs responded
that it was Handel ‘and/or’ Vastgoed.
[51]
The request reads:
‘
189.
Who is the ‘correct party’ referred to by the
plaintiffs?’
[52]
The response reads:
‘
214.
LJBH (Handel) and/or LJBV (Vastgoed)’
[53]
The defendants’ case is that they are
entitled to know, for the purposes of preparing for trial, whether
the plaintiffs contend
that the correct party was in fact Handel or
Vastgoed or both Handel and Vastgoed. Their case is further that on a
reading of the
plaintiffs’ particulars of claim there is no
basis for suggesting that Vastgoed was the ‘
correct
party’
and that they require such
particulars inasmuch as the answer will have an effect on the issue
of the plaintiffs’ locus standi
to recover as part of the
alleged damages, the amount claimed in this respect of the pontoon
and whether or not the plaintiffs
are obliged to deduct the proceeds
of the hull contract insurance from their claim.
[54]
For the plaintiffs Mr MacWilliam candidly
conceded that because it was not entirely certain where ownership of
the pontoon lay at
the relevant time the plaintiffs were keeping
their options open as to who the correct party was. He asked,
rhetorically, what
difference any further particularity would make
for the purposes of the defendants’ trial preparation. He
pointed out, furthermore,
that both Handel and Vastgoed fall within
the Boer Group of companies. As I see it the defendants seek to
compel the plaintiffs
to commit themselves to one or other of the
plaintiffs as being the lawful beneficiary of the insurance payments
with a view to
advancing the possible defence or point that one or
other of the plaintiffs had no locus standi to the extent of such
payment.
That issue is, however, one for determination by the trial
court once all the evidence has been led and the particulars sought
rely on the assumption, as yet unproven, that it will make a
difference which party or parties i.e. Handel or Vastgoed, both
within
the Boer Group of companies, was entitled to that particular
insurance payment. Put differently, the particularity sought seeks
to
compel an answer to a question which may very well be a legal
conclusion rather than an issue of fact.
[55]
Whatever the case may be I do not consider
that the particularity sought is necessary for the defendants to
prepare for trial or
that the absence of such particularity will have
the result that the defendants are taken by surprise at the trial. In
the result
the further particularity sought cannot be compelled.
PARA
193 OF THE REQUEST (PARA 218 OF THE TRIAL PARTICULARS)
[56]
The request reads:
‘
193.
Leaving aside the parties’ respective rights and obligations
under the tripartite agreement:
193.1
Do the plaintiffs allege that the first plaintiff was entitled to
payment by the PICC under the hull policy?
193.2
If so, upon what basis do the plaintiffs allege the first plaintiff
was entitled to payment by the PICC under
the hull policy?
193.3
do the plaintiffs allege that Ningbo was entitled to payment by PICC
under the hull policy, and the first plaintiff
entitled to payment
from Ningbo?
193.4
If so:
(1)
upon what basis do the plaintiffs allege that Ningbo was entitled to
payment under the hull
policy by PICC?
(2)
upon what basis do the plaintiffs allege that the first plaintiff was
entitled to payment
by Ningbo?’
[57]
The reply reads:
‘
218
.
Save to state that in terms of the
shipbuilding contract Ningbo was obliged to effect insurance of the
pontoon for and on behalf
of LJBH as well as any entity to whom
Handel may have transferred any interest or title therein, and that
Handel and/or such entities
were entitled to the proceeds of the
insurance payments, the remaining particulars sought are not required
for any of the purposes
envisaged by the Rules of Court and are
accordingly refused.’
[58]
The defendants’ case is that they are
entitled to the particularity requested since this impacts on the
issue of the plaintiffs’
legal right to recover, as part of the
alleged damages, the amount paid under the hull contract of
insurance, and whether or not
the plaintiffs are obliged to deduct
the proceeds of the hull insurance from their claims.
[59]
The plaintiffs’ case is that the
answer provided has sufficient particularity and in any event,
relying on
Hardy v Hardy
(supra), the defendants are not entitled to elicit particularity to
allow it to formulate its defence.
[60]
All the insurance agreements and payment
agreements or provisions are in the hands of the defendants and they
are free to rely on
their interpretation of these documents. To the
extent that they require further particularity it appears to me that
the defendants
are seeking to compel an answer which may well be a
legal conclusion.
[61]
Whatever the case, in my view the
defendants are not entitled to the further particularity sought for
the purposes of preparing
for trial or so as not to be caught by
surprise.
PARAS
194 – 195 OF THE REQUEST (PARA 219 OF THE TRIAL PARTICULARS)
[62]
The request reads:
‘
194.
In concluding the hull loss settlement agreement with PICC, did
Ningbo act:
194.1
On its own behalf? and/or
194.2
As agent for one or both of the plaintiffs?
195.
In the event that Ningbo acted as agent for one of the plaintiffs the
plaintiffs are requested to identify
which was represented by
Ningbo.’
[63]
The response reads:
‘
219.
Both on its own behalf and on behalf of the plaintiffs.’
[64]
The defendants’ case is that they are
entitled to know whether the plaintiffs contend that Ningbo acted for
both of the plaintiffs
jointly in concluding the hull loss settlement
agreement or, in the event of it being alleged that Ningbo acted for
one of the
plaintiffs, whether this was Handel or Vastgoed.
[65]
However, the response given by the
plaintiffs is clear and unequivocal notwithstanding that it may be at
odds with correspondence
passing between the parties. Furthermore,
the particularity sought appears designed to compel a legal
conclusion or position with
a view to the defendants advancing a
special defence relating to locus standi. The Rule relating to trial
particulars does not
encompass of such a purpose.
[66]
In the result the particularity sought
cannot be compelled.
PARAS
201 – 204 AND 210 – 213 OF THE REQUEST (PARAS 225 &
228 OF THE TRIAL PARTICULARS)
[67]
The request reads:
‘
201.
Do the plaintiffs allege that that one of both of them are under a
duty to account to PICC for any amount recovered in damages
from the
defendants relating to the loss of the pontoon?
202.
If so, up to what amount are either or both plaintiffs obliged to
account?
203.
Do the plaintiffs allege that PICC has waived or abandoned any right
of recovery or subrogation which
it might have in relation to the
amount paid by it under the hull policy?
204.
Do the plaintiffs allege that one or both of them is/are pursuing the
claim for damages arising from
the loss of the pontoon at least
partially as agent(s) for PICC?’
[68]
Paragraphs 210 to 213 ask the identical
question in relation to the loss of the barges and/or floating dock.
[69]
The plaintiffs’ response reads:
‘
225.
Save to state that these are matters which arise between the
plaintiffs and PICC, the remaining particulars
sought are not
required for any of the purposes envisaged by the Rules of Court and
are accordingly refused.’
[70]
A similar reply is given in relation
to the particulars sought in respect of the loss of the barges and/or
floating dock.
[71]
The defendants’ case is that in terms
of their special plea they allege that in terms of Chinese law the
insured and recipient
of a payment made by an insurer under a
contract of insurance lose their right to claim any loss that they
might have suffered
in respect of which the insured has been
indemnified by the insurer in terms of the insurance policy up to the
amount of the indemnity.
A right to claim compensation up to the
amount of the indemnity is transferred and assigned to the insurer.
In their replication
the plaintiffs allege that, even if the
defendants’ allegations as to Chinese law are accepted, they
nonetheless deny that
they lost or were deprived of the disputed
right and aver that they are entitled to make this claim by reason of
the fact that
PICC, inter alia, has approved the steps taken and
being taken by the plaintiffs to prosecute the disputed right.
[72]
The defendants’ case is further that
they are entitled to the particulars requested since they are
relevant to the issue of
whether or not the plaintiffs have a legal
right to sue for recovery of amounts paid by PICC and whether the
amounts so paid fall
to be deducted from any damages if the
plaintiffs are held to be entitled to recover from the defendants.
[73]
The plaintiffs’ case is that the
further particularity demanded relates to conclusions of law which
confer no entitlement
to further particulars; furthermore that these
requests relates to the defendants so-called ‘
locus
standi’
defence and that the
defendants are not entitled to seek further particulars in relation
to their special defences.
[74]
In my view the further particularity being
demanded relates to conclusions of law in a situation, moreover,
where the issue of what
system of law applies is still to be
determined. It is not clear to me how the defendants will be hampered
in their preparation
for trial if they are not afforded the
particularity sought. They will no doubt take advice and, if
necessary, lead evidence on
what system of law is applicable in a
situation where the proceeds of insurance policies were received by
Handel or Vastgoed but
where one or more of which nevertheless
proceeds to claim without first deducting the proceeds of such
payments.
[75]
In the result I consider the particularity
sought is not compellable.
PARAS
206 – 209 OF THE REQUEST (PARAS 227 OF THE TRIAL PARTICULARS)
[76]
The request reads:
‘
206.
Notwithstanding that the amount of €12,280,000.00 was apparently
paid into the first plaintiff’s
account at Rabobank, do the
plaintiffs admit that each of them was paid by PICC under the cargo
policy in proportion to their respective
insured interests?
207.
Was the payment allocated to the plaintiffs in proportion to their
respective insured interests?
208.
If so, what amount was allocated to each plaintiff?
209.
If the amount was not allocated to each plaintiff in proportion to
their respective insured interests,
then to whom was the payment
allocated and in what proportion?’
[77]
The response reads:
‘
227.
Save that the plaintiffs admit that they were paid pursuant to the
PICC Cargo Policy, the remaining particulars
sought are not required
for any purposes envisaged by the Rules of Court and are accordingly
refused.’
[78]
The background to this request is that the
plaintiffs aver that in February 2010 PICC paid the aforesaid sum
into Handel’s
account at Rabobank, such payment being made
pursuant to PICC’s obligations under the cargo contract of
insurance. The plaintiffs
allege, furthermore, that at the time of
the stranding the barges were owned by Vastgoed and the pontoon by
Handel. It is common
cause that PICC insured the barges and the
floating dock against all risks.
[79]
The defendants’ case is that they are
entitled to the particulars sought inasmuch as the information is
relevant to the legal
right of both the plaintiffs to claim damages,
including those amounts paid to them by the PICC in terms of the
cargo contract
of insurance.
[80]
The plaintiffs’ case is that the
particularity sought concerns the defendants’ special defence
of ‘
locus standi’
and for this reason alone cannot be compelled. They point out that
the ‘
loss settlement agreement’
which provided for the payment of the insurance compensation to the
plaintiffs was itself put up by the defendant and makes no
provision
for an apportionment. In my view this fact gives weight to the
contention that the defendants are not entitled to the
particulars
sought.
[81]
A further relevant factor is that both
Handel and Vastgoed form part of the Boer Group and since they both
advance the claim for
loss of profits, apparently making no deduction
for payments already received, the allocation of any payments
received may well
be irrelevant. In my view, whatever the case may
be, the absence of the particularity sought will not hamper the
defendants in
the preparation of their defence inasmuch as it relates
principally to a defence which they have raised and in respect of
which
they are not entitled to compel the particularity sought.
PARA
217 OF THE REQUEST (PARA 232 OF THE TRIAL PARTICULARS)
[82]
It is also common cause that a contract of
insurance was concluded in the Netherlands in terms of which the
barges were insured
in terms of a policy the insurance described as
the ‘
Buyers Interest Contract of
Insurance’
and that the full
insured sum of €2,734,000.00 was paid after the stranding.
[83]
The request, to the extent that it is
relevant:
‘
216.
Which of the plaintiffs, if any, was the recipient of the payments
made by SAA totalling €2,734,000.00?
217.
Which of the plaintiffs, if any, was the beneficiary of the aforesaid
payments?’
[84]
The plaintiffs response was:
‘
232.
Handel and/or Vastgoed.’
[85]
The defendants’
case is that it is ‘
inconceivable’
that both Handel and Vastgoed could have been the beneficiaries of
the insurance payments given that the plaintiffs allege that
at the
time of the stranding Vastgoed was the owner of the barges and it was
not alleged that Handel was the owner or had any proprietary
interest
in the barges at the material times. The defendants’ case is
further that they are entitled to know the identity
of the
beneficiary of the payment since this is relevant to the legal right
of that party to sue for damages including the amount
of the
insurance payment.
[86]
The plaintiffs’ case, once again, is
that the particularity sought relates to the defendants’
special defence regarding
‘
locus
standi’
and, for the reasons
furnished in relation to the previous particulars dealt with above
the particularity cannot be compelled.
The plaintiffs also contend
that they have provided an answer sufficient for the defendants to
prepare for trial and that the particularity
sought is in reality an
attempt by the defendants to dictate to the plaintiffs how they
should answer the question.
[87]
I am in agreement with the plaintiffs’
reasoning and consider that, for the reasons furnished in relation to
the particulars
dealt with above the particularity sought is not
necessary for the defendants to prepare for trial and cannot be
compelled.
THE
STRIKING OUT APPLICATION
[88]
The plaintiffs have applied to strike out
paras [14] and [18] – [35] of the defendants’ founding
affidavit on the grounds
that they contain averments which are
vexatious and/or irrelevant.
[89]
In the paragraphs in question the
defendants’ deponent has given a lengthy and detailed history
of the plaintiffs’ loss
of profits claimed in the litigation
the formulation of which has gone through a number of permutations
over the years. They argue
further that this lengthy exposition is
necessary in order to give a background to the defendants’
attempt to obtain clarity
on the plaintiffs’ claims through the
request for further particulars and the application to compel.
[90]
For their part the plaintiffs contend that
the background is completely unnecessary since the defendants’
request for further
particulars can relate only to the plaintiffs’
of claim in its present formulation. For that reason all previous
permutations
are irrelevant.
[91]
The plaintiffs are, strictly speaking,
correct in this last submission but in my view the background was of
some assistance, albeit
marginal, in understanding the evolution of
the loss of profits claim/s and in understanding the case which the
defendants seek
to make out for the further particularity which they
wish to compel. In the circumstances, in the exercise of my
discretion I do
not consider that the material objected to falls to
be struck out. In this regard I note that both parties in this
litigation appear
to have been prolix in this and other interlocutory
applications which they have launched against each other.
COSTS
[92]
The defendants have succeeded in compelling
only one of the thirteen items in respect of which they have sought
to compel further
particularity. I do not consider that this can be
regarded as substantial success entitling them to their costs. The
hearing lasted
three days spread over four days and had the
application been directed at only that item in respect of which they
were ultimately
successful, might have been concluded on the first
day. On that first day, 16 September 2015, however, the parties first
concluded
argument in the separation application. In the result the
order which I make is that the plaintiffs are awarded their costs in
the application including the costs of two counsel but limited to two
days of the hearing viz 5 and 6 October 2015.
[93]
The following order is made regarding the
further particulars sought:
1.
The plaintiffs are ordered to furnish the
particulars sought in paras 110 – 111 of the defendants request
for trial particulars
dated 30 April 2015.
BOZALEK
J
APPEARANCES
For the
Applicants/Plaintiffs: Mr RWF MacWilliam SC
Mr
D Cooke
Instructed
by: Assheton-Smith Inc
For
the Respondents/Defendants: Mr M Wragge SC
Mr
JD Mackenzie
Instructed
by: Norton Rose Fulbright SA
[1]
See
in this regard
Thompson
v Barclays Bank DCO
1965 (3) SA 365
(W) at 369 D – E. Note that the phrase ‘
to
combat counter allegations’
in paragraph D – E of
Thompson
is clearly incorrect and confusing. It emanates from the judgment in
Samuels
and Another v William Dunn and Co SA (Pty) Ltd
1949
(1) SA 1149
(T) at page 1159 where Ramsbottom J expressed the
purpose of further particulars as being ‘
to
be told with greater precision what the plaintiff is going to prove
at the trial so that he may prepare to combat the plaintiff’s
allegations’
.