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[2014] ZAGPPHC 229
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Panagiotopoulos v Liberty Group Ltd (3955/2011) [2014] ZAGPPHC 229 (25 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 3955/2011
DATE OF HEARING: 10
FEBRUARY 2014
DELIVERED:
25/4/2014
In
the matter between:
NICHOLAS
PANAGIOTOPOULOS APPLICANT
and
LIBERTY
GROUP
LIMITED RESPONDENT
J
U D G M E N T
MALI,
AJ
INTRODUCTION
[1]
This
is an application to compel the respondent
to
provide further and better particulars in response to the applicant’s
request for further particulars for the purposes
of trial.
[2]
The
respondent is an insurance company which formerly employed the
applicant as an insurance broker whose remuneration was in the
form
of commission.
BACKGROUND
[3]
In
the main action, the respondent (plaintiff) instituted action
against the applicant (defendant) for payment of the
sum
of R249, 736,05 in respect of
inter
alia
:
3.1
advances
in respect of commissions, alternatively;
3.2
commissions
paid in respect of contracts which were changed, surrendered,
cancelled, made paid up, lapsed or went out of force subsequent
to
such payments.
[4]
The
essence of the respondent’s claim is found in paragraphs 8.1,
8.2 and paragraph 9 of its particulars of claim. Paragraphs
8.1, 8.2
and 9 of the respondent’s particulars of claim articulates the
crux of the claim as follows:
“
8.
During the period for which the
agreement was in force:
8.1.
In accordance with its obligations aforesaid, the Plaintiff made
payment of commissions to the Defendant
and the Defendant accepted
such payments.
8.2
Certain commissions paid as aforesaid were in
respect of inter alia advances in respect of Commissions to
be paid,
premiums unpaid and/or premiums returned to policyholders
and
commissions
paid in respect of Contracts which were changed, surrendered,
cancelled, made paid up or lapsed or went out of force
subsequent to
such payment.
In
accordance with the provisions of the Agreement, the Plaintiff is
entitled to reclaim all monies comprising inter alia
advances in
respect of Commissions to be paid
alternatively
commissions
paid in respect of Contracts which were changed, surrendered,
cancelled, made paid –up or lapsed or went out of
force
subsequent to such payments.”
[5]
The
applicant in its heads of arguments
makes
the following submissions:
5.1
Commissions paid
:
Detail
of commissions paid to the defendant which would form the
subject-matter of claw back claimed by the plaintiff which detail
is
to include the date of payment, the amount of each payment and the
detail of the policyholder and the commencement date of each
policy;
5.2
Detail
with reference to the allegation of “commissions paid as
aforesaid” detailing the basis for the payment of commission
aforesaid to include:
5.3
whether
it relates to advances in respect of commissions to be paid, premiums
unpaid, premiums returned to policyholders; and
5.4
whether
or not commission payments were in respect of contracts that were
changed, surrendered, cancelled , were made paid up and/or
lapsed;
5.5
Claw backs:
Details
of the name of the policyholder, policy number, date, amount of
advances, details of when unpaid premiums returned, the
date on which
the premium was paid and the date upon which the premium was returned
and the same in respect of a changed contract,
a surrendered
contract, a cancelled contract, a paid up contract, a lapsed contract
or a contract that went out of force;
5.6
Detail
of how the amount reclaimed is made up consisting
inter
alia
of advances, change contracts, surrendered contracts, cancelled
contracts, contracts made paid , contracts that lapsed or contracts
that went out of force with details in respect of the policy the
policyholder, the commencement date of the policy and whether
the
policy was terminated.
ARGUMENTS
[6]
The
respondent in its heads of arguments submits that in respect of
paragraph 8.1, “
the
payments referred to in paragraph 8.1 were made while the agreement
was in force and the defendant is referred to the bundles
annexed
being the Plaintiff’s summary of transactions 2003-2012 and
Policies details – NR Panagiotopoulos 2003-2012
(“The
plaintiff’s Summary of Transactions 2003-2012 and Policy Detail
2003- 2012”
[7]
The
Respondent submits further in respect of 8.2 and 9 that “
Insofar
as the defendant is entitled to the information sought, the defendant
is referred to the plaintiff’s summary of Transactions
2003-2012 and Policy Detail- N R Panagiotopoulos 2003-2012 which was
served upon the defendant’s attorney of record on 9
May
2012.The further information requested constitute a matter for
evidence to which the defendant is not entitled”.
[8]
It
became apparent during the hearing that all the particulars required
by the applicant are to be found in the respondent’s
summary of
Transactions 2003-2012 and Policy Detail 2003-2012
consisting of 673 ( six hundred and seventy three) pages.
[9]
The
respondent’s answering affidavit was deposed to by its attorney
of record, Mr Christie. The respondent in his answering
affidavit
stated that the applicant is a duly qualified Insurance Intermediary
with noteworthy industry experience and therefore
it is not prudent
for the applicant to describe the information supplied by the
respondent as “a voluminous, indecipherable
document”.
[10]
In
the main the respondent submitted in its papers that the applicant is
in possession of the information sought in its request
for further
particulars.
[11]
The
applicant in his response to the above submits that he was
contractually bound to delete all the information relating to the
respondent’s business upon termination of the contract in 2009.
The respondent does not dispute the submission.
[12]
The
applicant contends that the respondent’s particulars are not
informative enough and the commission statements provided
by the
respondent are of no assistance as they comprise of repetitive
entries which require clarity. In a nutshell the particulars
further
provided by the respondent did not inform the applicant with greater
precision what the respondent sought to prove in order
for the
defendant to prepare his case. It is because of the above reasons
that the applicant launched this application.
[13]
The
applicant submits that the respondent did not provide the applicant
with the schedule of commission, an agreement governing
the payment
of commission, which is crucial in assisting the applicant to plead
and adequately prepare for the trial. The applicant`s
counsel further
argues that it is not clear in the absence of the schedule of
commission whether the commission is calculated over
a two year
period or not.
[14]
The
essence of the applicant’s submission is the request for clear
particulars in respect of the exact policies which lapsed,
changed,
reduced and which policies were taken over by another broker or were
taken over by Discovery. Furthermore in respect of
the commission
statements the respondent discovered statements for the period of 16
June 2009 to 24 August 2009, a period after
the termination of the
agreement. The agreement was terminated in June 2009.
[15]
Counsel
for the applicant further submitted that it was not clear how the
claw backs were calculated. The applicant contends that
the
respondent’s attorney of record, Mr Christie is neither a
broker nor someone who worked in the insurance industry. The
applicant further contends that Mr Christie is acting on hearsay
evidence and is misguided when he directs the applicant to a summary
of schedule referred to as “a complete set of documents”.
Mr Christie in the answering affidavit went as far
as to say “
I
do not deal with the basis of such claw back and refer the honourable
court to the Respondent’s summons and particulars
of claim in
which the cause of action is detailed.”
[16]
The
applicant’s counsel also submitted that the contents of
paragraphs 27 to 29 of the answering affidavit do not make sense
and
or assist the applicant to plead. He made an example that the claw
backs referred to are for the periods 2007 and 2008 and
that the
applicant left the employ of the respondent in 2009. From the ensuing
paragraphs it is not clear why the commission is
being clawed back.
He further submitted that the onus is on the respondent to show what
was clawed back.
[17]
The
applicant’s counsel submitted further that the respondent
realised that Mr Christie, the attorney for the respondent and
the
deponent to the answering affidavit was ignorant of the correct
facts hence the respondent later filed a supplementary
affidavit on
20 January 2014.
[18]
He
further submitted that on 20 January 2014 the respondent discovered
further documents in excess of 1000 (one thousand) pages.
These
documents are in addition to all the information necessary to prepare
for the trial and a complete bundle of Commission statements
referred
to in the answering affidavit.
[19]
The
applicant submits that the supplementary discovery by the respondent
still does not provide a schedule of commission, a crucial
contractual document in this matter. In respect of the request for
particularity on commission to be repaid based on claw backs,
the
respondent raised the defence of privacy and or confidentiality
between the respondent and its clients. In response thereof,
the
applicant contends that public privilege or privacy is not found in
common law. Having regard to the facts of this matter,
this court
does not understand how the policies which were written by the
applicant are now subject of litigation and all of a
sudden become
confidential.
[20]
During
the hearing the respondent repeatedly submitted that it did not
matter for the applicant to obtain further and better particulars
of
the formulation of the claims. The reason advanced by the respondent
is that the information required by the applicant is for
evidentiary
purposes. I find this response reckless. This is so considering that
the respondent has pleaded its claims on the same
particulars which
the applicant is called upon to answer in his defence.
[21]
The
respondent’s counsel sought to demonstrate the ease of
obtaining the requested information by the applicant. This was
done
by taking the court through the bundle marked annexure C and other
corresponding documents consisting of between 673 (six
hundred and
seventy three) pages and 1000 (one thousand) pages. In order for the
court to get the detail of each and every transaction
as requested by
the applicant; this court had to hold three separate pages at the
same time trying to link the transactions to
the entries in the
previous pages and or subsequent pages. In the process this court
found that commission payments in respect
of contract that were
changed, surrendered, cancelled, were made paid up and/ or and
lapsed were
all
identified
by the minus signs next to the name of the policyholder, date amount,
etc. without specifically referring to a category
of transaction.
[22]
The
respondent’s counsel confirmed my findings above. Of importance
is that different categories of commission payments which
are claimed
by the plaintiff are all identified by the minus sign and nothing
else. To the above, he submitted that the applicant
is an expert and
is not supposed to find any difficulty in identifying commission
payments.
[23]
As
indicated above, the bundle contains commission statements with
entries showing dates, names of policyholders, amounts and some
minus signs with no clear explanation on what is meant by the minus
signs or exactly to which category the transaction falls. The
respondent when probed by this court indicated that minus signs also
related to reversed policies, a concept which the applicant
should
easily understand as he is an industry expert and furthermore that
some of the policies he wrote for himself were
reversed.
Based on his experience as an industry expert who has written
policies before, he should be in a position to
reconcile
(my
emphasis) and understand the particulars of claim.
[24]
During
the hearing the respondent’s counsel repeatedly emphasised that
the applicant is an expert who understands the insurance
industry and
could therefore easily reconcile and decipher the information
irrespective of the volumes.
[25]
The
respondent ‘s counsel admitted to the voluminous nature
of the document save to say that the particulars are
not
indecipherable as the document clearly shows month by month, week by
week transactions. The respondent argues that the applicant
should
know because he took policies for himself which lapsed and hence he
could have used those policies as examples to get to
his answers.
Furthermore his experience in the insurance industry puts him in a
better position to understand the documentation.
[26]
The
respondent’s counsel further submitted that a careful reading
of the policy details supplied will indicate if there is
a reversal.
It will indicate whether the policy has lapsed. If there is no
reversal, the policy remains in existence or at least
exists longer
than the two year period and in respect of which nothing is claimed.
[27]
I
find the respondent’s argument wanting and not assisting the
defendant at all. The voluminous element of the documents utilised
to
unravel the details could not assist the court in determining the
ease with which the applicant is expected to grasp and/or
obtain
better understanding of the particulars.
THE
LAW
[28]
Rule
21 (2) of the Superior Court Practice states that a party is entitled
to call for such further particulars as are “strictly
necessary” to enable him or her to prepare for the trial. In
general, the purpose of particulars for trial is not to elicit
evidence or information which will emerge on cross- examination. The
purpose of permitting a party to call for the particulars
for trial
is to prevent surprise.
[29]
The
party should be told with greater precision what the other party is
going to prove in order to enable his or her opponent to
prepare his
case to combat counter allegations. However, having regard to the
aforegoing the further particulars are not intended
to tie the other
party down and limit his or her case unfairly at the trial.
[1]
[30]
In
the case of
Thompson
v Barclays Bank DCO
1965
(1) SA 365
(W) at 369F-G, the court correctly states that “
even
if a question relates to a matter for evidence, this would not
preclude a party from being ordered to provide the particularity
sought, if the particulars are required for the proper preparation of
a party’s case.”
[31]
In
the case of Annandale v Bates 1956(3) SA 549 it was held that
“…
.the
object of particulars at this stage is to enable a party properly to
prepare for trial and to prevent him being taken by surprise
by
evidence of a nature he could not reasonably anticipate”.
[32]
In
the present case, the response to the particulars provided to the
applicant is not straight forward. The applicant is still required
to
look at the minus signs and reconcile the details, an exercise which
the respondent seems to be well conversant with. This court
anticipates a surprise during the trial which might prejudice the
applicant.
[33]
The
issue to be determined in this application is whether the particulars
and or further particulars provided by the respondent
are sufficient
to enable the applicant to prepare for trial. This court has regard
to the fact that the particulars required follow
the respondent’s
precision in its particulars of claim. This court finds that the
respondent is very specific in paragraphs
8.2 and paragraph 9 of its
particulars of claim in respect to the categories of policies.
However when called upon to clarify the
categories the respondent
gives a blanket answer requiring the applicant to conduct further
reconciliations.
[34]
In
the case of
Lipschitz
and Schwartz NNO v Markowitz
1976
(3) SA 772
(W) at 775H-776A. “
A
litigant cannot, as it were, throw a mass of material contained in
the record of an enquiry at the Court and his opponent, and
merely
invite them to read it so as to discover for themselves some cause of
action which might lurk therein, without identifying
it. If this were
permissible, the essence of our established practice which is
designed and which still evolves as a means of accurately
identifying
issues and conflicts so that
the
Court and the litigants should be properly apprised of the relevant
conflicts, would be destroyed.”
[35]
It
is clear that the respondent relies,
inter
alia,
on the applicant’s expertise to identify and obtain the
detailed information pleaded by the plaintiff to prepare for his
trial. The respondent by emphasising the applicant’s expertise
of the industry conveniently forgets that the applicant is
a
litigant.
[36]
In
Independent Newspapers
2008 (5) SA P31
paragraph 25, Moseneke DCJ,
held
“
Ordinarily
courts would look favourably on a claim of a litigant to gain access
documents or other information reasonably required
to assert or
protect a threatened right or to advance a cause of action. This is
so because the courts take seriously the valid
interest of a litigant
to be placed in a position to present its case fully during the
course of litigation. Whilst weighing meticulously
where the
interests of justice lie, courts strive to afford a party a
reasonable opportunity to achieve its purpose in advancing
its case.
After all, an adequate opportunity to prepare and present one’s
case is a time –honoured part of a
litigating party’s
right to a fair trial.”
[37]
This
court has to decide whether better and further particulars requested
by the applicant as
a litigant
(
my
emphasis)
are reasonable and valid in assisting the applicant to plead and
prepare for trial.
[38]
This
court finds that the respondent failed to provide further and better
particulars addressing the specifics required in respect
of premiums
unpaid and/or premiums returned to policyholders
and
commissions
paid in respect of Contracts which were changed, surrendered,
cancelled, made paid up or lapsed or went out of force
subsequent to
such payment in terms of paragraph 8.2 of its particulars of claim.
[39]
The
respondent further failed to provide further and better particulars
in respect of all monies comprising inter alia advances
in
respect of Commissions to be paid
alternatively
commissions
paid in respect of Contracts which were changed, surrendered,
cancelled, made paid–up or lapsed or went out of
force
subsequent to such payments.
[40]
The
respondent’s bold and repeated implied submission that the
applicant must be treated as an insurance expert and not as
a
litigant is incorrect. The respondent’s submission seeks to
differentiate the applicant from other litigants, because of
his
expertise.
[41]
The
respondent opportunistically abuses the applicant’s expertise.
In the event that this is a valid argument, the same is
applicable to
the respondent. The court is of the view that if it is this easy to
reconcile and get to the particularity requested
by the applicant,
the respondent as an insurance company itself which might be better
resourced than the applicant would have simply
provided the
information to the applicant. I reiterate that applicant is not
before this court as an insurance expert but as a
litigant and
therefore the respondent’s submission is misplaced. In my view
if it were the case in general, lawyers would
be prohibited to be
legally represented; and the same would apply to doctors in
diagnosing other doctors when it matters.
[42
]
It
is my view that the defence of privacy or public privilege is also
misplaced considering that the applicant once worked on the
details
of the policy transactions requested. In the case of
Independent
Newspapers v Minister for Intelligence Services
above at paragraph 27, Moseneke DCJ sets the law clearly that even
before the advent of the Constitution, courts often, and correctly
recognised that when there is a claim of confidentiality over
information that is sought to be discovered or disclosed other
considerations
of fairness arise. It is my view that in the present
case there is no reasonable confidentiality or privilege sought to be
protected
except to frustrate the applicant in formulating its
defence and or preparing for trial.
THE
ORDER
Having
regard to the foregoing, the following is order is made:
1.
The
respondent is ordered to furnish the applicant with further and
better particulars within 10 (ten) days of the service of this
order.
2.
The
respondent is ordered to pay the costs of this application.
________________________________
MALI, AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, PRETORIA
REPRESENTATION
FOR THE APPLICANT
:
Counsel:
Riaan Booysen
Instructed by: KEITH
SUTCLIFFE & ASSOCIATES
REPRESENTATION
FOR RESPONDENT
Counsel:
Charles Roux
Instructed
by: RC CHRISTIE INCORPORATED
[1]
Van
Loggerenberg and Farlam: Erasmus Superior Court Practice at B1-38