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Cite as: [2014] IEHC 547

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Judgment


Title:	James Elliott Construction Limited -v- Lagan & ors
Neutral Citation:	[2014] IEHC 547
High Court Record Number:	2014 2229 P
Date of Delivery:	20/11/2014
Court:	High Court
Judgment by:	Costello J.
Status:	Approved

___________________________________________________________________________

Neutral Citation: [2014] IEHC 547

THE HIGH COURT

COMMERCIAL

[2014/2229P.]

BETWEEN

JAMES ELLIOTT CONSTRUCTION LIMITED

PLAINTIFF

AND

KEVIN LAGAN, TERRY LAGAN, JOHN GALLAGHER, IRISH ASHPHALT LIMITED & LAGAN HOLDINGS LIMITED

DEFENDANTS

JUDGMENT of Ms. Justice Costello delivered the 20th day of November 2014

1. In these proceedings the plaintiff sues for damages for deceit against the defendants together with a declaration that the plaintiff is entitled to be indemnified by the defendants in respect of any damages that the plaintiff may be held liable to pay or may reasonably pay arising out of claims in respect of works performed by the plaintiff which are defective by reasons of the use of an allegedly defective product which was sold by the fourth named defendant to the plaintiff. At all material times the plaintiff carried on business as a building contractor and construction company and in particular was involved in the construction of the projects set out in the schedule to the Statement of Claim. The first, second and third named defendants are each directors of the fourth named defendant. The fourth named defendant is a limited liability company engaged in the business of selling processed quarried material for use in the construction industry. In particular, it was the owner and operator of a quarry at Bay Lane, Co. Dublin. The fifth named defendant was sued as the holding company for the Lagan Group of companies and in particular the fourth named defendant. In fact it has since come to light that a different company was the holding company during the relevant period for this case and an application to substitute that company as a defendant in place of the existing fifth named defendant was pending when this motion was heard. This motion proceeded on the basis that the fifth named defendant was in fact the holding company of the fourth named defendant at all material times.

2. The core allegation is that the fourth defendant fraudulently represented the quality of its product to the plaintiff and that the fourth defendant knew that the stone it supplied to the plaintiff, as either Clause 804 or 3 Inch Down, was defective. It is fundamental to the plaintiff’s claim that the fourth defendant knowingly or recklessly sold material that it knew did not meet the required standard for products sold as Clause 804 or 3 Inch Down and thereby fraudulently misrepresented the quality of its product. It is said that the fourth defendant either failed to carry out the appropriate tests or alternatively disregarded the results (because they were unfavourable over a lengthy period of time).

3. The allegation against the first to third and fifth named defendants is that they procured the fraudulent misrepresentation on the part of the fourth named defendant in relation to the quality of the material sold. It is alleged that they are thus joint tortfeasors with the fourth named defendant.

4. The proceedings commenced with the issue of concurrent plenary summons dated 4th February, 2014, and statement of claim of the same date. The case was admitted into the commercial list of the High Court by order of Kelly J. on 24th March, 2014, and a direction and timetable was directed in accordance with the agreed suggestion of the parties. Defences were delivered by the defendants in accordance with the timetable on the 19th May, 2014, while reserving their position that the case had not been sufficiently particularised as required in accordance with the Rules of the Superior Courts.

5. The fourth named defendant delivered a notice for particulars on 1st April, 2014, which was replied to on 28th April, 2014. The fourth named defendant sought further and better particulars on 9th May, 2014, and this was replied to on 23rd May, 2014, and 28th May, 2014.

6. The first, second, third and fifth named defendants raised a notice for particulars on 4th April, 2014, which was replied to on 28th April, 2014. They also requested further and better particulars on 14th May, 2014, which was replied to on 28th May, 2014, and 16th June, 2014.

7. The defendants each argue that the claim of fraud/deceit is inadequately particularised. They submit that the plaintiff has failed to provide any particulars of the material facts upon which it intends to rely in support of the allegation of deceit.

8. Principles Regarding the Delivery of Particulars.
Fitzgerald J. in Mahon v. Celbridge Spinning Co. Ltd. [1967] I.R. 1 at p. 3 stated:-

“The whole purpose of a pleading, be it a statement of claim, defence or reply is to define the issues between the parties, to confine the evidence at the trial to the matters relevant to those issues, and to ensure that the trial may proceed to judgment without either party being taken at a disadvantage by the introduction of matters not fairly to be ascertained from the pleadings. In other words a party should know in advance, in broad outline, the case he will have to meet at trial.”

In Cooney v. Browne [1985] IRLM 673 at p. 676 Hamilton J. stated that the purpose of particulars was:

“…to define the issues between parties to any action or proceeding and thereby to prevent either party being taken by surprise and incidentally to limit as much as possible the length and expense of trials.”

9. Thus in any case the requirement is that a party should know in advance the broad outline of the case he will have to meet at trial. The pleadings must be such that the party will not be taken by surprise. It is also incidentally to limit as much as possible the length and expense of trials. In Moorview Developments Ltd. v. First Active [2005] IEHC 329 Clarke J. quoted Mahon v. Celbridge Spinning Co. Ltd above and stated at para. 7.2.:-

“

It should be noted that the facts that a party is required to be told, as part of the pleading process, are not the facts as they may objectively be, but the facts as his opponent alleges them to be.

Therefore an assertion that the other party well knows the relevant fact will rarely be a sufficient answer to what would otherwise be a proper request for particulars. A requesting party may well have its own view about what the truth in respect of a relevant factual issue is but that does not absolve his opponent, where it is part of his case, from setting out in reasonable detail the relevant facts which he alleges.”

This passage is of particular significance in this case. The plaintiff submitted that the defendants knew what the relevant tests or standards were and thus they did not truly require particulars in relation to these matters. However, Clarke J. makes it abundantly clear that a party is entitled to know the facts as his opponent alleges them to be. In this case, that means the defendants are entitled to know what are the relevant standards or tests the plaintiff alleges are applicable; it is not a sufficient answer to state that the defendants are very experienced quarry operators and therefore should or ought to know what regime ought to be in place and what tests are required to be conducted in order properly to produce Clause 804 or 3 Inch Down material or properly to run a quarry in accordance with European and National standards.

Pleading Fraud
10. In addition to the general obligation to provide proper particulars of one’s case, there is a specific obligation on a plaintiff alleging fraud to plead his case with precision and to provide full particulars in relation to the claim. Order 19 Rule 5(2) of the Rules of the Superior Courts provides:-

“In all cases alleging misrepresentation, fraud, breach of trust, wilful default or undue influence and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be set out in the pleadings.”

11. In Keaney v. Sullivan & ors [2007] IEHC 8 Finlay Geoghegan J. had to determine whether or not a claim of fraud had been adequately particularised in that case. Having quoted Order 19 Rule 5(2) of the Rules of the Superior Courts, as quoted above, she stated as follows:-

“This express requirement of the Rules is in accordance with the long established practice of the courts to require allegations of fraud to be pleaded with particularity. Delaney and McGrath, Civil Procedure in the Superior Courts (2nd Ed.) summarise the position correctly in my view at para. 5.38:

“(b)

Allegations of Fraud

5.38 The long established practice of the courts has been to require allegations of fraud to be pleaded with particularity. Rule 5(2) now provides that, in all cases alleging misrepresentation, fraud, breach of trust, wilful or undue influence and in all other cases in which particulars may be necessary, particulars ( with dates and items if necessary) must be set out in the pleadings. The rationale of this requirement was explained by Barrington J. in Hanly v. Finnerty in relation to a plea of undue influence as follows:

Undue influence is a plea similar to fraud and it appears to me that it would be quite unfair to require a party against whom a plea of undue influence is made to go into court without any inkling of the allegations of fact on which the plea of undue influence rests. Because of the seriousness of the plea counsel will not lightly put his name to a pleading containing a plea of undue influence so that his solicitor will usually have in his possession some allegations of fact which justify the raising of the plea or at least excuse the plea from being irresponsible.

5.39 Thus, a party is not only required to expressly plead fraud or misrepresentation etc., but he must also give full particulars of its nature and how it is alleged to have occurred. However, it should be noted that, given the difficulty of proving fraudulent intention, malice and any other condition of the mind (which is often a matter of inference to be drawn from the proven facts), it suffices to allege this as a fact without setting out the circumstances from which the same is to be inferred.”

The defendants also rely upon the pleading requirement as set out in Bullen and Leake (12th Edition) 1975, in relation to the equivalent English rule where at pp 452 - 453 it states:

“The Statement of Claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrance v. Lord Norreys (1890) 15 App. Cas. 210 at 221. It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (Davy v. Garrett (1878) 7 Ch D 473 at 489). “General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any court ought to take notice.

…

Particulars. Full particulars of any misrepresentation relied on must be given in the pleading (R. S. C., Ord. 18, r.12 (1)(a)). The Statement of the Claim must show the nature and extent of each alleged misrepresentation (Newport Dry Dock & Engineering Co. v. Paynter (1886) 34 Ch. D. 88) and it must contain particulars showing by whom and to whom it was made, and whether orally or in writing, and if in writing, identifying the relevant document (Seligmann v. Young [1884] W. N. 93). Where the plaintiff alleged that the entries made by the defendant in certain books were false, he was ordered in the first place to give particulars of entries which he alleged to be false, and subsequently to give further particulars showing in what respect each of these entries was false (Newport Dry Dock & Engineering Co. v. Paynter, ante); “all the accounts rendered to the plaintiff are untrue” did not comply with an order for further particulars of fraud (Harbord v. Monk (1878) 38 L. T. 411).

Moreover, the necessary particulars of fraudulent intention relied on must also be contained in the pleading (R. S. C. Ord. 18, r. 12(1)(b)), and accordingly, the pleadings must set out the facts, matters and circumstances relied on to show that the party charged had or was activated by a fraudulent intention.”

12. Finlay Geoghegan J. applied the principles quoted above to the facts in the case and stated as follows:-

“In accordance with the principles set out above the particulars in the statement of claim must include the nature and extent of each the alleged misrepresentation. The particulars must also show by whom and to whom the alleged representations were made and whether orally or in writing, and, if in writing identify the relevant document.

Whilst certain of the above paragraphs identify the matters to which it is alleged the misrepresentation related, there is a failure to identify the nature or extent of any of the alleged misrepresentations. In many there is also a failure to identify the persons by whom or to whom they are alleged to have been made and how made (whether orally or in writing).

It is thus clear that the standard of precision required in pleading cases of fraud is higher than that required in pleading generally. A party is obliged to give full particulars of how it is alleged to have occurred and to give precise and full allegations of fact. Where a fraudulent representation is alleged, the party is obliged to show by whom and to whom the alleged representations were made and whether orally or in writing and, if in writing, identify the relevant documents.

13. However, the very nature of a fraudulent claim will also make it harder to achieve this standard of precision. This difficulty was addressed by Clarke J. in National Education Welfare Board v. Ryan [2008] 2 IR 816 at paras. 10-12. Clarke J. held as follows:-

“As pointed out by Bowen L. J., in Leitch v. Abbott (1866) 31 Ch. D. 374, if a plaintiff is not able to have the benefit of discovery before defining the precise parameters of his claim, it is likely, in cases of fraud or other clandestine activity, to place very great limits on the benefit of discovery.

…

The other side of the coin requires that care be taken not to allow a party, by the mere invocation of an allegation of fraud, to become entitled to engage in a widespread trawl of the alleged fraudster’s confidential documentation in the hope of being able to make his case.

A balance between these two competing considerations needs to be struck. The balance must be struck on a case by case basis but having regard to the following principles. Firstly, no latitude should be given to a plaintiff who makes a bare allegation of fraud without going into some detail as to how it is alleged that the fraud took place and what the consequences of the alleged fraud are said to be. Where, however, a party, in its pleadings, specifies, in sufficient, albeit general, terms the nature of the fraud intended together with specifying the alleged consequences thereof, and establishes a prima facie case to that effect, then such a party should not be required, prior to defence and, thus, prior to being able to rely on discovery and interrogatories, to narrow his claim in an unreasonable way by reference to his then state of knowledge. Once he passes the threshold of having alleged fraud in a sufficient manner to give the defendant a reasonable picture as to the fraud contended for, and establishes a prima facie case to that effect, the defendant should be required to put in his defence, submit to whatever discovery and interrogatories may be appropriate on the facts of the case, and then pursue more detailed particulars prior to trial.”

14. Clarke J. approached the matter in a nuanced way. Effectively he allowed for a two stage pleading of fraud. He did not resile from the high degree of precision required as outlined by Finlay Geoghegan J. in Keaney v. Sullivan. He required that a plaintiff having alleged fraud must do so in a sufficient manner to give the defendant a reasonable picture as to the fraud contended for. Once that is done the defendant should then be required to put in his defence and submit to discovery and interrogatories as may be appropriate in the light of the pleadings as they then exist. Then, more detailed particulars of the fraud are to be furnished prior to trial, if required. In National Education Welfare Board v. Ryan he was satisfied that the pleading in that case went sufficiently beyond mere assertion and that there was no prejudice in requiring the defendants to deliver their defence or no prejudice which could not adequately be dealt with by indicating that full particulars would have to be delivered well in advance of trial and that the defendants would have the opportunity of making any appropriate amendments to their defence in the event that same should be justified by the particulars then delivered. He held that having regard to the factors outlined that the balance of justice did not require that any further particulars be delivered at that stage.

15. Thema International Fund Plc v. HSBC Institutional Trust Services (Ireland) [2010] IEHC 19 was another decision of Clarke J. He observed:-

“4.7 It is important that HTIE give as much particulars of its true position as can now give. To do otherwise would, as counsel for both Thema and AA point out, run a serious risk that whole areas of discovery, which may not ultimately be necessary, may be sought and obtained, thus significantly increasing the cost of these proceedings in an unnecessary way. On the other hand, regard must be had, in relation to any particular sought, to any circumstances which might make it reasonable for HTIE to await obtaining further information, through the pre-trial process or otherwise, in order that it can finally specify the parameters of its claim.

In complex cases it may be necessary to attempt to fashion orders particularly geared towards the specific questions and problems which arise in the case under consideration so as to best, insofar as it is possible, meet both of those competing requirements

.”

16. In Mooreview Developments Ltd. v. First Active [2008] IEHC 211 Clarke J. considered the requirements of pleading fraud in the context of an application to amend pleadings. He again emphasised the requirement to reconcile the competing contentions between the clandestine nature of fraud and the defendant’s entitlement to know in detail the allegation made against him and to the need to safeguard against speculative trawls of confidential information. At paras. 5.4 - 5.6 he stated as follows:-

“I am also, however, mindful that a party alleging fraud is often faced with significant difficulties in that fraud, by its nature, is likely to be clandestine and evidence of it is not likely to be easily available. In that context, I should refer to the National Education Board v. Ryan & Ors. [2007] IEHC 428 in which I had to consider the extent to which the plaintiff in that case should be required, in advance of discovery, to plead fraud with great particularity. Having noted authorities such as Arab Monetary Fund v. Hashim & Ors. (No. 2)[1990] All E. R. 673, I addressed two competing requirements. I noted that to the extent that a plaintiff, who makes an allegation of fraud, is required to give full and exhaustive particulars prior to defence (and thus prior to discovery or interrogatories) in a manner which necessarily narrows the case, then there is every chance that, in a genuine case of fraud, the perpetrator will escape having to make discovery in respect of aspects of the fraud because the plaintiff was not sufficiently aware of the details of those aspects of the fraud to plead them in an appropriate manner in advance.

5.5 I also noted the competing requirement that care should be taken “not to allow a party, by the mere invocation of an allegation of fraud, to become entitled to engage in a widespread trawl of the alleged fraudster’s confidential information in the hope of being able to make his case.” In balancing those competing objectives, I came to the view that a plaintiff who “passes the threshold of having alleged fraud in a sufficient manner to give the defendant a reasonable picture as to the fraud contended for, and establishes a prima facie case to that effect” is entitled to require that the defendant should put in his defence and submit to whatever discovery and interrogatories may be appropriate on the facts of the case subject to the obligation to provide more detailed particulars prior to trial.

5.6 The underlying principle behind the reasoning in that case is that genuine fraud may be hard to particularise in great detail until after discovery. However, there is a very real and significant difference between the situation which pertains at an earlier intermediate stage of preparation of a case for trial and the situation which pertains when the case has gone to trial. At that latter stage, the plaintiff has had access to all of the procedural measures that are available to him (or if he has not, it is only through his own neglect). While it may be appropriate to allow a case to be pleaded with less than rigorous particularity at an early stage, it is equally clear that a case cannot be allowed to go to trial without detailed particulars.

…Parties with a stateable claim in fraud should, in my view, be given every facility to enable them to make out their case if it be a good one. That should include allowing the case to be amended in the light of discovered documents if it becomes clear that there is a credible case for a variation of the original claim but not, perhaps, for the claim as originally conceived.”

17. Clarke J. is quite clear that a case alleging fraud cannot be allowed to go to trial without detailed particulars. He recognises the fact that there are two competing requirements, being the requirement to plead fraud with particularity and the difficulty to do so in advance of discovery, and in appropriate cases, interrogatories. He suggests that the resolution of these competing requirements is that parties with a stateable claim in fraud should be enabled to make out their case if it be a good one. That involves allowing them to furnish further particulars of the claim as made out in the light of discovered documents.

18. When applying these principles to this case it is important to ensure that the requests for particulars are genuinely required to enable the defendants to know the case which they have to meet and that the request for particulars do not become oppressive or unreasonable, bearing in mind the observations to that effect in IBB Internet Services Ltd. & ors v. Motorola Ltd. [2013] IEHC 541 of Charleton J. and Armstrong v. Moffett & ors [2013] IEHC 148 of Hogan J.

19. The following principles derived from the authorities cited above, are of particular relevance in assessing the notices of motion before the court;

(1) A party is required to be told as part of the pleading process not the facts as they may objectively be but the facts as his opponent alleges them to be.

(2) The particulars of fraud must include the nature and extent of each alleged misrepresentation. They must show by whom and to whom the alleged representations were made and whether orally or in writing and, if in writing, identify the relevant documents.

(3) A party alleging fraud must give the defendant a reasonable picture as to the fraud contended for and so that he knows the case he has to meet.

(4) A party may not by mere invocation of an allegation of fraud become entitled to a widespread discovery.

(5) While particulars may not be ordered prior to the delivery of a defence, a case cannot be allowed to go to trial without detailed particulars and these may be pursued after the provision of discovery if required.

20. Particularly Relevant Facts
Two particular matters mark these applications out from other applications to compel the delivery of particulars in cases pleading fraud. The first is the fact that the plaintiff has a most exceptional and unusual knowledge of the events giving rise to these proceedings, the second relates to an open letter written by the plaintiff’s solicitors offering additional information. The plaintiff sued the fourth named defendant herein in proceedings entitled James Elliott Construction Ltd. v. Irish Asphalt Ltd. 2008/4767P. In that case the fourth named defendant herein made discovery of the following categories of documents;

“(a)(iii) documents comprising direct or indirect evidence of ground conditions, rock formations and mineral deposits at the quarry or quarry’s operated by the defendant and out of which Clause 804 hardcore supplied pursuant to the said contracts was extracted both before quarrying works commenced and in the course thereof including but not limited to the following;

i. the Soils and Geology chapter of the Environmental Impact Statement furnished in the course of any planning applications made in the course thereof.

ii. information provided in respect of any such matters in the course of applying for and obtaining planning permission for the said quarry or quarry’s.

iii. the results of any geotechnical, geochemical, chemical, hydrological, hydrogeological or geophysical tests conducted in the said quarry or quarry’s together with any reports memoranda or correspondence interpreting or reporting, advising or commenting on such results.

iv. documents concerning ground water testing and monitoring conducted by the Defendant at the said quarry or quarry’s whether in compliance with its IPP licence or with the relevant planning permission or otherwise.

v. reports or other documentation concerning visual inspections scan lines and reports on the said quarry or quarry’s limited to documentation concerning tests or investigations conducted prior to 31st July, 2005.

(a)(iv) documents in relation to the sampling or testing of materials extracted from the quarry or quarry’s operated by the defendant out of which Clause 804 hardcore supplied to the plaintiff was extracted including but not limited to:

i. Geotechnical, chemical, geological, hetrographic, SEM or XRD monitoring or testing of such materials.

ii. documents setting out the policy or protocol for the testing of mineral extracted from the said quarry or quarry’s.

iii. reports, internal memoranda, correspondence or other documentation interpreting or reporting, commenting or advising on the result of any such testing limited to documentation concerning tests or investigations conducted prior to 31st July, 2005.”

21. There was a lengthy trial and ultimately judgment in the case was delivered by Charleton J. on 25th May, 2011, in favour of the plaintiff and the matter was appealed to the Supreme Court. Judgment is awaited from the Supreme Court. Thus the plaintiff was aware of a vast amount of material provided as part of the discovery in the first proceedings and aware of matters which arose in evidence in trial in the first proceedings before Charleton J.

Secondly, in proceedings known as Menolly (Hansfield Developments, Viking Construction, Menolly Properties and Menolly Homes v. Irish Asphalt Ltd., Lagan Holdings Ltd. and Lagan Construction Ltd. and by Order Lagan Group Cement Limited and by Further Order Linstock Limited 2007/4691P.), a case which ran for over 150 days before it was compromised, a transcript of the hearing has been available. This has been provided to the plaintiff. In the affidavit of Patrick Elliott sworn on 6th March, 2014, on behalf of the plaintiff, to ground the application for the entry of the proceedings into the commercial list of the High Court, Mr. Elliott set out in detail the documents which it analysed in preparing its claim. It had analysed reports included in the fourth named defendants EIS (and which are the subject of the request for particulars) as well as the transcripts from the Menolly proceedings. It is clear from Mr. Elliott’s affidavit that the plaintiff is in possession of a very considerable degree of information which would not normally be available to a plaintiff in advance of discovery. While there is an issue in the case as to the entitlement of the plaintiff to use material obtained in other litigation in these proceedings, that is a matter yet to be determined. I am concerned with the plaintiff’s current state of knowledge and its ability to provide the particulars sought, where such particulars are properly the matter of requests for particulars.

22. The second matter, it is argued, that is relevant to the requests for further and better particulars is a letter written by the plaintiff’s solicitors dated 10th July, 2014. Arising out of without prejudice negotiations to reach agreement in relation to the particulars sought by the defendants, the plaintiff’s solicitor wrote an open letter on 10th July, 2014, offering to provide additional information upon certain terms. While it is accepted by the defendants that no concluded agreement was reached in relation to the provision of this additional agreement, it is said that the court should have regard to the fact that the plaintiff has this additional information in its possession when the court comes to assess whether or not it should order the delivery of further and better particulars in this case.

23. In my opinion these factors are not relevant as to whether or not the particulars sought are required. They are relevant to assessing whether the plaintiff would be unduly hindered in bringing forward a case in fraud by requiring it to give details of matters of which it could have no knowledge or no sufficient knowledge prior to the furnishing of discovery, or they are relevant to whether the plaintiff has further information which it is alleged it is wrongfully withholding from the defendants. That however does not mean that the particulars sought should be the subject of an order of this court.

24. It also of course is accepted that the plaintiff has chosen to bring fraud proceedings and therefore must accept the consequences that flow from such a decision, including the requirement to give a greater degree of particularity in its pleadings than would normally be required in a different case.

25. The Particulars Sought
The fundamental allegation in this case is that the defendants knowingly or recklessly sold material known as Clause 804 or 3 Inch Down that they knew did not meet the required industry standards and thereby fraudulently misrepresented the quality of its product. It is alleged that the first, second, third and fifth defendants knowingly procured the deceit on the part of the fourth defendant and they are liable to the plaintiff as joint tortfeasors. It is alleged that the defendants either failed to carry out the appropriate tests or alternatively disregarded the results of such tests as they carried out (because they were unfavourable). It is alleged that this occurred over a significant period of time both before and after the opening of the fourth named defendant’s quarry at Bay Lane. Particulars of tests that ought to be carried out, that were carried out, that were failed, or the results of which were suppressed or ignored formed a large part of the requested particulars. The range of potential tests that the plaintiff might seek to impugn and the volume of results is potentially very extensive. The defendants say that the complaints of the plaintiff could potentially relate to inter alia geographical evaluations, geophysical tests, test on borehole logs, drilling and testing on the rock core, numerous physical and chemical tests, European tests and protocols, hetrographic tests, mineralogical tests and other evaluations test procedures and assessments that the plaintiff alleges should have been carried out by the fourth named defendant.

26. In my opinion it is essential that the plaintiff provide full precise particulars of each and every one of the tests which it alleges ought to have been carried out on the quarry and material produced at Bay Lane and of the regime and other procedures which it claims ought to have been followed by the defendants. These are particulars required in accordance with the principles set out by Clarke J. in Moorview Developments Ltd. v. First Active [2005]. The plaintiff advances this case presumably on the basis of expert advice. It has taken two years to prepare its case before commencing proceedings. It has very particular information available to it which would not normally have prior to discovery and has made specific pleas based on that information. Thus it is in a position to give particulars of these matters at this stage of the proceedings. It knows the case it wishes to make. The particulars sought are necessary and relevant. They are not the provision of evidence. It is not permissible to give a generalised long list of possible tests and then to state that this is not an exhaustive list or that the claim is not limited to the list of possible tests therein set out.

27. I therefore direct that the plaintiff reply to the following particulars raised by the fourth named defendant. 18, 24, 28,29,30,31,41,42,43, 46, 49 (as recast in the request for further and better particulars) (i)-(iv), 50(as recast in the request for further and better particulars), 51 (to include the criteria for 3 Inch Down), 52, 55 (as recast in the request for further and better particulars), 61, 69 (i), (ii), (iii) and (iv), 70, 71, 72 (i), (ii) and (iii), 75 (as recast in the request for further and better particulars) 79, 84, 85, 88, 93. In relation to numbers 29, 30 and 31 it is necessary if possible to specify which tests are relevant to establishing that aggregate is (a) strong, (b) durable, (c) resistant to abrasion.

28. In a number of instances the plaintiff pleaded that the defendants either failed to conduct relevant tests, or in the alternative, conducted the tests and ignored the results and thereby fraudulently placed unsuitable material on the market as Clause 804 or 3 Inch Down material. The defendants urge that it is impermissible in a case alleging fraud to plead in the alternative in this fashion. They sought particulars of the tests which they allegedly conducted and suppressed or in the alternative of the tests which they failed to conduct at all (when they ought to have conducted tests). In reply the plaintiff argued that it simply could not know whether this was a case of omission or comission until it had obtained discovery from the defendants. I do not believe that as a matter of principle it is impermissible to plead a case in fraud in the alternative as has occurred in this case. The question therefore is how is such a case properly to be pleaded in such a way as to permit the plaintiff to advance the case and yet to afford the defendants the degree of particularity to which they are entitled?

29. I find guidance in dealing with this issue in the observations of Clarke J. in Thema International Fund Plc quoted above. The plaintiff must particularise its claim to the greatest possible extent that it is in a position to do so at this stage. It cannot be prevented from bringing the claim by reason of its inability to know, prior to discovery, whether the alleged fraud was allegedly committed by a deliberate failure to implement an appropriate testing regime or by the wrongful ignoring or suppressing of the results of the tests actually conducted, or a combination of both. As Clarke J. observed, to do otherwise would run a serious risk of whole areas of discovery which may not ultimately be necessary may be sought and obtained thereby exposing the defendants to an unnecessary burden and expense. On the other hand, it is clear that a case cannot be allowed go to trial without the detailed particulars sought. The particulars raised in this regard are proper particulars. It seems to me that the appropriate way to deal with these cases is to indicate that the particulars must be provided but that they must be provided after such discovery as may be agreed or ordered in this case has been made. I make such an order in respect of numbers 53, 54, 57, 78, 83, 87, 89.

30. I deal with the balance of the particulars sought as follows

Particular number 46 requests the plaintiff to :-

“Please identify the manner in which it is alleged that the Fourth Defendant fraudulently misrepresented the quality of its product.”

This is precisely the sort of detail where the defendant is entitled to know by whom the representation was made and to whom, whether orally or in writing and if in writing the document requires to be identified in accordance with the decision of Finlay Geoghegan J. in Keaney. It is important to note that in the Reply to the Defence of the fourth named defendant at para. 8 the plaintiff pleads:-

“As is clear from the particulars, the representations upon which the plaintiff relies are not limited to the two letters referenced at paragraph 13 of the Statement of Claim, but included quotes in respect of orders, acceptances of orders, delivery receipts and certifications of quality and standards compliance provided or held out”

The reply furnished in respect of the particular is inadequate particularly in the light of para. 8 of the Reply. I direct that this be furnished.

31. It is accepted that the particulars sought at 115, being the particulars of the remedial works it is alleged the plaintiff has been required to finance in certain projects, should be furnished and therefore I order that these be furnished.

32. It is accepted that the plaintiff has already provided very detailed particulars and a very considerable amount of information to the defendants. I have rejected the following requests for further and better particulars on the basis that the defendants either have sufficient particulars of the claim which they have to meet or will have once they receive the replies to the particulars in respect of which I have made an order and that the additional information sought is either unnecessary or a matter for evidence rather than pleading. The particulars I refuse are 11, 12 13, 14, 15, 16, 19, 23, 25, 26, 32, 37, 49 (v) and (vi), 56 and 106. In ease of the parties I set out the particulars sought in this motion in a schedule hereto, those in bold type I have ordered to be furnished, those in bold italics are to be furnished after discovery for the reasons set out above.

33. The request for particulars of the first, second, third and fifth named defendants
34. Further considerations arise in respect of the request for particulars of these defendants in addition to the principles outlined above in relation to the request for particulars of the fourth named defendant. It is alleged that these defendants procured the wrongful actions of the fourth defendant. It is alleged that they are joint tortfeasors with the fourth named defendant. If the plaintiff is to succeed in these claims the plaintiff will have to establish that the first, second and third named defendants, directors of the fourth named defendant, acted otherwise than simply as officers of the company. The plaintiff will be required to establish reasons why they are liable for the alleged wrongful acts of a limited liability company, the fourth named defendant. It follows, therefore, that they are entitled to particulars of the matters which the plaintiff intends to prove in order to establish their independent liability as joint tortfeasors for the wrongful actions (or inactions) of the fourth named defendant.

35. For the reasons outlined above, these defendants are also entitled to particulars relating to tests which allegedly ought to have been conducted or tests which allegedly have been conducted and which have failed. Therefore they are entitled to the following particulars 5.5, 9.2, 11.1, 13.3, 14.3, 16.4. There were two requests to particularise the loss sustained to date at particulars 30.1 and 30.2. They are clearly appropriate particulars and they likewise should be answered. At particular 8.3 these defendants raised a query arising out of para. 22 of the Statement of Claim as follows;

“Please identify which construction applications necessitated the use of Clause 804 or 3 Inch Down?

The reply stated that all of projects referred to in the schedule necessitated the use of either Clause 804 or 3 Inch Down. These defendants reiterated the request stating that they needed to be able to establish whether one or other or both materials have actually caused any of the alleged loss. I accept that this is a proper matter for particulars and I order that this also be provided.

36. The balance of the particulars sought by these defendants were directed towards elucidating how these defendants were alleged to have procured the deceit of the fourth named defendant. These arise in particulars 12.2 (as amended in the notice for further and better particulars) 23.1, 24.1, 24.2, 26.1a, 27.1, 27.3, 27.4 and 27.5. The plaintiff says that these defendants procured the wrongful acts of the fourth named defendant. These defendants say that this is insufficient for them to know the case that they have to meet a fortiori in a case alleging fraud.

37. In relation to these requests the plaintiff argued that the defendants were seeking evidence rather than particulars. I cannot agree. It was also argued that the defendants will receive witness statements in due course which will set out all of the detail they require. It was stated that the detail had been averred to in the plaintiff’s solicitors’ affidavit. It cannot be correct that matters which require to be set out in pleadings can be provided either by way of witness statements or affidavits. It was also said that the defendants themselves are aware of these matters as they furnished replies to the plaintiff’s notice for particulars dealing with their involvement in the affairs of the fourth named defendant. Again, it cannot be correct that a plaintiff is entitled to rely on a defendant’s reply to a notice for particulars in order to particularise a plaintiff’s claim. As was pointed out by Clarke J. in Mooreview Developments v. First Active, a party is entitled to know the facts as his opponent alleges them to be.

38. Significantly, in the written submissions of the plaintiff at para. 47 it is accepted that the plaintiff would be in a position to give the particulars sought “by way of non exhaustive replies to particulars”. It is therefore not the case that the plaintiff requires discovery in order that it may flesh out its allegations of fraud in this case as was contemplated by Clarke J. in National Education Welfare Board v. Ryan. Having accepted that it is in a position to give the particulars sought in these paragraphs, it is not clear to me why the plaintiff cannot also answer particulars at 27.1, 27.3, 27.4 and 27. 5. No argument to that effect has been advanced. In my opinion these are all proper particulars necessary to allow these defendants to know the case that they have to meet and I direct that the plaintiff furnish these particulars.

39. Strike Out the Proceedings
The defendants each sought to strike out the proceedings on the basis that they were improperly brought. It was argued that the plaintiff was saying for the first time that it did not know whether certain tests had been carried out and results ignored on the one hand or, on the other hand, the tests had deliberately not been conducted in order to avoid unwelcome results. It was submitted in the light of the express pleading to the effect that the defendants both did not conduct appropriate tests and that they did conduct tests and then ignored or suppressed the results that they had acted improperly. It was urged that this was simply impermissible in a case of fraud and that it amounted to an abuse of process. I cannot agree. I do not believe that it amounts to an abuse of process to plead the plaintiff’s case in the alternative. Undoubtedly, before trial, the plaintiff will have to clarify precisely what position it adopts but that would be in the light of discovery and possibly interrogatories. The logical conclusion of the defendants’ submission is that a party could escape altogether from an allegation of fraud where the party alleging the fraud could not tell whether the fraud arose by reason of a positive act (the conducting of tests and the suppression or ignoring of the results) or an act of omission (the deliberate failure to carry out appropriate tests). It could not be the position that a case could not properly be brought by reason of the failure of a party to give due particulars as required by the Rules in these circumstances. In any event it is abundantly clear that the plaintiff has engaged in a very detailed attempt to present a comprehensive claim. The fact that certain particulars remain outstanding does not detract from this position. This clearly is not a case where it would be appropriate to exercise the court’s jurisdiction to strike out the proceedings.

40. I will ask the parties to address me further in relation to the nature of the orders to be made.

Schedule

Request for the particulars on behalf of the fourth named defendant

11 Please identify (by reference to the specific provision(s) of the NRA specification for Clause 804) the test(s) it is alleged are designed to ensure the material is fit for purpose.

12 Please identify the purpose which it is alleged the testing regime published by the NRA was designed to ensure the material would be fit for.

13 Please identify (by reference to the specific provision(s) of the NRA specification for Clause 804) the test(s) it is alleged are designed to ensure that the material is merchantable.

14 Please identify the purpose which it is alleged the testing regime published by the NRA was designed to ensure the material would be merchantable as.

15 Please identify (by reference to the specific provisions(s) of the NRA specification for Clause 804) the test(s) it is alleged are designed to ensure that the material will perform adequately over its expected service life.

16 Please confirm the expected service life of Clause 804 as provided for by the NRA.

18 Please identify the initial type testing referred to at paragraph 16 of the Statement of Claim.
19 Please identify the “market” for which material must undergo initial type testing before being place upon. Is it the market for material used in the construction of roads?

23 Please provide a copy of the specification for 3 Inch Down.

24 Please identify the specific requirement of IS EN 13242:2002 it is alleged that 3 Inch Down should meet.
25 Please identify the construction purpose for which 3 Inch Down should be fit.

26 Please provide full and detailed particulars the precise uses for 3 Inch Down in residential and general construction.

28 Please identify where the definition of Clause 804 as a “premium quality” unbound aggregate is to be found.
29 Please identify the precise tests under IS EN 13242:2002 to establish that the aggregate is strong.
30 Please identify the precise test under IS EN 13242:2002 to establish that the aggregate is durable.
31 Please identify the precise test under IS EN 13242:2002 to establish that the aggregate is resistant to abrasion
32 Please identify the particular types of projects in the construction industry where it is alleged that there is a need for aggregates that are resistant to abrasion.

37 In respect of each project, please confirm by whom Clause 804 or 3 Inch Down was specified for use.

41 Please provide full and detailed particulars of the basis upon which it is alleged that the aggregate quarried and produced by the fourth defendant at Bay Lane and described as Clause 804 or 3 Inch Down did not comply with the specified requirements or criteria of those categorisations.
42 In relation to the allegation that the aggregate quarried and produced by the fourth defendant at Bay Lane consistently failed the specified and industry standard acceptance tests for Clause 804 and/or the criteria for 3 Inch Down, please provide full and detailed particulars of the dates upon which it is alleged that the material failed the specified and industry standard acceptance test and/or criteria and precisely how the material is alleged to have failed.
43 Please provide full and detailed particulars of the results of all tests carried out and by which it is alleged the material consistently failed.
46 Please identify the manner in which it is alleged that the fourth defendant fraudulently misrepresented the quality of its product.
49 Please provide full and detailed particulars of the material facts upon which the plaintiff intends to rely in support of the allegation that the fourth defendant knew that the product sold as Claus 804 or 3 Inch Down was not construction quality material for use as hard core or fit for purpose or was reckless as to whether the material was such.

(i) Please identify the limit of sulphur in the European Standard as alleged by the plaintiff.

(ii) Please provide full and detailed particulars of the results of all tests upon which the plaintiff relies.

(iii) Please identify the provisions of the European standard the plaintiff alleges imposes on aggregate suppliers the responsibility to establish total sulphur and acid soluble sulphate contents of construction aggregates.

(iv) Please identify the material facts upon which the plaintiff intends to rely in support of the allegation that the fourth defendant knew that high sulphate concentrations in the Bay Lane aggregate used near concrete could lead to serious structural damage. When is it alleged that the fourth defendant knew this?

(v) Please identify the “minor exceptions” where the material was not used for the said purposes.

(vi) Please identify the page references from the Menolly transcript relied upon by the plaintiff.

50 In respect of each project undertaken by the plaintiff please identify the purpose it is alleged that the material was not fit for. Please provide full and detailed particulars of:

(i) Which tests would enable it to understand completely the nature of the rock being processed and which would allow it to confirm it suitability for use;

(ii) Where is the requirement for product control testing to be found?

(iii) What are the “measures” referred to and what are the results of same.

51 Please provide full and detailed particulars of the material facts on which the plaintiff intends to rely in support of the allegation the fourth defendant was reckless as to whether the alleged representation was true or false [in relation to paragraph 27].

52 Please provide full and detailed particulars of the material facts upon which the plaintiff intends to rely in support of the allegation that the alleged representation was false [in paragraph 27].

53 Please provide full and detailed particulars of material facts upon which the plaintiff intends to rely in support of the allegation that the relevant steps were not taken as alleged at paragraph 28 of the Statement of Claim.

54 Please provide full and detailed particulars of the steps it is alleged the fourth defendant took but disregarded as alleged at paragraph 28 of the Statement of Claim.

55 Please provide full and detailed particulars of the material facts by which it is alleged the fourth defendant knew (from investigations conducted prior to the alleged representations) [at paragraph 28] that the quality of rock at Bay Lane was “low grade”. Pleases provide full and detailed particulars of the precise test(s) and the minimum test standards for an unbound aggregate that it is alleged rock must fail in order to be considered “low grade”.
56 What is meant by the term “low grade”?

57 Please identify the investigations from which it is alleged that the fourth defendant knew that the quality of rock at Bay Lane was “low grade”.

61 What is meant by the term “construction grade material”?
69 Please provide full and detailed particulars of the material facts upon which the plaintiff intends to rely in support of the allegation that the fourth defendant knew that product placed on the market by it would lead to serious structural damage to buildings in which it was used.

(i) Please provide full and detailed particulars of the results of the testing undertaken on behalf of “Lagan” on “quarry face samples” taken from the perimeter of Bay Lane quarry in September 2007.

(ii) Please identify the provisions of the European Standard alleged to impose on aggregate suppliers the responsibility to establish total sulphur and acid soluble sulphate contents of construction aggregates.

(iii) Is it alleged that pre-quarry development testing was not carried out by the fourth defendant? If so, please identify the precise test(s) the fourth defendant should have carried out.

(iv) Is it alleged that production testing on aggregate was not carried out by the fourth defendant? If so, please identify the precise test(s) the fourth defendant should have carried out.

70 Please provide full and detailed particulars of the results of the geophysical testing alleged to have been carried out on the Bay Lane property in late 1995 by Bernard Murphy Associates.

71 Please provide full and detailed particulars of the basis upon which it is alleged the fourth defendant was reckless as to the quality of the material sold as Clause 804 or 3 Inch Down.

72 In relation to paragraph 28(d) of the Statement of Claim, please provide full and detailed particulars of the basis upon which it is alleged that it was known in 1999 that rock containing disseminated pyrite could or should not be used in Clause 804 and/or 3 Inch Down and in particular, replaced by subsequent regressed.

(i) Please identify the test for sulphates referred to.

(ii) Please identify the specific testing alleged to have been advised by GWP.

(iii) It is alleged that such test(s) were not carried out by the fourth defendant?

75 What testing is it alleged should have been carried out but it was not? Please identify the precise test(s) it is alleged should have been carried out and please supply the results of the testing it is alleged was carried out in 2007.

78 Please provide particulars of the results of the tests it was said were ignored.

79 please provide full and detailed particulars of the material facts on which plaintiff intends to rely in support of the allegation that the fourth defendant took primary responsibility for the testing and assessment of the rock for suitability to produce construction products and provide the assurances of suitability upon which the EIS was based.
83 Please provide full and detailed particulars of the material facts upon which the plaintiff intends to rely in support of the allegation that the fourth defendant knowingly or recklessly failed to implement any or any sufficient testing regime to establish the physical and chemical characteristics of aggregate quarried at Bay Lane.

84 Please identify the testing regime it is alleged the fourth defendant should have implemented [by reference to paragraph 28(f) of the Statement of Claim].
85 Please identify the defined set of laboratory tests referred to at paragraph 28(f) of the Statement of Claim.
87 Please provide full and detailed particulars of the material facts upon which the plaintiff intends to rely in support of the allegation that the fourth defendant failed to implement any or any appropriate system of testing or quality control during the operation of the quarry at Bay Lane.

88 Please provide full and detailed particulars of the testing and or quality control it is alleged the fourth defendant should have implemented in order to ensure the products sold from Bay Lane as Clause 804 or 3 Inch Down conformed with the relevant criteria or were suitable for construction purposes.
89 Please identify the tests it was alleged were carried out by the fourth named defendant and the results of these tests which it is alleged the fourth defendant failed to have any or any proper regard to.

93 Please provide full and detailed particulars of the results of the independent testing alleged to have been commissioned by the two customers [referred to in paragraph 28(h)] of the Statement of Claim between December 2006 and January 2007.
106 Please confirm by how much it is alleged the total sulphur content exceeded the European Standard.

115 Please provide full and detailed particulars of the remedial works it is alleged the plaintiff has been required to finance on certain projects.

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