SELLERS L.J. - This is an appeal from a decision of Salmon J. who (affirming the master) made an order on the defendant to give particulars of paragraph 2 of the amended defence. In my view, the appeal is misconceived and the judge came to a right conclusion on this matter.
We have listened to the argument of Mr. Lewis and it seems to me that, if we were to grant the appeal, he would be in a greater difficulty then perhaps he has appreciated. [His Lordship stated the facts as to the pleadings set out above, and continued :] Counsel has referred us to several authorities but I do not think it is necessary to deal with them fully. One can simply take this case as a claim for penalties. It is not a criminal proceeding. The form of the pleading is of the usual kind and normal so far as particulars are required of the averments in the pleading. I support the judge entirely in thinking that when the defendants pleads in the way I have read in paragraph 2 of the defence he is of necessity and by clear implication setting up an implied affirmative. It does not go to establish the plaintiffs case but operates substantially for the benefit of the defendant who is thereby setting up an affirmative case. The plaintiffs claim stands on its own feet and needs no support from the defendant. On these pleadings as they stand the defendant proposes to set up that there was reasonable excuse for not giving the information required. Unless the particulars of the defence which have been asked for are given before the trial there may well be surprise, delay and undue expense.
The point argued here was considered by Harman J. in Dukes Court Estates Ltd. v. Associated British Engineering Ltd., on which the defendant relies. That was a case where particulars of a pleading were sought, and the judge made it quite clear why he took the line that he did. The actual decision is of no assistance to the defendant here. In the course of the judgment he cited some observations, which seem to me to be relevant, of Goddard L. J., in Pinson v. Lloyds and National Provincial Foreign Bank Ltd. Harman J. said : 'As the Lord Chief Justice [Goddard L. J.] said, A bare traverse is a perfectly good plea provided that all that is thereby intended is to put the plaintiff to proof of his case, but it may be that, concealed in a traverse is an affirmative case, and this may well be so when the traverse is of a negative averment. If it is clear to the court, either from the nature of the case or from the admission of counsel or otherwise, that it is intended to set up an affirmative case, so that the traverse is what has been described as a negative pregnant, it seems to me that particulars of the affirmative case ought to be delivered. Otherwise, the opposite party and the court will be in doubt as to what issues are to be determined at the trial.'
Then there is a quotation from Stable J. in his judgment in Pinsons case where he was dealing with three possible positions where there had been a traverse. He said : '(ii) it may be a negative pregnant which contains within the double negative an affirmative allegation.' Then Stable J. said : 'If it falls under the second head, the double negative extends beyond a mere traverse and amounts as in the present case to this : 'If you establish a prima facie case that I sold or purchased shares for you and that in so doing I acted without authority, then I intend to call evidence to establish that on each or some of the occasions there was an express authority to act as I did or an implied authority to be derived from certain facts.' That, in my judgment, is to set up an affirmative case of which particulars ought to be given and that, none the less, though the affirmative case is concealed, albeit imperfectly, in a negative shell.'
It was pointed out that if the particulars are not given then it may preclude a defendant in those circumstances from advancing an affirmative case at the trial.
I think Salmon J.s order was right and I would dismiss this appeal
PEARCE L. J. I agree. It is clear from the pleadings that the traverse is a negative pregnant. The admissions of counsel have made it even clearer that the defendant intends to set up an affirmative case. The only object of the defendant in seeking to avoid giving these particulars is admittedly to prevent the plaintiffs knowing before the trial what the defendants case is, and thus to give the defendant the advantage of surprise. That is an unmeritorious object and would probably lead to an inconvenient adjournment in the middle of the hearing.
For the reasons that my Lord has given, I think that this is a case where particulars should be ordered, and that the judge was right.
Appeal dismissed with costs.
Particulars to be delivered within 28 days.
Leave to appeal to the House of Lords refused.