An Application for Further & Better Particulars - Malaysia

Pleadings are important in every civil action as they lay down the bricks that make up one’s case. Sometimes however, the Pleadings may be vague which makes it difficult for you to ascertain the exact case/Defense the Opponent seeks to bring against you. In these instances, an application for Further & Better Particulars (“FBP Application”) comes handy.

The Procedure

An FBP Application is moved under Order 18, Rule 12(3) of the Rules of Court 2012:

(3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just.

Order 18, Rule 12(6) of the Rules of Court 2012 necessitates that a party that seeks the Court’s assistance for an FBP Application must have first applied for the particulars needed via a letter to the Opponent first before making a formal application in Court.

The Notice of Application and accompanying Affidavit in Support shall list out the Particulars sought and this must be done specifically with reference to the relevant paragraphs in the Pleading.

The Law

The legal principles governing FBP Applications can be summarized as follows:

The particulars sought must arise from the pleadings and be necessary and relevant.

It is discretionary right vested with the Court and the object is to ensure that the other side is informed with reasonable particularity and is given adequate opportunity to check, verify and answer the facts alleged against it.

A litigant is entitled to have particulars of facts in order to prevent surprise but he is not entitled to his opponent’s evidence.

In Dato’ Seri Dr Ling Liong Sik v. Krishna Kumar Sivasubramaniam [2002] 2 CLJ 642 (HC), J Arifin Zakaria referred to the Supreme Court Practice (1997, Vol 1) at p 308 which sets out the functions of particulars as follows:

to inform the other side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved;

to prevent the other side from being taken by surprise at the trial;

to enable the other side to know with what evidence they ought to be prepared and to prepare for trial;

to limit the generality of the pleadings or of the claim or the evidence;

to limit and define the issues to be tried, and as to which discovery is required

to tie the hands of the party so that he cannot without leave go into any matters not included

It is trite that a party is not entitled to have their Opponent’s evidence but only facts. In Lembaga Pelabuhan Klang v. Mega-Wan Corporate Services [2013] 1 CLJ 605 (COA), JCA Abdul Wahab Patail explained the difference between facts and evidence:

[20] We recognise that there is the temptation to use the argument that what is sought is evidence in order to avoid providing further and better particulars. In such event, the court must examine whether what is being labelled in objection as evidence is actually evidence or in fact are particulars of fact. The distinction is that evidence is what proves a fact, and particulars of facts are the primary facts that are relied upon to prove, by inference or conclusion, a disputed fact. A simple example is that the various acts of dishonesty are primary facts which together may lead to the inference or conclusion of fact that a fraud had been committed.

Another consideration the Court considers if the FBP Application is a fishing expedition. The crucial factor in determining this issue is specificity and relevancy. In Wright Norman & Anor v. Oversea-Chinese Banking Corp Ltd [1992] 2 SLR 710 (COA Singapore), it was held:

“We are also in agreement with the learned judge that the extreme width and lack of specificity of the classes of documents sought unmistakably lead to the inference that Norman Wright was embarking on a ‘fishing expedition’, seeking to trawl for material which he hopes he may be able to use to make good his assertions of breach of confidentiality on the part of OCBC. We need hardly say that that is impermissible.”