Emma Fairclough v Tosi Limited & Anor

Under CPR rule 18.1, the court may order clarification of an unclear case or additional information about a disputed matter. A request must be reasonably necessary and proportionate to enable the requesting party to prepare its case or understand the case it must meet. Serious allegations, including alleged dishonesty, illegality or abuse of power, require clear and sufficiently particular pleading. A party cannot generally avoid providing information falling within rule 18.1 by saying that it will be supplied later in disclosure or witness evidence. Requests may identify material facts, rather than merely witnesses, and may seek information that clarifies or narrows the issues.

The petitioner brought an unfair prejudice petition concerning 99 Hippos Ltd. Tosi Ltd, the petitioner’s co-shareholder, had advanced a cross-petition concerning the same company. The petitions were managed together.

The petitioner applied under CPR Part 18 for further information about allegations in Tosi’s Points of Defence, including alleged misconduct, rude and abusive behaviour, trading as the company, debts owed to Jambo Ltd, and transfers of staff, funds, data and goodwill. Tosi largely refused the requests on the grounds that the allegations were self-explanatory or that information would be provided through disclosure or witness evidence.

The central issue was whether the requested clarification and information were within CPR rule 18.1 and reasonably necessary and proportionate at that stage.

1. Applicable principles. CPR rule 18.1(1)(a) concerns clarification of the case actually advanced. Rule 18.1(1)(b) concerns additional information about a disputed matter, including information which may obtain admissions or clear the ground. The two powers are distinct, although both are available within Part 18.
2. A request must be concise and confined to matters reasonably necessary and proportionate to enable the requesting party to prepare its case or understand the case it has to meet. Part 18 cannot be used for fishing for a different case, matters going merely to cross-examination or credit, or the names of witnesses where those names are not material facts.
3. It is not, by itself, an answer to a proper request that the information will be provided later in disclosure or witness statements. Where information falls within rule 18.1 and is reasonably necessary and proportionate at that stage, the court may order its provision immediately.
4. The requests concerning alleged rude and abusive conduct were allowed. The allegations were serious, and the petitioner was entitled to know when the conduct allegedly occurred, which staff members were involved, why it amounted to an abuse of power, and whether complaints had been made. The staff members were material facts, not merely witnesses.
5. The respondent was ordered to clarify whether the allegation that the petitioner had been trading as 99H meant trading under the company’s name or running the company as a de facto managing director. The words used did not naturally bear the latter meaning.
6. The respondent was required to particularise the alleged debts to Jambo, including how they arose, became due and were calculated. It was insufficient to say that the information should be obtained from Jambo, since the respondent had chosen to plead the debts. The allegations of transfers of staff and funds were also sufficiently serious and unclear to require full particulars.
7. The respondent was ordered to answer the requests within 14 days, by 4 pm on 10 November 2022.