The High Court has shone a light on the increased level of detail expected by the courts when parties set out their claims. This is important because it shows the attention to detail required both to bring a claim but also to respond to a claim when it is brought. In the case of a large corporate or a government client, more will be required to set out exactly what the position is from the beginning, or risk a costs award. The good news is that with proper business-as-usual document hygiene practices, and early meaningful engagement with expert evidence, this can be achieved easily and efficiently. 

The case of Sanderson v IAG [2024] NZHC 1570

The Sandersons owned a commercial building in Christchurch that suffered earthquake damage in the Canterbury Earthquake Sequence. The Sandersons alleged that IAG unilaterally engaged Hawkins Construction to scope and project manage the proposed repairs, but that the work carried out by Hawkins at IAG’s behest was insufficient to adequately repair the original earthquake damage and was carried out in a defective manner resulting in further damage. 

IAG defended the claim in the usual way by filing a statement of defence, but the Sandersons were unhappy with the contents of IAG’s statement of defence. The Sandersons brought an application for further particulars. 

The particular issues 

Particulars are essentially the details of a claim. A statement of defence must admit or deny the allegations in the claim, but denials must be substantive and not evasive. If an allegation is not denied then it is treated as being admitted – and any affirmative defences must be specifically included. 

If a party considers that the opposing party has not provided sufficient particulars, then it can seek further particulars. The question to ask is whether, in the circumstances of the claim, the pleadings are sufficiently detailed to clearly state or respond to an issue and inform the opposite party of the case to be met or how the case has been responded to. 

What was in dispute?

The Sandersons listed sixteen separate pieces of original damage they said were caused by the earthquakes. In response, IAG relied on the description of damage assessed in its expert reports by referring to those reports (instead of setting out what those reports said in respect of each of those sixteen pieces of damage). 

The Associate Judge found this to be unsatisfactory and considered the insurers were being evasive by not explicitly accepting or denying each alleged piece of damage. The Associate Judge held that neither the Court nor the plaintiffs should be expected to ‘trawl through other documents in an attempt to understand the insurers’ case’. 

But Associate Judge Paulsen also went further and said that IAG’s responses which claimed they had ‘insufficient knowledge’ of the various particulars of repair deficiencies was unsatisfactory. Given that the proceeding had been underway since 2018 with an inspection of the property and joint expert reporting already having taken place, IAG should have had sufficient knowledge of their case to plead to it. IAG was also criticised for not pleading an affirmative defence about Hawkins’ involvement. 

How to avoid this particular pitfall

This case represents a shift from previous decisions which have referred to the fact expert evidence is complex and can sometimes necessitate the need to plead broadly. Sanderson means that if there is already sufficient expert evidence, then the parties must plead as specifically as possible including with reference to what that expert evidence says and on which evidence the party relies.

The keys to avoiding this pitfall are:

• Making sure that the documents, including any previous expert advice, relating to a matter are easily retrievable and used in forming an early strategy;
• Engaging any other relevant experts quickly, and taking time to understand their evidence and how it relates to the claim;
• Taking advice on overall litigation strategy, focusing on refining the issues in dispute by determining what really matters.

The basic principle of justice engaged in this case is knowing the case against you. But there are also good practical reasons why particulars are justified – they narrow the issues in dispute and mean that litigation can proceed in a more focused basis. Taking advice early can save time and cost over the life of a litigation file by avoiding these types of skirmishes and focusing on the issues preventing resolution. 

This article was written in collaboration with Charlie Robinson, a solicitor in Litigation / Public law