The defendant in a patent infringement action brought a motion for an order requiring the plaintiff to serve a Statement of Defence to Counterclaim and that the action continue as a specially managed proceeding. The plaintiff brought a cross motion for an order that the defendant be required to provide answers to a further request for particulars. The plaintiff consented to the matter continuing as a specially managed proceeding.
The Court refused to dismiss the motion for particulars on the basis that no affidavit was provided indicating that particulars were required for pleading. However, the Court redefined the test to be applied in a motion for particulars. It held that the Court must look at whether the particulars requested are material facts or whether they are evidence. Only material facts may be ordered to be provided. Then the Court should look at the particulars requested and determine whether they are necessary for the purpose of being able to respond to the pleading.
If so, then they should be ordered to be provided. The Court also held that when determining whether a party is entitled to particulars, one is very much guided by the nature of the litigation and the facts of the particular case.
The Court then considered each of the individual requests for particulars. Some were granted, others were denied. The Court also set a schedule for the filing of particulars and of the Statement of Defence to Counterclaim.