Cresta Holdings Ltd v Karlin
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE ORMEROD |
| Judgment Date | 28 October 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J1028-1 |
| Court | Court of Appeal |
| Docket Number | 1958. C. No. 1703 |
| Date | 28 October 1959 |
[1959] EWCA Civ J1028-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson and
Lord Justice Ormerod.
Mr IAN WARREN (instructed by Messrs Richards, Butler & Co.) appeared on behalf of the Appellants (Plaintiffs).
Mr MAURICE LYELL, Q.C., Mr JOHN SHAW and Mr JOHN RANKIN (instructed by Messrs Franks, Charlesly & Co.) appeared on behalf of Messrs Heller & Partners Limited (Defendants).
This is an interlocutory appeal by the plaintiffs from an order of Mr Justice Salmon made in chambers on the 27th July 1959 upon an application for particulars. The action by the plaintiffs, Cresta holdings Limited, is one against twelve defendants in respect of a large sum of money, some £300,000, of which the plaintiff company claims to have been defrauded. The allegation of fraud is made against the first two named defendants The eleventh named defendant is Heller & Partners Limited, a firm of merchant bankers; and the claim, so far as it affects the merchant bankers, is set out in paragraph 12 of the amended statement of claim as follows: "As a result of the transactions aforesaid" - that is to say, the fraudulent transactions - "the cheque referred to in paragraphs 2, 5, 7 and 9 hereof and the proceeds thereof being the property of the plaintiffs traceable in equity were received by Hellers. Hellers did not receive the same as purchasers for value without notice that the plaintiffs' said property was so dealt with as aforesaid without the authority of the plaintiffs".
The learned Judge has ordered the plaintiffs to give particulars of paragraph 12 of the statement of claim, directing them to give particulars after discovery: "Of the allegation that Hellers received the plaintiffs' said property with notice that it was dealt with without the authority of the plaintiffs stating whether it is alleged that the said notice to Hellers was express or was to be inferred; if express, whether oral or in writing; if oral, the date or dates when and by whom and to whom on behalf of Hellers it was given; if in writing, identifying the relevant documents; if inferred, the circumstances relied upon from which such notice is to be inferred".
The plaintiffs seek to resist the request, and to appeal against the order for particulars on the ground that, although they admit that they are making a positive allegation that Hellers had notice of the lack of authority of the plaintiffs, they are protected by the rules from any obligation to give any further particulars. Order 19, Rule 22 of the Rules of the Supreme Court deals with allegations of knowledge in this way: "Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred".
That rule was not always strictly applied, but this court in ( Burgess v. Beethoven Electric Equipment Limited 1943 King's Bench Division, page 96) pointed out that the rule must be strictly followed. The Master of the Rolls (Lord Greene) said at page 100: "Rule 22 seems to me to lay down as clearly as anything can be laid down that a pleading...
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