The High Court has dismissed an application by four groups of investors for further particulars from Byrne Wallace Solicitors in litigation over the Project Ivanovici property scheme in Montenegro.
In a judgment delivered on 15 July 2015, Ms Justice Iseult O’Malley ruled that the investors had been given the broad outline of the defence and had received agreement to full discovery. She said it was neither necessary nor desirable to require the solicitors to provide an advance analysis of the evidence they intended to rely on at trial.
The litigation involves 47 investors, represented by four plaintiff groups. The investors say funds subscribed for a scheme to buy properties in Montenegro were not used for that purpose and are missing. They allege the solicitors are liable because subscription targets were not reached by the relevant backstop dates and the money should have been returned.
The solicitors say they acted for the project’s promoters, rather than the investors. They held investor funds and transferred them to third parties when target amounts were met; their defence pleads that transfers occurred only when the relevant target had been reached.
The investors’ requests varied by group. They sought, among other details, the names of investors and sums said to have met particular subscription targets, information about two project tranches, and particulars of the investment structure. The solicitors objected that these were matters for evidence at trial, and said relevant documents had been included in the agreed discovery.
Justice O’Malley applied the distinction between particulars, which define the issues and give each side the broad outline of the case it must meet, and evidence, which is presented at trial. She noted that particulars may be ordered to clarify issues or prevent surprise, but are not a substitute for witness evidence and cross-examination.
The judge concluded that the investors knew the defence and had received the discovery they requested. She characterised the further information sought as effectively requiring witness statements in advance, without the witnesses being able to put their answers in context. The application was dismissed. The judgment decided the application for particulars; it did not determine the underlying liability claims.