RUSSELL NOACH (PVT) LTD v MIDSEC NORTH (PVT) LTD 1999 (2) ZLR 8 (H)

Flynote

Practice and procedure ” pleading ” plea to summons ” time within which must be made ” notice of intention to bar given to defendant ” extension of time within which to file plea ” may not be secured by filing request for further particulars

Headnote

The respondent company instituted an action against the applicant company, claiming payment for services rendered. A summons was served on the defendant. Shortly before the expiry of the time within which it was required to plead, the applicant asked for further particulars. Some of the particulars asked for were irrelevant, but the relevant particulars were delivered timeously. The time within which the applicant was required by the Rules of the High Court to file its plea or make a request for further and better particulars expired and notice of intention to bar was given to the applicant. Instead of filing a plea within the four days allowed by the Rules, the applicant filed what it called a request for further and better particulars. The respondent imposed the bar and applied for default judgment, which was in due course granted. The applicant applied for rescission of judgment, arguing that the respondent had no right to bar it from filing a plea before having supplied the further and better particulars it had requested.

Held, that the respondent was entitled to ignore the request for further particulars. If the applicant had wanted further and better particulars, it had 12 days from the date when the particulars were delivered either to file a plea or request the further particulars. By failing to do so, it lost the right to dictate the next procedural step and so became liable to being barred. The power was then vested in the respondent to determine the next step. The applicant failed to do what was required of it by the respondent, which was to file its plea within four days. It had no right to file a request for further particulars. The request was invalid for being filed out of time, and improper, because it was not what it was required to do. The bar was thus properly imposed and default judgment properly obtained.