The plaintiff (who had been born in Germany) applied to become a member of the London Stock Exchange. The committee of the Stock Exchange, in the exercise of their discretion, refused the application. The plaintiff brought proceedings challenging that refusal and he alleged in his statement of claim that the committee did not exercise their discretion in a bona fide way. It had been established that there was a presumption that the committee of the Stock Exchange acted in a bona fide way and that the onus of rebutting this presumption lay upon a party who wished to challenge the decision of the committee. The plaintiff alleged that the committee did not exercise any discretion either bona fide , fairly, reasonably or judicially, but had acted arbitrarily. In their defence, the committee traversed each of the allegations made in the statement of claim. In addition it was specifically alleged that the committee, acting bona fide and honestly in the exercise of their duty and discretion under the Stock Exchange rules decided not to admit the plaintiff to membership of the exchange. The plaintiff sought particulars of the defence (including particulars of the allegations made). Among the particulars sought by the plaintiff were the facts and grounds on which the committee based their decision.
Held: The application for an order compelling the defendants to furnish the particulars was refused. Astbury J identified the rationale underlying the principle: ‘As a general rule the Court never orders a defendant to give particulars of facts and matters which the plaintiff has to prove in order to succeed, and this is especially the case where a defendant has confined himself to putting the plaintiff to the proof of allegations in the statement of claim, the onus of establishing which lies upon him.’ He reiterated the same point in these terms: ‘Under Order XIX r. 7, further particulars may be ordered of any matter ‘stated’ in any pleading requiring particulars. A traverse by a defendant, even of a negative plea by a plaintiff which he must establish in order to succeed, is not, in my judgment, a matter ‘stated’ within the defence within the meaning of this rule. The rules under the Judicature Act abolishing the general issue were intended to limit and define the issues to be tried, but not to force a defendant on a traverse to undertake the burden of proving anything himself, and still less to relieve a plaintiff from any onus of proof resting solely upon him.’
Astbury J
[1918] 1 Ch 133
England and Wales
Cited by:
Appeal From – Weinberger v Inglis and Others HL 1919
A member of enemy birth was excluded from the Stock Exchange, and it was held that the Committee had heard him before acting.
Held: The power to admit persons to membership was held to be both an administrative power and a fiduciary power. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.653101
