STELIOS KLONOPOULOS AND ANOTHER ν. NIRIIS SHIPPING CO. LTD. AND ANOTHER (1977) 1 CLR 278

(1977)1 CLR 278 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων

(1977)1 CLR 278 1977 July 16 [MALACHTOS, J] STELIOS KLONOPOULOS AND ANOTHER Plaintiffs, v.

1. NIRIIS SHIPPING CO. LTD
2. THE SHIP "NIRIIS", Defendants. (Admiralty Action No. 20/77). Admiralty-Practice-Parties-Joinder-Discretion of the Court-Application to be added as co-defendants-Applicants not parties to the action-Whether Court has jurisdiction to add as a defendant a person whom the plaintiff did not wish to sue-Test applicable-Relief claimed by plaintiffs in the action directly affects the applicants in the enjoyment of their legal rights-Application granted-Cyprus Admiralty Jurisdiction Order, 1893 rule 30-Cf. Order 9, rule 10, of the Civil Procedure Rules and Order 15 rule 6 of the Rules of the Supreme Court (English). Parties-Joinder-Admiralty Action. On January 22, 1977 the plaintiffs in this action issued a writ of summons, claiming against both defendants, jointly and severally, the sum of 60,000 U.S. dollars under a registered mortgage. No appearance was entered on behalf of the defendant ship. On February 19, 1977, the two applicants, namely Victor J. Roman and Bernadino Valesko Ribera applied for leave to take part in the proceedings and be joined as co-defendants. They alleged that on October 22, 1976 they obtained in another action judgment against both the defendants in this action for the sum of £20,046; and that in view of the failure of the defendants to pay the judgment debt the applicants obtained an order for the appraisement and sale of the defendant ship, which did not finally materialize because the highest bidder offered much less than the reserved price of C£25,000 fixed by the Court. Held,

(1)that the test whether, under rule 30 of the Cyprus Admiralty Jurisdiction Order, 1893, the Court has jurisdiction to add as defendant a person whom the plaintiff did not wish to sue was whether the order for which the plaintiff was asking in the action might directly affect the intervener by curtailing the enjoyment of his legal rights.

(2)That if the plaintiffs in this action obtain judgment in default of appearance against the defendant ship, then the legal rights of the applicants will directly be effected by the said judgment because the sale of the defendant ship will furnish an amount which will not be sufficient to cover both the judgment debt due to the applicants and the claim of the plaintiffs in the present action or either of them; that the question of priority then will arise and certainly the result will be to the detriment of the applicants; that, therefore, this is a proper case for the exercise of the Court's discretion in favour of the applicants as the relief claimed by the plaintiffs in the action directly affects the interveners in the enjoyment of their legal right; and that, accordingly, an order is hereby made that the two applicants be added as defendants (see rule 30 of the Cyprus Admiralty Jurisdiction Order, 1893; of. rule 10 of Order 9 of the Civil Procedure Rules and Rule 6 of Order 15 of the Rules of the Supreme Court in England). Application granted. Cases referred to: Amon v. Raphael Tuck & Sons Ltd. [1956] 1 All E.R. 273; General Insurance Co. of Cyprus Ltd. v. Maroulla Georghiou and Another

(1963)2 C.L.R. 117. Application. Application by applicants for leave to take part in the proceedings and be joined as co-defendants in an Admiralty Action whereby the plaintiffs claimed from the defendants the equivalent in Cyprus pounds of the sum of 60,000 U.S. dollars under a registered mortgage. E. Lemonaris, for the applicants. A. Poetis, for the respondents. Cur. adv. vuit. The following judgment was delivered by: MALACHTOS, J.: The plaintiffs in this Admiralty Action on the 22nd day of January, 1977, issued a writ of summons claiming as stated therein, against both, defendants jointly and severally, defendants No. 1 being the owning company of defendant No. 2 ship, the equivalent in Cyprus pounds of the sum of 60,000 U.S. dollars together with interest thereon at the rate of 9% per annum under a registered mortgage executed on or about 10th July, 1976 in favour of plaintiff No. 1 and transferred to plaintiff No. 2 on or about 18th July, 1976. On the 19th February, 1977, the time fixed by the writ of summons for the appearance of the parties, the two applicants, namely, Victor J. Roman of Nicosia and Bernadino Valesko Ribera of Puerto Rico, appeared by advocate and applied for leave to take part in the proceedings and be joined as co-defendants. In fact, a written application to this effect was filed on their behalf on the 27th January, 1977 which was also fixed for the 19th February, 1977. No appearance was entered on behalf of the defendant ship although service was effected as it appears from the file on, 1st February, 1977. The facts in support of the application are not disputed and are contained in the affidavit accompanying the said application. They are as follows: On the 18th September, 1976, the two applicants instituted legal proceedings against the two defendants in Action No. 148/76 claiming- (

1. a)40,000 U.S. dollars loaned to defendant No. 1 company for the purpose of purchasing defendant No. 2 ship by virtue of an agreement evidenced in writing made in Nicosia on 7th July 1976; and (
2. b)the equivalent in Cyprus money of U.S. dollars 8,027,00 owed to applicant No. 1 by the two defendants for wages and services rendered as husband and/or manager of the defendant No. 2 ship. On 22nd October, 1976 'the applicants obtained judgment in the said action against both defendants for the sum of £20,046.-, being the equivalent in U.S. dollars 48,027 with interest thereon at the rate of 4% per annum as from the above date to final payment with C£110.-costs of the action. In view of the failure of the defendants to pay the said judgment debt the applicants, on 13th December, 1976, applied to this court and obtained an Order for the appraisement and sale of the defendant No. 2 ship, which was at the time under arrest at the Limassol port. As it appears from the file of the said action, which has been produced as exhibit 1 in the present proceedings, the the sale of the said ship was fixed by the Marshal for the 28th January, 1977, but on the application of the applicants was postponed till the 28th February, 1977. The applicants by application filed on the 25th February, 1977, obtained an order for further postponement of the said sale, which, finally, was fixed for the 27th June, 1977. But, again, the said sale did not materialise in view of the fact that the highest bidder offered much less than the reserved price of C£25,000.- by the Court. The application is based on rule 30 of the Cyprus Admiralty Jurisdiction Order 1893, which reads as follows: "30. The Court or Judge may at any stage of the proceedings and either with or without an application for that purpose being made by any party or person and upon such terms as shall seem just, order that the name or names of any party or parties be struck out or that the names of any person or persons who are interested in the action or who ought to have been joined either as plaintiffs or defendants or whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the action added". This rule corresponds to rule 10 of Order 9 of our Civil Procedure Rules and to rule 6 of Order 15 of the Rules of the Supreme Court in England (former rule 11 of Order 16). Order 9, rule 10 of the Civil Procedure Rules is as follows:- "10. No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or Judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner provided by rule 11 of this Order or in such manner as may be prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice". Order 15, rule 6 of the R.S.C. in England reads: "6.-

(1)No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application- (

1. a)order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party; (
2. b)order any of the following persons to be added as a party, namely- (
3. i)any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or (
4. ii)any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter; but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

(3)An application by any person for an order under paragraph

(2)adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter". The question as to whether the court has jurisdiction to add as a defendant a person whom the plaintiff does not wish to be added as such, as in the present case, has been extensively dealt with in the case of Amon v. Raphael Tuck& Sons Ltd. [1956] 1 All E.R. 273. In that case by his statement of claim in an action against the defendants the plaintiff alleged that he was the inventor of a new design of adhesive dispenser in the shape of a pen, known as the Fastik pen; that he disclosed the "knowhow" of the pen to the defendants during negotiations for an agreement whereby the defendants were to market the pen; that in February, 1954, the negotiations broke down; that there was an implied contract that the defendants would treat as confidential the information given to them during the negotiations; and that the defendants were in .breach of that contract in that they had made use of the information by manufacturing adhesive dispenser called the Stixit pen which contained three distinctive features of the Fastik pen. The plaintiff claimed damages against the defendants and an injunction to restrain the defendants from disclosing to other persons or making use of the information disclosed by the plaintiff without his consent. The defendants, before filing a defence, applied by summons under R.S.C., Ord. 16, r. 11, for leave to join as a defendant one D. who by affidavit alleged, among other things, that he was the inventor of the Stixit pen. Subsequently, D. filed another affidavit alleging among other allegations, that the defendants were under contractual obligation to him to manufacture and distribute the Stixit pen in certain territories. Held: (

1. i)the test whether under R.S.C., Ord. 16, r. 11, the Court had jurisdiction to add as defendant a person whom the plaintiff did not wish to sue was whether the order for which the plaintiff was asking in the action might directly affect the intervener (i.e., the person proposed to be added as a party) by curtailing the enjoyment of his legal rights. (
2. ii)D. should be added as defendant in the present case because the defendants were shown prima facie to be bound to him in contract to manufacture the Stixit pen, which obligation constituted a legal right of D. 's enjoyment of which might be curtailed by relief. At page 290 of this report Devlin J., after reviewing the relevant authorities had this to say: "As Wynn-Parry, J., said in Dollfus Mieg et Compagnie S.A. v. Bank of England [1950] 2 All E.R. at p. 611: 'It seems to me that the true test lies not so much in any analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject-matter of the action if those rights could be established'. I respectfully agree with that. I think that the test is: 'May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights'?" This case was followed by this Court in its appellate jurisdiction in the case of General Insurance Co. of Cyprus Ltd. v. Maroulla Georghiou and another

(1963)2 C.L.R. 117. The intervener in that case sustained personal injuries in a road accident where the motor vehicle of one Maroulla Georghiou was involved. Eventually he brought an action in the District Court of Limassol (Action No. 721/62) claiming damages for negligence against her for the personal injuries sustained by him in the said road-accident. The defendant Maroulla was covered by a third party policy of insurance under the Motor Vehicles (Third Party Insurance) Law, Cap. 333 and the plaintiff took all steps required by section 10

(2)of the statute enabling him to enforce against the insurers the judgment which might be given in his favour in that action against the said insured, Maroulla Georghiou. On the other hand the Insurers (appellants) had instituted earlier in the District Court of Limassol action No. 2526/6 1 against the said insured, Maroulla, claiming a declaration of the Court that the aforesaid policy of insurance was void for non disclosure of material facts. The intervener applied to the District Court of Limassol in the latter action to be added as co-defendant therein along with Maroulla Georghiou, the insured-defendant, under Order 9, rule 10 of the Civil Procedure Rules. The District Court granting this application ordered that the intervener be added as co-defendant and that the writ of summons, etc., be amended accordingly. The insurers appealed against this order of the District Court of Limassol and the High Court dismissing the appeal:- Held,

(1)it is beyond question that regard being had to the whole scheme of the Motor Vehicles (Third Party Insurance) Law, Cap. 333, the intervener has an interest in the policy subject matter of the action instituted by the insurers (appellants) against their insured, as well as in the outcome of the litigation in question.

(2)Therefore, the District Court has rightly exercised its jurisdiction under Order 9, rule 10, of the Civil Procedure Rules, corresponding to the English rule, i.e R.S.C., Order 16, rule 11. In the case in hand it is clear that if the plaintiffs in this action obtain judgment in default of appearance against the defendant ship, then the legal rights of the applicants will directly be affected by the said judgment. The sale of the defendant ship, as it appears from the file, will furnish an amount which will not be sufficient to cover both the judgment debt due to the applicants and the claim of the plaintiffs in the present action or either of them. The question of priority then will arise and certainly the result will be to the detriment of the applicants. I, therefore, hold the view that this is a proper case to exercise my discretion in favour of the applicants as the relief claimed by the plaintiffs in the action directly affects the interveners in the enjoyment of their legal right. So, an Order is hereby made that the two applicants be added as defendants 2 and 3, respectively, and the writ of summons should be amended accordingly. This action is adjourned to 12th September, 1977 for service of the amended writ on the new defendants and for any necessary directions. The applicants are entitled to their costs to be assessed at the end of the proceedings. Order accordingly. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο