ALMANA ENGINEERING ν. GLYFOS COMMERCIAL
(1980)1 CLR 517 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
(1980)1 CLR 517 1980 September 9 [SAVVIDES, J.J ALMANA ENGINEERING & CONTRACTING CO. AND ANOTHER, Plaintiffs, GLYFOS COMMERCIAL & SHIPPING CO. LTD. AND OTHERS, Defendants. (Admiralty Actions Nos. 47 and 69/17). Costs-Discretion of Court-Action against three defendants- Claim against one defendant withdrawn-Counsel for such defendant also appearing for another defendant and filing joint defence for both-Whether just and equitable to award all costs of said defendant against the plaintiff. In the course of the hearing of applications for security for costs in the above actions, which were heard together as presenting common questions of law and fact, counsel for the plaintiffs abandoned the claim against defendants 3 in both actions and discontinued them. On the question of costs in so far as defendants 3 were concerned: Held, that the question of costs is within the unfettered discretion of the Court but such discretion has to be exercised judicially; that in these cases counsel for defendants 3 was also appearing for defendants 1 and a joint defence was filed for both of them; that with the exception of instructions and material facts which had to be included in the answer concerning defendants 3, all other steps taken in the action, were taken by counsel both for defendants 1 and 3; that, therefore, it will not be just and equitable to make an order for costs,: awarding all costs of defendants 3 against the plaintiff; and that, accordingly, plaintiffs are ordered to pay to defendants 3 full costs for instructions and preparation of the answer and one-half in respect of all other costs. Order accordingly. Cases referred to: Eleftheriou v. Rousou and Another
(1958)23 C.L.R. 191 at p. 195; Donald Campbell and Co. Ltd., v. Pollak [1927] A.C. 732 at p. 811; Baylis Baxter Ltd. v. Sabath [1958] 2 All E.R.
- Applications. Applications for orders directing the plaintiffs to give security for the defendant's costs. E. Psillaki (Mrs.), for the applicants-defendants. C. Velaris, for the respondents-plaintiffs. SAVVIDES J. gave the following decision. In the course of the hearing of applications for security for costs in the above actions which were heard together as presenting common questions of law and fact, counsel for plaintiffs stated that the claim against defendants 3 in both actions was abandoned and the actions were withdrawn and discontinued against them. The question which poses for consideration is that of costs in so far as defendants 3 are concerned. The law with regard to the awards of costs in Cyprus, is to be found in the Courts of Justice Law, 1960 and Order 59 of the Civil Procedure Rules. Rule 1 of Order 59, reads as follows "
- Subject to the provisions of any law or rules, the costs of and incident to any proceedings shall be in the discretion of the Court or Judge, who may authorize an executor, administrator or trustee who has not unreasonably instituted, or carried on, or resisted any proceedings, to have his costs paid out of a particular estate or fund." And the provision under section 43 of the Courts of Justice Law, 1960 (Law 14/1960) is as follows "
- The costs of, and incident to, all civil proceedings in any court shall, unless otherwise provided by any Law or public instrument in force for the time being, be in the discretion of the court and the court shall have full power to determine by whom, and to what extent such costs are to be paid". The said provisions correspond to similar provisions under the English Rules of the Supreme Court. The effect of the above provisions is to leave the question of costs to the unfettered discretion of the Court and the practice usually followed is that costs follow the event unless there are special circumstances justifying a different course. There is no doubt that such discretion, though wide, must be exercised judicially. The principles underlying the exercise of the discretion of the Court in the case of costs, appear in the case of Chrysoulla Eleftheriou v. Dora N. Rousou and another
(1958)C.L.R. Vol. 23, 191 at p. 195 where, Zannetides, J. had this to say:- "It is, I think, appropriate to state here that it is settled law both under English Law and under our Law that the unfettered discretion of the Court to award costs is subject to this limitation, namely, that this discretion must be exercised judicially." Reference is made in the said judgment to the leading case of Donald Campbell and Co. Ltd. v. Poliak [1927] A.C. 732 where all previous authorities are reviewed and in particular to what Viscount Cave, L.C. had to say at p. 811:- "This discretion, like any other discretion, must of course be exercised judicially, and the Judge ought not to exercise it against the successful party except for some reason connected with the case. Thus, if-to put a hypothesis which in our Courts would never in fact be realised-a judge were to refuse to give a party his costs on the ground of some misconduct wholly unconnected with the cause of action or of some prejudice due to his race or religion or (to quote a familiar illustration) to the colour of his hair, then a Court of Appeal might well feel itself compelled to intervene. But when a judge, deliberately intending to exercise his discretionary powers, has acted on facts connected with or leading up to the litigation which have been proved before him or which he has himself observed during the progress of the case, then it seems to be that a Court of Appeal, although it may deem his reasons insufficient and may disagree with his conclusion, is prohibited by the statute from entertaining an appeal from it". Reference is also made in Eleftheriou case (supra) to the case of Baylis Baxter Ltd. v. Sabath [1958] 2 All E.R. 209 in which the principles governing the discretion of the Court concerning costs as stated in the case of Donald Compbell (supra) were adopted and followed:- In the cases before me, counsel for defendants 3 was also appearing for the defendants 1 and a joint defence was filed for both of them. Therefore, with the exception of instructions and material facts which had to be included in the answer concerning defendants 3, all other steps taken in the action, were taken by counsel both for defendants 1 and 3. I, therefore, find that in the circumstances of the present case, it will not be just and equitable to make an order for costs, awarding all costs of defendants 3 against the plaintiff. In the result, the actions against defendants 3 are dismissed and I make the following order concerning costs Plaintiffs to pay the costs of defendants 3 as follows: Plaintiffs to pay to defendants 3 full costs for instructions and preparation of the answer and one-half in respect of all other costs. Costs to be assessed by the Registrar. Order accordingly. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο