Moustafa Kiamil ν. Nadir Ramadan Kole and others (V19) 1 CLR 280

Moustafa Kiamil ν. Nadir Ramadan Kole and others (V19) 1 CLR 280 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 (V19) 1 CLR 280 1953 July 1 November 7, 1953 [HALLINAN, C.J., AND GRIFFITH WILLIAMS, J.] KIAMIL MOUSTAFA OF FAMAGUSTA, Appellant, v. NADIR RAMADAN KOLE AND OTHERS, Respondents. (Civil Appeal No. 4033.) Costs-Practice-Costs of successful defendant payable by unsuccessful defendant. The plaintiffs sued as dependants of a lighterman who had been killed by a sack falling from a ship which was discharging into a lighter. The Plaintiffs claimed compensation for negligence and joined three defendants : K.M. (the defendant-appellant), the Associated Agencies Ltd., and A. L. Mantovani & Sons, Ltd. The trial Court held K.M. liable but dismissed the claim against the other defendants as K.M. was an independent contractor. The plaintiffs paid the costs of the successful defendants. K.M. appealed and the plaintiffs in a cross-appeal claimed that K.M. should indemnify the plaintiffs for the costs paid to the successful defendants. K.M.'s appeal was dismissed. Held on the cross-appeal: The joiner of the successful defendants was reasonable and proper, and the plaintiffs' cross-appeal must therefore be allowed. It is preferable and more convenient where the unsuccessful defendant should pay the costs of the unsuccessful defendants, that these costs be paid direct rather than that the plaintiffs should pay in the first instance. Appeal by defendant No. 1 from the judgment of the District Court of Famagusta (Action No. 570/52). Stelios Pavlidcs, Q.C., for the appellant. G. Nicolaides with I . V. Avni for the respondents. The plaintiff joined three defendants : Kiamil Mustafa, the Associated Agencies Ltd. and A. L. Mantovani & Sons Ltd. The position of the defendants is explained in the following passage from the judgment of the trial Court: Defendant 1 is a stevedoring contractor; he was, at the material time, doing the unloading of the steamer in question, under contract with defendants 2, who are a limited liability company, carrying on the business of shipping agents, in Famagusta. They were the agents of unloading steamer, operating in conjunction with defendants 3, who are also shipping agents. At the closing of the trial counsel for plaintiffs, quite rightly in our opinion, stated that on the evidence adduced regarding the relationship between defendant 1 on the one part, and defendants 2 and 3 on the other it was clear that defendant 1 was acting as an independent contractor, and therefore no liability attached to defendants 2 and 3. Upon Appeal: HALLINAN, C.J.: (Only that part of the judgment is set out which deals with the cross-appeal). The respondents have filed a cross-appeal in which they ask for an order that the appellant indemnify the respondents for the costs £44. 17s. which the respondents were ordered by the trial Court to pay the successful defendants. The respondents, as they were entitled to do under O. 9 r. 7 of the Rules of Court, joined the appellant and the successful defendants. In my view, it was a reasonable and proper course for the respondents to join the defendants in the action; and the wisdom in the joinder was demonstrated when the, appellant filed his defence and in para. 3 thereof alleged that at the material time he was acting as the agent of the successful defendants; in other words, he sought to escape liability by making the successful defendants responsible. There is ample authority under the corresponding English rule (0. 16 r. 7) that in these circumstances the respondents can recover from the appellant the costs which they have paid to the successful defendants. The more convenient practice which might be followed in future cases of this sort is for the unsuccessful defendants to pay the costs of the successful defendants direct to them as is recommended in the case of Rundow v. Great Britain Assurance Society