clr/1977/1977_1_278.pdf

(1)that the test whether, under rule 30 of the Cyprus Admiralty Jurisdiction Order, 1893, the Court has jurisdiction 278 \ to add as defendant a person whom the plaintiff did not wish to sue was whether the order for which theplaintiff was asking in the action might directly affect the intervener by curtailing theenjoyment of hislegalrights. 10 15 20

(2)That if the plaintiffs in this action obtain judgment in default of appearance against thedefendant ship, then thelegal 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 thejudgment 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 isaproper case for the exercise of theCourt'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; cf. rule 10 of Order 9 of the Civil Procedure Rules and Rule 6 of Order 15 of the Rules of theSupremeCourt inEngland). Applicationgranted. Cases referred to: Amon v. Raphael Tuck &Sons Ltd. [1956] 1All E.R. 273; 25 General InsuranceCo. of CyprusLtd. v. Maroulla Georghiou andAnother

(1963)2C.L.R. 117. Application. Application by applicants for leave to take part in the proceedings andbejoined asco-defendants in anAdmiral30 ty Action whereby the plaintiffs claimed from the defendants the equivalent in Cyprus pounds of the sum of 60,000U.S.dollarsunder aregisteredmortgage. E.Lemonaris,for theapplicants. A. Poetis, for therespondents. 35 Cur.adv.vult. Thefollowing judgmentwasdeliveredby:MALACHTOS,J.:Theplaintiffs in this AdmiraltyAction on the 22nd day of January, 1977, issued a writ of sum279 1977 July 16 STELIOS KLONOPOULOS AND ANOTHER v. NIRHS SHIPPING CO. LTD. AND ANOTHER 1977 July 16 STELIOS KLONOPOULOS AND ANOTHER v. NIRIIS SHIPPING CO. LTD. AND ANOTHER mons claiming as stated therein, against both defendants jointly and severally, defendants No. 1being 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 mortgageexecuted on or about 10th July, 1976 in favour of plaintiff No. 1and transferred toplaintiff No. 2onor about 18thJuly, 1976. On the 19th February, 1977, the timefixed by thewrit of summons for theappearance of theparties,the twoapplicants, namely, Victor J. Roman of Nicosia and Bernadino Valesko Ribera of Puerto Rico, appeared by advocate and applied for leave to takepart in the proceedings and be joined as co-defendants. In fact, a written application to this effect wasfiled 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 waseffected as it appears from thefile on 1stFebruary, 1977. 10 15 The facts in support of theapplication are not disputed and are contained in the affidavit accompanying the said application. Theyareasfollows: On the 18th September, 1976, the two applicants instituted legal proceedings against the two defendants in Action No. 148/76 claiming- , 20 25 (

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 30 (
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. 35 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 280 as from the above date to final payment with C £ 1 1 0 . costs of the action. In view of the failure of the defendants to pay the said judgment debt the applicants, on 13th December, 1976, 5 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 1in the present proceedings, the 10 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 15 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 thereserved price of C£25,000.- by the Court. The application is based on rule 30 of the Cyprus Ad20 miralty 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 25 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 30 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 35 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 rea281 1977 July 16 STELIOS KLONOPOULOS AND ANOTHER v. NIRIIS SHIPPING CO. LTD. AND ANOTHER 1977 July 16 STELIOS <LONOPOULOS \ N D ANOTHER v. NIRIIS SHIPPING CO. LTD. \ N D ANOTHER son of the misjoinder or non-joinder of parties, and the Court may inevery cause or matter dealwith the matter incontroversy sofar asregards therightsand interests of the parties actually before it. The Court or a Judge may, at any stage of the proceedings, 5 either upon orwithout theapplication of eitherparty, and on such terms as may appear to the Court or Judge to bejust, order that the names of anyparties improperly joined, whether asplaintiffs or as defendants, be struck out, and that thenames of any par- 10 ties, whether plaintiffs or defendants, who ought to havebeen joined,or whosepresencebefore theCourt -may be necessary in order toenable the Court effectually and completely to adjudicate upon and settle all the questions involved in the causeor matter, be 15 added. No person shall be added as a plaintiff suing without a next friend, or asthenextfriend of aplaintiff under any disability, without his own consent in writing thereto. Every party whosename is soadded as defendant shall be served with awrit of summons 20 ornoticeinmanner provided byrule 11of thisOrder or in such manner as may be prescribed by anyspecial order, and theproceedings as againstsuch party shall be deemed to have begun only on the service of suchwritornotice". 25 Order 15,rule 6 of the R.S.C. in England reads: "6.-(
3. l)No cause or matter shallbe defeated by reasonof the misjoinder or nonjoinder of anyparty;and the Court may in any causeor matter determine the issuesor questionsin disputesofar asthey affect the 30 rights and interests of the persons who are parties to thecauseor matter.

(2)At any stage of theproceedings in any cause or matter the Court may on such terms as it thinks just and either of itsown motion or on application - 35 (

1. a)order any person who has been improperly or unnecessarily made a party or who has for anyreason ceased tobea proper ornecessary party, to cease tobe a party; (
2. b)order any of the following persons to be 40 addedasaparty,namely282 5 10 ]5 20 25 (
3. i)any person who ought to have been joined as a party or whose presence before theCourtisnecessarytoensure that allmatters indisputein thecause or matter maybeeffectually andcompletely determined and adjudicated upon, or (
4. ii)any person between whom and any party tothecauseormatter theremay exist aquestion or issue arising outof 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 bejust and convenient to determine as between him and that party as well as between the parties tothecauseormatter; but no person shall be added as a plaintiff without his consent signified in writing or insuch other mannerasmaybeauthorised.

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

(2)adding him as a party must,except with theleave 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 himand anypartytothecauseormatter". The question asto whether the court has jurisdiction to add as a defendant a person whom the plaintiff does not 30 wish to be added as such, as in the present case, hasbeen extensively dealt with in the case of Amort v. Raphael Tuck &SonsLtd. [1956] 1All E.R. 273.In that caseby his statement of claim in an action against the defendants the plaintiff alleged that hewas the inventor of a newde35 signof adhesivedispenser in the shapeof a pen, known as the Fastik pen; that he disclosed the "knowhow" of the pen to the defendants during negotiations for an agreement whereby thedefendants wereto market thepen;that inFebruary, 1954,thenegotiationsbrokedown;that there 40 was an implied contract that thedefendants would treat as confidential the information given to them during the negotiations; and that the defendants were in breach of that 283 1977 July 16 STELIOS KLONOPOULOS AND ANOTHER v. NIRIIS SHIPPING CO. LTD. AND ANOTHER 1977 July 16 STELIOS KLONOPOULOS AND ANOTHER v. N1RUS SHIPPING CO. LTD. AND ANOTHER contract in that they had made useof the information by manufacturing adhesive dispenser called the Stixit pen which contained three distinctive features of the Fastik pen. Theplaintiff claimed damages against the defendants and an injunction to restrain the defendants from disclosingtootherpersonsormakinguseof theinformation disclosed bytheplaintiff without hisconsent.The defendants, before filing adefence, applied bysummons under R.S.C., Ord. 16,r. 11,for leavetojoin asa defendant oneD.who by affidavit alleged, among other things, that he was the inventor of"theStixit 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 theplaintiff wasaskingintheactionmight directly affect the intervener (i.e., the person proposed to be added as a party)by curtailing the enjoyment of hislegal rights. (
2. ii)D. should be added as defendant in thepresent 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 enjoymentof whichmightbecurtailedbyrelief. At page 290 of thisreport Devlin J., after reviewing the relevant authoritieshad thistosay: "As Wynn-Parry, J., said in DollfusMieget Compagnie S.A. v. Bank of England [1950] 2 All E.R. at 30 p.611: 'It seems to me that the true test lies not so much in any analysisof what aretheconstituents of theapplicants' rights, but rather in what would be the result on the subject-matter of the action ifthoserights 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'?" 284 10 15 20 25 35 40 5 10 15 20 25 30 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 roadaccident. 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. 2526/61 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 10of 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 35 insurers (appellants) against their insured, as well as in the outcome of thelitigation 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 40 R.S.C., Order 16,rule11. In the case in hand it is clear that if the plaintiffs in this action obtain judgment in default of appearance against 285 1977 July 16 STELIOS KLONOPOULOS AND ANOTHER v. NIRIIS SHIPPING CO. LTD. AND ANOTHER 1977 July 16 STELIOS KLONOPOULOS AND ANOTHER v. NIRIIS SHIPPING CO. LTD. AND ANOTHER the defendant ship, then the legal rights of the applicants willdirectly be affected bythe saidjudgment. The saleof thedefendant ship, asit appears from thefile, 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 thepresent actionoreither of them. Thequestion of priority then will arise and certainly the resultwill betothedetriment oftheapplicants. 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 herebymade that the two applicants be added as defendants 2 and 3, respectively, and the writof summonsshould beamendedaccordingly. 10 15 This action is adjourned to 12th September, 1977 for service of the amended writ on the new defendants and for anynecessarydirections. The applicants are entitled to their costs to be assessed attheendof theproceedings. 20 Order accordingly. 286