clr/1979/1979_1_779.pdf

(2)(d), 10

(1)and 23 of the Contract Law, Cap. 149. Contract—Illegality—Contract tending to affect administration of justice—When illegal—Agreement for payment of repairs to car, • following traffic accident, in consideration offorbearance to sue— Not an illegal contract—Moreover said agreement not an illegal contract in the sense that it is against public policy. Damages—Motor-vehicle damaged in collision—Claim for damages for loss of use—Action not based on negligence but on agreement 779 Panayiotouτ.Solomoa

(1979)entered into immediately after collissionwhich contained no provision for such damages—Award thereforset aside. Immediately after a collision between the cars driven by the parties to this appeal they entered into the following agreement: "Today Thursday 20.12.73 an accident in which there were involved Mr.Doros Solomou and Mr. Pantelis Panayi occurred in Taygetos street, Kaimakli. The vehicle of the first is GY. 963 and of the second EW. 308. It has been agreed between them as follows: 5 Mr. Pantelis Panayi undertakes to bear all the damage to his own vehicle. Also, he undertakes to pay all the expenses for repairing car GY.963,as wellas for thereplace­ ment of any spare parts, so that it will be restored to its previous condition". 10 The respondent repaired his car at his own expense and sued the appellant for the cost of the repairs and for the damage suffered for the loss of use of the car. The statement of claim, so far as relevant, read: 15 "

(5)The plaintiff repaired his vehicle for the sum of £164.645 mils andasked thedefendant topaytheabove sum, 20 but the defendant refused and/or failed to do so.

(6)The plaintiff suffered further damage, due to the loss of the use of his car, amounting to £50.000 mils which he claims from the defendant.

(7)Therefore theplaintifffiledthepresentactionby which he claims: 25 (A) £214.645 mils as stated ". Upon appeal against the award of £199 by way of damages, which comprised £164 special damages for the repair of the car of the respondent and £35special damages for the loss of use 30 of such car, Counsel for the appellantcontended: (

1. a)Thatthe relief claimed has notbeen specifically pleaded in paragraph 7 of the statement of claim and therefore the respondent, as plaintiff, could not have succeeded in the action on the basis of the prayer for relief as 35 set out in the said paragraph 7. 780 1 C.L.R. 5 10 15 20 25 30 35 Panayiotoa τ. Solomou (
2. b)That the amount of £164.645 mils was not pleaded with sufficient particulars, in that it was not itemized so as to show how the cost of the repairs came to amount to £164.645 mils; and that evidence in this connection, by way of the production of the receipts in question, was wrongly admitted. (
3. c)Thattherewas noconsiderationgiven for theagreement entered intobetween theparties; and that,in any event, such agreement was an illegal contract, as being contrary to public policy, in that it aimed at preventing criminal proceedings against the appellant in relation to the traffic accident in question. During the hearing of the appeal counsel for the respondent conceded that the amount of £35 could not have been awarded against the appellant in the process of the determination of the civil action in question, because such action was not based on negligence but on the said written agreement which contained no provision atall for thepayment of damages totherespondent for loss of the use of his car. Held,

(1)thattherecan be nodoubt at all thatwhen by means of paragraph 7(A)of thestatementofclaimtheappellantclaimed £214.645 mils "ώ$ αναφέρεται" ("as stated") he did, in effect, specifically claim the amounts mentioned in paragraphs

(5)and

(6)of the statement of claim, one of them being the amount of £164.645 mils which he had paid in order to repair his car; and that, accordingly, contention (a) must fail.

(2)That the amount concerned was not a matter in respect of which full particulars had to be given in the statement of claim by virtue of the relevant provisions of rule 5 of Order 19 of the Civil Procedure Rules, but it was a mattei in respect of which it was open to the appellant, as defendant, to ask for further and better particulars under rules 6 and 7 of the same Order, and he has failed to do so (after stating the principles governing the degree of particularity of pleadings); that in the context of thecircumstances of this casejt was not necessary to plead in an itemized manner the said amountof £164.645 mils special damages; that the trial Judge rightly decided that the special damages had been properly pleaded and allowed the respondent to adduce in evidence receipts proving the payment 781 Panayiotou τ.Solomou

(1979)by him of £164.645 mils in relation to the repairs to his car; and that, accordingly, contention (b) must fail. Per curiam? Even if we had found that it was required to plead in an itemized manner the said amount of special damages, 5 we would have proceeded to allow, at the present stage, in the interests of justice, an amendment of the statement of claim, so that the rights of the respondent, under the agreement entered into with the appellant for the repair of the car of the respondent, would not be defeated by a 10 meie technicality (see, inter alia, in this connection, Pourikkos v. Fevzi

(1963)2 C.L.R. 24, 33).

(3)That the trial Judge has correctly found that the considera­ tion emerging, clearly, from the contents of the said agreement was that the respondent would forbear from suing the appellant 15 if the latter would pay the expenses for the repair of the car of the former and that this:amounted to adequate consideration (see the following passage from Cheshire and Fifoot's Law of Contract, 8th ed. p. 72: "Nor need there be any actual promise to forbear, if such an understanding can be inferred from the 20 circumstances and is followed by a forbearance in f a c t " ) ,

(4)(On the issue of whether the said agreement was an illegal contract) that though it is admitted that any contract or engage­ ment having a tendency,however slight, to affect the administra­ tion of justice is illegal and void, this rule applies only where the 25 offence for which the defendant is prosecuted is a matter of public concern; that in this case there is nothing in the relevant agreement about stifling a pending prosecution, or preventing the police from instituting proceedings in relation to the traffic collision in question or interfering otherwise, in any way, with 30 the course of the administration of justice; that, on the contrary, the two parties to this appeal reached the said agreement, immediately after the accident, with the encouragement and approval of the policeman who came to investigate it; that, moreover, the said agreement is not an illegal contract, in the 35 sense that it is against public policy, because it does not offend in the least- against the relevant principles of law which have been set out in this judgment (pp. 791-2 post); and that, there- 782 1 CX.R. Panayidtoa τ. Solomou fore, the appeal must fail in every respect, except in so far as it relates to the award of £35 for loss of use of the car. Appeal partly allowed. 10 Cases referred to: Imam v. Papacostas

(1968)1 C.L.R. 207, at p. 209; Ratcliffe v. Evans[1892] 2 Q.B. 524 at pp. 532-533; Perestrello e Companhia Limitada v. UnitedPaint Co., Ltd. [1969] 3 All E.R. 479 at p. 486; Broome v. Cassell & Co. Ltd. andAnother Samev. Same[1971] 1 All E.R. 262; Pourikkos v. Fevzi

(1963)2 C.L.R. 24 at p, 33; Egerton v. Brownlow, 10 E.R. 359 at p. 424; Keirv. LeemanandPearson, 115 E.R. (at pp. 118 and 1315); Fisher & Company v. Apollinaris Company [1874-75] 10 Ch. 297 at p. 303; Windhill Local Board of Health v. Vint [1890] 45 Ch. D. 351 at pp. 363-366. Appeal. 20 Appeal by defendant against the judgment of the District Court of Nicosia (Laoutas, D.J.) dated the 7th January, 1977 (Action No. 2303/74) whereby he was ordered to pay to the plaintiff the sum of £199.— by way of damages. A. Serghides, for the appellant. T. Eliades, for the respondent. 25 30 Cur. adv. vult. TRIANTAFYLLIDES P.: The appellant has appealed against the judgment of the District Court of Nicosia in action No. 2303/74 by means of which he was ordered, as the defendant in the action, to pay to the respondent, who was the plaintiff in the action, the amount of £199 by way of damages. What gave rise to the proceedings is a traffic accident which , occurred on December 20, 1973, when motor-car No. GY963, driven by the respondent, collided with motor-car No. EW308, driven by the appellant. 35 The aforesaid amount of £199 comprises £164 special damages 783 Triantafyllides P. Panayiotou v. Solomou

(1979)for the repair of the damage caused by the collision to thecar of the respondent and £35 special damages for the loss of the use of his car by the respondent for a period of two weeks while it was being repaired. During the hearing of this appeal counsel for the respondent conceded that the latter amount of £35 could not have been awarded against theappellant inthe process of thedetermination of the civil action in question, because such action was not based on negligence but on a written agreement which was entered into between the parties immediately after the collision and which contains no provision at all for the payment of damages to the respondent for loss of the use of his car while it was being repaired. The text of the said agreement, as drafted and signed by the parties to this appeal within a few minutes after the accident, reads as follows:- 5 10 15 "Σήμερον Πέμπτην 20.12.73 συνέβη δυστύχημα μεταξύ τοΰ κ. Δώρου Σολωμού καΐ τοΰ κ. Παντελή Παναγήels την όδόυ Ταϋγέτου-ΚαϊμακλΙ. Τά οχήματα τοΰ μέν πρώτου είναι GY.963 τοΰ δέ δευτέρου EW.

1. Συνεφωνήθη μεταΕϋ 20 αλλήλων τά κάτωθι: Ό κ. Παντελής Παναγή άναλαμβάνηεύθυνην να ΰποστή πλήρως τήν ζημίαν τοΰ οχήματος"του. Ώς επίσηςάναλαμ­ βάνη νά πλήρωση δλα τά έΐοδα των επιδιορθώσεων ώς καΐ τήν άνταλλαγήν οίουδήποτε εξαρτήματος ήθελε γίνη επί τοΰ αυτοκινήτουGY.963 δια νά γ[ντ\ώς καΐπρότερον." 25 ( "Today Thursday 20.12.73 an accidentin which there were involved Mr. Doros Solomou and Mr. Pantelis Panayi occurred in Taygetos street, Kaimakli. The vehicle of the first is GY.963 and of the second EW.
2. It has been 30 agreed between them as follows: Mr. Pantelis Panayi undertakes to bear all the damage to his own vehicle. Also,heundertakes to pay all the expenses for repairing car GY.963, as well as for the replacement of any spare parts, so that it will be restored to its previous 35 condition'*). In pursuance of this agreement the car of the respondent was taken to a mechanic chosen by the appellant; but two or three 784 1 C.L.R. 5 Panayiotou τ. Solomou Trlantafyllides P. days later the mechanic informed, the respondent that he had instructions from the appellant not to proceed to repair it at the expense of the appellant; so the respondent said that it should be repaired at, initially, his own expense and then, having paid for the repairs the amount of £164.645 mils, he filed the aforemen­ tioned action against the appellant. The material paragraphs of the statement of claim in this action, namely paragraphs 5, 6 and 7, read as follows:- 10 15 "

(5)Ό ενάγων έτπδιόρθωσεν το δχημά του έναντι τοΰ ποσοΰ των £164.645 μίλς καΐ έκάλεσεν τον έναγόμενον όπως καταβάλη τ6 ώς άνω ποσόν, άλλ* ό εναγόμενος ήρνήθη . ή/καΙ παρέλειψε νά πράΕητούτο.

(6)Ό ενάγωνυπέστη περαιτέρωζημίαςδι', άπώλειαν χρήσεως τοΰ οχήματος του ανερχομένη είς £50.000 μ(λς τήνοποίαν οΰτος απαιτεί παρά τοΰ εναγομένου.

(7)Διά ταύτα ό ενάγων έκίνησεν τήν παρούσαν άγωγήν δι' ής ά£ιοϊ: (Α) £214.645 μίλς ώς αναφέρεται ' % (Β) Νόμιμον τόκον 20 (Γ) "Κοδα." ( "

(5)The plaintiff repaired his vehicle for the sum of £164.645 mils and asked the defendant to pay the above sum, but the defendant refused and/or failed to do so. 25

(6)The plaintiff suffered further damage, due to the loss of the use of his car, amounting to £50.000 mils which he claims from the defendant.

(7)Therefore the plaintiff filed the present action by which he claims: (A) £214.645 mils as stated 30 (B) Legal interest (C) Costs."). Two, out of the three, grounds of appeal which counsel for the appellant has argued in this case relate to themode in which the statement of claim has been drafted: 35 It has,first,been submitted that therelief claimed hasnot been 785 Triantafyllides P. Panayiotou v. Solomou

(1979)specifically pleaded in paragraph 7 of the statement of claim and.that, therefore, Ihe respondent,as plaintiff, could not have succeeded in the action on the basis of the prayer for relief as set out in the. said paragraph 7. The trial Judge stated the following in relation to this aspect of the case:- 5 " If onelooks inIhestatementof claim onecannot seriously argue that no specific relief is sought therein. In the body of the.specially.indorsed writ therelief is clear andunambi­ guous. Theremediessought by theplaintiff are obvious and 10 specific and they are not confused." We are infull agreement with him as therecanbe nodoubtat all that when by means of sub-paragraph (A) of paragraph 7 the appellant claimed £214.645 mils "ώς αναφέρεται" ("as stated" ) he did, in effect,, specifically claim the amounts men- 15 tioned in paragraphs

(5)and

(6)of the statement of claim, one of them being theamountof £164.645 mils which hehad paidin order to repair his car. Counsel for the appellant has, secondly, argued that the said amount of £164.645 mils was not pleaded with sufficient parti- 20 culars, in that it was notitemized so as to show how thecost of the repairs came to amount to £164.645 mils. In this respect the trial Judge stated the following :" From-what it is stated hereinabove I am satisfied that particulars of special damage need not have been given, 25 becauseit isspecifically statedinthestatementofclaimwhat is the damage claimed and defendant knew very well what hehad to face at thetrial. Inmy opinion theomission on the part of the plaintiff togiveparticulars of each item does not render thepleading bad, because the-defendant had the 30 opportunity and the means to ask for further particulars. Concluding on this issue I would say that the defendant was not taken.by surprise and was fully aware all along what was the claim of the plaintiff." Actually, during the hearing of the action counsel for the 35 appellant objected to,the production by the respondent of the receipts concerning the cost of the repairs to his car, since no 786 1 C.L.R. 5 Panayiotou τ. Solomou Triantafyllldes P. particulars had been given of the amount of £164.645 mils which was claimed as special damages, and he has repeated the same argument before us in the sense that he has contended that evidence in this connection, by way of the production of the receipts in question, was wrongly admitted. The trial Court gave the following ruling when counsel for the appellant raised an objection to the admissibility of the receipts:- 10 15 20 25 " Having considered the arguments of both counsel I am of the opinion that the evidence of plaintiff on this issue is admissible. There was a remedy to the defendant respecting this issue by applying to the Court for further particulars with regard to the special damages. The defendant could have easily availed himself of the above procedure. It is not necessary to appear in the pleadings particulars on the damages, this being an action not based on negligence but rather on an agreement between the parties." The amount concerned was not a matter in respect of which full particulars had to be given in the statement of claim by virtue of the relevant provisions of rule 5 of Order 19 of the Civil Procedure Rules, but it was a matter in respect of which it was open to the appellant, as defendant, to ask for further and better particulars under rules 6 and 7 of the same Order, and he has failed to do so (see, inter alia, on this point, Imam v. PapaCostas,

(1968)1 C.L.R. 207, 209). In Bullen & Leake and Jacob's Precedents of Pleadings, 12th ed., it is stated (at p. 110) that:- 30 35 " The practice as to particulars demands in every pleading such a sufficiency of detail as will elucidate the issues to be tried and prevent 'surprise' at the trial. No hard-and-fast line can be laid down as to the degree of particularity which is required of the pleader and : which an opponent may demand of him when formulating his claim or defence. The precise degree of particularity required in any parti­ cular case cannot of course be predicated, but as much certainty and particularity must be insisted on as is reason­ able having regard to the circumstances and the nature of 787 Triantafyllides P. Panayiotou v. Solomou

(1979)the acts alleged

1. As Cotton L.J. stated in Philippsv. Philipps
2. In Ratcliffev. Evans, [1892]2Q.B. 524,Bowen L.J. stated the following (at pp. 532-533):" In all actions accordingly on the case where the damage 5 actually done is the gist of the action, the character of the actsthemselveswhichproducethedamage,and thecircumstances under which these acts are done, must regulate the degreeofcertainty and particularity with whichthedamage done ought to be stated and proved. As much certainty 10 and particularity must beinsisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be torelaxoldandintelligibleprinciples. Toinsist uponmore 15 would be the vainest pedantry." InPerestrello e CompanhiaLimitadav. UnitedPaint Co.,Ltd., [1969] 3 All E.R. 479, Lord Donovan, after referring to the Ratcliffe case, supra, said (at p. 486):" The same principle gives rise to a plaintiff's undoubted 20 obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage iscommonly referred to as special damage or special damages but is no 25 more than an example of damage which is 'special' in the sense that fairness to the defendant requires that it be pleaded. The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, 30 but becausea plaintiff whohas theadvantage of beingable to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible. What amounts to a sufficient averment for this purpose 35
3. See Ratcliffe v. Evans [1892] I Q.B. 524, per Bowen L J . at
5. [1878] 4 Q.B.D. 127, at
6. 788 1 C.L.R. 5 Panayiotou r. Solomou Triantafyllides P. will depend on the facts of the particular case, but a mere statement that the plaintiffs claim 'damages' is not sufficient to let in evidence of a particular kind of loss which is not a necessary consequence of the wrongful act and of which the defendants are entitled to fair warning." In the subsequent case of Broome v. Cassell & Co Ltd. and anotherSame v. Same, [1971] 1All E.R. 262, Lawton J. referred to both the Ratcliffe and Perestrello cases, supra, and observed the following (at p. 264):- 10 " The object of pleadings is to enable: first, the parties to know what case is being made by the other side; and, secondly, for the Court to know what are the issues to be tried. The days when pleadings were a form of catch-ascatch-can are over." ]5 In the light of all the foregoing, we are of the view that the trial Judge rightly decided that the special damages claimed by the respondent had been properly pleaded and allowed the respondent to adduce in evidence receipts proving the payment by him of £164.645 mils in relation to the repairs to his car. 20 Thus, in the context of the circumstances of this case, we cannot hold that it wasnecessary to plead in an itemized manner the aforesaid amount of special damages; but, even if we had found that thiswas required, we would hr.ve proceeded to allow, at the present stage, in the interests ofju:tice, an amendment of 25 thestatement ofclaim,so that therights cf the respondent, under the agreement entered into with the appellant for the repair of the car of the respondent, would not be defeated by a mere technicality (see, inter alia, in this connection, Pourikkos v. Fevzi,

(1963)2 C.L.R. 24, 33). 30 The third, and last, ground of appeal, which has been argued by counsel for the appellant, was based on the contention that there was no consideration given for the agreement entered into between the parties, as aforesaid, immediately after the collision of their cars; and that, in any event, such agreement was an 35 illegal contract, as being contrary to public policy, in that it aimed at preventing criminal proceedings against the appellant in relation to the traffic accident in question. In this respect, the trial Judge stated the following :" In the agreement, exhibit 1, although there is no express 789 Triantafyllides P. Panayiotou v. Solomou

(1979)provision that the plaintiff would forbear from suing nevertheless that was in reality agreed, on consideration that the defendant would pay the expenses for the repair of the car. I am satisfied that there is'adequate consideration. 5 Reading the agreement (exhibit *) m the light of what has been stated hereinabove,_and taking intQ consideration all the surrounding circurristances, I am of the opinion that it was not contrary to public policy. The prosecution or-hot of the defendant was not a public concern in as much as the 10 plaintiff could vindicate his rights by a civil action, irrespective of whether the defendant was criminally prosecuted or not. The interests of the public were not in any way affected because of the agreement. For these reasons I find that the agreement was lawful and valid." 15 What is "consideration" is defined in section 2

(2)(

1. d)of the Contract Law, Cap. 149, as follows:" (
2. d)when, at the desire of the promisor, the promisee or any other person has done or abstained from doing, 20 or does or abstains from doing, or promises to do or to abstain from doing,something,suchact orabstinence or promise is called a consideration for the promise;". Section 10

(1)of the said Law provides, inter alia, that— " All agreements are contracts if they are made by the ficc 25 consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void,...." Also, section 23 of the same Law reads as follows:"'23. The consideration or object of an agreement is 30 lawful, unless— (

1. a)it is forbidden by law; or (
2. b)is of such a nature that, if permitted, it would defeat the provisions of any law; or 790 1 C.L.R. Panayiotou v. Solomou Triantafyllides P. (
3. c)is fraudulent; or (
4. d)involves or implies injury to the person or property of another; or 5 (
5. e)the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void." 10 15 We are of the opinion that the trial Judge has correctly found that the consideration emerging, clearly, from the contents of the agreement, exhibit 1, was that the respondent would forbear from suing the appellant if the latter would pay the expenses for the repair of the car of the former and that this amounted to adequate consideration. In this connection it is useful to quote the following passage from Cheshire and Fifoot's Law of Contract, 8th ed., at p. 72:" Nor need there be any actual promise to forbear, if such an understanding can be inferred from the circumstances and is followed by a forbearance in fact." 20 25 Regarding, next, the issue of whether the said agreement is an illegal contract, it is correct that, as waf. pointed out by Lord Lyndhurst in Egertonv. Brownlow,10 Ε.Γ.. 359 (at p. 424):" It is admitted, that any contract ot engagement having a tendency, however slight, to affect the administration of justice, is illegal and void." But, in Cheshire and Fifoot's Law of Contract, supra, after reference has been made to the above quoted dictum there appears the following passage (at pp. 328, 329):- 30 35 " This rule, however, applies only where ther offence for which the defendant is prosecuted is a matter of public concern, i.e. one which pre-eminently affects the interests of the public. If the offence is not of this nature, but is one in which the injured person has a choice between a civil and a criminal remedy, as for instance in the case of a libel or an assault, a compromise is lawful and enforceable." 791 Triantafyllides P. Panajiotou v. Solomou

(1979)As an authority in this connection the leading case of Keir v. Leeman and Pearson, 115E.R. (at pp. 118and 1315) is relied on in the aforesaid textbook. In Fisher & Company \. Apollinaris Company, [1874-75] 10 Ch. 297, Sir G. Mellish L.J. said (at p. 303):- 5 " But, in my opinion, there is no objection to the compromise of a charge of this sort on such terms. The complaint was that Fisher had used the trade-mark of this company. Now, previously to ths Trade Marks Act (25 &26 Vict. c. 88), the sole remedy for the wrong complained of by the 10 company would have been byaction at law or suit in equity, but under this Act the wrong became also the subject of a criminal prosecution. There was no authority for saying that it was wrong in theprosecutors to withdraw from such a charge of this kind. The prosecutors allowed him to 15 state that his offence was not wilful, and accepted an apology. Such compromises are constantly made before criminal Courts in cases of assault or libel. In some cases there is a payment of money; in other cases, no payment at all; and it has never been considered that there was 20 anything wrong in such transactions. It would, of course, be different if there was any case alleged of extorting money under threats." Also, in Windhill Local Board of Health v. Vint, [1890] 45 Ch. D. 351 (at pp. 363-366) the case of Keir,supra, was referred 25 to with approval. It is to be pointed out that in the present case there is nothing in the relevant agreement, exhibit 1, about stifling a pending prosecution, or preventing thepolice from instituting proceedings in relation to the traffic collision in question, or interfering other- 30 wise, in any way, with thecourse of theadministration ofjustice; on the contrary, as it appears from the evidence, the two parties to this appeal reached the said agreement, immediately after the accident, with the encouragement and approval of the policeman who came to investigate it. 35 Moreover, we are of the opinion that the said agreement is not an illegal contract, in the sense that it is against public policy, because it does not offend in the least against the relevant principles of lav/ which have been set out in this judgment. For all the foregoing reasons this appeal fails in every respect» 792 40 1 C.L.R. Panayictou v. Solomou Triantafyllides P. except insofar as it relates to theaward of C£35for lossofthe use of the car of the respondent while it was under repair, and, therefore, it is dismissed, subject to the amount of damages awarded against theappellant beingreduced bythesaid amount 5 to £164 only. As the appellant has been successful in relation to the aspect ofthedamagesfor thelossoftheuseofthecaroftherespondent weorder lum to pay to the respondent only half of,the costsof this appeal. 10 Appeal partly allowed.Order for costsas above. 793