clr/1981/1981_1_605.pdf

(1981)therespondents-plaintiffs andanapplicationfor aninterlocutory injunction restraining theappellants-defendants from conducting a bus service within the urban transport limits of Limassol pending the determination of the action. Upon appeal by the defendantsagainst the grantof the interlocutory injunction*, it was mainly contended that: 5 (

1. a)That there was no probability that the plaintiffsrespondents were entitled to relief in the sense that·— (
2. i)The plaintiffs had no actionable right; and, (
3. ii)The defendants were not violating any Law by operating their buses as aforesaid. 10 (
4. b)That the balance of convenience did not justify the issue of this order. (
5. c)That the trial Judge went wrong in theresult because the respondents were not among the class envisaged to be protected by the Motor Transport (Regulation) Laws, 1964-1978 and because they were lacking legiti­ mate interest in the proceedings as they were only entitled to carry passengers at separate fares. 15 Held, that the Motor Transport (Regulation) Laws, 1964- 20 1978, impose not only a public duty, but confer a civil remedy as well; that a public carrier, being a carrier at separate fares or otherwise, stands to lose whenever anyone is allowed within his area to conduct a bus service, be it under a contract; that their interest in the proceedings is self-evident; that the submis- 25 sion that the Court should leave matters as they are pending the hearing overlooks what prima facie appears to be a sad reality, viz. theappellants are conductingthebusservice illegally; that the granting of an interlocutory injunction is a matter of judicial discretion and the onus is on the appellant to satisfy 30 the appellate tribunal that the trial Court's discretion was wrongly exercised (see, inter alia, IoannisKotsapas & Sons Ltd. v. TitanConstruction andEngineering Co., 1961 C.L.R. 317-322); that the damages to be suffered by theplaintiffs, if the violation of the Law and theinfringement of therightsof the respondents 35 were allowed to continue, would be difficult to be assessed The interlocutory injunction was granted under section 32 of the Courts of Justice Law, 1960 which is quoted at p. 608 post. 606 1 C.L.R. Μ. &Μ.Transport v. Eterla Astikon Lcoforioo with sufficient certainty at the end of the trial and it would be impossible to do completejustice at that stage; that, therefore, this Court is not satisfied that the grant of the order by the Court below was wrong; accordingly the appeal must fail. 5 Appeal dismissed. Cases referred to: Prestonv. Luck [1884] 27 Ch. D. 497; American Cyanamid Co. v. Ethicon Ltd. [1975] 1 All E.R. 504; 10 Acropol Shipping Co. Ltd. and Others v. PetrosI. Rossis

(1976)1 C.L.R. 38; Nemitsas Industries Ltd. v. S. & S. Maritime Lines Ltd. and Others

(1976)1 C.L.R. 302; Karydas Taxi Co. Ltd. v. Andreas Komodikis

(1975)1 C.L.R. 321; 15 Constar.tinides v. Makriyhrghou and Another

(1978)1 C.L.R. 585; Smith and Others v. Inner London Education Authority [1978] 1 All E.R. 411; Bryanston Finance Ltd. v. de Vries (No.2) [1976] 1All E.R. 25; 20 Peristeronopighi Transport Co. Ltd. v. Toumazou

(1970)1C.L.R. 196; IoannisKotsapas& Sons Ltd. v. Titan Construction and Engi­ neering Co., 1961 C.L.R. 317; Efstathios Kyriacou &SonsLtd. v.Mouzourides

(1963)2C.L.R.1. 25 Appeal. Appeal by defendants against the order of the District Court of Limassol (Elefthenou, D.J.) dated the 2nd August, 1980 (Action No. 1902/80) whereby they were restrained from conducting a bus service on a contractual basis or otherwise 30 within the urban transport limits of Limassol. A. Panayiotou, for the appellants. P. Ioannides, for the respondents. Cur. adv. vult. STYLIANIDES J. read the following judgment of the Court. 35 The appellants-defendants in Action No. 1902/80in the District 607 StyUanides J. Μ.&Μ.Transportv.EteriaAstikonLeoforion

(1981)Court of Limassol take this appeal against an order of Elefthenou, D.J., restraining them from conducting a bus service on a contractual basis or otherwise within the urban transport limits of Limassol. Theorder"restrained (theappellants)from conductingmotor- 5 bus services with motor-buses F.W.264, H.H.933 or any other motor omnibus (unless such other motor-bus is duly licensed) for the transportation of passengers at separate fare and/or on contract, within the urban area of Limassol, pending the deteiTnination of this action or until further order". 10 The interlocutory injunction was granted under s. 32 of the Courts of Justice Law, 1960 (Law No. 14/60), the relevant part of which reads as follows:"32.1—Subject to any rules of Court every Couit, in the exercice of its civil jurisdiction, may, by order, grant an 15 injunction (interlocutory, perpetual or mandatory) or appoint a receiver in all cases in which it appears to the Court just or convenient so to do, notwithstanding that no compensation or other relief is claimed or granted together therewith: 20 Provided that an interlocutory injunction shall not begranted unlessthe Courtis satisfied that thereis a serious question tobetriedat thehearing,thatthereis a probability that the plaintiff is entitled to relief and that unless an interlocutory injunction is granted it shall bs difficult 25 or impossible to do complete justice at a later stage". The principles governing th? grant of an interlocutory injunction, because of the wording of the proviso to s. 32

(1), follow closely those formulated in Preston v. Luck, [1884] 27 Ch.D. 497, so a party asking for an interim injunction must 30 show that there is a serious question to bz tried at the hearing and that on the facts before the Court there is a probability that the plaintiff is entitled to relief in contrast to the principles adopted by the House of Lords in the American Cyanamid Co. v. Ethicon Ltd., [1975] 1AU E.R. 504, where they dis- 35 couraged evaluation, at this stage, of the probabilities of success. (Acropol Shipping Co. Ltd. and Others v. Petros I. Rossis,

(1976)1 C.L.R. 38; Nemitsas Industries Ltd. v. S. & S. Maritime Lines Ltd. and Others,

(1976)1 C.L.R. 302; Karydas Taxi 608 1 C.L.R. Μ. &Μ.Transportv.EteriaAstikon Leoforion Stylianides J . Co. Ltd. v. Andreas Komodikis,

(1975)1 C.L.R 321; Constantinides v. Makriyiorghou and Another,

(1978)1 C.L.R. 585). When the above, requirements are satisfied, the:Court, must proceed to examine whether the balance of convenience favours 5 the grant or refusal of the interlocutory relief sought. In balancing matters relevant to convenience an important consi­ deration centres round the need to preserve the status quo. By the expression "preservation of the status quo" we mean the position prevailing when the defendant embarked on the 10 activity sought to be restrained. (The Cyanamid case', Smith and Others v. Inner LondonEducation Authority,[1978] 1 All E.R. 411; Bryanston Finance Ltd. v. de Vries (No. 2), [1976] I All E.R. 25). The facts before the trial Court, as they emerge from the 15 affidavits accompanying theapplication and opposition, coupled with the oral evidence before the Couit, w?re:The plaintiffs-respondents are a bus company licensed to carry passengers at separate fares within the urban transport area of Limassol. They operate for such purpose not less 20 than 76 buses. The defendants are a transport company who own buses, including motor-buses Reg. No.F.Q.264 and H.H.933,licensed as public service vehicles. They had been licensed by thelicen­ sing authority, under theMotor Transport (Regulation) Law, 25 to carry passengers by contract on the Nicosia-LarnacaDhekelia and Nicosia-Akrotiri-Episkopi routes in further­ ancetotheircontractwiththeauthoritiesof theBritish Sovereign Areas. · The appellants in January, 1980, entered into a contract 30 with Possidonia Hotel situate within the Limassol urban trans­ port area, agreeing to'carry their personnel from the hotel to various parts of Limassol, all of which, with the exception of one, are within the Limassol urban transport area. In performance of the aforesaid contractthey started, without 35 securing a new licence,to carry passengers as stipulated in their contract. Hence, the plaintiffs-respondents, feeling that their rightswereinfringe^ filed this action and applied for theinter­ locutory injunction, subject-matter of this appeal. 609 Stylianides J. Μ.&Μ.Transportv.EteriaAstikonLeoforion

(1981)Learned counsel for the appellants challenged this order on the following grounds:(

1. a)That there is no probability that the plaintiffsrespondents are entitled to relief in the sense that— (
2. i)The plaintiffs have no actionable right; and, 5 (
3. ii)The defendants are not violating any Law by operating their buses as aforesaid; and, (
4. b)That the balance of convenience did not justify the issue of this order. The Motor Transport (Regulation) Law, 1964-1978, imposes not only a public duty, but confers acivil remedy as well. This was the perspective in which the matter was put in Peristeronopighi TransportCo. Ltd. v. Toumazos Th. Toumazou,

(1970)1 C.L.R. 196, where it was said:"Viewing Motor Transport (Regulation) Law, 1964, in the circumstances in which it was made and to which its provisions relate, we think that the requirement to use a motor vehicle according to the conditions of its licence, imposes not only a public duty but also a duty enforceable by an individual aggrieved. The statute can thus be more effectively enforced, which must have been the intention of the legislator in this connection". 10 20 Counsel for the appellants submitted that the Judge went wrong in the result for the reasons above indicated, notably that the respondents are not among the class envisaged to be protected by theMotorTransport (Regulation)Law and because they lack legitimate interest in the proceedings as they are only entitled to carry passengers at separate fares. We cannot sustain either of the above submissions. A public carrier, being a carrier at separate fares or otherwise, stands to lose whenever anyone is allowed within his area to conduct a bus service, be it under a contract. Their interest in the proceedings"is self-evident and need not b^ discussed further. The submission that the Court should leave matters as they are pending the hearing overlooks whal prima facie appears to us to b ; a sad reality, viz. the appellants arc conducting the bus service illegally. This is no doubt anissue into which the trial Court will go in detail at the trial. 610 30 1 C.L.R. Μ.&Μ.Transportv. EteriaAstikonLeoforion Stylisnides J. Thetrial Court,after consideringthevarious factors pertaining to the balance of convenience,exercised its discretion in favour of the plaintiffs-respondents. The granting of an interlocutory injunction is a matter of 5 judicial discretion; the onus is on the appellant to satisfy the appellate tribunal that the trial Court's discretion was wrongly exercised. (See, inter alia, Ioannis Kotsapas& Sons Ltd. v. TitanConstruction andEngineering Co., 1961 C.L.R. 317-322; Efstathios Kyriacou &SonsLtd. v. Mouzourides,

(1963)2 CX.R. 10 1). The damages to be suffered by the plaintiffs, if the violation of the Law andtheinfringement of therightsof therespondents were allowed to continue, would be difficult to be assessed with sufficient certainty at the end of the trial and.it would be 15 impossible to do completejustice at that stage. We were not satisfied that the grant of the order by the Court below was wrong. In view of the aforesaid we would dismiss the appeal with costs against the appellants. 20 Appeal dismissedwithcosts. 611