clr/1981/1981_1_678.pdf

(1981)L. Papaphilippou, for the appellant. Chr. Kitromelides, for the respondent. Cur. adv. vult. TRIANTAFYLLIDES P. readthefollowingjudgment of theCourt. The appellant, who was a defendant before the trial Court, 5 appeals against thejudgment of such Court inaction No.DCN 1220/76, by means of which it was held that the respondent, as theplaintiff intheaction,was notprecluded by an agreement reachedbetween thepartieson February 19, 1975,from bringing that action against the appellant. 10 The history of the relevant events in this case is briefly as follows: On January 10, 1974, the respondent brought action No. 183/74 against the appellant, in the District Court of Nicosia, claiming damages for false representations. 15 On February 19, 1975,whencertaininterlocutory applications were fixed for hearing, counsel for the respondent made the following statement: "Action withdrawn without prejudice. Plaintiff to be at liberty to file a new action within 12 months from today, 20 otherwise no cause of action survives whatsoever. If plaintiff files a new action within 12monthsand is success­ ful thenthecosts of this actionwillbepaid by the plaintiff". Counsel for the appellant stated that he was in agreement and, as a result, the action was dismissed. 25 On March 14, 1975, the respondent filed another action, No. 1169/75, before the District Court of Nicosia, against the appellant, claiming the same relief as in the previous action. An appearance was entered by the appellant, but no other steps were taken by either side and, eventually, on February 30 2, 1976, this new action was withdrawn, and the relevant Court record reads as follows: "For Applicant/Plaintiff: Mr. Lemonarisfor Mr.Talarides. For Respondent/Defendant: Mr. Papaphilippou. Mr. Lemonaris: After careful consideration of the case 35 680 i C.L.R. Koukrmou v. Groutides Trian'tafylUdes P. I have cometothe conclusion that it isbetter towithdraw the action'and file a fresh one without prejudice to plaintiff's rights. 5 10 Mr. Papaphilippou:1 have nothing to say but I claim costs. I have agreed with Mr. Leptos for £30.- costs to be paid by the plaintiff, including the.costs of all applications. * Court: Action dismissed and all related applications .thereof are also dismissed with £30.- costs, against the plaintiff and in favour of the defendant ". Then, on March, 9, 1976, action No. 1220/76 was filed in the District Court of Nicosia against the appellant and two other defendants. Later on, defendant No. 3 died, and-the proceedingsagainst himwerediscontinued. So,there remained 15 in the action the appellant and defendant 2. The appellant contended thai the respondent was precluded, by virtue of the aforementioned agreement of the parties of February 19, 1975,from pursuing against him the third action No. 1220/76, which was filed after the expiry of a period of 20 twelve months as from February 19, 1975. The trial Court, however, ruled against the appellant and, having treated the second action, No. 1169/75,as discontinued, it went on to rely ontheprovisionsofrules 1 and2ofOrder 15ofthe CivilProcedure Rules, in order to find that, hvthe circumstances of this 25 case, the respondent couldfilea fresh action, namely the third action, No. 1220/76, after discontinuing his second action. In our opinion, the basic consideration in this case is the real effect and true construction of the agreement that was reached, as aforesaid, on February 19, 1975. 30 After verycareful consideration of this matter wehave,eventually, reached the conclusion—admittedly not without some initial difficulty—that it was the intention of the parties, on February 19, 1975, that anynewactionwhichwould bepursued to its final determination in relation to the alleged cause of 35 action of the respondent had to be filed within a period of twelve months from that date. An Action, No. 1169/75,was,indeed,filedwithin the period of twelve months, but that action was discontinued, and even 681 Triantafyllldw P. Kotdcrmoa v. Croatian

(1981)though, after that, another action might have beenfiled,before the expiry of the period of twelve months, no such action was filed; and, eventually, another action, No. 1220/76» wasfiled on March 9, 1976,after theexpiry oftheaforesaid period. We do not think that it was ever the intention of the parties that 5 the respondent would be entitled to defeat the explicit purpose and terms of the agreement of February 19, 1975, by acting in such a manner. It was the essence of the aforementioned agreement—the legality of which has not been questioned inthe present procee- 10 dings—that the cause of action concerned would survive only for a period of twelve months after the date of such agreement and that an action in respect of such cause of action which would be pursued to its final determination, and not merely be discontinued, could be filed only within the said period. 15 In the circumstances we think that the provisions of Order 15, rules 1 and 2, of the Civil Procedure Rules, could not be applied in favour of the respondent in the particular circumstances of this case and we find that, as a result of the true meaning and effect, as above, of the agreement of February 20 19, 1975, the respondent was not entitled to file action No. 1220/76 which has, therefore, to be dismissed in so far as it relates to the appellant. In the result this appeal is allowed accordingly but, in line with the approach as to the costs adopted by the trial Court, 25 weare not prepared to make any order as to the costs of this appeal. Appeal allowed. No order as tocosts. 682