clr/1982/1982_1_401.pdf

(1)The Admiralty jurisdiction of the High Court shall be as follows, that is to say,jurisdiction to hear and determine any of the following questions or claims (

1. a)to (
2. e)(
3. f)any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act of the owners, charterers or persons in possession or control of the ship or of any other person for whose wrongful acts, the owners or persons in possession or control of a ship are responsible ". 402 25 1 C.L.R. 5 10 15 Michael v.United SeaTransport ration of their defence by the rectification of the mistake which was caused by some oversight due to the amendments effected to the first petition filed, which it brought about the necessity for thisamendment,thisisa propercaseto allowtheamendment applied for; accordingly the application for amendment must be gianted. Application granted. Cases referred to: C.L. Baker Ltd. v.. Medway Building& Supplies Ltd [1958] 1 W.L.R. 1216 at p. 1231; Pourikkosv. Fevzi

(1963)2 C.L.R. 24; Courtis\. lasonides

(1970)1 C.L.R. 180; Mahattouv. Viceroy Shipping Co.Ltd.

(1979)1C.L.R. 542; Weldonv. Neal [1887] 19 Q.B.D. 394; Pontin\. Wood[1962] 1 Q.B. 594 at p. 609; Stermanv. E.W. & W.J. Moore{A Firm)[1970] 1 Q.B.

1. Application. Application by plaintiff for the amendment of the petition filed in an admiralty action for damages for personal injuries 20 suffered by him on board the ship "Evangelistria" while in the employment of defendants. S. Kittis, for the applicant. S. Mc Bride, for the respondents. Cur. adv. vult. 25 A. Loizou J.readtlie following ruling;—This is.an.application by the plaintiff for amendment of the petition filed in this admiralty action in personam for damages for personal injuries allegedly suffered by him on board the ship "EVANGELISTRIA" while in the employment of defendants No. I, here30 inafter to becalled the defendants as the action was discontinued against defendants No. 2 and
2. The plaintiff filed this action against the present defendants on the 16th February
3. The petition was filed on the 31st May 1978, and in paragraph 2 thereof it was alleged that:- 35 "The defendants No. 1were the employers of the plaintiff at the time of the accident and they were authorised for the loading of the ship "EVANGELISTRIA" as agents and/orby virtue of agreement with the owners and/or otherwise".' On the 15th June 1982, the plaintiff filed an application for 403 A. Loizou J. Michael τ. United Sea Transport

(1982)the amendment of the petition which was granted by consent and in which the aforesaid paragraph 2 was substituted by the following paragraphs: "2. The defendants at all material time were the persons which engaged a group of stevedores including the 5 plaintiff on a daily orper hourwagefor theunloadingof the ship 'EVANGELISTRIA'. Consequently the plaintiff became a servant and/or employee of the defendants. 3. Theplaintiff shall allege.thatthedefendants atallmaterial timewere acting as independent contractorsfor the unlo- 10 ading of the said ship. Furtherandorin thealternative, if itwas proved thatthedefendants didnotactascontra­ ctors but as agents on any person or persons (legal or physical) the plaintiff will allege that the piincipals of the defendants were and are unknown and/orwere never 15 disclosed and on account of that the defendants were and are personally liable". The defendants in paragraphs 2(

1. a)and (
2. b)and paragraph 3 of their answer, admit that they acted as the agents of the ship "EVANGELISTRIA". 20 On the 19th June 1981, the defendants applied for an order of the Court that "upon the facts pleaded in the petition the Supreme Court of Cyprus in its Admiralty Jurisdiction has no jurisdiction tohear and determinetheaction". Thedefendants were heard on their application on the 10th October 1981, and 25 the case was adjourned for the 7th November 1981,for address by Counsel of the plaintiff. In the meantime the plaintiff filedthe present application for amendmentof paragraph 2 of his petition by the addition of the words "which was in the possession or under the control of the defendants", after the 30 wold "EVANGELISTRIA". The application was opposed on the following grounds] "(
3. a)The Plaintiff is guilty of laches. (
4. b)The amendment sought is not sought for the purpose of determining the real questions in controversy 35 but to attempt (at too late a stage in the proceedings) to insert for thefirsttime a material allegation in the pleadings so as to try and set up a cause of action. (
5. c)Theamendmentsought is anattemptto set up a cause of action in admiralty that is now time barred. 404 40 1 C.L.R.. Michael v. United Sea Transport A. Loizou J. (
6. d)the proposed amendment is inadmissible as it prejudices the rights of the Defendants now existing. 5 (
7. e)thisapplication ought toand/or must await the outcome of the Defendants application filed on 19.6.1981 and fixed for continued hearing on 7.11.1981".- The first question to be decided is whether the amendment sought is immaterial or useless (see R.S.C. Annual Practice, 1960, 0. 28, t. 1, at p. 627). In the Supreme Court Practice 1979,at p.345(new Order 20,r. 5);itisstated that "amendments 10 oughttobemadefor thepurposeoi deteiminingthereal question in controversy between the parties to any proceedings or of correctingany defect orerror inanyproceedings (seeper Jenkins, L.J., in C. L. Baker Ltd. v. Medway Building & Supplies Ltd. [1958] 1 W.L.R., 1216 at 1231)". It must first, therefore, be 15 examined, whether the addition of the words "which was in the possession or under the control of the Defendants", isnecessary. In his amended petition the plaintiff alleges in paragraph 3, thereof that the defendants were independent contractors 20 and/or agents of undisclosed principals, and that they employed stevedores for the loading of the ship, and there is nothing to state clearly that they were "persons in possession or control of the ship". _What_is abundantly clear is that the plaintiff is aiming with 25 the proposed amendment to~bring~his~case-under-s.l(l)(f)_of the Administration of Justice Act 1956, which provides that:- 30 35 "

(1)The Admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions or claims (

1. a)to (
2. e)(
3. f)any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel orequipment, or ofthewrongful act _ oftheowners, charterers or persons in possession or control of the ship or of any other person for whose wrongful acts, the owners or persons in possession or control of a ship are responsible ". By examining the pleadings and in particular paragraphs 2 405 A. Loiroo J. Michael τ. United Sea Transport ' | | I f l H V F (W*2) and 3 of the petitionfiledon the 15th June 1981, one can see that there is nothing to bring the case within section l(l)(
4. f)(above) as the pleadings clearly do not disclose any admiralty cause and therefore the amendment is necessary. The second question thatis posed, is whether under the Rules 5 this is a proper case to grant the amendment. Thecontention of the applicants/ plaintiffs is that they have by oversight or inadvertence omitted the words sought to be added when the Statement of Claim was previously amended, although words tothateffect could befound in theoriginal Statementof Claim. 10 Also that they have not unreasonably delayed in applying for the amendment, as they only became aware of the need for suchamendmentatthehearingof theapplicationonthequestion of jurisdiction and that in any case the application is made in good faith. The respondents/defendants have argued that 15 this application has been made at too late a stage of theprocee­ dings, and that if it is granted it will deprive them of rights which accrued before the application was made and that costs in the present case cannot adequately compensate them as they will be deprived of a complete defence, i.e. that the Admi- 20 ratty Court has no jurisdiction to try the case and that any suit that may hereinafter be filed will be time-barred. No doubt, the proceedings as originally instituted disclosed a cause of action coming within the admiralty jurisdiction of this Court. It was only after the amendment of the petition 25 that the problem arose, hence the filing by the defendants of their application to stay the proceedings on the ground of lack of jurisdiction by this Court. The question when amend­ ments are granted under therelevant Rules of Court has come up for consideration by this Court in a number of cases and 30 reference may be made to the cases inter alia of Pourikkos v. Mehmet Fevzi

(1963)2 C.L.R. p. 24; Courtis v. Iasonides

(1970)1 C.L.R. p. 180, and Mahattou V. Viceroy Shipping Co.,Ltd.,

(1979)1C.L.R. p. 542where at p. 55 theposition has been summed up as follows: 35 "It has been the practice in England for a long time, in a proper case, to allow an amendment of the pleadings at any stage of the proceedings. The Court before consi­ dering whether to grant an amendment should take into consideration whether such amendmentcan be madewith- 40 406 1 C.1..R. 5 Michael τ. Utilted Sea Transport A. Loizou J. outinjustice to theothersidewhichcannotbecompensated foi by costs, and whether the application is either mala fide or is madewith theobject of unduly delaying theother partly or will, in any other way, unfairly prejudice the other party, or is irrelevant or useless". In England the corresponding rules have been ievised and brought up-to-date in order to incorporate the Case Law and alsoinordertomeetthepresentneedsofthegoodadministration of justice. Unfortunately that has not as yet been done in 10 Cyprus and we have to turn to the position in England as it existed before 1962 for guidance on the matter. IntheAnnualPractice 1960,atp.628,itisstatedthat"Amend­ ments which would piejudice the rights of the opposite party existing at the date of the proposed amendment are not, as 15 a rule, admissible". In Weldon v. Neal[188η 19 Q.B.D. 394, theplaintiff was not allowed to amend by setting up fiesh causes of action which since the issue of thewrit had become statute barred. In hisjudgment Loid Esher, M.R. had this to say at p. 395: 20 25 30 35 "We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such-amendments. If an amendment were allowed setting upa cause of action,which,if thewritwereissued"inrespect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat thestatuteandtakingawayanexistingrightfrom thedefen­ dant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment,but certainly as a.general rule it will not do so. This case comes within that rule of practice, and there are no peculiar circumstances of any sort to constitute it an exception to such rule. For these reasons I think the order of the Divisional Courtwas right and should be affirmed". 407 A. Loizou J. Michael v. United Sea Transport

(1982)It is clear from, the aforesaid judgment that however strict the principle was, the Court appeared to have power to allow an amendment "under very peculiar circumstances" as Lord Esher, M.R. put it, and.I hold the view that the circumstances of the case in hand are such as to be peculiar in themselves 5 and justify a departure from the strict rule of practice in Weldon v. Neal (supra). I am of the view that in the circumstances I should not allow the objection of the respondents to prevail; and I am guided for that purpose by the words of Holroyd Pearce, L.J., in Pontin v. Wood [1962] 1 Q.B. 594, at p. 609 10 where he said that the Court would give its aid "to regularising the procedure of a known genuine case commenced before the time limit expired but containing technical defects". This approach was followed by Lord Denning M.R., in Sterman v. E.W. & W.J. Moore (A Firm) [1970] 1Q.B. 596, though admit- 15 tedly that was a case turning on the interpretation of the new English Rules. For all the above reasons and considering the very special circumstances of this case, particularly the fact that the writ of summons was issued before the expiry of the statutory Umi- 20 tation period, it did disclose a cause of action within the Admiralty Jurisdiction of this Court and contained the nature of the dispute, the essence of which was well known to the defendants, and as the defendants are in no way prejudiced now as regards thepreparation oftheir defence bytherectification of the mistake 25 which was caused by some oversight due to the amendments effected to the first petition filed, which it brought about the necessity for this amendment I have come to the conclusion that this is a proper case to, and I do allow the amendment applied for. Apphcants, plaintiffs, to pay the costs of this apphcation 30 and all costs thrown away as a result of this amendment. Application granted. Order for costs as above. 408