clr/1984/1984_1_53.pdf

(1984)pondcnls were notilied about the appointmem of such receiver. After such receiver materialised all the assets of the Company, a sum of £17.591.445 mils was collected, which was debited against the debt, leaving a balance of £6,177.271 mils. By means of an action filed on the 16th January, 1980the appellants 5 claimed the aforesaid balance from the respondents. The latter by their defence, tiled on the I llh December, 1980, alleged that as a result of the bad management of the a(lairs of the Company by the receiver, they suffered a loss of £70,000.- in respect of which they reserved their rights; and by means of an application. 10 which was filed on the 29th January, 1983they applied that the receiver be added as a defendant in the action. Upon appeal by the plaintiffs against the order granting the application: Held, that the Court is empowered to add as parties persons 15 whose presence before the Court may benecessary for effectually and completely adjudicating upon and settle all the questions involved in the cause or matter (sec Order 9, rule 10 of the Civil Procedure Rules); that since respondents allege that the claim in respect of whicli they are sued, isthe result of the mismanage- 20 tnent of the party added as co-defendant against whom they have a claim by far exceeding appellants' claim; that since appellants have no claim whatsoever against the added party and it is clear from the alleged facts that the respondents seek to introduce a new cause of action far more complicated than the 25 one before the Court which cannot be conveniently dealt with in the present case; that since the addition of the new defendant, especially at such advanced stage of the proceedings and after such a long delay, involves further delay and hardship to the appellants due to the need of "procedural steps which will 30 have to be taken and widening of the framework on which the action would have otherwise proceeded", this Court cannot agree with the trial Court that these factors are outweighed bythe need of securing a full and final adjudication of all matters involved; and that, therefore, this Court is entitled to interfere 35 with the exercise of the relevant judicial discretion of the trial Court on the ground that such exercise is wrong and causes injustice to the appellants; accordingly the appeal must be allowed. Appeal allowed. 54 40 I CAM. Hellenic Bjnk s Kosnu Cases refened to Gnrtnei ν Cimut [1968] I All E R 328 Anton \ Raphael Tmk & Sons Lul [!956] 2 W L R 372 Cenettd /nmrcme 5 Company of Cyprus Ltd \ Gtoigfnoti i/*(

(1963)2 C.L R 117. Anothn Artemis Co Ltd ν fhe Ship Son/a'

(1972)I C I . K 151 lie Vandtr\eil 7/r/m [1969] 1 All Ε R 496 [1970] 1 AH L R If SOOth C\ptus Ltd ν Tin Ship 'ΰ/ttt

(1975)1 C L R 472 10 Muiuhesta Lines: Ltd and Ant flu ι λ Sta' and Vumutz Couth Otlm Indnsti Ltd

(1983)I C L R 178 Kotsunus and Sons Ltd \ Titan Constitutions Company 1961 C L R EJs-tallnos Kvriatouand 15 and Ln^uuttn 117, Sons Ltd ν Mouzouitdes

(1963)2 C L f 1; hat)i/as Ia\i Co Ltd ν Koinodikis

(1975)I C L R 121 I'aplutis ν BomjtHto

(1978)I C L R 127 Constantuudt s ν AfakitMorq/iou tun! Anotlui 585. 20 (!97t>) I C L V Gattlnci \ Jay [1885] 23 Ch D 50 at ρ 58 C\ain ν Battlam [1917] 2 Ml Ε R 646, CAf«/i'\ Oseiuon & Co \ Johnston [1941] 2 All C R 245 . ρ 250 Bt'tk and Oihtrs ν Value Capital Ltd and Οthen· ( N o 2) [I97t 25 30 2 All Ε R 102 at ρ 109 Appeal. Appeal by plaintiffs against the order of the District Coui of Larnaca (Constantinides, S DJ ) dated the 3rd March 1983 (Action No. 66/80) whereby it was ordered that Loizo Shakallis be added as defendant 3 in the above action Μ Hadjtchnstofis, for theappellants Chi TttantafyHides fcr the respondents Cw ad\. \uli 55 H U k n u li.iitk \ KitMii.1

(1984)Λ Loi/οι J The judgment of the Couit will be delivered hv Mi Justice Saw ides SAWIDIS J i his is an appeal by the plaintifls in CIMI Action No 66/80 against the decision ol a Judge of the District Court of Larnaca. whcieby an ordci was made on the application ol dclendants I and 2 foi the addition of Iοι/os Shakallis ot Lainaca as defendant 1 in the action peisonallv and in his eapaut> as Receiver and Manager of * Lkles (Clothing Manu­ facturing) Lid s 1he application was based on Otdei

1. r 10 of the Cm l Iho- 10 ecdure Rules the material pan with which we .ue concerned leads as follows Ihe Couil may oidei that the names of any panics whether plaintifls or defend­ ants who ought \o have been joined οι whose presence 1> before the Couit mav he necessaiy in order to enable the Court efiectuallv and completed to adjudicate upon and settle all the questions involved in the cause or mattei be added Ihe conesponding Lnglish luie was R S C 1I (now Ordei
2. rule 6

(2)(b) ) Older 16 rule 20 The learned trial Judge m gianting the application, said the following in his decision It is not my intention to make any comments as to the election ol the plaintiffs as to whom they should sue or not. but I cannot overlook the position of the defendants that only with the addition of Mr L Shakallis it will be possible to effectively examine the, question of their responsibility the make justice in this case I am fully avvaie of the fact that the addition of a defendant, especially at this advanced stage of the proceedings involves delay, possible hardship to plaintiffs and additional costs. It is obvious that the addition of the co-defendant will entail a series of procedural steps which will have to be taken and widening of the framework within which the action would have other­ wise proceeded. I believe, however, that these factors should give way before the need of securing a full and final adjudication on all matters involved" 56 10 I C..1..U. Hellenic liniiK \. KD-IIIU Simictcs .

1. Counsel for appellants. in arguing-the appeal"contended that the. learned trial-Judge: was wrong in·granting the;application and. that he wrongly construed,and applied the principles laid down in the:cases οιν which he:relied' in reaching his decision 5 as the. facts in such cases, are. distinguishable from the facts in this case: No relief, counsel submitted' is sought by the appellants, against the proposed defendant' and the proposed defendant, is not a jiarty who ought to have- been joined', or whose presence, before the Court' may be- necessary to enable 10 the Court completely and'effectively udjudicaleupon and settle all.the questions involved' in thexause or.matter within the object of Order
2. rule: 10 of the Civil Procedure: R'ules. Counsel further added that appellants" claim is based'on two contracts of guarantee in. respect of which the respondents are jointly 15 and' severally liable, and' they were: the persons against· whom their claim could'be more effectively pursued, and the addition of Mr. Shakallis. as-a party to· the action· will complicate· the issues and'inevitably introduce a new cause of action in respect of which,appellants have no connection. Another factor which 20 the Court should, have, taken into consideration, counsel submitted, is the:delay, and hardshipwhich-will be-caused to the. appellants by the addition of a new defendant especially in-the.circumstances-,of the present case,where the application was made at such late, stage, in"the proceedings. Counsel con25 eluded,that the-fact thattheaddition of the.new defendant was not necessary, is manifested' by the statement, of counsel on behalf of the respondents that the respondents offered to submit to judgment as per claim and costs if stay of execution was granted, till. 15.7.1.984; 30 Counsel for the.respondents on the other hand contended that· the discretion of the trial Judge was properly exercised in the present case, for the reasons explained by him in his decision-and.that, the exercise, of his-discretion is in line with the principles laid:down in Gunner v. Circuit [1968] 1 All E.R. 35' 328'in; which the corresponding:provision in.the English R*.S.C. was; considered" and it* was found that the. exercise of the discretion by·theCourrunder such provision must be'construed more widely than in Anion v. Raphael Tuck & Sans Ltd. [1956] 2!W.L.R. 372.. Counsel· further contended-that the addition of 40' the new defendant was necessary in. the. present case; having regard to-the.pleadings;and'-the'facts set· out in the affidavit in 57 Sawides J. Hellenic Bunk v. Kosma

(1984)support of the application which the Court rightly took into consideration in reaching its decision. The learned trial Judge in reaching his conclusion as to the exercise of his discretion relied on the principles laid down in the English cases of Anion v. Raphael Tuck & Sons Ltd. and Gunner v. Circuit (supra) and also on the decisions of our Supreme Court in General Insurance Company of Cyprus Ltd. v. Georghiouand another

(1963)2 C.L.R. 117 and Artemis Co. Ltd. v. The Ship "SONJA"

(1972)1 C.L.R. 153. We wish to observe that the Amon and Gurtner cases arc I distinguishable from the case now under consideration. In the Anion case defendants applied for an order to join D as a defendant with his consent and as it appears from the report of the case at his request, so that he could counterclaim against the plaintiff, as otherwise the enjoyment of his legal rights 1 would have been affected by the outcome of the case if he was not allowed to intervene in the proceedings. It was held in that case at pp. 357-358:"The application was, in effect, an application for leave to intervene against the will of the plaintiff; but in such a case the appropriate test to determine whether the intervener was a party 'who ought to have beenjoined, or whose presence before the Court may be necessary' to enable the Court completely and effectually to adjudicate upon and settle all the questions involved in the cause or matter 2 within Ord. 16, r. 11,was: Would the order for which the plaintiff is asking directly affect the intervener, not in his commercial interests, but in the enjoyment of his legal rights? Applying that test, D. was within the rule, for the injunction sought by the plaintiff in effect would restrain the further manufacture of the 'Stixit' pen and therefore, although the fact that D. was entitled to a royalty or commission gave him only a commercial interest in the continued manufacture, if he could show that the defendants were by contract obliged to- manufacture a reasonable quantity of *Stixit* pens he would have a right of action against them if they did not do so, and might ask in a subsequent action for specific performance of an agreement which the Court had ordered not to be performed. The Court accordingly had jurisdiction to make the order 58 I C.I .R. Hellenic Bank *. Kostna Satvides .J. sought which, in the circumstances was one which it was proper that the Court in its discretion should make". Devlin, J. at pp. 37S, 379, had this to say:5 10 15 20 25 30 "If I may express with diffidence my own view of the rule. apart from the authorities, I would support the narrower construction. I do not, with deference to those who have thought otherwise, agree that the main object of the rule is to prevent multiplicity of actions, though it may incidentally have that effect. The Court has other ways of doing that which are amply sufficient for the purpose— by ordering consolidation or the bringing of actions on together or third party proceedings and soon. The primary object of the rule 1 believe to beto replace the plea in abatement. The object of that plea was to 'abate' an action in which all the proper parties were not before the Court. The rule is more flexible than the plea, but its object is fundamentally the same. 1do not think that the words which I have to construe represent any addition to the powers of the Court initiated by the Judicature Acts. 1 do not think that the necessary parties contemplated by it are other than those who would have been considered by a Court of Equity to be necessarv before the passing of the Judicature Acts". And at page 380: "The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party". And he concluded as follows at page 387: 35 "The set of rules assembled in the While Book and collected in the authorities which 1have sought to follow arc those which are applicable in the case of interveners whom it is sought to join against the will of the plaintiff". Gurtnerv. Circuit (supra) was again a case of an application by an intervener to be added as adefendant in an action brought 59 S;ou(Ics J . Mullinic Bynk^*. kosm:i

(1984)by a pedestrian against a motor cyclist unable to be traced. Plaintiff obtained.an order for substituted service on the defend­ ant c/υ the insurance company which the Motor Insurers' Bureau had asked to investigate-the matter and upon such·service having been- efleetod the bureau applied to be added as defendants. 5 On,appeal it was held that the Bureau should be added as defendants, on their undertaking to pay any,damages that might be awarded to,them. The dictum of Devlin. J., in Amon·case as to the, interpretation of the corresponding English R.S.C. Order 16, rule 11 (now Order 15. rule 6

(2)(b) of the new rules)· 10 was not followed. Lord Denning, M.R. said at pp. 331-, 332' (to which Salmon L.J. concurred): "There were many cases decided on it: but I need not analyse, them today. That was done by DEVLIN, J., in Anion v. Raphael Tuck & Sons, Ltd.* He thought that 15 the- rule should be given a narrow construction, and his views, were followed by JOHN STEPHENSON, J., inFire, Auto and Marine Insurance Co., Ltd. v. Greene.2 Iam afraid that 1 do not agree with them. I prefer to-give a wide interpretation to the rule, as.LORD ESHER, M.R., 20 did in Byrne v. Brown.3 It seems to me that, when two parties are in dispute in an action at law and·the determi-. nation of that dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the court in its discretion may allow him 25 to be added as a parly on such terms as it thinks fit. By so doing, the court achieves the object of the rule. It enables all matters in dispute 'to be effectually and completely determined and adjudicated, upon' between all.those direct­ ly concerned in the outcome." 30 And further down at page 332: " I t is thus apparent that the Motor Insurers' Bureau are vitally concerned in.the outcome of the action. They are directly affected, not only in their legal rights, but also in their pocket. They ought to be allowed to come in- as., 35 defendants. It would be most unjust if they werebound to

1. [1956] 1 All E.R. 273; [1956] 1 Q.B.
3. [19641.2 All E.R. 761; [1964] 2 Q.B.
5. [1889] 22 Q.B.
7. Ι ί.Ι,.Ι!. Ik-Ucnii ΠιιιιΙ, S. Κι^ηκι S:miiK.'s I stand idly by watching the plaimilVgel judgment against the defendant without saying a word when ιhey are the peopL who have to foot the bill. I think that Fire. Auto amMarine Insuritiue Co.. Lid. v. Greene1 was wrong!;. decided and should he overruled." Lord Diplock (with Salmon. L J . concurring) had this to adt at page 336: "Clearly the rule's o f natural justice require that a persoi who is to be hound by a judgment in an action brought against another party anil directly liable to the plaintiff 01 the judgment should He entitled to be heard in the pre· ce'otiings in which the judgment is suiiuht to be oBtained A matter in dispute is not. in my view. elVeclually ano completely 'adjtulicuted upon' (my italics) unless the ruleo f natural justice are observed, and all (hose who will bv liable to satisfy the judgment arc given an opportunity to Κ heard." I h e wide interpretation of the rule was adopted by the Com' of Appeal in Re I'andenell Trusts [1969] 3 A l l L.R. 49( and the dictum of Devlin. J., was disapproved and the Cotir applying the principle enunciated in ιhe above case thai the ruK was to be given a wide interpretation to enable any parly to Κ joined in an action whenever it was just and convenient to do so allowed the executors of the deceased, who commenced pro ceedings against the trustees of a family settlement in respect ο certain dividends or shares, to j o i n the Commissioner o f Inlaiu Revenue as defendants, with their consent, and who at the saint time but in different proceedings claimed surtax against ihi executors in respect of the same dividends. The decision however, o f the Court o f Appeal was reversed by the House ο Lords ([1970] 3 A l l L.R. 16) in which it was held that: " O n the true construction of the particular rule applicabl to the case. i.e. RSC O r d
8. r.6

(2)(b), the 'matter in dispute was between the executors and the trustees and could be 'effectually and completely determined and adjudicated upon* in the absence o f the Commissioners o f Inland Revenue: it followed, therefore", that their presence was not 'necessary' and that they should not be joined as de­ fendants to the action." 1. [19641 2 All K.R. 761; (l%4] 2 Q.B. 687. 61 Sawides J. Hellenic Bank \. Kosma

(1984)Lord Morris of Borth-y-gest said at page 19: ".... although the submissions in this case have ranged extensively the decision can rest on a consideration of the rule which is applicable. In agreement with Buckley J, I do not think that this is a case which falls within RSC 5 Ord 15. r 6

(2)(b). It is not suggested that the Commissioners of inland Revenue 'ought to have been joined as a party'. The only question is whether their presence before the court is 'necessary'- i.e. necessary 'to ensure that all matters in dispute in the cause or matter may be effectually 10 and completely determined and adjudicated upon*. I do not think that any process of giving a wide or liberal interpretation to the rule can be employed to alter it or to give it an enlarged meaning which, on a fair and reasonable interpretation, it does not bear." 15 And Viscount Dilhorne in considering the provisions of RSC Ord. 15, r.6

(2)(b) and its construction by Lord Devlin in Anion v. RaphaelTuck &Sons Ltd. (supra) and by Lord Denning in the Court of Appeal in Vandervell Trusts Ltd. v. White [1969] 3 All E.R. 496, had this to say at pp. 23 - 24: 20 "If under this rule, the Commissioners of Inland Revenue can be added as a party, their consent to that is not a condition precedent to that being done unless it is proposed to add them as a plaintiff. Their refusal of consent would be no bar to the exercise by the High Court of itsjurisdiction 25 to add them as a defendant. The many reported cases in which this rule has been considered were comprehensively reviewed by Devlin J in Amon v. Raphael Tuck & Sons Ltd. He said: 'There are two views about its cope; and authority 30 can be cited for both. One is that it gives a wide power to the court to join any party who has a claim which relates to the subject-matter of the action .. if it is right, it really kills any submission about jurisdiction. The Court is hardly likely in the exercise of 35 its discretion to join as a party somebody who has no claim relating to the subject-matter of the action; and if its powers extend to joining anyone who has, the question whether a particular intervener should be joined becomes virtually one of discretion'. 40 62 1 C.L.R. Hellenic Bank v. Kosma Sawides J. In this case the Court of Appeal held that there should be a wide interpretation of the rule. Lord Denning MR said: 5 10 15 20 25 'We will in this court givethe rule a wide interpretation so as to enable any party to be joined whenever it is just or convenient to do so. It would be a disgrace to the law that there should be two parallel proceedings in which the selfsame issue was raised, leading to different and inconsistent results. It would be a disgrace in this very case if the Special Commissioners should come to one result and a Judge in the Chancery Division should come to another result as to who was entitled to these dividends.' Whether this interpretation is wider than that stated by Devlin J in the passage cited above, it is not necessary to consider. My difficulty about accepting Lord Denning's wide interpretation is that it appears to me wholly unrelated to the wording of the rule. 1 cannot construe the language of the rule as meaning that a party can be added whenever it is just or convenient to do so. That could have been simply stated if the rule was intended to mean that. However wide an interpretation is given, it must be an interpretation of the language used. The rule does not give power to add a party whenever it isjust or convenient to do so. It gives power to do so only if he ought to have beenjoined as a party or if his presence isnecessary for the effectual and complete determination and adjudication on all matters in dispute in the cause or matter." The facts in the case of GeneralInsurance Companyof Cyprus Ltd. v. Georghiou and another

(1963)2 C.L.R. 117, which is one 30 ofthecasesrelied upon bythetrial Court, arealso distinguishable from those in the present case. In that case the application was made by an intervener who had sustained personal injuries in a road accident and had brought an action against the person by whose negligence theaccident wascaused givingat the sametime 35 notice to the insurance company covering the defendant in accordance with the law. He sought to intervene in an action brought by the insurance company against its insured, who was the defendant in both actions, for avoiding the insurance policy for non-disclosure of material facts, and the outcome of which 40 might prejudicially affect the intervener's rights under the policy. 63 Sim ides J. Hellenic Bank \. Kosma

(1984)The Court of Appeal in affirming the decision of the District Court granting leave for the addition of the intervener as codefendant held: "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 Insurers (appellants) against their insured, as well as in the outconie of the litigation in question. 5 In the above case, Josephides, J. had this to say at p. 123: 10 "The corresponding English rule is R.S.C. Order 16, rule 11. Devlin, J., as he then was, considered this rule exhaustively in the case of Amon v. Raphael Tuck & Sons Ltd. [1956] 1 Q.B. 357, to which both learned counsel referred in the course of their argument. 1humbly agree with Devlin J. who, in interpreting those words, held that the appropriate test to determine whether the intervener was a party 'who ought to have been joined, or whose presence before the Court may be necessary1 to enable the Court completely and effectually to adjudicate upon and settle all the questions involved in the cause or matter within that rule Was: 'Would the order for which the plaintiff was asking directly affect the intervener in the enjoyment of his legal rights?' 15 20 Applying that test, I have no hesitation in holding that 25 the intervener (respondent) was within that rule, for having regard to the whole scheme of Cap. 333, he, as the third party, under that statute, has a legal right and that legal right is that when he obtains judgment, he has a right to have it satisfied by theinsurers; and if the insurers' action 30 for a declaration avoiding the policy succeeds then his legal rights will be directly affected." The last case to which reference has been made by the trial Court, Artemis Company Ltd. v. The Ship "Sonja"

(1972)1 C.L.R. 153, is distinguishable from the present one. In that 35 case, which was an admiralty action before ajudge of this Court in the exercise of the original jurisdiction of the Court, the plaintiffs claimed damagesfor breach ofcontract of affreightment 64 I C:L.R:, 5 10 15 20 25 30 -Ϊ5 40 Hellenic-Bank \. Kosma Savvides-J. concluded-between the parties,in whichi it was,alleged that;the· defendants acted;through?their-agents: The-defendants,deniedsuch·allegation and applied*to have such person added as· c o defendants. Plaintiff did;not object to such application-and in fact joined the application for· the. addition,of the ;new. party. A. Loizou,.J.,reviewing;the.-case-law. and the.principles,underly­ ing-such cases-concerning the-addition of a defendant,either on the·application of' the-defendant or r of a-person.-not already a party, concluded' as follows at pp? 161, 162: "In,these;circumstances,therefore* and1 on the·authorities, had it not been for the joining of, the application,by, the plaintiff'with,which-1 shall· be·shortly»dealing· more·exten­ sively, this;application·sh«uld-.have--been;dismissed!. However,,the joining of the.application by the plaintifffin the light of what-has already been shown is a.significant.factor and gives tc> the,present proceedings.-their-speciai character.. I take it-thaMhis-isnotjust a.case;of the;plaintiffs., merely consenting- but. a case; ofj adopting', the; application: and urgingjhat.it be granted. If'this application were to be ; dismissed, there would be; nothing to stop-the plaintiffsr from applying themselves for- this, joinder? This, would1 unnecessarily cause multiplicity of' proceedings and; add. up.to the costs. Nor the dismissal of this application-will prevent the plaintiffs from proceeding by another·actionagainst the- new defendant sought to be added hereto. Unde? this rule the Court has power: on the application-of the plaintiffs to add or substitute a defendant. Thereforesince the plaintiffs have elected' to take the stand' in» theseproceedings towhich Ihave referred.and'without purporting toilay down a principle of general application, in the special circumstances of.this case I grant this application..by.order­ ing that A. L. Mantovani &, Sons Ltd. be joined-as codefendant in this action and that the writ of summons-be; amended'accordingly and„that as-second.defendant should. be entitled to·exercise, all the rights of the first defendant in this action." In Co-operative Organisation of General Trade (S.O.G:E.K.)· Cyprus.Ltd.v. TheShip.Blue Sea andothers

(1975)1 C.L.R. 472;. the. Court,adopted the.principles,goyerning. the addition,of a. defendant-either on the application of the defendant or of a 65 Savvides J. Hellenic Bank v. Kosma

(1984)person not already party to the proceedings, as expounded in the Amon and Gurtner cases and dismissed the application of a third party to be joined as defendant, which was opposed by plaintiffs, whereas at the same time it allowed the addition of another party as defendant to whose addition the plaintiffs had no objection. A. Loizou, J. said at pp. 480, 481: 5 "They still have their own remedies, as between themselves and the persons with whom they are in conflict, and the> still have other procedural means open to them. The matter in issue between the present parties to the 10 case, is, whether the clause, Owners having a lien upon cargo covered by this Bill of Lading outstanding amount due under time charter contract with Messrs. Mortensen and Lange, dated 4th August, 1972and addendum thereto'. was properly inserted and was binding on the plaintiffs or 15 it was arbitrarily inserted, and without their consent and agreement, as claimed by the plaintiffs, and, therefore, not binding on them. The addition of applicants 2 will only complicate, delay and embarrass the proceedings." In Manchester Lines Ltd. and another v. Viainaz Coach In- 20 dustryLtd.

(1983)1 C.L.R. 178,an application by the defendants for leave to add a co-defendant was refused and the Court held. "that leave to add a co-defendant may berefused where the addition of a defendant will have the effect of adding a new cause of action; that the claim of applicants is a matter 25 between the present defendants and their suppliers and there does not exist a cause of action between the plaintiffsrespondents in this application and the firm of Albert Jagger Ltd., nor is it necessary to join them as defendants to enable this Court to make an effectual adjudication 30 concerning all matters in dispute; in fact, if they were to be added the Court should be adding a new cause of action and not dealing with the action as it stands between the existing parties; accordingly, the application for the addition of a co-defendant must fail." is The powers of this Court to interfere in a matter which involves the exercise of judicial discretion have been considered inter alia, in Kotsapas and Sons Lid. v. Titan Constructionand EngineeringCompany, 1961 C.L.R. 317, Efstathios Kyriacou and 66 1 C.L.R. Hellenic Bank v. Kosma Savvides J. Sons Ltd. v. Mouzourides

(1963)2 C.L.R. 1, Karydas Taxi Co. Ltd. v. Koinodikis

(1975)I C.L.R. 321, Paphifis v. Bonifacio

(1978)I C.L.R. 127. Constantinides v. Makriyiorghou and Another

(1978)I C.L.R.

1. 5 H* As far back as 1885, Bowen L.J. had this to say in Gartnerv. Jay [1885] 25 Ch.D. 50 at page 58: "That discretion, like other judicial discretions, must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it it will be reviewed '" The above dictum was applied in Evans v. Bartlam [1937] 2 All E.R. 646 in which Lord Wright, at page 654, expressed the following opinion: i5 20 "It is clear that the Court of Appeal should not interfere with the discretion of ajudge acting within hisjurisdiction, unless the court isclearly satisfied that he was wrong. But the court is not entitled simply to say that, if thejudge had jurisdiction, and had all the facts before him, the Court of Appeal cannot review his order, unless he is shown to have applied a wrong principle. The court must, if necessary, examine by way of review a discretion which may reverse or vary the order." In CharlesOsenton&Co.v. Johnston [1941]2 All E.R. 245 at page 250, Viscount Simon, L.C. said: 25 30 35 "The law as to the reversal by a Court of Appeal of an order made by the judge below in the exercise of his discretion is well-established, and any difficulty which arises isdue only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by thejudge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. If, however, the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion, in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appel67 Simides J. Hellenic Bank v. Kosnni (!9iU> lant, then the reversal of the order on appeal may be justi­ fied." In Beck and others- v. Value Capital Ltd. and others {No.2). [1976] 2 All E.R. 102, Buckley, L.J., said, (at page 109): "Where a trial· Judge is not shown to have erred in priu- 5 ciple, his exercise of'a discretionary power should not be interfered with unless the appellate- Court' is of opinion that his conclusion·is.one-that involvesinjustice,- or; to use the language of-Lord Wright, the appellate Court is clearly satisfied that the Judge of'first instance was wrong," 10 It.is clear from the above-authorities that a Court of Appeal' should not interfere with the discretion-of a judge acting within his-jurisdiction unless· the;Court·is: clearly satisfied^ that the discretion- has- been- wrongly* exercised: Bearing in. mind the principles; emanating- frotfl· the above 15 authorities and the cases referred to therein, we arecoming;to examine whether in the relevant facts,and circumstances of this case;,the application- to join:a.co-defendant should,have-beengranted. The facts- are briefly as follows: The.respondents-defendants- were the only shareholders and. 20 Directors of the-Companynamed "Eldes (ClothingManufactur­ ing)- Ltd:". In January, 1977 the appellants-plaintiffs offered credit-facilities to the said company on the written guarantee of the respondents, such gμaΓantee being of theextent of £24;000.-. As.a result ofthe failure of the Company toface its responsible 25 lities.to the,appellants arising out ofthe loss,,the appellants in accordance with the terms of the contract of guarantee,appoin­ ted Loizos Shakallis as the receiver and administrator of thesaid:Company, for the purpose of materialising.the.assets.of the Company-in satisfaction of appellants' claim. The respondents 30 were.-notified, about,the.-appointment of such receiver. After such·-receiver-materialised.au the assets of.'the Company, a.sum of £1-7,591.445'mils-was collected, which was debited1.against the· debt-, leaving a-balance of £6,177.271 mils.. In-addition,to the above indebtedness, respondent 1borrowed from the appellants 35 on. 31.10.1977" £2,000.- which he. failed to pay and:.which is claimed under paragraph (c) of the claim-. 68 ! C.I..R. Hellenic Bonk \. Kosma Sa\wdes.
2. The writ of summons was issued on the 16th January, 1980 and the respondents filed their defence on the 11th December,
3. They allege by their defence that as a result of the bad management of the affairs of the Company by the receiver, they 5 suffered a loss of £70,000.- in respect of which they reserve their rights. The application for the addition of the new defendant was made on the 29th January, 1983 after a delay of more than threeyears after the issue of the writ of summons and two years after the delivery of their statement of defence by 10 which they thought that it was not necessary to raise this matter in the present action and they reserved it as a cause for another action, and after the action had already been fixed for hearing. We have to point out that this delay was not the fault of counsel appearing today before us as he joined in these proceedings at 15 a very late stage and upon his being retained he filed the application for adding the new defendant. In the affidavit in support of their application to join Loizos , Shakallis as a party in the action, the following are stated under paragraphs 7, 8, 9: 20 25 30 35 40 "
4. Further and/or alternatively, since we had no association with the management and/or affairs of the Company following the appointment of the Receiver and Manager and/or no information was given to us and/or wewere not consulted, we have no responsibility whatsoever for the consequence of the actions and/or omissions and/or negligence of the Receiver and Manager.
5. 1 verily believe and as I am advised. Mr. Loizos Shakallis personally and/or in his capacity as Receiver and Manager ought to have been joined as defendant in the present action and/or his presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions and/or issues involved in the action and/or cause and/or matter.
6. Further, the addition of Mr. Loizos Shakallis as defendant inthepresent action, willcause no embarrassment to the plaintiffs but in thecontrary, willenable them to have before them as defendants all the parties that may allegedly have caused their loss and/or who are allegedly liable to them." 69 Sawides J . Hellenic Bank v. Kosmu

(1934)At the hearing of the application, counsel appearing for the respondents, stated that the respondents offered to submit to judgment for the whole of the claim and costs if the appellants were prepared to grant them a stay of execution and this fact is mentioned in the judgment of the trial Court 5 It is clear from the provisions of Order 9, rule 10 that the Court is empowered to add as parties, persons whose presence before the Court may be necessary for effectually and completely adjudicating upon and settle all the questions involved in the cause or matter. The question which poses for answer is: Was the addition of the new party necessary to enable the Court to adjudicate upon questions involved in the cause? Or such addition would have complicated the issues and embarrass the plaintiffs in pursuing their claim? What appears from the facts set out in (5 the affidavit in support of the application and the other material before us, appellants' claim against the respondents is based on an agreement of guarantee. What the respondents allege by their defence and the affidavit in support of the application, is that the claim in respect of which they are sued, is the result of 20 the mismanagement οΐ the party added as co-defendant against whom they have a claim by far exceeding plaintiffs' claim. The appellants, however, have no claim whatsoever against the added party and it is clear from the alleged facts that the respon­ dents seek to introduce a new cause of action, which cannot be 25 conveniently dealt with in the present case. It relates to the conduct of such new party, as Receiver of the Company, for mismanagement of the affairs of the Company. There is no doubt, and this appears also in thedecision of the trial Court that the addition of the new defendant, especially at 30 such advanced stage of the proceedings and after such a long delay, involves further delay and hardship to the appellants due to the need of "procedural steps which will have to be taken and widening of the framework which the action would have other­ wise proceeded." We find ourselves unable to agree with the 35 learned trial Judge that these factors are outweighed by the need of securing a full and final adjudication of all matters involved. It has further been ignored by the learned trial Judge the fact that with the addition of the new defendant, a new cause has been introduced by far more complicated than the one before 40 70 10 1 C.L.R. Hellenic Bank v. Kosma Sawides J . him. Also, that in the light of the contention of appellants that they had no claim or cause of action against the new defen­ dant, there was nothing to prevent either such defendant, whom the Court did not have the opportunity to hear when the appli5 cation was dealt with, to apply that the action against him be dismissed to which the appellants might have consented, or the appellants to discontinue the action against him, in the exercise of their right under Order 15 of the Civil Procedure Rules. In view of the aforementioned and bearing in mind the relevant considerations relating to the power of this Court to interfere with the exercise of discretion, we feel that we are entitled to interfere with the exercise of the relevant judicial discretion of the trial Court on the ground that such exercise is wrong and causes injustice to the appellants. The respondents Ί5 still have their own remedies as between themselves and the persons with whom they are in conflict and they still have other procedural means open to them. 10 20 In the result the appeal is allowed and the order of the trial Court for the addition of Loizos Shakallis as a co-defendant is set aside with costs of this appeal against the respondents. We find it unnecessary to disturb the order for costs made by the trial Court in the application before him, once such costs were awarded in favour of the appellants. Appeal allowed. 71