clr/1984/1984_1_701.pdf

(1984)in support of his contention that any opinion given by a foreign legal expert, can be supported by reference to books, treaties and Court decisions Held, that an affidavit must be pertinent and material and may be ordered to be taken o'f the file if scandalous and irrelevant 5 matter is inserted: that in the affidavit in question Action No. 639/83 is not simply mentioned as an example in support of the opinion given by a legal expert on foreign law but facts are stated which may be prejudicial to the outcome of the case: that the matters stated therein in the way they are stated, are 10 scandalous and oppressive and tend to prejudice the fair trial of the action: and that, therefore, the application must be granted. Application granted. Cases referred to: 15 Re Miller. 54 L.J. Ch. 205: Knowles v. Roberts, 38 Ch. D. 263 at p. 270; Smith v. British Insurance Co. [1883] W.M.

1. Application. Application by defendant for an order striking out part of para. 6 of The affidavit dated 6th December, 1983 sworn on behalf of the plaintiff. 20 M. Eliades with A. Skordis, for the applicant. E. Montanios with P. Panayi (Miss), for the respondent. Cur. adv. vult. SAVVIDES J. read the following decision. By this application which was filed on the 8th December, 1983 applicant prays for an order of the Court striking out from para. 7 of the affidavit of Persefoni Panayi dated 6.12.1983, sworn on behalf of the respondent, that part by which reference is made t o thejudgment 30 in Action 639/1983 of the Courtof Appeal of Piraeus as well as the copy of such judgment which is annexed to the said affidavit as exhibit *A\ as irrelevant, frivolous, vexatious, embarrassing and in abuse of the process of the Court. The said affidavit was filed by counsel for plaintiff in support 35 of their opposition t o an application made by the applicant, 702 25 1 C.L.K. Williams and Glyns Bank v. Ship ''Maria" Sim ides J. for striking out certain parts of .plaintiff's reply and answer to the defendant's counterclaim in the action. Paragraph 6 of such affidavit reads as follows: 5 10 15 20 "I am further advised by the said Mr. Astras and verily believe that under Greek law Court precedents "Η Νο­ μολογία των Δικαστηρίων" and the opinion of legal writers, though not binding, are taken into consideration by Greek Courts and referred to in their judgments. In support of this he cites judgment No.639/1983 of the Court of Appeal of Piraeus which, in upholding the decision of the Court of First Instance of Piraeus that the guarantee and the mortgage (which are the subject matters of the present action) granted by the owning company of the defendant ship to the plaintiffs are within the powers of the said company and valid, itself cited at page 6 of the said judgment in support of its conclusion five of the parti­ culars which are sought to be struck out i.e. particulars (c), (d), (g), (h) and (k) as numbered in paragraph 3 of the affidavit in support of the application for striking out. The said judgment also cites in support an opinion of a legal writer on the subject. I attach herewith as exhibit *A' photocopy which Ihave made from an original legalised official copy of the said judgment". The part objected to by counsel for applicant as it appears 25 in the prayer is the part commencing in the second sentence with the words "in support of this he cites " and ends with the words "of the said judgment", that is, upto the end of paragraph 6, including "Exhibit A" referred to there­ in and attached thereto. 30 35 40 At the hearing of the application counsel for applicant, in answer to an observation made by the Court in the course of the address of counsel for respondent, made it clear that appli­ cant's objection was not in respect of the first part of paragraph 6 of the affidavit by which a general reference is made to the weight attached by the Courts in Greece on Court precedents and opinions of legal writers, but in respect of any reference to the particular Action 639/
2. Counsel's statement in this respect is recorded as follows: "It is so Your Honour;I am prepared to make a statement accepting unequivocally para. 6 from that point upto 703 Sanities J. Williams and Glyns Bank v. Ship "Maria"

(1984)judgment 639/83 andthattobestruckout,becauseit is only referred to as an illustration and we do need this illustration". Counsel for applicant, in advancing his argument in support of this application, drew theattention of the Court to an appli- 5 cation dated 18th November, 1983,for amendment by respondentoftheir pleadingsfor thepurpose of pleading therein Action 639/83 as material, which was subsequently dismissed on 5th December, 1983, as withdrawn, and contended that the introduction in the affidavit of particulars concerning such action 10 with a copy of thejudgment annexed thereto, was an indirect way of introducing, in the disguise of illustration, material facts which should have been pleaded in the first instance, without following the proper course of applyingfor amendment of the pleadings. 15 In his lengthy address, counsel for respondent contended that reference to decided cases and opinions of authors of textbooks are matters which can be pleaded as particulars of the Greek Law, and that they were properly so pleaded. He gave his reason of making reference to Action 639/83 as being 20 that such casewas onein many caseswhichcould lend support to the opinion of respondent's expert witness as to the interpretation of the Greek Law. Counsel for applicant, by an intervention, in an effort of suggestingasolutiontotheproblem,statedthat hewasprepared 25 to withdraw any objection whatsoever if counsel for applicant were prepared to make reference to any other decided case under the Greek Law as an illustration and not Action 639/83 theparticulars of whichassetout intheaffidavit, are prejudicial in the conduct of the present action. Counsel for respondent, 30 however,didnot concedetosuchoffer theresult ofwhichwould have been the striking out of any reference to Action 639/83 and its substitution by reference to other decided cases, contending that he could not find a better way of establishing his proposition astotheGreekLawthan bysupportingtheopinion 35 of a Greek lawyer with a decision, such as the one in Action 639/83 of a Greek Court, which refers precisely to those particulars which will support the evidence of the expert. 704 1 C.L.R. Williams and Glyns Bank v. Ship "Marin" Sawides J. Ifindit unnecessary, at this stage, todeal with the argument ofcounselfor respondent asto whether whentheposition under the Greek Law is pleaded by a general exposition of such law, extensive reference in the pleadings to Court decisions, or opi5 nions of text-book writers on which the expert will relyin support of his opinion as to the state of foreign law, is necessary, as this is not the matter in issue in the present application. Such issueis one which has been raised and will bedetermined by me in the application for striking out such reference in the 10 respondent's reply and answer to the counterclaim, in which the judgment has been reserved and will be delivered soon. The issue before me is whether the part in the affidavit by whichreferenceismadetoAction639/83oftheCourtinGreece and the contents of the decision in such action, copy of which 35 hasbeenattached lotheaffidavit should bestruckout asembarrassing, irrelevant, scandalous and tending to prejudice the fair trial in this action. It is well settled that the Court is not to dictate to parties how they should frame their case. But such rule is, of course 20 subject to the limitation that parties must not offend against the rules ofpleadingwhichhavebeen laiddown bythelaw, the effect ofwhichisthat aparty should not introduce in a pleading matters whichare unnecessary and tend to prejudice, embarrass and delay the trial of the action (see Knowles v. Roberts, 38 25 Ch. D. 263 at p. 270). Orders 17, rule 27 and 25, rule 4 of the old English Rules (see Annual Practice 1960) are relevant in this respect. The Court has also a generaljurisdiction to expunge scandalous matters in any record or proceeding (even in bills ofcosts, 30 Re Miller, 54 L.J.Ch. 205). Under old rule 11 of Order 38 of the English Rules (those in force on 15th August 1960), the.Court mayorder tobestruck out ofany affidavit any matter whichisscandalousandirrelevant. Asimilarprovisionappears in our Civil Procedure Rules which are applicable to civil 35 proceedingsbut do not applyto Admiralty proceedingsinview of the provisions of the Rules of the Supreme Court of Cyprus in itsAdmiralty Jurisdiction which regulate Admiralty proceedings and, under the provisions of Order 237 of which, "in all casesnot provided bythese Rules,thepractice ofthe Admiralty 40 Division of the High Court of Justicein England, so far as the 705 Simides J. Williams and Glyns Bank >. Ship "Maria"

(1984)same shall appear to be applicable, shall be followed". The English practice and the Rules of the Supreme Court applicable are, according to our law and jurisprudence, those in force on 15th August, 1960. In the notes under Order 38, rule 3, which deal with the con- 5 tents of affidavits, in the Annual Practice 1960, p. 924 under the heading, "Scandal-Relevancy", we read: "An affidavit must be pertinent and material and may be ordered to be taken off the file if scandalous and irrelevant matter is inserted (Osmaston v. Association of Land Finan- 10 ciers,

(1878)W.N. 101; Kernick v. Kernick, 12 W.R. 335; Goddard v. Parr, 3 W.R. 633; Cracknail v. Hanson, 11Ch. D.p. 12),or the scandalous matter may be expunged (Warner v. Mosses,

(1881)W.M. 69; and see r.ll). The Court willonly strike out matter that is both scanda- 15 lousand irrelevant, or is otherwise oppressive (per Buckley, L.J., Re Jessop

(1910)W.M. 128, a case in which the C.A. refused to strike out extracts from letters marked 'without prejudice')". In the example given in the notes in the Annual Practice 20 1960under Order 19,rule 27and Order 25,rule 4, as statements which are scandalous reference is made to Smith v. The British Insurance Co.

(1883)W.M. 232 which was an action on marine policies and a paragraph which purported to state what took place at an official inquiry held by the Wreck Commissioners 25 was struck out as an attempt to discredit the plaintiff and to prejudice the fair trial of the action. It is an undisputed fact in this case that what is sought to be struck out is the judgment of the Court of Piraeus that the guarantee and mortgage (which are the subject matters of the 30 present action) granted by the owning company of the defendant ship to the plaintiff are within the powers of the said company and valid. Counsel for respondent gave his reasons for making reference to Action 639/83 as being that such case was a good example 35 in support of his contention that any opinion given by a foreign legal expert, can be supported by reference to books, treaties and Court decisions. 706 1 C.L.R, Williams and Glyns Bank v. Ship "Maria" Savvides J. Having carefully considered the contents of paragraph 6 and the copy of the judgment which is annexed thereto as exhibit Ά ' and the way and the extent such judgment is set outtherein, Ifindmyself unabletoagree with theaboveconten5 tion of counsel for respondent. In the said affidavit, Action 639/83 is not simply mentioned as an example in support of the opinion given by a legal expert on foreign law but facts are stated which may be prejudicial to the outcomeof thecase. Ifindthatthemattersstated thereinin theway they arestated, 10 are scandalous and oppressive and tend to prejudice the fair trial of the action. For alttheabove reasons, Igrant theapplicationand I order that what is stated in paragraph 6 of the affidavit commencing with the words "in support of this he cites " 15 inthesecondsentenceof paragraph 6uptotheendof paragraph 6 ending with the words "of thesaid judgment", and thecopy of thejudgment inAction 639/83 attachedtheretobestruckout. Respondent to pay to applicant the costs of this application. Application granted. 707