clr/1986/1986_1_617.pdf

(1986)caused as in result of the order the Executive Council is rendered leaderless at a moment when negotiations with the employers were at a delicate stage. It appears that respondent's action was filed in order to safeguard his interest, the allegation being that appellants may agree to a restructuring of positions in the C.B.C. hierarchy, detrimental to his interests. This allegation was denied. 5 Finally it should be noted that in accordance with the Articles of Association of the Trade Union the general JO council of the Union has power to interpret the Articles and that such Council decided that the nomination of the two appellants was in order, a view backed by the Registrar of Trade Unions. Held, granting the application: (A) Per A. Loizou, ).: 15

(1)The principles governing the exercise of the discretion of the Court for stay of execution pending appeal have been well established and in essence they consist of a balance between protecting a successful litigant, who is entitled to the fruits of litigation, on the one hand and 20 that the appeal, if successful, must not be allowed to be rendered nugatory, on the other hand.

(2)In the circumstances of this case and having weighed the pros and cons the conclusion is that the discretion should be exercised in favour of stay. (B) Per Pikis, J.:

(1)The interim order in question does not aim to preserve the status quo, but to upset it in the manner sought by the action. Reference to this fact merely intends to indicate that the appeal is not frivolous, a matter to which this Court may properly have regard at this stage. 25 30

(2)An equilibrium must be maintained between the principle of finality of first instance judgments and the preservation of the efficacy of the right to appeal. This question very much depends on the facts of each case. 35 The discretion conferred on the Court is very wide.

(3)In the circumstances of this case what is largely 618 1 C-t.R. 5 Ε.Y.R.I.Κ. & Others v. Kotsonis at risk is the efficacy of the right of the appellants to question 'he interim order in question. The possibility of damage, being suffered by the respondent, on the other hand, by reason of the derogation from the principle of finality of first instance judgments appears to be rcmole. Consequently, ihe scale is tipped in favoui of stay. Appl'cation granted. Cases referred to: 10 Katarina Shipping v. The CX.R. 355; Ship 'POLY"

(1978)1 Katarina Shipping v. The C.L.R. 486; Ship "POLY" Μ978) 1 Papastratis v. Petrides

(1979)1 C.L.R. 23; loannou v. Demetriou and Others

(1980)1 C.L.R. 425; 15 Gruno v. The Ship "ALGAZERA"

(1980)! C.L.R. 595; "Phoenix" Greek General Insurance Co. S.A. v. Al Klalaf Exhibition

(1981)1 C.L.R. 673; Christophorou'and C.L.R. 676; 20 Others

(2)v. The Republic Erinford Properties Ltd. v. Cheshire [1974] 2 All E. R. 448; County (Ι985Ϊ 3 Council Motley v. Alston, 41 E. R. 833; Edwards and Another v. Halliwetl and Others [1950| All E. R. 1064. 25 2 Application. Application for the stay of execution of an order of the District Court restraining appellants 2 and 3 from taking part in the deliberations or decision making of appellant 1 pending the determination of the appeal. 30 A. Consfantinott, for the applicants. C. Clerides, for the respondents. 619 E.Y.R.f.K. & Others v. Kotsonis

(1986)The following judgments were given. A. Loizou J.: At the conclusion of the hearing of this application we gave the result in the following terms which arc self explanatory: "In view of the urgency of the matter we have 5 thought it appropriate to follow the course of giving the result in this application now and deliver our full reasons later. The conclusion to which we have come having heard both counsel and having gone through the material placed before us, is that a stay 10 should be ordered pending the determination of the appeal. On the other hand, as the issues raised are of considerable importance as they affect the functioning of a trade union obviously at a crucial period in its re- 15 lations with the management, we direct that the action itself before the District Court be given a short date of trial independently of the pendency of the appeal against the interim order and that it be determined with the utmost speed which its very nature merits. 20 Costs will be costs in the cause but in any event not against the applicants." The relevant facts as they appear from the affidavits filed are these. On the 14th March, 1983, elections were held for members of the Executive Council of the ap- 25 pellant Trade Union. In these elections Yiannis Karaolis and Stavros Panayides were successful and as Chairman and Organising Secretary respectively of the said Trade Union. The respondent was one of the candidates. On the 22nd April 1986, he filed an action against the Trade 30 Union and the two officers and on the same day he filed an application by summons by which he sought an interim order restraining the two said officers from performing their duties in the Executive Council of the Trade Union. On the 22nd September, 1986, the said interim order was 35 granted and an appeal from that order was filed two days later. An application for a stay of execution based on Order 620 1 C.L.R. 5 E.Y.R.I.K. & Others v. Kotsonis A. Loizou J. 35, rule 18 was made in the first instance as it ought to, to a Judge of the District Court of Nicosia which was dismissed on the ground that the learned District Judge had not been persuaded "that there existed in that application the special circumstances which justify the stay of the interim order against which an appeal was filed". For that reason he concluded by saying that he could not exercise his d:scretionary power in favour of the applicants and he dismissed the application with no order as to costs. 10 In fact, two such applications were filed in the District Court of Nicosia, one by the Trade Union and the other by the two officers, and both were dismissed. This therefore opened the way to a similar application to a Judge of this Court or to the Court itself under the provisions of 15 Order 35 rule 19, by way of original application and not as an appeal from the refusal of the stay by the District Court. The ground upon which this application is sought is that irreparable damage is caused both to the two appli20 cants and the Trade Union impending its function by denying participation to two officers holding key positions in its executive council with the result of rendering it in the last analysis without leadership. This situation becomes obvious when one thinks of the possibility of some mem25 bers being unable to attend the Council meeting in which case no quorum can be found. Moreover, the industrial relations between employees and employment at the Cyprus Broadcasting Station have been going for some time now through delicate negotiations, reaching also some form or 30 other of industrial action, that the full force of the leadership of the Trade Union is most essential, both for the sake of the interests of its members but also for. hopefully. achieving industrial peace in this establishment for the functioning of which there is so much public concern. 35 In a line of cases the principles governing the exercise of the Courts d'scretion for a stay pending appeal have been well established and in essence they consist of a balance between protecting a successful litigant who is entitled to the fruits of the successful outcome of his action 621 A. Loizou J. E.Y.R.I.K. & Others v. Kotsonis (1986! and on other hand, that the appeal if «uccessfu'. must not be allowed to be rendered nugatory. Having weighed the pros and ccns I ha\e come to the conclusion that in the special circumstances of this CR*e outlined above I should exercise my discretion in f^cur of a stay. It is for the above reasons that I joined my brethren on the Bench in unanimously ordering as we did on the 24th November. 1986, a stay of the intei m order appealed from with costs ·η the cause but in any event not against the appl'cants. 5 10 PIKIS J.: In exercise of the powers vested in the Supieme Court under Ord. 35. r 18 we were moved by the appli­ cants to stay the execution of an older of the District Court restraining appellants 2 and 3 from takmg part in the deliberations or decision-making of the first appellants, 15 one of the two Trade Un : ons of the emp'oyees of the Cyprus Broadcasting Corporation. A similar appMcation earlier made to the District Court was refused. Hence there was nn procedural imnediment to heeding the appli­ cation (Ord 35, r. 19) "" 20 Proceedings for stay before the Supreme Court, raised subsequently to a negative decision of the Dstrict Court, are n^t of an appellate but of an original nature. in­ volving the exercise of discretionary powers akin to those vested in fhe District Court. Numerous Cyprus and EngMsh 25 casesi establish the principles that should govern the exer­ ; cise of the power and illustrate its application n pprti1 See. inter alia. Katarina Shipping ν The Ship «POLY»

(1978)1 C L R 355, at pp 360-361. Katarina Shipping ν The Ship «POLY»

(1978)1 C L R 486, at pp 517-519. Papastratis ν Petndes

(1979)1 C L R 23. Ivoni loannou ν Andreas Demetrtou and Others

(1980)1 C L R 425, at ρ 429 Gruno ν The Ship tALGAZERA»

(1980)1 CL.R 595. at ρ 598, tPhoenix» Greek General Insurance Co SΑ ν ΑΙ Khalaf Exhibition

(1981)1 CLR 673 676-677 Alexia Chnstophorou and Others

(2)ν Republic

(1985)3 C L R 676 at pp 682-

1. The Annual Practice 1960 1695-
2. at po 345, 348 &
3. Erinford Properties Ltd ν Cheshire County Council [ 1 9 7 4 ] 2 All ER 448, at pp 450, 454, Palmer's Company Law, 5th Cumulative Supplement to the 21st Edition,
4. at η 496 Palmer's Company Law, 21st Edition, 1968, at ο 503, Mozlev ν Alston, 41 ΕR 833 622 1 C.L.R. E.Y.R.I.K. & Others v. Kotsonis Pikis J- cular cases.Two are the competing principles that should in each case be weighed in the light of the facts of the case. The first aims to protect the rights of the successful litigant. He is entitled to the fruits of his success notwith5 standing the challenge of the decision by way of appeal. The finality attached to first instance judgments is not suspended when challenged by appeal. The imprint of finality attaches thereto unless reversed by the Court of Appeal. Under our judicial system finality is not dependent 10 upon confirmation on appeal. On the other end of the scale there is the right of appeal. This is the second basic principle to which the Court should have regard in exercising its discretion under Ord. 35 r.
5. It is a right given by law2 and its efficacy must 15 be sustained. Its exercise must not be allowed to dwindle into a theoretical measure. In the time honoured expression the right to appeal must not be allowed to be rendered nugatory. An equ'librium must be maintained between the principie of finality of first instance judgments and the preservation of the efficacy of the right to appeal. The establishment of this balance is very much dependent on the facts of the individual case. Wide discretion is conferred to the Court in the matter, and there is power to impose appro25 priate terms apt to do justice to competing claims within the framework of our adversary system. Therefore, we must turn to the facts. 20 Angelos Kotsonis, the respondent, is a member of SYTIRIK, one of two Unions of employees of the Cyprus 30 Broadcasting Corporation. In the last elections for a return of the governing committee of the Union the applicant was one of the unsuccessful candidates. In point of fact, he, was the ninth unsuccessful candidate. Yiannis Karaolis and Stavros Panagides were two of the successful candidates 35 in the seven-member Committee. In fact, they served in the previous committee of the Union and their mandate was renewed by a strong majority. A. Kotsonis raised the present proceedings before the District Court of Nicosia, 2 Section 25{1) — Courts of Justice Law 14/
6. 623 Pikis J. E.Y.R.I.K. & Others v. Kotsonis

(1986)seeking a declaration of invalidity of the elections and an order excluding the aforementioned successful candidates. In support of both remedies he pleaded the Articles of Association of the Union that were allegedly breached. The regulation concerns the formalities for the candidature of 5 Karaolis and Panagides, in particular, whether their nomi­ nation ought to be backed by the various branches of the Union notwithstanding signification of such support on the immediately preceding occasion of their election. The Ar­ ticles confer competence on the general council of the 10 Union to interprete its constitution. They decided the nomi­ nations were in order, a view supported by the opinion of the Regastrar of Trade Unions. The action is propounded, as it appears from the claimin the name of the interest of Kotsonis as a member of 15 the Union in order to safeguard financ'al interest that may be prejudiced by the participation of Karaolis and Pana­ gides in the Union committee. The allegation is that they may agree to a restructuring of positions in the C.B.C. hierarchy, detrimental to his interests. 20 The interim order made by Hadjiconstantinou, S.D.J., was designed to protect this interest of the applicant by the exclusion of Karaolis and Panag : des from the affairs of the Union committee. Why a distinction was made between the legality of the elections of the aforesaid two members 25 and 'he committee in its entirety, is nowhere made clear in the judgment. Karaolis and Panagides appealed against the above order. Pending its determination they applied to the Dis­ trict Court for a stav of the order. Kronides, S.D.J., dis- 30 nvssed the application that was repeated before us pur­ suant to the provisions of Ord. 35 r.

1. In his judgment, Hadjiconstantinou, S.D.J., found that the complaint of the plaintiff is, on the authority of Edwards and Another v. HaWwell and Others,) actionable and the interim injun- 35 ction a measure necessary for the protection of the finan­ cial interest of Kotsonis. As may be gathered from its tenor, the order made does not aim to preserve the status quo but 1 [19501 2 All Ε R
2. 624 1 C L R 5 10 E Y R I K & Others ν Kotsonis Plkis J to upset it in the manner sought in the statement of claim In effect, the basic remedy sought in the action was granted No attention was given to this aspect of the matter or the apparent anomaly created by the fact that with the exclusion of Karaolis and Panagides the committee would be compelled to function below the strength laid down in the constitution of the Union We are not presently concerned with the merits of the appeal Reference to the above is merely intended to indicate that the appeal is not fnvoic-us a matter to which we may properly have regard at this stage, and that the appellants have an arguable case Affidavits sworn to by members of the Union who were not excluded, deny every suggestion that the comnvttee hvs 'iny intention of prejudicing, by the handling of the nego15 ttations. the inteiests of Kotsonis On the other hand, the exclusion of its two members does prejudice the fun­ ctioning of the committee and is likely to undermine the effect-veness of the Union as a representative of the in­ terests of its members in negotiations in which it is nrc20 sently locked with the management of C Β C Moreover. any agreement that may be reached will be subiect to an proval bv the plenum of Union members. Success on ap­ nea
3. it was argued, will not undo the wrong that may be done in the meantime to the Union or the discharge of -5 the responsibilities of Karaolis and Panagides as Union members They submitted that success on appeal will be large'v nueatory Balancing the considerations indicated at the outset of this judgment as they emerge through analysis of the SO facts of the case what is largely at risk is the efficac\ of the nght of the appellants to cmestton the order of Hadnconstanhnou S D J The poss'bility of damage being suf­ fered by Kotsonis. on the other hand because of deroe.t tion from the principle of finahtv of first instance judc35 ments is. as it appears to us, remote Consequently, the scale is tipped in favour of stay and 625 J Pikis J. E.Y.R.I.K. & Others v. Kotsonis

(1986)we so ordered immediately after the conclusion of the hearing. Hereinabove, we indicate the reasons for so directing. DEMETRIADES, J.: I have already read the judgments given by my two brothers. I agree and have nothing to add. 5 Application granted. 626