(1987)1987 May 16 [P1KISJ] Ε PHILIPPOU LTD , Plaintiffs, ν COMPASS INSURANCECO LTD Defendants (Admiralty Action No 267/84) Admiralty — Practice— Pleadings — Differencesbetween rulesof pleading in admiraltyactionsand those in other civilproceedings — Thing m common thatpleaded factsshoulddisclosea causeof action— Actiononinsurance policyfor recoveryof losssufferedfromdamagetogoods — Failure toplead factsconnecting damagewith any of the nsks insured— No causeof action 5 disclosed— Gap, however,may be bndgedby anamendment proposed by plaintiffs— TheAdmiraltyJunsdictionOrder, Rules38, 87,89 and 90—The old EnglishRules, Ord 19,r4—The CivilProcedure Rules, Ord 19,r 4 Relying on rule 89 of the Cyprus Admiralty Junsdiction Order the defendants applied for an order setting aside the petition and/or striking out the action for failure to disclose a cause of action The wnt of summons specifies the claim to be one for the recovery of loss suffered from damage to goods the subject of a specified policy issued by the defendants Counsel for the defendants submitted that, inthe absence of an averment in the petition that the damage suffered was referable to one or moreof the nsks covered, thepetitiondoes notdisclose onitsface acauseof action It must be noted that the defendants' application was examined in conjunction with an application by the plaintiffs for the amendment of the petition designed tonghtany failure oromission noticeable init Held {l)The rules ofpleading inan admiraltyactionare notidenticalwith those applicable in other civil proceedings Wntten pleadings in admiralty actionsarenotinevitable {Rule38oftheCyprusAdmiralty JunsdictionOrder, 1893), but may be orderedby theCourtafter heanngtheparties, moreover, companson of rule 87 of the said Orderwith Ord 19, r4 of the old English 2 5 Rules or with Ord 19, r4 of our Civil Procedure Rules, leads to the conclusion thatrule87 imposes morestnngentrequirements thaneitherOrd 19,r 4 because Rule 87 requires thepleading of everyfact« onwhich a 344 10 20 I C.L.R. Ε. Phlllppou v. Compass Insure . party relies ·. whereas, Ord. 19.r.4 limits theobligation to a statement oi material facts.What thesaid rules havein commonisthatthestatement ofthe plaintiff's case should disclose acause ofaction. 5 10 {2) The pleaded facts must make up the component parts of an action entitling the party to relief. The facts are assessed at their face value. At this juncture what isat issue are the objective implications ofthe factswith aview to determining their effect in Law.
(3)Although the petitionin thiscasehighlightsthecausewhich theplaintiffs wishto litigate,the factsdisclosedfallshortof fledgingit intoacauseofaction known to the law. It omits to state the facts, establishing the breach of the policy, entitling prima facie the plaintiffs to the relief sought. The nexus between cause and damage ismissing.The proposedamendment, however, bndges the gap.by specifying thatitAvas an allriskspolicy naturally including loss or damage in transit. ^ Application for amendment granted with coststhrown away.Threefourths of the costs in respectofdefendants' application againstthe 20 plaintiffs. Cases referredto: Kittalasv. Frangoudis andStephanou Ltd. 11986) 1 C.L.R.359: Shawv. Shaw [1954] 2 All E.R. 638: Alpan v.Nakufreight Ltd.
(1978)1C.L.R.582. 25 Application. Application for an ordersettingasidethe petitionand/orstriking out the action for failure to disclose a cause of action. P. Anastassiades, forapplicants - defendants. P. Liveras, for respondents-plaintiffs. 30 Cur. adv. vult. PIKIS J. read the following judgment. Provided pleadings are exchanged,as were in thiscase pursuant toan order of the Court. R.89 of the Cyprus Admiralty Jurisdiction Rules entitles either party to apply to the Court for immediate determination of any 35 question of law or fact arising thereto. The present application of defendants is based on the aforementioned rule and an orderi<; sought setting aside the petition and/orstriking out the action fo: 345 Pikls J. Ε.Phittppou v. Compass Insurance
(1987)failure todisclose acauseofaction.Earlierdefendants abandoned anapplicationtostrike outthewritofsummonsforsimilar failure. Plaintiffs opposed the application and refuted the suggestion that the petition was defective forfailure todisclose a causeof action or on any other account. Nevertheless, plaintiffs offered to 5 amend their petition if that were toserve toconvey a better indication todefendants of theircause anditsimplications.Andan application followed fortheamendmentofthepetitioninan effort to put their case in a clearer perspective. The proposed amendment failed to remove the objections of plaintiffs, 10 whereupon directions were given for the continuation of the hearing ofthe application of22nd January, 1987, examined in conjunction with the application for amendmentofthe petition designed torightany failure oromission noticeableinthepetition. The writ of summons specifies the claim tobeone forthe 15 recovery ofloss suffered from damage to goods the subject ofa specified policy issued by the defendants. Of, course the claim mustbe of aspecies amenabletotheAdmiralty Jurisdictionof the Supreme Court, though the circumstances giving rise to jurisdiction need notbe identified inthewrit of summons*. Inthe 20 petition reference is made to the goods allegedly the subject matter of the Insurance Policy, and the date ofthe agreement entered into between the parties for the insuranceofthe goods. Butitdoes notspecify theriskscovered bytheinsuranceandomits to correlate thedamage sustained tothatrisk.Inthesubmission of 25 counsel for the applicants (defendants), the petition does not disclose an actionable cause in the absence ofan averment that the damage suffered was referable toone ormore oftherisks covered; or put inanotherway, thepetitionfailed toestablish, on its face, liability of the defendants forbreach of the contractof 30 insurance. In support of his submission, counsel referred to the rules of pleading aclaim, the subject of definition by Order 19, Rule4,of the old rules of the English Supreme Courtjtowhich 0.19, r.4,of theCivil ProcedureRulescorresponds) explained andanalyzed in 35 Bullen and Leak**. Furthermore, he adverted tothe elements or components of an action for recovery of loss covered by an *Kittalas v.Frangoudisand Stephanou Ltd.
(1986)1 C.L.R.
- "12th Ed..pages53 and
- 346 1 C.L.R. Ε. PhUippou ν- Compass Insurance PtklsJ. Insurance Policy* in order to demonstrate thpfpi'ure of the plaintiffs todisclose such a cause in their petition Adopting a statement from Ivamy he submitted that in cider to succeed the insured must prove (a)a loss and (b) ofa kind covered bythe 5 Policy Counsel ended hts arguments byrecounting a statement from Atkm**that pleadings inadmiralty actionsespecially should state facts inthemostcomprehensive manner Forhispartcounsel for the respondents (plaintiffs) reminded of the point madeby Denning, LJ ashe then was in Shaw ν Shaw*** that whatis 10 relevant isthe adequacy ofthe statement of facts, not the label attached tothem InAlpanν Nakufreight Ltd ****, A Loizou,J , reiterated thatinadmiraltyactionstoothereshould be nopleadinq on thelaw ortheevidence supporting thefactual allegations made therein Incounsel's submission the complaintofplaintiffs inthis 15 case concerns an omission to plead evidence, whereas all facts matenal for the support oftheircase areaverred, albeit bnefly,in thepetition 20 25 30 35 Both counsel premised their submissions onthe assumption that the rules of pleading inan admiralty action are identical to thoseapplicable toothercivilproceedings, thatis, those.contained inOrd 19,r4,of theoldEnglish rules andOrd 19,r4,ofthe Civil Procedure Rules Thatisnotan altogether accurate assessment To begin, wntten pleadings inadmiralty actions are not the inevitable meansofdefining the case ofthe parties tothe cause Rule 38 of the Cyprus Admiralty Junsdiction Rules makes provision for an oral statement of the facts and for their embodimentinanoteof theCourt Exchange ofpleadings maybe ordered only ifdeemed necessary by the Courtafter heanng the parties, ashappened in this case Where pleadings are ordered they should conform totheprovisions of R87 with regard totheir content As acompanson ofthe text ofR87 and Ord 19,r4,of theold rules of theSupreme Courtconfirms, theprovisions ofthe two are not identical, on the contrary, there are noticeable differences between thetwo At first blush, as I indicated to counsel in argument, R87 appeared to me to impose less stringent requirement ofpleading compared to Ord 19, r4On reflection Ithink itisnot so and that in fact the opposite istrue *tvamy. GeneralPnnaples of InsuranceLaw 1stEd p343 "Atkms CourtFprms Vol1 pages323and324 "'11954} 2 AllΕR 638 645 ""[1978) 1CLR 582 347 Pikls J. Ε.Philippou v. Compass Insurance
(1987)Whereas Ord. 19. r.4 limits the obligation of the plaintiff to a statement of material facts, R.87 extends the obligation to every fact «... on which the party relies ».Very probably R. 87 was fashioned tothepracticeof theAdmiralty Division of theSupreme Court in England reflected in Atkin referred to by counsel for the 5 defendants. What bothrules have incommonisthatthestatement of the plaintiffs' case should disclose a cause of action. Unless a cause known to the law is set forth as the subject of the proceedings, litigation would be futile. Rules 89 and 90 of the Cyprus Admiralty Rules confer discretion of theCourttodealwith 10 such'failure or inadequacy inany manneritmay deem conducive to theinterest of justice. The facts founding the claim of the plaintiff disclosed in the statement of his case (petition),mustgiverisetoa cause of action known tothelaw orasstatedinBullen(supra),thefacts mustmake 15 up the components of an action entitling the party to relief.The facts are assessed on theirface value andnoinquiry isatthis stage held intotheirvalidity. Thetrial istheforum for theirelicitation.At this juncture what is at issue are the objective implications of the facts with a view to determining their effect in law, particularly 20 whether they disclose a cause of action.Our next task is to apply thistest inordertodeterminewhetherthepetitionfailstoset forth a cause of action and if so whether the defect is remedied by the proposed amendment.Both issues can be gone intoatthe same time inview of the breath of thepowers of theCourtunderRules 25 89 and 90 and the need to provide a compendious solution to preliminary issues. Although thepetition highlights the cause that plaintiff wishestolitigate,thefacts disclosed fallshortoffledgingit into a cause of action known to the law. Evidently plaintiff complains of breach on the part of the defendants of the 30 provisions of an insurance policy but this claim fails to disclose necessary facts givingrisetoliability on thepart of the defendants and inthatway fall shortof setting forth alitigable cause ofaction. As Iread the petition,itdoes little more than provide thelabel of the cause while it omits to state the facts establishing the breach 35 entitling prima facie the plaintiffs to the relief sought. The breach complainedof isnotcorrelatedinany definite mannertotheterms of the insurance policy and in that way fails to identify the most significant fact for success in an action for breach of contract; the nexus between the cause and the damage. 40 Ontheotherhandtheproposed amendmentbridges thegap by 348 1 C.L.R. Ε Philippou ν Compass Insurance PlklsJ. soe rying thatitwas an all riskspolicy, naturally including lossor damage in transit Whether plaintiffs should condescend to more particulars, is a matter that need not concern us at this stage It suffices that the facts assuming they are accepted, give nse to a 5 cause of action known to the law Therefore I shall allow the applir ationforamendmentcoupled with thefollowing directions (a)Amended copy of thepetition tobe filed within seven days (b) The defendants will be at liberty to answer the amended petition within threeweeks 10 (c) Lastly, plaintiffs will be at liberty to reply within 15 days thereafter Itismanifest from thejudgment of theCourtthattheapplication of defendants of 22nd January, 1987, was well founded, though notpersistence initsprosecutionafterapplicationfor amendment 15 A fair order for costs would be that defendant should be allowed threefourths of thecosts ofproceedings relevant totheapplication of 22nd January, 1987, and the application for amendment Furthermore defendants are entitled tothe full costs thrown away in consequence of theamendment 20 The case isadjourned for further directions to6thJuly, 1987, at 9am Orderaccordingly 349