1 C.L.B. 1987September 17 iMAL^CHTOS PIKIS KOURRIS.JJ] PANAYIOTIS C H R I S T O D O U L O U , Appellant-Plaintiff,' v. A V R A A M SOFRONIOU, Responden t-Defendant. (Civil Appeal No. 6972). Civil Procedure — Tnal—Adversanalsystem—Implication of— Refusalofleave to file a defence out of time, but allowing defendant to cross-examinethe plaintiff— Courseadopted struckattheroot ofadversarialsystem 5 Although the defendant was refused leave to file a defence out of time, becauseof inordinate andinexcusable delay,hewasgivenleave,ontheday fixed for (he proof of thecase,to cross-examine the plaintiff onthementsof hisclaim. 10 The claim wasfor aliquidated amount. Followingsuch cross-examination andafterhearingtheaddressesofcounselthetnalCourtdismissedtheaction. Hence thisappealby the plaintiff. 15 Held, allowing the appeal·
(1)Under the adversarial system of administration ofjustice theissuesindispute aredefinedbythepleadingsof theparties,thestatementofclaimandthedefence.Onlyafterthesubmission ofthedefenceisthereanissuejoinedbetweenthepartiesastotherightofthe plaintiff torecover.Intheabsenceofadefence,adefendantcannotbeheard todenytheplaintiff's case;hisonly right inthosecircumstancesistoquestion thequantumofdamages. 20
(2)The rules governing adversarial trial find expression in the Civil ProcedureRules(Order2 1 , rules 2,3,4and5,Order26,rules4and9,Order 65).
(3)In thiscasethedefendant wasin essenceallowedtodefendthe action andbe heard to dispute the claimof theplaintiff without havingdelivereda 441 Christodoulou v.Sofroniou (19S7) defence Thecourseadopud Miuckattherootoftheadversaria!systemofthe administration of justice aswell as defied the nghts of the plaintiff to tnalas ordained bythe Rulesof Court Appealallowedwith costs Caseremitted toDistnct Courtforfurtherconsideration Plaintiffatlibertytomove the Courttosetit down lorproof. Defendantatlibertytorenew hisapplicationforleavetofilethedefence out oftime Appeal. Appeal byplaintiff againstthejudgment of theDistrictCourtof Lamaca (Eliades, D.J.) dated 9th May, 1985 (Action No. 422/ 85) whereby his claim for £243.60 cent agreed or reasonable remuneration for servicesrendered todefendant was dismissed. Z.Mylonas, for the appellant. 5 10 15 A. Koukounis, for the respondent. MALACHTOS J.: Thejudgment of the Court willbe delivered byMr.JusticePikis. PIKIS J.: Although the defendant was refused leave to file a defence out oftime,becauseofinordinateand inexcusable delay, 20 he wasgiven leave, on the day fixed for the proof of the case, to cross-examine the plaintiff on the merits of his claim. The claim was for a liquidated amount, namely £243.60, agreed or reasonable remuneration for services rendered to the defendant on two specified occasions. Following the cross-examination of 25 the plaintiff by defendant's counsel, and after hearing counsel addressthe Court, the trial Court dismissed theplaintiff's claim as ill founded, adding he might have come to the same conclusion independently ofthe corss-examination ofthe plaintiff. Theplaintiff appealed complainingthatdefendant wasallowed 30 to cross-examine the plaintiff and be heard to dispute his claim notwithstanding hisfailuretofileadefence, acourse unwarranted by the Rules of Court and running contrary to basic norms governing the trial of a civilaction. We find the complaint of the appellantjustified for thereasons given below. 35 Under the adversarial system of administration of justice the issues in dispute are defined by the pleadings of the parties, the statementofclaimandthedefence.Theobjectofthestatementof claim isto define the rightbreached and articulate the remedy to 442 1 C.L.R. Christodoulou v.Sofroniou PiklsJ. which the plaintiff isentitled The defence", on the other hand is intendedtosignify thereaction ofthedefendant andelicitwhether the claim of the plaintiff to a nght to recover is denied and the reasons for the rejection of the claim, in short, to disclose his 5 defence to the claim Only after the submission of the defence is there an issue joined between the parties as to the nght of the plaintiff to recover Responsibility for the statement of a party's case under our system of justice rests with the litigants In the absence of a defence, a defendant cannot be heard to deny the 10 plaintiff scase,hisonly nght inthose circumstances isto question the quantum of damages By the exchange of pleadings the litigantsapprise one another of their case paving the ground for thedefinition oftheissueindisputeand theorderlytrialofthecase aswellastheavoidanceofsurprisesthatmightdivertthecourseof 15 justice The rulesgoverning adversarial trialfind expression inthe Rules of Court, regulating the exercise of civil junsdiction originating from and modelled upon the English Rules of the Supreme Court * Order 21of the Civil Procedure Rules provides for the submission of the defence as well asthe form itmust take 20 forthedenialofspecific causesofaction (Seeinparticularrr 2,3 4 and 5 ) The plaintiff isentitled to apply for judgment in respect of part of his claim where a defence provides an answer only to part of his claim (See Ord 26, r9 )Where the defendant makes default indehvenng a defence, the plaintiff isentitled toapply for 25 judgment The same procedural rules find application in proceedings raised under Ord 65 as can be gathered from the tenor of the provisions ofthe rulesembodied therein Theinevitableconclusion onareviewofwhattookplace before the tnal Court isthat defendant wasinessence allowed to defend 30 theaction andbeheardtodisputetheclaimoftheplaintiff without havingdelivered adefence Thecourseadopted struckattheroot ofthe adversanal system ofthe administration ofjusticeaswellas defied the nghtsof the plaintiff totnal asordained bytheRulesof Court Failure to file a defence is, as can be gathered from the 35 tenoroftherules,inmanyrespectsequated withtheadmissionof a nght on the part ofthe plaintiff to recover Intheresult,theappeal isallowedwithcosts.Thejudgmentand order for costs of the tnal Court are set aside The case will be remittedtotheDistnctCourtofLamaca,forfurther consideration *See theAnnualPractice 1958,Ord 21rr 3 4 5and6 Ord 27r 11 443 PjldsJ. Christodoulou v. Sofronlou <19S7) Plaintiff willbeatlibertytcmovetheCourttosetdownhiscase for proof. Moreover, the defendant may, ifhe so chooses, renew his application forleavetofileadefence outoftime,though reference tothisrightshould notbeconstrued asinanyway foreshadowing the outcome of such application. Appeal allowedwithcosts.Judgment ofthetrialCourtset aside asabove. Appeal allowed withcosts. 444 5