clr/1988/1988_1_135.pdf

(1)of the Advocates Law as amended—Question determined in the affirmative— Partnership whose generalpartnerisanadvocate and /is limitedpartner apupil advocate — Agreement to the effect that suchpartnershipwillrenew trademarks — Voidforillegality. Words and Phrases— «εγραφη» (Registration)in section 2

(1)of the Advocates Law, Cap. 2, as amended. 15 20 By an exchange of letters an understanding or agreement was reached between appellants 1 and respondents 1, whereby appellants 1would, for anagreed fee, renew theregistration of trade marks belonging to clients of respondents 1. Appellants 1arealimitedpartnershipwith G.M.Platritis,appellant 2, an advocate, being the general partner and, Triantafyllio Michaelidou, appellant 3, a pupil advocate, the limited partner. Respondents 1 are patent design and trade mark renewal agents based in the Channel Islands, and the remaining respondents partners of that firm. 135 Platritis& Co.v.ComputerPatent

(1988)On 21 182 respondents 1 terminated the said agreement As a result appellants 1filed an actionfor damages for breach ofcontract The action was dismissed on the ground, inter alia, that the agreement between th2 parties was illegal, as being contrary to section 2

(1)of theAdvocates Law, as amended by section 2 of Law 5 40/75 The aforesaid section reads as follows «Anyactionon behalf of a client for the registration of trade marks or patents and appearance before any administrative authority for the aforementioned purposes * Counsel for the appellants suggested that the word «έγγραφη» («registration») be confined to the registration as opposed to the renewal of a trade mark Hence this appeal Held, dismissing the appeal

(1)Broadly, theword «έγγραφη» is 15 synonymous to «registration», though the meaning of the two isnot precisely identical «Εγραφη»connotestherecording of aparticular matter or transaction The word is not necessanly associated with a formal procedure which is often signified by the employment of the word «registration» Subject to thisthe meaning of thetwo words is 2 0 similar and the word «εγγραφή» will hereafter be referred to as «registration»

(2)Section 2

(1)does not in terms limit the meaning οι «registration» in the manner suggested by counsel either for the purposes of the Trade Marks Law, Cap 268, or those of the Patent 25 Law, Cap 266 Inthe absence of such qualification in s2

(1), or any other part of the Advocates Law, the word «registration» should be interpreted in accordance with its popular meaning Thus read, «registration» in the context of s 2 subsection 1, encompasses every act associated with the recording of a trade mark mthe trade mark 30 register, a meaning that encompasses both registration as well as renewal of a trade mark for both acts are designed to achieve registration of a trademark

(3)The agreement entered between appellants and respondents was one for theprovision of legalservices by a body of persons that 3 5 included a non advocate The agreement was not confined to the provision of advocacy services by Mr Platritisalone Itstipulated for the provision of such services by both partners in breach of the provisions of s 2

(1)of theAdvocates Law

(4)Section23(a) of the Contract Lawlaysdown thatanagreement 40 forbidden by law is unlawful Furthermore, «every agreement of 136 10 1C.L.R. Platritis&Co.v.ComputerPatent 5 whichtheobjectofconsiderationisunlawful,isvoid».Illegalityisnot, as it is under English Law, solely associated with tainted consideration but also extends to the objectives of an agreement; though the notions of consideration and objects of an agreement overlapinmanyrespects. 10 Theparties arepresumed to knowthe law.Wheretheobjectof legislation in enacting a penal or prohibitory enactment is the protection of the persons dealing with those on whom the prohibition isimposed, theagreementwill,asarule,bedeclaredto bevoid.

(5)One of the objects of s.2(l) of the Advocates Law is undoubtedlytheprotectionofthepublicinthetransactionofitslegal affairs througharepresentative. 15 Anyagreement made inbreach or defiance to the provisionsof s.2(l)canproperlybeclassifiedasanagreementforbidden bylaw. Appealdismissed. Noorderastocosts. Appeal. Appeal byplaintiffs againstthejudgment ofthe DistrictCourtof 20 Nicosia (Artemides, P.D.C.) dated the 20th November, 1985 (ActionNo.2468/82)wherebytheiraction fordamagesfor breach of contract was dismissed. M.Montanios, for the appellants. Chr.Theodoulou, for the respondents. 25 Cur.adv. vult. MALACHTOS J.: We consider it unnecessary to hear counsel fortherespondentsonthemeritsoftheappeal.PikisJ.willdeliver thejudgment of the Court. PIKISJ.: The first'appellants. G. M.Platritis &Company, are a 30 limited partnership with G. M.Platritis,appellant 2, an advocate, being the general partner and, Triantafyllio ·Michaelidou, appellant 3, a pupil advocate;.1the limited partner. The first respondents are patent design and trade mark renewal agents based in the Channel Islands, and the remaining respondents 35 partners of that firm. By an exchange of letters an understanding or agreement was reached between appellants 1 and respondents 1, whereby 137 PlldsJ. Platritis&Co.v.ComputerPatent

(1988)appellants 1 would, for an agreed fee, renew the registration of trade marksbelonging toclientsof respondents 1.Respondents 1 estimated that about a hundred briefs would be entrusted to appellants 1forrenewal, anestimatethatprovedinduecourse far above the renewals actually assigned to appellants 1for renewal. 5 Respondents 1 also expressed the hope that their cooperation would last«over the next fewyears» (letter of 5/4/79). On 21stJanuary, 1982,respondents 1 signified theintention to terminate their cooperation (Exhibit 15), informing appellants 1 that their renewals would be handled by another member of the 10 Cyprus Bar. The protest of appellants 1 had no effect and produced no change of mind on the part of respondents 1. The appellants raised an action before the District Court of Nicosia, claiming damages for breach of contract.The damages consisted of future loss of profit and costs. Respondents resistedthe action 15 and denied liability. The trial Court dismissed the action for illegality of the agreement stemming from :(

1. a)Breach of the provisions of s.2(
2. l)of the Advocates Law (as amended bys.2 of Law40/75),and 20 (
3. b)conflict with the provisions of s.30.3(
4. d)of the Constitution entrenching the right to choosean advocate torepresent himasa fundamental human right. ThelearnedJudgedrewattentiontothefactthatengagementin advocacy by anyone other than a registered advocate, is an 25 offence under the Advocates Law, punishable with three months imprisonmentand/orafineof£500.--.Nonethelesshe recognised that implementation of the agreement between the parties need not necessarily lead to the commission of an offence as renewal couldbe processed bythe general partnerofthefirm, Mr.Platritis, 30 a registered advocate. Apart from illegality the Judge concluded in a brief addendum to his judgment that no agreement emerged from the correspondence of theparties.Hedrewattention tothe reference made by Mr. Platritis in one of his letters that the understanding 35 between the parties operated in the realm of gentlemen' s agreement, a fact from which itcould be inferred that the parties did not contemplate a legal relationship. 138 1 CL.R. Platrttb & Co. v. ComputerPatent PlUa J. The grounds pursued on appeal may briefly be recounted as follows:(0Misinterpretationanderroneousassessment of the provisions of s.2(
5. l)of the Advocates Law, particularly, the definition of 5 «practising advocate», as supplemented by s.2 of Law 80/82. The essence of the submission isthatthe inclusion in the definition of «advocate» of «εγγραφή» (registration)of trademarks is confined to the application for the registration of a trade mark and steps associated therewith,asopposed torenewal ofatrademark (s.22). 10 (ii)Theagreementbetween theparties,violative thoughitmight be tothe provisions of $.2

(1)of theAdvocates Law, could not be extricated from the performance of the agreement. Since performance would be effected by an advocate the agreement should be sustained as in no way antagonistic to the ends of the 15 law. Aside from the provisions of s.2(

1. l)of theAdvocates Law, an agreement to render legal services for non contentious business over a period of time, did not contravene either the provisions of Ord. 59 of the Civil Procedure Rules regulating the recovery of costs for legal services, or any other part of the Rules or 20 Regulations relevant to the subject. On the contrary, counsel argued that the Minimum Rate of Remuneration of Advocates Rules of 1985, made by the Cyprus Bar Council*, specifically exempt from the obligation to charge the minimum rates envisaged therein,agreements for the rendering of legal services 25 over a period of timethrough aspecial orgeneral retainer. (iii)The agreement was innoway offensive totheprovisions of article 30.3(
2. d)of the Constitution in thatitdid nottake away the freedom guaranteed therein,save thatone who defaulted in the discharge of his contractual obligations would be liable in 30 damages. (
3. iv)The correspondence between the parties led to a binding agreement. Perception of its effect by one of the parties did not absolve the Court from the obligation to examine the correspondence initsproperperspective. We agree thataparty' s 35 appreciation of theeffect of correspondence exchanged between theparties is notdeterminative of its effect. Nevertheless, careful examination of the contentsof the correspondence raises serious doubts whether an enforcible agreement came into being. Doubts derive from the uncertainty of itsterms,particularly those •(A.R.A. 82/85,Supplement111

(1)No.2037• 1/3/85). 139 PUds J . Platritts & Co.v. Computer Patent

(1988)affecting the volume of business and the duration of the agreement. We shall not debate this aspect of the appeal further and shall assume, for the purposes of thisjudgment that, avalid agreement had been entered into between the parties. We shall bypass this 5 aspect of the appeal because of the selfevident illegality of the agreement with which we shall presently concern ourselves. Before giving our reasons for holding the agreement founding appellants action as illegal, we may note that counsel for the appellants doubted the soundness of the order whereby the 10 appellants were adjudged to pay costs. We shall concern ourselves no further with this aspect of the appeal either, considering that costs followed the event, a matter within the discretion of the trialCourt. The illegalityof the Agreement: The part of s.2(

1. l)affecting the 15 outcome of the case, provides: «Τηνεκ μέρους πελάτου ενέργειαεγγραφήςεμπορικών σημάτων ή διπλωμάτων ευρεσιτεχνίας και την εμφάνισιν ενώπιον οιασδήποτε διοικητικής αρχής δια τους προειρημένους σκοπούς.» 20 (English translation of above partof s.2(l)): «Any action on behalf of a client for the registration of trade marks or patents and appearance before any administrative authority for theaforementioned purposes.» Broadly, the word «εγγραφή» issynonymous to«registration», 25 though the meaning of the two is not precisely identical. Εγγραφή» connotes the recording of a particular matter or transaction. The word is not necessarily associated with a formal procedure which isoften signified by theemployment of the word «registration». Subject to this the meaning of the two words is 30 similar and the word «εγγραφή» will hereafter be referred to as «registration». Counsel submitted that«registration» inthecontext of s.2(
2. l)of Cap. 2 should be interpreted subject to and in accordance with the provisions of the Trade Marks Law -Cap. 268; and be confined as a result tothe registration as opposed to 35 the renewal of a trade mark. Registration, counsel explained, of a trade mark involves a fairly complex procedure that would ordinarily justify the engagement of the services of an advocate, whereas renewal is essentially a matter of formality. And the 140 1 C.L.R. Platritis&Co.v. Computer Patent PUda J. legislature could not,therefore, be deemed tohave contemplated he entrusting of workassociated with therenewal ofatrade mark ,o advocates. Section 2

(1)does not in termslimitthe meaning of «registration» in the manner suggested by counsel either for the 5 purposesoftheTradeMarksLaw,Cap.268,orthoseofthePatent Law, Cap. 266. In the absence of such qualification in s.2(l), or any other part of the Advocates Law, the word «registration» should be interpreted in accordance with its popular meaning. Thus read, «registration» in the context of s.2 subsection 1, 10 encompasses every act associated with the recording of a trade mark inthetrade markregister;ameaningthat encompasses both registration as well as renewal of a trade mark for both acts are designed to achieve registration of a trade mark. Inevitably, we must conclude that the agreement entered between appellants 15 and respondents was one for the provision of legal services by a bodyofpersonsthatincludedanon advocate.Theagreement was notconfined totheprovision of advocacy servicesbyMr.Platritis alone. It stipulated for the provision of such services by both partnersinbreach oftheprovisionsofs.2

(1)oftheAdvocatesLaw. 20 The next question that must be resolved is whether the agreement created a valid contract in accordance with the provisionsof the Contract Law -Cap. 149. Section 23(a)of the Contract Lawlaysdown thatan agreement forbidden by law is unlawful. Furthermore, «every agreement of 25 which the object of consideration isunlawful, isvoid».Section 23 originatesfrom and ismodelled upon theprovisionsofs.23 ofthe Indian Contract Act. Itisbroader in ambit than the prohibition of illegal agreements under English law. In contrast to English law, illegalityisnotsolelyassociated withtaintedconsideration butalso 30 extends to the objectives of an agreement; though the notionsof consideration and objects of an agreement, overlap in many respects. The subject is discussed in detail by Pollock &Mulla, 10thed.,p.227etseq. Whenevertheconsideration for agreement or itsobjects are prohibited by lawthe agreement isillegaland as 35 such void. Knowledge of the law isnot a condition precedent to thevoidance ofan agreement.Thepartiesarepresumed toknow the law. Where the object of legislation in enacting a penal or prohibitoryenactment istheprotection ofthepersonsdealingwith those onwhom theprohibition isimposed, theagreement will,as 141 PlkteJ. Pletritlaft Co.». Computer Patent

(1988)a rule,be declared tobe void As explained by thelearnedauthors of Pollock &Mullainthisareathereislittledifference between the pnnciples ofIndianand English law* The following passage puts the matterin perspective «When conditions are prescribed by statutefor the conductof 5 any particularbusiness orprofession, andsuch conditionsare not observed, agreements made in the course of such business orprofession arevoid ifitappearsby thecontextthat the object of theLegislature inimposing theconditionwas the maintenance of public order orsafety orthe protection of 10 the persons dealing with those onwhom the condition is imposed, (butthey) are validifnospecific penalty isattached to the specific transaction,andifitappears thatthecondition was imposed for merely administrative purposes, eg the convenient collectionoftherevenue » ^ Breach ofthe prohibitions imposed by the Money Lenders Act, was held to have asimilar effect on the validity ofan agreement because the prohibition wasnot intended merely toprovide a procedure for supervising or regulating money lending but embraced the protection of borrowers who contracted such 20 loans** One of the objects of s2(l) of the Advocates Law is undoubtedly the protection ofthe public in the transaction ofits legal affairs through arepresentative Penal sanctions associated with breach of thelaw served to emphasize the importance 25 attached tothe restriction by the legislature Any agreement made inbreach ordefiance totheprovisions of s 2

(1)canproperly be classified asanagreementforbidden by law The agreement here under review, assuming an agreement had been formed, was plainly anagreement of akindforbidden by the 30 Advocates Law, Cap 2and,as such,void undertheprovisions of s 2 3 of the Contract Law - Cap 149 Itcould not, therefore, provide afoundation for theaction of the appellants * (SeePollock&Mulla, supra, atρ233 depictingthe legalposihon inIndia on thissubject in identicalterms with Pollock -PrinciplesofContract,13th ed, ρ276 portraying the con-espondingpnnciples of Englishlaw) " (See Pollock&Mulla, supra ρ 236) 142 1 C.L.H. Platritis & Co.v.Computer Patent Plkle J . In view of our decision it is unnecessary to explore any other aspectoftheappeal;hencetheappealwillbedismissedalbeitwith no orderasto costsconsidering the novelty of the point. Inthe resultthe appeal isdismissed. Letthere be no orderasto 5 costs. Appeal dismissed with no order astocosts. 143