clr/1988/1988_1_607.pdf

(1988)The tnal Court dismissed the applications on the following grounds (a)Failuretostateintheaffidavit thattheamendmentis necessary (b)Failure to explain thedelay inapplying for amendment,and (c)thejoint statement inaction 2618/82 was made in the light of the existing atthetimefacts andifan amendmentisallowed, itwould amount to introducinga new deal for the parties 5 Held,allowing the appeal

(1)The trial court did not exercise its discretion properly and did not take intoconsiderahonthe pnnciplesgoverning applications for amendment of pleadings (United Sea TransportCo Ltd ν Zakou

(1980)1C L R 510, statingsuch pnnciples, adopted} 10

(2)The mere fact that the application for amendment was made makes itclearthatitwas considered necessary by theapplicants Itis not necessary to mentionsuch a fact intheaffidavit 15

(3)It is not imperative that in the affidavit in support of the application reasons should be given justifying the lapse of time between thefiling of the actionand thefiling of theapplication

(4)The agreement embodied in the aforesaid joint statement of counsel is irrelevant tothepresent issue 20 Appeals allowed with costs. Order for costs of the Court below to remain intact Casesreferred to UnitedSea TransportCo Ltd ν Zakou,

(1980)1C LR 510 25 Appeal. Appeal by plaintiffs against the ruling of the Distnct Court of Limassol dated the 22nd September, 1986 (Action Nos 2618/82 and 2619/82) whereby their applications to amend their statements of claim were dismissed A Lemis with Ζ Lemis, for the appellants A Boyadjts, for the respondents Cur adv vult. MALACHTOSJ read the following judgment of theCourt This is an appeal by the plaintiffs inActions Nos 2619/82 and 2618/82 3 5 of the Distnct Court of Limassol against the ruling of the Full 608 30 1 C.L.R. Jack v. Phillappa Estates

(1988)District Court where their applications to amend their statements of claimwere dismissed. On the 6th August, 1982, the plaintiff in Action No. 2619/82 instituted legal proceedings against the defendants claiming 5 specific performance and/or damages for breach of contract of sale of a flat situated atYermasoyia River locality known as«The AzurCourt».Onthesameday,intheDistrictCourtofLimassol,an almost identical Action No.2618/82 was filed byanother plaintiff against the same defendants for breach of a contract of sale of 10' another flat whichwas forming part of the same block. Itisthe case ofthe plaintiff inActionNo.2619/82 thatbyvirtue of a written contract between the parties dated 4.1.82, the purchase price of the said flat was fixed at £29,000.-. Asum of £14,000.- waspaid asagainst the purchase price and the balance 15 was agreed to be paid by instalments of £2,500.- each, every six months, plus interest. The plaintiff upon signing the said contract entered intopossession ofthe flat. Itisalso the case for theplaintiff inAction No.2618/82 that an identicalcontractdated4.1.82wassignedbythepartiesunder the 20 same terms and conditions. The purchase price of this flat was fixed at£27,0U0.-and alsoasum of£9,000.-and another sumof £3.100.- was paid as against the purchase price and the relevant instalments were, agreed at £3,000.- each. This plaintiff also entered intopossession of the flat upon signing the contract. 25 It is the allegation of the plaintiffs in their almost identical statements of claim that on or about the 28th day of April, 1982, the defendants cancelled the said agreements andthrough their servants and agents wrongfully and/or forcibly trespassed on the said flats, took possession thereof and changed the locks of the 30 entrance doors. According always to the allegations of the plaintiffs the market value of the flats at the time of the breach of the said contracts, increased considerably and isestimated to£65,000.- each. Asstated in the prayer of the statements of claim, the plaintiffs 35 claim refund and/or return of the deposit, the difference between the sale price and the market value of the flats at the time of the breach and, alternatively,specific performance ofthe contracts. Atthecommencement ofthehearingofActionNo.2619/82 on 609 MalachtosJ. Jack v. Phillappa Estates

(1988)28.3.86, while the first witness for the plaintiff was giving evidence,counselforthepartiesinactionNo.2618/82,whowere the same in both cases, made the following statement: «Both counsel state that they have agreed that the final outcome of Action No. 2619/82, which is being tried now by the court, 5 regarding the liabilityof the company, the validity of the contract and the agency, willbind the parties inthisaction.The parties are free, however, to call evidence on other matters not mentioned above. For this purpose they apply that the action be fixed foi hearingbut the hearing will follow Action No.2619/82». 10 Then the hearing of Action No.2618/82 was fixed for 24.9.86 and Action No.2619/82 wasfixed for continuation of hearing on 22, 23 and 24th September,

1. Inthe meantime, on 28.4.86 the application foramendment ofthestatement ofclaim inAction No. 2619/82 was filed and was fixed for hearing on 5.6.
2. On 15 7.5.86 a similar application for amendment of the statement of claim inAction No.2618/82 wasalso filed. Both applications for amendment were opposed. On 30.5.86 the files of both actions were, at the request of counselfortheparties,broughtbefore thecourtandthehearingof, 20 application for amendment in Action No.2619/82 wasshifted to 22.9.86 and the continuation of hearing of the action was adjourned sine die.Also,theapplication foramendment inAction No. 2618/82 was fixed for mention on 22.9.86 and itwas agreed that the result of the other application would be binding on the 25 parties inthis application. Theproposed amendment istoadd threenewparagraphs after paragraph 7ofthestatementofclaimandinsubstanceamounts to add a claim for interest at 9% per annum on the amount paid against the purchase price of flats from the date of the breach till 30 final payment. On 22.9.88 the Full District Court of Limassol, after hearing counsel for theparties inthe application foramendment inAction No. 2619/82, issued its ruling dismissing the application with costs. As a result, the application for amendment in Action No. 35 2618/82 was also dismissed with costs.The ruling was delivered extempore bythejuniormember of the court, whoafter referring very briefly to the principles governing applications for amendment of pleadings, and in particular to the discretionary power of the court, which"usually is exercised in favour of the 40 610 1 C.L.R. Jack v.Phillappa Estates Malachtos J. applicant, if the application is made bona fide and bv the amendment no injustice isbeing caused to the other side which could not be compensated for bycosts,and after finding that the application under consideration was made bona fide, said the 5 following atpage29of the record: 10 15 20 25 30 35
3. «Thereare,however, certain circumstanceswhichwe have considered crucial to this application indicating that the discretion of the Court ingrantingan amendment would not beproperlyexercisedinthiscaseiftheamendmentprayedfor was granted. Inthe first instance, we wish to refer tothe fact that, asMr.Boyadjis haspointed out, theaffidavit in support of the application does not refer to the amendment being considered necessary as such but rather to the application being made outofabundant caution,andtothatextentwe do not consider thatthere issufficient materialbefore usin order tojustify the necessity forthe amendment. Furthermore, it istrue that the affidavit does not refer in any way whatsoever to the reason for the delay involved, a circumstance which isimportant on the facts of the present case.Although timeinitself wouldnotbe a crucialfactor and the Court does not place any time limit regarding the proposed amendment, nevertheless the length of time that haselapsed between thefiling oftheaction andthe proposed amendment should be considered in relation to the other circumstances and, although again theCourtwillnotpunish a party by refusing the amendment for any omission or otherwise in the drafting of the Statement of Claim, nevertheless it does appear to be an important factor to be taken into consideration whether the facts upon which a proposed amendment rests were known to the Applicant all along and whether an unreasonably long period of time has elapsed between the time these facts were known and the time the application ismade. Inthe present instance itis not possible to over-emphasize the fact that the action, which startedoverfouryearsago,involvedevenatthatstagethe full knowledge ofthepresentfactsuponwhichtheapplication for amendment is made and clearly the delay involved has not been establishedonthebasisoftheaffidavit tobejustified nor hasiteven been explained. Furthermore, and although we do not wish to decide this pointdefinitely, there mightbe some meritinthe submission 611 MalachtosJ. Jackv.PhillappaEstates

(1988)of learned counsel for the Respondents to the effect that the relief claimed bythe proposed amendment might be seen to introduce a new claim in so far as the nature of the relief involved as well as the amount in question might introduce a new dimension inthe action. The most important circumstance, however, upon which the Court has decided to refuse the proposed amendment is the fact that on 28th March, 1986 a settlement of a certain issueinAction No.2618/82aswellasinthisactionwasmade to the effect that the final outcome of Action No. 2619/82, 10 which wasbeing tried bytheCourtthen regardingthe liability of the Company, the validity of the contract and the_agency, these matters being specifically mentioned therein, would bind thepartiesinAction No.2618/82.Itseemstousthatthis settlement was made, and was made justifiably, only on the 15 basisofthe facts asthey existed atthetime even though there wasnofurther directreference tothisandthatfortheCourtto allowtheproposed amendmentwouldamounttointroducing a new deal for the partiesjn thisaction not envisaged by the. agreement reached onthatday.Todosowouldconsequently 20 involve an injustice to the other side which could not be compensated for in costs and which we have considered crucialindecidingthatthediscretion oftheCourtcouldnotbe exercised infavour oftheApplicantinthisapplication.» We must say straight away that we entirely disagree with the 25 above aproach of the trial Court.Weare of the viewthat the trial court did not exercise itsdiscretion properly and did not take into consideration the principles governing applications for amendment of pleadings. In the present proceedings the applications, as stated therein, 30 are based on Order 25 rule 1ofour Civil Procedure Rules, which isidenticaltotheoldOrder28.1oftheRulesoftheSupreme Court inEngland, which providesthat«TheCourtoraJudge may,atany stage of the proceedings, allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as 35 may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.» In the case of the United Sea Transport Co. Ltd. v. Zakou,

(1980)1 C.L.R. 510, the following isstated at page 515: '40 612 5 1C.L.B. 5 10 15 20 25 Jackv.PhillappaEstates MalachtosJ. The general principles as to when leave toamend should be givenarestatedbyL.J.Bramwellinthecaseof Tildesleyv. Harper, 10 Ch. D.393 at page 396: 'My practice has always been togiveleavetoamend unlessIhavebeensatisfied thatthe party applying wasactingmalafide, orthat,byhisblunder he had done some injury to his opponent which could not be compensated forby costsor otherwise'. However negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice totheotherside.Thereisnoinjustice iftheotherside can be compensated by costs. Before the hearing leave is readily granted, on payment of the cost occasioned, unless theopponentwillbeplacedinaworsepositionthanhe would have been iftheamended pleading hadbeen delivered inthe first instance. (Steward v.North Metropolitan Transways Co. 16Q.B.D.556). Leave to amend issometimes given at the hearingbut the Court will not readily allow at the trial an amendment, the necessityofwhichwasabundantlyapparent monthsago, and then not asked for. [Hipgrave v. Case, 28 Ch.D. p. 356).At any rate it would be wrong to allow an amendment at the close ofthe evidence or even atan extremelylatestage ofthe trial where itcould result in a party being confronted with an entirely new case. (Rawding v. London Brick Co.

(1971)K.I.R.207 C.A.).» Inthe present case, itcannot be said, asalreadystated, that the trialcourt applied the above principlesproperlytothe facts of the case and the reasons given as to why the application for 30 amendment wasnot granted, cannot stand. With all due respect to the trial Court we are of the view thatit isimmaterial the fact that an allegation that the amendment was considered necesary should be contained in the affidavit in support of the application. The mere fact that the application for 35 amendment was made makes it clear that it was considered necessary bythe applicants. Likewise,itisnotimperativethatintheaffidavit insupport ofthe application, reasons should be given justifying tfielapsTof time between the filing of the action and the filing of the application. • 613 MalacbtosJ. Jackv.PhillappaEstates

(1988)Finally, the agreement reached before the Court on 28.3.86 that the final outcome ofAction No.2619/82 would bind alsothe litigants in Actions No. 2618/82. cannot be considered as a decisivefactormilitatingtotherefusal oftheorderfor amendment, as found bythe trialcourt, butweconsider isasentirely irrelevant 5 to the issue. It is clear from the facts placed before the trial Court that the applications for amendment were made bona fide, that no injustice can be caused to the defendants if the amendment is allowed, that the hearing of the evidence is not at an advanced 10 stage and that by the amendment the other side isnot confronted with an entirely new case. Fortheabove reasonsweallowthe appeals,setasidetheruling of the trial Court and allow the amendment applied for. We also direct that both actions be remitted back and be tried bythe Fuli 15 District Court of Limassol differently constituted. An amended statement of claim should be filed bythe plaintiffs inboth actions within one month as from today and an amended statement of defence, ifany, tobe filed withintwoweeks thereafter. On the questions of costs we think that the appellants are 20 entitled to the costs of these appeals and an order is made accordingly. The order for costs of the Court below to remain intact as the respondents in applications of this kind are entitled to the costs thrown away. Appealsallowed. Order forcostsas above. 614 25