Appeal dismissed because no leave was applied for under Civil Procedure Rules Order 35, rule 20.

[*809] 1971 May 27

(STAVRINIDES, L. LOIZOU, HADJIANASTASSIOU, JJ.)

APPELLATE JURISDICTION

Chrysanthos Costi Partasi,

Appellant-Plaintiff,

v.

Ellou Costi Zacheou,

Respondent-Defendant.

(Civil Appeal No. 4900).

Civil Procedure - Practice - Appeal from a decision solely on the ground of a wrong direction in regard to costs - Dismissed as no leave had been granted or indeed applied for - Civil Procedure Rules 0.35 rule 20.

Practice -Appeal - Costs - See under "Civil Procedure".

Appellant in person.

C. Hji Nicolaou, for the Respondent.

JUDGMENT

The judgment of the Court was delivered by:

STAVRINIDES, J.: The appellant issued a generally indorsed writ for slander and assault. In the statement [*810] of claim no mention of the alleged assault was made, and the learned judge rightly treated that complaint as abandoned (see Cargill v. Bower, 10 Ch.D. 508, and Lewis and Lewis v. Durnford, (1967) 24 T.C.R. 64). With regard to the alleged slander the defence inter alia set up a plea of res judicata. After hearing evidence relevant to that plea, the judge upheld it and dismissed the action with costs.

The notice of appeal, which is signed by the appellant in person, reads:

"1. My having been ordered to pay costs is un just and groundless.

2. While I had reasonable cause for my action the Court wrongly ordered me to pay costs.

3. The Court did not write a settlement of £10 in my favour in the action No. 63/70."

It will be noted that no complaint is made as to the actual dismissal of the action, and we can only say that dismissal was the only possible result.

Grounds of appeal 1 and 2 are really one. Now by Order 35, r. 20, of the Civil Procedure Rules

"an appeal from a decision solely on the ground of a wrong direction in regard to costs .... shall not be entertained except with the leave of the Court of Appeal or a judge thereof, which shall not be given unless it is made to appear that the direction or [*811] order is contrary to the provisions of any Law or rule, or is based on a misconception of fact, or directs any party to pay costs incurred or occasioned, without sufficient reason, by another party."

Here no leave

has been granted, or indeed applied for. Apart from that, the order complained of was not merely one that could properly be

made in the exercise of a discretion; it was the only one really open to the judge.

Ground 3 is clearly beyond the scope of an appeal from the judgment in the particular action in which the appeal was made.

For the foregoing reasons the appeal must be dismissed with costs.

Hji Nicolaou: I claim no costs.

Appeal dismissed without costs.