Court dismisses strike-out application where triable issues exist regarding unpaid contract salaries and a disputed letter.

[*1908] 1974 December 11

(HADJI CONSTANTINOU, S.D.J.)

IN THE DISTRICT COURT OF PAPHOS

Georghios Koussoumides,

Applicant,

and

Vineyard Industrial Co. Ltd.,

Respondents.

(Appl. in Action No.1077/73).

Civil Procedure - Striking out pleading - Statement of Claim - No reasonable cause of action - Power to strike out exercisable only in plain and obvious cases - Claim arising under contract of service - Existence of triable issues - Application refused - Civil Procedure Rules Order 27 Rules 1, 2 and 3.

E. Korakides, for the Applicant.

E. Theodoulou, for the Respondent.

RULING

The following ruling was delivered by: -

HADJI CONSTANTINOU, S.D.J. : This is an application [*1909] whereby the applicants (defendants in the action) apply, under Order 27 Rules 1-3 of the Civil Procedure Rules, to have the statement of claim struck out on the ground that it discloses no reasonable cause of action.

Before proceeding to consider the application, I wish to deal shortly with the stage at which this application was made.

The action, with a specially endorsed claim, was filed on l/10/73. The Writ of Summons was served on the defendants on 6/10/73, and they entered an appearance on 10/10/73. On 26/11/73 the plaintiff applied by summons for judgment in default of pleadings under Order

26 Rule 4. On the 22/12/73, when the application came up before the Court, it was, by consent, withdrawn and dismissed with costs in favour of applicant, and the period for filing the statement of defence was extended by the Court for another 15 days. However, with the consent of the plaintiff's counsel, such statement of defence was only filed on 21/1/74. On 29/1/74 the plaintiff applied by summons under Order 19, Rules 4 and 26 to have certain words contained in paragraph 5 of the statement of defence struck out on the ground that they were unnecessary or scandalous or as tending to prejudice, embarrass, or delay the fair trial of the action. This second application was opposed by the defendants, but on 27/3/74 when the application was fixed for hearing, the order applied for was, by consent, given. The plaintiff filed, with the consent of the defendant's counsel, a Reply to [*1910] the statement of defence as amended as late as on 7/6/74. Upon the plaintiff's application the action was fixed for mention before the Court on 16/9/74. On that date the defendants’ counsel applied for an adjournment of the case as he intended to file an application for setting down for trial the objection taken in paragraph 1 of the statement of defence in which the defendants wore claiming as in their application under consideration. Thus, the action was adjourned sine die pending the filing of such application, hut it was directed by the Court that such application should ho filed within seven days, and, in default, the plaintiff might apply for date for trial.

As the defendants failed to comply with the above direction, the plaintiff, on 26/9/74 applied for a date for trial and the Court fixed the action for mention on 30/10/74, but on the date when such fixing was made i.e. on 30/9/74 the defendants filed their present application which the Registrar fixed also on 30/10/74. The plaintiff filed his opposition on 5/10/74, and the application ultimately cane up for trial before the Court on 27/11/74.

It emanates clearly from the above that the defendants have been delaying every stage of the proceedings. On the contrary, the plaintiff, with an exception of delay in filing his Reply to the statement of defence, has shown speediness in the prosecution of his case.

With regard to the procedure followed and the stage at which this application was made, I think [*1911] it would be useful to remind here of a few of the authorities which are clear on the matter.

In Drummond-Jackson v. British

M. Ass. & Others (1970) 1 All E.R. 1094 Lord Pearson at.p. 1102a said:

“........., an application for the statement of claim to be struck out under this rule is made at a very early stage of the action where there is only the statement of claim without any other pleadings and without any evidence at all”.

And in the same page at letter d Lord Pearson continues;

“It is not permissible to anticipate the defence or defences - possibly some very strong ones - which the defendants may plead and be able to prove at the trial, nor anything which the plaintiff may plead in reply and seek to rely on at the trial”.

In Dyson v. Attorney-General (1911)

1 K.B, 410, Fletcher Moulton, L.J: at p. 419 said:

“Differences of Law, just as differences of fact, arc normally to be decided by trial after hearing in Court, and not to be refused a hearing in Court by an order of the judge in chambers”.

In the heirs of the late Theodora Panayi etc. v. The Administrators of the Estate of the late Stylianos G. Mandrioti etc., Civil Appeal No. 4417, (1963) C.L.R. [*1912] 167, Josephides, J. at p. 170 said:

“We would like to add that in eases Where an objection is taken in the defence, the interested party must apply to the Court to have a particular point of law under Order 27 formulated and set down for hearing before the date of trial, and he should not wait until the day off trial when all the parties and their witnesses are before the Court, when considerable costs may be incurred. An application under Order 27 should normally be made on the summons for directions”.

In Maroulla Athanasi Michaelides etc. v. Pinelopi Hji Michael Diakou, Civil Appeal No. 4683, (1968) 1 C.L.R. 392, Josephides J. delivering the judgment of the Court and after dealing with the substance of the appeal, went on and said:

“Before concluding our judgment, we would like to refer to. the procedure followed in this case of setting down a point of law for hearing at the stage when it was set down for such hearing. In the past we had occasion to refer to the correct procedure to be followed. We did so on more that one occasion....... We do hope that in future this practice will be followed both by counsel and the Court who have to deal with such matters”. [*1913]

It appears quite clearly that the applicants have net acted on the line of the aforesaid authorities and I need say no more on that.

Regarding now the approach and the principles which the Courts should have in mind in considering an application of this nature I wish to remind of a few authorities on the matter.

I should, first, remind that our Rules, (Order 27 Rules 1-3) correspond to the provisions of the English Rules of the Supreme Court (before the 1962 Revision) 0.25, Rules 2-4.

According to the notes to the English R.S.C. Order 25 rule 4, in the Annual Practice, it has been held in many cases that it is only in plain and obvious cases that recourse should be had to toe summary process under this Rule, and that this procedure can only be adopted when it can be clearly seen that a claim is, on the face of it, obviously unsustainable or that the case is clear beyond doubt. So long as the statement of claim discloses some cause of action, or raises some question fit to be decided by a Court, the mere fact that the case is weak, and not likely to succeed, is no ground for striking i+ out.

“Those Rules constitute a wide and general provision both useful and necessary, to enforce the rules of pleading. They empower the Court by summary process, that is, without a trial in the normal way, to stay [*1914] or dismiss an action where the pleading discloses no reasonable cause of action ……. (Costas Mavromoustaki v. Iacovos N. Yeroudes etc.

(1965) 1 C.L.R. p. 176).

In Lawrance v. Norreys (Lord) (1890) 15 App. Cas. 210 Lord Herschell at p. 219 said: ”It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases".

In Dyson v. Attorney-General (1911) 1 K.B. 410, Fletcher Moulton, L.J. at page 418 said:

“......... To my mind it is evident that our judicial system would never permit a plaintiff to be driven from the judgment seat' in this way without any Court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad”.

In Law v. Dearley

(1950) 1 All E.R. 124 Tucker L.J. at p, 127 said:

“If there is a point capable or worthy of being argued it was clearly impossible to strike out an action in limine”.

In Nagle v. Feilden and Others (1966) 1 All E.R. 689, Danckwerts L.J. at p.695F said:

“The summary remedy which has been applied to this action is one which is only to be applied in plain and obvious cases, when [*1915] the action in one which cannot succeed or is in some way an abuse of the process of the Court”.

And, in the same case, Salmon I.J. at p. 697 said:

“It is well settled that a statement of claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable”.

In Drummond-Jackson v. British M. Ass.& Others (1970) 1 All E.R. 1094 Lord Pearson at p.110 lb said:

“Over a long period of years it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of action is a summary power which should be exercised only in plain and obvious cases, ....... but, I think, reasonable cause of action' means a cause of action with some chance of success when (as required by r.19 (2)) only the allegations in the pleading are considered. If when, those allegations are examined it is found that the alleged cause of action is certain to fail, the statement of claim should be struck out”.

And at p. 1102a he says:

“........... The plaintiff should, not be [*1916] 'driven from the judgment seat' at this very early stage unless it is quite plain that his alleged cause of action has no chance of success.

In the same case Sir Gordon Willmer at p. 1105a said:

“The power to strike out in limine is no doubt a valuable weapon in the hands of the Court, enabling it to prevent abuse of its process by the prosecution of vexatious or frivolous litigation. But it is clear that such a drastic power must be sparingly exercised, and it has long boon established that recourse will be had to it only in plain and obvious cases”.

And in the same page, letter d, he said:

“The question whether a point is plain and obvious does not depend on the length of time it takes to argue. Rather the question is whether, when the point has been argued, it has become plain and obvious that there can be but one result. When Archimedes exclaimed 'Eureka’, he was rejoicing in the discovery of a proposition which for centuries now has come to be regarded as plain and obvious. But it must have been anything but plain and obvious to him and his predecessors until he had made his discovery and proved its truth.” [*1917]

Coming now to the statement of claim in this action it is clear from paragraphs 1-5 that, by virtue of a written contract of service entered into on 15/7/72, the defendant company offered to the plaintiff who accepted the post of a technical assistant for a fixed period of five years starting from 1/7/72 and ending on 30/6/77 at £2,400.- p.a. plus £600.- travelling and other expenses, payable monthly.

Paragraph 6 reads as follows:

“The defendant company has paid the salaries of the plaintiff until 31/12/72 but until today in breach of the said contract the company omits and/or refuses to pay his salaries as from 1/1/73. ...until today totalling at £2,250.-“.

Paragraph 7 reads as follows:

“The defendant company omits also to pay to the plaintiff the sum of £400.- which the company undertook to pay by its letter to the plaintiff dated 17/9/72 in respect of his remuneration for services rendered during the years 1971-1972”.

In paragraph 8 the plaintiff, through a letter of his advocate dated 6/8/73 asked for payment of all sums due to him adding that the defendant company failed and/or refused to pay.

Regarding the plaintiff's claim in paragraph 6, [*1918] counsel for the defendant company-applicants, submitted that it is unsustainable as there is no averment that the plaintiff did in fact offer his services in respect of the period for which ho claims tho said remuneration. Regarding the plaintiff’ s claim in paragraph 7, counsel for the defendants submitted that it is unsustainable as the plaintiff does not disclose whether he had offered any services, what kind of services and whether the amount claimed is agreed or not or whether there has been any oral or written agreement on the basis of which the plaintiff offered his services.

As far as the claim in paragraph 6 the plaintiff's counsel submitted that such claim is for salaries due and this pre-supposes that services have been rendered during the period in respect of which the salaries are claimed.

I absolutely agree with the above plaintiff's counsel's submission for the additional reason that had the claim not been for salaries due in respect of a period during which no services were rendered, the plaintiff’s claim would have been for damages and not for salaries. As far as the claim in paragraph 7, the plaintiff’s counsel submitted that the claim is based on the letter mentioned therein. Again I agree with this submission adding that the words ‘'his remuneration for services rendered during the years 1971-72 must be the consideration of the said letter. In their statement of defence in paragraph 10 the defendants raise the issue of construction of the letter [*1919] in question. This indicates that there is in respect of it a triable issue and as this letter is not before the Court it is not possible to make any finding as to its enforceability.

For the above mentioned reasons and guided by the authorities and legal principles cited above, I find that this application cannot succeed and is accordingly dismissed with costs to be assessed by the Registrar and be approved by the Court. Such costs to be payable at the final determination of the action.

Application dismissed

with costs.