Court dismisses late fraud allegation amendment due to lack of special circumstances and prejudice to plaintiff.

[*486] 1978 May 24

(PIKIS, P.D.C.)

IN THE DISTRICT COURT OF LARNACA

Michael N. Ioannides,

Plaintiff-Respondent,

and

Yiannakis Constanti Sparsi,

Defendant-Applicants.

(Action No.313/76)

Civil Procedure - Pleadings - Amendment - Fraud - Whether it can he pleaded at a later stage of the proceedings.

Advocate

- Affidavit - Swearing affidavit by advocate in support of application for leave to amend pleadings so as to introduce fraud - Disapproved.

G. Constantinides, for Applicant-Defendant.

E. Lemonaris, for Plaintiff-Respondent.

RULING

The following ruling was delivered by: -

PIKIS, P.D.C.:- This is an application [*487] by the defendant for amendment of the defence seeking the substitution of paragraphs 3(a) and 3(b) of the statement of claim and addition thereto of fresh averments both in the defence and the counterclaim. The application is accompanied by an affidavit sworn in support thereto by the advocate for the defendant.

Counsel for the plaintiff, in his address, raised no objection to the amendment of defendant's pleading except in so far as the defendand seeks to introduce at this stage allegations of fraud and other allegations incidental thereto to the effect that the parties were not at the time of entering into the agreement ad idem.

Both counsel accept as sound practice the proposition that fraud cannot be raised during the hearing of a case except in the face of exceptional circumstances. Counsel for the applicant/defendant submitted that the facts in support of the application disclose special circumstances and invited the Court to approve the application in its entirety, relying primarily on the authority of Riding v. Hawkings (1889) 58 L,J, (P.D.) 48 and on Appeal (1889) 14 P.D. 16. (Note: Photostatic copies of the judgments were filed in Court.)

The only issue before me is whether an allegation of fraud should be allowed to be raised at this stage of the proceedings, nearly two years after the institution of the action and after receiving part of the evidence for the plaintiff. The principles relevant to the exercise of the [*488] Court's discretion were reviewed by the Supreme Court numerous occasions. The general principle is that an amendment may be allowed even at a late stage of the proceedings provided no irreparable prejudice is caused to the other side, irreparable in the sense that it cannot be remedied by an appropriate order for costs. Fraud by its nature sets the trial on different rails. Obviously it is for this purpose that different considerations apply when it comes to amending a preading to include an allegation of fraud. The Court will not readily allow an amendment at the trial, the necessity for which was abundantly clear a long time ago, naturally as a safefuard for the proper administration of justice. This rule has special application when an attempt is made to plead fraud at a late stage of the proceedings no doubt because allegations of fraud are apt to cast a different complexion on the case. In the White Book under Order 28, rule 1, the relevant order of the old English rules of the Supreme Court, corresponding to Order 25, rule 1 of the Civil Procedure Rules, reference is made to authority laying down that the introduction of allegations of fraud will not be allowed at the hearing except in the face of special circumstances.

In Riding v. Hawkins (supra) an amendment was allowed during the hearing to unable the averment of fraud in the face of disclosures made during the trial of the action. On appeal a new trial was ordered on the ground of surprise but the Judge was sustained in his ruling to allow the amendment. The special circumstances that [*489] justified the amendment in the case of Riding (supra) were the lack of any source of knowledge prior to the disclosures made at the trial and hence inability to plead fraud at an earlier stage. This is not the case before us on any construction of the affidavit in support of the application. I must not leave untouched the fact that an attempt is made to introduce fraud on the strength of an affidavit sworn to by counsel. This is a practice that ought not to be encouraged.

The case for the plaintiff was defined a long time ago and subsequently particulars were given. Further the document was produced at the trial.

This is a classical case of a late application to include an averment for fraud for no special reason and it ought to be dismissed. Therefore I shall allow the amendment subject to the exclusion of allegations of fraud. As the amendment sought is inextricably connected with the aforementioned allegations of fraud before I finally approve the terms of the amendment I shall require the defendant to reformulate it in the light of this Ruling. The defendant will pay all costs thrown away because of the amendment including the costs of the hearing of the application for amendment.

The case is fixed for mention for the purpose on 2nd June 1978 for the purpose of enabling the Court to examine the contents of the amendment in the light of this Rulling.

Order accordingly.