Civil contempt application dismissed because applicant failed to prove guilt beyond reasonable doubt without cross-examination.

[*285] 1984 Jan. 11

(ELIADES, D. J. )

IN THE DISTRICT COURT OF LARNACA

Panayiotis G. Stasoulli,

Plaintiff,

v.

Yiannis Demetriou,

Defendant.

(Action No. l359/81).

Contempt of Court - Civil Contempt - Proceedings for - Are of a quasi-criminal nature - Standard of proof - Respondent denied by his opposition applicant’s allegations - Latter had to discharge a rather heavy duty by proving the allegations in his affidavit - But he has given no notice to the respondent to appear and be cross-examined - Applicant failed to discharge the onus of proving that respondent is guilty of contempt.

Civil Procedure - Practice - Interlocutory proceedings - Specification of the rules relied upon - Not a mere formality but a substantive procedural provision that should be strictly adhered to.

A. Stasoulli (Mrs.), for the Applicant.

A. Cleanthous, for the Respondent.

RULING

The following ruling was delivered by:-

ELIADES. D.J. : - This is an [*286] application for the committal of the respondent for disobedience to an order of the Court dated the 4.2.83, whereby the respondent was ordered not to load or unload any goods outside or near his bakery at Strouthidis road at Larnaca before 04.00 in the morning on any Saturday and before

05.00 in the morning on any other day. The application is accompanied by an affidavit sworn by the applicant, by which it is alleged that ever since the

15.4.83 the respondent is in continuous violation of the said order, doing everything in order to cause a nuisance to the applicant and that as a result of the respondent’s provocative behaviour unhappy events (δυσάρεστα γεγονότα) may ensue.

The application was opposed by the respondent by a notice of opposition, backed by an affidavit sworn by him, by which he denies the charges made by the applicant maintaining at the same time that the allegations in support of the application are baseless as he néver violated the relevant Court’s order.

As no notice to cross-examine on the contents of the affidavits was given by either side both lawyers adopted the contents of their application and opposition and left the matter for the Court to decide.

(A) FAILURE TO REFER TO SPECIFIC RULE UPON WHICH THE APPLICATION IS BASED ;

The application is based on 0.48

rules 2, 8, 9, 11, 12A and 0.42Α as well as on ss. 18, 22, 29, 30, 31 and 32 [*287] of Law 14/60. Although reference

is made on the face of the application to numerous other rules which have no bearing to the present proceedings, the specific rule of 0.42A upon which the application is founded is hot mentioned.

0.48 r.l of the Civil Procedure Rules lays down that,

"every application to the Registrar shall be made in writing stating the nature of the request made and referring to the specific section of the law or to the specific Rule of Court upon which it is founded. "

The necessity of strict compliance to the provisions of 0.48 r.l was emphasized by Pikis P.D.C. in a well reasoned ruling in Kouppa v. Vassiliades (1981)

1 J.S.C. p. 120, where he had these to say:

"The specification of the rules relied upon in interlocutory proceedings is not, to my comprehension, a matter of mere formality but a substantive procedural provision that should be strictly adhered to For interlocutory proceedings are proceedings of an extraordinary nature in that deliberations are made without a complete trial, the normal process through which a cause is ventilated before the Court. Hence procedural safeguards designed to elicit the questions in issue and put the matter in a proper perpeotive should be meticulously observed especially mandatory provisions like those set out in Ord. 48, [*288] r.l. It is no accident that the legal substratum of an application must, unlike the statement of claim, be specified for there are compelling reasons that side issues should be succinctly defined both legally and factually so that the Court may. Without undue delay, deal with them and thus pave the way for the trial of the main issues in dispute. "

0.42A comprises of 13 different rules which regulate the modes of execution of attachment and sequestration. In my mind a general reference to 0.42A in an application of a quasiniminal nature as the present one cannot invoke the jurisdiction of the Court unless reference is made to the specific rules upon which the application is founded. For this reason, this application is doomed to failure.

However, if I stand to be reversed on appeal on this matter, I feel bound to consider the application on its merits as this appears on the face of the pleadings.

0.42 r.6 provides that:

"If the respondent shall establish sufficient excuse for not attending on the return day of the summons, or if he attends and does not show cause to the satisfaction of the Court why he should not be punished for disobedience the Court may order him to pay such fine, or to be committed to prison for such time as the Court directs." [*289]

In the case of applications it is expressly provided by 0.48 r.4 that:

"If there is a conflict between the applicant and any person giving notice of opposition in regard to the facts, the applicant or such person must, at the hearing of the application, be prepared to prove “the facts he relies upon in so far as the burden of proof lies upon him."

(B) CIVIL CONTEMPT·:

An application for civil contempt involves two aspects, namely,

i) The existence of a breach, and

ii) Its proof thereof. (Seè Miller’s "Contempt of Court" p. 243).

The first requirement, i.e. the factual breach of a Gourt's order presupposes the violation of a clear and unambiguous order issued by a Court of Law.

Concerning the character of contempt proceedings it has been settled that they are at a quasi-criminal character, (See Yianni v. Yianni (1966) 1 All E.R. 231), and the quantum as to the proof required, is a very demanding one, being pitched at the level usually connected with criminal proceedings. As it was said by Lawton J. in W. Watson and Sons Ltd. v. Garber,( 1962) 106 Sol. Jo. 631:-

"...before the Court would exercise its very special jurisdiction to punish for breach of an [*290] order, it was essential that proper proof of a breach be given. "

The same view was later taken by Lord Denning who had this to say in the same context:

"A contempt of Court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time honoured-phrase, it must be proved beyond reasonable doubt. (See Re Bramblevale Ltd.

(1969) 3 All E.R. 1062. "

Re Bramblevale has since been followed by the Court of Appeal in Knight v. Clifton, (1971) 2 All E.R, 378, where Russell L.J. said:

"Contempt cf Court, even of the type that consists in breach of an injunction or undertaking, is something that may carry penal consequences, even loss of liberty, and the evidence required to establish it must be appropriately cogent. "

The basically criminal nature of contempt proceedings and the need to observe certain fundamental safeguards for the protection of the liberty of the individual was recognised in Gyprus long ago. It has been emphasized that exactness in procedure and proof are essential in proceedings which are instituted with a view to punishment for contempt of Court. (See Christodoulides v. Christodoulides 11 C.L.R. p. 15, as it [*291] was later followed in Sheriff of Limassol v. Theodorou, 12 G.L.R. p. 67.

In civil cases the standard of proof is that on the balance of probabilities. The Court needs only to be persuaded that the claimant’s right is more probable than not. If the Gourt is undecided and finds that the tips of the scale are evenly balanced, the party upon whom the burden of proof is cast has failed.

No doubt the present application, seeking the punishment of the respondent for an alleged disobedience to an order of the Court is of a quasi-criminal nature. As the respondent has denied by virtue of the contents of his opposition the applicant’s allegations, the latter had to discharge a rather heavy duty by proving the-allegations

contained in his affidavit. However, no notice was given to the respondent to_.appear and be cross-examined on his denial for allegedly violating the Court's order and no other evidence was adduced

to substantiate the applicant’s allegations.

The principle that the guilt of an accused person must be established beyond reasonable doubt has been examined in numerous cases. In Cyprus the question was dealt with in Charitonos & Others v. The Republic, (1971) 3.J.S.C. p. 284, where reference was made to the case of Woolmington v. D.P.R. (1935) A.C. p. 462, where Lord Sankey said that "the Prosecution must prove the case beyond reasonable doubt. " The late President of the Supreme Court Vassiliades, J., referring to the Woolmington case, said that "it is a landmark in the [*292] development of the law, regarding the burden of proof, not because it changed the law, but because it marked à change in the content of the law resulting in a change in the manner of applying it", (Per Lord Devlin in Jayasena v. Queen,

(1970) 2 W.L.R, 448.)

What is meant by beyond reasonable doubt is not easy to describe. It is Obviously greater than a mere preponderance of probability. If at the end of the case for the prosecution there is any doubt as to the guilt of the accused he must be .acquitted. (See Mancini v. D.P.P. (1942) A.C. 1.)

The present application partakes the nature of a criminal charge. As the respondent may be sent to prison for such disobedience the rules as to criminal charges have always been applied to such

proceedings, (Comet Products U.K. Ltd. v. Hawkex Plastics (1971) 1 All E.R. 114l), so that if at the end of the case for the prosecution there is

any doubt as to the guilt of the accused, he must be acquitted.

In my mind the onus of proving the violation of the Court’s order was a rather heavy one. The applicant’s allegation contained in his affidavit were opposed by an affidavit filed by the respondent. The applicant took no further steps to disprove the respondent’s denial and establish the violation of the order. In other words he failed to discharge the onus of proving that thé respondent is guilty of violating the Court’s order. Accordingly, the application is dismissed with costs against applicant.

Application dismissed with costs.