Court dismisses strike-out for unnecessary evidence paragraph but strikes out unsupported fraud allegation.

[*407] 1985 April

(ARTEMIDES, AG. P.D.C.)

IN THE DISTRICT COURT OF NICOSIA

Costas Germanos and Another,

Plaintiffs,

v.

Lachi Beach Development Co. Ltd.,

Defendants.

(Action No. 6034/84).

Civil Procedure - Pleadings - Statement of claim containing evidence, consisting of an alleged admission - The allegation is, in the circumstances, “unnecessary” in the sense of 0.26, R.

6 of the Civil Procedure Rules, but it is neither scandalous nor prejudicial or embarrassing to the defendants - Application to strike it out dismissed.

Chr. Christophides for L. Papaphilippou, for Defendants-Applicants.

C. Clerides, for Plaintiffs-Respondents.

RULING

The following ruling was delivered by:-

ARTEMIDSS, AG. P.D.C.:- The plaintiffs’ claim against the defendant company is for the sum of £4,000 as commission allegedly earned by them for introducing a purchaser to the defendants for the sale of their property. The plaintiffs filed their statement of claim on 17.11.84 and it is obvious that its drafting leaves much to be [*408] desired. More so it shows lack of knowledge of basic rules which make unequivocal provisions with regard to the mode of pleading. Mr. C. Clerides quite fairly conceded that the application of the defendants, mainly founded on Order 19, rules 4, 5 and 26, to strike out two

paragraphs of the statement of claim, i.e. paras. 6 and 12(δ), is merited with regard to para. 12(δ) for the reasons contained in the

application. Indeed the relevant prayer in that paragraph is not supported by

facts contained in the body of the statement of claim. See on this point: Aletrari v. Paroudi (1959-1960), Vol. 24, C.L.R. 269.

Furthermore, para. 12(δ) of the statement of claim contains allegations of fraud and deceit and no cognizance whatsoever is taken of the provisions in Order 19, r.25 of the Civil Procedure Rules.

Mr. Christophides insisted on his application with regard to paragraph 6 of the statement of claim as well. He submitted that from a mere reading of the contents of this paragraph it becomes obvious that it contains the evidence by which facts are to be proved and not the simple facts by which the claim is to be supported. This, he continued, is contrary to the explicit provisions of Order 19, r.4 which reads as follows:

“4. Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for [*409] his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums, and numbers shall be expressed in figures and not in words. The pleadings shall be signed by the advocate, or by the party, if he sues or defends in person”.

Mr. Christophides was good enough to supply me with photocopies of the relevant pages of the old cases he cited to support his contention. Mr. Clerides agrees with the exposition of the law made by Mr. Christophides but argued that the contents of the relevant paragraph recites facts and not evidence. Furthermore, he said, the applicants are estopped from asserting otherwise since they have filed their statement of defence where in its paragraph 7 they specifically deny the contents of paragraph 6 of the statement of claim.

Applications of this nature are not frequent in our Courts. We usually deal with application for amendment of pleadings, a practice stemming from the fact that draftsmen are very often careless and the facts pleaded do not cover the allegations put forward during the trial, or they lack lucidity. I would go as far as to say that our Courts nowadays take a rather liberal view as to how pleadings are [*410] drafted taking pains to look into the substance of the cause rather than its form. This, of course, does not modify the least the principle, reiterated many times, that pleadings must be drafted as the law and practice requires and that they form the substratum on which the case will slide and any departure from them is impermissible. In the present case, however, the applicants wish to exhibit meticulous adherence to the rules, hence the present application.

The rule that an admission is evidence seems to be based on a remark made by James L.J. in the old case of Davy v. Garrett (1878) 7 Ch.D. 473. The remark was adopted in the well known textbook Bullen and Leake., “Precedence of Pleadings”, 12th Ed., where reference is made for the support of the principle in the case of Davy v. Garrett. I have gone very carefully through the judgment in the above case and it is obvious that the facts in that case were quite different from the present. In that case the Court of Appeal ordered that the statement of claim be struck out because it was calculated to embarrass the defendants by reason that it contained immaterial facts which were set out at great length including voluminous documents which contained nothing else but evidence and the defendant could not really know how he could reply to the claim. [*411]

It is sometimes difficult to draw the line as to what constitutes facts and what evidence. In the case of Lump v. Beaumont (1884) 49 Law Times 772, Pearson J., said that material facts must be taken to include any facts which the party pleading is entitled to prove at the trial. Counsel for the applicants said that the case of Davy v. Garrett, cited to above, was cited with approval in the cases of Stafford v. Winfield Cook and Partners Ltd. v. Winfield (1980) 3 ALL E.R. 759, and Re W.R. Willcocks (1973) 2 ALL E.R. 93. Evidently Mr. Christophides has referred to those two cases because the noter up slip sent by the All England Publishers is

attached to the report of Davy v. Garrett. I have read carefully both cases. The circumstances in the Willcocks case were quite

different. It was a company’s petition for dissolution filed by the one of the two shareholders and no proper particulars were given to the other who did not know of the case he was going to meet. The Court considered the petition as being inadequate in law and on the facts supporting it. It was, therefore,

struck out. In the case of Stafford v. Winfield the case of Davy v. Garrett was cited in a completely different context and has nothing to do

with the issue with which we are concerned.

I have already said that the applicants have filed their statement of defence in which there is a specific averment denying the allegations contained [*412] in the subject paragraph 6 of the statement of claim. The statement of defence and this application were filed on the same day. In my view the contents of paragraph 6 fall within the expression “unnecessary” found in r.26 of Order 19. It is neither scandalous nor prejudicial or embarrassing to the defendants. I would proceed to say that it is within that meaning if one gives a strict interpretation to the word “unnecessary” because the plaintiffs proceed in paragraphs 7 and 8 to refer again to the facts contained in paragraph 6 and thus give a chronological history of the events on which their claim is based, i.e. that the defendants agreed that the plaintiffs had earned their commission for which a cheque was issued, re paragraph 6, which, however, could not be cashed after the defendants had given instructions to their bank, re paras. 7 and 8.

Taking, therefore, into consideration the circumstances in the present case, and in exercising my discretion, I think that the application with regard to para.6 of the statement of claim should be dismissed. There will, therefore, be an order striking out from the statement of claim para. 12(δ). No order is made with regard to costs.

Order for striking out para. 12(δ) of the statement of claim.