Supreme Court grants conditional appearance leave to defendants disputing jurisdiction in a patent infringement action.

[*1192] 1967 October

(JOSEPHIDES, J.)

ORIGINAL JURISDICTION

Beecham Group,

Plaintiffs,

v.

1. Bristol - Myers Company,

2. Georghios Petrou,

Defendants,

(Patent Action No.1/67).

Practice - Patent action - Conditional appearance - Procedure - Rules of the Supreme Court of England, applicable - See English Order 12, rule 7.

Patent action - Conditional appearance - See under "Practice" above.

A. Triantafyllides, for the Defendants.

Ex parte applications for leave to enter conditional appearance.

RULING

The following Ruling was delivered by:-

JOSEPHIDES, J.: The Plaintiffs’ claim in this case is for an injunction to restrain the Defendants from infringing the plaintiffs’ letters patent, and for consequential relief.

The writ of summons was taken out in this Court and the claim is presumably based on the English Patents Act, 1949. That law is made applicable to Cyprus by virtue of Law 4O of 1957, now Cap. 266, section 9(1), which confers jurisdiction on the Supreme Court to deal with claims under the Patents Law. After the service of the writs of summons [*1193] on the defendants, Mr. Triantafyllides on behalf of both defendants, 'before entering appearance, filed two applications before this Court for leave to enter conditional appearance to dispute the jurisdiction of this Court.

The short point before me today is which rules of procedure are applicable? Mr. Triantafyllides, in his written application stated that he relied on Order 16,rule 9, of the Civil Procedure Rules, but, obviously, those rules refer to proceedings before the District Courts. In addressing me today he referred to the Rules of Court (Transitional Provisions), 1960, made by the High Court of Justice under the provisions of Article 163 of the Constitution and published in the Gazette on December 17, 1960.

Rule 3 of those Rules provides that "the practice and procedure prescribed by any Law, in force immediately before Independence Day, shall, until amended, by way of variation, addition or revocation, by any Rules of Court, continue in force...". The position with regard to the procedure applicable to proceedings in patent actions prior to Independence is to be found in section 35 of the Courts of Justice Law, Cap. 8, (since repealed). That section provides that the civil jurisdiction conferred upon any Court shall be exercised in accordance with the procedure prescribed by any Law in force for the time being or Rules of Court made under any Law and in default thereof shall "so far as circumstances permit, be exercised in accordance with the practice and procedure observed by the Courts in England”. As no Rules of Court were made either before or after Independence under our Patents Law, Cap.266, the [*1194] English practice and procedure is applicable to such proceedings, and this is to be found in the Rules of the Supreme Court of England.

Order 12, rule 7 of the English Rules provides that a defendant to an action may "with the leave of the Court enter a conditional appearance" in the action. In the present case I am satisfied that the defendants have a bona fide intention to dispute the jurisdiction of the Court and I accordingly grant them leave to enter a conditional appearance on the following terms:-

The appearances of both defendants are to stand as unconditional unless the defendants apply within three weeks from today to set aside the writ, or service thereof, and obtain an order to that effect.

Order accordingly.

Leave to enter a conditional

appearance granted on the

above terms.