Cyprus Supreme Court dismisses strike-out application in libel case where facts require evidence trial.

[*416] 1971 November 15

(STYLLANIDES, AG. P.D.C. , CHRYSOSTOMIS, AG. D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Lavar Shipping Co. Ltd., & another,

Plaintiffs (Respondents),

v.

Souras Bros. Ltd., & another,

Defendants (Applicants).

(Action No. 2223/63).

Civil Procedure - Practice - Preliminary point of Law - Striking out pleading - Statement of Claim - No cause of action - Frivolous and vexatious - Test applicable - Civil Procedure Rules- Order 27 r. 1 - Libel Action Statement of Claim raising points of fact and law - Court not in a position to decide whether the action is sustainable or not unless they hear evidence.

A. Neocleous, for the Applicants.

Y. Agapiou, for the Respondents.

RULING

The ruling of the Court was delivered by:-

STYLLANIDES, AG. P.D.C.: The Plaintiffs filed this [*417] Action on the 9.9.69 whereby they claim damages for libel, slander and injurious falsehood . The alleged libel is contained in two letters, copies of which were attached to the Statement of Claim filed on 22.1.71.

The Defendants desisted the Claim and filed their Statement of Defence on the 17.9.71. On the same day they took out a summons whereby they pray for an order of the Court striking out the Statement of Claim and/or dismissing this Action on the ground that the Statement of Claim discloses no cause of action and/or that this action is frivolous and vexatious.

The Application is based on the Civil Procedure Rules, Order 27, rule 1, "Section" 19, rule 26 obviously used for "Order".

The Application was opposed and an Affidavit was sworn by one of the Directors of the Plaintiff Companies in support of the Opposition.

The Respondents' Advocate submitted that the Application should have been accompanied by an Affidavit. Rule 9 (j) and (o) of Order 48 does not support this submission of the Respondents' Counsel. [*418]

In the Application we read:-

"The factsrelied upon by the Applicants are apparent on the face of the Statement of Claim and on the schedule attached thereto, that is to say, inter alia, the alleged publication contains no libel, and it is not connected in any way as it does not refer in anywise to the Plaintiffs or either of them nor do they contain any malice."

Paragraphs 6,7,8 and 9 of the Statement of Claim read as follows:-

"6. In the course of such efforts as above, Defendants falsely and maliciously wrote and published and/or caused to be written and published of and concerning the Plaintiffs, or either of them, a libel and/or injurious falsehood, contained in a letter addressed to Messrs. Rudolf A. OetKer, of Hamburg, dated 25.4.1969 and, also, enclosing copy of a previous letter dated 18.1.68. The said letters were received by and published to the recipients on 28.4.1969 and appear in full in the attached Schedule, which constitutes an integral part of this Statement of Claim.

7. By the said publication Defendants meant and/or were understood to mean Plaintiffs.

8. By the said publication Defendants meant and/or were understood to mean:-“ [*419]

(a) that Plaintiffs or either of them, were incompetent and/or inexperienced to conduct their business.

(b) that Plaintiffs or either of them, because of their incompetency and/or financial position were unfit to represent Messrs. Rudolf A. Oetker in Cyprus and to properly protect their interests.

9. The said publication naturally tends to injure and/or prejudice the reputation of Plaintiffs, or of either of them in the way of their business and/or did actually injure and/or prejudice same."

In the other paragraphs of the Statement of Claim, publication of spoken words is alleged. There is an allegation that the letters and the spoken words are defamatory and refer to the Plaintiffs. Specific allegations of innuendo are set out in the Statement of Claim.

The issues raised by this Action are of fact and law.

In the Heirs of the Late Theodora Panayi v. The Administrators of the Estate of the Late Stylianos Georghi Mandrioti. (19&3) 2 C.L.R. page 167, it was observed by the Appeal Court that:-

"In cases where an objection is taken in the defence the interested party must apply to [*420] 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 of 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." (page 170 of the Report.)

The scope and applicability of Order

27 #was decided in Michael Papamichael v. Klitos Chaholiades,

(1970) 10 J.S. C. p. 1058. Josephides, J. , in delivering the Judgment of the Court had this to say:-

"This Court has considered the provisions of Order 27 in a number of cases in the past and I think we have made it clear that this jurisdiction ought to be very sparingly exercised, and only in very exceptional cases. Reference perhaps should be made to the case of Mavromoustaki v. Yeroudes (1965) 1 C.L.R. 176, at page 183, where we said that these rules empowered the Court by summary process, that is, without a trial in the normal way, to stay or dismiss an action where the pleading discloses no reasonable cause of action. In the course of our judgment in the Mavromoustaki case we referred to Dyson v. Attorney-General (1911) 1 K.B.- 410, at page 419, where Fletcher Moulton L.J. said:- [*421]

To my mind it is evidence 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 toe heard, excepting 'in cases where the cause of action was 'obviously and almost incontestably bad."

"That is, undoubtedly, the test to be applied, and if there is a point capable or worthy of being argued it was clearly impossible to strike out an action in limine. It has been held that it is only in plain and obvious cases that recourse should be had to the 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 it out. (See Mavromoustaki case, at pages 183-4)."

Order 27 of the Cyprus Civil Procedure Hules corresponds to the old English Order 25 and to the new Order 18, r. 19.

In Morris and Another v. Sandess Universal Products, (1954)1 All E.R. p.47:-

"The defendants stated in a circular letter addressed to their customers that they had [*422] dismissed the plaintiffs who had now no connection whatsoever with the defendant company. The plaintiffs sued for libel, alleging that the words used by the defendants meant that the plaintiffs had been guilty of some discreditable conduct, and the defendants contended that the words complained of were incapable of a defamatory meaning."

Jenkins, L. J. , concluded his Judgment as follows:-

"I must say that, in my judgment, the procedure under R.S.C., Ord. 25, r.2, is most unsuitable for the purpose for which it has been used in this case. If recourse is to be had to that rule on the question whether or not words complained of in a libel action are capable of a defamatory meaning, it seems to me that the practice may grow up of splitting libel actions into two stages, the first being concerned with the aspect of the case with which we have been occupied today and the second being the trial of the case itself in the event of the defendant’s failing to put a summary end to the proceedings on the preliminary issue with which we are now dealing. That appears to me to be a most undesirable practice, and, in my view, a question such as that now raised is not a proper subject for an application under the procedure prescribed by R.S.C., ord. 25, r.2." [*423]

In A.G. of Duchy of Lancaster v. L.& N.W. Railway Co., (1892) 3 Ch. 274, C.A. , it was held that the summary procedure under English Order 25 can only be adopted when it can be clearly seen that a claim or answer is on the face of it 'obviously unsustainable'.

In Wenlock v. Moloney, (1965) 2 All 3.R. 87, C.A., it was held that on an application to strike out the statement of claim and to dismiss the action, it is not permissible to try the action on affidavits when the facts and issues are in dispute and that so long as the statement of claim discloses some cause of action, or raises some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out.

As we have already said, the Statement of Claim raises points of fact and law and unless we hear evidence we are not in a position to decide whether the Action is sustainable or not.

In the light of the authorities and what we have said, it is our opinion that Ord. 27 is not applicable in this case.

The Application, however, is further based on Ord. 19, r. 26 which corresponds to the old English Ord. 19, r. 27. Though the language of Ord. 19, r, 26 is wide, its [*424] operation is limited. There is no allegation that the Statement of Claim offends against the Rules, Rule 26 of Ord. 19 is not applicable and, in fact, the prayer of the Applicants goes far beyond the ambit of the provisions of this Rule.

For the reasons we have explained, this Application is dismissed with costs.

Application dismissed

with costs.