Court allows late amendment of defence to correct misapprehension regarding dowery agreement terms.

[*1570] 1972 December.30

(BOYADJIS, D. J.)

IN THE DISTRICT COURT OF PAPHOS

Fatma Ahmet Djemal,

Plaintiff,

and

Ahmet Djemal Hussein Avni,

Defendant.

(Action No. 978/70).

Civil Procedure - Practice - Pleadings - Amendment - Principles on which it may be allowed

- Statement of defence - Amendment of after close of plaintiff's ease - Civil Procedure Rules 0.25 r.l.

Pleadings

- Statement of defence - Amendment - See, also, under "Civil Procedure".

N. Mavronicolas, for the Applicant.

E. Korakides, for the Respondent.

RULING

The following ruling was delivered by:-

BOYADJIS, D.J.: The defendant-applicant [*1571] applied for leave to amend his statement of defence, under Order 25, rule 1 of the Civil Procedure Rules. The action came on for hearing on the

3.10.72 and 2 witnesses testified on behalf of the plaintiff, who closed her case on the same day. The defendant applied for an adjournment in order to file an application for amendment of his defence. The adjournment was granted and the application was filed on the 19 10.1972 and was fixed on the 18.11.1972.

On 31.10.1972 the respondent-plaintiff filed a notice of opposition to the application which was fixed for hearing on the 9.12.1972.

The facts upon which the application is based, according to the affidavit in support thereof, are that the dowery agreement, the subject-matter of the action, written in the Turkish language was in the hands of plaintiff and that the defendant when drawing his defence, did not know the exact contents thereof and acting upon a misapprehension made certain admissions in the defence on its legality and/or forceability and/or proper execution. The defendant alleges that he realized the mistake when the said agreement and an interpretation thereof in Greek was filed in Court on the 3.10.1972 and seen by his advocate.

In her affidavit filed in support of her notice of opposition the respondent alleges that when the case was fixed for mention, with a view of settlement, the

applicant and his advocate had the opportunity to inspect [*1572] the dowery agreement and they did so also on the date of the

hearing, before same was produced in evidence and that the application was filed after unduly considerable delay. Another ground of opposition is that the applicant in essence seeks to replace altogether and not only amend his defence.

Both sides relied upon their respective affidavits and none applied for leave to cross-examine the opponent affiant. No other evidence was adduced by either side.

I have had the advantage of hearing elaborate arguments on behalf of learned counsel on both sides. 0.25, r.1 reads as follows:-

"The Court or a Judge may, at any stage of the proceedings, allow either party to alter or amend his Indorsement or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."

Our 0.25. r. 1 is modelled upon, in fact it is identical to 0.28, r.1 of the English Rules of the Supreme Court and, therefore, the English authorities on the interpretation and application of the aforesaid rule by the English Courts do afford a good guidance.

According to the White Book as a general rule in England either party is allowed to make any such amendment as it is reasonably necessary for the due presentation of

his case, on payment of the costs of and occasioned by the [*1573] amendment, provided there has been no undue delay on his part, and

provided also the amendment will not injure or affect any vested right of his opponent. But if the application he made mala fide or if the proposed amendment will cause undue delay, or will in any other way unfairly prejudice the other party, or is irrelevant or useless or would raise merely a technical point, leave to amend will he refused.

In Tildesley v. Harper, 10 Ch. D. pp. 396, 397, Bramwell, L.J. said: "My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that by his blunder, he has done some injury to his opponent which could not be compensated for by costs or otherwise."

In Clarapede v. Commercial Union Association,

32 W.R. p. 263, Brett M.R. is reputed to have said:- "However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs."

Both aforesaid cases were cited with approval in Nelson v. Nelson 2 Slinger (1958) 2 All E.R. 744.

Learned counsel for the respondent argued that if the amendment applied for is allowed by the Court, vested rights of his client will be affected, because she will have to start her case afresh and adduce more evidence. [*1574]

It is true that amendments are refused if thereby vested rights of the opponent are affected. A good illustration of what ie meant by "vested rights" is afforded in the English authority of Marshall v. London Passenger Transport Board (1936) 3 All E.R. 83 where it was held that where an amendment introduces a new case which if set up in an action commenced at the date of the amendment would have been barred by lapse of time, the amendment must be disallowed; if such an amendment were allowed the statutes of Limitation would be circumvented by the device of bringing in a fresh claim by amendment of the pleadings in a pending action, thus depriving the defendant of his vested right to plead the statute of Limitations.

Lord Wright, M. R. cited with approval the following extract from the judgment of Lord Esher, M.R. in Weldon v. Neal (1887), 19 Q.B.D. 394 at page 395: "If an amendment, were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust."

The Marshall case was followed and applied in Batting v. London Passenger Transport Board (1941) 1 All E.R. 228.

It is evident from the above authorities that injury or deprivations of vested rights cannot mean or [*1575] include the necessity of recalling a witness or adducing of further evidence by the opponent, which a proposed amendment might occasion.

Learned counsel for the respondent further argued that the amendment applied for covers the whole case for the defence and amounts in essence to a complete substitution of the defence already filed. Reading the proposed amendment one can see that in essence the defendant seeks to withdraw an admission in his defence on the legality and proper execution of the agreement the subject-matter of the action. There is authority in the White Book to the effect that an amendment may be allowed even if it is thereby sought to withdraw an admission already made on the pleadings (Hollis v. Burton (1892) 3 Ch.226). No authority was cited to me and I could trace none suggesting that if a proposed amendment of a statement of Defence covere all its paragraphs it should be refused. I have only come across authorities to the effect that an amendment should not be refused simply because it introduces a new claim (Budding v. Murdoch, 1 Ch. D. 42) but it will be refused where the amendment would change the action into one of a substantially different character which would more conveniently be the subject of a fresh action (Raleigh v. Goschen (1898) 1 Ch. p.81).

The Courts of our Republic have on several occasions dealt with the rules governing the exercise by the trial Courts and on appeal of the discretionary power to grant or refuse an amendment under 0.25 r.1. The view taken by [*1576] our Supreme Court on the matter is not different from the view prevailing in England as laid down by the English authorities mentioned in my judgment hereinabove.

In arriving at my decision on the application in hand I have examined and I have been advised and guided by the following Cyprus Authorities: -

(1) Yiannakis K. Pourikkos v. Mehmet Fevzi

(1963) 2 C.L.R., 24.

(2) Odysseas Patsalides v. Kiki Yiapani & another

(1969) 2 J.S.C. 263.

(3) Homeros Th.Kourtis & others v. Panos K.Iasonides

(1970) 9 J.S.C. 852.

On the special facts of the present case and on the material before me I have come to the conclusion that applicant’s delay or lapses in the matter are not such as to render it inequitable on the part of this Court to come to his rescue and that justice will be better served if the amendment applied for is allowed. I have not been convinced that the proposed amendment will prejudice the respondent in a way that cannot be compensated by the payment of any costs to her. There is no allegation that the application for amendment is not made bona-fide.

In Stylianou v. Photiades (21 C.L.R.60) it was held (page 80): "It is a fundamental principle of procedure that the defendant be afforded an opportunity of pleading to an amendment and of calling and re-calling witnesses." [*1577]

The above passage was cited with approval in Nicos Laghoudi v. Georghios M.Georghiou (23 C.L.R, 199).

In the result, the amendment applied for is allowed. Respondent will be given an opportunity if she so wishes to recall any of her witnesses or adduce further evidence on the issues raised as a result of the allowed amendment.

All costs thrown away, including the costs of the present application to be borne by the applicant-defendant in any event.

Application granted*

Order for costs as above.