Court sets aside writ of summons for failure to clearly state claim nature and particulars.

[*426] 1978 March 11

(PIKIS, P.D.C. )

IN THE DISTRICT COURT OF LARNACA

Pairway Bonded Warehouses Ltd.,

Plaintiffs,

and

S. Ch. Ieropoulos and Company Ltd. ,

Defendants.

(Action No. 9/78).

Civil Procedure Practice Specially endorsed writ of summons Need that the nature of the claim and the particulars relied in support of it should be clearly indicated therein No specification whether amount claimed was claimed by way of damages for breach of contract, or as reasonable remuneration for services rendered Proceedings not void but irregular They may be remedied by an amendment.

Chr. Psatha (Miss), on behalf of Fr. Saveriades, for Applicants-Defendants.

A. Poetis, for Respondents-Plaintiffs.

DECISION

The following decision was delivered by:-

PIKIS, P.D.C. : This is an application [*427] for (a) the setting aside of the service of the writ of summons on grounds of irregularity and (b) the striking out or setting aside of the writ of summons for the reason that it does not disclose a cause of action.

Specially Endorsed Writ of Sumons

It has been submitted on behalf of the respondents that in the absence of any indication that service of the writ of summons itself is defective the provisions of Order 16, rule 9 of the Civil Procedure Rules are inapplicable. In my judgment this argument is untenable. The aforesaid rule of the Civil Procedure Rules is modelled on the provisions of Order 12, rule 20 of the old rules of the Supreme Court, in England, and one may consider with benefit the manner in which the provisions of this rule have been applied in practice in England. The matter is discussed in some detail in the White Book and judging from the noses on the way this procedural rule has been invoked in practice it is manifest that on application to set aside service of the writ of summons the Court may legitimately examine the regularity of the writ itself and decide accordingly.

In support of his submission that the writ of summons is irregular learned counsel for the applicants made reference to the specimen forms supplied by way of appendix to the Civil Procedure Rules and argued that the specially endorsed writ of summons in the present [*428] case does not conform with any of the specimens and went further to suggest that it is defective in that it does not indicate the nature of the claim or fails to indicate it with the precision envisaged by the rules.

Learned counsel for the respondents contended that the specimen forms supplied by the rules do not constitute part of the Rules themselves and are not binding in the sense that non compliance with their provisions as such does not render the writ of summons defective. Furthers, I viras invited to hold that the nature of the cause of action need not be specified so long as the relief itself is indicated with sufficient particularity. Lastly, he submitted that the procedure envisaged by Order 27, rule 3 of the Civil Procedure Rules for the striking out of a claim for non disclosure of a cause of action is inapplicable to preliminary proceedings of this nature. I need not canvass the last submission for reasons that will be made obvious later in this judgment though, prima facie, I incline to the view that the writ of summons does disclose a cause of action notwithstanding the clouded way in which the issues are presented.

What I must resolve is whether the writ of summons is irregular for failure to indicate with the precision and clarity required by the rules the nature of writ the claim. On examination of the contents of this/it does not appear whether the sum claimed is sought to be recovered for breach of contract, or for services rendered, [*429] or as a result of an account stated or otherwise. The procedure laid down by Order 2, rule 6 of the Civil Procedure Rules authorizing the presentation of a claim by means of a specially endorsed writ of summons constitutes a compendious way of raising before the Court litigable issues doing away with particulars that would otherwise be necessary in order to enable a party having a cause capable of being specially endorsed to Ventilate his grievance in a summary manner and enable him, in a proper case, to invoke the provisions of Order 18 and obtain summary judgment where the procedure for appearance is sought to be used as an instrument of delay and not defence. Therefore both the nature of the claim and the particulars must be such as to establish on the face of the writ not only the nature of the cause but the particulars that support it so much so that in the face of unjustified appearance the Court can uphold the claim and give judgment. The forms given in the Rules, though not binding in the sense that departure therefrom will automatically render the writ defective, they do indicate the minimum information that that should be disclosed in a specially endorsed writ of summons so as to apprise the defendant, without further information, of the nature of the case he has to meet at the trial.

A specially endorsed writ of summons must contain a clear statement not only of the relief sough but of the nature of the claim giving rise thereto and the [*430] particulars relied upon to support it. It must not be overlooked that the summary procedure envisaged by Order 2, rule 6 enables a party to bypass the provisions of Order 20 of the Civil Procedure Rules, dealing with a statement of claim, not an insignificant matter, and must be kept strictly within the limits set forth by the legislature particularly when it comes to the minimum information that must be given to the other side. In a specially endorsed writ of summons it is of especial importance that the nature of the claim should be clearly indicated as well as the particulars relied upon in support of it.

In the present case the nature of the claim is not clearly stated, if it is stated at all, and in any way it is not stated in a manner apt to acquaint the defendants of the case against them and to that extent it is irregular. The plaintiffs ought to have specified whether the amount claimed is claimed by way of damages for breach of a contract, or as reasonable remuneration for services rendered, or in consequence of an account taken and so on. This submission of the plaintiff is not sufficiently consequential as to render the proceedings void; it is an irregularity that may be remedied by an appropriate amendment. Therefore I order that the writ of summons be set aside unless amended with the leave of the Court within one month. The costs of this application are reserved in favour of the defendant.

Writ of summons set aside

unless amended by leave of

the Court within one month.