Civil claim dismissed regarding criminal conviction details; fine amount struck out as admitted.

[*286] 1982 April 29

(LAOUTAS, S.D.J.)

IN THE DISTRICT COURT OP NICOSIA

Antigoni Lazarou Savva,

Plaintiff,

V.

Yiacoumis Petrou,

Defendant.

(Action No. 2930/81).

Civil Procedure - Pleadings - Statement of claim - Striking out as unnecessary or scandalous or as tending to prejudice, embarrass or delay the fair trial of the action - Order 19 rule 26 of the Civil Procedure Rules - Principles applicable.

Evidence - Conviction in a criminal case - Admissible evidence in subsequent civil proceedings.

G. Gavrielides, for Applicant-Defendant.

D. Koutras, for Respondent-Plaintiff.

JUDGMENT

The following judgment was delivered by:-

LAOUTAS, S.D.J.:- The applicant,[*287] who is a defendant in the present action, prays for an order to have certain words of the statement of claim struck out as unnecessary or scandalous and which tend to prejudice, embarrass or delay the fair trial of the action.

The words which are sought to be struck out are all contained in letter 'A' of the specially endorsed writ of summons, ’stole the purse' in para 2 of the particulars therein and from para 3, 'he was sentenced to £100.- fine for the stealing'.

The application is based on order 19 r.26 of the Civil Procedure Rules which provides as follows;-

"The Court or a Judge may at any stage of the. proceedings, order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass, or delay the fair trial of the action."

Our rules correspond to the English Rules of the Supreme Court 0.18, r. 19.

In Bullen & Leake etc. 20th edition, p. 138 we read

"The court is clothed with wide and ample powers, which are both useful and necessary, to enforce the the rules of pleadings and at the same time to stay or dismiss proceedings which are in abuse of its process such as frivolous, vexatious or harassing [*288]

proceedings or those which are manifestly groundless or in which there is clearly no cause of action or ground of defence in law or in equity. Such powers are derived from two complementary sources, namely,(I) the express powers conferred on the court by R.S.C., Ord.18, r.19, and (2) the powers under the inherent jurisdiction of the court."

As, however, the powers vested in the Court under the above order, are coercive in operation and are exercised by summary process the Court exercises these powers only with the greatest care and circumspection and only in the clearest cases.

As it has been pointed out in Dyson v. Attorney- General (1911) I K.B. 410 at p. 419 by Fletcher Moulton L.J.:-

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

The general principle under these Rules has been stated by Lindley M.R. in Hubbuck & Sons v. Wilkinson. Heywood & Clark. (1899) I Q.B.

81 where he said at p.91:-

"The second and more summary procedure is only [*289] appropriate to cases which are plain and obvious so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks.”

The same principle was reiterated in Drummond- Jackson v. British Medical Association and other (1970) I All E.R. 1094 where Sir Gordon Willmer said at p.1105;-

"The power to strike out in limine is no doubt a valuable weapon in the hands of the court, enabling it to prevent abuse of its process by the prosecution of vexatious or frivolous litigation. But it is clear that such a drastic power must be sparingly exercised, and it has long been established that recourse will be had to -it only in plain and obvious cases."

It has been established by authorities that allegations in a pleading are scandalous if they state matters which are indecent or offensive or are made for the mere purpose of abusing or prejudicing the opposite party.

A pleading, however, or allegation which is scandalous as for example, by making charges of dishonesty, immorality or outrageous conduct, cannot be struck out if it is necessary or relevant to any issue in the action.

In Christie v. Christie (1873) L.R.8 Ch. 489 Lord Selborne, L.C. said at p. 503:- [*290]

"The sole question in such a case is whether the matter alleged to be scandalous has a tendency, or, in other words, would be admissible in evidence to show the truth of any allegation in the bill that is material with reference to the relief that is prayed."

The main contention of the applicant-defendant, is that the words in the Statement of Claim tend to prejudice, embarrass or delay the fair trial of the action.

A party may claim ex debito justitiae to have his oppenent's case presented in an intelligible form so that he may not be embarrassed in meeting it.

(See Davy Garrett (1878) Ch. D. 473 reported in the English and Empire Digest r. 50 p.l6).

This principle has been stated by Bowen in Knowles v. Roberts (1888) 38 Ch.D.

263 at p. 270.

"It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacret. But that rule is, of course, subject to this modification, and limitation that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right." [*291]

As to the "fair trial of the action" The siger L. J. in Berdan v. Greenwood (1878), 3 Ex.D. 25 I (reported in the English and Empire Digest cited above p.77) had this to say:-

"Now in considering this question we are disposed to give a liberal interpretation to the words 'fair trial of the action’, and to hold that a pleading, which tends to prejudice, embarass or delay plaintiff, at any stage of the proceedings in the action, not merely so as to prevent him from fairly trying at the actual trial of the action, but so as to prevent him from ever trying on fair terms the real issue between him and the defendant the obtaining of a

decision upon which is the legitimate object of the action, would affect the

'fair trial' of the action within the meaning of the rule; but giving this interpretation to the rule, we are of opinion

that in general such a payment into court as that under consideration has not the effect referred to and ought to be allowed".

In the light of the principles and authorities cited hereinabove, I shall proceed to examine whether this application can be sustained.

As it has transpired from the particulars of the specially indorsed writ of summons the applicant-defendant, was convicted by a Criminal Court for stealing the money of the respondent-plaintiff. [*292]

It is an accepted principle that a conviction in a criminal case is admissible evidence in subsequent civil proceedings.

If a person wishes to establish such a criminal conviction must plea it.

In the present action the criminal conviction constitutes the substratum of plaintiff’s claim. I cannot see how the plaintiff is going to prove her claim without making reference to the previous criminal conviction and, how the word "steal" can be excluded.

In Levene v. Rexham and others (1970) 3 All E.R. 683 Salmon L. J. said at p. 685·

"I have no doubt at all that if the newspaper article in this case had referred only to the plaintiff's convictions for rape, buggery and indecent assault and to the other convictions which I have mentioned, the court ought to have struck out the statement of claim. Justification of these matters had been pleaded in the defence, and there was unchallenged evidence before the court to support that plea. In the circumstances postulated, it would have been apparent that this defence was bound to succeed. To persist with the action in such circumstances would clearly be an abuse of the process of the court which should be stronly discouraged. Indeed, if in circumstances such as I have described, a judge were to exercise his discretion by refusing to strike out the [*293]

statement of claim, this court would have no hesitation in coming to the conclusion that it was a wholly wrong exercise of discretion and would order the statement of claim to be struck out. ”

In that action the defendant sought to strike out the statement of claim because the plaintiff who was convicted on four charges brought an action against the defendant, a journalist, the chief editor of the newspaper and Publishing Co. claiming damages for libel, for an alleged defamatory article. Had it been only for the convictions the Court was prepared to strike out the statement of claim as being an abuse of the process of the Court . It had not done so however, on other grounds.

Having as a guidance the principles and case Law hereinabove expounded I find that this application cannot succeed and is dismissed accordingly. The application succeeds only as far as the second line, in para 3 under "which sentenced him to £100.- fine" is concerned. The respondent-plaintiff admits that these words should be struck out. The Court order that these words be struck out accordingly·

The costs of this application to be borne by applicant and be assessed by the Registrar. Such costs to be paid at the final determination of the action.

Application succeeds in part.

Order for costs as above.