[*106] 1985 June 7, 8, 9.
(HADJIHAMBIS, D.J.)
IN THE DISTRICT COURT OF LIMASSOL
Plaintiff,
v.
Defendants.
Re: Application d/d 4.3.85 (Ruling dated 7.8.1985)
Civil Procedure - Applications - Supplementary affidavit - in support of application - Whether it can be filed after the hearing has started, but adjourned on another day for want of time.
Re: Application d/d 30.3.85 (Ruling dated 8.8.1985)
Contempt of Court - Standard of proof - The one applicable in criminal cases - Two equally consistent possibilities - Respondent should be discharged.
Contempt of Court - Mens rea - Relevancy.
Re: Application d/d 4.3.85 (Ruling dated 9.8.1985)
Civil Procedure - Applications - Whether necessary to refer to 0.48, r.2, of the Civil Procedure Rules - Question determined in the negative.
Contempt of Court - Interlocutory injunctions - Disobeyance of - The prerequisites of establishing that a contempt has been committed - Terms of injunction should be clear and unambiguous - Injunction ordering respondent to retain the “status quo” of a shop - Whether “status quo” is a term clear and unambiguous - Question determined in the negative - Injunction restraining respondents from “ν’ αποξενώσουν και/ή εκμεταλλεύωνται και/ή αποποιούνται και/ή πωλώσι και/ή διαθέτωσι και/ή επιβαρύνουν” the shop - Whether it prohibits Court settlement of another action whereby obligations as regards the shop are [*107] affected - Question determined in the negative.
Contempt of Court - Disobeyance of order of Court - Mens rea - Wilful default not a requirement for establishing the contempt - The word “wilfully” in the Rules means that the act must not be casual or accidental and unintentional.
Contempt of Court - Disobeyance of order of Court - Whether respondents can be found guilty for an act of their counsel in another action - The absence of evidence that the respondents knew or sanctioned such an act, the question should be determined in the negative.
Chr. Clerides with N. Pirillides, for the Applicant.
Chr. Pourgourides, for the Respondent (Ruling dated 7.8.85)
Gr. Karapatakis, for the Respondent (Ruling dated 8.8.85)
M. Malachtou (Miss) for Chr. Pourgourides (Ruling dated 9.8.85)
RULINGS
The following rulings were delivered by
HADJIHAMBIS, D.J.:
7.8.1985.
The hearing of this application started on the 16th July, 1985 and was adjourned for continuation to the 19th July, 1985 for lack of time. On the 19th, Mr. Clerides stated that he had filed a supplementary affidavit dated 17th July, 1985 whereupon Mr. Pourgourides objected to this affidavit being taken into account for the purposes of the present proceedings. [*108]
The present application is an application for contempt and the supplementary affidavit in question, sworn to by Ioannis Vryonides, who made the original affidavit in support of the application, states that the Respondent/Defendant delivered possession of the premises in question on or about 19th February, 1985, as is confirmed by an affidavit which is attached to the said supplementary affidavit as an exhibit sworn to by Pantelis Pavlides.
A number of things need to be noted in relation to this supplementary affidavit, starting with the fact that the hearing had started on the 16th and the supplementary affidavit was filed on the 17th, the hearing having been adjourned for no other reason than lack of time. The question immediately arises whether a party is entitled to proceed with the filing of supplementary affidavits during the hearing of an application, particularly when, as Mr. Pourghourides argued, the grounds contained in the supplementary affidavit involve the facts known to the party in question from the time when the application was made so that the facts contained therein were not included in the original affidavit. At any rate, Mr. Pourghourides argued, the facts alleged in the supplementary affidavit were known to the other side by the 15th June, 1985, when the affidavit of Pantelis Pavlides, attached to it, was filed. The Applicant, therefore, had ample time and knowledge before the hearing of the application to put forward those facts rather than choose to do so [*109] only after the hearing had started. Furthermore, Mr. Pourghourides argued, the new facts contained in the supplementary affidavit effectively extend the alleged contempt and in that way it would be prejudicial to the Respondent to allow in the middle of the hearing such a radical departure from the foundation of the application. Indeed, if this could be done, there would be no end to litigation for supplementary affidavits and adjournments to allow the other side to reply to the facts stated therein would thereby become necessary.
Mr. Clerides argued that, because the facts stated in the supplementary affidavit show a direct defiance of the order of the Court, it was encumbant on the Applicant to proceed with the filing of this supplementary affidavit and, further, he argued that the facts stated therein were merely an elaboration of the facts stated in the original affidavit, particularly paragraph 11 and paragraph 12, and that they do not really add anything to the material that is already before the Court. Furthermore, he argued, there seems to be a conflict of evidence between the Applicant’s original affidavit as to the facts alleged in paragraph 11 and the Respondent’s affidavit as to the facts alleged in paragraphs 10 and 14 necessitating proof of the facts alleged by the Applicant in so far as the burden would be on him to do so, and that this could be done by evidence, either oral or by affidavit, at any stage before the conclusion of the hearing. [*110]
I start from the basic fact in this matter, that is, whether the Court should allow the filing of an affidavit after the hearing has started and being adjourned not for the purpose of enabling further evidence to be filed by affidavit but for lack of time. In principle, I do not consider that it would be desirable for the Court to make a practice of allowing this procedure to be followed not only because it is bound to be prejudicial in many ways but also because it could cause an endless battle of affidavits and though I would not exclude the jurisdiction of the Court to allow the filing of supplementary affidavits in exceptional circumstances, I believe that at least the burden would be on the side which proposes to rely on the supplementary affidavit to show that it is a proper case in which it should be allowed.
I note, in particular, that in this instance a number of issues between the parties were cleared by Mr. Pourghourides’ admission of a great number of paragraphs and exhibits at the hearing on the 16th which makes it all the more difficult for the Court to allow further evidence to be introduced in the middle of the hearing.
The basic question, to my mind, is whether the supplementary affidavit in question involves merely an elaboration of the facts put forward in the original affidavit or introduces new facts which either extend [*111] the nature of the alleged contempt or change it completely and it is to this point that I must turn to the crucial paragraphs in the original affidavit, that is, paragraphs 11 and 12, which, to my mind, clearly limit the alleged contempt to the record of the Court dated 19th February, 1985, and contain nothing about the Respondent having acted in contempt in reliance of the said record, for not only do paragraphs 11(a) (b) (c) and (d) refer to its undetakings in that respect but paragraph 11(e) specifically concludes the whole matter by its reference to the Respondent’s acceptance that all the above be made a rule of Court. To my mind, there is nothing in paragraph 11 (or paragraph 12) which merely refers to the despatch of telexes to which, according to the evidence, there was no reply, and which telexes themselves, being filed by consent as exhibits, merely refer to the intention to take contempt proceedings, which includes as to the alleged contempt any reference to action taken by delivery of the premises in Question in contravention of the order of the Court. On this basis I consider that the supplementary affidavit in question introduces a completely new element in the application effectively referring to a contempt that is different and distinct from the alleged contempt and which, although, of course, it could be made the subject of a separate application for contempt, cannot by any stretch of interpretation be said to fall within the framework of the initial application. Nor do I think [*112] that the supplementary affidavit can be admitted on the basis of there being a conflict of evidence between the affidavits of the two sides, for the basis of the alleged contempt must surely be determined by the allegations of the Applicant, particularly considering that the principles applicable to contempt necessitate that the contempt be proved strictly.
1 further wish to say that it seems clear on the material before me that the facts alleged in the supplementary affidavit were known to the Applicant, if not as early as the filing of the application, at any rate, by the time that the affidavit of Pantelis Pavlides was filed and, indeed, if, as Mr. Clerides has submitted, there are references in Exhs. 5 and 6, the telexes, to the alleged delivery, then clearly these facts must have been known to the Applicant ever since those telexes were sent, though I do not myself believe that the telexes refer to delivery as distinct from any other kind of contempt in relation to the order.
For all these reasons I do not believe that the supplementary affidavit in question should be taken into consideration in the hearing of this application.
The crucial issue in this application for contempt of an interim order of the Court in this action centers round the Respondent’s conduct in relation to certain proceedings in Court. Following the interim order [*113] granted on the 9th of February, 1985, and served on the Respondent on the 14th of February, 1985, another Action No. 3271/83 between Defendant 7 in this action as Plaintiff and Defendants 1, 5 and 6 (the present Respondent) in this action as Defendants was fixed before the Court and according to the record of the Court on that day which is Exh. A2 to the present application there were appearances on behalf of all parties to the action.
The alleged contempt is that the Respondent through his advocates who is recorded to have stated “I agree” in the record committed a contempt of the interim order in that that should be understood to be an agreement to the terms of a settlement reached and recorded and as such in violation of the terms of the interim order which prevented the Respondent from delivering possession of the shop in question, alienating, selling, disposing, exploiting or burdening in any way the said shop and further from changing the status quo in relation to the said shop. The alleged contempt is in detail set out in paragraph 10 of the affidavit filed in support of the application and Mr. Clerides strenuously argued that there can only be one interpretation of the record of the Court of the 19th of February pointing in the direction which in his submission was the only possible interpretation to be placed upon it.
The Respondent himself filed an affidavit accompanying the notice of intention to oppose the application and further affidavits were filed together with the [*114] Respondent’s defence in the other action which is also attached to the application.
It is stated in paragraph 4 of the said affidavit that on the 14th of February, 1985, he was served with the interim order in question and immediately gave instructions to his advocate that no action should be taken in relation to Action 3271/83 in view of this interim order. The affidavit refers further to the interpretation placed by the Respondent upon the proceedings in Court in relation to the record in question as well as to certain matters that went on between the parties before the appearance in Court and the preparation of the record, the basic stand-point of the Respondent being that the record cannot be interpreted as involving any participation on his part in relation to the settlement reached. Further affidavits by the Respondent’s counsel, who had appeared on the 19th of February, as well as the Respondent’s co-Defendant in that action and Defendant 5 in this action and counsel on behalf of Defendant 1 in that action as well as by another counsel who had also been involved in the proceedings in the other action have been filed supporting the position stated by the Respondent.
I shall read at length from the record of the Court because to my mind the case today turns crucially on the interpretation to be placed on the record of the Court on the 19th of February. [*115]
Mr. Michaelides:
At this stage the plaintiff and Defendants 1 have been able to find a solution to the dispute. In fact the whole action has been settled as follows:
1. Defendants 1 acknowledge that the agreement referred to in the action and dated 22.7.81, entered between the Plaintiff and Defendants 1, is valid and binding upon Defendants 1.
2. Defendants 1 undertake to deliver possession of the premises in question to the Plaintiff and in due course defendants 1 undertake to register same in the name of the Plaintiff.
3. The Plaintiff undertakes to pay an additional sum to Defendants 1 within two months from today - an amount of £2,500 - provided that Defendants 1 will, in the meantime, deliver vacant possession of the premises in question to the Plaintiff.
4. There will be no order as to costs as between the Plaintiff and Defendants 1.
5. The action is to be withdrawn.
All the above terms of settlement to become a Rule of Court. As regards the costs of Defendants 2 and 3, the Plaintiff submits to an order for costs in their favour. Costs to be assessed by the Registrar and, of course, we expect that one set of costs will be allowed for Defendants 2 and 3, as Mr. P. Schizas appears for both these Defendants. Of course, in the [*116] case where different pleadings were filed and different attendances were made, Mr. Schizas will be entitled to his fees, but as regards the appearances in Court we expect that he will only be entitled to one appearance for both Defendants.
Mr. Pourghourides: That is so, I agree.
Mr. Schizas: I agree.
Court:
By consent action dismissed. The above terms of settlement are hereby made a Rule of Court. The Plaintiff to pay the costs of Defendants 2 and 3. costs to be assessed by the Registrar and as regards the appearances of Mr. Schizas, one set of costs will be allowed, as Mr. Schizas is appearing in this case for both Defendants 2 and 3 for a common Defence. Each party will bear its own costs as regards the Plaintiff and Defendants 1”.
Mr. Clerides argued that seeing that the Respondent was a Defendant in the action which was withdrawn and dismissed in relation to all Defendants and seeing that he was a co-owner whose interests were affected by any settlement reached, it is inconceivable that his counsel’s statement “I agree” together with the fact that he was represented and present at the proceedings could be interpreted as otherwise than a participation in the settlement. In fact the terms of the said settlement included undertakings in the part of Defendant 1 as to the delivery of [*117] the possession of the shop and registration of the same in the name of the Plaintiff which could not be effected without the consent and participation of the Respondent.
Mr. Pavlides’ stand-point was that the record only speaks of a settlement between the Plaintiff and Defendant 1 and there is no reference to Defendants 2 and 3, hence it is not possible to interpret the record as referring to any agreement on the part of the Respondent to the terms of that settlement, the only interest on the part of the Respondent being in relation to the question of costs seeing that the action was to be withdrawn as against him. Mr. Pavlides further argued that particularly in view of the fact that the standard of proof in contempt proceedings, the burden being on the Applicant, is equivalent to the very strict standard of proof in criminal cases, it should not easily be found by the Court that a contempt has been committed which should only be the case if the Court is satisfied beyond any reasonable doubt to that effect, and further argued that in any case the background to the appearance in Court on the 19th indicates that there was no intention on the part of the Respondent to disobey the order and hence no mens rea in relation to the alleged contempt.
Mr. Clerides did refer me to a number of authorities on the question of mens rea and in relation to the ruling of the Court as to the admissibility of the reference in the affidavits on behalf of the Respondent [*118] to the relevance of the background to the proceedings of the 19th and argued that the record in any case speaks for itself and cannot be split to refer separately to the different Defendants.
In this connection I wish to remark that according to my ruling of the 24th of July on the question of the introduction of extrinsic evidence towards the interpretation of the terms of the record, I had ruled that the affidavits would be admissible to clarify the terms of the record in so far as there was confusion about their precise effect but that, of course, I would not be relying on these affidavits if in my own view of the record I thought that its import was clear. It is when I turn to consider this crucial question that I have come to the definite conclusion that this application has been as unfortunate as it has been distressing. To my mind, and I limit myself in this respect to the interpretation of the record itself, there is only one way in which the record could be interpreted and that is that the Respondent’s counsel’s statement “I agree” had nothing whatsoever to do with the settlement of the action as between the Plaintiff and Defendant 1 and I refer exclusively to the question that was the sole matter of concern to the Respondent in those proceedings, that is, the question of costs as such. I note particularly that the record begins with the statement of counsel for the Plaintiff and is expressly to the effect “at this stage the Plaintiff and Defendants 1 have been able to find a solution to the dispute” and furthermore that the totality of the [*119] terms of the settlement that follow concern and concern exclusively the Plaintiff and Defendant 1 and include no reference whatsoever to the Respondent/ Defendant 3 in that action. After that matter is completed by the statement that “all the above terms of settlement to become a Rule of Court”, comes the question of costs as between the Plaintiff and Defendants 2 and 3 and the Plaintiff submits to an order for costs in their favour. To my mind, considering that the question involved in that action concerned the contractual obligations between the Plaintiff and Defendants 1 and that it was part of the substance of the Respondent’s defence that there were no contractual relations between him and the Plaintiff, I would find it difficult to see how any settlement between the Plaintiff and Defendant 1 could in any way affect the Respondent in the way in which Mr. Clerides has argued, seeing that in contractual obligations it would be quite consistent for the Respondent not to have agreed to any terms reached between the Plaintiff and Defendant 1 despite the fact that he was a co-owner since his only obligations in this respect would be as regards Defendant 1 so that any settlement between Defendant 1 and the Plaintiff would not necessarily affect his rights.
I must stress in particular that although this is my interpretation of the record of the Court on the 19th I would also reach the same conclusion if I were to consider that there were two possible ways of interpreting the record in question and that the [*120] interpretation which Mr. Clerides has invoked is a possible interpretation. In this respect, I rely on the principle that contempt proceedings involve the standard of proof in criminal cases, that is, beyond all reasonable doubt and in so far as there might be two possible ways of interpreting the record of the 19th of February I do not consider that it has been established to my satisfaction beyond all reasonable doubt that the Respondent committed a contempt even if it could be taken that one of those interpretations could be the one advocated by Mr. Clerides. I refer in particular to the leading authority on the matter, Re Bramblevale (1970) 1 Ch. 136, where Lord Denning, M.R., put the matter thus at page 137:
“A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond all reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence”.
The question in that case being whether as between the two possibilities it was to be taken that the same could be interpreted against the Defendant, the Court of Appeal reversed the judge at first instance holding that since it was not possible to say which possibility [*121] was correct the alleged contempt had not been proved to the Court’s satisfaction, Lord Denning, M.R., said, at p.137:
“The Court cannot be satisfied beyond reasonable doubt that he still had the books. ... That would be conjecture rather than inference - surmise rather than proof. Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt”.
I do not consider that the terms of this record of the 19th of February, even if I am wrong in holding that it definitely holds the interpretation which I have given it, could legitimately be considered to be so clear as to leave no reasonable doubt to the Court that a contempt was committed. On this ground, I do not believe that it has been established that the contempt was committed. If I were to go further on this line I would myself have referred to the background to the proceedings on the 19th, though I have not in reaching my conclusions so far done so. Nevertheless, it seems to me that, in so far as the terms of the record might be in need of interpretation, it would be possible for the Court to refer to the circumstances mentioned in the Respondent’s affidavits to show the incidence of the Respondent’s participation in the proceedings and the meaning of the words “I agree”, which again would indicate, and this evidence [*122] remains undisputed, that there was no intention to participate in the settlement whatsoever.
There is a further ground upon which I believe the alleged contempt has not been established and that is as to the question of mens rea. Although there is no dispute about the principle of the Heaton’s case and a general principle that there is no need for any direct intention to disobey the order to be established as long as it is shown that acts were done which involved a violation of the injunction, nevertheless intention is important in showing whether the alleged contempt was casual, accidental or unintentional, and further it seems to be relevant according to the authorities in order to establish whether even if a contempt has technically been committed any serious sanction should be attached to it or not. It is for this reason that I believe that the whole background to the proceedings of the 19th of February indicates either that the contempt committed was unintentional or that in any case any contempt committed would be of a technical nature. I need not, however, expand on this point because I would rely primarily on my reading of the record of the 19th February without any reference to this background information. I do not wish to say anything in relation to the question whether, even if the Respondent’s participation in the proceedings of the 19th could be interpreted as involving consent to the settlement reached, the same would necessarily amount to contempt. [*123] This issue is not necessary to be decided in view of my earlier findings and, in any case, being a crucial issue in the other application for contempt against Defendant 1, I do not wish to say anything that might prejudge the same.
Concluding, I wish to say that in case I am wrong in my findings, I believe that any contempt that might have been committed by the Respondent in this respect is of a negligible nature and I would have looked upon it accordingly. Be that as it may, I find that it has not been established that a contempt was committed in terms of the application and the application is consequently dismissed with costs against the Applicant.
This application prays that a fine be imposed upon the Respondent and/or that a writ of sequestration be issued in relation to the property of the Respondent for disobedience or wilful disobedience of the order of the Court, being an interim order dated 9th February, 1985. The application was opposed by notice of intention to oppose dated 29th April, 1985, and went to hearing on the basis of the affidavits filed by each side and the evidence given in cross-examination on his affidavit by Andreas Pieris, Managing Director of the Respondent. [*124]
The essence of the alleged contempt is the Respondent’s declaring of a settlement in another action, No. 3271/83, between Defendant 7 in this action, as Plaintiff, and the Respondent, as Defendant, along with Defendants 5 and 6 in this action as co-Defendants, the settlement being between the Plaintiff and the Respondent. This settlement was made a Rule of Court and, in accordance with its terms, the Respondent acknowledged the validity of an agreement entered into between the Plaintiff and the Respondent and that it was still binding on the Respondent and further undertook to deliver possession of the premises in question to the Plaintiff and in due course register the same in the name of the Plaintiff who would be paying an additional sum of £2,500.- to the Respondent.
It is the submission of Mr. Clerides that, by this action, the Respondent committed a contempt of Court through wilful disobedience of the order of 9th February, 1985, as is stated in paragraph 11 of the affidavit filed in support of this application.
The starting point is, I believe, the order made by the Court of 9th February, 1985, to the effect that:
"Οι Εναγόμενοι και/ή υπηρέται και/ή αντιπρόσωποι και/ή οιοσδήποτε εξ αυτών εμποδισθούν και διά του παρόντος εμποδίζονται από του να:
(α) παραδίδουν κατοχήν εις οιονδήποτε πρόσωπον και ιδία εις τον Μανώλην Σ. Μανώλη η εις τους υπηρέτας ή αντιπροσώπους αυτού, ν' αποξενώσουν[*125] και/ή εκμεταλλεύωνται και/ή αποποιούνται και/ή πωλώσι και/ή διαθέτωσι και/ή επιβαρύνουν καθ' οιονδήποτε τρόπον και/ή λαμβάνουν κατοχήν του καταστήματος αρ.5 εις την Πολυκ. ΟΚΕΑΝIΚ, οδός Σπύρου Αραούζου εις Λεμεσόν, ανεγερθείσης επί του κτήματος υπ' αρ. εγγρ. 48212, Τεμ. 36, Φ/Σ 54/58.6.1 και 54/58.6.1.1, και
(β) αλλοιώνουν και/ή τροποποιούν την σημερινήν κατάστασιν του ως άνω καταστήματος".
It is not disputed that this order was properly served upon the Respondent.
The Respondent, in the affidavit of its Managing Director, filed in support of the opposition, relies on the circumstance, as stated in paragraph 15 in particular, that what was done in Action No. 3271/83 was done by counsel acting on his own initiative, having been given a free hand and without the earlier knowledge or consent of the Respondent which had entrusted the case to counsel in accordance with his own judgment. It is also stated in the said affidavit that the status quo of the premises has been maintained and that there was no intention to disregard the order of the Court, that whatever was done was done after legal advice.
The affiant, being cross-examined, confirmed that the matter had been left to counsel in blank and said that at the time in question he, himself, who handles [*126] the affairs of the company, was away and was informed of the compromise upon his return whereupon he confirmed it. He further stated that he could not say whether what was agreed in Court was contrary to the order, for it was a legal matter on which the view of counsel would be followed.
The argument of Mr. Clerides is that the terms of this interim order are clear and unambiguous and that what was done on the 19th February in Court constituted a clear and flagrant violation of the order of the Court. He argued that there was as much a breach of the first part of the order as of the part of it relating to the maintenance of the status quo in that the agreement in question involved a disposition of the property as much by the undertaking given as by act itself and that it had the consequence of changing the status quo of the premises. He argued that the purpose of the interim order as precisely to prevent what happened and, when one refers to the affidavit filed in support of the application for that order, there are references to the Respondent intending, in arrangement with the Plaintiff in the other action, to deliver possession of the shop to him.
Seeing that Mr. Pourghourides would be relying primarily on the question of the mens rea in relation to the alleged contempt, Mr. Clerides argued that it would be no defence to show that what was done in [*127] Action No. 3271/83 was done unintentionally in the sense that the company followed legal advice and had no intention wilfully to disobey the order in the sense of any specific intent in that direction but that it was sufficient that the act was done which constituted a violation of the interim order.
Before dealing with Mr. Pourgourides’ arguments on the main issue, I wish to dispose of one preliminary objection raised by him in relation to the alleged formal defect of the application in so far as the same was not based on 0.48, r.1, (as he put it, but, as was pointed out by Mr. Clerides, meaning 0.48, r.2 which provides as to the requirements that an application must fulfil and, in particular, “that it shall be in writing stating the nature of the order or direction sought and referring to the specific section of the Law or to the specific Rules of Court upon which it is founded”).
Mr. Pourghourides argued that it is not sufficient for the application to comply with the requirements of 0.48 but that it is further necessary for the application to refer not only to the specific rules or sections of the Law on which it is based but also to refer to 0.48 itself in this respect.
I do not believe that this is the intention of the provisions of 0.48, r.2, and, to my mind, it is sufficient if the application complies with the requirements of 0.48, r.2 without the need to refer to 0.48, r.2 itself. And, it has not further been argued that the application has not referred to the specific sections of the Law or rules on which it is based. [*128]
Mr. Pourghourides’ main argument was that there was no violation of the order of the Court at all established to the satisfaction of the Court beyond all reasonable doubt in that the company itself did and knew nothing about the settlement declared on the 9th February, 1985, counsel having acted according to his own judgment. Furthermore, he argued that the Rule of Court recorded on the 19th February involved an agreement to do something in the future and the interim order in its own terms does not apply to such a situation but only to present acts. Further to this, he argued that the meaning of the expression “status quo” contained in the order is, in itself, not clear.
I would start from the premise that a contempt application raises a very serious question in relation to which particular caution is required, hence the strict principles applicable in relation to contempt as shown particularly by the requirement that the standard of proof is the standard of proof in criminal cases, that is, beyond all reasonable doubt. The requirements in this respect are, I believe, well stated in Borrie and Lowe on Contempt, at p.315, to the effect:
“First, it must be established that the terms of the injunction are clear and unambiguous; secondly, it must be shown that the defendant has had proper notice of such terms; and thirdly, there must be clear proof that the terms have been broken by the defendant. There is also a fourth issue, namely, the mens rea required in such cases”. [*129]
As to one of those requirements, there is, I believe, no dispute whatsoever in this case, that is, that proper notice of the terms of the order had been had by the Defendant. Consequently, I do not propose to deal with this requirement any further.
When. I turn to the other requirements, I have formed the impression that a difficult question arises in relation to the requirement that the terms of the injunction are clear and unambiguous. There are, to my mind, several aspects of the injunction in question which at least raise the question whether the injunction is clear and unambiguous in its terms. In particular, I would refer to the provision in (b) of the order whereby the Defendants are restrained from “αλλοιώνουν και/ή τροποποιούν την σημερινήν κατάστασιν του ως άνω καταστήματος” which seems to me to be a very general reference and certainly reaching the point of being vague in itself, and I would further say the same about the reference to the maintenance of the status quo of the shop in question, for the principle that seems to be derived from the authorities is that the party who wishes to secure an injunction to fit his case should do so in as specific term as possible, and certainly the term “status quo” could not be defined as a specific term in itself. I refer, in particular, to the case of Iberian Trust Ltd. v. [*130] Founders Trust and Investment Company (1932) 2 K. B. 87, where the order had stated that the plaintiffs do have the return of the said shares within fourteen days. The defendant company, not having returned the shares, was argued to be in contempt but it was considered by the Court that the reference to “the plaintiffs do have the return of the said shares” was not a reference that was clear and unambiguous and that there was no specific reference to the defendant company being bound by that reference. As the Court put it at p. 95:
“If the Court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done”.
I also refer to the case of P. A. Thomas & Co. v. Mould (1968) 1 ALL E.R. 963, where, although it was specifically stated in the injunction that the defendants were restrained from “disclosing, divulging or making use of any confidential information acquired by them during the course of their employment by the plaintiffs or from any person who acquired such information in the course of his employment by the plaintiffs relating to (a) schemes providing for the sale of income; (b) schemes providing for splitting an endowment; (c) schemes concerned with death in service”, nevertheless it was considered that this was not sufficient in the context of the defendants enquiring as to whether the plaintiffs’ schemes were, [*131] in fact, novel with other persons because the exact nature of the schemes had not been stated in the injunction. As the Court put it at p. 967:
“If the plaintiffs .... seeking to protect their ‘know-how’, are anxious to enforce any injunction which may be granted to them by seeking the help of the court to punish a breach of it, it seems to me to be quite essential that they should make it absolutely clear what it is they are seeking to protect”.
On the basis of this principle, I do not believe that the term “status quo” can be interpreted as involving a sufficiently clear and unambiguous reference in relation to the order sufficient, at any rate, for the purposes of a contempt application to entitle the Court to infer that, by means of the particular settlement reached in the other action, there was a violation of the order in question. Not only do I believe that the terms of the injunction must be interpreted strictly, but, furthermore, I do not necessarily see how the term “status quo” is sufficiently clear to invoke bearing in mind the high degree of proof required in these circumstances for the establishment of a plea of contempt.
There remains the question of paragraphs (a) and (b) of the order and, for the same reasons that I have stated in relation to the maintenance of the status quo, I believe that paragraph (b) cannot be understood to [*132] have involved a clear and unambiguous reference to what the Defendant was restrained from doing. In any case, reading paragraph (b), I would consider that it refers, at best, to the maintenance of the physical condition of the shop in question rather than to its legal status and I do not believe that the present application for contempt can in any way rest on paragraph (b) of the order.
A more difficult question arises in relation to paragraph (a) of the order. The basic question here is whether paragraph (a) should be interpreted as including an undertaking recorded in the form of a Rule of Court to do certain things, or whether it should only be deemed to comprise the acts themselves that are stated in the said paragraph. On the face of it, paragraph (a) does not prohibit any settlement of the rights in relation to the shop but restrains the Defendants from “ ν’ αποξενώσουν και/ή εκμεταλλεύωνται και/ή αποποιούνται και/ή πωλώσι και/ή διαθέτωσι και/ή επιβαρύνουν καθ’ οιονδήποτε τρόπον και/ή λαμβάνουν κατοχήν του καταστήματος”. I must say that I am at least surprised by the form of this part of the order which restrains the Defendants from “παραδίδουν κατοχήν” or “λαμβάνουν κατοχήν”. This could be explained in terms of referring to different Defendants accordingly but I believe that orders should, for the purposes at least of contempt proceedings, be interpreted strictly and that it is at least inconsistent in relation to Defendant 1, to be restrained from parting with possession or getting possession at the same time. [*133]
Mr. Clerides argued, however, not in relation to the parting with possession but in relation to “ ν’ αποξενώσουν και/ή εκμεταλλεύωνται και/ή αποποιούνται και/ή πωλώσι και/ή διαθέτωσι και/ή επιβαρύνουν καθ’ οιονδήποτε τρόπον και/ή λαμβάνουν κατοχήν” of the premises in question, and argued that a settlement involving the rights in the shop and undertakings to deliver possession and register the same in the future in the name of the Plaintiff in the other action certainly came within the terms of the injunction above. I would not be too sure about that. Again I believe I should apply a strict interpretation of the terms of the injunction, for I must not, for a minute, forget the serious nature of these proceedings. To my mind, the burden is on the party who wishes to obtain an injunction to restrain the Defendant from doing particular things to frame his application and secure his injunction on the application in as specific terms as possible and in relation to the specific things that the Defendant is required to do or refrain from doing not only because it is desirable for the Defendant to know as much as the Plaintiff needs to know what those things are but also for the purposes of the Court being in a position to enforce obedience to its Order if the need arises. Indeed, it is a first principle of injunctions that the Court will not grant an injunction that it cannot enforce. Therefore, and seeing that it was within the knowledge of the Plaintiff that there were proceedings in relation to the shop in the other [*134] action before the Court, it would appear to me incumbent upon the Plaintiff, if the Plaintiff wished to secure that the Defendant would refrain from compromising those proceedings, to have applied in those terms and secured an injunction that would have specifically ordered the Defendant not to take any steps in the other action in relation to the shop in question. Furthermore, the ordinary meaning of the terms employed in the injunction as per the application “ ν’ αποξενώσουν και/ή εκμεταλλεύωνται και/ή αποποιούνται και/ή πωλώσι και/ή διαθέτωσι και/ή επιβαρύνουν”, taken in itself as well as in context when those terms are interrelated, is rather in relation to acts that may involve a sale, alienation, use or disposition or any burdening of the premises rather than the distinct act of undertaking certain obligations through a settlement in Court in relation to a different and distinct action.
For these reasons I am not at all satisfied that the terms of the injunction are clear and unambiguous for the purposes of these proceedings and, furthermore, I am not satisfied beyond all reasonable doubt that the acts done through the settlement reached in Action No. 3271/83, even if I were to consider the terms of the injunction as clear, could be understood to fall within those terms or, to my mind, a compromise or an undertaking, be it in the form of a rule of Court, to do certain things, would not be the same as the doing of those acts and, therefore, I am not satisfied on this ground that there is any violation of the injunction substantiating the present application for contempt. [*135]
What I have said in this respect is connected also to the other requirement, that the breach must be proved beyond all reasonable doubt for I believe that the great latitude left by the terms of the injunction, in any case, does not allow me to be satisfied beyond all reasonable doubt that what took place on the 19th February amounted to a breach of the injunction, for the purposes of these proceedings.
I refer in particular to the case of Re Bramblevale (1970) 1 Ch. 136, where the Court of Appeal reversed Megarry, J., on the ground that in relation to the two possibilities before the Court it was not possible to say which one was correct and, although this case referred to factual possibilities rather than the interpretation of a record, nevertheless, to my mind, the principle must be the same so that any doubt ought to be resolved in favour of the respondent. Stressing the serious nature of contempt approximating an offence of a criminal character, the Court of Appeal, as Lord Denning, M.R., put it, said:
“The court cannot be satisfied beyond reasonable doubt that he still had the books …. That would be conjecture rather than inference - surmise rather than proof. Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt”. [*136]
In matters in which, like contempt, it is important to know exactly what it was that the Order restrained or directed, it is vital for the Respondent to know what it is that the Order prohibits him from doing or directs him to do, and certainly I would not consider that an Order that prohibits them from delivering possession or “ν’ αποξενώσουν και/ή εκμεταλλεύωνται και/ή αποποιούνται και/ή πωλώσι και/ή διαθέτωσι και/ή επιβαρύνουν καθ’ οιονδήποτε τρόπον και/ή λαμβάνουν κατοχήν του καταστήματος”, makes it clear to the Respondent that he is not to compromise another action and, consequently, that he would be in violation of the Order if he did.
The view which I have taken of the application makes it unnecessary really for me to enter into the question of mens rea but I do wish to say a few words about this if only because counsel have dealt at length with the matter. My understanding of the authorities, and particularly the Heatons’ case, (1972) 3 ALL E.R. 101, in the House of Lords, is certainly that there is no need in proving contempt for the Applicant to show that there was any wilful intention to disobey the Order in the sense of specific intention to do so. And I cite what was said by Warrington, J., in Stancomb v. Throwbridge Urban District Council (1910) 2 Ch. 190, at p. 194, quoted with approval in the House of Lords at p. 117:
“In my judgment, if a person or a corporation is restrained by injunction from doing a particular act, that person or corporation commits a breach [*137] of the injunction, and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order. I think the expression ‘wilfully’ in Order XLII., r.31, is intended to exclude only such casual or accidental and unintentional acts as are referred to in Fairclough v. Manchester Ship Canal Co.” .
Though the term “wilfully” appears in our Rules as it did in the old English Rules, it is clear that it makes no difference whatsoever to the interpretation of the mental element involved in contempt and its only meaning is that the act must not be casual, unintentional or accidental. In the present case clearly what was done was neither casual, accidental or unintentional, but a further complication arises from the fact that, according to the evidence, the Respondent did not know and did not authorize specifically the act in question. Certainly a free hand was given to counsel to act according to his own judgment but, beyond that, the fact remains that the Company itself was not informed of what was to be done in Court. If I had to decide this matter, I would have hesitated a lot before I said that the Company could be guilty of contempt in these circumstances, for although it would be an easy way out for a Company to say, as Mr. Clerides has argued, that it entrusts the matter to counsel and, therefore, is absolved of any obligations itself, nevertheless the [*138] question remains one of proof and, to my mind, a serious matter like contempt should not easily be established by referring to an omnibus direction on the part of the Company to counsel to act on its behalf. Nor am I particularly worried about this situation because it will not always be the case that the facts will be such as to establish that the Company did not know. In this particular instance the Managing Director, who handled the affairs of the Company, clearly on the evidence, which I have no reason to doubt, was not aware of the action to be taken. And, although a Company does, according to the authorities, commit contempt through its servants or agents, nevertheless I believe that the matter raised here is different because the alleged contempt would specifically be what was done in Court by counsel who is not a servant of the Company though in essence he would be an agent; certainly the evidence supports that there was no question of the Company knowing what was to be done or sanctioning it. I need not, however, expand on this point in view of my definite conclusion about the first question arising in relation to the Order.
If I were to be wrong in my views on the substance of the application, I believe that any contempt committed in this instance would not be a contempt attracting the punishment of sequestration not only because there would seem to be circumstances in mitigation, for clearly there was no specific intent to disobey the Order of the Court, but, furthermore, the issue of a writ of sequestration [*139] would seem to serve no useful purpose seeing that the contempt, if any, having been once committed, would not be a genuine contempt in that there is nothing that the Company can do now to undo the settlement reached on the 19th February. If at all, there is no evidence that the Company has acted on the settlement of the 19th and, therefore, that it is committing any further acts of contempt in that respect. Consequently I would have considered that a fine would have been a more appropriate sanction for contempt in this case.
In my view of this application, the application is dismissed with costs against the Applicants subject to any previous orders as to costs.
Application dismissed with costs.