[*153] 1985 October 19.
(PAPAS, D.J.)
IN THE DISTRICT COURT OF PAPHOS
Stella Hadji Antoni and Another,
Plaintiffs,
v.
Defendant.
(Action No. 274/84).
Civil Procedure - Pleadings - The Civil Procedure Rules, 0.19, r.26 - Photocopies of letters attached to “Defence and Counterclaim” - Struck out.
Civil Procedure - Applications - Reference to rule relied upon - Application based on 0.19, r.26 of the Civil Procedure Rules for striking out photocopies of letters attached to the “Defence and Counterclaim” - Whether 0.19, r.4 should have been specified as well - Question determined in the negative.
A. Cacoyannis for P. Sivitanides, for App1icants-Plaintiffs.
E. Korakides, for Respondent-Defendant.
RULING
The following ruling was delivered by:
PAPAS, D.J.: By the present application the applicants - plaintiffs seek an order of the Court striking out photo-copies of two letters that have been attached to the “Statement of Defence and Counterclaim”, dated 11.5.83 and 10.1.84 respectively, on the ground that they are [*154] unnecessary, scandalous, tending to prejudice, embarrass, or delay the fair trial of the action.
The application is based on 0.19, r.26, 0. 27, rr.1, 2, 3, and 0.48, r.9 (j) of the Civil Procedure Rules. It was argued mainly on behalf of the Applicant that the aforementioned letters constitute evidence and as such they cannot be pleaded. Counsel for the Applicant referred the Court to the provisions of 0.19, rr. 4, 26 and 27 of the Civil Procedure Rules.
On behalf of the respondent it was argued that the application should be dismissed because, the applicant argued his case on the basis of 0.19, r.4, of the Civil Procedure Rules which Order is not inscribed on the face of the application, thus abandoning his application which is based on 0.19, rr. 26 and 27. He referred to the case of Kouppa v. Vassiliades (1981) 1 J.S.C. 120.
0.19, r.4 of the Civil Procedure Rules reads as follows:-
“4. Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively [*155] Dates, sums, and numbers shall be expressed in figures and not in words. The pleadings shall be signed by the advocate, or by the party, if he sues or defends in person”.
0.19, r.26, of the Civil Procedure Rules provides the following:-
“26. 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”.
It transpires from 0.19, r.4, mentioned above, that any pleading should contain only a statement of the facts on which a party relies and not the evidence by which they are to be proved. In Odgers “Principles of Pleading and Practice”, 20th Edition, at p.101 et seq., the following is stated: Facts should be alleged as facts. It is not necessary to state in the pleadings circumstances which merely tend to prove the truth of the facts already alleged. The fact in issue between the parties is the factum probandum, the fact to be proved, and therefore the fact to be alleged. It is unnecessary to tell the other side how it is proposed to prove that fact; such matters are merely evidence, facta probantia, facts by means of which one proves the fact in issue. Such facts will be relevant [*156] at the trial, but they are not material facts for pleading purposes. (See also the English cases of Lord Hanmer v. Flight 36. L.T.R. 279, Williams v. Wilcox (1838) 8 AD. & E. 331, North-Western Salt Co. Ltd. v. Electrolytic Alcali Co. Ltd. (1913) 3 K.B. 422 at p. 425. So a mass of evidence pleaded unnecessarily may be struck out (Davy v. Garret, 7 Ch. D. 473). In the case of Davy v. Garret (1878) 7 Ch. D. 473, a statement of claim set out in full a multitude of letters which were said to be material because they contained admissions. But the Court held that if that were so, still admissions were only evidence, and that facts and not evidence should alone be pleaded, the letters were accordingly struck out.
I have considered very closely all that was advanced before the Court by both counsel, as well as the legal aspect of the issue, and the contents of the pleadings. It is my opinion that I should exercise my discretion in favour of the applicants and grant the application for the reason that the two letters attached to the “Statement of Defence and Counterclaim” constitute evidence and as such unnecessary and should not be part of the pleadings. With regard to the argument advanced before the Court by learned counsel for the Respondent that the application should be dismissed because 0.19, r.4 of the Civil Procedure Rules has not been inscribed on the application, it is my view that 0.19, r.26, which is mentioned in the application, is a general provision [*157] for enforcing the preceding Rules of 0.19 and as such it is sufficient for one to base his application on this Rule alone (See also The Annual Practice, 1961, at p. 477 ).
In the result the application is granted and I order that the two letters mentioned therein be struck out from the “Statement of Defence and Counterclaim”.
Applicants’ costs in this application to be borne by the respondent-defendant, to be assessed by the Registrar and be paid at the end of the action.
Application granted with costs.