[*178] 1985 November 11

 

(Fr. NICOLAIDES, S.D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Republic of Cyprus, through, The Attorney General,

Plaintiff,

v.

Fereos Christopoulos and Others,

Defendants.

(Action No. 4043/83).

Civil Procedure - Frivolous and/or vexatious actions and/or actions amounting to abuse of process - The Civil Procedure Rules, 0.19, r. 26, and 0.27, r.3 - Action raising same issues as a counterclaim in another action between the same parties, but in the new action, the plaintiff, (defendant in the first action) entitled to remedies to which he was not entitled to claim by the counterclaim - As regards such remedies the new action will not be struck out, but as regards remedies, identical to remedies claimed by the counterclaim, the action will be struck out.

Civil Procedure - Frivolous and/or vexatious actions and/or actions amounting to abuse of process - The Civil Procedure Rules, 0.19, r.26, and 0.27, r.3 - Principles governing the exercise of the discretion of the Court.

A. Stylianidou (Miss), for the Applicants.

Chr. Ioannides, for Attorney-General. [*179]

RULING

The following ruling was delivered by:

NICOLAIDES, S.D.J.: By the present application the applicants apply for an order of the Court striking out the endorsement on the writ of summons on the ground that the present action is frivolous and vexatious and an abuse of the process of the Court. In the accompanying affidavit it is stated that defendant 1 instituted on 1.9.73 Action No. 2617/73 against the Attorney-General, which is still pending before the District Court of Nicosia. In the said action the Attorney-General filed a counterclaim. It is the allegation of the Applicants that in effect the remedies prayed for by the said counterclaim and the remedies prayed for by the present action are identical. In the defence and counterclaim of Action No. 2617/73, which was produced as an exhibit of the affidavit filed in support of the present application, the defendants (the respondents in the present application) pray for an order of the Court directing the plaintiff in that action to deliver vacant possession of the premises, subject-matter of the proceedings, to the defendant and alternatively a declaration of the Court that the defendant, in Action No. 2617/73, is entitled to terminate the tenancy agreement between the plaintiff and the defendant. Learned counsel for the applicant contended that both Action No. 2517/73 and the present action refer to the same matter, as the remedies prayed for by way of counterclaim in Action [*180] No. 2617/73 and the remedies prayed for in the endorsement in the writ of summons of the present action are in effect and in substance the same remedies.

In the said endorsement of the writ of summons, the plaintiff/respondent prays for:

(A) A declaratory judgment to the effect that the plaintiff is the owner or the person entitled to possession of a certain plot of land.

(B) Judgment that defendant 1 is in possession of the said plot illegally.

(C) An order against defendants 2 & 3 for the delivery of possession of the said immovable property to the plaintiff.

(D) An order by which defendant 1 would be restrained from interfering with the possession of the said plot which defendant 2 has in his possession as tenant of the plaintiff.

(E) Order against defendant 1 for the delivery of possession of the said plot to the plaintiff.

(F) Damages for illegal possession.

(G) Payment to the plaintiff of any sum which defendant 1 collected from defendant 2 on the pretext that he was the owner and the person entitled to the collection of the rents.

(H) Any other remedy. [*181]

The respondent alleges that the remedies prayed for by the present action are different from the remedies applied for by the counterclaim, and furthermore that although the factual background of the two proceedings, is in many respects the same, the legal position and the remedies prayed for are different.

The application is based on Order 19, rule 26, and on Order 27, rule 3. Order 19, rule 26, provides:

“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”.

Order 27, rule 3, provides:

“The Court may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly as may be just”.

The short ground for this application is that the present proceedings are vexatious and an abuse of the process of the Court as a plea of res judicata, if put on the record would succeed. [*182]

In Wright v. Bennett and Another (1948) 1 ALL E.R. 227, the Court of Appeal held that the proceedings were an abuse of the process of the Court, which should exercise its inherent jurisdiction to prevent the defence being called on to meet what in substance and reality was the same charge as that in the earlier action. What is to be considered are the issues of facts which are part of the subject matter of litigation. The Court has to prevent its own process being used in any way which would be an abuse by calling on defendants in substance and in reality to meet the same old charge.

In GreenhaIgh v. Mallard (1947) 2 ALL E.R. 255, at p. 257, Sommervill, L.J. said:

“ I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them”.

Wigram, V.C. in Henderson v. Henderson (1843) 3 Hare 100 observed at p. 114:

“I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of [*183] adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time”.

In Thames Launches Ltd. v. Corporation of the Trinity House of Deptford Strond (1961) 2 ALL E.R. 26, Buckley J., said at p. 33:

“… Counsel for the defendants says that the principle is that a man should not pursue a remedy in respect of the same matter in more than one court. In my judgment, the principle is rather wider than that. It is that no man should be allowed to institute proceedings in [*184] any court if the circumstances are such that to do so would really be vexatious. In my judgment, it is vexatious if somebody institutes proceedings to obtain relief in respect of a particular subject-matter where exactly the same issue is raised by his opponent in proceedings already instituted in another court in which he is not the plaintiff but the defendant.”

Where matters involving substantially the same issues are raised in two different courts it is desirable that they should be debated in only one of those two Courts if by that means justice could be done. (Royal Bank of Scotland Ltd. v. Citrusdai Investments Ltd. (1971) 3 ALL E.R. 558).

The criteria are set down with clarity by Ungoed-Thomas, J., in Slough Estates, Ltd. v. Slough Borough Council and Another (1976) 2 ALL E.R. 270 at p. 274:

“The jurisdiction to grant a stay is a discretionary jurisdiction. This is fundamental to this case and to my decision on it.

It is common ground that to obtain relief the defendants must establish: (i) duplication between two sets of proceedings; (ii) oppression, vexation or abuse of the process of the court resulting from the continuation of the proceedings sought to be stayed; and (iii) the absence of any other consideration against the relief sought such as what was suggested in this case, viz. unreasonable delay or acquiescence on the part of the plaintiffs”. [*185]

The first question which must be answered is whether there is duplication. The respondent in the present case is the defendant in Action No. 2617/73. He filed a counterclaim and the said action refers to the same plot of land. Both the present action and Action No. 2617/73 are proceedings before competent Courts of the Republic. The object of both proceedings is for the rights of the parties as regards the said plot of land to be decided and the whole litigation to come to an end. Action No. 261 7/73 is reserved for judgment and it appears, at least prima facie, that there is duplication between the proceedings before this Court and the proceedings before the District Court of Nicosia. The District Court of Nicosia which dealt with the other action had power to decide the issues raised by the parties in their pleadings.

The second matter which has to be established is whether the applicant established that it would be vexatious, oppressive or an abuse of the process of the Court in the present proceedings to go on. It seems that again it is prima facie vexatious and oppressive to sue concurrently into two Courts of the Republic (see Slough Estates Ltd. v. Slough Borough Council (supra)).

Lord Esher, M.R., in The Christiansborg (1885), 10 P.D. 141 at p. 148, in a dissenting judgment, whose dissent does not affect the passage to which I shall refer, said: [*186]

“ Where both sections are in England in the same tribunals - because as they are in tribunals where the proceedings are not identical or the remedies are not equally effective the law would apply which is applicable to foreign countries - prima facie it is vexatious, and therefore it would lie on the party who brings the second action to show that it was not so. But where the cases are in foreign countries, prima facie not being vexatious, the man who says it is, must prove flearly to the court that it is, and that the person suing him in a court with ample jurisdiction would have in every respect the same chance in a foreign court which he has here, and equal facility to enforce the remedy”.

So if the proceedings are identical and the remedies equally effective, prima facie the duplication is vexatious.

In the present case the proceedings are the same as both are actions before competent Courts, but, as it has been suggested, there is a difference in the legal position and the remedies applied for. In other words, the Respondent in the present case was not entitled to apply by way of counterclaim for an injunction against the applicant/plaintiff in Action No. 2617/73. In such a case the proceedings before this Court have an advantage over the proceedings in the District Court of Nicosia. What is required is not that there would be precise identity, but that there would be such identity as does not give an advantage of substance to the proceedings sought to [*187] be stayed over the proceedings before the other forum (Slough v. Slough (supra)).

It is correct that the plaintiff in the present action applies, inter alia, for an injunction and section 32 of the Courts of Justice Law 14/60 provides for the power of the Court to grant to a plaintiff injunction, interim or perpetual, on an application by him. The plaintiff is defined in section 2 of the same law as including any person praying for any remedy, except the remedy which a defendant prays for by way of counterclaim in any form of proceedings. From the above it is obvious that a defendant is not entitled to apply for an injunction by way of counterclaim. Therefore the remedies of the two proceedings are not equally effective and there is an advantage of substance in the present proceedings or to use the words of Lord Esher, the respondent has not the same chance as in the present proceedings.

It has been stressed repeatedly that it is only in plain and obvious cases that recourse should be had to the summary process under Order 27, Rule 3 (Mayor etc., of the City of London v. Horner (1914) 111 L.T. 512, C.A.). The power conferred both by Order 19, Rule 26, and Order 27, Rule 3, will only be exercised where the case is beyond doubt. A pleading will not be struck out under the said rules “unless it is not only demurrable but something worse than demurrable”, i.e. such that no legitimate amendment can save it from being demurrable [*188] (per Chitty, J., in Rep, of Peru v. Peruvian Guano Co., 36 Ch. D. 496). And a pleading is said to be demurrable when it does not state such facts or support the claim, prayer or defence put forward. Even if the statement of claim in its present form discloses no cause of action because some material averment has been omitted, the court while striking out the pleading will not dismiss the action but give the plaintiff leave to amend. For a pleading to be struck out as frivolous or vexatious it must be so clearly frivolous that to put it forward would be an abuse of the process of the Court (per Jeune, P., in Young v. Holloway, (1985) P. 90). The Court will generally give leave to amend a defect in pleading rather than give judgment in ignorance of facts which ought to be known Defore rights are definitely decided (Steeds v. Steeds, 22 Q.B.D. 542). A judicial discretion must be used as to what proceedings are vexatious; for the Court must not prevent a suitor from exercising his undoubted rights of any vague or indefinite principle (Higgings v. Woodhall, 6 T.L.R. 1). The jurisdiction will not be exercised except with great circumspection and unless it is perfectly clear that the plea cannot succeed (see Lawrance v. Lord Norreys, 15 App. Cas. 210; Goodson v. Grierson, (1908) 1 K.B. 766).

If a party seeks to raise a new question which has already been decided between the same parties by a Court of competent jurisdiction, this fact may be brought before the Court by affidavit, and the statement of claim, though good on the face of it, may be struck out and the [*189] action dismissed; even though a plea of res judicata might not strictly be an answer to the action. It is enough if substantially the same point has been decided in a prior proceeding. (MacDougall v. Knight, 25 Q.3.D. 1. But if there be “matter of fact fit to be investigated”, which the plaintiff is not estopped from proving, the Court will refuse to stay the action (Blair v. Crawford (1906) I Ir. R. 578, 587).

The first ground which must be established by the applicants is the absence of any other consideration against the relief sought, such as unreasonable delay or acquiescence on the part of the plaintiff. The writ of summons was issued on 30.9.83 and the present application was filed on 12.1.85, i.e. a considerable period of time passed between the institution of the action and the filing of the present proceedings. Learned counsel for the respondent suggested that this great delay deprives the applicant of the right to apply to strike out the writ of summons, as he failed to file a conditional appearance. Although I do not see how the delay affects the plaintiff, I must admit that such delay of more than 15 months is unreasonable.

As it has been stated, the remedy provided by Order 19, rule 26, and Order 27, rule 3, is a discretionary remedy to be exercised in accordance with well established judicial principles and definitely it should not cause injustice to the plaintiff. The jurisdiction should be exercised with the greatest caution. A defendant must satisfy the Court that the continuance of the action would work [*190] an injustice because it would be oppressive, or vexatious to him or would be an abuse of the process of the Court in some other way. (Per Scott, L.J. in St. Pierre and Others v. South American Stores (Gath & Chaves) Ltd. (1935) ALL E.R. Rep. 408, at p. 414.

In Slouch Estates v. Slough B.C. (supra) Ungoed-Thomas J., said at p. 278:

“Then under (b) he refers to what I now come xo ‘consider: (b) The stay must not cause an injustice to the plaintiff.

This consideration of not causing an injustice to the plaintiff appears to me to be relevant in particular to the form of relief to be given. It may well be that election would avoid injustice to the plaintiff which a mere stay might inflict “and Scott, L. J’s remarks are directed in terms to a stay. If election avoids injustice, then there is no reason why the plaintiff avoids injustice, then there is no reason why the plaintiff should not be put to his election merely because a stay, if granted without election, might inflict injustice on him. It is not, in my view, a pre-condition of putting the plaintiff to his election that a case for a stay without injustice to the plaintiff must be established. A stay is a discretionary remedy and not a technical or legal right without place for discretion, and as a matter of judicial discretion it is administered in accordance with judicial [*191] principles to achieve justice, and therefore has regard to substance rather than form. Election in this context, unlike some other contexts, is similarly not a legal right but a matter of judicial discretion. It is not a limitation on that discretion but a product of it, to be applied where its adoption is the appropriate course for achieving a just solution. As appears from the authorities, the court will take into consideration that a plaintiff had started one action before another, but it does that only in the exercise of its discretion as to what, if any, remedy should be applied; and such a course by the plaintiff does not constitute a once-for-all election excluding the court from applying the remedy of election when the case comes before it, if it thinks that that is the just and proper course in all the circumstances”.

In the present case it has been suggested by learned counsel for the applicant that there is a res judicata and, therefore, the writ of summons should be struck out. On the other hand, learned counsel for the respondent contended that except for two of the prayers in the writ of summons, i.e. prayers (B) and (E), which are contained in the counterclaim in Action No. 2617/73, the other remedies prayed for are either outside the scope of the counterclaim (as for example the injunction prayed for) or are not [*192] included in the counterclaim. I do not find it necessary, at this stage, to reach a definite conclusion whether or not a plea of res judicata would succeed, but I feel that I am not ready to deprive the plaintiff from his right to be heard in a proper hearing.

Taking into consideration the legal principles as I endeavoured to explain above, I decided that the Applicant failed to satisfy me that this is a proper case either for the striking out of the whole writ of summons or for a stay of proceedings. Nevertheless learned counsel for the respondent admitted that prayer (B) of the writ of summons refers to a remedy included also in the counterclaim of Action No. 2613/73. The same applies to prayer (E) which, according always to the admission of learned counsel for the respondent, is identical to the remedy prayed for in the counterclaim of the same action.

In view of the above and in the light of the legal authorities mentioned above, I decided, exercising my judicial discretion, to grant the application partly, and order that prayers (B) and (E) of the writ of summons be struck out. As regards the rest of the prayers, I decided that the plaintiff/respondent must be given the chance to be heard and, therefore, the application as regards the said paragraphs is not allowed. [*193]

Order for the striking out of prayers (B) and (E) of the writ of summons is hereby granted with costs against the respondent.

Order striking out prayers (B) and (E) of the writ with costs.