[*511] 1986 June 7
(S NICOLAIDES, D.J.)
IN THE DISTRICT COURT OF NICOSIA
Michael Papachrysostomou,
Plaintiff,
V.
Miranda Papachrysostomou,
Defendant.
(Action No. 7075/85).
Injunctions - Interim order - - Ex parte application - The Civil Procedure Law, Cap. 6, section 9 - Order made returnable on a particular date - Unless specifically renewed, it lapses on that date.
Injunctions - Interim order - Ex parte application - Affidavit in support - The requirement of Uberrima Fides - Misstatement or suppression of material facts - Effect - What facts are considered as material.
Injunctions - Interim order - Prerequisites of its issue.
M. Kyprianou for M. Kleopas, for plaintiff-applicant.
D. Koutras, for defendant-respondent.
RULING
The following ruling was delivered by:-
S. NICOLAIDES. D.J.:- The plaintiff filed the writ of summons
on 24.7.1985 and on 25.9.1985 filed an ex parte application
supported by affidavit affirmed by one Archimandrite Georghios Papachrysostomou of Athienou the brother of the plaintiff by which he was praying for a number of remedies Including injunctions which were:
"(α) Διάταγμα του Δικαστηρίου απαγορεύον και/ή εμποδίζον την εναγομένη από του καθ' οιονδήποτε τρόπον να λειτουργεί και/ή[*512] να επιτρέπει να λειτουργεί σχολείον ή οιονδήποτε εκπαιδευτικόν ίδρυμα υπό την επωνυμίαν Lamarque και/ή Larnarque College μέχρι τελικής εκδικάσεως της υποθέσεως.
(β) Διάταγμα του Δικαστηρίου απαγορεύον και/ή εμποδίζον την εναγομένην από του να χρησιμοποιεί και/ή επιτρέπει να χρησιμοποιείται το σήμα ως το τεκμήριον 2 εν σχέσει με την λειτουργίαν σχολείου και/ή οιουδήποτε άλλου εκπαιδευτικού ιδρύματος μέχρι τελείας εκδικάσεως της υποθέσεως.
Διάταγμα του Δικαστηρίου διατάττον και/ή εμποδίζον την εναγομένην από του να λειτουργεί και/ή επιτρέπει να λειτουργεί υπό οιανδήποτε ιδιότητα εκτός ως μέλος του συνεταιρισμού Laplace Institute σχολείον και/ή άλλον εκπαιδευτικόν ίδρυμα εντός των εγκαταστάσεων επί της οδού Καρπενησίου 7Β μέχρι τελείας εκδικάσεως της υποθέσεως.
(δ) Διάταγμα του Δικαστηρίου απαγορεύον και/ή εμποδίζον την εναγομένη από του να λειτουργεί και/ή επιτρέπει να λειτουργεί υπό οιανδήποτε ιδιότητα εκτός ως μέλος του συνεταιρισμού Laplace Institute οιονδήποτε σχολείον και/ή ινστιτούτο και/ή άλλο εκπαιδευτικόν ίδρυμα μέχρι τελείας εκδικάσεως της υποθέσεως.
(ε) Τα έξοδα της παρούσης αιτήσεως".
On 27.9.1985 the Court after hearing the counsel for plaintiff-applicant granted interim order as prayed in paragraphs (a) and (b) above making the same returnable on 8.10.85 and ordering security. On that date the application was adjourned for not being served to 22.10.1985 for service, the interim order was made to remain in force and again on 22.10.85 was adjourned by consent to 29.10.85 for mention the interim order to remain in force. On 29.10.85 there is no record what happened. Another application which was filed by the defendant was dealt with on that date, [*record was made In the last mentioned application fixing the same for hearing on 30.11.85.
On the last mentioned date both applications were adjourned by consent and the present one was fixed on 17.1.86 with a direction that the interim order to remain in force. On 17.1.86 the application was adjourned again by consent to 27.2.86 for mention without any direction as to the fate of the interim order.
Again on 27.2.86 the application was adjourned to 18.4.86 again by consent and without any direction as to the interim order.
On 18.4.86 the application was fixed for hearing on 16.5.86 no mention again was made as to the fate of the interim order. The interim order was made on the strength of the provisions of s.9 of Civil Procedure Law, Cap. 6 which reads as follows:
"9(1) Any order which the Court has power to make may, upon proof of urgency or other peculiar circumstances, be made on the application of any party to the action without notice to the other party.
(2) Before making any such order without notice the Court shall require the person applying for it to enter into a recognizance, with or without a surety or sureties as the Court thinks fit, as security for his being answerable in damages to the person against whom the order is sought.
(3) No such order made without notice shall remain in force
for a longer period than is necessary for service of notice of it on all persons affected by it and enabling them to appear before the Court and object to it; and every such order shall at the end of that period cease to be in force, unless the Court, upon hearing the parties or any of them, shall otherwise direct; and every such order shall be dealt with in [*the action as the Court thinks just.
(4) Nothing in this section shall be construed to affect or apply to the powers of the Court to issue writs of execution".
Bearing in mind the provisions of s.9(3) of the Civil Procedure Law, Cap. 6 stated above I believe the Interim order has lapsed and is of no effect as it was not made to remain in force after the 17.1.1986, however, I have decided to treat this application as if the interim order was in force. This application is opposed by defendant-respondent and the opposition is supported by affidavit sworn by the defendant. The opposition was filed on 19.10.1985. The defendant was cross-examined as to the facts stated in her affidavit.
The picture that transpires is as follows: Plaintiff and defendant are husband and wife. On 1.9.1981 they formed a general partnership, called Laplace Institute and thereafter operated a private school or Institute or educational institution under the aforesaid name. Some time in February 1985 the plaintiff left Cyprus taking with him their two daughters Karolina and Melina of 5 years old and 11 months old respectively and taking also the sum of £13,000 belonging to the partnership and £2,000 from the family house.
The business of Laplace Institute was carried on by defendant until the end of the school year i.e. end of May 1985.
Thereafter and on 12.6.1985 the defendant registered in her name a business and or trading name "Private Institute Lamarque College" and on 20.6.85 was Issued by the Minister of Education with a certificate under the Private Schools Law, 1971, s. 8(2) as a private tuition school (college) under the name "Lamarque" which was licenced to operate as a general tuition college. [*
The aforesaid college is now operating in the same premises where Laplace college was operating. The said building admittedly stands registered in the name of the parents of the defendant.
The defendant admitted that Laplace College was operating until end of May 1985 but stated that in view of the absence of her husband and the taking by him of all cash available in the partnership she could not operate the school under the name neither was she willing to carry on the business after such behaviour so she decided to start business on her own. Further the licence given by the owners of the premises for the use by Laplace of the said premises was withdrawn. Laplace college when operating was using a design together with the name Laplace as exh. 1 attached to the application the same design was used by the defendant in advertising her business together with the name Lamarque College etc. This design was published as trade mark in the name of the defendant to be used for books, periodicals, copy books and other writing material. After the publication, however, an objection was filed on behalf of the plaintiff. The defendant In cross- examination admitted using certain material belonging to the partnership.
Considering the case now on its merits I must first examine whether the plaintiff by the affidavit in support of the application misstated or supressed material facts misleading thereby the Court and/or that the plaintiff did not act with the required uberrima fides. In Dalglish v. Jarvie (1850) 20 L.J. Ch. 475 even though a case of a special injunction on an ex parte application Mr. Baron Rolfe said:
"So here, if the party applying for a special injunction abstains from stating facts which the Court thinks are most material to enable it to form its judgment, he disentitles himself to that relief which he asks the Court to grant. I [*516] think, therefore, that the injunction must fall to the ground".
In Pérou (Republic) v. Dreyfus Brothers and Co. (1886) (55 L.T. 802) Mr. Justice Kay stated:
"I have always maintained, and I think It most Important to maintain most strictly, the rule that, in ex-parte applications to this Court, the utmost good faith must be observed. If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the Importance of dealing in good faith with the Court when ex-parte applications are made".
In Rex v. Kensington Income Tax Commissioners (1917) L.J. K.B. 257, Viscount Reading, C.J. at p. 258 said:
"Before considering the facts it is necessary to state that if the affidavit placed before the Court on an ex-parte application contains misleading statements this Court ought, for its own protection, to refuse to proceed with the merits of the case".
Further down Lord Cozens-Hardy, M.R. at p. 262 said:
"That is merely one and perhaps rather a weighty authority in favour of the general proposition which I think has been established, that on an ex-parte application uberrima fides is required, and unless that can be established if there is anything like deception practised on the Court, the Court ought not to go into the merits of the case, but simply say, we will not listen to your application because of what you have done"'.
At pp. 266-267 Scrutton L.J. concurring with the Master of the Rolls said: [*
"And it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex-parte statement he should make a full and fair disclosure of all the material facts - it says facts, now law. He must not misstate the law if he can help it; the Court is supposed to know the law. It knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement. This rule arises in various classes of procedure. One of the commonest cases is an ex-parte injunction obtained either in the Chancery or the King's Bench Division. I find Vice-Chancellor Wigram, in the case of Castelli v. Cook (1849) 18 L.J. Ch. 148; 7 Hare, 89), stating the rule in this way: 'a plaintiff applying ex-parte comes (as it has been expressed) under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when the other party, applies to dissolve the injunction, that any material fact has been suppressed or not properly brought forward, the plaintiff is told that the Court will not decide on the merits, and that as he has broken faith with the Court, the injunction must go'. The same think is said in the case to which the Master of the Rolls has referred, of Dalglish v. Jarvie (20 L.J. Ch. 475)".
The question therefore which I have to determine is whether in the affidavit supporting the ex-parte application on which the interlocutory injunction was founded the deponent has either misstated or suppressed any material fact or whether the affidavit disclosed the whole case fully and fairly to the Court or not. For [*the plaintiff-applicant to be deprived summarily of his rights under the order on this ground alone, without examining the merits, the Court must be satisfied that the misstatement or suppression or misrepresentation in the affidavit must be of the species that would improperly lead the Court to the order which it made. See Brown v. Newall (1837) 40 E.R.Ch. 752.
The application is relied on the affidavit of the brother of the plaintiff-applicant. From this affidavit it is completely omitted that the plaintiff has left taking with him the sum of about £15,000 the property of the partnership to which the defendant is also a partner. This transpires from the affidavit of the defendant which remains uncontradicted.
It is admitted by both sides that the building in which the school is operating is registered in the name of the parents of the defendant even though in the affidavit in support of the application is stated in para. 5: “Εις τας ως άνω κτιριακάς εγκαταστάσεις ο ενάγων είχε προσωπικώς συμφέρον ιδιοκτησίας”. It is pertinent here to state that exh. 3 which has been produced by consent a photocopy of an agreement between the plaintiff and the defendant does not support the contents of para. 5 of the affidavit. The defendant is not the owner of the property but the owners are her parents who are neither parties to the action or the agreement, exhibit 3. Furthermore to my mind the meaning conveyed by the aforesaid paragraph is that the plaintiff is to some share a registered owner or if not that he has a right to be registered as against the registered owners. Nowhere in the affidavit appears that the plaintiff was actively engaged in the running of the Laplace institute, nowhere in the affidavit appears expressly that the design used by the partnership was an unregistered mark, on the contrary It is so framed para 11 of the affidavit to give the [*impression that the design was a mark registered and belonging to the partnership of Laplace Institute. In the affidavit is not disclosed the fact that “Private institute Lamarque College" is a licenced Private School under the provision of the relevant law but is stated that is registered business name.
In the present case the inaccuracies contained in the affidavit in support of the application and the omissions from it of facts which are to the Court's opinion very material and should have been within the deponent's knowledge. In these circumstances the Court following the pronouncements in Dalglish v. Jarvies and Rex v.Kensington Income Tax Commissioner (supra) should discharge the injunction.
I have decided, however, to examine the case on its merits as well. The application is based on s.32 of the Courts of Justice Law 1960 (14/60) which provides:
“S.32(1) Subject to any Rules of Court every Court, in the exercise of its civil jurisdiction, may, by order, grant an injunction (Interlocutory, perpetual or mandatory) or appoint a receiver in all cases in which it appears to the Court just or convenient so to do, notwithstanding that no compensation or other relief is claimed or granted together therewith:
Provided that an interlocutory injunction shall not be granted unless the Court is satisfied that there is a serious question to be tried at the hearing, that there is a probability that the plaintiff is entitled to relief and that unless an Interlocutory injunction is granted it shall be difficult or impossible to do complete justice at a later stage".
An application to succeed under the above referred section three prerequisites must be satisfied. (1) that there is a serious question to be tried at the hearing, (ii) that there is a probability [*that the plaintiff-applicant is entitled to relief and (iii) unless an interlocutory injunction is granted it shall be difficult or Impossible to do complete justice at a later stage.
The above mentioned requirements have been judicially considered in a number of cases by our Supreme Court see (Karydas Taxi Co. Ltd. V. Andreas Komodikis (1975) 1 C.L.R. 321, Nemitsas industries Ltd. v. S. & S. Maritime Lines Ltd. and Others (1976) 1 C.L.R. 302. Constantinides v. Makriyiorghou and Another (1978) 1 C.L.R. 585, Papastratis v. Petrides (1979) 1 C.L.R. 231, and the more recent Odysseas v. Pieris Estates and Others (1982) 1 C.L.R. 557.
On the above authorities and on the facts found and stated above I shall state that it transpires that the two first requirements of the section are satisfied. However the third one should also be satisfied. From the material before me I cannot see what irreparable damage will be suffered by the applicant if the interim Injunction is refused.
He has left Cyprus and the partnership ceased to function for over a year now to my mind everything crystalised at the time when he left Cyprus and left no forwarding address to his general partner. There is nothing to indicate that damages will not be an adequate remedy. In Karydas Taxi Ltd. (supra) Triantafyllides, P. said after referring to American Cyanamid Co. v. Ethicon ltd. (1975) 1 All E.R. 504 a House of Lords case at p. 329:
“(3) As to that the Court should first consider whether, if the plaintiff succeeds he would be adequately compensated by damages for the loss sustained between the application and the trial, in which case no interlocutory injunction should normally be granted".
The only matter which remains to be examined is the use by the defendant of the design which was attached to Laplace institute [*and used in connection with the said institute, while the said institute was in operation. Having given the matter my utmost consideration I find myself unable to permit the use of the said design In connection with the name of the new private school or institute or tuition centre which the defendant now operates.
In the result the interim orders granted are discharged forthwith and the following interim order is made. The defendant is restrained to use the design which appears before the word in capital thick letters Laplace in exh. 1 of the application in connection with the institute she now operates or any other educational institution until final determination of the action. The security already ordered and given will remain in force.
In view of the result there would be no order as to costs.
Order as above. No order as to costs