Cyprus: Court Considers Application For Third-Party Intervention In Admiralty Action

Last Updated: 8 July 2013
Article by Vasileios Psyrras

Facts Applicable rules Decision Comment

A recent judgment1 arising from one of a series of claims being dealt with by the Admiralty Court against the ship AVANTIS II gives further insight into the principles that the court will apply when considering applications for intervention by a third party in admiralty actions.

Facts

The applicant, Delaford Trading Limited, was engaged in a separate action (20/12) in the Admiralty Court against the same ship for the provision of bunkers and lubricants. On September 6 2012 it filed an application seeking leave of the court to be added as a defendant (or alternatively to be allowed to intervene) in an action (8/2012) that had been instituted against the ship by the Cooperative Bank of Evoias, in order to dispute the bank's claim against the ship, deriving from loans that the bank claimed to have provided to the ship.

This application was based on Rules 30, 35, 203 to 212 and 237 of the Admiralty Jurisdiction Order 1893. The applicant claimed that its intervention was justified because the claim in its action (20/12) was an in rem claim, and therefore it had an interest in the asset that constituted the substance of the bank's claim (ie, the proceeds from the sale of the ship). The bank filed an objection to the application.

Applicable rules

Rule 30 of the order reads as follows:

"The Court or Judge may at any stage of the proceedings and either with or without an application for that purpose being made by any party or person and upon such terms as shall seem just, order that the name or names of any party or parties be struck out or that the names of any person or persons who are interested in the action or who ought to have been joined either as Plaintiffs or Defendants or whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the action be added."

Rule 35 of the order states:

"The parties named in the writ of summons, and every person interested in the property sought to be affected by the action who desires to dispute the Plaintiff's claim shall appear before the Court or Judge either personally or by advocate at the time named in that behalf in the writ of summons."

Having recently considered the same matter in Kalia,2 the Admiralty Court observed that in order for a party to be added as a defendant or to be allowed to intervene in an admiralty action, the applicant must fulfil the three conditions set out in Rule 30:

  • The party concerned must have an interest;
  • It should have been added as a party since the action was first filed by the claimant; and
  • Its existence as a party should be necessary in order to finally and completely dispose of the matter.

Decision

The court noted that the matter of granting leave to an interested party to intervene is governed by Rules 30 and 35.

Following the reasoning adopted in Kalia, Justice Erotokritou first examined whether the applicant satisfied the first condition (ie, having an interest). In order to persuade the court that an interest exists, the applicant must first prove that the interest is affected directly, either by operation of law or procedurally.3 A remote or indirect effect will not suffice.

Having read the applicant's affidavit, the court concluded that the allegations were not sufficiently clear or precise to establish a prima facie interest. To prove an interest (as in any other allegation submitted to the court), clear evidence must be produced in the form of an affidavit that establishes such interest.4

Based on the evidence produced by the applicant, the court found that there was insufficient proof to support or establish the existence of an interest. The application was therefore rejected.

Referring to the other two conditions set out in Rule 30, the court noted that:

  • the second condition is directly relevant to the facts of each case and consequently can be considered only on a case-by-case basis; and
  • with regard to the third condition, Rule 30 links the necessity of the interested party to be added or to be allowed to intervene with the necessity for the full and final trial of the matters in dispute. The court will not allow the addition of, or intervention by, a new party where the applicant raises a new cause of action or where the addition of a new party is unnecessary for the proper resolution of the dispute, and indeed might complicate matters.

Comment

In an application for intervention under Rule 30, it is of utmost importance to identify the applicant's interest and provide clear evidence of its existence.

Simply identifying the legal basis of the application will allow a case to proceed as far as the courtroom, but no farther. In order to succeed, the application must be supported by evidence that will persuade the court that there is substance to the application, creating a prima facie interest and therefore a reason for it to be heard.

Furthermore, the court will not consider allegations that are either too general or too vague. Simply denying the existence of a claim in the proceedings or the validity or existence of the evidence produced in support of such a claim is not enough to persuade the court to consider such an application. Equally, the loss of priority in the distribution of proceeds from the sale of a vessel is not a valid reason to intervene. Referring to this particular matter, the judge stated that:

"The fact that in case where the Respondents succeed in their claim against the Ship, then the Applicants, based on the priority of the Respondents will not be able to satisfy their claim, is not enough on its own to render their presence in the proceedings necessary."

Under the principle of intervention, the intervener will act to defend its own interests, but this must always occur within the context of the existing action and such defence must be relevant to the action. Where the defendant has no such defence available, the intervener cannot raise that defence either.5

Footnotes

1 Cooperative Bank of Evoias v The Ship 'AVANTIS II' (IMO 7432305) under the Greek flag, Admiralty Action 8/2012; application dated September 6 2012, interim judgment dated February 25 2013.

2 The Royal Bank of Scotland NV v The Ship 'Kalia', Admiralty Action 14/2011, interim judgment dated July 20 2012.

3 The court referred to the English case of Gunter v Circuit (1968) 1 All ER 328.

4 See Fayza Shipping Co Ltd v Ship M/V 'Haj Anies' ex 'Anne' (1994) 1 CLR 188, at 190. However, leave is not required where such interest is undisputed, such as in the case of a judgment creditor, in which case the right to intervene is exercised ipso jure (ie, by the law itself).

5 Anatoly v The Ship 'Ekaterinburg' (2000) 1(A) ΑΑΔ 516, where the court adopted the principle laid down in The Byzantion [1992] LT 756.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Vasileios Psyrras
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.