POTATO MARKETING BOARD ν. THETIS SHIPPING
(1988)1 CLR 397 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1988)1 CLR 397 1988 June 30 (STYLIANIDES, J.) THE CYPRUS POTATO MARKETING BOARD, Plaintiffs, v.
- THETIS SHIPPING CO. PTE. LTD.,
- THE SHIP M.S. BEITEIGEUZE, Defendants. (Admiralty Action No. 138/87). Admiralty - Writ of summons - Renewal of - Principles applicable - The old English Rules, Order 8, Rule 1 - Whether, if the application for renewal is filed after the expiration of twelve months from the issue of the writ, the writ can still be renewed by relying on Order 64 Rule 7 of the same Rules, governing the general power of the Court to enlarge or abridge the time - Question determined in the affirmative. Admiralty - The Admiralty Jurisdiction Order, 1893, Rule 237 - The English Rules made applicable thereunder are those in force on 15.8.60, i.e. the day preceding Independence Day: The writ was issued on 4th June 1987, and is directed against two defendants. The action against defendants 1 is in personam and against defendant 2 is in rem. By means of this ex parte application which was filed after expiration of twelve months as from the issue of the said writ - which has not been served on the defendants - the applicants - plaintiffs seek the renewal of the writ for a period of six months as from 3.6.
- Rule 237 of the Admiralty Jurisdiction Order reads as follows: >. Held, granting the application:
(1)The English Rules that are applicable in virtue of the said Rule 237 are those in force in England on the day preceding the Independence Day of Cyprus (Asimenos v. Paraskeva
(1982)1 C.L.R. 145). 2) As our Rules are silent in respect of the mailer in issue, such matter is governed by the said English Rules and, in particular, Order 8, Rule 1. 3) It is clear that .any application thereunder has to be made before expiration of the period of 12 months as from the issue of the writ. This is not what happened in this case. 4) The question is whether this application can be saved by relying on Order 64 Rule 7 of the same English Rules. The authorities show that it is settled that by the application of the two rules the Court has power to renew a writ even if the application is made after the expiration of the twelve months. 5) The applicant has to satisfy the Court that there was sufficient reason or good cause to excuse the delay in service. It is only in exceptional cases that the effective start of litigation should be postponed, especially when the end of the twelve months period extends beyond the limitation period; and, above all, when the application for renewal was made after the expiration of the said period of 12 months. Reasonable efforts to effect service or an agreement to defer service or delay, induced or contributed to, by the defendant are good causes. 6) On the facts of this case, the renewal is justified. Application granted. No order as to costs. Cases referred to: Asimenos v. Paraskeva
(1982)1 C.L.R. 145; Shelton v. Brown Bayleys Steelwords [1953] 2 All E.R. 894; E. Ltd. v. C and Another [1959] 2 All ER. 468; Holman v. George Elliot and Co. Ltd [1944] 1 All E.R. 639; Battersby and Others v. Anglo-American Oil Co. Ltd and Others [1944] 2 All ER. 387; > [1979] 1 Q.B. 80; > [1980] 1 LI.L.R.
- Application Ex parte application for the renewal of the writ of summons for a period of six months as from 3rd June,
- I. Christodoulou (Mrs) for C. Indianos, for applicants - plaintiffs. Cur. adv. vult. STYLIANIDES J. read the following decision. By this ex-parte application applicants-plaintiffs apply for the renewal of the writ of summons for a period of six months as from 3rd June,
- The writ was issued on 4th June, 1987, and is directed against two defendants. The action against defendants 1 is in personam and against defendant 2 is in rem. The application is based on Rule 237 of the Cyprus Admiralty Jurisdiction Order 1893 and Order 8 Rule 1 of the English Rules (the old Rules of the Supreme Court). Rule 237 reads as follows: >. In Asimenos v. Paraskeva
(1982)1 C.L.R. 145 it was held by the Full Bench of this Court that since after the Independence of Cyprus and as contemplated by the Constitution, the Courts of Justice Law, 1960 (Law 14/60) was enacted by virtue of section 19(a) of which the Supreme Court shall have jurisdiction as the Court of Admiralty vested with and exercising the same powers and jurisdiction as those vested in or exercised by the High Court of Justice in England in its Admiralty jurisdiction on the day immediately preceding Independence Day; that since the law to be applied in the exercise of such jurisdiction is, by virtue of section 29
(2)(a) of the Courts of Justice Law, the law applied by the High Court of Justice in England in the exercise of its Admiralty Jurisdiction, as in force on the day preceding the Independence Day, subject to any amendments which might be effected by any law of Cyprus; and that since Rules of Court are a species of legislation and, therefore, the provisions of section 29
(2)(a) extend to them as well, the Rules of the Supreme Court which were in force and applied in the Admiralty Division of the High Court of Justice of England on the day preceding the Independence Day are the ones applicable by this Court in the exercise of its admiralty jurisdiction to the extent contemplated by rule 237 of the Cyprus Admiralty Rules of
- The Cyprus Admiralty Rules of 1893 are silent on the issues raised in this application. The material part of Order 8 Rule 1 of the Rules of the Supreme Court obtaining in England on 15th August, 1960, provides: > It is clear that any application under Order 8 Rule 1 has to be made before the expiration of the relevant period, and in this case no such application was made. Accordingly reliance has to be placed on R.S.C. Order 64 Rule 7, which is a general rule, which provides: > At a time in the development of the English Law the opinion prevailed that after the expiration of twelve months the writ was a nullity. In Sheldon v. Brown Bayleys Steelwords [1953] 2 All E.R. 894 it was said at p. 896: > In E. Ltd. v. C. and Another [1959] 2 All E.R. 468 at p. 469 it was said: > In Holman v. George Elliot Co. Ltd. [1944] 1 All E.R. 639 Mackinnon, L.J. said at p. 640: >. In Battersby and Others v. Anglo-American Oil Co. Ltd. and Others [1944] 2 All E.R. 387 it was said by Lord Goddard at p. 391: > It is settled that by the application of the two rules (Order 8 Rule 1 and Order 64 Rule.7) the Court has power to renew a writ even if the application is made after the expiration of the twelve months. The plaintiff-applicant has to satisfy the Court that there was sufficient reason or good cause to excuse the delay in service. The rules of Court provide twelve months - a not ungenerous time, it might be thought - within which the plaintiff can hold up proceedings by not serving his writ. Surely, beyond that period the same public policy requires that the Court should ensure that it is only in really exceptional cases that the effective start of litigation should be yet further delayed, especially where the twelve months allowed for service extends beyond the end of the limitation period; and, above all, where the application is not made until after the period of twelve months, and with it the validity of the writ, has expired. If the Court is satisfied that reasonable efforts have been made to serve the defendant with the writ, the extension of which is sought by the application, this is good cause. Exceptional cases, justifying a departure from the general rule, might well arise where there has been an agreement between the parties, express or implied, to defer service of the writ; or where the delay in the application to extend the validity of the writ has been induced, or contributed to, by the words or conduct of the defendant or his representative. In >[1979] 1 Q.B. 80 Brandon J. said at p. 103: > See also > [1980] 1 LI.L.R.
- In the present case the application is supported by affidavit in which it is deposed that in spite of repeated efforts the writ of summons has not yet been served on the defendants. Defendant 2 is a ship. The service is effected within the jurisdiction. A ship is sailing from one port to another and it is only when it is within one of our harbours or within the jurisdiction that service can be effected. The plaintiffs are under a duty to pursue their action diligently. If, due to their inaction, the validity of a writ expires, it is not necessarily unjust that the plaintiff should lose his right to proceed. Having regard to the facts as set down in the affidavit and the circumstances of this particular case, I am satisfied that there are good reasons for exercising my discretion in favour of granting the application. The writ is hereby renewed for six months as from 4th June,
- Let there be no order as to costs. Application granted. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο