clr/1967/1967_1_1.pdf

(1)and 86—Cfr. the English Rules oftheSupreme Court, Order 8,rule 1(before their recent revision}— Applicationfor renewal—Filed after the expiry of twelve monthsfront the filing of the petition — Reasonable efforts made to serve in time the petition on respondent—No question of limitation arises in the present case—Discretion of the Court— Good reasons for renewing the petition—Order accordingly. Practice—Renewal of a matrimonial petition—See above. This is an application for the renewal of a matrimonial petition (for a decree declaring the marriage of the petitioner to the respondent null and void), and which petition was filed in this Court on the 1st October, 1965. Service of the petition was.effected in Dublin, Ireland, on the 14th October, 1966, viz. 14 days aftertheexpiry oftwelvemonths.from the filing. In support of. the application to renew the petition an affidavit -was filed by the clerk of the petitioner's advocate. The Court, after reviewing the facts and in granting the application : . } 1 1) • V. JOSEPH CAREY 1967 J a n . 30 N I K I JOSEPH CAREY (OTHERWISE EVANGELOU) (No. 1) Held,(I) it should be stated that rule 98 of our Matrimonial Causes Rules is taken substantially from the English Rules of the Supreme Court, Order 8, rule 1 (before their recent revision), which refers to writs of summons, and it would appear that there is no similar provision in the English Matrimonial Causes Rules or practice. No question of limitation arises in this case. V. JOSEPH CAREY

(2)The petitioner's application is based on certain exceptional facts and circumstances (set out in the judgment). On these facts and the other material before me I am satisfied that reasonable efforts have been made to serve the respondent and that there are good reasons for renewing the petition.

(3)I accordingly order that the petition be renewed for six months from today, under the provisions of rule 98

(1). Order in terms. Cases referred to : Re Jones, Eyre v. Cox

(1877)46 L.J. Ch. 316; Hewett v. Barr [1891] 1Q.B. 98; Doyle v. Kaufman, 3 Q.B.D.

1. Application. Application for the renewal of a Matrimonial Petition. L. Clerides, for the Petitioner. Respondent not appearing. The following Judgment was delivered by : JOSEPHIDES J. : This is an application for the renewal of a matrimonial petition which was filed in this Court on the 1st October,
2. Service of the petition was effected in Dublin, Ireland, on the 14th October, 1966, that is to say, 14 days efter the expiry of twelve months from the filing of the petition. The petitioner in her petition is praying the Court to decree that her marriage to the respondent be declared null and void, on the ground that the respondent was lawfully married to another woman on the day of the marriage of the parties, and his previous marriage had not been dissolved. In support of the application to renew the petition an affidavit was filed by the clerk of the petitioner's advocate, who is in charge of the file of the case. 2 It is therein stated that, after the filing of the petition, various attempts were made to trace the respondent for the purpose of service.When such address was traced in Ireland instructions were given for the service of the respondent through solicitors. On the 17th October, 1966, the solicitors in Dublin wrote a letter to the petitioner's advocate informing him that personal service was effected on the respondent on the 14th October,
3. The affidavit of service was received in Cyprus on the 14th November, 1966, and it was filed in Court on the 19th November. On the 29th November, 1966,an application to fix a date of trial of the petition was filed in the registry. The present application to renew the petition for six months was filed on the 9th December, 1966, and it is based on rules 98

(1)and 86 of theMatrimonial Causes Rules. It is further stated in the affidavit that by oversight the application to renew the petition was not filed prior to the expiry of the twelve months, that is to say, prior to the 1st October, 1966." Finally the affidavit states in paragraphs 11 and 12 that as respondent is a deserter from the British Army he may have moved to another address and it may be extremely difficult, if not impossible, to effect service of the petition afresh, and that great hardship, inconvenience and prejudice will result to the petitioner if the renewal of the petition is not granted. Mr. Clerides in addressing me in support of the application for the renewal relied mainly on two cases : Re Jones. Eyre v. Cox

(1877)46 L.J. Ch. 316, in which it was held that in specialcircumstancesthere ispowertorenewthe writof summons after the expiry of twelve months; and on Hewett v. Barr[1891] 1 Q.B. p.

1. It was held in that case that the rule of practice is not to extend the time for renewing a writ of summons after the expiration of the twelve months from the date of the writ, where the plaintiff's claim would, in the absence of such renewal, be barred by the Statute of Limitations. That case followed Doyle v. Kaufman. 3 Q.B.D.
2. Kay, L.J., one of the three Judges who delivered judgment in the Hewett case, interalia said.: !'l am disposed to think that Order LX1V, r.7, might beconstrued to give the Court power to do so under exceptional circumstances. 1 can imagine a case where.it being proved that every Kind of effort had been made to serve the writ, and by accident or mistake no application to extend the time having been made within the year, it would be very hard that the plaintiff should lose all remedy because the period of limitation had in the meantime expired". 3 1967 Jan.
3. N I K I JOSEPH CAREY (OTHERWISE EVANGELOU) (No. I) V. JOSEPH CAREY 1967 Jan.
4. NIKI JOSEPH CAREY (OTHERWISE EVANGELOU) (No. I) It should I think be stated that rule 98 of our Matrimonial Causes Rules is taken substantially from the English Rules of the Supreme Court, Order 8, rule 1, (before their recent revision), which refers to writs ofsummons,and it would appear that there is no similar provision in the English Matrimonial Causes Rules or practice. No question of limitation of action arises in this case. V. JOSEPH CAREY The petitioner's application is exceptional facts : based on the following (a) the present proceeding is a petition for nullity, based ontheallegationthattherespondentwaslawfully married to another woman on the date of his marriage to the petitioner; (b) although the petition was served personally on the respondent 14 days after the expiry of the twelve months, viz. on the 14th October, 1966, nevertheless the respondent has not up to the present day (30th January,1967) entered an appearance or taken any step to oppose the petition; and (c) the exceptional circumstances stated in paragraphs 11 and 12 of the affidavit which have been referred to earlier in this Judgment. On these facts and the other material before rne I am satisfied that reasonable efforts have been made to serve the respondent and that there are good reasons for renewing the petition. I accordingly order that the petition be renewed for six months from today, under the provisions of rule 98

(1). On the question whether the service of the petition effected on the 14th October, 1966, should be deemed to be good service in the circumstances of this case, I would require counsel to address me further, citing authorities on the matter, on the n t h February, 1967, at 10 a.m. Orderin terms. 4