(1979)1979 November 15 [MALACHTOS, J.] NBSHO-IWAI CX>.LTD., Plaintiffs, v. SAINT NICOLAS SHIPPING CO. LTD., Defendants, (Admiralty ActionNo. 24/74). Admiralty—Practice—Writ of summons—Expiration—Renewal— Principles applicable—Legal or physicalimpassibility to effect service of no significance—-English RS.C. Order 6 rules 8
(1)and(Z)applicable by virtue of rule237of theCyprus Admiralty Jurisdiction Order, 1893—Non-service of writ of summons on 5 defendant company, duringperiodof validity, because it hadbeen struckofffromtheRegisterof Companies—Orderfor renewalof writ—Mistakein the orderby renewing writ not asfrom day followingits expiration but asfrom a subsequent day—Mistake doesnot render orderfor renewal a nullity—A mereirregularity 10 which canbe remediedby any otherorder—Rule 1
(1)of Order 2 of the new R.S.C. andruleIof theoldOrder70—Distinction between nullity and irregularity—Discretion of the Courtin grantingorderfor renewal—Rightly exercised inthecircumstancesof thiscase. IS On March 28, 1974 the plaintiffs brought an action against thedefendant companyclaimingdamageforbreachoftwobills of lading. Service wasnot effected onthedefendant company, by the date on which the action was adjourned for service, because the company had been struck off from the Register, 20 under section 327 of theCompanies Law, Cap. 113,for failure to present yearly returns; and on April 17, 1975, the District Court of Famagusta, sitting at Larnaca, made an order, under section 327
(6)of Cap. 113,restoringthecompanyto theregister together with a direction that the period during which the 25 defendant company had been struck off from the Register of Companiesshouldnotcount foranyperiod of limitation. The 58? 1 CXJL NfesnotaiCo.v.StNitnhsatpohig writof summonsexpired on March27, 1975 and onNovember 10, 1975, plaintiffs applied for an order extending its validity. The Court considered the application on the same day and ordered that "the validity of thewrit of summons beextended for aperiod of 12monthsasfrom today". Serviceof the writ was effected on January 28, 1976. Defendants applied to have the above order setasideonthe grounds that: (a) Under rules 8
(1)and
(2)*of Order 6 of the English R.S.C., which are applicable by virtue of rule 237of the Cyprus Admiralty Jurisdiction Order, 1893, the writof summonshavingexpiredonMarch27,1975had to be renewed as from March 28, 1975and not as from November 10, 1975 when theOrderforextension was granted by the Court; (b) The Court wrongly exerciseditsdiscretionin granting the saidOrderastherewasnosufficient orgoodreason for doing so. Counsel for the plaintiffs contended that the EnglishRules were not applicable and tha^4he time from March 23, 1974, whenthewritwasissuedtiflApril 17,1975, whenthedefendant company was. restored,did notranasitwaslegally impossible to effect service became the «fefrrafant company by its own conduct caused its striking off from theregister. HehL (!) that an admiralty actionis generally consideredas anyotheractionbrought beforeanyotherCourtexercisingcivil Jurisdictionandcannotbesaidthatthe intentionof thelegislator was to exempt admiralty actionsas regards the duration and renewal of the writ; that, on the contrary, the object of role Etnfes 8
(1)and
(2)rim as follows: **S
(1)For tbe purpose of « n i c e , a writ (other than a concurrent writ) is valid in the first irre*?""* for twelve months ^fgf""irrg with the date of its issue and a concurrent writ is valid in the first F"**3"*»far the period of validity of the original writ which is unexpired at the date of issue of^ the concurrent writ.
(2)Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period* not exceeding twelve months at any one time, >»a'"ni»g with the day next following that on which it wonM otherwise expire, as may be specified m tbe order, if an anpneanon for ΤΤΗΤ?""1* is made to the Court before that day or such later day (if any) as the Court may allow". i583 Nissho-fwai Co. τ. St. Nicolas Shipping
(1979)237 of the Cyprus Admiralty Jurisdiction Order, 1893 was to cover cases like the present one; that, therefore, the Rules of the Supreme Court of England are applicable; and that,accord ingly, the present application will be considered in the light of the provisions of Order6, rule 8
(1)and
(2)of the English R.S.C. - 5
(2)That from the wording of the said Order 6, rule 8
(1), it is clear that for the purpose of service a writ is valid for twelve months and this provision is absolute and does not accept any qualification; that whether a writ during the said period is legally or physically impossible to be served is of no significance. 10
(3)That though a mistake has been made in the making of the order for renewal of the writ for twelve months as from 10.11.1975 and not as from 28.3.1975—the day following its expiration-contrary to the provisions of the said rule 8
(2), non compliancewith this ruleshould not of itselfrender any proceed- 15 ings void, unless the Court should so direct, but they^might be set aside wholly or in partas irregular or amendedonsuchterms as the Court might think fit (see new Order 2, rule 1
(1)of the English R.S.C. and old Order 70 rule 1).
(4)On the questionwhether the mistake in the case in hand 20 rendered the order for renewal of the writ a nullity or whether it was a mere irregularity which could be remedied by any other order: Thatno doubt this Courtin considering theapplication for renewal of the writ took into account the contents of the affidavit in support thereof and decided to extend the validity 25 of the writ for twelve months; that taking into consideration the relevant facts and in particular the fact that service of the writwas effected on28.1.1976, withintheperiodoftwelvemonths after its expiration, themistake is considered as a mere irregula rity which can be rectified without injustice; and that, 30 accordingly, an order will be made for the extension of the validity of the writ for twelve months as from 28.3.1975.
(5)That the extension of the validity of the writ of summons is within the discretion of the Court (see the new Order 6, rule 8
(2), the old Order 8 rule 1of the English R.S.C. and the case- 35 law thereon teethe effect that the words "or for other good reasons" in the former Order 8rule 1were surplusage, and their removal has not increased the permissible scope of the discretion of the Court to extend the validity of a writ nor impaired the 584 1 C.L.R. 5 10 15 Nfasho-Iwai Co. τ. S t Nicolas Shipping authority of the earlier cases); that taking into consideration: (
- i)that the defendant company could not be served with the writ of summons from its issue up to 17.4.75, when the order for restoration to the Register of Companies was made by the District Court,and this was not due to any fault on the part of the plaintiff company, but on the contrary it was due to the non filing of the annual returns,by the defendant; (
- ii)that the plaintiff company took all reasonable' steps to restore the defendant company to the Register of Companies;(iii) that due to theTurkish invasion and the occupation of Famagusta town by the Turkish Army, no service could be effected as the Registered office, of the defendant company was in Famagusta town, and (
- rv)that the claim of the plaintiff company could not be defeated by the Statute of Limitations, this Court is of theviewthat its discretion was rightly exercised in granting the order for the extension of the validity of the writ; and that, accordingly, theapplication to set it aside must be dismissed. Application dismissed. 20 25 Cases referred to: Blacker v. Blacker [I960] P. 146; In re Pruchard, deceased, Pritchardw. Deacon andOthers [1963] Ch. 502; Harkness v. BelTs Asbestosand Engineering Ltd. [1967] 2 Q.B. 729; Heaven v. Road and Rail Waggons Ltd. [1965] 2 All E.R. 409 at p. 414. Application. Application for an order setting aside the order, dated 10.11.1975, extending the validity of the writ of summons begjn30 ning this action, theservice of the said writ or of a notice thereof and of subsequent proceedings. E. Montanios, for the applicants-defendants. CAr. Demetriades, for the respondents-plaintiffs. Cur. adv. vult. 35 MALACHTOS J. read the following judgment. The applicants defendants in this action, a company formed and incorporated in Cyprus with limited liability applied, as stated in their application, for:A. An order that the order dated ΪΟ/Π/1975 to extend the 585 MatalftB J. PTwifci!••!C·.v.8LNtata SfcfcptBs cms? validity ofthewritofsummonsbegnmnig thbaction,theservice ofthesaidwritorofanoticethereofandofsubsequentproceed ings herein, be setaside on the grounds that:I. The Court erred in law in mat the said order was to extend the validity of the said writ of summons from 5 10/11/1975 and not from 28/3/1975, which is the day next following that on which it had expired ami/or Ζ The Court wrongly exercisedits discretion in granting the said orderastherewasnosufficient orgood reason for doing so. 10 B. An order that the plaintiffs do pay to the defendants their costs of this action and of and occasioned by this application. The application is based on rules 207, 208, 212and 237 of the Cyprus Admiralty Jurisdiction Order 1893, the Rules of 15 the Supreme Court of England Order 6, rule 8and Order12 rule8,theinherentpowersandpracticeoftheCourtand section 327
(6)of the Companies Law, Cap.
- The relevant facts, asappearing in thefileof theCourtand in the affidavits in support of the application and opposition, 20 are the following: On the 28thday of March, 1974, the plaintins, aJapanese Company, instituted inthisCourtin itsAdmiralty Jurisdiction anactiondaimmgagainstthedefendants thesumofC£630,633 damagesasownersof tenthousandmetrictonsofsugarand/or 25 indorseesand/orconsigneesoftwobills oflading dated23/2/73 for thecarriageof the said cargoon the ship " MARINER", which was totallylostand/or damaged by reasonof breach of the two buls of lading and/or negligence on the part of the defendants, their servantsoragentsand/or otherwise, 30 On the 28th June, 1974, the date on which the actionwas adjourned for service,counselappearing for theplaintiffs stated that service could not be effected as the defendant company wasstruck offfromtheRegisterby theRegistrarofCornpanies under the powers vested in htm under section 327 of the 35 Companies Law, Cap.
- The reason that the Registrar of Companiestooktheaboveactionisthattherewasafailure on behalf of thecornpany topresent theiryearly returns. 586 1 CXJL NhsooJirai Co. τ. St. Nkobs Shipping ' Mabcfatas J. Counsel for the plaintiffs also informed the Court that an application had been filed in the District Court of Famagusta where the registered office of the company was situated for its restorationwith aviewtoeffecting service. Theactionthenwas 5 adjourned to the27th September, 1974, for service pending the said application. The hearing of the application for restoration was fixed for 10/9/74 but by reason of the Turkish invasion and the occupation of Famagusta town by Turkish troops, the hearing 10 never took place. On 2673/75the plaintiffs filed by virtue of section 327
(6)of theCompanies Law, Cap. 113,a new application intheDistrict Court of Famagusta sitting at Larnaca for the name of the defendantcompany to berestored totheRegister ofCompanies. 15 This section reads as follows: 20 25 30 "
(6)If a company or any member or creditor thereof feels aggrieved by the company having been struck off the register, theCourton an application madeby thecompany or member or creditor before the expiration of twenty years from the publication in the Gazette of the notice aforesaid may, if satisfied thatthecompanywas atthe time of the striking off carrying on business or in operation, or otherwise thatit isjust that thecompany be restored tothe register, order the name of the company to be restored to the register, and upon an office copy of the order being delivered to the registrar for registration the company shall be deemed to have continued in existence as if its namehadnotbeen struck off; and theCourtmay by order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off". The restoration order which was given on the 17th April, 1975, and was amended by a subsequent order dated 8/10/75, 35 contains a direction that theperiod during which the defendant company had been struck off from the Register of Companies should not count for any period of limitation. In the meantime the writ of summons had expired. On the 10th November, 1975, an application was filed with 587 Matefatos J. Nfesbo-Iwai Co. v.,St Nicolas Shipping
(1979)this Court on behalf ofthe plaintiff company for extending the validity of thewrit of summonsand for leave to serveit out of thejurisdiction. It is pertinent here tostate verbatim the remedies claimed in the said application which are the following: 5 The above applicants apply for an order of the Court:
- Extending the validity of the writ of summons for a period of twelve months as from the date of the order.
- Giving leave to serve the writ and/or notice of the writ ofsummonsonthedefendants intheaboveaction outside 10 Cyprus.
- Giving leave for substituted service of the writ of summons on the above named defendants through the post by double registered letter, or in any other way the Court may direct. 15 In the affidavit in support of thisapplication it is stated that themainreasonthat noapplication for renewalwasmade before the expiration of the writ of summons was that at the time of expiration the defendant company had not yet been restored and theapplication wouldhavebeen ineffect an application for 20 renewal of a writ to be served on a company which at the time did not exist. That the claim of tbe plaintiffs is not statute barred as thetimewhich the defendant company wasstruck off from the Register of Companies is'not counted for purposes of hmitation of time and that until the name of the defendant 25 company was struck off its registered office was situated at 28 Marias Siaglitikis Street, at Famagusta, which is now under Turkish occupation. Asitappearsfrom thefileofthecompany kept with the Registrar of Companies, the Registered office of the company was still at theabove address and, in the circum- 30 stances, no service could be effected. From a search of thefileof thecompanyitalsoappears that the above company has four directors, two of whom, namely, Ioannis Papadopoullos and Adamos HjiPateras could be found at 5 Boumboulinas Street, Pireus, Greece. This Court on the samedayconsidered theaboveapplication oftheplaintiffs andmadethefollowing orderasper application, which reads as follows: "Court;
(1)It is hereby ordered that the validity of 58$, 35. 1 OLIJLI NiS3Do>IwaI C&τ.SC-'NlcebsSMpiiiiig Malartitos JT. the writ of summons be extended for a period of 12months as from today. 5 10 15
(2)Leave to serve the writ of summons and/or notice of the writ of summons on the defendants in the above action outside Cyprus is hereby granted.
(3)Service of the writ and/or notice of the writ of summons on the abovenamed defendants should be considered as good service if copies thereof are transmitted through the,post by double registered letter on Ioannis Papadopoullos and Adamos HjiPateras both of 5 Boumboulinas Street, Pireus, Greece, directors of the defendant. Appearance to be entered within one month as from the date of such service. It is further directed that if the defendants do not enter an appearance within the appointed time, notice of any application in the action may be given by posting a copy of the notice on the Court notice board." Eventually, service of the writ as per order of the Court was effected on 28/1/76. 20 On the 29th March, 1976, a conditional appearance was entered in theaction on behalf of the defendants as they intended to apply to set aside the order for renewal of the writ and service thereof. Hence, the present application. 25 Counsel for applicants in arguing the present application submitted that since there is no provision in the Cyprus Admiralty Jurisdiction Order, 1893, limiting the duration and renewal of a writ of summons, then according to rule 237, which provides that in all cases not provided by these Rules, 30 the practice of the Admiralty Division of the High Court of Justice of England, so far as the same shall appear to be applicable, shall be followed, we must turn to the Supreme Court • Rules and the relevant provision is Order 6, rule 8
(1)and
(2). This rule is as follows: 35 " 8. (I) For thepurpose of service, a writ (other thanaconcur rent writ) is valid in the first instance for twelve months beginning with the date of its issue and a concurrent writ 589 Malachto» J. Ntabo-Iwai Co. τ. S t Nicola· Slapping
(1979)is valid in thefirstinstance for theperiod of validity of the original writ which is unexpired at the date of issue of the concurrent writ
(2)Where a writ has not been served on a defendant, the Court may by order extend thevalidity of thewrit from 5 time to time for such period, not exceeding twelve months at any one time, beginning with the day next following that onwhich itwould otherwise expire,-as may be specified in the order, if an application for extension is made to the Courtbefore thatday or suchlater day (ifany)as theCourt 10 may allow". So,according totheabove Rules,ascounselfor theapplicants submitted, the writ of summons in the present case expired on 27/3/75 and had to be renewed as from 28/3/75 and notas from 10/11/75 when theOrderfor extension was granted by theCourt. 15 Thefact thattheapplication for theextension of thevalidity of the writ was made after its expiration is not fatal according to the Rules but as the order of the Courtwas not made as from the next day following its expiration but it was granted as per application as from 10/11/75, this order was wrong in law and, 20 therefore, null and void. In reality thevalidity of the writ was extended for twenty months and not for twelve. Counsel for applicants also argued that the discretion of the Court in granting the said order was wrongly exercised as the plaintiffs in their affidavit in support of the application did not 25 show good and valid reasons justifying the Court to make the order. On the other hand, counsel for the respondents submitted that the Rules of Practice of the High Court of England in its Admiralty Jurisdiction donot apply in thepresent case since we 30 have our own rules which deal with theissueand service of the writ of summons. They are rules 15 to 28 of the Cyprus Admiralty Jurisdiction Order, 1893, and no provision existsin in these rules limiting the time within which service should be effected. I must say from the outset that I entirely disagree with this submission of counsel for the respondents. An admiralty action is generally considered as any otheractionbrought before any other Court exercising civiljurisdiction and cannot be said 590 35 1 CXJL NteaoJwa] Ckvv.St.Nkatn Sfctjffc« - MaliiUm X that the-intention of the legislator was to exempt admiralty actions as regardsthe duration and renewal of thewrit;on the contrary,theobjectofrule237oftheCyprusAdmiraltyJurisdiction Order 1893wastocovercaseslikethepresentone. A writ 5 of summons issued in the Admiralty Courtcanriot remainvalid without being served-for an indefinite period of time. HavingdecidedthattheRulesoftheSupreme CourtofEngland are applicable, and taking into consideration the way this application was arguedby counsel on both sides, as wefl as the 10 fact'that both the application for renewal of the writ and the presentapplication werebasedon Order6 rule8 ofthe Rules of theSupremeCourtof England,thepresentapplicationshouldbe considered in the light of the provisions of the said Order 6, rule 8
(1)and
(2). 15 Another argument of counsel for the respondents is that the time from 28/3/74 when the writ was issued till the 17th April, 1975 the date when the defendant company was restored, does not run as it was legally impossible to effect service because the defendant company by its own conduct caused its striking off 20 the Register. This argument is also supported by the provision made in the restoration order of the District Court that the period duringwhich thecompany hadbeen struck offfrom the Register of Companies should not count for any period of hmitation. 25' This contention was also put forward at the hearing of the ex parte application for the extension of the validity of the writ, and I must admit that it was this argument that led the Court in granting the order as from 10.11.75 and not as from 28.3.75. 30 From the wording of Order 6 rule 8
(1)it is clear that for the purpose of service a writ is valid for twelve months and this provision is absolute and does not accept any qualification. Whether a writ during the said period is legally or physically impossible to be served is of no significance. Neither the provi35 sion made for the restoration order of the Distict Court in the present case that the period during which the defendant company had been struck off the register should not count for any period of limitation can affect the running of time as regards the duration of the validity of the writ. 591 MalachtesJ. Ntssho-lmiiCo.τ..St.NicotesSlopping
(1979), Of course this provision can affect the running of-time as regards theLimitationofActions Law. Butoncea writis issued there is nolaw or rule empowering any Courtto order thatthe time of twelve months or any part thereof should not run. However, both the above factors should be taken into account by theCourtinexamininganapplicationfor renewal of thewrit. 5 Coming now to thefirstsubmission of counsel for applicants that the order of the Court for renewal of the writ should be considered as null and void, it is obvious that a mistake has been made in the making of that order for renewal of the writ 10 for twelvemonths asfrom 10/11/75andnotas from 28/3/75,the day following its expiration contrary to the provisions of Order 6 rule 8
(2),of the Rulesof the SupremeCourtof England. The non-compliance with these rules is governed by Order 2 rule 1
(1)of the new Rules of the Supreme Court of England 15 which reads as follows: " 1.
(1)Where, in beginning or purporting to begin any proceedingsorat anystageinthecourseof or inconnection with any proceedings, there has, by reason of anything done or let undone, been a failure to comply with the 20 requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in theproceedings, or any document,judgment or order therein." 25 The predecessor of this rule is rule 1 of the old Order 70 which provides thatnon-compliance with any of these rules,or with any rule of practice for the time being inforce, shallnot render any proceedingsvoid unless theCourtor aJudge shall so direct,but such proceedingsmay be set aside eitherwholly or in 30 part as irregular, or amended, or otherwise dealtwith insuch manner and upon such terms as the Court or Judge shall think fit. This rule sought to provide that non-compliancewith these rules should not of itself render any proceedings void unless 35; the Court should so direct, but that they might be set aside wholly or in part as irregular or amendedon such terms as the Court might think fit. Semble, the Court has no power to dispense in advance with compliance with the rules of the_ 592 1 CL.R. Nissbo-lwai Co. τ. S t Nicolas Shipping Mafaidrtos J. Supreme Court, but only a discretion, in certain cases, not to set irregular proceedings aside. (Blacker v. Blacker [1960] P. at p. 146). A distinction is to be drawn between proceedings which are 5 null and void, and proceedings which are merely irregular in thesensethatthey involve non-compliancewith any of the Rules of the Supreme Court or with any rule of practice. In both cases an application should generally be made to the Court to set the proceedings aside. Nevertheless, the decisions under the 10 rule preserve a distinction between a non-compliance such as rendering theproceedings a nullity,in which case theCourthad no discretion but to treat them as a nullity and set them aside and a non-compliance which merely rendered the proceedings irregular in which case they remained valid and the Court had 15 a discretion what order to make in the circumstances. It was held, indeed, that the Order did not apply to the former class of cases but only to the latter. 20 As a result of the decision of the Court of Appeal in Re Pritchard, deceased, Pritchard v. Deacon and Others [19631 Ch. 502 the present rule was substituted for the old one and under it the above distinction between nullity and mere irregula rity disappears. 35 In that case "On October 6, 1961, proceedings asking for reasonable provision tobe made for thewidow of a testator out of his estate under the Inheritance(Family Provision) Act, 1938 were (as required by R.S.C, Ord. 54F, r. 1) begun by the preparation of an originating summons,which on October 9, the day before the expiry of the six-month period of limitation under the Act of 1938, was accepted and sealed in the local district registry. Furthersteps were thereafter taken by the parties under the direction of the district registrar; but in January, 1962, the district registrar informed the parties that having regard to the terms of R.S.C, Ord. 54, r. 4B, he doubted whether he had power to proceed with the matter. 40 As it was too late to start proceedings afresh in the CentralOffice, anapplicationwas madetotheregistrar asking why the cause, having irregularly issued from the district registry instead of the CentralOffice, should notbe removed to the CentralOffice. The registrar refused theapplication, 25 30 593 IMadUaaX tUatotalGk*.ΓΙ ΓΒιatiiSappJat; 0975} holding-thai theoriginating sumrnons was a nulhty and all sqbsecruent stepstakenby thepartiesor by the Court were ultra vires. On a summons by thewidowin theChancery Division asking that the.proceedings be transferred to ; liindon, WQbexforce J. held that'originating summons « a s anulhty andailstepstakenunderitvoid. Onappeal:- 5 Held(LordDenningM.R. dissenting), that the origina ting summons had never been issued and was a nullity abinitio,forwhereanactionwascommencedbyanorigina ting sommons, which was purely a creature of the Rules 10 of theSupremeCourt,and thatsummonswas notissued in accordance with the only relevant rule Order 54, r. 4B, that constituted a fundamental failure to comply with the requirements ofsection225oftheSupremeCourtofJudica ture (Consolidation) Act, 1925, relating to the issue of 15 civil proceedings; and the Court had no power under R.S.C Ord. 70 r. 1, to cure proceedings which were a nuUity. Accordingly, as the limitation period under the Act of 1938 had expired, thewidow had no remedy. Per Lord Denning, M.R. The non-compliance with 20 R-S.C, Ord. 54,r. 4B,in this casewas a mere irregularity and as the widow had commenced a known genuine case, but containing technicaldefects,before theperiodof limita tion expired, the Court had power under R.S.C. Ord.70, r.1,toamend theirregularity andshould exercisethat power 25 by allowing the cause to be transferred to the Central Office; a fortiori, where the original error in issuingan originating summons in a district registry had been made .byanofficer of the Court and where, owingtothe statutory limitation period, the widow would otherwise be wholly 30 deprived of her cause of action." In a later case, that of Hqrkness v. Bell's Asbestos and Engineering Ltd. [1967] 2 Q.B. 729 the legal position as regards the effect of the new rule was clearly stated. In that case "After leaving his employment with the 35 defendants, the plaintiff was found to be suffering from asbestosis, a disease which he claimed was caused by the defendants' failure to supply him with protective clothing while hewas in contact with asbestos. Ashisclaim would have been barred by theLimitation Acts of 1939and 1954, 40 594 1 CJjJL. 5 10 15 20 25 30 NissfaoIHAI Co.τ.St.NicolasΑ^^Ί^Έ Mafacbtas J. his solicitors, before issuing a writ, applied ex parte to the district registrar under section 1 of the Limitation Act, 1963, for leave of the Court for the purposes of the Act On April 16,1964, thedistrict registrar ordered that section 2
(1)of the Act of 1939 should not afford a defence to the plaintiffs proposed action for damages. A writ was issued on April 17,
- By R.S.C, Ord. 128, r.(l), thejurisdiction to grant leave for the purposes of section 1 of the Act of 1963 was vested in a Judge in chambers. The defendants applied to set aside the district registrar's order on the grounds that he had no jurisdiction to make it and that any order should have been for leave to proceed for thepurposes of section 1 of the Act of
- On May 10, 1966, Blain J., holding that the registrar's order was a nullity, made no order on the application. On July 11, 1966, James, J. dismissed the plaintiff's application under R.S.C., Ord. 2, r. 1, to rectify the registrar's order and have it treated as valid. The plaintiff appealed, contending that the case came within R.S.C, Ord. 2, r.l, and that the form of the registrar's order was an 'accidental slip or omission' within R.S.C, Ord. 20, r.ll. For the defendants it was contended thatat the time of the registrar's order there were no 'proceedings' because no writ had been issued, and further thatthe Act of 1963 required thatapplication should be made to 'the Court', which did not include a district registrar. Held, allowing the appeal, that the application to the district registrar constituted 'proceedings* in the High Court within R.S.C., Ord. 2, r.l, under which the Court had power to correct the errors made as irregularities and that accordingly the plaintiff would be granted leave for the purposes of section 1 of the Act of 1963". Lord Denning M.R. at page 735 of this report had this to say: 35 " This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the Court can and should rectify so long as it can do so without injustice. It can at last be asserted 595 Malac&tas J. Nfasbo-IwalCo. ».St.NicolasShipping . (197?) that 'it is not possible for an honest litigant in Her Majesty's SupremeCourttobedefeated byanymeretechnicality, any slip, any mistakenstepinhis litigation'. That could not be said in 1963". With the above principles in mind I shall now proceed to 5 consider whether the mistake in the case in hand renders the order for renewal of the writ a nullity of whether it is a mere irregularity which may be remedied by any other order. No doubt this Court in considering the application for renewal of thewrittook intoaccount thecontents oftheaffidavit insupport 10 thereof and decided to extend the validity of the writfortwelve months. Taking into consideration the relevant facts and in particularthefact thatserviceofthewritwaseffected on28/1/76, within theperiod oftwelvemonthsafter itsexpiration,Iconsider themistakeasa mereirregularity whichcan berectified without 15 injustice by amending the order of the 10/11/75 so that paragraph 1 thereof to read, "It is hereby ordered that the validity of the writ of summonsbe extended for twelve months as from 28/3/75", and an order is made accordingly. Lastly;whatremainstobeconsidered isthesecondsubmission 20 of counsel for applicants, that the discretion of the Court was wrongly exercised in granting the order for the extension of the validity of the writ. Order 6, rule 8, with which we are concerned in the present application, was largely taken from the former Order 8, and in 25 part from the former Order 64, rule
- It makes some verbal alterations, eg. the removal of the words in the former Order 8 rule 1, "if satisfied that reasonable efforts have been made to serve such defendant or for other good reasons"; but such alterationshavenotmadeanymaterialchangeinthepre-existing 30 law or practice relating to therenewal of a writ. In Heaven v. RoadandRail Waggons Ltd. [1965]2All E.R. 409, MegawJ.at page 414, had this to say about the above alterations: " The discretion under R.S.C, Ord. 64, r.7, was in terms unlimited. Iam unabletosee,therefore, howan alteration 35 in wording as between theold R.S.C, Ord. 8, r. I, and the new R.S.C, Ord 6, r.8,can by itself operate to widen the discretion or to annul, or derogate from, the authority of what was said in Sheldon's case as to the exercise by the Court of that discretion. However, even if it werecorrect 40 596; 1 CL.R. Nbsho-IwaJCo.τ.St.Nicola»Shipping MabchtosJ. // to say, as counsel for the plaintiff contends, that the prek existing authorities have to be treated as having interpreted > R.S.C, Ord. 64, r.7, against the background of, or by $ reference to, thetermsof the old R.S.C.,Ord 8, r.l, I should $ still be unable to accept the argument that the alteration > of wording between the old R.S.C.,Ord. 8, r.l, and the new '-P : R.S.C., Ord. 6, r.8
(2), can validly be said to have made f any material change. What is said is this: the old R.S.C, Ord. 8, r.l, dealing; as I have said, only with applications - ^ . " " ^ w 'n?w for renewal (as it was then called) before the expiry of the 4 s M ^ * ^3^ twelve months,includes the words, 'if satisfied that reason able efforts have been made to serve such'defendant, or for other good reasons', but the new R.S.C, Ord. 6, r.8
(2)contains no such words. ' - 5 10 • -η.%. 15 20 25 30 35 40 " Assuming that I am wrong about the irrelevance of t h e words in the old R.S.C, Ord. 8, r.l, to the prc-1964 decisions on R.S.C, Ord. 64, r.7, I do not think that the removal of the words 'or for other good reasons' can be said to have increased the permissible scope of the distinction or to have impaired the authority of the earlier cases. That could only be the case if the Court in conse quence now has authority to exercise its discretion otherwise that 'for good reasons'. That would be a remarkable proposition. No suggestion has been made nor, I think, could be made, that 'other good reasons' in the old R.S.C, Ord. 8, r.l, was in somf way limited by some sort of application of the ejusdem generis rule, by reason of the collocation of thatphrase with thepreceeding words relating to reasonable efforts to effect service. The words 'or for other good reasons', then, did not operate to limit the discretion under the old R.S.C, Ord. 8, r.l. Their presence could not have been material to the decisions in Battersby s case or Sheldon's case. Their omission from the new R.S.C, Ord. 6, r.8, cannot affect the continuing authority of those cases, even if the wording of theold R.S.C, Ord. 8, r.1, was relevant at all to thosedecisions as to thediscretion. 1 think that the omission was probably because the words omitted added nothing and" subtracted nothing. They were surplusage." So, thewords in the former Order 8 rule 1"or for other good 597 ^ ' Mafarltfrw J. Ntssbo-fwsi Co. τ. St. Nkota Sbfepfag 0939) reasons" were surplusage, and their removal has not increased the permissible scope of the discretion of the Court to extend the validity of a writ nor impaired the authority of tbe earlier cases. In the Heaven's case, supra, Megaw J., in expressing his opinion as to what are the exceptional circumstances justifying the renewal of a writ said at page 415 the following: 5 " 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 10 -,, the writ; or where the delay in the application to extend r the validity of the writ has been induced,or contributed to, by the words or conduct of the defendant or his representa tives; or perhaps where thedefendant has evaded service or, for other reasons without the plaintiff's fault, could not 15 have been served earlier even if the application had been made and granted earlier." In the present case taking into consideration: (i) that the defendant company could not be served with the writ of summons from its issue up to 17/4/75, 20 when the Order for restoration to the Register of Companies was made by the District Court, and this was not due to any fault on the part of the plaintiff company, but on the contrary it was due to the non filing of the annual returns by the defendant, 25 (ii) that the plaintiff company took all reasonable steps to restore the defendant company to the Register of Companies, (i".i) that due to the Turkish Invasion and the occupation of F.-nagusta town by the Turkish Army, no service ould be effected as the Registered office of the Jefendant company was in Famagusta town, and 30 ,. j that the claim of the plaintiff company could not be defeated by the Statute of limitations, I hold the view that the discretion of this Court was rightly 35 exercised in granting the order for the extension of the validity of the writ. 598 \ 1C M . Niafeo-Enl Co.f. St.NicolasStjapfns MabcUos J- Foralltheabovereasonstheapplicationto setasidethe order of 10/11/75 is dismissed. On the question of costs it is ordered that the costs of this application to be costs in cause but in no case against the respondent company. Application dismissed. Order for costs as above. 599