(1981)1981 March 20 [DEMbTRIADES, J.) ABDUL HAMID AL SAHI, Plaintiff, v. THE SHIP "ALGAZERA", Defendant, (Admiralty Action No. 300/79). Practice—Trial of action—Adjournment—Discretion of the Court— Principles applicable—Plaintiff a foreigner—Unable to attend Court because he was under arrest in his country—Whether pendency of an action in England, between the same parties, and alleged inability of plaintiff to pay the costs grounds for 5 refusing the adjournment—Plaintiff has already given security for costs—Adjournment granted. On the day fixed for the continued hearing of the above action counsel for the plaintiff applied for an adjournment on the ground that the plaintiff, who was a foreigner, has found himself in the predicament of being arrested in his country and was still under arrest; and was, thus, unable to attend the Court for the continuation of the hearing of the action. |0 The defendats opposed the application mainly on the grounds that no injustice will be caused to the plaintiff if the action is 15 dismissed, because there is a pending action between the same parties in England and that their costs cannot reasonably be met by the plaintiff. Held, (after stating the principles governing the exercise of the Court's discretion in granting or refusing an adjournment— videpp. 187-8 post) that the plaintiff cannot be deprived of his rights to prosecute his claim in Cyprus because, there is an action pending in England between the same parties; that the question of costs is not a ground that can persuade this Court to refuse the adjournment because the plaintiff has already filed a security for costs and if this is not sufficient to meet 186 20 25 1 C.L.R. 5 10 Sahi v. Ship "Algazera" the costs that will be awarded in favour of the defendants, they can apply for further security for costs; that considering the facts of the present case and taking into account that the inability of the plaintiff to appear today is not due to his own volition or negligence, but to unusual circumstances this Court has decided to grant the adjournment applied for. Application granted. Cases referred to: Kier(Cyprus) Ltd., v. Trenco Constructions Ltd.
(1981)1C.L.R. 30; InternationalBonded Stores Ltd. v. Minerva Insurance Co. Ltd.,
(1979)1 C.L.R. 557; Kranidiotis v. The Ship M\V Amor
(1980)1C.L.R. 297 at pp. 299-300. 15 Application. Application by plaintiff for the adjournment of the hearing of the action. E. Psyllaki (Mrs.), for the plaintiff. D. HadjiChambiswith P. Panayi(Miss), for the defendants. 20 Cur. adv. vult. DEMETRIADES J. read the following ruling. The hearing of this action was fixed to continue today but counsel appearing for the plaintiff applied for an adjournment. Her application was hotly opposed by the defendants on a number of grounds. 25 In a very recent judgment of the Supreme Court (see Kier(Cyprus) Ltd. v. Trenco ConstructionsLtd.
(1981)1 C.L.R. 30, the Court reviewed the principles that should govern the exerciseof aCourt's discretion ingranting orrefusing an adjournment and it adopted the principles set out in the case of Inter30 national Bonded Stores Ltd. v. Minerva Insurance Co. Ltd.,
(1979)1 C.L.R. 557. These principles were reiterated in the case of Kranidiotis v. The Ship M/V Amor,
(1980)1 C.L.R. 297, where the following are stated (at pp. 299-300):35 "It has been repeatedly stressed by our Supreme Court in a number of cases that delays in the hearing of a case are highly undesirable and that adjournments should be avoided as far as possible and that only in unusual circumstances they must be granted. The reason for this, is 187 Demetriades J. Sabi v. Ship "Algazera"
(1981)that it is in the public interest that there should be some end to litigation and, furthermore, the right of a citizen to a fair trial within a reasonable time according to the Constitution and the Courts should comply with these constitutional provisionswith meticulouscare. Thediscretion of the Court in granting an adjournment should be exercised in a proper judicial manner and an order for an adjournment should not be made if there isdanger that the rights of a party before the Court will be prejudicially affected by such adjournment". 5 IntheKier(Cyprus) Ltd.case(supra), the Court unanimously held that:"The question whether an adjournment will be granted or not is undoubtedly a matter of judicial discretion. As such it has to be examined on the particular facts of each 15 case and not in abstracto; whether an adjournment will be granted or not must always be considered in the light oftherighttoahearingwithinareasonabletimeasprovided by Article 30, para. 2, of our Constitution and Article 6, para. 1 of The European Convention on Human Rights 20 of 1950, ratified by The European Convention on Human Rights (Ratification) Law 1962 (Law No. 39 of 1962)". The facts of the present case are in effect undisputed. The adjournment was sought because theplaintiff has found himself in the predicament of being arrested in his country and is still 25 under arrest and he wasthusunable to attend the Court for the continuation of the hearing of the action. The defendants' grounds of opposition are that all along in these proceedings the plaintiff has acted in bad faith; that no injustice willbecausedtohimiftheactionisdismissed—because 30 thereisa pending action between the sameparties in England— and that their costs cannot reasonably be met by the plaintiff. With regard to the first ground of the objection, I have not been persuaded by the defendants that the plaintiff has, at any timeintheseproceedings,beenactinginbad faith. It iscorrect 35 that on the 9th January, 1981,when this action wasfixedfor further hearing, the plaintiff did not turn up, but as it appears from the record, this was due to a misunderstanding between him and his counsel. 188 10 ; 1 C.L.R. Sahi v. Ship "Algazera" Detnetriades J. I With regard to the second ground, I do not think that the plaintiff should be deprived of his right to prosecute his claim inCyprusbecause there isan action pendingin England between the same parties. 5 As regards now the allegation of the defendants that if the adjournment isgranted the costs which may be awarded in their favour cannot reasonably be met by him, I find that this is not a ground that can persuade me to refuse the adjournment. The plaintiff has already filed a security for costs and if this 10 isnot sufficient to meet the costs that will be awarded in favour of the defendants, they can apply for further security for costs, inwhichcaseifan order isgranted to that effect and if the plaintiff fails to comply, the defendants can apply for the dismissal of the action. 15 Having considered the facts of the present case and taking into account that the inability of the plaintiff to appear today is not due to his own volition or negligence, but to unusual circumstances, I have decided to grant the adjournment appUed for, and fix the action for mention on the 2nd April, 1981, at 20 9.15 a.m., when counsel for the plaintiff will have to appear and inform the Court of the position with regard to her client. As regards the costs of this adjournment, I find that the defendants are entitled to them. I shall allow costs of one advocate plus the costs of travelling from England to Cyprus 25 and back and subsistence here of one of their witnesses, but I shall not allow the costs of two of their witnesses who came from England, as defendants' counsel were, on the 13th March, 1981, by telex, informed of the intention of counsel for the plaintiff to apply for the adjournment of the hearing and they 30 were given the reasons why this application was to be made. In any event, as it appears from the record, the defendants knew of the situation and had ample time to inform their witnesses not to travel to Cyprus. Costs to be assessed by the Registrar. 35 Application granted. 189