(1982)1982 September 6. [SAVVIDES, J.] KOULOUMBIS PANAYIOTIS, Plaintiff, v. THE SHIP "MARIA" NOW ANCHORED IN THE PORT OF LIMASSOL, Defendant. {Admiralty ActionNo. 73/82). 5 Practice—Judgment—Setting aside of—Applicationfor—May be made by aperson whether aparty ornot who hasorcan acquire alocusstandiintheproceeding—Rule 44oftheCyprusAdmiralty Jurisdiction Order andnotestoOrder 27rule15of theoldRules of the Supreme Court inEngland. 10 Theapplicant,describedintheapplication,asMartin Mosvold and/or Mosvold Nominees of Huston Texas, applied to set aside the judgment entered in this Action on May 24, 1982, infavour oftheplaintiff inrespect ofwagesand other allowances and disbursements due to him as master of the defendant ship. 15 There was no affidavit accompanying the application, setting out the capacity under which he claimed to be an interested party having a locus standi in these proceedings or showing the merits of the application. The only facts relied upon were thosesetoutintheapplicationwhichwassignedfor theapplicant by counsel appearing for him and which were as follows: "The facts relied upon are apparent on the face of the proceedings, i.e. in an action in rem no constnt judgment is possible and, also, the costs, agreed are excessive". 20 Theicspondent plaintiff byhisopposition raised the objection that the applicant had no locus standi in these proceedings. Held, that the application in the present case is not supported by any affidavit showing how the interest of the applicant is 727 Kouloumbis v. Ship "Maria"
(1982)involved; that notwithstanding plaintiff's objection that applicant had no locus standi in these proceedings the applicant failed to file any affidavit disclosing his interest entitling him to apply to have the said judgment set aside and nothing has been proved at the hearing as to the legitimate interest of 5 theapplicant; that it iswellsettled that a person whethera party or not in the proceedings can apply to have a judgment set aside provided he has or can acquire a locus standi in the proceedings (see Notes to Order 27 rule 15 of the old Rules of the Supreme Court in England—vide p. 615 in the Annual 10 Practice of 1960); that in the present case, the applicant has not established that he is a person interested in the proceedings and what is the nature of his interest entitling him to inteivenc to have thejudgment set aside; that, theiefore, he has no locus standi entitling him to make this application; accordingly the 15 application must fail. Application dismissed. Application. Application by applicant for an order to set aside the judgment entered in this action on the 24th May, 1982 in favour of 20 the plaintiff in respect of wages and other allowances and disbursements due to him as master of the defendant ship. L. Papaphilippou, for the applicant. P. Pavlou, for the respondent-plaintiff. M. Eliades with A. Skordis, for the defendant ship, judg- 25 ment-debtor. E. Montanios with P. Panayi (Miss) for M. Montanios, for interveners-plaintiffs in Action No. 58/82. Cur. adv. vult. SAWIDES J. read the following decision. This is an appli- 30 cation to set aside the judgment entered in this action on the 24th May, 1982in favour of theplaintiff in respect of wages and other allowances and disbursements due to him as master of the defendant ship. The applicant, as described in this application, is one Martin 35 Mosvold and/or Mosvold Nominees of Huston, Texas. There is no affidavit accompanying the application, setting out the capacity under which the said applicant claims to be an interested party having a locus standi in these proceedings or 728 1 C.L.R. Kouloumbis v. Ship "Maria" Sawides J. showing the merits of the application. The only facts relied upon are those set out in the application whichissigned for the applicantbycounselappearingfor himandwhichareasfollows: 5 "The facts relied upon are apparent on the face of the proceedings, i.e. in an action in rem no consent judgment is possible and, also, the costs agreed are excessive." The application was opposed both by the plaintiff and the interveners-plaintiffs in Action No. 58/82 whereas counsel appearingfor thedefendant shipdid not opposethe application. 10 Byhisopposition theplaintiff contends that theapplicant has no locus standi in the proceedings and that in any event there was no irregularity about the judgment, whereas counsel for the intervener relied in the opposition on the facts which were apparent on the face of the proceedings. 15 The application as originally made wasextending not only to Action No. 73/82, but also to a number of other actions, in particular, Actions Nos 74/82 - 85/82,in whichjudgments were also entered against the defendant ship for wages and other allowances due to members of the crew of the defendant ship. 20 At the hearing, however, of the application, counsel for applicant applied for leaveto withdrawtheapplication concerning the other actions and restricted it to Action 73/82 only. As a result the application was withdrawn in respect of all other actionsandwasheardonlyasfar asthejudgmentinActionNo. 25 73/82 is concerned. The issues which pose for consideration in the present application are: (a) Whether the applicant is an interested party having a locus standi in the proceedings. 30 (b) Whether the judgment in favour of the plaintiff is irregular and has to be set aside. Whereas under the English Rules and our Civil Procedure Rules (most of which correspond to the English Rules, as in force before the 15th August, I960), there is provision in a 35 number of rules as to how ajudgment obtained in favour of a party can be set aside (e.g.judgment by default of appearance, default of pleadings, failure of either party to appear at the 729 SavYides J. Kouloumbis v. Ship "Maria"
(1982)hearing of the action, etc.), under our Admiralty Rules which were enacted in 1893,the only provision that exists for setting aside a judgment, is under rule 44 which reads as follows: "Where any judgment has been given in the absence of either of the parties in accordance with the provisions of Rules 41&43hereof, any party affected by suchjudgment may apply to the Court or Judgeto set aside thejudgment and the Court or Judgemaysetasidethejudgment onsuch terms as to the payment of costs or otherwise as shall appear to be just." 5 10 Another provision that does exist is in the case of orders obtained byoral or written applications,under Rule 211,wherebytheCourtmay,onduecauseshown,varyorrescindanyorder previously made. The lack of specific provisions dealing with all instances 15 under which a judgment by default may be entered, may be found in the nature of our Admiralty Rules under which the exchange of written pleadings is not always necessary; under rules 38and 39an oral statement of facts may be made by the parties when appearing before the Court and the Court after 20 hearing the parties andfinding the issues before it, shall draw a statement of the facts in dispute upon which the trial will proceed or inlieu ofthat the Courtmay order thepartiesto furnish written pleadings under rule
- In the latter case, failure by thedefendant tofile hisanswertothepetition andfailure bythe 25 plaintiff tofile hisreplytothe answerwheresuchreplyisnecessary, within the time limited byrule 83, makes them liable to the sanctions provided by rules84and 85inthat they shall not be at liberty, except by leave of the Court or ajudge to dispute any of the facts therein alleged. 30 Though the English Rules ofthe SupremeCourt, which come into play in the exercise by this Court of its Admiraltyjurisdictionunderrule237ofourAdmiralty Rules,wherenoprovision is contained in the Cyprus Admiralty Rules of 1893,in so far as the same shall appear to be applicable, have undergone 35 extensiveamendments sincelastcentury tocopewithdeveloping realities, our Admiralty Rules have in substance remained the same, save minor modifications, as enacted in
- Such rules have to be amended and substituted by new rules to cope with the Civil Procedure Rules and the corresponding English 40 730 1 C.L.R. Kouloumbfa τ. Ship "Maria" Sa"W« J- Rules where such rules are applicable. In a recent judgment of the Full Bench, the following observations were made res pecting the need for theredrafting of the Rules of theSupreme Court in its Admiralty jurisdiction, which Iadopt in thepresent 5 case: 10 15 20 25 30 35 "Before concluding with the present case, we wish to stress the need for the redrafting in a more systematic way of the Rules of the Supreme Courtof Cyprus in its Admi ralty Jurisdiction, as well as the Civil Procedure Rules so thatprovisions whichcorrespondinbothrules tobe drafted in the same terms. In England the Rules of the Supreme Court have undergone considerable amendments to take into accountdeveloping realities. Our Rules of Court are modelled andtakecognisance of theEnglish Rules. Therefore, the need for amendment becomes obvious to be brought up-to-dateand avoid any confusion whencompa rison has tobe madewith thecorresponding English Rules. We wish further to add in particular that rule 237 of the Rules of the Supreme Court of Cyprus in its Admiralty Jurisdictionwhichincorporatesingeneral termsthe practice of the Admiralty Division of the High Court in England where no provision is contained in theAdmiralty Rules, should be substituted by Rules expressly regulating the practice and procedurein this respect,and emanating from our Supreme Court which, under Article 163 of theCon stitution and section 69 of the Courts of Justice Law of 1960 (Law No. 14/60)is the competent organ vested with the power of making Rules of Court for regulating the pactice and procedure of the High Court and/or of any other Court established by or under Part X of theCon stitution other than Communal Courts established under Article
- The need for amendment of our Rules has been stressed by this Court in Almana Engineering v. Glyfos Commercial
(1981)1C.L.R. 273 at p. 289, in which reference is also made to General Engineering Co. Ltd. v. Seddon Atkinson VehiclesLtd.
(1975)1 C.L.R. 278." (See Asimenos v. Paraskeva
(1982)1 C.L.R. 145 at p. 168). Rule 44 of ourAdmiralty Rules is similar to Order 27rule 15 of the old Rules of the Supreme Courtin England (&eeAnnual 40 Practice, 1960). 731 Savvides J. Kouloumbis v. Ship "Maria"
(1982)Note. Reference is made to the English Rules in force prior to the 15th August, 1960in view of thejudgment in Asimenos v. Paraskeva (supra). Reading the notes to the said rule in which cross-reference is made to the rules, concerning default of appearance, default of appearance at trial, default in giving discovery, the following is stated at page 615: 5 "May be set aside.-Application.-The application may be by motion or summons. In Q.B.D. it is usually made by summons to a Master. Any person whether a party or not 10 who has or can acquire a locusstandi may make the application. (Jacques v. Harrison, 12 Q.B.D. 136, 165.)" And further at the same page, *'Regular Judgment.-If thejudgment is regular, then it is an (almost) inflexible rule that there must be an affidavit of 15 merits, i.e., an affidavit stating facts showing a defence on the merits (Farden v. Richter [1889], 23 Q.B.D.
- 'At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason', per Huddleston, B., at p. 129, approving Hopton 20 v. Robertson, [1884] W.N. 77, reprinted 23 Q.B.D. p. 126 (n.); and see Richardson v. Howell, 8 T.L.R. 445). Irregular judgment. - If it is desired to set the judgment aside for irregularity, the irregularity must be specified in the summons or notice of motion (
- 70, r. 3). The affidavit in support should also state the circumstances under which the default has arisen, and should disclose the nature of the defence, see (Chitty F. 122; Chitty Arch., 333). Where a judgment is obtained irregularly the defendant is entitled ex debito justitiae to have it set aside (Anlaby v. Praetorius, 20 Q.B.D. 764)." Also in the Annual Practice 1979 we read the following additional notes at p. 128 under Order 13, rule 9 which is the one which has substituted the former rule. "This Rule, however, should be compared and if necessary 35 read with other rules conferring powers on the Court to set aside or vary anyjudgment or proceedings, viz., setting aside proceedings generally,
- 2, supra; setting aside 732 1 C.L.R. 5 Kouloutnbis v. Ship "Maria" Sawides J. judgment under
- 14, r. 11,infra; setting aside judgment in default of defence,
- 19, r. 9, infra; setting aside judgment in default of discovery or inspection of documents,
- 24, r. 16, infra; setting aside judgment in default of answering interrogatories,
- 26, r. 6, infra; setting aside default judgment at trial,
- 35, r. 2, infra." And at the same page under the heading, "Application by third party": 10 15 20 25 30 35 40 "The Rule is designed to enablejudgments by default to be set aside by those who have, or can acquire, a locus standi; it does not give a locus standi to those who have none (Jacquesv. Harrison [1883] 13Q.B.D. 136). A third party who desires to apply to set aside ajudgment must show that he has a direct interest in so doing and must either do so in the name of the defendant with his leave, or he must make both the plaintiff and the defendant parties to the application and ask for leave to intervene (ib.; Sedgwick, Collins & Co. v. Rossis Insurance Co., [1926] 1 K.B.. 1; affd. In H.L. sub nom. Eployers' Liability Ass. Corp. v. Sedgwick, Collins & Co., [1927] A.C. 95, where garnishees were held not entitled to apply)." It has been the practice of this Court both in the exercise of its civil jurisdiction under the Civil Procedure Rules as well as in the exercise of its Admiralty Jurisdiction that an application to set aside ajudgment by default should be accompanied by an affidavit setting out the facts relied upon. The only exception that appears to exist under the Civil Procedure Rules is under Order 48, rule 9(h) to the effect that an application for an order setting aside a judgment obtained by default of appearance under Order 17, rule 10, which is irregular on the face of the proceedings shall be made by summons but need not be accompanied by affidavit unless required by the Court. Such provision, however, applies only to civil proceedings and not in Admiralty proceedings and in the marginal note there is no cross-reference to the English Rules but only to the old Cyprus Order 20, rule 2 from which it originated. In any event, Order 17, rule 10 does not come into play in the present case as the applicant does not allege that the judgment sought to be set aside is a judgment by default of appearance but a judgment obtained by consent. 733 Sawides J. Koulonmbii τ. Ship "Maria"
(1982)Having dealt with the provisions under the Rules of Court, I am coming now to consider the issues before me. Thefirst issue is whether theapplicant is an interested party, having a locus standi in these proceedings. The application in the present case is not supported by any affidavit showing 5 how the interest of the applicant is involved. The facts relied upon in support of the application as set out therein, are that such facts are apparent on the face of the proceedings and in particular that no consentjudgment is possible in an action in rem. Itwas takenas grantedby theapplicant thattheapplicant 10 who is described as Martin Mosvold and/or Mosvold Nominees is an interested party entitled to make such application. The respondent-plaintiff by his opposition raised the objection that the applicant has no locus standi in these proceedings. Not withstanding such objection, the applicant failed to file nay 15 affidavit disclosing his interestentitling himto apply tohavethe said judgment set aside and nothing has been proved at the hearing as to the legitimate interest of the applicant. It is well settled that a person whether a party or not in the proceedings can apply to have a judgment set aside provided he has or can 20 acquire a locus standi in the proceedings (vide Notes in the Annual Practice 1960 at p. 615 supra). In the present case, the applicant has not established that he is a person interested in the proceedings and what is the nature of his interest entitling him to intervene to have the judgment set aside. 25 Therefore, he has no locus standi entitling him to make this application. For this reason, the application fails. Having found as above, I consider it unnecessary to go into the merits of the application. In the result, the application is dismissed with costs in favour 30 of the respondent-plaintiff and the interveners (plaintiffs in Action No. 58/82) against the applicant. Costs to be assessed by the Registrar. Application dismissed. Order for costs as above. 734