(1987)1987December 15 (SAvVIDFS J i T H E CYPRUS P O T A T O M A R K E T I N G B O A R D Plaintiffs. ν 1 2 B E L L A M SHIPPING C O L T D T H E S H I P M S -SELANDIADefendants (Admiralty Action No 102/86} Admiralty — Practice — Wnt ofSummons — Renewal of— Discretion should be exercised with caution — Review of authorities on the point Admiralty — Practice — Action inrem — Service of— Can onlv beeffected within thejunsdiction — The Cyprus Admiralty Jurisdiction Order 1893 Rule lb This is a mixed action, in personam against defendant 1 as owner of thf defendant 2 ship and in remagainst the ship defendant 2 Thewnt ofsummons was issuedon 12thMay 1986 andwas subsequently renewed on 12th May 1987 on an application dated 11th May 1987. fora penod of six months which expired on the 11th November 1987 Pnortoits expiration counsel for applicants filedthe present application 5 10 The plaintiffs having obtained leave for substituted service by double registered poston defendant 1.tnedtoeffectservice insuchamanner, butthe letter was returned unclaimed with the notice «refuse- endorsed on il Eversmce the applicants spared no effortsto findthe address of defendant 1 After the inqumes they came to know, from information contained in the 15 Lloyds register of shipowners, that the defendant's 1 address is not in Denmark but in Sweden Regarding defendant2 ship,ithas notamved inCyprus sincetheinstitution of the action but according to the contention of counsel for applicants it is expected to amve in Cyprus within the next few months Held granting the application
(1)Though the renewal of the writ of summons isa matterwithin thediscretionoftheCourt suchdiscretionshould be exercised with caution 496 ^ 1 C.L.R. 5 $9**/» Mariieting v. Bellam Shipping
(2)In ihia. case and as to service of the wnt of summons for a ctaini in personamagainstdefendant 1 counselforapplicantshasshownagoodcause why tht-wnt of summons has not been served on defendant 1.As regards defendant 2. service could not have been effectedon her once she has not called at any port within the junsdiction (Order 16 of the Cyprus Admiralty Junsdiction Order. 1893). Application granted. Casesreferredto Nigenan ProduceMarketing Co. Ltd. andAnother v. Sonora Shipping Co. Ltd and Another
(1979)I C.L.R.395; Churair and Sons v. Snatiren Shipping
(1980)1 C L R.
- Hewettv Barr (1981} LJ. Reports New Series. Vol. 60 Q.B
- Battersbyv. Anglo-Amencan Oil Co. Ltd. [1944]2AH Ε R. 387; i5 Holmanv George Elliot and Co. Ltd. [1944] 1K.B. 591: (1944] 1 All E.R. 639 Steven ν Services Window and General Cleaning Co Ltd.
(1967)1 All ER 984. Howels ν Jones.The Times 11.4.75; Z0 Moore v.Burton and Motor InsurersBureau
(1978)128New Law Journal
- 77ie Virgo (19781 2 Lloyds U w Rep. 167; 77ieBemy[197911QB.80: Helene Roth Case [1980| 1 Uoyds Law Rep.
- Application. Application by the plaintiffs for the renewal of the writ of summons against both defendants. A. Indianos, for plaintiffs -applicants. Defendants absent. Cur. adv. vult. 30 SAWIDES J. read the following decision. By this ex-parte pplication the applicants-plaintiffs apply for the renewal of the writ of summons against both defendants. 497 Sawldes J. Potato Marketing v. Bellam Shipping
(1987)This is a mixed action, in personam against defendant 1 as owner of the defendant 2 ship and in rem against the ship defendant
- The writ of summons was issued on 12th May, 1986,and was subsequently renewed on 12th May, 1987, on an application dated 11thMay, 1987,foraperiodofsixmonthswhichexpired on the 11th November,
- Prior to its expiration counsel for applicants filed thepresent application. 5 The material facts relied upon in support of the application as appearing in the affidavit swom on behalf of the applicants and 10 also in the address in support of the application are briefly as follows: Efforts were made bycounsel for plaintiffs to serve the writ on defendant 1inDenmarkoutsidethejurisdictionasearlyasthe31st May, 1986, in compliance with an order of the Court granting 15 leaveforsubstitutedservicebydoubleregisteredletter.Such letter which isexhibit 1wasreturned unclaimed withthenotice «refuse» endorsed on it. Ever since the applicants spared no efforts to find the address of defendant
- After inquiries they came to know, from information contained in the Lloyds register of shipowners, 20 thatthe defendant's 1addressisnotinDenmark but in Sweden. Regarding defendant 2 ship, it has not arrived in Cyprus since the institution of the action but according to the contention of counsel for applicants itisexpected toarrive inCypruswithin the next few months. In the affidavit of counsel for applicants in 25 support of theapplication itisstated underpara.5that:«Ifthewrit of summons is not renewed then the plaintiffs* action will be statute-barred against the defendants and is therefore just and equitable that the application be granted.» Thequestion of renewal of thewritofsummons especiallyinan 30 action in rem has been dealt with by me, inter alia, in Admiralty Action 174/76 NigerianProduce Marketing Co. Ltd. and Another v.Sonora Shipping Co. Ltd.andAnother
(1979)1 C.L.R.395and Churair and Sons v. Snatiren Shipping
(1980)1 C.L.R. 183 in both of which I had theopportunity to expound on the principles 35 which may guide the Court inexercising itsdiscretion in granting an application for the renewal of the writof summons. Though the renewal of the writ of summons isa matter within the discretion of the Court such discretion should be exercised 498 1 C.L.R. Potato Marketing v.B«llam Shipping SawldesJ. with caution. The manner in which the discretion of the Court should be exercised has been considered in a series of English cases. In Hewett v. Ban
(1891)L.J. Reports New Series vol. 60 Q.B. 268 Lord Esher M.R. atp.269 hadthistosay: 5 10 15 20 «The principle of that rule with regard to amendments of pleadings applies still morestrongly when the Court isasked to allow the renewal of a writ where, by acceding to the application, the Court would deprive a defendant of an existing right tothebenefitoftheStatute of Limitations.» KAY, L.J.madethefollowingobservations inthesamecase(p. 269): «IshouldbesorrythattheCourtshouldholdthatunder no circumstances couldsuchanapplication asthatwhich isnow made be granted in such acaseasthe present. Asatpresent advised,Iam disposedtothink thatOrder LXIV rule 7, might besoconstruedastogivetheCourtpower,under exceptional circumstances, to enlarge the time for applying to renew the writ. Itmightundercertaincircumstances-forinstance,where after every kind of effort had been made to serve a writ, by accidentormistakenoapplicationtorenewthewrithadbeen madewithinthetwelvemonths-beveryhardthatthe plaintiff should lose all remedy because in the meantime the period fixedby theStatute of Limitations hadexpired.» It should be noted that in the above case the application for 25 renewal of thewrit of summons was made after theexpiration of theperiod of twelve monthsfor service. 30 35 InBattersbyv. Anglo -American Oil Co. Ltd. [1944] 2 All E.R. 387, Lord Goddard in delivering the judgment of the Court on appeal, allowing the appeal against an order renewing awrit of summons on an application made after its expiration stated the followingatp.391: «Weconclude by sayingthat evenwhen anapplication for renewalofawritismadewithin 12monthsofthedateofissue, the jurisdiction given by Ord. 64, r. 7, ought to be exercised with caution. It is the duty of a plaintiff who issues a writ to serveitpromptly,andrenewaliscertainlynottobegrantedas of course, on an application which is necessarily made ex parte. In every case care should be taken to see that the renewal will notprejudiceany right of defencethenexisting, 499 Sawide· J. Potato Marketing v. Bellam Shipping
(1987)and in any case it should only be granted where the Court i·» satisfied that good reasons appear to excuse the delay in service, as, indeed,islaiddown in the order The bestreason, of course, would be that the defendant has been avoiding servtce, or thathis address isunknown and there may well be 5 others But ordinanly it is not a good reason that the plaintiff desires to hold up the proceedings while some other case is tned, or to await some future development It is for the Court and notforone of thelitigantsto decidewhether there should be a stay, and it is not nght that people should be left in 10 ignorance that proceedings have been taken against them if they are here to be served While a defendant who is served with arenewed wnt can, no doubt,apply for itto be set aside on the ground thattherewas no goodreason for the renewal his application may very possibly come before a master or 15 judge other than the one who made the order, and who will not necessanly know thegrounds on whirr, thediscretion was exercised » In Holman ν GeorgeElhot& Co Ltd [1944]1 Κ Β 591,[1944] 1 All Ε R 639 it was held by Mackinnon, L J at ρ 640, that 20 «Thesolequestionis,firstofall,whether thereisa discretion in the Court under R S C , Ord 64, r 7, to enlarge the time fixed for the service of awnt under R S C Order 8 r 1 and secondly, if there is such a discretion, whether the Judge exercised it nghtly in this case I think it is not accurate to say 25 that Doyle ν Kaufman laid down as a settled rule that the Court had no power to extend the time within the rule Ithink the true view is,aswas indicatedby Kay, L J ,in asubsequent judgment in Hewett ν Ban that there is a discretion in appropnate circumstances, though no doubt Doyle ν 30 Kaufman pointsout circumstancesin which itwould be wrong for the Court to exercise that discretion in favour of an applicant plaintiff That there is such a discretion I think has been recognised in subsequent cases,such asMabro ν Eagle Star and Bntish Dominions Insurance Co , Ltd ,where again 35 this rule about depriving a defendant of an accrued defence under the statute of limitations was relied upon as a reason why no ordershouldbemade Greer, L J , sumsupthematter at the end of hisjudgmentby raying 'Whetherthe matter isoneofdiscretionornot, itappears to 40 me inconceivable thatwe shouldmakean orderwhich would 500 1 C.L.R. Potato Marketing v.Bellam Shipping SawidesJ . have the effect Ihave mentioned. It has been the accepted practice for a long time that amendments which would deprive aparty ofavestedrightought not tobe allowed1». inStevens v.Services Window and General CleaningCo. Ltd. J [1967] 1 AllE.R. 984 itwasheld that: 10 «The fact that at the date when an extension of the validity of the writ was granted it had not expired did not render inapplicable the principle that good cause, viz.,good reason to excuse the delay, must be shown in order to justify the granting of an extension; inthe present case good cause had not been shown, and the extension granted by the registrar would be set aside.» Reference to the above cases wasmade by me in theNigerian Produce case (supra) inwhich I have also dealt with the question 15 of exceptional circumstances and hardship to the plaintiff as expounded ina line of English casesreferred to therein. The grounds recognized by the Courts as justifying renewal have been considerably extended during recent years. See Howells v. Jones (C.A.)TheTimes11/4/75,Moore v.Burtonand 20 Motor InsurersBureau
(1978)128 New Law Journal'513; The Virgo[1978]2 LloydsLawReports 167.' The question of renewal of the writofsummons inan actionm rem was dealt with in the Bemy [1979] 1 Q.B. 80 in which Brandon, J. in granting an order for the renewal of the writ of 25 summons inan action inrem had thistoobserve atp.103: 30 35 «In my opinion, when the ground for renewal is, broadly, that ithas not been possible toeffect service, a plaintiff must, in order to show good and sufficient cause for renewal, establish one orotherofthreemattersasfollows:
(1)thatnone of the ships proceeded against in respect of the same claim, whether inone action ormorethan one action,havebeen,or will be, present at a place within the jurisdiction during the currency of the writ; alternatively
(2)that, if any of the ships have been, or will be, present at a place within the jurisdiction duringthecurrencyofthewrit,thelength orother circumstances of hervisittoorstayatsuchplacewere not, or wut not be, such as to afford reasonable opportunity for 501 Sawides J. Potato Marketing v. Bellam Shipping
(1987)effecting service on her and arresting her, alternatively
(3)that,ifanyoftheshipshavebeen,orwillbe,presentataplace within the jurisdiction during the currency of the writ, the value of such ship was not or will not be, great enough to provide adequate security forthe claim,whereas thevalue of 5 allorsome oroneoftheothershipsproceeded againstwould be sufficient, oranyhow more nearly sufficient, todo so.» The principles laid down therein were followed in the Helene Roth case, [1980]1 LI.LR.477inwhichanapplicationtosetaside the renewal of the writ of summons and service of it, and the \Q unconditional releaseofthe arrested shipwas refused. Irevertnow to the factsof the present case. It is correct that service could not have been effected on defendant 2 once she has not called at any port within the jurisdiction oftheCourtsothatservicecouldbemadeasprovided 15 by Order 16 of the Rules of the Supreme Court of Cyprus in its AdmiraltyJurisdiction. On the question of service in an action in rem we read the following in the British Shipping Laws Vol. 1, AdmiraltyPractice, p.28: «A consideration which may lead a plaintiff to sue in 20 personam isthat service of a writinrem can onlybe effected within thejurisdiction. Thismeansthat although awritinrem and a warrant of arrest may be issued even if the res is not withinthejurisdiction, inorderforeithertobeeffective theres to be proceeded against must be, or come, within the 25 jurisdiction unless service isaccepted bya solicitor, whereas service of a writ in personam can often be effected abroad provided that the conditions laid down in the Rules of the Supreme Court are satisfied.» As to service of the writ of summons for a claim in personam 30 against defendant 1 counsel for applicants has shown a good causewhythewritofsummonshasnotbeen servedon defendant 1. Onthefactsbefore meIfind thatinthepresentcasegood cause hasbeen shown forgrantingtheapplication.This,however, does 35 notinanywaypreclude thedefendants after service iseffected to applytotheCourttohavetheorderrenewingthewritand service thereof setasideon good cause shown. 502 1 C.L.R. Potato Marketing v.Bellam Shipping SawidesJ. In the result the application is granted and Imake an order renewing thewntof summonsfor a further periodofsixmonths from today.Nocosts. Application granted No orderastocosts. 5 503