clr/1988/1988_1_195.pdf

(1988)Admiralty —Admiralty action—Arbitration agreement — The Arbitration Law, Cap. 4, section 8 —Defendant out of the Jurisdiction entered conditional appearance and applied to set aside the service on them and to stay proceedings — The application, as faras the stayis concerned, having as its basisthe 5 arbitrationagreement, ispremature. By a time-charter made in Limassol the plaintiffs chartered to defendants 1their Cyprus vessel TRANS. Both the plaintiff and the Defendant company are shipping companies registered in Cyprus. Defendants 2 guaranteed the performance of the charterparty by defendants 1. The vessel was loaded with Gas-Oil at the port of Harcourt, inNigeria.Followingthesaidguarantee,theBillof Lading was made to the order of defendants 2. The Bill of Lading was eventually changed by the substitution of the consignees, i.e. defendants 2,bydefendants 3. The plaintiffs in this action claim 1,214,816.80 U.S. Dollars balance for charter-hire payable under the Time Charter or in the alternativethesameamountfordamagesforbreachofthesaidTimeCharter and further damages as per paras, (

1. c)and (
2. d)of the indorsement of the writ. The plaintiffs sought and obtained upon an ex-parte application leave to seal and serve on Defendants No.2 and No.3notice of the writ of summons out of thejurisdiction in the above intituled action filed on 22.11.1985. Defendant 3, havingbeenservedwiththenoticeasaforesaid, filed 25 the present application, whereby they prayed for (a)To rescind the Order whereby the leave toserve the notice was granted and toset asidetheserviceofthenoticeonthem,and(b)Tostayproceedings. Leg (
3. a)of the application put forward the following grounds namely: (a)The plaintiffs failed tomakeafull andfrank disclosureof 3 0 all material facts in the affidavit in support of their application for leavetoservethenoticeofthewritoutofthejurisdiction,inmatthey did not disclose the existence of an Arbitration agreement and the existence of a pending litigation in Greece, (
4. b)Cyprus is not the forum conveniens,and (c)Failuretoeffect serviceontheDefendant 3 5 within the jurisdiction (i.e. Defendant No. 1), before applying for leavetoserve defendant 3 outsidethejurisdiction. Leg (b)of the application relieson the existence of an Arbitration agreement and section 8of theArbitration Law, Cap. 4. Held, dismissing the first legof theapplication:

(1)Itisnotcorrect 4 0 that the arbitration agreement and the pending proceedings in 196 10 15 1 CL.R. 5 10 RiversideNavigation v. Hambury & Co. Greecewere notdisclosed. Oncethearbitrationagreementwas fully disclosed in the affidavit, theabsence of directreference therein to the appointmentof thetwo arbitrators does notrenderthe plaintiffs liable for fraud ortoconductamountingtoanattempttodeceive the Court.

(2)Thetime-charterwas signed in Cyprus. Defendants are within the Jurisdiction. Defendants 1 are not «bogus defendants». The action was properly brought against defendants 1. The substantive part of the old English Order II, Rule I(g) requires, consideration whethertheparty orparties outside thejurisdiction are necessary or proper parties toanactionproperly brought against a person within the jurisdiction. 20 The Courtthen has to exercise a discretion ingiving or refusing leave; in exercising such discretion the Court will not go into the merits of the case except to satisfy itself that the plaintiff has a probable cause of actioninrespect of which thedefendantsoughtto be served may be liable. Having considered the material placed before theCourtthisCourtisof theviewthatDefendants3areprima facie a proper party to the action of the plaintiff against all three defendants inspite of thearbitration agreement. 25 The proper translation of theLatinWords «Forum conveniens» is not «convenient forum», but «appropriate forum» (PerLord Goff of Chieveley in Spiliada Maritime Corp. v. Cansulex Ltd. [1986] 3 All E.R. 843 at 853 adopted). In this case Cyprus is the appropriate forum. 15 30 35 40

(3)Rule 237* of the Admiralty Jurisdiction Order, 1893, as construed in Asimenos and Markou v. Chrysostomou and Another

(1982)1 C.L.R. 145 makes applicable «in all cases notprovided by these rules» the English Rules that were in force on the day immediately preceding theIndependence of Cyprus. Inthiscase the relevant English Rule isOrder II,Rule I (g). Invirtue of this Rule the application for leave toserve thewrit or noticeof thewrit outof the Jurisdictionshouldbe madeafter service onthedefendantwithinthe Jurisdiction. In Cyprus, however, what is applicable is the substantive, not the procedural part of this rule. This is due to our Rule5.As ithasbeenheldinNassarv. Brasiliero

(1982)1CL.R. 396 atρ.397 «UndertheAdmiralty RulesoftheSupremeCourtof Cyprus and inparticular rule 5, incontrastto theCivil ProcedureRules and the Admiralty Rules of the Supreme Courtin England, no leave is requiredtoissueawritofsummonsfor service outof thejurisdiction. *Quotedatp206 post .197 Riverside Navigation v. Ilambury &Co. Lorls J. The only leave required isfor theservice of thewritor notice of the writoutsidethe jurisdiction. Held further, dismissing the second leg of the application: The application ispremature. An application under section 8 of Cap.4* should be madeafter appearance. Inthiscasetheapplicantsentered 5 conditional appearance, in order toapply tosetasidetheservice on them. Ifthey had been successful, the second legwould have been without substance. Since they failed, their appearances become unconditional, and they maynowapply for thestay of proceedings. Application dismissed withcosts. 10 Cases referredto: National Line v. Ship «Sunset*

(1986)1CL.R. 393; Attorney-General and Another (No.2) v. Sawides

(1979)1 CL.R. 349; Ellingerv.Guiness, Mahou and Co. [1939]4AllE.R. 16; 15 Ewing v. OrrEwing [1885] 10App.Cas.453; Logan v.Bank ofScotland and Others [1906] 1K.B.141; Egbert v.Short [1907]2 Ch.205; Guendjian v.Societe Tunisienne

(1983)1CL.R. 588; SpiliadaMaritimeCorp. v. CansulexLtd. [1986]3AllE.R.843; 20 Asimenos v. Paraskeva

(1982)1 CL.R. 145; PitriaShipping v. Georghiou

(1982)1CL.R. 358; Nassarv. Brastliero

(1982)1CL.R. 396. Application. Application by defendant No. 3 praying (

1. a)for the rescission of 2 5 the Order of the Court dated 28.11.85 and the setting aside of the service of the notice of the writ of summons upon him and (
2. b)for the stay of proceedings against him. T. Papadoupoullos, for applicant-defendants No. 3 . L. Papaphilippou, for the respondent-plaintiff. 30 Cur. adv. vult. •Quotedatp.200post 198 1 C.L.R. RiversideNavigationv.Hamburv&Co.. LORISJ. read the following ruling.On an ex-parte application filed by the applicants, supported by an affidavit dated 6.11.85, swom by one of itsthen employees namely Demetrios Roussos, an Order was made by thisCourt on 28.11.85, granting leave to 5 sealandserveon Defendants No.2andNo.3noticeof thewritof summons out of thejurisdiction intheabove intituled action filed on 22.11.1985. On 14.1.86,thedayfixed fortheappearance ofthe defendants before thisCourt, Defendant No. 1failed toappearalthoughduly 10 served within thejurisdiction, whilst Defendants No. 2 and No. 3 entered conditional appearance through different advocates and appliedandobtained leavetofilewithin45daysanapplication for thesettingasideoftheserviceofthenoticeofthewritofsummons upon them. 15 On 27.2.86 Defendant No. 3 filed the present application, supported by an affidavit dated 24.2.86 swom by Miss Pitroff, praying (
3. a)for the rescission of the Order of this Court dated 28.11.85 and the setting aside of the service of the notice of the writ upon him, and (
4. b)for the stay of proceedings, in the above 20 intituled action, asagainst him. On 5.4.86 the plaintiff filed notice of intention to oppose the aforesaid application of Defendant No. 3, supported by an affidavit sworn by one of his employees namely Stavros Tsitsirides. 25 Defendant No. 3 filed in support of his present application a supplementary affidavit dated 30.5.86 sworn byMissPitroff. Pursuant torelevantOrdersmade bythisCourtunderRule 117 of the Cyprus Admiralty Jurisdiction Order, 1893, on the applicationsoftheplaintiff andDefendant No.3respectively,Miss 30 Pitroff, the affiant in support of applicant's application, and Mr. Stavros Tsitsirides, the affiant in support of respondent's opposition, attended this Court for cross-examination and they were so heard viva voce during the hearing of the present application. 35 Beforeproceedingtoexamineleg(a)ofthepresent application, notably the prayer for the rescission of the Order of this Court dated 28.11.85 (which Iam authorised tovaryor rescind, on due cause shown invirtue of theprovisionsof rule 211 of the Cyprus Admiralty Jurisdiction Order, 1893) Iintend to deal with leg (b), 40 notably the stayof proceedingsasagainstDefendant No.3,asan , objection was taken by the respondent-plaintiff to the effect that 199 LorisJ. Riverside Navigationv.HamboryA Co.

(1988)applicant-Defendant No.3hasnotcompliedwiththeprovisionsof section 8 of our Arbitration Law,Cap.4,which requiresinteralia that an application for an order staying the proceedings should be submitted «at any time after Appearance» and in the instant case, it was submitted, Defendant No. 3 entered a «conditional appearance» onlyand isatthesame timemoving thisCourttoset aside the service of the notice of the writ on him outside the jurisdiction. 5 Section 8 of the Arbitration Law, Cap.4 reads: «If any party to an arbitration agreement, or any person 10 claiming through or under him, commences any legal proceedings in any Court against any other party to the arbitration agreement or any person claiming through or under him,inrespect of anymatteragreed tobe referred, any party to such legal proceedings may at any time after 15 appearance, and before delivering any pleadings or taking any other stepsintheproceedings,applytothatCourttostay the proceedings, and that Court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the 20 applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct ofthearbitration may make an order staying the proceedings». Independently of the provisions of s.8 of Cap.4set outabove, 25 itisapparent from thefacts and circumstances ofthiscasethatleg (b)oftheprayerispremature.Defendant No.3entered on 14.1.86 a conditional appearance, and applied and obtained leave to file within 45 days an application for setting aside the service of the notice of the writ of summons upon him. This is the gist of the 30 present application and it is covered by prayer under (

1. a)above which Ishallproceed toexamine after disposingprayer under(b). Iftheapplicantsucceeds inprayer(a)and obtainsafinal judgment setting aside the notice of the writ of summons there is no substance inhisprayer for stayofproceedings; ontheother hand 35 ifthe initialOrder of thisCourtisaffirmed finally, then applicant's appearance becomes unconditional and iftheprerequisitesofthe law arepresent he may apply for a stayof proceedings. Forallthe abovereasonsIholdtheviewthatprayerunder(b)is doomed tofailure; and isaccordingly dismissed. Reverting now to the gist of the main application covered by prayer under (a)above; the grounds relied upon bythe applicant 200 40 1 C.L.R. Riverside Navigation v.Hamtraiy &Co. Lorls J. are setoutinthebodyof the application and have been summed up and elaborated upon by learned counsel appearing for the applicant under three broad Headsasfollows: Ground One: Failure of the plaintiff-respondent to make a full 5 and frank disclosure of all material facts in the affidavit in support of hisapplication forleavetoservethenoticeofthewritoutof the jurisdiction. Ground Two:Cyprus,allegedly,isnotthe«Forum Conveniens» for the case under consideration. 10 Ground Three:Failuretoeffect serviceontheDefendant within thejurisdiction (i.e.Defendant No. 1),before applyingforleave to serve the defendant outside the jurisdiction (i.e. the applicant in thepresent proceedings). Before considering the grounds submitted by learned counsel 15 for applicant, I consider itpertinent atthisstage tolaystressto the fact that Iam examining these grounds in connection with leg(
2. a)of theprayer ofthepresent application, havingalready dismissed prayer under (b)for the reasons above stated. Ground One:The material facts which the plaintiff-respondent 20 allegedly failed to disclose in the affidavit in support of his application for leave to serve the notice of the writ out of the jurisdiction, were stated by learned counsel appearing for applicants to be «the fact that there was existing between the parties an arbitration agreement and that arbitration proceedings 25 have been commenced in England.» The words in inverted commas are verbatim the complaints of the applicant as stated before me orallybyhislearned counsel; to the above complaints another «material fact» was referred to by learned counsel for applicant inhiswritten address inreply: (videpara.3(b)thereof at 30 page 6) the alleged «suppression of the existence of the proceedings before the Greek Court, with regard to the claim of the Nigerian Government and the eventual disposition of the cargo...» With respect Iam unable to agree that the aforesaid facts were 35 notdisclosedintheaffidavit insupportofplaintiff's applicationfto servetheapplicant outofthejurisdiction;appendixDR3attached andreferred tointheaffidavit ofDemetriosRoussosdated 6.11.85 isthe arbitration agreement signed byPlaintiff and defendant No. 3 on 29.2.84 to which extensive reference has been made in the 40 present proceedings before me; the four pages of the agreement 201 LorisJ. Riverside Navigation v. Hambury &Co.

(1988)aforesaid throwamplelightonthefactsallegedlyconcealedbythe applicant;apart from thearbitrationagreementthesaid document makes extensive reference to the proceedings before the Greek Court as well as to the claimsoftheNigerian Government on the cargo loaded on the aforesaid vessel of theplaintiffs atthe time. 5 The aforesaid affidavid of Demetrios Roussos with Appendix DR3,werebefore mewhen Iwasexaminingtheapplication ofthe plaintiff for leave to serve the writ out of the jurisdiction on Defendant No. 3, and in the circumstances itcannot be seriously contended that a full and frank disclosure, at least of the facts 10 complained of by the applicant in the present proceedings, was not made. After all, as stated in National Line v. Ship «Sunset»

(1986)1 C.L.R.393atp.404: «An arbitration clause in a contract does not oust the 15 jurisdiction of the Court and such clause is not a bar or defence toproceedingsbroughtinrespectofadisputeagreed tobe referred to arbitration...» I hold the view that once the arbitration agreement was fully disclosed intheaffidavit, theabsence ofdirectreference thereinto 20 the appointment of the two arbitrators does not render the plaintiffs liable for fraud (Attorney-General &Another (No. 2) v. Sawides

(1979)1 C.L.R. 349atp. 369, 370, 371), orto conduct amountingtoanattempttodeceivetheCourt (Ellingerv. Guiness, Mahon &Co. [1939]4AllE.R^16,NationalLine v.Ship «Sunset» 25 (supra)atp.

1. Ground one therefore fails. Ground Two: Ishall proceed to examine this ground bearing alwaysinmindthatprayer (a)ofthepresentapplication isdirected against the Order issued on 28.11.85, granting leave for the 30 service of the notice of the writ on Defendant No. 3 out of the jurisdiction. . The material facts maybe briefly statedasfollows:The plaintiff, a shipping company registered in Cyprus under the Companies Law Cap. 113,wasat the material time the owner of Cyprusship 35 «TRANS». Defendant No. 1, a shipping company registered in Cyprus as well,enteredintoaTimeCharterdated 18.8.83signedatLimassol (Cyprus) (vide D.R.I attached to the affidavit of Demetrios 202 1 C.L.R. Riverside Navigation v. Hambary &Co. Loris J. Roussos of 6.11.85) by virtue of which plaintiff chartered to defendant No. 1vessel «TRANS» at a daily charter hire of 2,600 U.S. Dollars,payable inadvance every 15daysbytelex transfer. The aforesaid vessel was loaded with 2,300 metric tons of gas 5 oilattheport of Harcout, Nigeria. Defendant No. 2 on 23.9.83 provided guarantee for the performance of the Charterparty aforesaid. Following the above guarantee the Billof Lading was made to theorderof Defendant No.
3. At the request of Defendant No. 1 and with the consent of all concerned, the Bill of Lading was changed on 7.10.83 to show Defendant No.3 as consignee instead of Defendant No.
4. The Plaintiff company claims 1,214,816.80 U.S. Dollars balance for charter-hire payable under theTime Charter or inthe 15 alternative the same amount for damages for breach of the said Time-Charter and further damages as per paras, (c)and (d)of the indorsement of the writ. Thewritwasissuedwithoutleave,asnoleaveisrequired forthe issue of a writ either for defendants within or outside the 20 jurisdiction, according totheCyprusAdmiralty Rules-asitwillbe explained later on inthe present decision. Leave was sought for the service of notice of the writ on defendants 2 and 3 outsidethe jurisdiction. In such circumstances, what the substantive part of Order 11 25 rule 1(g) of the old English Rules requires, is the consideration whether theparty orparties outsidethejurisdiction are necessary or proper parties to an action properly brought against a person within the jurisdiction. The Courtthen hastoexercisea discretion ingivingor refusing 30 leave; in exercising such discretion the Court will not go into the merits of the case except to satisfy itself that the plaintiff has a probable causeofaction inrespect ofwhichthedefendant sought tobe served may be liable. Intheinstant caseitisclearthatDefendant No. 1 waswithin the 35 jurisdiction; and Time-Charter was signed in Limassol (Cyprus), that is within the jurisdiction. Independently of the breach, the time-Charter was signed within the jurisdiction; therefore the action against Defendant No. 1was properly brought before this Court;inotherwordsDefendant No. 1isnotandwasnota«Bogus 203 LortsJ. RiversideNavigationv.Hambtny&Co.

(1988)Defendant»; and in this connection Imust say that even after the hearing of the present application I was not convinced atall, that Defendant No. 1was employed as a «Bogus Defendant», for the purposes of initiatingpresent action. NowDefendant No. 2 wastheguarantoroftheTime-Charter;I 5 shall say no more about Defendant No. 2, as his application for setting aside the service upon him out of the jurisdiction is still pending;Ishallonlyconfine myself insayingthismuchabout him: he isprimafaciebothanecessaryandaproperpartyinthe present proceedingsandheisnotasignatorytothearbitrationagreement. 10 AsregardsDefendant No.3,theapplicant inthese proceedings, he wasmadethe consignee ontheBillofLadingwiththe consent of all concerned. Learned counsel for him submitted that defendant No. 3 was the owner of cargo aboard the ship of the plaintiff; he maintained that his obligations are limited to the 15 contract of Affreightment i.e. to the Bill of Lading, which by reference, incorporates the terms of the Charterparty; this agreement, learned counsel concluded, in no way makes Defendant No.3 signatory of theCharterparty orliableintort. Withrespect, thisveryableargumenthastobesubmittedindue 20 coursebefore thetrialCourt,notbefore me;Iamsimplyexercising a discretion whether there isprima facie case against Defendant No. 3,withaview todeciding whether leavewasdulygranted for service of the writon defendant No.3 out of thejurisdiction.And having considered thematerialplaced before me,Ihaveheldthat 25 Defendant No.3wasprimafacieaproperpartytotheactionofthe plaintiff against all three defendants inspite of the arbitration agreement; I am still of the same view after having heard the present application, asan arbitration agreement does notoustthe jurisdiction of the Court but it merely gives the right subject to 30 certain formalities and conditions to apply for a stay of proceedings (videNational Line v.Ship 'Sunset'- supra). Inexercisingthe discretion, forgrantingleavetoservenoticeof the writ outside the jurisdiction generally speaking «forum conveniens» may have a bearing, although Lord Setbome in 35 Ewing v.OrrEwing [1885]1OApp. Cas.453, atp.506statedthat: «Itappears alsothat the doctrine of forum conveniens, which inEnglishseldom comes intoconsideration when jurisdiction existsapart from service orprocessabroad, unlessthereisan actual competition of suits,isinScotland carried further, and 40 may prevent the exercise of jurisdiction when the Court is 204 1C.L.R. RiversideNavigationv.Hambury&Co. LorisJ. satisfied thatthesuitmighthavebeen brought and effectively prosecuted in a more convenient forum, although this may not actually have been done.» Thequestionof«forum conveniens»wasdiscussedinthecaseof 5 Logan v.Bank ofScotland and Others [1906] 1K.B.141and the principles laid down therein were followed in Egbert v. Short [1907]2Ch.205,butitmustbeborneinmindthatbothcaseswere decided on a motion that the respective actions should be dismissed on the ground that they were frivolous and vexatious 10 and an abuse of the process ot the Court, which is not the case under consideration. A number of other cases referring to the doctrine of 'forum covneniens' are referred to in the case of Guendjian v. Societe Tunisienne

(1983)1CL.R. 588,decided byourCourtofAppeal, 15 where atpages592&593theapplicabilityofthesaiddoctrine as partoftheEnglishPrivate International Law(whichisthesame as Cyprus Private International Law) iscommented upon, and itis clearly stated that «the said doctrine isnot to be treated as being applicable, as yet, as part of English Private International Law, in 20 thesame mannerassuchdoctrineisappliedinScotlandandinthe United Statesof America.» In the recent case of Spiliada Maritime Corp. v. Cansulex Ltd [1986]3AllE.R.843H.L.,the House ofLordsallowedthe appeal againstadecisionoftheCourtofAppealwherebytheyreversed a 25 decisionotStaughtonJ., inwhichherefused anapplicationbythe respondents Cansulex Ltd., toset aside leave granted exparte to the appellants, Spiliada Maritime Corp., toserve proceedings on the respondents outsidethe jurisdiction. Lord Goff of Chieveley delivering the judgment of the House, 30 after elaborating on «forum conveniens» and «forum non conveniens» stated the following atp.853: «In my view 'competent' is just as bad a translation for 'competens' as 'convenient' is for 'conveniens'. The proper translation fortheseLatinwords,sofarasthisplea isconcerned is 35 'appropriate'.» Inthecaseunderconsideration,whichisacase underOrder 11 rule 1(g) of the old English Rules, Ihold the view that this Court which hasjurisdiction in thiscase for the reasons above stated, is also the appropriate forum in which the case can be tried more 40 suitably forthe interests of allthe litigantsand the ends ofjustice. Ground two,therefore, failsaswell. 205 LotisJ. RiversideNavigationv.Hambury&Co.

(1988)Ground Three: This ground is purely procedural. The submission of the learned counsel for applicant was to the effect that the plaintiff failed to serve Defendant No. 1, within the jurisdiction first, before applying for leavetoserveDefendant No. 3 out of the jurisdiction. Learned counsel maintained that the 5 practice aforesaid violatesOrder 11r. 1(g)oftheoldEnglishRules which provide that when there are defendants both within and outside thejurisdiction, the defendant within thejurisdiction must be served first. Before proceeding toexaminethissubmission itisnecessary to 10 deal as briefly as possible with the relevant parts of the Cyprus Admiralty Jurisdiction Order 1893 and in particular rule 237 thereof which reads as follows: «237. In all cases not provided by these Rules, the practice of Admiralty Division of the HighCourt ofJustice inEngland, so far 15 as the same shall appear to be applicable, shall be followed.» InAsimenos v. Paraskeva

(1982)1CL.R. 145itwasheldbythe Full Bench of this Court, (at p. 161) that «...The Rules of the Supreme Court which were inforce and applied inthe Admiralty Division of the High Court of Justice of England on the day 20 preceding the Independence Day of Cyprus (the 16th August, 1960) are the ones applicable bythis Court in the exercise of its Admiralty jurisdiction to the extent contemplated by rule 237 of the CyprusAdmiralty Rules of 1893.» The above principle was reiterated in Pitria Shipping v. 25 Georghiou

(1982)1 C.L.R. 358 where my learned brother Pikis, deliveringtheunanimousjudgment oftheFullBenchofthisCourt stated the following: (vide p. 365):«That the old English Rulesof the Supreme Court are applicable, is now certain beyond peradventure inthe lightof therecent decision of the FullBench 30 inAsimenos and Markou v. Chrysostomou andAnother

(1982)1 C.L.R. 145, authoritatively settling that the English rules applicable byvirtue ofr.237 arethose thatwereinforce in 1960. This was found to be the case on a fairinterpretation of s.29

(2)(

1. a)of the Courts of Justice Law -14/60, and the unlikelihood of the 35 House of Representatives intending to delegate any of its legislative functions to a body orauthority outside the realm over which itcould have no control...» Order 11, rule 1(g)of the oldEnglish rulesreads: «1. Except in the case of awrittowhich Rule IAof thisOrder 40 applies,service outofthejurisdiction of awritofsummons or 206 1C U R 5 RiversideNavigationv.HambaryftCo. LortsJ. notice of a writ of summons may be allowed bythe Court or aJudge whenever (a)...(b)...(c)...(d)...(e)...(f)... ... (g)Anyperson out of thejurisdiction isa necessary or proper partytoanaction properlybroughtagainstsomeotherperson dulyserved withinthejurisdiction. (
2. h)» At this stage it is necessary to mention what is stated in the Annual Practice of 1958 in respect of sub-rule (
3. g)under the 10 heading Practice atp.161: 15 «Practice. -Issuea writforservice withinjurisdiction (0.5, r.2, (n)«Practice») making the party to be served within, and the party whom it is intended to serve without the jurisdiction, defendants. Thiswritwouldbestamped 'notforserviceoutof thejurisdiction withoutorder.' Serve acopyofthewriton the defendant withinthejurisdiction.Thenapplyforleavetoissue and serve a concurrent writ, or notice or writ, on the defendant out of the jurisdiction...» Itisapparent thatlearned counselforapplicant isrelyingon the 20 above «practice», which evidently requires in the first place the serviceofacopyofthewritonthedefendant withinthejurisdition and then an application for leave to issue and serve a concurrent writonthe defendant outof the jurisdiction. The submission of the learned counsel for applicant is to the 25 effect thatsince Rules23and 24 of ourAdmiralty Rulesare silent onthematter,then pursuanttoourRule237theoldEnglish Rules apply; and as (I)theinterpretation onsub-rule (g)ofOrder 11rule 1,setoutin theabove cited 'practice' note intheAnnual Practice, and as 30 (II)the English Courtshave repeatedly ruled thatthe defendant withinthejurisdictionshouldbeservedfirst,before an application is made for leave to issue and serve a concurrent writ or notice thereof on the defendant outside thejurisdiction, and as (HI) Defendant No. 1 in this action was served within the 35 jurisdiction on 10.12.85 whilst the application for leave to serve notice of the writ outside the jurisdiction was submitted and granted priortotheservice on Defendant No. 1, thepresent application should succeed on thisground, and the Order ofthisCourtdated 28.11.85,be setaside. 207 ? Lori·J. RiversideNavigatkuiv.rUmtmry&Co.

(1988)Thisishow Iunderstood thesubmission of the learned counsel forapplicant. IaminagreementwithhimthatourAdmiraltyRules which provide for service outsidethe Jurisdiction (Rules23to 27 inclusive)aresilentontheissueastowhetherthedefendant within the jurisdiction should be served in the first place before 5 application ismade for leave toserve the defendant outside the jurisdiction. And this so because there is no provision in our Admiralty Rules similar to that of Order 11 rule 1 (

1. g)of the old English Rules; in the circumstances I hold the view, that the substantive part of Order 11 rule 1 (
2. g)is applicable in virtue of 10 Regulation 237, but the procedural part thereof isnot applicable owing to the provisions of Rule 5 of our Admiralty Rules; In this respect I fully indorse the statement of my learned brother Sawides J. in Nassar v. Brasiliero

(1982)1 C.L.R. 396 atp. 397 «Underthe Admiralty Rulesof the Supreme Courtof Cyprusand 15 inparticularrule5,incontrasttotheCivilProcedureRulesand the Admiralty Rules of the Supreme Court in England, no leave is required to issue a writ of summons for service out of the jurisdiction....» Iwishtolaystressonthe factthathere,unlikeEnglandnoleave 20 isrequired fortheissueofawritdestinedtobeservedabroad. The onlyleaverequired isfortheserviceofthewritornoticeofthewrit outside the jurisdiction. Thusonce no leave isrequired to issue a writ either for the defendant within the jurisdiction or the defendant outsidethejurisdictionthe«practice»noteintheAnnual 25 Practice set out above and English cases connected therewith (incidentally none wascited insupport thereof, although perusal of the Annual Practice leaves no margin for doubt that the submission iscorrect) are notapplicable in Cyprus. Inanyevent Defendant No. 1 wasserved withinthejurisdiction 30 on 10.12.85 i.e. some days after the Order granting leave for service of the notice of the writ on defendant No. 3 outside the jurisdiction, and considerable time before Defendant No. 3 entered a conditional appearance (14.1.86)and applied for leave to filethepresentapplication.Inthe circumstancesIholdtheview 35 that the applicant was notinanywayprejudicially affected by the fact that Defendant No. 1 was served with the writ of summons some twelve daysafter the grantingoftheex-parte application for the serviceof thenoticeofthewriton defendant No.3outside the jurisdiction.Itmayaswellbeadded herethatthewritofsummons 40 againstall3 defendants wasissued withoutleaveasleavewasnot required -on the same day i.e.on22.11.85. 208 1CL.R. 5 RiversideNavigationv.Hambory&Co. LorisJ. Before concluding I feel that I should humbly repeat the observations of the Full Bench of this Court in Asimenos v. Paraskeva(supra)with regard tothe need fortheredrafting of the RulesoftheSupremeCourtofCyprusinitsAdmiraltyJurisdiction; thepresentcasereflects once more thedifficulties thatmay ensue owing to the vagueness of Rules which after all have been introduced about a century ago. In the result present application fails in its entirety and it is accordingly dismissed with costs against applicant tobe assessed 10 bythe Registrar, Application dismissed withcosts. 209