1 C.L.R. 1988June10 (PIKIS,J ) TRADAXOCEAN TRANSPORTATION, S.A. Plaintiffs, v. TERMINALNAVIGATIONCO. LTD, Defendants. (AdmiraltyAction No 197/87). 5 Admiralty—Writofsummons—The AdmiraltyJurisdiction Order, 1893, Rules 5-14—The writ should command defendant to appear before the Courton daycertain—Registrarshould beprovided with a copy forservice—Court invited argument asto effect offailureto observe aforesaidprinciples. Admiralty—Appearance toanaction—Canonlybeeffected personallyor through an advocate appearing before the Court on the date specified inthe writof summons. 10 15 20 Upon discovering that the present action was instituted against them, the defendants entered a memorandum of appearance and filed the present application summoning the plaintiff to appear beforetheCourtandbeheardinrespectoftheissuanceofdirections for the exchange of pleadings. The plaintiffs opposed the application on the ground, inter alia, that the defendants had no locus standi, as the writ had not been served on them. The defendants replied that under an old practice theywere entitled toenter a gratisappearance. Inthiscase the writdidnotcontain an invitation tothe defendant to appear on a day certain before the Court and no copyof the writ wasleft with the Registrar forservice on the defendants. Held, dismissing the application:(l) The combined effect of Rules 5to 14isthatawritmustexpresslysummonthedefendant to appear before theCourtonadatecertain.Theplaintiff isdutyboundtoleave with the Registrar for sealing a copy of the writ of summons for 349
(1988)Tradaxv.Terminal Navigation service upon the defendant (R.12).The rulesconfer nodiscretion to relax observance of the rules relevant to the issue of the writ of summons.
(2)Whether a writ can be deemed to have been validly issued. notwithstanding failure to provide a ropy for service upon the defendant and observe of an invitation to the defendant to appear before the Court and make hisanswer isa question that this Court shall not presently decide because it will invite argument before rulingon thisaspectof the case.
(3)Appearance in an admiralty action can only he entered personallyorthrough anadvocateappearingbefore theCourtonthe date specified in the writ ofsummons.The rulesniak'1 no provision for asubstitutemode ofappearancenoristhet* ii-nenify toauthorize sucha course. 5 10 Application dismissed. 15 No orderasto costs. Casesreferredto: Oulton v.Radcliffe
(1874)L.R.C. 189; Fellv. Christ'sCollege Cambridge
(1785)2 Brown'sCases279; Hope v.Hope
(1854)De G.M.and G.R 328; 2Q Asimenos v.Paraskeva
(1982)1C.L.R. 145; PitnaShipping v. Georghiou
(1982)1C.L.R. 358; Lysandrou v.Schiza and Another
(1979)1C.L.R. 267; Evagorou v. Christodoulou andAnother
(1982)1C.L.R. 771. Application. Application by defendants foran ordersummoning the plaintiffs to appear before the Court on the 31st March, 1988 to be heard in the matter of issuance of directions for the exchange of pleadings between the parties. A. Haviaras, for applicants - defendants. St. McBride, for respondents - plaintiffs. Cur. adv. vult. PIKISJ. read the following judgment. On 15th March, 1988, the defendants upon learning or discovering that the present action 350 1 C.L.R. 5 10 15 20 Tradax v. Terminal Navigation Pikls J. had been instituted by the plaintiffs against them, they entered a memorandum of appearance On 21st March, 1988, they made an application summoning the plaintiffs to appear before the Court on the 31st Ma.».h 1988, to be heard in the matter of issuance of directions for the exchange of pleadings between the parties The aphcation was opposed, firstly on grounds of defectiveness of the proceeding, stemming from failure to serve theapplication 10cleardayspnortoappearancebefore theCourt as ordained by R 214* and, secondly lack of locus standi of the defendants in the proceedings The writ of summons was not served upon the defendants, therefore, they had no nght toenter an appearance in the cause Counsel for the plaintiffs descnbed the wnt of summons as an open writ unaccompanied by any invitation to the defendants to appear before the Court on any specified dateand dispute the action The actionwas initiated, as counsel explained, solely for the purpose of raising the proceedings within the time limited by the agreement of the parties (charterparty) The dispute, subject-matter of the wnt of summons, is presently the subject of arbitration in London Depending on the outcome of the arbitration, so far as I was able to gather, the plaintiffs consider themselves at liberty to activate the action orabandon it Counselfor thedefendants contendedthathisclientshadanght to enter an appearance upon gaining information about the 25 pendency of the present proceedings In accordance with the practice of English Courts, adefendant may make what istermed «a gratis appearance» whenever he is informed thatan action has been institutedagainst him** The practice is one of considerable antiquity founded on authority of long standing*** The same 30 practiceshouldfind applicationmCyprus,counsel argued, inview of theprovisions of R237 making English practiceapplicable inall cases not provided for by the Cyprus Admiralty Rules Considenng, therefore, the absence of provision in the Cyprus rules for agratis appearance, the gap should be filled bv recourse 35 toEnglish rules and practice**** *CyprusAdmralty Jurisdiction Order 1893 "White Book I960 ρ 184 *** See Outtonν Radcliffe
(1874)LRC 189 Fellν Chnst s College,Cambridge
(1785)2 Brown's ChanceryCases279 Hopev Hope
(1854)De G Μ &GR 328 " " InAsimenosv Paraskeva
(1982)1C LR 145 itwas decided thatthe Englishrule'·and practiceapplicableby virtueof R237are those that were in foice m i960 See, also Pitna Shipping ν Georghiou
(1982)1CLR ρ358 351 Pikis J. Tradax v. Terminal Navigation
(1988)Theacknowledged failure onthe otherhand,toconform tothe requirements ofR.214and ensure noticeof10cleardayspriorto the hearing ofthe application, does notrender the proceeding a nullityinviewoftheprovisionsofOrd.70,r.1,oftheEnglishRules in force in1960conferring discretionontheCourt lolemedy byan 5 appropriate order the irregularity*. Only a defect vitiating the basisofthe action, going totherootofthe litigation, can have th* effect ofvoidingtheproceeding. Forthereasonsindicated oelcw, its isunnecessary to ponder theeffects of non-compliance with R.214onthevalidity oftheapplication here under consideration. 10 For the application must necessarily be dismissed for other reasons explained hereunder. At the close of the address of counsel for the respondents (plaintiffs) 1 questioned the legitimacy of thesubmission that a plaintiff hasarightto issueawritunaccompanied byan invitation 15 tothe defendant toappear atatime certain before the Court and make answer totheclaim. Idrew theattention ofcounsel to the provisions of R.5 to R.14 governing the issue of a writ of summons in an admiralty action and those of R.35toR.47 govering the right ofthe defendant tomake appearance thereto. 20 The combined effect of R.5 toR.14 isthat awrit must expressly summon the defendant to appear before the Court on a date certain. Andin order to serve that purpose the plaintiff is duty bound toleave with theRegistrar forsealingacopy ofthewritof summons for serviceupon thedefendant (R.12).Therulesconfer 25 no discretion torelax observance oftherulesrelevant tothe issue ofthe writofsummons. Infact, the Registrarisdutybound bythe provisions ofR.9:« who shall inscribe onthewrit the dateof the year and the number of the writ and insert in the writ a statement ofthe dateand hour when thedefendant isrequired to 30 appear before theCourt, andthedateofthedayonwhichthewrit is issued». Whether a writ canbe deemed to have been validly issued notwithstanding failure to provide acopy forservice upon the defendant and observe of an invitation tothedefendant to appear before theCourt and make hisanswer isaquestion that! 35 shallnot presently decide forIshall inviteargumentbefore ruling on thisaspect ofthe case. " Theimplicationsof Ord.64ofthe CivilProcedureRulesfounded onOrd.70, R.l, ofthe oldEnglishRulesweredebated andexaminedinLysandrouv.Schiza&Another
(1979)1C.L.R.267;Evagorou v.Christodoulou&Another
(1982)1C.L.R.771. 352 1 C.L.R. Tradax v.Terminal Navigation PUds J. Unlike ordinary civilproceedings* appearance in an admiralty action can only be entered personally or through an advocate appearing before the Court on the date specified in the writ of summons. Whereupon directions are given for the definition of 5 theissuesindisputeasprovided inR.38and R.39.Therulesmake no provision for a substitute mode of appearance nor is there amenity to authorize such a course. Icomprehend the anxietyof defendants to be heard in a matter directly affecting them. That matter, however, can only be examined in the context of 10 remedyingthedefect inthewritofsummonsarisingfrom failure to summon thedefendant toappearbefore theCourt, assuming that the writwasnot void ab initio.Consequently, theapplication will bedismissedand Isodirect.AtthesametimeIdirectthattheissue of the validity of the writ of summons and matters associated 15 therewith be set down for argument on 23rd June, 1988, at 8.45 a.m. The application isdismissed with no order asto costs. Application dismissed. No orderasto costs. *Ord. 16,CivilProcedure Rules. 353