clr/1988/1988_1_397.pdf

(1988)Held, granting the application

(1)The English Rules that are applicable invirtue of thesaid Rule237 arethoseinforce inEngland ontheday preceding theIndependenceDayofCyprus (Asimenosν Paraskeva

(1982)1C L R 145) 2) As our Rules are silent in respect of the matter in issue, such 5 matterisgoverned by thesaid English Rulesand,inparticular,Order 8,Rule 1* 3) Itisclear thatany application thereunderhas tobe made before expiration of the penod of 12 monthsas from the issue of the wnt This is notwhat happened inthiscase 10 4)Thequestion iswhetherthisapplicationcanbe savedby relying on Order 64 Rule 7** of thesame English Rules Theauthontiesshow that itissettled thatby theapphcatior of the two rules theCourthas power to renew a wnt even if the application is made after the expiration of thetwelve months 15 5) The applicant has to satisfy the Courtthatthere was sufficient reason or good cause to excuse the delay in service It is only in exceptional cases that the effective start of litigation should be postponed, especially when the end of the twelve months penod extends beyond the limitation penod, and, above all, when the 20 application for renewal was made after the expiration of the said penod of 12 months Reasonable efforts to effect service or an agreement to defer service or delay, induced or contnbuted to, by the defendant are good causes 25 6)On thefacts of this case, therenewal is justified Applicationgranted No order as to costs Cases referred to Asimenos v. Paraskeva

(1982)1C L.R 145, Shelton ν Brown Bayleys Steeiwords [1953] 2All ΕR 894, £ Ltd ν CandAnofner[1959]2AUER 468, Holmanv George Elliotand Co Ltd [1944] 1All ΕR 639, *Quotedatρ400post **Quotedatρ400post 398 30 1 CUR. PotatoMarketingBoardv.Thetis Shipping Battersby and Others ν Anglo-Amencan Oil Co Ltd and Others [1944] 2All Ε R 387, «BemjM1979] 1QΒ 80, *HeleneRoth» [1980]1LIL R 477 5 Application Exparte application for the renewal of thewnt of summons for a penod of six monthsas from 3rd June, 1988. / Chnstodoulou (Mrs)for C Indianos,forapplicants -plaintiffs λ 10 Cur. adv vult STYLIANIDESJ read the following decision By this ex-parte applicationapplicants-plaintiffs apply for therenewal of thewntof summons for apenod of six monthsas from 3rd June, 1988 The wnt was issued on 4th June, 1987, and is directed against two defendants The action against defendants 1 is in personam 15 and against defendant 2 isinrem The application is based on Rule 237 of the Cyprus Admiralty Junsdiction Order 1893 and Order 8 Rule 1 of the English Rules (the old Rules of the Supreme Court) Rule 237 reads as follows* 20 «Inall cases notprovided by these Rules, thepracticeof the Admiralty Division of the HighCourtofJustice of England, so far as same shall appear tobe applicable, shall be followed» InAsimenos ν Paraskeva

(1982)1C.L R 145 itwas heldby the FullBench of thisCourtthatsinceafter theIndependence of Cyprus 25 and as contemplated by the Constitution, the Courts of Justice Law, 1960 (Law 14/60)was enacted by virtue of section 19(a) of which the Supreme Court shall have junsdiction as the Courtof Admiralty vested with and exercising the same powers and 30 junsdiction as those vested in or exercised by the High Courtof Justice in England in its Admiralty junsdiction on the day immediately preceding Independence Day, thatsince the law to be applied in the exercise of such junsdiction is, by virtue of 35 section 29

(2)(a) of the Courts of Justice Law, the law applied by theHighCourtofJustice inEnglandintheexercise ofitsAdmiralty Junsdiction, as in force on the day preceding theIndependence 399 StyUanldes J. Potato Marketing Board v.Thetis Shipping

(1988)Day,subject toanyamendments which mightbe effected by any law of Cyprus; and that since Rules of Court are a species of legislationand,therefore,theprovisionsofsection29

(2)(a)extend to them as well, the Rules of the Supreme Court which were in force and applied in the Admiralty Division of the High Court of 5 Justice of England on the day preceding the Independence Day aretheonesapplicablebythisCourtintheexerciseofitsadmiralty jurisdiction to the extent contemplated by rule 237 of the Cyprus Admiralty Rules of 1893. The Cyprus Admiralty Rules of 1893 are silent on the issues \Q raisedinthisapplication.ThematerialpartofOrder8Rule 1 ofthe RulesoftheSupreme CourtobtaininginEnglandon15thAugust, 1960, provides: «No original writ of summons shall be in force for more than twelve months from thedayofthedatethereof, includingthe 15 day ofsuch date;butifanydefendant therein named shallnot have been served therewith, the plaintiff may, before the expiration of the twelve months, apply to the court or a judge for leave torenew the writ;and the courtiorjudge, ifsatisfied that reasonable efforts have been made to serve such 20 defendant, or for other good reasons, may order that the original or concurrent writ of summons be renewed for six months from the date ofsuch renewal inclusive, and so from time totime during the currency of the renewed writ...» It isclear that any application under Order 8 Rule 1 has to be 25 made before the expiration oftherelevant period,andinthiscase no such application was made. Accordingly reliance has to be placed on R.S.C. Order 64 Rule7, which isa'tgeneral rule, which provides: «Acourt or ajudge shallhave power to enlarge orabridge 30 the time appointed by these rules, or fixed by an order enlarging time, for doing any act or taking any proceeding, upon suchterms(ifany)asthejusticeofthecasemayrequire, and any such enlargement may be ordered although the application for thesame isnot made untilafter the expiration 35 of the timeappointed or allowed...» At a time in the development of the English Law the opinion prevailed thatafter the expiration of twelve months thewritwasa nullity. 400 1C.LR. Potato Marketing Board v.Thetis Shipping StyUanldes J . InSheldon v.Brown Bayleys Steelwords [1953]2AllE.R. 894 itwassaidatp.896: «Idonotregarditasstrictlyaccuratetodescribeawritwhich hasnotbeen served withintwelvemonthsasanullity.Itisnot asthough ithad neverbeen issued. Itissomething which can berenewed.Anullitycannotberenewed.Thecourtcangrant an application which results in making itjust as effective asit wasbefore the twelve monthsperiod has elapsed.» 5 InE.Ltd. v.C.andAnother [1959]2AllE.R.468atp.469itwas 10 said: «In my judgment there is no lack of jurisdiction in me to grantthisapplication underthetworulesincombination, ifin mydiscretion Ithinkfit;andtheonlyrelevanceofthequestion whethertheapplication istobetreated asawholeunderOrd. 64,r.7,orwhether itispartly under Ord. 8, r.l, isthat in Ord. 8, r.l, the discretion isqualified bythe words 'if satisfied that reasonable efforts had been madetoservesuch defendant, or for other good reasons' and Order 64, rule 7 is hot so qualified. Butasthewords Orfor other good reasons' arein themselves very wide, I doubt if it makes much difference whether Iproceed undertheonerule,orpartlyunderoneand partly under the other.» 15 20 In Holman v. George Bitot Co. Ltd. [1944] 1 All E.R. 639 Mackinnon, L.J. said at p.640: 25 30 35 40 «Thesolequestion is,firstofall,whetherthereisadiscretion in the court under R.S.C., Ord. 64, r. 7, to enlarge the time fixed for the service of a writ under R.S.C., Ord. 8 r. I; and, secondly, if there is such a discretion, whether the judge exercised itrightly in thiscase. I think itisnot accurate to say thatDoyle v,Kaufman laiddownasasettledrulethatthecourt had no power to extend the time within the rule. Ithink the true view is, as was indicated by Kay, L.J., in a subsequent judgment in Hewett v. Ban that there is a discretion in appropriate circumstances, though no doubt Doyle v. Kaufman points out circumstances in which it would be wrong for the court to exercise that discretion in favour of an applicant plaintiff. That there issuch a discretion Ithink has been recognised insubsequent cases,such asMabrov. Eagle Star and BritishDominions Insurance Co. Ltd., where again this rule about depriving a defendant of an accrued defence 401 Styttanldes J. Potato Marketing Board v.Thetis Shipping

(1988)under the statute of limitations was relied upon as a reason whyno ordershouldbemade.Greer,L.J.,sumsupthematter atthe end of hisjudgment by saying: «Whetherthematterisoneofdiscretion ornot,itappearsto me inconceivable that weshould make an orderwhichwould 5 have the effect Ihave mentioned. It has been the accepted practice of alongtimethatamendmentswhichwould deprive a partyofavestedrightoughtnottobe allowed». In Battersby and Others v. Anglo-American Oil Co. Ltd. and Oners[1944]2AllE.R.387itwassaidbyLordGoddardatp.391: 10 «We conclude bysayingthat even when an application for renewal ofawritismadewithin 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 serve itpromptly, and renewal iscertainlynottobegranted as 15 of course, on an application which is necessarily made ex parte. In every case care should be taken to see that the renewal will not prejudice any right of defence then existing, and in any case it should only be granted where the court is satisfied that good reasons appear to excuse the delay in 20 service, as,indeed, islaiddown intheorder.Thebest reason, of course, would be that the defendant has been avoiding service, orthathisaddressisunknown, and theremaywellbe others. But ordinarily it isnot a good reason that the plaintiff desires to hold up the proceedings while some other case is 25 tried, or to await some future development. Itisfor the court and notfor one ofthe litigantstodecide whether there should be a stay, and it is not right that people should be left in ignorance that proceedings have been taken against them if they are here to be served. While a defendant who isserved 30 with a renewed writcan, nodoubt, apply for ittobeset aside on the ground that there wasno good reason forthe renewal, his application may very possibly come before a master or judge other than the one who made the order, and who will not necessarily know thegroundsonwhichthediscretionwas 35 exercised.» Itissettled that bytheapplication ofthetworules(Order8 Rule 1 and Order 64 Rule.7)the Courthaspower torenewawriteven · iftheapplication ismadeafter theexpirationofthetwelvemonths. 402 1 C U R . P o t a t o Marketing Board v.Thetis Shipping Stytlanldes J. The plaintiff-applicant has to satisfy the Court that there was sufficient reason orgoodcausetoexcusethe delayinservice. The rules of Court provide twelve months -a not ungenerous time, itmight be thought -within which the plaintiff can hold up 5 proceedingsbynotservinghiswrit.Surely,beyond thatperiodthe same public policy requiresthat the Court should ensure that itis only inreally exceptional cases that the effective startof litigation should be yet further delayed, especially where the twelve months allowed for service extends beyond the end of the limitation 10 period; and, above all, where the application is not made until after the period of twelve months, and with it the validity of the writ,has expired. Ifthe Court issatisfied that reasonable efforts have been made to serve the defendant with the writ, the extension of which is 15 sought by the application, this isgood cause. Exceptional cases, justifying adeparturefrom thegeneralrule,mightwellarise where there has been an agreement between the parties, express or implied, to defer service of the writ; or where the delay in the application to extend thevalidityofthe writhasbeen induced, or 20 contributed to, by the words or conduct of the defendant or his representative. In«Bemy» [1979] 1Q.B.80 Brandon J. saidatp. 103: 25 30 35 40 «In my opinion, when the ground for renewal is, broadly. that ithas not been possible to effect service, a plaintiff must. in order to show good and sufficient cause for renewal. establishoneorotherofthreemattersasfollows:

(1)that none of the ships proceeded against in respect of the same claim. whether inone action ormore than 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 havebeen, orwillbe,present ataplacewithinthejurisdiction during the currency of the writ, the length or other circumstance of her visitto or stay at such place were not, or will not be, such as to afford reasonable opportunity for effecting service on her and arresting her; alternatively

(3)that, if any of ships have been, or will be, present at a place 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 thevalueof allorsome orone oftheothershipsproceeded againstwould be sufficient, or anyhow more nearly sufficient to doso.» 403 StyUanides J. Potato Marketing Board v. Thetis Shipping

(1988)See also «Helene Roth» [1980] 1Ll.L.R.

1. In the present case the application is supported by affidavit in which it is deposed that in spite of repeated efforts the writ of summons has not yet been served on the defendants. Defendant 2 is a ship. The service is effected within thejurisdiction. Aship is 5 sailing from one port toanotheranditisonly when itiswithin one of ourharboursorwithinthejurisdictionmatservice canbe effected. The plainfiffs are undera duty topursue theiraction diligently. If, due to their inaction, the validity of a writ expires, it is not necessarily unjust mattheplaintiff should lose hisrighttoproceed. 10 Having regard to the facts as set down in the affidavit and the circumstances of this particular case, Iam satisfied that there are good reasons for exercising mydiscretion infavour ofgranting the application.Thewrit is hereby renewed forsix monthsasfrom 4th June,
2. ΙΟ Let there be no order as to costs. Application granted. No order as to costs. 404