(1988)1988July 12 (PIKIS,J.) TRADAXOCEANTRANSPORTATION S.A., Plaintiffs, v. TERMINALNAVIGATION CO.LTD., Defendants. (AdmiraltyAction No. 197/87). Admiralty — Writ of summons —Absence to name a date certain for appearance by defendant before the Court—Initiation of proceedings void — TheAdmiraltyJurisdictionOrder,1893,Rule 5. Admiralty —Procedure —Failure to observe the rules—Distinction between void and irregular proceedings —Remedial power of Court under Ord. 70, Rule 1 of the Old EnglishRules confined to irregular proceedings. 5 The question set down bytheCourt for resolution initsjudgment of 10thJune, 1988*.iswhetherthepresentproceedingswerevalidly initiated in view of the absence in the writ of summons of the 10 invitation to the defendant, envisaged by R.5,to appear before the Court on a date certain and makeanswerto the claim. Held:
(1)Ord. 70, r.l (old English Rules)isan omnibus provision intended toconfer power on theCourttoremedyfailureoromission to observe the rules, but its application is confined to remedying 15 irregular asopposed tovoid proceedings.
(2)Broadly there are two categories of void proceedings: Those instituted in breach of the prerequisites set down by the law for the valid commencement of proceedings and, secondly, those raised or pursued inbreach of fundamental preceptsofjustice. •See
(1988)1CLIL349. 450 20 1 C.L.R. Tradax v.Terminal Navigation
(3)The present proceedings are voidboth for non observanceof the conditions set down in the Rules for the valid initiation of an admiralty actionaswellasforbreach offundamental rulesof natural justice. 5 Orderaccordingly. Casesreferredto: Solomonides and Another v. Cleareland Shipping Co.
(1979)1 C.L.R. 298; Evans v.Bartlam[1937]A.C. 473; 10 ' Craigv.Kanseen [1943] 1AllE.R. 108; Re Pritchard(deceased) [1963] 1AllE.R.873; Lysandrou v.Schiza andAnother
(1979)1C.L.R. 267; HjiChambis v.Attorney-General
(1986)1"C.L.R. 386; N. P.Lanitisv.Panayides
(1986)1C.L.R.
- 15 Application. 2^ . Application by defendants for the resolution of the question whether the present proceedings were validly initiated in view of the absence in the writ of summons of the invitation to them, envisaged by rule 5 of the Cyprus Admiralty Jurisdiction Order, 1893, to appear before the Court on a certain-date and make answer to the claim. St. McBride, for the plaintiffs.' A. Haviaras, for the defendants. PIKIS, J. gave the following judgment. The Admiralty Rules* 25 regulate succinctly and exhaustively how an admiralty action can be instituted. R.5 provides: «Every action shall be commenced by a writofsummonscallingupon thedefendant toappearbefore the Court at a time to be named therein». Setting forth the claim in a writ of summons simpliciter does not automatically initiate an 30 admiralty action. For the action to be instituted the writ must, in accordance with the plain provisions of R.5 contain an invitation to the defendant to appear before the Court at a time certain *CyprusAdmiraltyJurisdictionOrder
- ' 451 PikisJ. Tradax v. Terminal Navigation
(1988)indicated therein. There is discretion to entertain an admiralty action raised inany other manner. The question set down by the Court for resolution in its judgment of 10thJune, 1988,iswhetherthepresent proceedings were validlyinitiated inviewoftheabsence inthewritofsummons 5 of the invitation to the defendant, envisaged by R.5, to appear before the Court on a date certain and make answer tothe claim. Counsel for the plaintiff submitted that the omission did not invalidate the action, but merely rendered the writ irregular amenable to the remedial powersvested in the Courtby R.13of 10 the Rules and Ord. 70, r.l (Rules of the English Supreme Court applicable in 1960) made applicable byR.237.Mr.Haviaras was of the same view. In his submission the failure to summon the defendant to appear before the Court on adate certain made the proceedings voidable, apt tobevalidated bythe waiver ofany 15 objection thereto by the defendant. And as they waived any objection to the irregularity, the proceedings should be allowed to be proceeded with subject totheir completion by the inclusion of an appropriate invitation in the writ to the defendant to appear before the Court on a specified date. Counsel 20 distinguished the case of Solomonides &Another v. Cleareland Shipping Co* as inextricably connected with the default in that case that rendered the proceedings a nullity. In that case Demetriades, J. ruled that the failure to heed the time provisions of R.11laying down in terms mandatory the minimum notice for 25 appearance before the Court vitiated the proceeding and rendered it null and void. The ratio of the above case is that mandatory conditions relevant totheinitiationoftheprocessmust be observed as a condition for the validity of the proceedings. R.13 relied upon by counsel for the plaintiffs isinapplicable. Itis 30 confined to the amendment of a writ of summons. It confers no power to remedy any other default and far less power to save misinitiated proceedings. Ord. 70, r.l (old English Rules) is an omnibus provision intended to confer power on the Court to remedy failure or 35 omission to observe the rules. Non-compliance may be rectified *
(1979)JCi-.fi.
- 452 1 C.L.R. Tradaxv.Terminal Navigation PUds J. on such terms asthe Court may think fit. English cases* on the ambit and effect ofOrd. 70, r.l, and Cyprus decisions** on the effect of thecorrespondingruleof theCivil ProcedureRules(Ord. 64), make itclear i; ttheapplication of the aforementioned rule 5 is confined to remedying irregular as opposed to void proceedings. No jurisdiction vests thereby tovalidate stillborn proceedings. English and Cyprus cases explore thedi'-Unction between void andmerely irregular proceedings. Broadly thereare two categories of void proceedings: Those institutedinbreach of 10 theprerequisites setdown by thelaw forthevalidcommencement ofproceedings and,secondly, thoseraisedorpursuedinbreachof fundamental preceptsof justice. The present proceedings are void both for non observance of the conditionsset down in the Rules for thevalid initiationof an 15 admiralty action as well asforbreach of fundamental rulesof natural justice. Thewrit did notmeettheconditionsof R.5for the commencement of theactionand failed tomeettherequirements of naturaljustice togive noticetothe adversary. The fact thatthe writ was sealed by theRegistrar does notalter 20 e complexion ofthe issue. Infact, the Registrar sealed the writ contrary totheexpress provisions of R.9thatrequire thatthedate and hour when the defendant isrequired to appear before the Court,should be specified. Evidently theomission tonameadate was notduetoany inadvertenceonthepartoftheplaintiff. Earlier 25 counsel for the plaintiffs had claimed arightto take out what he called «an open writ» and seemingly on that account failedto furnish the Registrar with copy of the writ forservice upon the defendants. Hadthe Registrar omitted or refused tonameadate the plaintiffs would, no doubt,be at liberty tomove theCourt for 30 directionstoensure observance of theprovisions of R.
- m For the above reasons Ihold thatthe action was never validly instituted and as such cannotbe heeded by the Court. After hearing counsel the Courtdirectsthatthereshould be no orderas tocosts. or Application granted. * Evans v. Bartlam11937) AC.
- Craigv. Kanseen[1943]1All ER. 108; Re Pntchard (deceased) {1963} 1All E.R.
- ** Lysandrou v. Schiza &Another
(1979)1 C.L.R. 267, HjtChambis v. Attorney-General
(1986)1 C.L.R.386; N.P.Lanitisν Panayides
(1986)1 C.L R. 490 453