(1989)1989 June 5 (A 1 OIZOU Ρ } SEA ISLAND TRAVEL & 1OURS LIMITED, Plaintiffs, ν 1 Μ Τ GALAX1AS, NOW LYING AT THE PORT OF LIMASSOL, 2 UNITED BROTHERS SHIPPING CO, Defendants (Admiralty Action No 86/88} Admiralty— Practice — Adjournment of heanng — Application for, in order to enable applicant-defendant 1 to apply for consolidation of thisaction with anotherpending action (Rules78and/or 79of the CyprusAdmiralty Jurisdiction Order, 1893)— However desirableis foractions to beconsolidated suchdesirability cannot beinvoked on 5 theday of theheanng as aground foradjournment — The applicant had ample time to do sopnor to the hearing Admiralty — Practice — Adjournment of heanng — A matter of judicial discretion entirely depending on theparticular facts of each case Constitutional Law — Fairtnal — Constitution Art 30 2 — Right to the 10 determination of one's civil rights and obligations within a reasonable time The facts of this case sufficiently appear from the hereinabove headnote Application for adjournment dismissed Casesreferred to Walkerν Walker [1967] 1 All Ε R 412, Charalambous ν Charalambous
(1971)1 C L R 284, Kier(Cyprus)Ltd ν Trenco Constructions
(1981)1 C L R 30 288 15 IC.L.R. SeaIsland v. Μ.T. Galaxies Application Application by defendant 1 for the adjournment of the case so that they may be afforded the opportunity to take the necessary steps for theconsolidation of thisaction with Action No. 91/
- 5 A. Theofilou, for the plaintiffs. C. Velaris withA. Paschalides, for defendants
- G. Louisides with M. Charalambous (Miss)for L. Papaphilippou, for defendants
- A. LOIZOUP.gave the following ruling. This is an application 10 on behalf of Defendants 1 for the adjournment of the case sothat theywould be afforded theopportunitytotakethenecessary steps for the consolidation of thisaction with Action No.91/88, as they are entitled to do under Rules 78 and/or 79 of the Cyprus Admiralty Jurisdiction Order
- 15 The two actions were filed on the 4th July 1988 and the 22nd July 1988 respectively. Eversince, the present action has frequently been coming before this Court due tothe hearing and determination of several applications, including those for the discharge of thewarrant of arrestandthesaleof theshippendente 20 lite.There were also some adjournments as a result of a problem that arose in respect of defendants 2 that is on'account of the change of theiradvocate and the necessary settlement of the fees that had to be paid under the Rules of Etiquette to the previous advocate before thebrief was handedover tothenew one. Itmay 25 be mentioned here, in parentesis however, that this problem seems tohave been resolved as Isee today appearing onbehalf of defendants 2 both advocates. .On the 11th March 1989 counsel for the plaintiffs withdrew his application for judgment in default of filing the Answer without 30 prejudice andrequested that,inviewof themountingexpenses by the continuanceinforce of thewarrant of arrest, thecase be fixed for hearing the soonest possible. The case was indeed fixed for hearing on the 26th April 1989 at 8.45 a.m. and a direction was made thatnoticeof the date of trial be given tothe defendants by 35 theplaintiffs tomake sure thattheywould be ready for the hearing of the case. On the 26th April 1989, the case came up for hearing against
- \. I.oi/ou I*. Sea Island v. Μ. T. Galaxias 11989) defendants 1only; there was no appearance for defendants 2 as until then they had not filed their Answer, on account of the problems they had and towhich ihave just referred. On thatdate defendants 1made astatementaboutaprovisional settlementthat had been reached. The case was therefore adjourned to the 6th 5 May. 1989 so that if counsel for defendants 1 did not inform counsel for the plaintiffs by the 4th May thatthesettlement would indeed be finalised, thenhewould be ready toproceed for hearing on that day. On the 6th of May all sides appeared including defendants
- who were represented by Mr.G.Louizides and the 10 record of the Courtwas thattheAnswerby defendants 2was tobe filed within 10 days and theReply,ifany,within five days from the filing of the Answer. The case was then fixed for hearing todayin the presence of all concerned. The Answer of defendants 2 hasbeen filed andtheplaintiffs are 15 ready to proceed with thehearing of the case. The defendants 1 on the otherhand have been afforded ample time toprepare theircase andshould be ready toproceed with the hearing of the case to-day. Last-minute applications for the purpose of invoking the provisions of rules 78 and 79 for the 20 consolidation of two actions should not in my view and in the circumstances of this case be entertained, and especially on the date of thehearing. Therewas ample opportunityfor thatpurpose to be taken up by defendants
- It is obvious from therecord that every possible opportunity was given for both defendants to be 25 ready today so that the action would be heard notby piecemeal hearings against either of them,but by the hearing against both of them inone proceeding. Itmay be mentionedalso thatActionNo. 91/88 is an action arising out of the dispute from a charterparty between the two defendants and, however desirable it is for 30 actions to be consolidated, a procedure which saves the litigants andthisCourtfrom multiplicityof proceedings,yet that desirability cannot be invoked on the date of the hearing as a ground for justifying theadjournment ofacase ofaplaintiff thathas nothingto do with a dispute between the two parties on a charterparty, 35 except of course to the extent as towho is responsible to him for his claim which is a matter that can certainly be adjudicated in these proceedings. The right of the determination of one's civil rights and obligations within a reasonable time is safeguarded by Article 40 '290 IC.L.R. SeaIsland v. Μ.Τ. Galaxias A. LoizouP. 30.2 of the Constitution.The Courtshave also supported theview for thedesirability for speedy determinationof cases. The question whether an adjournment willbe granted or notis qenerally a matterof judicial descretion,itdepends entirely onthe 5 particularfacts of eachcase and as observed inthecase of Walker v.Wa//cerll967] 1 All E.R.412,atp.414by SirJocelyn SimonP.: 10 15 20 «We have authoritative guidance from theCourtof Appeal inMaxwell v. Keun toatwo-fold effect: First,where the refusal of an adjournment, would result in a serious injustice to the party requesting theadjournment,theadjournmentshould be refused only if thatis the only way thatjustice can be done to the otherparty; and, secondly, that although the granting or refusal of an adjournment is a matter of discretion, if an appellate Court is .satisfied that the discretion has been exercised insuch away aswould result inaninjustice tooneof the parties, the appellate Court has both the power and the duty toreview theexercise of the discretion». See Charalambousv. Charalambous
(1971)1C.L.R. 284,29294. KIER(Cyprus)Ltd v. Trenco Constructions
(1981)1 C.L.R. 30,38-39. For all the above reasons the application for adjournment is refused and the case willproceed for hearing. Applicationrefused. 291