Summary judgment obtained in defendant's absence cannot be set aside without a defence affidavit.

[*143] 1976 February14

(BOYIADJIS, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Demetrios A. Demetriades,

Plaintiff,

and

Nicolas Yiangou,

Defendant.

(Action No. 3992/75).

Civil Procedure - Summary judgment - Obtained in the absence of the defendant under Order 18, rule 1 of the Civil Procedure Rules - Whether it can be set aside under Order 26, rule 14 or under Order 33, rule 5 or under Order 17, rule 10 of the Civil Procedure Rules, or under the inherent jurisdiction of the Court.

S. Leptos, for K. Talarides, for Applicant-Defendant.

G. Pelagias, for Respondent-Plaintiff.

RULING

The following ruling was delivered by:-

BOYIADJIS, S.D.J.: This is an application [*144] whereby the defendant applies "for an order that the judgment obtained by the plaintiff on the 3rd December, 1975, be set aside”.

The judgment was given in the absence of the defendant in the following circumstances:

Plaintiff issued and served on the defendant a specially indorsed writ under 0.2, r. 6 claiming an amount of £135.- due on "two bonds in customary form and/or promissory notes". The defendant entered an appearance to the writ on the 7th October, 1975 and immediately thereafter the plaintiff took out a summons for summary judgment under 0.18, r. 1 returnable on the 6th November, 1975.

When the summons was called out on the 6th November, 1975, defendant's counsel appeared on his behalf and orally opposed it. Neither the formal written notice of defendant's intention to oppose the application, nor the affidavit showing cause against the judgment had been filed by that time. The Court adjourned the application for hearing to the 3rd December, 1975, and extended the time within which defendant could file his notice of opposition and his affidavit to another 10 days.

The summons was again called out on the 3rd December, 1975, and neither the defendant nor his counsel appeared in Court. Although the extended period of 10 days had elapsed, no affidavit was filed disclosing either any defence to the action or any facts which would have entitled the defendant to defend the action [*145] as provided by 0.18, r. 3(a). Counsel for the plaintiff produced to the Court the two bonds in customary form and judgment was given in plaintiff's favour with costs.

Defendant took out the present summons on the 9th December, 1975, accompanied by an affidavit sworn by a

certain Andreas Antoniou, the advocate’s clerk in the Law Office of Mr. K. Talarides. The affidavit does not disclose any

facts on the merits of defendant’s defences, nor is there any allegation therein of any irregularity in the method the plaintiff obtained his judgment. It contains only two allegations, namely -

(1) due to the affiant's own mistake he had not noted in the diary of Mr. Talarides that the application stood fixed for hearing on the 3rd December, 1975; and

(2) Mr. Talarides was out of Cyprus on the 6th November, 1975, when the application was first returnable.

With regard to the latter allegation, it should be noted that throughout the proceedings Mr. Talarides was appearing through Mr. S. Leptos. No excuse or justification is given for non-swearing the affidavit on the merits in answer to the plaintiff's application.

I would say, in the circumstances, that the affidavit sufficiently establishes that the defendant was absent per incuriam.

The respondent-plaintiff opposed the application [*146] and in his affidavit filed in support of the opposition he deposed the facts hereinabove stated, which are apparent on the record, and repeated his allegation that his, claim is a genuine one and that the defendant is trying to delay the proceedings. He further alleged that the defendant's application is without legal foundation.

Both sides relied on their respective affidavits and both learned counsel addressed the Court.

The application is stated to be based on 0.33, r. 5 and counsel for the applicant argued that no affidavit on merits is necessary under this rule.

Counsel for the defendant, on the other hand, argued that the application is not covered by the provisions of 0. 33, r. 5 and that it can only be based on 0.26, r. 14 under which an affidavit on merits is indispensable. and in the absence of such affidavit the application should be dismissed.

If this case were really covered by 0.33, r.5, the proposition of counsel for the plaintiff that an affidavit on merits is not, as a rule, necessary, is. correct and supported by several authorities. In Bracken v. Gilpin (1921) W.N. 274, C.A., it was held that the rule requiring affidavit on merits does not apply to a case under the English O.36, r. 33 where judgment has been given against a party in his absence and he complains that his absence was excuseable. The English O.36, r.33 (now 0.35, r.2) corresponds to our O.33. r. 5. [*147]

Subject to certain reservations to which I shall refer later in my judgment, if the application were to be covered by the provisions of 0.26, r. 14 I would be inclined to agree also with the proposition of counsel for the plaintiff-respondent that the judgment being admittedly a regular one, an affidavit on merits is, as a rule, necessary and that in the absence of such affidavit the application should be dismissed. If any authority is needed for this proposition, reference may be made to Farden v. Richter (1889), 23 Q.B.D, 124, where it was held that where an application is not thus supported, it ought not to be granted except for some very sufficient reason and none has been put forward by applicant in the present case. See also Bracken v. Gilpin (supra); Ioannis Kotsapas & Sons Ltd. v. Titan Construction and Engineering Company, 1961 C.L.R. 317; Costas Christoforou v. Kyriakoullis (1963) 2 C.L.R. 159.

The question is whether the case is governed by the provisions of either of the rules suggested by learned counsel; I go further and say that the question is whether the Court has jurisdiction at all to entertain such an application under the rules suggested by counsel or at all.

This is a case which raises a question of great importance and one which, I must confess, not easy to decide. The application cannot be decided on its merits and there is no room for the exercise by the Court of its discretion either way if the Court lacks jurisdiction completely. [*148]

Apart from its inherent jurisdiction in certain cases, the Court can only set aside a judgment under -

(a) 0.26, r. 14; or

(b) 0.33 r. 5; or

(c) 0.17, r. 10.

An order may be set aside under 0.48, r. 11. I shall deal separately with each of the above rules.

Order 26. Rule 14:

Rule 14 is part of an order dealing with "Default of Pleading" as its title expressly denotes. It reads as follows:-

"Any judgment by default whether under this Order or under any other of these rules may, in a proper case, be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit".

At present the nearest English rule to our 0. 26, r. 14 is R.S.C. (Rev.), 1962, 0.19, r. 9 which has been taken from the former R.S.C. 0.27, r. 15, but unlike the former rule, the present one deals only with a judgment entered in default of defence under this Order. Now in England there is not a general rule dealing with "any judgment by default"; The rule in force in England between the years 1902-1958 was 0.27, r. 15 which reads as follows:-

"Any judgment by default whether under this Order or under any other of these Rules, may [*149] be set aside by the Court or a judge upon such terms as to costs or otherwise as such Court or judge may think fit, and where an action has been set down on motion for judgment under Rule 11 of this Order, such setting down may be dealt with by the Court or a judge in the same way as if judgments by default had been signed when the case was set down".

The concluding provision in the Order after the words "think fit" was added by R.S.C., July, 1902, r. 8 and deleted by R.S.C. No.2) 1958.

The English Order 27, like our Order 26, deals with "Default of Pleading" and r. 15 thereof is substantially the same as our 0. 26, r. 14, so that, cases decided in England on its provisions afford a safe and valuable guide to us Kotsapas case (supra).

The issue is whether the judgment given in this action is a "judgment by default” within the meaning of the Order.

In Spira v. Spira

(1939) 3 All E.R. 924, the plaintiff in an action for money lent, made an application for judgment under R.S.C. 0.14, r. 1. Owing to a mistake the defendant’s solicitor failed to put in any affidavit or attend the summons arid judgment was signed. Defendants applied under R.S.C. 0. 27, r. 15 for leave to set aside the judgment and contended that it was a judgment obtained by default. It was held by the Court [*150] of Appeal that it was not a judgment obtained by default and, therefore, 0.27, r. 15 had no application to the case.

Scott. L.J. said at p. 927:-

" ... An application was made ... under R.S.C. 0. 27, r. 15. I think the answer to that was that there had been no such default in the proceedings under R.S.C. 0.14 as is contemplated by R.S.C. 0.27, r. 15 ... ".

Du Parcq L.J. shared the same view with that of Scott L.J., although with some hesitation, and concluded his own judgment as follows:- "I think that absence is not a default, but I think the point should be left open and it is not desirable to decide it finally. It may be desirable that the rule should be made clear and the attention of the Rules Committee drawn to it".

The decision in Spira v. Spira (supra) was followed in Dsane v. Hagan and Another (l96l) 3 All E.R. 380 where it was sought to set aside by action the summary judgment given under the former R.S.C. 0.14A in default of appearance of the defendant. This Order was analogous to R.S.C. 0.14 and applied on claims for specific performance of an agreement for the sale or purchase of property in certain cases, whether the defendant appears to the action or not. It was recast by R.S.C. 1965 and is now 0.86; there is no corresponding Order in our Civil Procedure Rules. It was there argued that as the defendant in the first [*151] action could have applied to the Court under 0.27, r.15 to have the summary judgment given against her by default set aside, she could not, instead, file a fresh action to achieve this purpose. It was held that the judgment obtained under R.S.C, 0.14A was not a judgment in default within R.S.C. 0.27,r.15 since for the purpose of obtaining such a judgment it was irrelevant whether the defendant had or had not entered an appearance, and the fact that the defendant did not avail herself of any opportunity to show cause why she should be allowed to defend, did not constitute "default" on her part; accordingly, if she had applied under R.S.C. 0.27, r.l5 in the specific performance action to have the judgment against her set aside, the Court would not have had jurisdiction to acceed to the application.

Buckley, J. expressed the view that the words "judgment by default” in 0.27, r.15 indicate a judgment obtained by a plaintiff in reliance on some default on the part of the defendant in respect of something which he is directed to do by the Rules, and that a judgment obtained in default of appearance under R.S.C. 0.13, would, in his opinion, clearly be such a judgment; he added that, since R.S.C, 0.14 as well as R.S.C. 0.14A merely give a defendant an opportunity to show cause why he should be permitted to defend the action, his failure to avail himself of the opportunity could not be aptly described as a default.

The last two afore-mentioned

decisions brought to the surface an existing anomaly in that, unlike every other judgment in default or even any judgment

given at the trial of the action against an absent [*152] defendant, a judgment given under 0.14 or 0.14A in the absence of a defendant, could not he set aside. The anomaly has now been removed in England and the existing gap filled in; in the case of 0.14, by R.S.C. (Rev.)1962, 0. 14, r. 11 whereby express provision was made for the first time empowering the Court to set aside or vary such a judgment given against a party who does not appear at the hearing of the application; and in the case of 0.14A, by R.S.C. 1965, 0.86, r. 8. The decisions In Spira v, Spira (supra) and Dsane v. Hagan and Another (supra) were thus negatived and reversed.

Learned counsel for respondent placed much reliance to the words "or under any other of these rules" in 0.26, r. 14, and argued forcibly that the meaning of these words is wide enough to cover a summary judgment given in the absence of the defendant. I cannot agree with this argument because exactly similar words were to be found in the text of the English 0.27, r. 15 at the time when Spira v. Spira (supra) was decided.

My view, therefore, is that the Court has no jurisdiction under 0.26, r. 14 to entertain this application.

Order 17. Rule 10:

Respondent's counsel argued that, since there is no special provision in our Civil Procedure Rules to set aside a summary judgment obtained in the absence of the defendant, the provisions of 0. 17, r. 10 should, apply by analogy. In such a case defendant shoud again [*153] in practice show merits. By the very words of this rule, the discretion given to the Court to set aside in a proper case a judgment obtained by default of appearance, is limited in cases ”where the judgment is entered pursuant to any of the preceding rules of this Order". The defendant, in this case, has appeared to the action end the judgment sought to be set aside was not obviously entered against him pursuant to anyone of the provisions of 0. 17 which, therefore, has no application.

Order 33. Rule 5:

It reads as follows: "Any judgment obtained where one party does not appear at the trial may in a proper case be set aside by the Court upon such terms as may seem fit, upon an application made within 15 days after the trial".

This Order deals with "Proceedings at Trial" in general. The whole tenor of the Order makes it clear that it refers only to that stage of the proceedings where an action, after its pleadings have closed and its issues defined, has been fixed for hearing. It does not refer to the proceedings to be had on a day when a summons is being returnable or, opposed by the respondent, is adjourned for hearing.

Rule 7 of this Order regulates when and by whom oral evidence shall be adduced in discharge of the burden of proof on each party, whereas rule 9 regulates the procedure during a trial of an action involving a counterclaim. Such matters are never involved in the [*154] hearing of any application for judgment by default or for summary judgment. The very nature of a summary judgment is incompatible with the procedure followed at the trial of an action. The procedure for summary judgment is extra-ordinary in that, whereas as a rule the trial must precede judgment, there is a judgment and never a trial:- Symon & Co. v. Palmer's Stores (1903) limited, (1912) 1 K.B. 259 Spyros Stavrinldes v. Ceskoslovenska Obchondi Banka A.S. (197.2) 8 J. S. C. 924

The application of r. 5 of the Order must be examined in the light of the matters dealt with by 0.33 of which r. 5 is part and parcel.

Is it, therefore, possible to set aside the special kind of judgment given under 0.18, r. 1, which, in view of its extra-ordinary procedure, is never preceded by any trial, invoking and relying on the procedure expressly laid down for setting aside a judgment given at the trial of the action in the absence of the defendant? I am inclined to answer the question in the negative for the reasons already explained and for the reasons following hereinbelow.

Judgments and orders may be given or made in many ways and may also be set aside in many ways. The procedure to be followed to set aside a judgment is being defined by and is depended upon the particular manner in which it was given, or the particular procedure followed to obtain it. 0. 33, r. 5 (the corresponding English Order being today 0.35, r.

2 taken [*155] from the former R.S.C, 0.36, r. 33) confers upon the Court jurisdiction to set aside a judgment obtained under any of the rules of Order 33, for example rr.3 & 4.

In Halsburys Laws of England, 3rd ed., vol. 22, after reference is made to the several ways in which a judgment may be obtained, including-

(i) by default of appearance,

(ii) by default of pleadings,

(iii) by application for summary judgment, etc.

it is stated at paragraph 1637:-

"Judgment an trial or hearing. If none of the modes of obtaining judgment which have already been considered apply, an action commenced by writ must be set down for trial. The ordinary mode of trial is by a judge in open Court with or without a jury. If either party should fail to appear when an action is called on, the party appearing may have judgment subject to proving his claim or counterclaim so far as the burden of prooof lies on him:- "R.S.C. 0.36, rr. 31, 32" (which is the corresponding English 0. 33 rr. 3 & 4).

Neither the judgment sought to be set aside in this case nor indeed any other judgment by default against an absent defendant, given pursuant to an application specifying the "default", is a judgment obtained under the provisions of 0. 33, r. 3 and, therefore, cannot be set aside under 0.33, r.5. [*156]

As it has already been stated hereinabove, whereas an affidavit on merits,i.e. disclosing defendant's defence, is not in practice necessary under 0.33, r.5, such affidavit is in practice necessary to set aside any judgment obtained by default, either of appearance or of defence (Evans v. Bartlam (1937) 2 All E.R. 646). The only rational explanation for this distinction is that, whereas in the latter case the Court, in dealing with the application under the English 0. 13, r. 10 (Cyprus 0.17, r. 10), or under the English 0.27, r.15 (Cyprus 0. 26, r. 14), has not before it, at that stage as yet, the facts alleged by defendant in his defence, in the former case the Court, in dealing with the application under the English O.36 r. 33 (Cyprus 0. 33, r.5) has already before it defendant’s written statement of Defence and no useful purpose would be served by requiring him to repeat again the same facts in an affidavit. Behind, therefore, the existence of this rule or practice of not requiring an affidavit of merits under 0.36, r.33, lies the fact taken for granted that the defence must inevitably have been filed prior to the filing of the application to set aside the judgment,

A similar explanation was given in Bracken v. Gilpin (supra) in the Court of Appeal by Warrington L.J. who said:-

"If judgment is given in Chambers against a defendant who is in default and the judgment is not irregular, it is the common practice to require an affidavit of merits [*157] before the judgment is set aside. But it is Otherwise where the plaintiff's case has been heard in Court and the defendant is not there for then the judge knows something of the merits".

The above is an additional argument or indication advocating in favour of the view that 0.33, r. 5 does not apply in the present case, where the defence was never filed, because it would have been very strange, to say the least, if I were to hold that the summary judgment obtained in the absence, of the defendant could be set aside, as his counsel suggests, without an affidavit on the merits, as 0.33, r. 5 allows, whereas such an affidavit is, by an express provision in the Rules, indispensable if defendant would ever hope to avoid it being given against him in the first place.

Order 48 Rule 11:

One might perhaps argue that the

Court has power, under 0.48, r. 11 to set aside a judgment given under 0.14, r. 1 in the absence of the defendant. 0.48, r. 11 reads.

"Every order if and when drawn up, shall be drawn up in the same manner as judgments are by these rules directed to be drawn up, and when drawn up, shall show on the face of it by whom, or on whose behalf, the application was made, and the nature of the order made. Every such order may be set aside or varied in the same way as a judgment and may be enforced in any manner in which the judgment of a Court may be enforced". [*158]

Although the plaintiff applies by summons for judgment under 0.14 and his application is being governed in point of form by the provisions of 0.48 generally, the Court, exercising its discretion in favour of the plaintiff, does not make any order upon which judgment is later entered, as it was the former practice in England for the Master to do. The Court gives a direct judgment and, since no order is made, the provisions of O.48, r. 11 have no application.

Inherent jurisdiction of the Court:

The application of the defendant is alternatively based on the alleged inherent jurisdiction of the Court to have the present judgment set aside. Counsel for the defendant did not address me at all on this point and it seems that he has abandoned this basis of his application, Nevertheless, in view of the opinion I have expressed that none of the Civil Procedure Rules confer upon the Court jurisdiction to set aside a summary judgment obtained under 0.18, r. 1, I think it is proper for me to examine whether I have inherent jurisdiction to entertain this application.

The inherent jurisdiction is a most valuable adjunct to the powers conferred on the Courts by the Rules, but it is confined to certain matters only. The Court has inherent jurisdiction concurrent with that conferred by the Rules to correct clerical mistakes or some errors arising from any accidental slip or omission in its judgments or orders, or even vary the judgment or order so as to give effect to its meaning and intention. [*159] The Court has also inherent jurisdiction unlimited and undiminished by the relevant Rules, to stay or dismiss actions and to strike out pleadings which are vexatious and/or frivolous. But when we come to setting aside a regular judgment, it is limited only to cases where this is necessary in order to prevent an abuse of its proceedings as in the case of Beale v. Macgregor

(1886) 2 T.L.R., 311, C.A., where a judgment was set aside by the Court of Appeal for oppressiveness, and in Dsane v. Hagan (supra), where the Court, under its inherent jurisdiction, recalled its own judgment which was obtained in circumstances which suggested that the plaintiff ought not fairly to be allowed to enforce it, and in order to protect itself from being deceived. In the present case such, circumstances do not exist and none are alleged. The Court's inherent jurisdiction extends no further in this respect and the salutary maxim "interest reipublicae ut sit finis litium" prevails.

Having given the matter my utmost consideration, I have come to the conclusion that the Court has neither an inherent jurisdiction nor a jurisdiction conferred on it by any of our Civil Procedure Rules to set aside a judgment obtained summarily under 0.18, r. 1 in the absence of the defendant. If I am correct in my aforesaid conclusion, the matter awaits the intervention of the Supreme Court to fill in the gap by a new provision in the Rules as it has been done in England. [*160]

If I were to hold that I have jurisdiction to deal with the application under any of the aforesaid Rules, I would have exercised my discretion having in mind the special nature of the judgment sought to be set aside, i.e. that it was obtained under 0.18, r.1 I would have acted on the basis that my discretion In the matter is in fact unfetterred and "unconditional” and any strict rules intending to indicate the particular grooves in which the discretion should run, sometimes considered as rules of law or conditions precedent to the exercise of the discretion in one way or another, are in fact nothing more than general indications laid down for themselves by the Courts as guidance in the normal exercise of their discretion:- Evans v. Bartlam (supra). One of these "rules" refers to the necessity of an affidavit on merits. If I were ever to exercise my discretion in favour of the applicant, I would have most certainly considered whether any useful purpose would be served by setting aside the judgment; obviously no useful purpose would be served if there was no possible defence to the action and there is no material before me to arrive at the conclusion that there is such a defence. In view of the particular features pertaining to the judgment under consideration, I would have expected from the applicant an affidavit on merits and also another prayer in his application praying not only the setting aside of the judgment but also for the leave of the Court to defend the action under 0.18, r. 6. [*161]

In the circumstances, the application is dismissed.

With regard to costs, in view of the difficult points involved, I make no order as to costs.

Application dismissed.

No order as to costs.