Court allows action by severing ultra vires proviso from valid termination order under Suspension of Prescription Law.

[*244] 1980 May 6

(PIKIS, P.D.C.)

IN THE DISTRICT COURT OF LARNACA

Demosthenis Stavrou,

Plaintiff,

v.

Georghios Stavrou,

Defendant.

(Action No. 1678/78).

Suspension of Prescription Law, 1964 (Law 57/64) - Proviso to 1976 Order made under section 2 of the Law - Ultra vires the enabling section and invalid - Proviso severable from remaining provisions of the Order which are, therefore, intra vires.

Subsidiary legislation - Ultra vires in part - Ultra vires part severable from remaining provisions - Which are, therefore, valid.

Chr. Chrysanthou with Chr. Sozos, for the Plaintiff.

G-. Nicolaides, for the Defendant.

JUDGMENT

The following judgment was delivered by:-

PIKIS, P.D.C.: This is an action [*245] for damages for negligence and breach of statutory duty arising from a road accident that heppened on 3rd November 1972. The defendant raised preliminary objection to the viability of the action contending that it is statute barred by virtue of the provisions of a. 68(3) of the Civil Wrongs Law prescribing a two-year period of.limitation within which actions in respect of civil wrongs must be commenced. Normally time begins to run for purposes of limitation when there isin existence a person who can sue and another who can be sued and all the facts material for enabling the plaintiff to succeed have happened. (See Petrou v. Petrou

(1978) 1 C.L.R. 257). When the remedy is barred by virtue of a statute of limitation and not the right, as in the present case, a plea of prescription must be specially raised as was done in the present action. (See Halsbury’s Laws of England, 4th edition, volume 28, para. 647).

The unsettling events of 1963 made difficult and in some cases undesirable the prompt pursuit of one’s rights. Therefore the legislature intervened and removed temporarily the consequences from any inactivity in this area and provided for the temporary suspension, of periods of limitation provided under the law. (The Suspension of Prescription Law - 57/64). The period of suspension is defined as the period commencing on 21st December 1963 and ending on a day to be specified by the Council of Ministers. A proviso thereto laid down that notice of termination should be given at least three months in advance, a provision evidently intended to give reasonable [*246] notice to the public to arrange its affairs accordingly.

The effect of this legislation was to suspend the operation of the different periods of limitation provided by several laws and so time stopped running for the purposes of every such enactment as from 21st December 1963. In 1971 a new law was enacted, notably Law 25/71 purporting to supply an authentic interpretation of the provisions of Law 57/64 with regard to the powers vested in the Council Of Ministers to terminate the period of suspension. It provided that it was within the power of the Council of Ministers to cancel, suspend, amend or substitute an order signifying the termination of the period of suspension.

The aim of the new legislation was to remove doubts that might arise as to the validity of an order issued on 26th March. 1971 amending the provisions of the basic order issued earlier on 14th May 1970 whereby it was signified that the period of suspension would come to an end on 1st July 1971 . Mr. Sozos rightly pointed out that a law intended to furnish an authentic interpretation of a previous enactment has ipso facto retrospective effect and cited, in support of his argument, Stassinopoullos -Lessons of Administrative Law - 1976 edition, at p. I46.

A law of authentic interpretation is intended to reveal what was, in the first place, the intention of the legislature and remove ambiguities that might arise, from the terminology employed. Of necessity it has retroactive effect unless the provisions of the first law are incapable of bearing the interpretation subsequently attributed to them by the interpretative enactment. And inasmuch no such irreconcilable conflict [*247] between the two enactments is discernible the Court is bound to acknowledge to the Council of Ministers the powers specified in Law 25/71,notably a power to amend, substitute or replace an order made under the proviso to s.2 of Law 57/64.

Evidently the flexibility of the power vested in the Council of Ministers to indicate the date of termination, was commensurate to the fluidity of the political situation in the country.

The Order of 1970, hereinafter referred to as the basic Order, was amended year after year by putting forward the date of termination of the suspension period. So by an order of 6th June 1975 the date of termination was specified to be the 1st July 1976. On 3rd June 1976 a new order’ was issued purporting to amend the basic Order once more by . shifting forward the date of termination, this time specifying 1st July 1977 as the operative date of termination (No.105 - 1279 - 18/6/1976). By a proviso introduced thereto the Council of Ministers purported to qualify the basic Order by stipulating a different date of termination with regard to certain causes of action including an action for damages for personal injuries resulting from a road accident. It is worth reciting the wording of the proviso:-

“Νοείται ότι η ρηθείσα αναστολή δεν

εφαρμόζεται επί αγωγής δι’ απαίτησιν καταβολής αποζημιώσεως δια προσωπικάς

βλάβας ή απώλειαν ζωής ή ζημίαν εις ιδιοκτησίαν συνεπεία οδικού, εργατικού,

ναυτικού ή τεέρου ατυχήματος ή πυρκαγιάς, εγειρομένης μετά την 1ην Ιανουαρίου,

1977”. [*248]

(English Translation: “Provided that the said suspension does not apply in actions for the recovery of damages for personal injuries or loss of life or damage to property resulting from a road, industrial, nautical or other accident or fire, instituted after the 1st January 1977”).

Both the amendment of the basic Order and the proviso thereto were intended as specifically mentioned in the relevant Order to have retroactive effect and be operative as from the date on which the basic order was published. Subsidiary legislation may, like every other species of legislation, have retroactive effect provided there is scope for such a course in the enabling power. (See Halsbury’s Laws of England, 3rd edition, volume 36, paragraphs 743 and 747). And’ inasmuch as the authority vested in the Council of Ministers to modify previous orders expressly empowers the Council to amend the provisions of a previous order retrospectively the 1976 Order cannot be faulted on that score.

Counsel made conflicting submissions concerning the interpretation of the proviso in question. Mr. Nicolaides for the defendant submitted that its effect was to leave the 1st July 1976 as the operative date of termination for the causes of action mentioned therein subject to the qualification that the provisions of the proviso could not be relied upon in actions raised before 1st January 1977. Hence the present proceedings instituted on 30th December 1978 are statute barred and cannot be maintained. Counsel for the plaintiff, [*249] on the other hand,- submitted that the operative date of termination of causes of action indicated therein is the 1st January 1977, therefore the plaintiff’s action was raised within the two-year limitation period. The proviso is, to my comprehension, unhappily worded and there are, to say the least, doubts as to the meaning that should be attributed to the word “suspension” in its context. Mr. Nicolaides suggested that suspension should be construed as referring to the postponement of the date of termination earlier provided for. Counsel for the plaintiff did not seem to quarrel with this construction concentrating on their submission that the operative date of termination was the 1st January 1977.

I examined the rival submissions in detail and reflected overnight on their effect and generally on the implications of the 1976 amending Order. Following these reflections I invited further argument, particularly with regard to two matters:

(a)The power of the Council of Ministers, if any, to lay down different dates of termination of the period of suspension with regard to different causes of action: and (b) .the implications of reading the proviso in the context of the basic Order particularly if read as at the date on which the basic Order was published. I was led to invite argument on this second question having regard, inter alia, to the provisions of s.12(2) of the Interpretation Law, Cap. 1, providing that amending rules and those that are [*250] amended should, unless a contrary intention appears, be construed as one. ‘Undertaking this exercise, that is reading the basic Order as duly amended without reference to subsequent events one may well form the view that the word “suspension” in the proviso cannot be construed in the way suggested by Mr. Nicola ides and should more appropriately be interpreted as referring to the suspension of the period of termination provided for by Law; 57/64. Mr. Nicolaides argued that such construction might lead to absurdity and bring about a result totally outside the contemplation of the Council of Ministers when promalgating the Order of 1976. I do realize that the interpretation to which I have referred, warranted by the combined effect of the 1976 and 1970 Orders, might lead to absurd results for, in that eventuality, we should construe the Order as abolishing the period of suspension, in direct defiance to the express provisions of s.2 of Law 57/64, albeit from a future date. Any such attempt would certainly be ultra vires the law. Therefore in order to avoid absurd results that should not lightly be attributed to the legislature for they undermine its authority and often do less than justice to its intentions, one should perhaps discern in the 1976 Order an intention that the two Orders, that is the basic Order and that of 1976, be read separately whereupon the word “suspension” might well bear the meaning attributed to it by Mr. Nicolaides. (As to the .need to avoid interpretations that lead to absurd results, see Stock v. Frank Jones (Tipton) Ltd. (1978) 1 All ,E.R. 948). [*251] However I need not probe the issue further for in my judgment the Council of Ministers had no power to lay down different dates of termination with regard to different causes of action and the attempt to do so, is ultra vires the parent legislation, notably the provisions of s.2. Law 57/64.

It is in every case a question of construction whether a provision is ultra vires the basic Law. (See Halsbury’s Laws of England, 3rd edition, volume 36, paras. 743 and 747). As a matter of general principle the Court will not readily acknowledge power to legislate to anybody other than the legislature. Where power to legislate is delegated’ the product of such delegation must be in conformity with the powers conferred by the parent law. No extra powers to legislate are to be inferred from the act of delegation. This approach must be adhered to with greater stringency still in a country like ours where the operation of the powers of the State is firmly entrenched in the Constitution.

The power vested in the Council of Ministers by virtue of s.2, Law 57/64 is clearly confined to the “termination of the suspension period”. The suspension period is defined by s.2 as the period commencing on 21st December, for all causes of action, and ending on a day to be indicated by the Council of Ministers. No. authority, whatever is conferred to indicate different dates of termination for different causes of

actions and thus modify the definition of the [*252] suspension period provided by law. Indeed the Council of Ministers claimed, legislative powers

to make a classification totally unwarranted by the provisions of the law and regulate in effect by administrative action the period of limitation, contrary to the provisions of the law. (See, inter alia, Eleni Andrea Avghousti v. Niovi Papadamou and Another (1968) 1 C.L.R. 66).

Mr. Nicolaides argued that if the proviso introduced by the 1976 Order is ultra vires the provisions of the. parent law then the entire Order of 1976 and its successors that reproduce its substantive provisions should be deemed as being wholly .ultra vires with the result that the operative period of termination is that stipulated by the 1975 Order, namely 1st’ July 1976. I cannot subscribe to this interpretation for the proviso in question is severable from the remaining provisions of the Order that were perfectly intra vires. Although I was not referred to any authority on the subject viz. severing different provisions of subsidiary legislation for purposes of legality this course is known both to public and private law. Unconstitutional provisions, as well as provisions in laws enacted prior to 1960, irreconcilable with constitutional provisions, can be obliterated from the statute provided they can be separated from the remaining provisions of the law. And. they can be separated so long as they do not destroy the fabric of the law. (See, inter alia, Fekkas v. The Electricity Authority of Cyprus (1968) 1 C.L.R. 173, with regard to the period of limitation provided for by s.2 of the Public .Officers’ Protection Law, [*253] Cap. 313). Likewise illegal provisions in a contract may be disregarded provided they are severable from the remaining provisions of the agreement. (See, inter alia, Gold Soil v. Goldman (1914) 2 Ch. S03 - Scorer v. Seymour Jones (1966) 1 W.L.R. 1419 - Severance of Illegality In Contract, 64 L.Q.R. 230, 347). In my judgment the proviso .to the order of termination is ultra vires the parent law but severable from the remaining provisions of the Order so we should uphold the order of termination indicated by the Council of Ministers, a matter

falling clearly within their powers, and disregard, the proviso thereto. The result is the period of suspension has not yet been

terminated with regard to any cause of action. Hence the action can be maintained.

It becomes unnecessary, in view of my

decision, to indicate which of the two rival interpretations I might be disposed to adopt, on the interpretation of the proviso if it were not found to be ultra vires. However in the interests of completeness of this judgment I may be allowed to express my opinion on the subject. Contrary to the view I formed at first I believe that the interpretation suggested by the plaintiff should be adopted for any other view would again invalidate the proviso for failure to give the statutory notice envisaged by s.2 of Law 57/64 for the activation of the period of prescription. If the interpretation suggested by the defendand was preferred the period of prescription would commence from a day less than three months from the day of the Order. Although I see the force of the argument for the defendant that in any event the provisions of the [*254] proviso could not be relied upon before 1st January 1977, the stark fact remains that the period of prescription would be activated within less than three months from the day of the Order.

For all the above reasons I find that the action is not statute barred. The costs will be costs in cause but in no event against the plaintiff.

Action not statute barred Costs in cause.