Court dismisses application to set aside default judgment due to excessive delay beyond three months.

[*1553] 1972 Νοέμβριος

ΔΙΚΑΣΤΗΣ: (ΜΙΧΑΗΛΙΔΗΣ , Ε.Δ.)

ΕΝ ΤΩ ΕΠΑΡΧΙΑΚΩ ΔΙΚΑΣΤΗΡΙΩ ΛΕΜΕΣΟΥ

Μεταξύ: Δ. ΚΟΥΒΑ & ΥΙΩΝ ΛΤΔ.,

Εναγόντων-Καθ'

ων η αίτησης,

και

Μ###ΝΑ

ΛΤΔ.,

Εναγομένων

- Αιτητών.

(Αρ.

Αγωγής ρ. 562/72).

Πολιτική Δικονομία - Απόφασις

εκδοθείσα λόγω παραλείψεως καταχωρίσεως εμφανίσεως - Νομικαί αρχαί αι διέπουσαι

ακύρωσιν ταύτης - Διακριτική εξουσία του Δικαστηρίου - Απαίτησις βασιζομένη επί

συναλλαγματικής - Καθυστέρησις καταχωρίσεως εμφανίσεως λόγω λάθους ή αβλεψίας

γραφείου επιδόσεως εναγομένων - Πέραν των τριών μηνών καθυστέρησις εις την

υποβολήν αιτήσεως ακυρώσεως - Αίτησις απορρίπτεται Διάταξις 17, Θ.10 των περί

Πολιτικής Δικονομίας Διαδικαστικών Κανονισμών.

Α. Παναγιώτου, δια τους Αιτητάς.

Π. Σχίζας, δια τους Καθ’ ων η αίτησις.

ΑΠΟΦΑΣΙΣ*

ΜΙΧΑΗΑΙΔΗΣ, Ε.Δ.: Δια της υπό κρίσιν αιτήσεως [*1554] σκοπείται

η ακύρωσις της ερήμην των Εναγομένων - Αιτητών εκδοθείσης την 22.3.1972

αποφάσεως δι' ης ούτοι διετάττοντο όπως καταβάλουν εις τους Ενάγοντας - Καθ 'ων

η αίτησις το ποσόν των £200.- πλέον £24.500 μίλς έξοδα.

Η αίτησις αύτη ερείδεται επί των

διατάξεων 17 θ.10 και 48 θ. 9 του Περί Πολιτικής Δικονομίας Διαδικαστικού

Κανονισμού, πραγματικήν δε αυτής βάσιν αποτελεί η υπό ημερ. 31.5.1972 Ένορκος

Δήλωσις του εκ των Διευθυντών της Εναγομένης Εταιρείας Χρίστου Μούρεττου.

Κατά της εν λόγω αιτήσεως κατεχωρήθη

υπό των καθ' ων η αίτησις την 9.9.72 ένστασις, συνοδευομένη υπό Ενόρκου

Δηλώσεως του Κυριάκου Ξενοφώντος, Διευθυντού της εν λόγω Εταιρείας.

Η διέπουσα την ακύρωσιν αποφάσεως

εκδοθείσης λόγω παραλείψεως καταχωρίσεως εμφανίσεως εντός της υπό του

Διαδικαστικού Κανονισμού προβλεπομένης προθεσμίας είναι η

διάταξις 17 θ.10 ήτις έχει ως ακολούθως:-

"10. Where judgment

is entered pursuant to any of the preceding rules of this Order, it shall be lawful

for the Court in a proper case to set aside or vary such judgment upon such

terms as may he just."

Δια της διατάξεως 26, θ. 14 του ιδίου

ως άνω Διαδικαστικού Κανονισμού, προβλέπεται η ακύρωσις αποφάσεως εκδοθείσης

λόγω παραλείψεως καταχωρήσεως των Εγγράφων Προτάσεων εντός της προβλεπομένης

προθεσμίας, έχει δε αύτη ως ακολούθως:- [*1555]

"14. Any judgment by default, whether under

this Order or under any other of these ru2.es, may in a proper case he set

aside by the Court upon such terms as

________________________

*An English translation of this text appears at

pp. 1561-69 post.

to costs or otherwise as the Court may think fit."

Αι αντίστοιχοι των ως άνω διατάξεις

των εν Αγγλία ισχυόντων Διαδικαστικών Κανονισμών έχουν ως ακολούθως:-

"Order 13 Rule 10:

Where judgment is entered pursuant to any of the

preceding rules of this Order, it shall be lawful for the Court or a judge to

set aside or vary such judgment upon such terms as may be just."

"Order 27 Rule 15:

Any judgment by default, whether under this Order

or under any other of these Rules, may 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."

Εις την υπόθεσιν Ioannis Kotsapas

and Sons Ltd., v. Titan Construction and Engineering Company, 1961 C.L.R.

σελίς 317 ο τ. Δικαστής του Ανωτάτου Δικαστηρίου Ιωσηφίδης,

εις την σελίδα 320 αναφέρει:-

"It was argued......on behalf of the appellants

(plaintiffs) that the Cyprus rule differs from the English rule in substance.

But on reading the judgments in the case of Evans v. Bartlam (1937) [*1556]

A.C.473, which was

decided by the House of Lords, it becomes apparent that the English rule has

been interpreted in such a way as though the words 'in a proper case’ were

actually in the text of the rule. Consequently, we propose dealing with this

matter on the footing that the Cyprus rule is substantially the same as the

English rule."

Ο Lord Atkin εις την υπόθεσιν Evans v. Bartlam (1937) A.C. 473 σελίς 479, αναφέρει:-

"I agree that both rules, Order XIII,r. 10

and Order XXVII, r. 15, give a discretionary power to the judge in Chambers to

set aside a default judgment. The discretion is in terms unconditional. The

Courts however, have laid down for themselves rules to guide them in the normal

exercise of their discretion. One is that where the judgment was obtained

regularly there must be an affidavit of merits, meaning that the applicant must

produce to the Court evidence that he has a prima facie

defence.lt was suggested in argument that there is another rule that the

applicant must satisfy the Court that there is a reasonable explanation why

judgment was allowed to go by default, such as mistake, accident, fraud or the

like. I do not think that any such rule exists, though obviously the reason, if

any, for allowing judgment and hereafter applying to set it aside is one of the

matters to which the court will have regard in exercising its [*1557] discretion.

If there were a rigid rule that no one could have a default judgment set aside

who knew at the time and intended that there should be a judgment signed, the

two rules would he deprived of most of their efficacy. The principle obviously is

that unless and until the Court has pronounced a judgment upon the merits or by

consent, it is to have the power to revoke the expression of its coercive power

where that has only been obtained by a failure to follow any of the rules of

procedure."

Ο Lord Wright, εις την σελ. 489 της

προαναφερθείσης αποφάσεως, αναφέρει:-

"In a case like the present there is a

judgment, which, though by default, is a regular judgment, and the applicant must

show grounds why the discretion to set it aside should be exercised in his favour.

The primary consideration is whether he has merits to which the Court should

pay heed; if merits are shown the Court will not prima facie

desire to let a judgment pass on which there has been no proper adjudication.

This point was emphasized in Watt v. Barnett 3 Q.B.D.363 The

Court might also have regard to the applicant’s explanation why he neglected to

appear after being served, though as a rule his fault (if any) in that respect

can be sufficiently punished by the terms as to costs or otherwise which the

Court in its discretion is empowered by the rule to impose. The appellant here

[*1558] has an explanation, the truth of which is indeed

denied by the respondent, but at this stage I see no reason why he should be

disbelieved on what appears to me to be a mere conflict on affidavits."

Εκδίδων την απόφασιν εις την υπόθεσιν Costas

Christoforou v. -Kyriacoullis A.Kyriacoulli, C.L.R.1963, part II, (Civil) page 159 ο τ. Δικαστής του Ανωτάτου Δικαστηρίου, κ.Βασιλειάδης, αναφέρει, εις την σελ. 161:-

"The onus rests upon the applicant, however,

to satisfy the Court that there is substance in the litigation which the

setting aside of the judgment will, necessarily,re-open.

The plaintiff, by taking the proper steps under

the Rules, has satisfied the Court, not only of defendant's default, but also

of the merits of his claim to the extent of being entitled to judgment. Having

obtained such judgment, the plaintiff is entitled to retain it unless the

defendant can show (in addition to explaining his default) that there is merit

in his case sufficient to justify re-opening of the litigation."

Η εναντίον των Εναγομένων - Αιτητών

αγωγή κατεχωρήθη την 15.2.72 ως δε εκ της δικογραφίας προκύπτει επεδόθη την 10.3.72. Κατόπιν της υπό

ημερ. 21.3.72 αιτήσεως εκ μέρους της Εναγούσης Εταιρείας δι' έκδοσιν αποφάσεως εναντίον των Εναγομένων ως η απαίτησις δια παράλειψιν [*1559] καταχωρίσεως σημειώσεως εμφανίσεως

εντός της υπό του Περί Πολιτικής Δικονομίας Διαδικαστικού Κανονισμού

προβλεπομένης προθεσμίας εξεδόθη την 22.3.72 απόφασις εναντίον των Εναγομένων

ως η απαίτησις πλέον £24.500 μίλς έξοδα. Την 30.6.72 υπεβλήθη η παρούσα αίτησις

δυνάμει δε της υπό ιδίαν ημερομηνίαν αιτήσεως των αιτητών εξεδόθη διάταγμα του

Δικαστηρίου δι' ου ανεστέλλετο μέχρι τελικής επιδικάσεως της παρούσης αιτήσεως

η εκτέλεσις της αποφάσεως νοουμένου ότι θα κατετίθετο εις το Δικαστήριον το δια της αποφάσεως επιδικασθέν ποσόν και έξοδα,

πράγμα το οποίον οι εναγόμενοι έπραξαν την 6.7.1972.

Δια της Ενόρκου αυτών

Δηλώσεως οι Αιτηταί ισχυρίζονται ότι η εν λόγω απόφασις εξεδόθη τη αγνοία των

και ότι τούτο ωφείλετο εις το γεγονός ότι ενώ απέστειλαν εγκαίρως εμφάνισιν και

υπεράσπισιν, λόγω λάθους ή/και αβλεψίας του γραφείου επιδόσεως των εις Λεμεσόν "εκαθυστέρησαν δύο μόνον

ημέρας δια την καταχώρησιν των με αποτέλεσμα να εκδοθή εν τω μεταξύ

απόφασις".

Αξίζει να τονίσω εις το παρόν στάδιον ότι, παρ' όλον ότι οι αιτηταί εγνώριζον ότι εξεδόθη απόφασις εναντίον

αυτών και δη δύο ημέρας μετά την εκδόσίν της, εν τούτοις εις ουδέν διάβημα προέβησαν παρά μόνον μετά

πάροδον τριών και πλέον μηνών.

Όσον αφορά διευθύνσεις επιδόσεων

δικηγορικών γραφείων εις άλλας Επαρχίας, το Ανώτατον Δικαστήριον εις την υπόθεσιν Ανδρέας Παντελή Αταλιώτης εναντίον Αστυνομίας C.L.R. (1963)(1) εις την σελίδα 113 παρατηρεί τα κάτωθι:-

[*1560]

"We take the view that advocates from other Districts,

when they give a lawyer's office as addressed for service, they must be sure

that they have made sufficient arrangements for the agent hero to take the

responsibility involved. On the other hand, any person in charge of an office

given as an address for service for Court documents connected with proceedings,

presumably with his knowledge and consent, must bear in mind that there are

certain responsibilities involved, which he must bear."

Διεξήλθα μετά της μεγίστης δυνατής

προσοχής το περιεχόμενον της Ενόρκου Δηλώσεως των Αιτητών υπό το φως των όσον

ελέχθησαν υπό του ευπαιδεύτου δικηγόρου αυτών κατά την ακροαματικήν

διαδικασίαν.

Με γνώμονα τας ως άνω αναφερθείσας

νομικάς αρχάς τας διεπούσας την ακύρωσιν εκδοθεισών αποφάσεων, και δια της υπαγωγής τούτων εις τα πραγματικά γεγονότα της αιτήσεως,

λαβών υπ' όψιν τας ενόρκους δηλώσεις των διαδίκων, το γεγονός ότι η δια της

αγωγής απαίτησις των εναγόντων - καθ' ων η αίτησις βασίζεται επί συναλλαγματικής

ήτις υπεγράφη - ως εκ της Ενόρκου Δηλώσεως

των Εναγόντων προκύπτει- μετά την ημερομηνίαν κατά την οποίαν έδει όπως γίνη παράδοσις των ημερολογίων και αφού

συναλλαγματική μεταγενεστέρας ημερομηνίας είχεν ήδη εξοφληθή, λαβών ωσαύτως

σοβαρώς υπ' όψιν την παρατηρηθείσαν καθυστέρησιν υποβολής της παρούσης

αιτήσεως, εν τη εξασκήσει της διακριτικής μου εξουσίας φρονώ ότι δεν δύναμαι να

ακυρώσω την παρούσαν απόφασιν.

[*1561]

Το Ανώτατον Δικαστήριον εις την υπόθεσιν Κώστας Κυριάκου εναντίον Γιαννούλλας

Γεωργιάδου (1970)(5) J. S. C. εις την σελίδα 449 δια του κ. Δικαστού κ.

Ιωσηφίδη παρατηρεί τα κάτωθι:-

"It is in the public interest that there

should be some end to litigation, and the stipulations as to time in procedural

matters laid down in the Rules of Court are to be observed unless justice

clearly indicates that they should be relaxed: Cf. Loizou v. Konteatis (1968) 8 J.S.C. 891, at page 894 Georghiou

v. Republic (Minister of Interior and another) (1968) 11 J.S.C.1212;

and Edwards v. Edwards (1968) 1 W.L.R. 149."

Εν συμπεράσματι, η αίτησις αύτη

απορρίπτεται με έξοδα καθορισθησόμενα υπό του Πρωτοκολλητού.

This is an English translation of the

ruling in Greek appearing at pp.1553-61 ante.

(Civil Procedure - Judgment in

default of Appearance - Setting aside of - Principles applicable - Discretion

of the Court - Claim based on bill of exchange – Filing of memorandum of appearance delayed through an error or oversight

of defendants' address for service - Over three months' delay in applying to

set aside judgment- Application dismissed - Civil Procedure Rules 0.17 r.10.

Rulling

MICHAELIDES, D.J.: By this application [*1562] the applicants/defendants apply to have the judgment given against them on

22.3.72, in favour of the respondents/ plaintiffs, set aside.

The application is based on order 17, rule 10, and order 48, rule 9, of the

Civil Procedure Rules and is supported by an affidavit dated 31.5.72 sworn by

Christos Mourettos the Manager of the Applicant Company.

On the 9th September, 1972, the

respondents filed a notice of intention to oppose the application supported by an affidavit

sworn by the Manager of the Company, Kyriacos Xenophontos.

Order 17, rule 10, of the Civil

Procedure Rules governs the setting aside of a judgment issued in default of

appearance within the time prescribed by the Rules and reads as follows:-

"10. Where judgment is entered pursuant to

any of the preceding rules of this Order, it shall be lawful for the Court in a

proper case to set aside or vary such judgment upon such terms as may be

just".

The relevant provisión of the Civil Procedure

Rules which governs the setting aside of a judgment issued in default of

pleadings is order 26, rule

14 and reads as follows:-

"14. 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 [*1563] upon

such terms as to costs or otherwise as the Court may think fit".

The corresponding English rules are

order 13, rule 10 and order 27, rule 15:-

"Order 13 Rule 10:

Where judgment is entered pursuant to any of the

preceding rules of this Order, it shall be lawful for the Court or a Judge to

set aside or vary such judgment upon such terms as may be just".

"Order 27 Rule 15:

Any judgment by default, whether under this Order

or under any other of these Rules, may 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".

In Ioannis Kotsapas and Sons Ltd.,

v. Titan Construction and Engineering Company, 1961 C.L.R. p. 317, Josephides J., as he then was, states at

p. 320·.-

"It was argued on behalf of the appellants

(plaintiffs) that the Cyprus rule differs from the English rule in substance.

But on reading the judgments in the case of Evans v. Bartlam

(1937) A.C. 473, which was decided by the House of Lords, it becomes apparent

that the English rule has [*1564] been, interpreted in

such a way as though the words ’in a proper case' were actually in the text of

the rule. Consequently, we propose dealing with this matter on the footing that

the Cyprus rule is substantially the same as the English rule".

In Evans v. Bartlam

(1937) A.C. 473, Lord Atkin

had this to say at p, 479:-

"I agree that both rules, Order XIII, r. 10,

and Order XXVII, r. 15, give a discretionary power to the judge in Chambers to

set aside a default judgment. The discretion is in terms unconditional. The

Courts however, have laid down for themselves rules to guide them in the normal

exercise of their discretion. One is that where the judgment was obtained

regularly there must be an affidavit of merits, meaning that the applicant must

produce to the Court evidence that he has a prima facie

defence. It was suggested in argument that there is another rule that the

applicant must satisfy the Court that there is a reasonable explanation why

judgment was allowed to go by default, such as mistake, accident, fraud or the

like. I do not think that any such rule exists, though obviously the reason, if

any, for allowing judgment and hereafter applying to set it aside is one of the

matters to which the Court will [*1565] have regard in exercising its

discretion. If there were a. rigid rule that no one could have a default

judgment set aside who knew at the time and intended that there should be a

judgment signed, the two rules would he deprived of most of their efficacy. The

principle obviously is that unless and until the Court has pronounced a

judgment upon the merits or by consent, it is to have the power to revoke the

expression of its coercive power

where that has only been obtained by a failure to follow any of the rules of

procedure",

Lord Wright at page 489 said:-

"In a case like the present there is a

judgment, which, though by default, is a regular judgment, and the applicant

must show grounds why the discretion to set it aside should be exercised in his

favour. The primary consideration is whether he has merits to which the Court

should pay heed; if merits are shown the Court will not prima facie

desire to let a judgment pass on which there has been no proper adjudication.

This point was emphasized in Watt v. Barnett 3 Q. B. D. 363 ....

The Court might also have regard to the applicant's explanation why he

neglected to appear after being served, though as a rule his fault (if any) in

that respect can be sufficiently [*1566] punished, by the terms as to costs or

otherwise which the Court in its discretion is empowered by the rule to impose.

The appellant here has an explanation, the truth of which is indeed denied by

the respondent, hut at this stage I see no reason why he should he disbelieved

on what appears to me to be a møre conflict

on affidavits".

In Costas Christoforou v. Kyriacoullis

A. Kyriacoulli. C.L.R. 1963, part II, (Civil) Vassiliades J., as he

then was, in delivering the judgment of the Court had this to say at p. 161:-

"The onus rests upon the applicant, however,

to satisfy the Court that there is substance in the litigation which the

setting aside of the judgment will, necessarily, re-open.

The plaintiff, by taking the proper steps under

the Rules, has satisfied the Court, not only of defendant’s default, but also of the merits

of his claim to the extent of being entitled to judgment. Having obtained such

judgment, the plaintiff is entitled to retain it unless the defendant can show

(in addition to explaining his default) that there is merit in his case

sufficient to justify re-opening of the litigation".

This action was filed against the

applicants/ defendants on the 15th February, 1972 and it was served [*1567] on the 10th

of March, 1972. As the applicants/defendants failed to enter an appearance

within the time prescribed by the rules, the respondents/plaintiffs filed an Ex

parte application for judgment which was dealt with by this Court on the 22nd

March, 1972, and judgment for the plaintiff in the sum of £200.- with £2l.500

mils costs was given on that date.

On the 30.6.72 the present

application was filed, and upon an Ex parte application of the same date an

order was granted staying the execution of the judgment up to the final

determination of this application on condition that the amount adjudged and the

costs were deposited in Court. In compliance with the above Order, the judgment debt and costs were

deposited in Court on 6.7.72.

In the affidavit in support of the

application it is alleged that the applicants had no knowledge of the issue of

the aforesaid judgment against them as, although they sent the Memorandum of

Appearance and the Statement of Defence in time to their address for service in

Limassol, this office, due to an error or oversight, delayed the filing in

Court for two days only and consequently the judgment was given.

It is worth noting that although the

applicants knew that judgment was given against them within a period at two

days after the delivery of such judgment, they failed to take any steps to set

it aside for a period of over 3 months. [*1568]

As regards addresses for service

given by advocates in other districts the High Court in Andreas Panteli Ataliotls

v. The Police, C.L.R. (1963)(l) at p. 113 observed the following: -

"We take the view that advocates from other

Districts, when they give a lawyer’s

office ... as address for service, they must be sure that they have made

sufficient arrangements for tire agent here to take the responsibility

involved. On the other hand any person in charge of an office given as an

address for service for Court documents connected with proceedings, presumably

with his knowledge and consent, must bear in mind that there are certain

responsibilities involved, which he must bear".

I have carefully considered the

contents of the affidavit of the applicants and gave due regard to the address

of learned counsel during the hearing of this application.

Having in mind the aforesaid legal

principles on setting aside a judgment and applying them to the facts of this

application, taking into consideration the affidavits of the parties, the fact

that the claim of the applicants is based on a bill of exchange which was

signed - as it appears in their affidavit - after the date the goods (diaries) had to be delivered

and as a bill of exchange which matured on a subsequent date had already been

paid off, having also [*1569]

seriously considered the delay in filing this

application, in the exercise of ray discretionary power I feel that I cannot

set aside this judgment.

In Costas Kyriacou v. Yiannoulla

Georghiadou (1970) 5 J.S.C. , p. 446, Josephides, as he then was, had this

to say at p. 449:-

"It is in the public interest that there

should be some end to litigation, and the stipulations as to time in procedural

matters laid down in the Sules of Court are to be observed

unless justice clearly indicates that they should be relaxed: of.

Loizou v. Konteatis (1968) 8 J.S.C. 891, at page 894; Georghiou

v. Republic (Minister of Interior and Another) (1968) 11 J. S. C. 1212; and Edwards

v. Edwards (1968) 1 W.L.R. 149".

In the result this application is

dismissed with costs to be assessed by the Registrar.

Application dismissed

with costs.