Court dismissed appeal extension due to lack of sufficient justification despite non-receipt of minutes.

[*186] 1979 February 21

(PIKIS, P.D.C.)

IN THE DISTRICT COURT OF LARNACA

Maroulla I. Neofytou,

Plaintiff,

v.

Andreas Patchia and Another,

Defendants.

(Action No. 921/75).

Civil Procedure - Appeal - Extension of time within which to file appeal - Order 35 rule 2 and Order 57 rule 2 of the Civil Procedure Rules - Discretion of the Court - Need to safeguard a litigant’s right to appeal - And need to ensure finality of litigation - Non-availability of minutes of proceedings in time not a ground for extending time in the circumstances of this case.

C. Varda (Mrs.), for the Applicant.

Chr. Sozos, for E. Emilianides, for the Respondents.

JUDGMENT

The following judgment was delivered by:-

PIKIS, P.D.C.: This is an application for extension of time meant to enable the applicant to file an appeal after the expiration of the time limited for appeal by the provisions of Order 35, r.2 of the Civil Procedure Rules. The delay to appeal in time is explained in an affidavit of the applicant and the reason is that she was not supplied with the minutes of the proceedings in time. There is no complaint that she was not furnished with a copy of the judgment, shortly after its delivery, [*187] or that either she or her advocate had any difficulty in comprehending the proceedings before the Court. The record of the Court establishes and, there is no suggestion to the contrary, that the applicant as well as her advocate were present when her application for setting aside the arbitrator's award was heard in Court. The minutes to which they refer are the addresses of counsel in support of and against the application. So the Court is asked to exercise its discretion in favour of the applicant for the mere reason that she was not furnished with an extract of the addresses of counsel, made in Greek in her presence and in the presence of her advocate. On the directions of the Court copy of the application was served on the other side who appeared in due course and opposed the application on the ground that no sufficient reasons are disclosed such as should lead the Court to grant an extension of time. Order 57, r.2 of the Civil Procedure Rules confers discretion on the Court to enlarge the time limited by the Civil Procedure Rules for taking pertinent steps in litigation. It is indeed a salutary provision making the rules subservient to the interests of justice. However, as

it has often been said the interests of justice are prima facie best served by adhering to the provisions of the Civil

Procedure Rules, designed to ensure that justice is done in an orderly and conclusive manner. There are many decided cases highlighting how the Court’s discretion may be exercised in the specific area under consideration. (See Areti Pavlou and Another v. George P. Cacoyiannis and Others (1963) 1 C.L.R.405; Erini Costa Hji Michael v. Maria KaraMichael and Two Others (1967) 1 C.L.R.61; Andreas P. [*188]

Loizou v. Panayiotis Ch. Konteatis

(1968) 1 C.L.R.291; Niki Chr. Georghiou v. The Republic (1968) 1 C.L.R.411 ; Ioannidou v. Dikeos and Another (1970) 8 J.S.C.752; Kourtis and Another v. Iasonides

(1972) 4 J.S.C.405; and Turkish Co-Operative Carob Marketing Society v. Kiamil and Another (1973) 2 J.S.C.168). The authorities consistently emphasize that the discretion of the Court should not be unduly fettered by rigid rules nor should decided cases involving the exercise of the Court's discretion in the same field be treated as laying down unbending rules shaping the exercise of the Count’s discretion. The Court should not refuse extension where it appears in the totality of the facts of the case just to do so. In the last analysis the Court must balance two apparently conflicting factors: One is the need to effectively safeguard a litigant’s right to appeal and in evaluating the importance of this consideration one must not overlook that under our judicial system the right to appeal is prominent, especially after the establishment of the Republic of Cyprus whencefrom the right to appeal was considerably extended by the provisions of the Courts of Justice Law. The other consideration is the need to ensure finality of litigation,, an important consideration for the proper administration of justice as it was pointed out by Sir Jocelyn Simon P., as he then was, in the case of Edwards v. Edwards (1967) 2 All E.R. 1032. The learned Judge depicts the administration of justice as a piece of social engineering with finality featuring prominently for a successful outcome. The learned Judge reminds us of the existence of similar principles in different fields of the law likewise designed to ensure [*189] finality essential for the ascertainment of one's rights.

The object of the rule is, as staged by Lush J. in Shafer v. Blyth (1920) 3 K.B. 140, "to give the Court in every case a discretion to extend the time with a view to the avoidance of injustice”. In Rogers v. Holborn (1913) 7 B.W.C.C.10 (see also White Book 1952, 1277), the time was enlarged where the County Court Judge omitted to furnish a copy of his notes within the time limited for appeal. In evaluating the implications of this judgment it should be realized that the notes of the Judge included the judgment in the case.

Returning to the facts of the case in hand one should bear in mind that the parties were present when the judgment was given and were, shortly afterwards, in possession of a copy of the judgment. The facts relied upon in support of the opposition to the application of plaintiff to correct an error allegedly apparent on the arbitrator’s award were set forth in an affidavit, copy of which was delivered to the applicant in the present proceedings before the hearing of the application. All that the minutes of the Court contained were the addresses of the parties. Certainly the plaintiff and her counsel must have been fully aware of what they put forward before the Court and were present when the other side addressed the Court on the same subject. Moreover the judgment of the Court reproduced, to an extent, the arguments of the parties certainly to the extent considered necessary for the purposes of the judgment. Notwithstanding my reluctance to stop a party from appealing under any [*190] circumstances I am of the view that to accede to this application would constitute an impermissible exercise of my discretion. The plaintiff had cognizance of all the relevant facts, they had a copy of the judgment and heard the address of their opponent. In these circumstances the applicant should be in a position to take a decision on her rights. This she did not do in time and now it is, in my judgment, too late to appeal. The application is dismissed. No order as to costs.

Application dismissed with

no order as to costs.