Court dismisses appeal extension request where late advocate change and brief delay lack sufficient justification.

[*463] 1982 May 27

(HADJIHAMBIS, AG.D.J.)

IN THE DISTRICT COURT OP LIMASSOLMichalakis Drakos & Co. Ltd.,

Applicants,

v.

"AVGERINOS" Company Ltd. and Others,

Respondents,

(Rent. Appl.No. 122/81).

Rent Control Law , 1975 (Law 36/75) - Proceedings thereunder - Appeal - Extension of time within to appeal - Whether Order 35 rule 2 and Order 57 rule 2 of the Civil Procedure Rules applicable - Section 25 of the above Law and rule 12 of the Rent Control Rules 1975 (as amended by the Rent Control Rules 1978).

Civil Procedure

- Appeal - Extension of time within which to appeal - Discretion of the Court - Principles applicable - Rent Control proceedings - Change of advocate three days before the time limit elapsed and brief of case delivered to the new advocate on the following day - Not a proper case in which to exercise the discretion in favour of an extension.

A. Papacharalambous for the Applicant.

St. Houri, (Mrs), for the Respondents.

RULING

The following ruling was delivered by:

HADJIHAMBIS, Ag.D. J.:- The Applicants (Respondents 464 in the main Application), by this Application dated 3/4/1982, apply for an extension of time for filing an appeal against the judgment delivered in respect of the main Application on 18/3/1982. The Application is opposed by the Respondent (Applicant in the main Application), by Notice of Opposition dated 12/4/1982. Affidavits in support of the Application and the Notice of Opposition have been filed dated 3/4/1982 and 12/4/1982 respectively and, at the hearing of the Application, learned counsel for the Applicants made a statement, to which learned counsel for the Respondent took no objection, to the effect that the instructions for the filing of an appeal were given to him by the Applicants at 5 p.m. on 30/3/1982 and that the brief of the Application was delivered to him by the advocate appearing at the hearing on 31/3/1982. It is further stated in the affidavit in support of the Application that the failure to file an appeal in time was due to the delay in the delivery of the brief and to the absence on 2/4/1982 (the day on which the time for filing an appeal elapsed) of learned counsel for the Applicants from Limassol to Nicosia. These statements are not disputed as to their content in the affidavit in support of the Notice of Opposition ( I ignore para.6 thereof where it is alleged that the allegations of fact in the affidavit in support of the Application are inadmissible as hearsay, since, in applications determined by affidavit evidence, statements based on information or belief are admissible) which, in reality contains no statements as to facts

but rather, I apprehend, legal argument, reiterated at the hearing by learned [*465] counsel for the Respondent, to, which I

shall revert. Consequently, I take the facts as being those stated in support of the Application.

Rule 12 of the Rent Control Rules 1975 (renumbered Rule 11 by the Rent Control Rules 1978) provides:

“Οιονδήποτε επηρεαζόμενον πρόσωπον το οποίον

διαφωνεί με απόφασιν του Δικαστηρίου δύναται εντός δεκατεσσάρων ημερών από

τοιαύτης αποφάσεως να υποβάλη έφεσιν εις το Ανώτατον Δικαστήριον, αι δε

πρόνοιαι της Διατάξεως 35 του περί Πολιτικής Δικονομίας Διαδικαστικού

Κανονισμού αι αναφερόμεναι εις εφέσεις θα εφαρμόζωνται, τηρουμένων των

αναλογιών, εις τοιαύτας εφέσεις.”

Indeed, s.25 of the Rent Control Law 1975, in pursuance of which the Rent Control Rules were made, itself provides in sub-section 3 that:

"Any person who disagrees with any judgment of the Court may, within fourteen days from such judgment, appeal to the Supreme Court."

The fourteen days thus provides by s.25(3) and Rule 12 for the filing of an appeal elapsed on 2/4/1982 (the l/4/1982 being a holiday) without an appeal being filed, the Application for extension of the time within which to file the appeal being made one day after the expiry of the time fixed by s.25(3) and Rule 12 for the filing of an appeal. [*466] Learned counsel for the Applicants based his argument for extension of time on Order 35 Rule 2 of the Civil Procedure Rules, which are made applicable in rent control proceedings by Rule 10 of the Rent Control Rules 1975 (renumbered Rule 9 by the Rent Control Rules 1978)which provides:

“Τηρουμένων των διατάξεων του παρόντος

Κανονισμού, ο περί Πολιτικής Δικονομίας Διαδικαστικός Κανονισμός εφαρμόζεται με

τας αναγκαίας προσαρμογάς εις πάσαν διαδικασίαν προερχομένην εκ των διατάξεων

του Νόμου.”

Indeed, Order 35 Rule 2 is expressly adopted, so far as applicable, in rent control proceedings by Rule 12 above cited.

Order 35 Rule 2 of the Civil Procedure Rules provides:

"Subject and without prejudice to the. power of the Court of Appeal under Order 57, rule 2, no appeal from any interlocutory order, or from an order, whether final or interlocutory, in any matter not being an action, shall be brought after the expiration of fourteen days, and no other appeal shall be brought after the expiration of six weeks, unless the Court or Judge, at the time of making the order or at any time subsequently, or the Court of Appeal shall enlarge the time. The said respective periods shall be [*467] calculated from the time that the judgment or order becomes binding on the intending appellant, or in the case of the refusal of an application, from the date of such refusal. Such deposit or other security for the costs to be coccasioned by any appeal shall be made ör given as may be directed under special circumstances by the Court of Appeal."

I am not sure, from the wording or Order 35, Rule 2, that it is applicable to an Application for extension of time in respect of rent control proceedings, for it only applies, in its own terms, to an extension being granted in respect of appeals against orders or appeals to which the time limit of six weeks provided therein applies, unless 1 were

to read the words “τηρουμένων των αναλογιών”, in Rule 12 of the Rent Control Rules 1975 which purports to make

it applicable, as effectively incorporating its provisions as to the Court's jurisdiction to grant an extension. Be that as it may, however, an application for extension may also be based on Order 57 Rule 2 of the Civil Procedure Rules (made applicable in rent control proceedings by Rule 10) which is often used in combination with Order 35 Rule 2 and which provides:

"A Court or Judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as [*468] the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: provided that when the time for delivering any pleading or document or filing any affidavits, answer or document, or doing any act is or has been fixed or limited by any of these rules or by any direction or order of the Court or Judge, the costs of any application to extend such time and of any order made thereon shall be borne by the party making such application unless the Court or Judge shall otherwise order."

On the face of it, however, I would

doubt whether Order 57 Rule 2 does really apply in rent control proceedings. Order 57 Rule 2 in its own terms provides

that the Court’s jurisdiction is to grant an extension of the time "provided by these rules". Now, it is true that the time limit of fourteen days is "provided by these rules" in so far as it is contained in Rule 12 and the Civil Procedure Rules are incorporated in the Rent Control Rules, but it seems to me that the time limit of fourteen days really stems not from the Rules but from s.25(3) which makes no provision as to extension. Consequently, I find it difficult either, as a matter of language, to read "provided by these rules" as meaning "provided by the law", or, as a matter of substance, to construe the Rules in a way that takes them outside the limits of the law in pursuance of which they were made for the express purpose, as provided by s.25(l), of giving [*469] effect to its provision including s.25(3). Nor do I conceive that, in the face of an express legislative provision as to time, I would have any inherent jurisdiction to extend the time so provided.

However, on the basis that they do apply, I shall proceed and consider the Application under Order 35 Rule 2 and Order 57 Rule 2. Order 35 Rule 2 and Order 57 Rule 2 of the Civil Procedure Rules substantially correspond to Order 58 Rule 15 of the English R.S.C. 1883 (now varied and replaced by Order 59 Rule 15 of the R.S.C. 1965) and Order 6k Rule 7 of the English R.S.C. 1883 (now replaced by Order 3 Rule 5 of the R.S.C. 1965) respectively, and I, consequently, propose to rely on the English as well as the Cyprus authorities dealing with the matter in hand.

It is clear that, under the Rules, the Court has a wide discretion to grant an extension and that this discretion must be exercised by reference to all the circumstances of each case. As Sir Wilfrid Greene, M.R., put it in Gatti v. Shoosmith (1939) 3 All E.R. 916, at p.920:

"The discretion of the Court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this individual case, that discretion should be exercised."

However, the authorities show that the discretion is only to be exercised if there are good reasons for departing from the strict time limits laid down by the Rules. As Lord Guest, [*470] delivering the opinion of the Privy Council in Ratnam v. Cumarasamy et al (1964)

3 All E.R.933, put it, at p.935:

"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation."

On this basis, their Lordships dismissed the Application for extension, though made only four days after the. time limit, considering as insufficient ground for extension the facts relied upon to the effect that the Applicant instructed his solicitors to file the appeal only a day before the time limit as he had been hoping for a compromise.

Ratnam v. Cumarasamy et al was cited with approval in the Court of Appeal in Revici v Prentice Hall Inc. et al (1969) 1 All E.R. 772, C.A., where their Lordships approved the strict view of compliance with the rules. Lord Denning, M.R., said, at p.774:

"Counsel for the plaintiff referred us to the old cases

in the last century of Eaton v. Storer and Atwood v. Chichester, and urged that time does not matter as long as the costs are

paid. Nowadays we regard time very different from what [*471] they did in the nineteenth century. We insist on the rules as to time being observed."

Edmund Davies, L.J. , as he then was, laconically summed it up, at p.774:

"Prima facie, if no excuse is offered, no indulgence should be granted."

I also refer to McC (RD) v McC (JA) (1971) 2 All E.R. 1097, C.A., where the Court of Appeal emphasized the significance of time limits in the context of finality of litigation to the point that even the fact that the judgment of the trial Court may be wrong is not in itself a sufficient reason for an extension. As Sir Jocelyn Simon, P., in Edwards v Edwards (1968) 1 W.L.R., 149, put it, at p. 150:

"….it is desirable that disputes within society should be brought to an end as soon as is reasonably practical and should not be allowed to drag festeringly on for an indefinite period."

And, at p. 151, he went on to elaborate on the principle of the Court, saying:

"So far as procedural delays are concerned, Parliament has left a discretion in the Courts to dispense with the time requirements in certain respects. That does not mean, however, that the Rules are to be regarded as, so to speak, antique timepieces of an ornamental value but no chronometric significance, 472 so that lip service only need be paid to them. On the contrary, in my view the stipulations which Parliament has laid down or sanctioned as to time are to be observed unless justice clearly indicates that they should be relaxed."

The Supreme Court has had occasion to pronounce on the principles governing applications for extension of time for filing an appeal. I refer to Christofi v. Socratous (1963) 2 C.L.R. 71, where the application was refused primarily on the ground that it was made too late, after a writ of execution had issued and was partly executed. Wilson, P., giving the judgment of the Court, said, at p.72:

"Unless there are some very exceptional circumstances, and there were none before this Court in this case, an application of this kind cannot succeed."

In Pavlou v. Cacoyannis

(1963) 2 C.L.R. 405, the delay, due to the failure of the Applicant’s advocate or the Applicant himself to cause the appeal to be filed in time, and the fact that there were important points of law to be argued in the appeal, were not considered sufficient reasons for an extension. As Vassiliades, J., as he then was, put it, at ρ.406:

"... the failure of the advocate or the litigant to take the appropriate steps for the filing of an appeal within the time prescribed by the Rules, is not a sufficient ground upon which the discretion of the Court should be exercised in such an application." [*473]

In Hji.Michael v. Karamichael et al ( 1967) 1 C.L.R., 6l, Josephides, J., delivering the judgment of the Court, said, at p.65:

"The discretion of the Court under the Rules, as held in many English cases (interpreting the English Rules which correspond to our Rules) is perfectly free and the only question is whether upon the facts of any particular case it should be exercised."

In the exercise of their discretion, their honours there granted the extension, particularly in view of the fact that the long delay in applying (some 3½ years after delivery of The judgment) was substantially due to the delay of the Registrar in furnishing the Applicant with a copy of the judgment owing to the disruption of the functioning of the Courts as a result of the events of December 1963.

In Loizou V Konteatis (1968) 1 C.L.R. 291, the Supreme Court, stressing that extension of time is a matter of the Court's discretion, refused the application though made only a few days after the expiry of the time limit. In the affidavit filed in support of the application, the Applicant's delay was said to be due to the fact that after the judgment (and, in fact, after the time limit), he instructed a new advocate who was unable to prepare and file the appeal in time as he had to study the notes of the proceedings and the judgment. As Vassiliades, P., giving the judgment of the Court, put it, at p.294: [*474]

"In the present case, the plaintiff-respondent acquired a vested interest in the amount of the judgment, judicially declared. This was subject to an appeal filed within the time set by the Rules. After expiry of that time, the plaintiff's rights under the judgment became final. We take the view that they should not now be interfered with, unless for good cause shown in the record and sufficient to move judicial discretion against him."

In Georghiou v The Republic (1968) 1 C.L.R. 411, the Supreme Court was divided on the emphasis to be laid in such cases. Josephides, J. (in whose judgment Stavrinides,J., concurred), after a review of the authorities, said at Ρ.417:

"To sum up, the discretion of the Court being a perfectly free one, the only question is whether spon the facts of a particular case that direction should be exercised. The fact that the omission to appeal in due time was due to inadvertence, negligence, or mistake on the part of a legal adviser, may be sufficient cause to justify the court in exercising its discretion, but it is not to be thought that it will necessarily be exercised in every set of facts. As I conceive the rule, there is nothing in the nature of such inadvertence, negligence or mistake as to exclude it from being [*475] a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case."

Hadjianastassiou, J., at p.418, put the matter in its wider perspective when he said;

"Although I am aware that it is desirable that disputes within society should be brought to an end as soon as is reasonably practical and should not be allowed to drag festeringly on for an indefinite period, nevertheless … am of the opinion, that stipulations as to time in procedural “ matters should be observed, unless justice clearly indicated, when there is a good reason, that they should be relaxed."

On this basis, Josephides, J., Hadjianastassiou, J., and Stavrinides, J., granted the application primarily on the basis of the fact that the Applicant was deported from Cyprus soon after the judgment as a result of it and that the delay, due to the inadvertance of the Applicant’s counsel, was of only three days. The minority, on the other hand, consisting of Vassiliades, P., and Loizou, J., would refuse the extension, taking a stricter view of the circumstances in which applications for extension should be granted. Referring particularly to Pavlou v Cacoyannis, Loizou v Konteatis, and the criminal case A.G. v. Hji Constanti (1968) 8 J.S.C. 885, and stressing the significance of [*476] finality of adjudication, Vassiliades, P., thought that the Court is mostly inclined against extension save in exceptional circumstances, even when the delay is a very short one.

It is to be noted that Georghiou v The Republic involved administrative law in the context of which, as much as in the context of criminal law - I refer to A.G. v. Hji Constanti cited by Vassiliades, P., - the public interest in the timely finality of adjudication may be stronger than in civil actions. Indeed, Josephides, J., there indicated that had it been a civil action, on the facts before him, he would have had less difficulty in granting an extension. In this context, I wish to stress the fact that rent control proceedings were intended to provide, inter alia, a speedy and timely adjudication of such matters and it was in reference to that purpose that, I apprehend, the time for filing an appeal is not the usual six weeks as in civil cases but the exceptionally short one of fourteen days. Consequently, it seems to me, the public as much as private interest in rent control proceedings regards the speedy and timely finality of adjudication of such matters as of primary importance.

I refer further to Ioannidou v Dikeos et al (1976) 1 C.L.R. 241, where an application, made fifteen days after the time limit, was granted. There the appeal had been filed and an objection to its being filed out of time (whereupon the application for extension was made) was raised a long time after, the Applicant had, until then, [*477] been acting in the proceedings personally without legal representation, and the trial Court record had not been made available until after the time for filing an appeal had elapsed. These circumstances certainly constituted exceptional circumstances justifying an application. Another instance of an extension being granted on the exceptional circumstance that the trial Court record was not made available until shortly before the time limit is Turkish Co-operative Carob Marketing Society Ltd v. Kiamil et al (1973).2 J.S.C. 168, the application there being made on the last day. In this case, Triantafyllides, P., giving the judgment of the Supreme Court, indicated another factor which may be relevant in determining whether to grant an extension or not, that is, the likelihood of the appeal succeeding. As he put it, at p.175:

"The question of the prima facie likelihood of success of the intended appeal is a factor to be taken into account together with all other relevant factors when considering whether to grant an extension of time for appealing, but it is a factor which appears to vary in effect according to the particular circumstances of each case in which such an extension is applied for."

On this basis, his Honour, though finding that from a perusal of the judgment there were points meriting

consideration, stressed the siginificance of attaching to [*478] the application a copy of the grounds of appeal, which the

Applicants had not done.

Finally, I refer to Cyprian Seaway Agencies Ltd et al v The Republic et al (1981) 3 C.L. R. 271, where an application, filed nineteen days after the time limit, was refused. A. Loizou, J. , extensively reviewed the authorities and considered that the facto relied upon in support of the Application, that is, that the Applicants waited for instructions from their shipping Association as to whether to file an appeal, were not sufficient to justify an extension. His Honour also stressed the desirability of attaching to the application a copy of the grounds of appeal which had not been done, so that the Court might be in a position to assess the argument relied upon by the Applicants that a novel and interesting point arose on appeal. He further indicated that, as was done in Turkish Co-operative Carob Marketing Society Ltd v. Kiamil et al, the application in such circumstances when the Applicant is not ready to file the appeal should rather be made before the expiry of the time limit.

When I turn to consider the facts of the instant case in the light of the authorities, I find myself faced, in the first place, with the circumstance that the Application was made only one day. after the expiry of the time limit. Learned counsel for the Applicants has stressed this point urging that it in itself makes it just and equitable that I should exercise my discretion to grant the Application. Indeed, in connection with the fact that [*479] there was a change of advocate three days before the time limit elapsed, that the brief of the case was delivered to the new advocate on the following day, and that he was away from Limassol on the day the time limit elapsed, theseconstitute the facts on which the Application is based. Learned counsel for the Respondent, on the other hand, argued most strongly to the effect that these facts, showing at best delay on the part of the Applicants in giving instructions for the filing of an appeal, do not disclose exceptional circumstances sufficient to warrant the exercise of my discretion to grant an extension.

It is true that the delay in the instant case is a relatively small one, and I would give particular weight to it. However, the Application cannot be considered with reference to any one such circumstance only, but rather in relation to all the circumstances in order that the discretion may be fully informed in its exercise, and, as the cases show, even in the event of a small delay good cause for granting an extension must be shown over and above the mere length of the delay itself. As regards the length of the delay, I would, rather, put it thus: the larger the delay the more cogent the reasons for justifying it must be, but even a small delay has to be sufficiently justified.

It is when I turn to the other circumstances that the justice of granting an extension seems less obvious. For one thing, no explanation what so ever is offered for not taking steps towards the filing of an appeal until 5 p.m. on the 30th March 1982. The relatively short space [*480] of three days left thereafter before the time limit expired was thus the result of a delay, left unexplained, in making prompt and proper use of the time given for an appeal. This is all the more so when I consider that a copy of the judgment was made available to the parties as soon as the judgment was delivered on the 18th March 1982.

Nor do I find the fact of a change of advocate, or delay in giving instructions for the filing of an appeal, in themselves sufficient justification for granting an extension even though the new advocate may only have had a short time to prepare and file the appeal. I do not consider that, on the facts as presented, there was any unreasonable or unjustified delay on the part of the former advocate in delivering the brief on the following day, and, as for the advocate’s absence to Nicosia on the last day, I simply fail to be convinced that this was the effective cause or a sufficient justification for the delay.

A change of advocate or delay in giving instructions for the filing of an appeal were not considered sufficiently good reasons for an extension in Loizou v Konteatis and Ratnam v Cumarasamy, respectively, and I do not find them such here in the absence of any explanation as to their significance. If it were otherwise, the Applicant could, by the simple expedient of changing his advocate close to the time limit, secure an extension effectively as of right without any further explanation, thereby defeating the object of the law. In any case, I am not persuaded that the three days that

were available to the new advocate for preparing and [*481] filing the appeal were not sufficient, on the facts as alleged,

particularly the fact that final instructions forfiling an appeal were given, to prepare and file the same. In any case, if it was felt that the time left for adequately preparing and filing an appeal was insufficient, the proper course, as followed in the Turkish Co-operative Carob Marketing Society Ltd and indicated in Cyprian Seaway Agencies Ltd et al, would have been for the Applicants to file an application for extension of time before its expiry, furthermore, as stressed in the above cases, it is desirable that the application should be accompanied by a copy of the grounds of appeal, which was not done here, though I could not place any significance on this factor in the instant case. On the other hand, I would place significance on the fact that, as I have already pointed out, the time limit for an appeal in rent control cases is only fourteen days instead of the usual six weeks, which indicates the public interest in the speedy and timely final determination of such cases. Consequently, even a delay of one day may not in itself carry as much weight here as in ordinary civil cases.

In the end, though I have tried to read the facts as favourably to the Applicants as I can in order to give them, if possible, the benefit of an extension seeing that the Application was made shortly after the expiry of the time limit, I have reached the conclusion that in the light of the authorities this is not a proper case in which to exercise my discretion in favour of granting [*482] an extension. I must point out that, although the discretion of the Court is wide and free, it is not lightly to be exercised and that I fail to find any exceptional circumstances, on the facts as alleged, warranting its exercise so as to grant an extension as was the case with all the authorities in which an extension was granted. I am, consequently, not prepared, as at present advised, to distrub the vested interest which the Respondent has acquired in the judgment or the public interest in the timely finality of adjudication.

The Application is dismissed and the Applicants are ordered to pay the Respondent's costs to be assessed by the Registrar.

Application dismissed.

Applicant to pay

respondent's costs.