Court dismisses appeal extension application due to lack of exceptional circumstances justifying delay.

[*528] 1985 June 5

(HADJITHAMBIS, D.J.)

IN THE DISTRICT COURT OF LIMASSOL

In the matter of the Immovable property (Tenure, Registration & Valuation) Law, Cap. 224,

Naroulla A. Rodia and Another,

Applicants,

v

Andreas Assat Kasif and Another,

Respondents.

(Appeal/Application No. 52/83).

Civil Procedure - Appeal - Extension of time within which to file an appeal - Principles governing the exercise of the Court’s discretion - Review of authorities on the subject - Burden on applicant to put forward facts justifying the delay.

P. Mouaimis, for the Applicants.

M. Kelides, for the Respondents.

RULING

The following ruling was delivered by:-

HADJIHAMBIS, D.J.:- This application prays for an extention of time for the filing of an appeal against the ruling of the Court in an Appeal/Application dated the 18th February, 1965, the application “being based on the Civil Procedure Rules, 0.35, rule 2 and Order 57, rule 2. [*529]

The application is opposed and affidavits accompany both the application and the notice of intention to oppose it; a supplementary affidavit in support of the application has also been filed shortly before the hearing.

Order 35, rule 2, 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 an 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 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 occasioned by any appeal shall be made or given as may be directed under special circumstances by the Court of Appeal” [*530]

And Order 57, rule 2, 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 proceedings, upon such terms (if any) as 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 affidavit, 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”

According to the affidavit filed in support of the application, the Applicants applied for a copy of the ruling of the Court which was ultimately given to them on the 27th February, five days before the expiry of the time limit of 14 days fixed by the relevant rule 13 of the Immovable Property (Registration, Tenure and Valuation) Rules 1956, and due to the short time available [*531] to counsel for the Applicants it was not possible to study the case and contact the Applicants to advise them and get instructions regarding the filing of an appeal against the ruling. It is also stated that the Applicants have good grounds of appeal; a copy of these grounds is attached to the application.

According to the affidavit filed in support of the opposition, the case has been in the courts for some time and, following several adjournments, the hearing was limited to certain points, whereas both Applicants were represented by counsel as well as representatives and no complicated or other legal issues were raised at the hearing. Counsel for the Applicants was present when the ruling of the Court was given. It is further stated that in the ruling, copy of which the Applicants got before the expiry date for filing an appeal, the arguments of both sides are presented and all elements necessary for the purpose of judging whether an appeal should be filed are included. It was a few days before the hearing that a supplementary affidavit was filed in support of the opposition sworn to by an advocate who had been instructed to consider the possibility of an appeal against the ruling and to communicate with the Applicants for instructions. The affiant states further that she had discussed the case [*532] with counsel appearing at the hearing and was informed by him that counsel for the Respondents had been notified orally that there was an intention to file an appeal. The affiant gave directions for a copy of the ruling and tried to contact the Applicants for instructions but it was not possible for them to get in touch with the Applicant 2 who lived in Athens at the time. It is further stated that due to an oversight she had not noticed the provisions of rule 13 as to the limit of

14 days and was under the impression that the time limit was longer. Due to pressure of work and the erroneous view regarding the time limit for filing an appeal, there was this delay in applying for an extension of time, the application being filed four days after the expiry of the time limit.

I have had occasion to deal with the authorities concerning the principles governing applications for extension of time within which to file an appeal in the case of Drakos & Co. Ltd. v. Avgerinos Company & Others (1983) 2 J.S.C. 463, and I would refer to pp. 469 - 478 of that report to the following effect:

“It is clear that, under the Rules, the Court has a wide discretion to grant an extension 25 and that this discretion must be exercised by reference to all the circumstances of each case. As Sir Wilfrid Greene, M.R., [*533] 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, 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’.[*534]

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 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 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’.[*535]

I also refer to McM (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, 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 [*536] 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 Vasiliades, J., as he then was, put it, at p.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 [* 537] ground upon which the discretion of the Court should be exercised in such an application’.

In Hji. Michael v. Karamichael et al (1967) 1 C.L.R., 61, 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 [*538] filed in support of the application, the Applicants’ delay was said to be due to the fact that after the judgment (and, in fact, after the time limit), they 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:

‘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 p. 417:

‘To sum up, the discretion of the Court being a perfectly free one, the only question is whether upon the facts of a particular [*539] 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 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 … I 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’. [*540]

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 inadvertence 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 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 (supra) 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 (supra) 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 [*541] 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, 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 [*542] 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 significance of attaching to 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 facts relied upon in support of the Application, that is, that the Applicants waited for instructions [*543] 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”.

My view of the authorities to which I have considered it necessary to refer in extenso is that a very strict view is taken of the court’s discretion whether to grant an extension or not, though admittedly the rules state this discretion to be a wide discretion and though the discretion is certainly wide in the sense that it should not be precisely defined in terms of any particular factors which must be taken into consideration but must rather be considered as capable of embracing any circumstance that may be deemed by the Court relevant in determining whether the justice of the case requires that an extension should be granted. To say, however, that the discretion [*544] is a wide discretion does not further mean that the discretion is likely to be exercised widely because to my mind the principles upon the discretion proceeds clearly indicate that there must be exceptinal circumstances making it necessary for the Court as a matter of justice to grant the extension and that the burden is on the Applicant not merely to put forward circumstances explaining the delay but to put forward circumstances justifying the delay in such a way that the rationale of the rule as to time is overweighed by the necessity of doing justice by granting an extension. The facts on which extension has been granted or refused in the authorities I have referred to, give an indication of the significance of certain factors upon which the discretion proceeds and it is to the circumstances of the case before me that I should turn in determining whether the discretion given by the rules should be exercised in granting an extension in this case.

As regards the affidavit filed in support of the application and attached to it, I see no circumstances whatsoever that could satisfy an extension of time in this instance. Taken together with the affidavit filed in support of the opposition, it appears that all parties were present at the hearing which did not involve complicated issues and furthermore the Applicants themselves [*545] were represented not only by counsel but also by other persons. Moreover, a copy of the ruling of the Court was furnished before the time limit expired. I do not believe that on the basis of the authorities and otherwise any delay in formulation of opinion on the part of counsel as to whether to file an appeal is sufficient reason for granting an extension. Nor do I believe that shortage of time or pressure of work should be considered as such exceptional circumstances. It is also to my mind inadequate that, as stated in this affidavit as well in the second supplementary affidavit in support of the application, there was some difficulty in communicating with Applicant 2. It seems to me that in the circumstances and due to the representation of Applicant 2 by counsel, as well as otherwise when the hearing took place, there was no objective justification for the inability to communicate in time and furthermore I do not consider that a general reference to inability to communicate, as stated in the affidavit in a cursory manner, would be sufficient to show just cause for extension. In any way the period of 14 days provided by the rules was, to my mind, sufficient for counsel to communicate with the Applicants and get instructions in that respect, even though one of the Applicants may have been living in Greece. [*546]

I have great reservations in accepting the facts stated in the second affidavit filed in support of the Application and particularly the fact stated in paragraph (e) of this affidavit that the delay was partly due to the fact that there was a mistake as to the effect of the applicable rules and in particular that by oversight the incidence of rule 13 was overlooked, counsel presumably being under the impression that the time limit of six weeks under the Civil Procedure Rules was applicable. This fact is not stated in the original affidavit and although, as the authorities indicate, a mistake on the part of counsel may be a ground for granting an extension, to my mind, in the circumstances of this case, this would certainly not amount either in itself or taken together with the other circumstances to a sufficient ground in that, respect even if I were to give it all possible weight in the light of my earlier observations, seeing that it was put forward only much later.

Referring to the second affidavit, I must also note that according to paragraph (a) the affiant counsel had the file of the case as soon as the ruling was delivered with instructions to consider the possibilities of an appeal and I do not believe that what is stated in paragraph

(ot) of the affidavit that due to pressure of work and [*547] the mistaken belief about the time limit there were such exceptional circumstances. Apparently according to paragraph (#) of this affidavit it was only when the grounds of appeal were being drafted that the mistake was discovered. I do not believe that the statement in paragraph (b) of this affidavit that counsel for the Respondent had been notified of the intention to file an appeal orally would again be a sufficient ground together with all facts to justify the application. Nor do I see in the grounds of appeal, copy of which has properly been filed, any indication that there are either important questions of law or particularly complicated issues showing an interest in justice that the appeal should be heard. Even so, as the authorities indicate, the possibility of success itself is not necessarily a ground justifying an extension of time.

Giving the matter the best consideration I can and try as I may to read the circumstances in favour of granting an extension of time, it is to my mind objectively impossible to reach the conclusion that an extension of time would be justified in the exercise of my discretion in these circumstances. It is not simply a matter of a strict observance of the time limit rules but it is a question of proper justification through [*548] exceptional circumstances and these exceptional circumstances I entirely fail to see in the facts available before me. The application is consequently refused.

Costs against Applicants.

Application dismissed with costs against applicants.