[*86] 1985 July 27.

 

(HADJITSANGARIS, P.D.C., HADJIHAMBIS, D.J.)

IN THE DISTRICT COURT OF LIMASSOL

In the matter of the Foreign Judgments (Reciprocal Enforcement) Law, Cap. 10,

- and -

In the matter of a judgment dated 14th May, 1982, of the Commercial Court of the Queen’s Bench Division in the High Court of Justice of England obtained in action No. 1982-W-N.691 between WILLIAMS AND GLYN’S BANK plc, Plaintiffs, and LAERTIS SHIPPING ENTERPRISES SPECIAL SHIPPING S.A., Defendant, in respect of money (U.S.$7,202,456.28 plus interest of U.S.$335,064.69) due by the Defendant to the Plaintiffs by virtue of a guarantee of the Defendant and a mortgage on M/V “MARIA” granted by the Defendant.

(Gen. Application No. 50/82).

Foreign Judgments - Registration of - Setting aside the registration - Application for - Time appointed by Court within which such application can be made - Extension of - The Foreign Judgments (Reciprocal Enforcement) Rules, Rule 6(4) - Whether Court has power to extend the time upon application filed after expiration of time originally fixed by the Court - Question determined in the negative.

Foreign Judgments - Registration of - Service of notice of, out of the jurisdiction - Manner of.

Civil procedure - Time - Extension of - The Civil Procedure Rules, 0.57, r.2 - Where and when applicable.

Civil procedure - Applications - Ex parte applications - Save in cases, which an ex parte application is allowed under 0.48 of the Civil Procedure Rules, an [*87] ex parte application cannot stand, unless section 9 of the Civil Procedure Law, Cap. 6, is referred to in the application.

Civil Procedure - Applications - The Civil Procedure Rules, 0.48, r.4 - Specification of rule on which the applicant or the respondent relies - A substantive procedural provision which should be strictly adhered to.

Foreign Judgments - Registration of - Extension of the time appointed by the Court within which the debtor could apply to set aside the registration - Application for such extension made ex parte - Since the application did not refer to section 9 of the Civil Procedure Law, Cap. 6, the application could not stand.

Foreign Judgments - Registration of - Extension of time appointed by the Court within which the debtor could apply to set aside the registration - The Foreign Judgments (Reciprocal Enforcement) Rules, Rule 6(2) - Discretion - How exercised.

E. Montanios, for the Applicant.

G. Savvides, for M. Eliades, for the Respondent.

RULING

The following ruling was delivered by:-

HADJIHAMBIS, D.J.:- On 22nd June, 1982, the Court, upon an application of the Williams and Glyn’s Bank dated 19th June, 1982, made an Order for the registration of a judgment for US$7,537,529.97 obtained on 14th May, 1982, by the Bank against Laertis Shipping Enterprises Special Shipping S. A., in Action No. 1982-W-No.691 at the Commercial Court of the Queen’s Bench Division in the High Court of Justice in England. The Order specified that execution should not issue until after [*88] the expiration of 21 days from the service of notice of the registration upon Laertis in Greece by double registered letter, during which time Laertis would have the right to apply for the setting aside of the registration. Following the Bank’s inability to so serve Laertis, the letter being returned marked “UNKNOWN”, the Bank on 14th July, 1982 obtained an Order that notice of the registration be served on Laertis, c/o N. & G. Vlassopoulos Limited at their registered office in London, upon whom, in accordance with the terms of the Contract of Guarantee, upon which the judgment had proceeded, any documents, notice or legal process could be served on Laertis. On 20th July, 1982 the Bank served notice of the registration on Laertis, c/o Vlassopoulos at their registered office in London by private process server. On the same day the Hight Court in England granted a stay of execution of the judgment, which was eventually removed by that Court on 1st February, 1985, whereupon the Bank on 23rd March, 1985, upon an application dated the same day, obtained a writ of attachment of the proceeds of sale of a ship of Laertis, deposited in the Supreme Court, in execution of the judgment. This writ Laertis sought to set aside by an application dated 22nd April, 1985, and by another application also dated 22nd April, 1985, Laertis applied for the setting aside of the registration of the judgment, having obtained, through an application dated 20th April, 1985, an Order extending for five days from the date of the application, the period during which an application could [*89] be made to have the registration of the judgment set aside. It is that order that the Bank, by its present application seeks to set aside. The application is supported by affidavit dated 8th May, 1985, and by supplementary affidavits dated 15th June, 1985, and 20th June, 1985, and the notice of intention to oppose the application is supported by affidavit dated 14th June, 1985.

Before we go into the merits of the application we should like to dispose of the preliminary objections raised by each side. In our view neither the Bank nor Laertis are precluded from making or opposing this application respectively on the ground of having taken fresh steps in the proceedings or by making the application for extension respectively. The appearance on behalf of the Bank in Laertis’s ex parte application to set aside the writ of attachment on 22nd April, 1985, did not, in our view, amount to fresh steps in the proceedings. Equally, Laertis cannot, by applying for extension on the alleged ground that there was no service or no proper service, be said to have admitted the service.

Mr. Montanios’ basic argument in support of the application was that under Rule 6(4) of the Foreign Judgments (Reciprocal Enforcement) Rules the Court had no jurisdiction to grant an extension, for the Rule provides: [*90]

“The Court may, on an application made at any time while it remains competent for any party to apply to have the registration set aside, grant an extension of the period (either as originally fixed or as subsequently extended) during which an application to have the judgment set aside may be made”.

Seeing, Mr. Montanios, argued, that the Order for the registration of the judgment of 22nd June, 1982 provided a period of 21 days from the service of notice of the registration during which an application to set aside the registration should be made, and that service was effected on 20th July, 1982, that period of 21 days expired on 10th August, 1982 and after that date it was no longer competent for Laertis to apply for an extension of the period in question, rule 6(4) being clear to the effect that an extension can only be granted “on an application made at any time while it remains competent for any party to apply to have the registration set aside”.

Mr. Scordis, arguing against the application, submitted that there was no question of non-compliance with Rule 6(4) because the period of 21 days, specified in the Order of 22nd June, 1982, during which it was competent for Laertis to apply to have the registration set aside, had not even started to run as notice of the registration had never been served or properly served on Laertis. He referred us to the Order dated [*91] 14th July, 1982, to the effect that notice of the registration be served on Laertis, c/o Vlassopoulos, in London, to argue that the service alleged to have been so made was not in compliance with the relevant Rules, in particular Rule 8 of the Foreign Judgments (Reciprocal Enforcement) Rules, which provides:

“(1) Notice in writing of the registration of a judgment must be served on the judgment debtor -

………………………………….

(b) if out of Cyprus, in accordance with the rules applicable to the service of a writ of summons out of Cyprus …..“.

The Rule applicable to service of a writ of summons out of Cyprus is 0.6, r.7 of the Civil Procedure Rules which provides a special procedure that has clearly not been followed in this case where service is alleged to have been made by private process server, with the consequence that the alleged service is no service at all and the period of 21 days did not begin to run at all. In the circumstances, Laertis only made the application for extension out of abundant caution.

In reply to this Mr. Montanios argued that the applicable Rule as to service of a writ of summons out of Cyprus pursuant to Rule 8 is not 0.6, r.7, but 0.6, r.2, which provides: [*92]

“The parties to any contract may agree that service of any writ of summons in any action brought in respect of such contract may be effected at any place in or out of Cyprus on any party or any person on behalf of any party or in the manner specified or indicated in such contract. Service of any such writ of summons at the place (if any) or on the party or on the person (if any) or in the manner (if any) specified or indicated in the contract shall be deemed to be good and effective service wherever the parties are resident, and if no place or mode or person be so specified or indicated, service out of Cyprus of such writ may be ordered”.

Relying on 0.6, r.2, Mr. Montanios referred us to a term in the Contract of Guarantee to the effect that “any legal process or demand or notice may be made or served on the Guarantor at the registered office in England for the time being of N. & G. Vlassopoulos Limited”, to argue that service was properly effected.

We have set out the arguments of counsel at length because the basic issue above has there been fully formulated. Indeed, in our opinion the determination of this application turns crucially on the question whether notice of the registration was properly service on Vlassopoulos. If no proper [*93] service was effected it clearly follows, as Mr. Scordis submitted, that the period specified by the Order for applying to have the registration set aside never started to run, with the result that the application for extension was superfluous, having been made only out of abundant caution, so that its determination on the merits would only be of academic interest and have no practical significance whatseover.

Turning, then, to the question whether service was properly effected, the starting point must be the Order of 14th July, 1982, dealing with substituted service on Vlassopoulos, which was granted in the terms of the Bank’s own application and provided that the notice be served on Vlassopoulos. We note that neither the Bank’s application nor, consequently, the said Order specified the mode of service, substituted service being only applied for and ordered as to the person to be served, with the result that as to the mode of service the ordinary Rules would apply. This would mean the mode specified under Rule 8 as to service of a writ out of Cyprus. In this respect we note, in the first instance, that, although 0.6, r.2 might be applicable as to agreed substituted service, both the Contract of Guarantee and the Order of 14th July, 1982, only specify as to the person to be served on behalf of Laertis and say nothing as to the mode of service. Consequently, 0.6, r. 2, cannot be relied upon to support the particular mode of service resorted to in this case, since no mode of service was specified [*94] in the Contract within the provisions of 0.6, r.2. Now the only other provision as to service out of Cyprus is 0.6, r.7. The procedure laid down by this provision is, however, conditioned by the requirement that a Convention relating to such service exists between Cyprus and the foreign country in question and is subject to any special terms in such Convention. The question then turns on whether such a Convention exists between Cyprus and England. This problem did not, of course, exist when the Civil Procedure Rules were made, Cyprus being a British Colony and the writ itself being served, but it does arise after independence. It is interesting to note, in this respect, that the English Rule equivalent to our 0.6, r.2 (0.11, r.6 of the rules of the Supreme Court 1965) is expressly stated not to apply to any part of the United Kingdom, British Dominions and the Commonwealth, including Cyprus, where (See: Supreme Court Practice 1970, 0.11, r.6, para.1) “service cannot be effected through official channels (that is, through the government or judicial authorities or British consular authority) and is therefore made by the plaintiff or his agent direct”. Mr. Scordis did not refer us to any such Convention with England, though our own researches have led us to the Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters (Ratification) Law 1982, of which we can certainly take judicial notice. This law was passed on 2nd July, 1982, that is, after the Order for registration was granted but before the order for service on Vlassopoulos was made. Nevertheless, even if this law could thus apply to the service on Vlassopoulos, [*95] there arise two more general questions. First, we have no evidence whatsoever, and we cannot take judicial notice, of whether England is a party to and has ratified the Convention in question. Consequently, we are bound to conclude that it has not been established that a Convention in the terms of 0.6, r.2, exists to make the procedure provided by the Rule or by such Convention applicable, with the result that there was no obligation on the Bank to follow such procedure in effecting service on Vlassopoulos. Furthermore, we must note that the Convention in question provides for the designation of a special machinery, in particular of a Central Authority, by each contracting state to handle requests for service abroad, and we doubt whether these provisions would be operative in the absence of evidence, which is not forthcoming, that such machinery has been designated .

If that is so, we are left with a situation in which no special procedure is provided as to the manner of service of the notice on Vlassopoulos, so that, on the basis of the affidavit of service of the private process server Monica May McQueen, which is filed, the service on John Rapley, Secretary of Vlassopoulos at the address specified in the order which is also Vlassopoulos’s registered office in England, would, we believe, as Mr. Montanios submitted, be good service in accordance with the Order of 14th July, 1982, for service of notice of the registration on Vlassopoulos and would not be inconsistent with the Contract of Guarantee itself. [*96]

On a further ground, we believe Laertis would not be able to question the validity of the service on Vlassopoulos, that is, that Laertis has not included in the notice of intention to oppose the present application Rule 8 and, by extension, 0.6, r.7, on which the argument as to service rests. According to 0.48, r.4, of the Civil Procedure Rules, the notice “shall refer to the specific section of the law or to the specific Rules of Court upon which the opposition is founded”. In our opinion failure to comply with the above requirements means that the notice is limited to the provisions specified and cannot be extended to any other provisions. In this respect we follow the view taken by Pikis, P.D.C. (as he then was) in Kouppas v. Vassiliades (1981) 1 J.S.C. 120. As was said at p.125:

“The specification of the rules relied upon in interlocutory proceedings is not, to my comprehension, a matter of mere formality but a substantive procedural provision that should be strictly adhered to. For interlocutory proceedings are proceedings of an extraordinary nature in that deliberations are made without a complete trial, the normal process through which a cause is ventilated before the Court. Hence procedural safeguards designed to elicit the questions in issue and put the matter in a proper perspective should be meticulously observed especially mandatory provisions like those set out in Ord. 48, r.1”. [*97]

If, as is our finding, the notice of registration was properly served, it follows that the period of 21 days specified by the Order of 21st June, 1982, for applying to have the registration set aside started to run on 20th July, 1982, and had certainly expired by 20th April, 1985, and 22nd April, 1985, when the applications for extension of time and to set aside the registration respectively were made. Consequently, subject to any extension of time, it would not be possible for Laertis to apply to set aside the registration by the application dated 22nd April, 1985. The question does arise, then, whether, as Mr. Montanios has argued, Rule 6(4) precludes the Court from granting an extension on an application made after the period fixed by the Order for applying to have the registration set aside, or whether, as Mr. Scordis has argued, the Court can grant an extension even though the application is made after the said period. Starting from Rule 6(4), it is, of course, clearly stated that the extension can be granted “on an application made at any time while it remains competent for any party to apply to have the registration set aside”. Mr. Scordis submitted that this provision is subject to the general provisions of 0.57, r.2, to the effect:

“2. 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 the justice of the case may require, and any such enlargement may be ordered although [*98] the application for the same is not made until after the expiration of the time appointed or allowed”.

We do not, however, believe that 0.57, r.2 can be invoked in this respect. First, looking at the application for extension of time of 20th April, 1985, it is clear that the application was not based on 0.57, r.2; consequently, in accordance with our observations above as to the principle of Kouppas v. Vassiliades, no reliance could have been placed by the Court on 0.57, r.2. Second, 0.57, r.2 in any case only applies, in its own terms, to “the time appointed by these Rules or fixed by any order enlarging time”, whereas the period of 21 days was appointed not by the Rules or by an order enlarging time but by the Court (see: Annual Practice 1982, 0.3, r.5, para. 3/5/1); consequently, 0.57, r.2 could again be of no avail in this respect.

There does, however, remain the question whether an extension could have been granted on the basis of the inherent jurisdiction of the Court on which the application had been based. R. v. Bloomsbury and Marylebone County Court ex parte Villerwst Ltd. (1976) 1 ALL E.R. 897, is authority to the effect that the time fixed by an order may be extended by the Court acting under its inherent jurisdiction though the application for extension is made after that time had elapsed. Nevertheless, in our opinion, in the instant case the matter is not simply one of extension of [*99] time fixed by an order. Rule 6(4) expressly limits the capacity of the debtor to apply for an extension and thereby specifically restricts and defines his right to do so, in much the same way that the right of the creditor to apply for the registration of his judgment is limited by section 4 of the Law (Cap. 10) to six years after the date of the judgment. Indeed, the proviso to section 4(2), which regulates the debtor’s right to apply for the setting aside of the registration, is to the effect that:

“Provided that execution shall not issue in the judgment so long as, under this Part of this Law and the Rules of Court made there-under, it is competent for any party to make an application to have the registration of the judgment set aside ….”.

Seeing that Rule 6(4), made under the law with reference to section 4(2) along with Rule 6(3) (which provides that the Order for registration shall set the period within which the application to set it aside may be made) expressly regulate the competence of the debtor to apply for the setting aside of the registration, we do not believe that there exists in the Court any inherent jurisdiction to extend the time in direct contradiction to the express provisions of Rule 6(4) which specifically deals with and limits the powers of the Court in this respect. Since the debtor’s right to apply to have the registration set aside stems primarily from section 4(2) it would not seem possible for the Court to grant an extension [*100] outside the limits of the right as specified by the law and the Rules. After the expiration of the period fixed by the Order the creditor effectively acquires a vested right in the registered judgment which cannot be affected by any subsequent action on behalf of the debtor. Consequently, we conclude that the Court was precluded from granting an extension on the application dated 20th April, 1985, and that the Order extending by five days as from 20th April, 1985, the period during which an application to set aside the registration could be made was not an order which the Court had power to make.

Further, in this respect we doubt whether, even if the Court had power to grant an extension on an application made after the period during which an application to set aside the registration could be made, an extension could be granted, as was done in this case, to run from the date of the application, in effect becoming thereby an extension of the original time by nearly three years. It seems to us clear that Rule 6(4) only envisages an extension to run from the expiration of the original period specified by the Order, as much by its reference to the requirement that the application must be made while it remains competent for the debtor to apply to have the registration set aside as by its provision that the Court may grant “an extension of the period (either as originally fixed or as subsequently extended)”, and not an extension as from a subsequent [*101] date. Indeed, we observe that in the application for extension of 20th April, 1985, no reference whatsover is made to the period originally fixed by the Order. However, in so far as this might be an irregularity which may be rectified rather than rendering the order a nullity (see: Nissho Iwai Co. Ltd. v. St. Nicolas Shipping Co. Ltd. (1979) 1 C.L.R. 582), we need not expand on the matter. Though, even so, an order rectifying the irregularity by extending the period originally fixed by five days, would hardly be of any use to Laertis.

On a further ground we doubt whether the Order for extension could be made on the application of 20th April, 1985. That application was made ex parte, but the application was not based on the only provision under which an ex parte application can be based, that is, section 9 of the Civil Procedure Law, Cap. 6 of the Laws, which provides:

“(1) Any order which the Court has power to make may, upon proof of urgency or other peculiar circumstances, be made on the application of any party to the action without notice to the other party”.

Rule 6(4), on which the application was based, merely refers to the right of the debtor to apply for an extension of the period during which an application to set aside the registration may be made and does not regulate the procedure to be [*102] followed, whether by summons or ex parte, in the event of such an application, as to which the Foreign Judgments (Reciprocal Enforcement) Rules generally are also silent. Seeing, further, that an application under Rule 6(4) is not one which can be made ex parte under 0.48, r.8(1)(a1)-(rr) or in regard to which it is expressly provided that it can be made ex parte under 0.48, r.8(1)(ss), it follows that reference to section 9 could be necessary. This has not been done nor, indeed, do the provisions of section 9(2)(3) seem to have been complied with. As a result and for the reasons given as to the principle of Kouppas v. Vassiliades, we doubt whether the Order for extension of 20th April, 1985, could stand.

In case we are wrong in our view of Rule 6(4) and in our conclusion that the Court was precluded from granting an extension on the application of 20th April, 1985, and considering that the matter has been gone into at great length both in the affidavits and by counsel at the hearing, we propose to deal with the question whether this is a case in which the Court’s discretion should be exercised, as it was, to grant the extension applied for. As to this, we have no doubt that this is not a case in which an extension should be granted. [*103]

In the first place, the application for extension itself seems to have been based primarily on the alleged fact in the affidavit in support, repeated in Laertis’s affidavit in support of the notice of intention to oppose the present application, that the notice of registration was never served or properly served on Laertis. On this basis, of course, the application, as Mr. Scordis said, would have been made out of abundant caution since the period of 21 days would not even have started to run and the Court, in dealing with it, could readily grant an extension which had no practical significance or effect on the other side, whereas very different considerations would apply if the application for extension had proceeded on the fact that notice of the registration had properly been served as early as 20th July, 1982. On this basis, in view of our finding that the notice was properly served on 20th July, 1982, we believe that in making the Order for extension of 20th April, 1985, the Court never exercised its discretion in the matter on the true facts and on this ground alone that order cannot stand.

Further, and always on the basis that the notice of registration was properly served, we do not believe that the long delay in applying for an extension and the other circumstances of [*104] the case justify the extension. The principles involved are clear in this respect and we need refer only generally to the Annual Practice 1982 0.3, r.5, para. 3/5/1. As to this, the fact that the notice was served on Vlassopoulos in accordance with the Order of 14th July, 1982 and the Contract of Guarantee, quite apart from being sufficient notice in itself as regards Laertis, at least raises a presumption that Laertis were thereby sufficiently informed of it from the very persons whom they elected for the very purpose of service. Thus, though once service was properly effected on Vlassopoulos it really becomes irrelevant whether Laertis were informed of it, at best the burden is placed on Laertis to explain, in so far as that may be relevant, why, as is alleged in their affidavits, they only found out about the registration on 18th April, 1985. This they have entirely failed to do. Indeed, as against the very detailed grounds set out in the Bank’s affidavit to show that Laertis must in fact be expected to have been informed of the notice of registration, Laertis’s affidavit puts forward only general statements and denials, without even setting the sources of information, which are certainly not sufficient to satisfy us in this respect; if at all, we are in fact satisfied that the great delay in applying is neither justified nor excused, even taking into consideration the long stay of execution which is really of no consequence in this respect. The fact is, Laertis could hardly now be heard to go behind their own [*105] choice of Vlassopoulos; certainly not on the material before us. Furthermore, in so far as the extension granted would have a very serious prejudicial effect on the Bank as appears from its affidavit, the exercise of the Court’s discretion in granting the extension would, again, in our view, not be justified in the circumstances.

In the result, we rule that the application before us must succeed and order that the Order of the Court dated 20th April, 1985, extending for five days as from that date the period during which the application to set aside the registration of the judgment in question might be made, be and is hereby set aside.

The Respondents are ordered to pay the Applicants’ costs, to be assessed by the Registrar.

Application granted with costs.