[*271] 1986 January 17.
(KALLIS, D.J.)
IN THE DISTRICT COURT OF NICOSIA
Kyriaki Demetriou Kyriakou,
Plaintiff,
v.
Irini Petrou Panayi,
Defendant.
(Action No. 3384/83).
Judgment in default of appearance - Setting aside of - Defendant not served - Judgment a nullity - Defendant entitled to have it set aside ex debito justitiae - And need not show that he has defence on the merits.
N. Panayiotou, for the Applicant-Defendant.
E. Vranimi (Mrs), for the Respondent-Plaintiff.
RULING
The following ruling was delivered by:
KALLIS, D.J.: This is an application to set aside a default judgment. The undisputed facts which led to the application are the following:
By virtue of a writ of summons under Order 65 of the Civil Procedure Rules, which was filed on 10.6.83, the plaintiff prayed for, inter alia, an injunction restraining the defendant from interfering in any way with the walls and columns of her house; and on the [*272] same day, by means of an application, she prayed for an interlocutory injunction, in terms similar to the prayer in the writ of summons, pending the final determination of the action. This application was fixed for hearing on 11.6.83 when the Court directed that the application be served on the defendant and fixed it for hearing on 12.9.1983. The application was in fact served on the defendant but on the date fixed for hearing neither of the parties or their counsel appeared; and the Court dismissed the application for want of prosecution. In the meantime plaintiff changed counsel and the new counsel by notice filed on 3.12.83 applied for a date of hearing of the action. The Court on 22.12.83 directed that the action be fixed for mention on 31.1.84; and the Registrar, by means of a notice dated 28.12.1983, informed the new counsel for the plaintiff accordingly.
On 31.1.1984 there appeared before the Court only counsel for the plaintiff and in the absence of the defendant she applied for a date to prove her case. Thereupon the Court fixed the case for proof on 17.2.1984; and after hearing evidence - on 17.2.1984 - gave judgment for plaintiff for £200 with £45 costs. Hence the application to set aside the judgment which was filed on 3.7.1984.
The application is based on Order 17 rule 10 of the Civil Procedure Rules and in the affidavit supporting it, which was sworn by the defendant, [*273] it was stated that she was informed of the above judgment by the Court Officer; that there has never been served on her or on her address for service the writ of summons of the above action and for this reason the judgment was issued in her ignorance and in her absence; that she has a good case on the merits; and that to the best of her knowledge and belief and as advised by counsel the default judgment may be set aside ex debito justitiae because there is no good and/or any service.
The plaintiff opposed the application; and in the affidavit in support of the opposition, sworn by plaintiff, it was contended:
That on 10.6.1983 she filed the action together with an application for an inter1ocutory injunction; that the application for the interlocutory injunction was fixed for 4.6.1983 and she obtained an order of the Court by virtue of which the defendant was restrained from unlawfully and arbitrarily interfering with the wall and columns of her house pending determination of the action; that both the action and the interlocutory order were served on 29.7.1983; that on 12.9.83 when the interlocutory injunction was returnable, defendant failed to appear and her (plaintiff’s) counsel withdrew the order; that defendant was aware of both the action and the injunction but she took no interest in defending the action; that defendant does not give [*274] any ground of her defence; and she is not entitled in law to apply for the setting aside of the judgment 15 months after service.
In his written address in support of the application, learned counsel for the applicant- defendant submitted that the judgment sought to be set aside is an irregular judgment and once it is an irregular judgment defendant is entitled to have it set aside ex debito justitiae. In support of this submission he cited Chitty and Jacob’s Queen’s Bench Forms, 20th ed., p.62. and Halsbury’s Laws of England, 3rd ed., Vol. 22, p.788.
On the other hand, learned counsel for the respondent-plaintiff in her written address in support of the opposition submitted that as the application is based on Order 17 rule 10 of the Civil Procedure Rules, which empowers the Court to set aside a judgment given thereunder, the application is limited to a judgment given in default of entering an appearance in this case; and that any other contention or any other Order or Rule of the Civil Procedure Rules cannot be taken into consideration. She further submitted that according to Order 2 rule 1 of the English R.S.C., non-compliance with any of the Rules does not render the proceedings void but irregular; that the corresponding Order of our Civil Procedure is Order 64 rules 1-4 which is not at all referred to in the application; and that the allegations [*275] necessary for the setting aside according to Order 64 rules 1-4 are not at all mentioned in the affidavit. Counsel submitted, further, that under English R.S.C. Order 13 rule 9(4) (Supreme Court Practice 1967) for an irregular judgment to be set aside the affidavit must show all the circumstances pertaining to the irregularity and show, also the nature of the defence.
Before dealing with the legal submissions, I must make my findings on the facts.
The contentions of plaintiff that (a) she obtained an interlocutory injunction (b) that both the action and the interlocutory injunction were served on the defendant on 29.7.1983; and that defendant failed to appear on the day the injunction was returnable and plaintiff’s counsel withdrew the order are not born out by the material in the file and are therefore unfounded. In the file there is only proof of service of the application for an interlocutory injunction. In fact the relevant affidavit expressly refers to service of an “office copy of application-affidavit”; and as the relevant form - Form F.181 - in the file shows only service fees for the service of an application were paid. Further the action being an Order 65 one the date of appearance of the defendant should have been filled-in in the relevant blank space of the writ of summons; but neither in the original writ of summons nor in the two copies thereof, [*276] which are in the file, has the date of appearance been inserted.
I, therefore, find that the writ of summons itself has never been served on the defendant and what has been served was an application for an interlocutory injunction. I, further, find that there has never been granted an interlocutory injunction.
This being the factual situation, the question that arises for consideration is whether service alone of the application for an interlocutory order constitutes, also, service of the writ of summons, as contended by learned counsel for the plaintiff.
The question is governed by rule 3 of Order 65 of the Civil Procedure Rules which provides as follows:
“An office copy of the writ of summons “shall be served on the defendant not less than ten days before the day name therein for the appearance of the defendant. The person effecting the service shall note on the copy served the date of service.”
Further rules 1 and 2 (1) (2) of Order 5 which govern service of the writ of summons in actions in general provide as follows: [*277]
“1. Every defendant named on the writ of summons shall, except a Judge otherwise orders, be served in the manner provided in rule 2 of this Order with an office copy of the writ, and such service shall be deemed good service of the writ.
2. (1) The service shall, whenever it is practicable, be effected by leaving the copy with the person to be served; …………………………………………………………………………………………………
(2) The affidavit of service endorsed upon, or having attached thereto as an exhibit, a duplicate of the copy of the writ of summons served, shall be sworn and filed within seven days after service. The Registrar shall, within forty-eight hours after the affidavit of service is filed, give the plaintiff notice of the date on which the service was effected.”
According to the Annual Practice 1958 pp. 102-103 the manner in which personal service is now made is “serving the defendant with a copy of the writ of summons and showing him the original if he desires it …… To effect personal service the clerk or other person intrusted with the task should first satisfy himself that he has found the right man. He should then hand to and leave with the person to be served a copy of the writ, and if [*278] asked, show him the original …… It is not sufficient to hand the defendant the copy writ enclosed in an envelope without informing him that it is a copy writ …… The copy of the writ must be left with, and not merely shown, to the defendant, even though he refuses to take it.”
Further regarding the affidavit of service and the effects of its absence in a note to r.2 of 0 13 of the old English R.S.C. - which governs default of appearance - the following are stated:
“‘Affidavit of Service’ - These words mean a proper affidavit proving due service of the writ in compliance with such of the prescribed forms as apply to the case. Where proceedings were taken in default by an application to the Judge on an affidavit in support which stated incidentally that the defendant had been personally served without stating where or when, or that such service was made by the deponent to such affidavit, and the Judge made an order on such affidavit, the order was set aside on appeal, even though there was no denial that the defendant had been served. Failure to comply with this Rule nullifies all subsequent proceedings in default (Crane & Sons v. Wallis, (1915) 2 Ir. R. 411, C.A.).” [*279]
Having regard to the factual situation in this case and to the wording of our Rules, I hold that the service of the application for an interlocutory injunction does not constitute service of the writ of summons for the purposes of the aforesaid Rules; I, therefore, conclude that the default judgment was given without the writ of summons having been served on the defendant. In giving the default judgment in question the Court purported to act under rule 12 of Order 65 which provides that if at the time fixed for the appearance of the defendant “the plaintiff appears but the defendant does not, then upon proof being given of the defendant having been served with the writ of summons the plaintiff may prove his claim …… and judgment may be given accordingly”.
Now what is the effect on the proceedings of the absence of service? In a note to Order 70 r.1 of the old English R.S.C. which corresponds to our own Order 64 r.1, instances of proceedings which are a nullity are given. Such instances include: “Entering a judgment in default of defence before the time for defence has expired (Anlaby v. Praetorius (1888) 20 Q.B.D. 764); …… an order made on a summons which had not been served on the defendant (Craig v. Kanseen (1943) 168 L.T. 38; …… service of a copy of the writ of summons and failure to show the defendant the original on his request”. See also the aforequoted passage from the Annual Practice regarding affidavit of service. [*280]
Having regard to the legal position as above enunciated and to the factual situation in this case, I hold that the proceedings are a nullity.
As already stated the application is based on Order 17 r.10 of our Civil Procedure Rules. In a note to the corresponding rule of the old English R.S.C. it is stated that if the judgment is regular, then “it is an (almost) inflexible rule that there must be an affidavit of merits i.e. an affidavit stating facts showing a substantial ground of defence …… but if it is desired to set the judgment aside for irregularity, the irregularity must be specified (0.70, r.3). The affidavit in support should also state the circumstances under which the default has arisen, and should disclose the nature of the defence, see Chitty F. 122; Chitty Arch., 333. Where a judgment is obtained irregularly the defendant is entitled ex debito justitiae to have it set aside (Anlaby v. Praetorious, 20 Q.B.D. 764). In that case the form of affidavit in Chitty’s Forms (123) should be modified, e.g. by deleting paragraphs 3 and 4.”
Paragraphs 3 and 4 of Chitty’s Forms referred to in the aforequoted passage are those relating to the disclosure of a defence upon the merits.
Having regard to the facts of this case, I hold that the judgment sought to be set aside is an irregular judgment within the meaning of the [*281] afore-quoted passage and therefore the defendant is entitled ex debito justitiae to have it set aside and, further, facts disclosing a defence upon the merits need not be stated in the relevant affidavit.
Dealing now with the contention of learned counsel for the respondent-plaintiff which refers to our Order 64 the answer is to be found in the following passage from the Praetorius case (supra) at p. 769:
“But in the present case we are not concerned with an instance of non-compliance with a rule, nor with an irregularity in acting under any rule. The irregular entry of judgment was made independently of any of the rules; the plaintiff had no right to obtain any judgment at all. I do not think, therefore, that the case comes within r. 1, and we must consider what is the right practice without reference to that rule. There is a strong distinction between setting aside a judgment for irregularity, in which case the Court has no discretion to refuse to set it aside, and setting it aside where the judgment, though regular, has been obtained through some slip or error on the part of the defendant, in which case the Court has a discretion to impose terms as a condition of granting the defendant relief.” [*282]
In view of what is stated in the above passage the contention of learned counsel cannot be sustained.
Regarding the contention that the affidavit must show all the circumstances pertaining to the irregularity and the nature of the defence, I must say that though poorly drafted the affidavit shows such circumstances and as already held it is not necessary to state facts disclosing a defence. I would, further, state that the proceedings being a nullity the alleged delay of defendant in applying does not affect the position because the rules affecting time do not apply to proceedings which are null and void (See Annual Practice 1958 p. 1987).
As already found the judgment is an irregular one and the setting aside thereof is governed by the aforequoted passage from the Annual Practice and the Law as stated in the following passage from Halsbury’s Laws of England, 3rd ed., vol. 22, p. 788, para. 1667:
“When a judgment in default of appearance or defence has been entered before the proper time, or there has been no service or no sufficient service, or it has been entered for a greater amount than is due, or there has been a breach of good faith it will be set aside ex debito justitiae, apart from any consideration as to whether there is a good defence on the merits, and the plaintiff is [*283] usually ordered to pay the costs occasioned by the judgment or order;”
and by the following passage from the Praetorius case (supra) at p. 768:
“It follows that the defendant had ten days from the delivery of the statement of claim, or from the time limited for appearance, within which to deliver his defence; and as the writ was served on January 21, and the time limited for appearance was January 28, the last day for delivery the defence was ten days from January 28, and the judgment entered on February 7 was premature and irregular. In such a case the right of defendant to have the judgment set aside is plain and clear. The Court acts upon an obligation; the order to set aside the judgment is made ex debito justitiae, and there are good grounds why that should be so, because the entry of judgment is a serious matter, leading to the issue of execution, and possibly to an action of trespass.”
In view of all the above, I hold that the defendant in this case is entitled to have the default judgment set aside ex debito justitiae and an order for the setting aside of the default judgment is made accordingly. Regarding costs, [*284] taking into consideration that though the defect on which the judgment was sought to be set aside was apparent in the file of the proceedings and yet the plaintiff not only opposed the application but, also, made several factual assertions which were unfounded; and also taking into consideration the Law as enunciated in the Praetorius case, I am of opinion that the defendant is entitled to the costs of the proceedings relating to the setting aside of the judgment. In all the circumstances, however, defendant will be awarded costs on the minimum of the relevant scale.
Before concluding this ruling I would state that in dealing with the application I had in mind that the defendant has filed supplementary affidavits wherein, inter alia, facts disclosing a defence were stated; in the absence, however, of leave by the Court these affidavits could not be filed and they were, therefore, ignored (see Les Fils Dreyfus v. Clarke (1958) 1 W.L.R. 300).
In the result the judgment is set aside with costs on the minimum of the relevant scale. Action to be fixed for directions on the application of either party.