(1982) 1 CLR 474
[*474] 1982 July 22
[A. LOIZOU, J.]
COSTAS ZACHARIOU,
Plaintiff,
v.
ELMINI LIONESS INC., AND OTHERS,
Defendants.
(Admiralty Action No. 512/77).
Practice—Adjournment of trial—Discretion of the Court—Application for adjournment of continued hearing on ground that additional counsel, who had been briefed seven days prior to the hearing, otherwise engaged—Hearing of cases should not be postponed merely to suit the convenience of counsel, except in very special circumstances—No special circumstances making the above ground a valid one—Application dismissed.
Constitutional law—Human rights—Right of a litigant to have a lawyer of his own choice safeguarded by Article 30.3 of the Constitution—And right to a fair and public hearing within a reasonable time under Article 30.2 of the Constitution—To be duly borne in mind by a Court exercising its discretion with regard to granting or not an adjournment and keep a balance between the two rights.
Following the hearing of the case of the plaintiff on the 9th April, 1982 the continuation of the hearing of the above admiralty action was adjourned to the 18th June, 1982 and was subsequently shifted to the 22nd July, 1982. On the 20th July, 1982, an ex parte application for adjournment of the hearing of the case was filed on behalf of defendants 2 on the following grounds:
(a) That on the 15th July, 1982 applicants appointed another advocate—Mr. Fronis Saveriades—to act for them together with their present advocate and that Mr. Saveriades would have been otherwise engaged on the date of the hearing. [*475]
(b) That Mr. Saveriades needed time to study the file and the evidence given.
(c) That Mr. Saveriades was the lawyer of the applicants’ choice and they invoked their constitutional rights under Article 30.3 of the Constitution.
On the application for adjournment:
Held, (1) that the hearing of cases should not be postponed or taken out of due order merely to suit the convenience of counsel, except in very special circumstances; that there are no special circumstances in this case rendering a valid one the ground that applicants’ counsel is otherwise engaged; accordingly the application cannot be entertained on ground (a) above.
(2) That the transcribed record of the Court containing all the evidence heard until then, was available long before the 15th July, 1982, when Mr. Saveriades was briefed to appear on behalf of the applicants, in addition to their first counsel who has been all along the counsel handling their case; accordingly the application cannot succeed on ground (b) above.
(3) That with regard to the constitutional right of a litigant to have a lawyer of his own choice, safeguarded under Article 30.3 of the Constitution it is sufficient, for the purposes of this application, to be pointed out that under para. 2 of the same Article litigants in the determination, inter alia, of their civil rights and obligations are entitled to a fair and public hearing within a reasonable time, and this right of the plaintiff in this case has to be duly borne in mind by a Court exercising its discretion with regard to granting or not an adjournment and should not in any way be defeated by last minute applications for adjournment and that a balance has to be kept (see Kier (Cyprus) Ltd. v. Trenco Constructions Ltd. (1981) 1 C.L.R. p. 30, at p. 39, and Charalambous v. Kazanou and Another (1982) 1 C.L.R. 326); accordingly there is no merit in the application for adjournment and in the exercise of the Court’s discretion it will be dismissed.
Application dismissed.
Cases referred to:
Charalambous v. Kazanou and Another (1982) 1 C.L.R. 326;
Kier (Cyprus) Ltd. v. Trenco Constructions Ltd. (1981) 1 C.L.R. 30 at p. 39. [*476]
Ex-parte application.
Ex parte application by defendant 2 for the adjournment of the hearing of the action.
A. Neocleous, for applicants-defendants 2.
Ant. Lemis, for respondents-plaintiffs.
St. Me Bride, for respondents-defendants 1.
A. LOIZOU J. gave the following ruling. This admiralty action for special and general damages for injuries, loss and damage sustained by the plaintiff on or about the 3rd October, 1976, on board the vessel “MINI LIONESS” was filed on the 3rd December, 1977. After an amendment of the title and the petition was effected upon an application made for that purpose on behalf of the plaintiff, it came up for hearing on the 20th November, 1980 when in the course of hearing the evidence of the plaintiff it was felt that further amendment of the petition was necessary and thereupon the case was adjourned and an application on behalf of the plaintiff for such amendment was made and granted.
On the 9th April, 1982, the case of the plaintiff consisting of himself and three witnesses was heard and then it was adjourned to the 18th June, 1982, for continuation of its hearing which was shifted to the 22nd July, 1982.
On the 20th July, an ex parte application for adjournment of the hearing of the case was filed on behalf of defendants 2 and was fixed for hearing on the 22nd July. The reasons given for this application appear in the affidavit filed in support thereof which reads as follows
“2. The applicant on 15th July 1982 has appointed Mr. Fronis Saveriades, Advocate, to act for him together with Mr. Andreas Neocleous, Advocate, due to the seriousness of the case and the difficult points of law involved who informs me that he cannot appear on the 22.7.1982 due to previously fixed hearing before the Consul of Greece in Nicosia in the Pireef’s Multimembers First Instance Court Case No. 1684/81 with Greek litigants who have been served on the 2.7.82 and also that he needs time to study the file and the evidence given.
3. Further I inform the Court that Mr. Fronis Saveriades [*477] is the lawyer of the applicant’s choice and invokes his constitutional rights Art. 30.3. Mr. Andreas Neocleous is also his lawyer appointed by the applicant on the instructions by the Insurance involved.
4. I pray in the interest ot Justice and under the circumstances that an adjournment be granted”.
Mr. Saveriades being otherwise engaged did not appear and Mr. Neocleous argued, also on his behalf, this application for adjournment. Counsel for the plaintiff and for defendants 1 being present in Court were given the opportunity to express their views on the matter and they objected to the application being granted and in particular counsel for defendants 1, for the additional ground that he had brought over from Greece an expert witness as when he was informed by Mr. Saveriades of his intention to apply for an adjournment, the said witness had already boarded the airplane for Cyprus and his departure could not be postponed.
The first reason given for the adjournment sought is that Mr. Saveriades would have been otherwise engaged on the date of hearing, as stated in para. 2 of the affidavit hereinabove set out.
In the recent case of Nicodemos Charalambous v. Loukia Kazanou & Another, (1982) 1 C.L.R. 326, we referred to the statement of the Earl of Reading, C.J. (1920) W.N. 34, to the effect that the hearing of cases should not be postponed or taken out of due order merely to suit the convenience of counsel, except in very special circumstances.
I find no special circumstances in this case that make this reason for the application a valid one. The case before the Consul which was, as I understand, the taking of evidence by commission, was fixed, to the knowledge of Mr. Saveriades, as far back as the 2nd July, 1982, so he could have made other arrangements in time instead of this last minute application for adjournment, or he might even refuse this brief on the ground that he was otherwise engaged.
The second reason given, namely, that he needed time to study the file and the evidence given, it has to be pointed out that the transcribed record of the Court containing all the evidence heard until then, was available long before the [*478]
15th July, 1982, when he was briefed to appear on behalf of defendants 2, in addition to Mr. Neocleous who has been all along the counsel handling the case of the said defendants. Consequently, counsel had both the time and the material available to study and prepare himself for the hearing. Therefore, this ground also fails.
The third reason advanced is that Mr. Neocleous had been appointed by the applicant on the instructions of the Insurance Co. involved, to appear on behalf of defendants 2 but as there might be certain differences, as it was argued by counsel, with regard to the extent that the said Insurance Co. covered the liability of defendants 2, the latter felt that they had to add Mr. F. Saveriades as counsel of their choice and in this respect they invoked the constitutional right of a litigant to have a lawyer of his own choice safeguarded under Article 30.3 of the Constitution. Without entering into an analysis of this right, it is sufficient for the purposes of this application, to point out that under para. 2 of the same article litigants in the determination, inter aha, of their civil rights and obligations are entitled to a fair and public hearing within a reasonable time, and this right of the plaintiff in this case has to be duly borne in mind by a Court exercising its discretion with regard to granting or not an adjournment and should not in any way be defeated by last minute applications for adjournment. A balance has to be kept and this was stressed in the case of Kier (Cyprus) Ltd. v. Trenco Constructions Ltd. (1981) 1 C.L.R. p. 30, at p. 39, reiterated recently in the Charalambous case (supra).
In any event the fact that Mr. Neocleous is still appearing on behalf of defendants 2 is a material factor to be borne into consideration in the exercise of my discretion in the matter.
For all the above reasons I find no merit in this application whatsoever and in the exercise of my discretion I dismiss same and I intend to proceed to hear the case and in any event the evidence of the expert witness who came from Greece, so that the parties will not be unduly burdened with his costs, in addition to the costs that an adjournment might entail.
In the result the application is dismissed with costs against defendants 2.
Application dismissed with costs
against defendants 2.
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