09 Dec Renewal of a writ of summons
Renewal of writ of summons
by George Coucounis
“A writ of summons is valid for 12 months unless is renewed by a Court order’’
There is often a need to renew a writ of summons, which is valid for 12 months from the filing of the action, because despite the efforts of the plaintiff, it was not successful in serving it on the defendant or on any of the defendants when there is more than one in the action, before the expiration of the period of 12 months. In the latter case, the renewal will concern the defendant to whom service was not made. Service is made personally or at the place of residence or work of the defendant or if it is a company, at its registered office. With the leave of the Court a substituted service may be ordered in another manner, provided it is ensured that the defendant takes notice of the writ of the action brought against him. In the event that the writ of summons is served on the defendant after the expiration of 12 months from its filing and issuance, the service shall be deemed a simple irregularity which shall be cured if an unconditional appearance is filed by the defendant. However, the defendant is entitled to file an appearance under protest and an application to set aside the service made on him if his rights are affected by the service, such as the limitation of the plaintiff’s actionable right.
Relevant to the issue of renewal of a writ of summons is Order 4 of the Civil Procedure Rules which provides no writ of summons shall be in force for more than 12 months from the day of its issue including that day; but if any defendant named in it has not been served, the plaintiff may, before the 12 months expire, apply for an order to renew the writ; and the Court, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reasons, may order that the writ be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed writ. And the writ shall in such case be marked in red ink by the registrar with the words ‘‘Renewed by order dated (add the day of its renewal)’’ or words to the like effect; and a writ so renewed shall remain in force and be available to prevent the operation of any law whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original writ of summons. After a writ is renewed every office copy used for service shall bear a copy of the words on the original writ indicating that it has been renewed.
The Nicosia District Court deals with the issue of the renewal of the writ of summons in the decision issued on 25.10.2022, where it emphasized that the purpose of Order 4, rule 1 is to promote the advancement of the judicial process and to prevent the plaintiff from filing his action and serve it on the defendant after the expiry of 12 months and/or when the circumstances for the advancement of the lawsuit are favourable only for him.
As the lady Senior Judge states, it is for this reason that the Court, when examining an application for renewal of the writ of summons, considers firstly, what are the reasons for the failure to serve the action and secondly, whether the defendant in the 12-month period has made reasonable efforts to serve the action. What the Court examines in essence, is whether the plaintiff has taken advantage of the time that has passed to advance the action.
In addition, she states, the Court considers whether the defendant’s vested rights are affected before granting an extension of the 12-month period even where the application for renewal is made before the 12 months have lapsed. The defendant acquires such rights when the plaintiff’s right to file the action is barred by the lapse of time. Under Order 4, rule 1 the time counted in determining whether the plaintiff’s right to file the action is time-barred is from the day the writ of summons is renewed and not from the day the action was originally filed.
The Court concluded that case law has established certain basic principles governing the exercise of the Court’s discretionary power to approve or refuse the renewal of writ of summons whose validity has expired. The prevailing approach is based on a fundamental distinction between two categories. The first category includes cases in which, either at the time the writ of summons expires or at the time the application is filed, the claimant’s actionable right is statute-barred by law or by contract. The second category includes those cases in which there is no question of the claimant’s actionable right being time-barred, either at the time when the writ of summons is expected to expire or at the time the application for renewal is filed, if it is filed after the writ of summons has expired.