The defence of laches must state the adverse effect on the defendant
Taking legal steps on time in pursuing a right protects a plaintiff from the defence of statutory limitation and laches when it adversely affects the defendant’s rights. When invoking the doctrine of laches and delay a defendant must raise the issue in their defence and plead adverse effect because of it. A plaintiff may be considered to have abandoned or waived their right due to delay on their part in a manner that they are no longer entitled to any remedy. The court will consider whether the defendant has been affected by the delay and if it is no longer fair to allow the plaintiff to pursue their claim.
The doctrine of laches or acquiescence or estoppel may also arise in claims involving property rights if the intervening circumstances affect the defendant. This was examined in a judgment issued by the Supreme Court in joint civil appeals on June 28, whereby it examined a complaint that the court of first instance wrongly considered the suggestion to dismiss the lawsuits due to laches to be unfounded. It was alleged the court of first instance was wrong in deciding that the delay did not affect anyone’s rights, since it overlooked certain consequential memos and forced sales.
The Supreme Court did not accept the aforesaid suggestion of the appellants, stating that case law recognises that excessive delay in instituting an action creates an estoppel to the granting of the remedy of the law of equity (the doctrine of laches).
The issue is examined on the basis of the particular circumstances of each case and, with reference to case law, the court indicated that when a plaintiff with their conduct waives their rights, they are not awarded a remedy. Laches alone is not sufficient to be an obstacle to a remedy. The defendant must prove that until the filing of the lawsuit, such actions have taken place that the interest of justice would be served by court dismissing the requested remedy; that the defendant was adversely affected because of the laches.
The plaintiffs had purchased apartments in a building between the years 1980–1985 and filed their actions in 2007. Although each of them fully complied with the terms of the sale contracts they signed, the defendants unjustifiably omitted to take the necessary steps for separate registrations and separate title deeds for the apartments. The plaintiffs sought and obtained orders against the defendants to secure the certificates and/or permits required by law and to create a separate registration of the apartments owned by the plaintiffs within a certain time and then to proceed with the transfer and registration of the apartments in the name of the plaintiffs.
The Supreme Court emphasised that despite the inadequacy of the issue of laches in the pleadings, since there was no allegation in the defence for adverse consequences to the defendants due to the delay, the court of first instance examined the position of the defendants and correctly concluded that the delay did not affect anyone’s rights.
The Supreme Court added that whether the issuance of an order is justified is different from the inability to comply with it. The plaintiffs met the provisions for issuance of the requested orders and the court granted the remedy. It did not appear there was any reason brought to the attention of the court of first instance which would have allowed the non-issuance of the orders. The memos and forced sales did not encumber the shares of the defendants, especially due to any delay. Consequently, the Supreme Court dismissed the appeals of the defendants.
George Coucounis is a lawyer practising in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]