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Renewal of a writ of summons

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A writ of summons is valid for 12 months unless it 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 served in time. Service is made personally or at the place of residence or work of a 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 them.

If a summons is served to a defendant after the expiration of the 12 months, 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 if their rights are affected by the service.

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. If the court is satisfied reasonable efforts at service have been made, or for other good reasons, it may order the writ be renewed for six months from the date of such renewal inclusive.

The Nicosia District Court dealt with the issue of renewal of a writ of summons in a decision issued on October 25, where it emphasised that the purpose of Order 4, rule 1 is to promote the advancement of the judicial process and to prevent the plaintiff from filing an action and serving it to the defendant after the expiry of 12 months and/or when the circumstances for the advancement of the lawsuit are favourable only for them.

As the Senior Judge stated, it is for this reason that the court, when examining an application for a renewal, considers firstly, what the reasons are for the failure to serve the action and secondly, whether reasonable efforts have been made to serve the action. What the court examines in essence, is whether the plaintiff has taken advantage of the time to advance the action.

In addition, she states, the court considers whether the defendant’s vested rights are affected before granting an extension. 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 case law has established certain basic principles governing the exercise of the court’s discretionary power to approve or refuse the renewal of a 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.

 

George Coucounis is a lawyer practicing in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]

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