A defendant has the right to know why they are being brought to court in order to be able to defend themselves

It is the fundamental right of every defendant to know the information about a case pending against them in order to defend themselves. It is constitutionally recognised and guaranteed by Article 30.3(a) and (b) of the Constitution.

That is why every court is obliged to check that the claim form was served properly and in accordance with the relevant Civil Procedure Regulations concerning the service of a claim. Substitute service of a claim is possible by court order when it appears that for any reason it is not possible to achieve timely service in the usual way, such as service of a claim by post, by e-mail, facsimile or other available means.

Both the substituted service and the general service of a claim are regulated in Part 6 of the CPR to ensure good service and that the litigant is informed of the claim against them. Any violation of this right gives the affected party the right to appeal to the court to set aside the decision issued in their absence.

The decision issued by the Supreme Court in C.A. No. E129/2016, dated May 16, is relevant. The appellant-defendant in a lawsuit filed an application to set aside the decision issued against him in his absence. He claimed that he first learned of the lawsuit after the judgment against him was entered.

The claim related to an alleged breach of an agreement entered into between the appellant’s and the respondent’s father, where the appellant referred to the agreement in his capacity as guarantor. The service of the action against him was achieved by sticking the writ of summons to the door of the residence where they lived, but his father, though aware of the writ of summons, did not inform the appellant of this fact. It should be noted that the father allegedly also signed the agreement as a guarantor on behalf of the defendant pretending to be him.

The first instance decision

The appellant became aware of the fact when he was served with a notice of bankruptcy in respect of the debt arising out of the action. He filed an application to set aside the decision issued against him, because, as he claims, he did not know about the agreement referred to in the lawsuit and never signed it as a guarantor. He was informed by his father that he had signed the relevant agreement in his capacity as guarantor.

The respondents opposed the application contending that the service was good and that the writ of execution by sale of movable property issued against the appellant and his father was returned to the effect that they were destitute of such property. The trial court considered the application but dismissed it saying that the defendant became aware of the lawsuit when the writ of summons was placed at the entrance of the residence where he lived with his father.

Supreme Court decision

The Supreme Court, however, emphasised that this fact in itself did not prejudge that the appellant necessarily received knowledge of the lawsuit. The question is whether he actually received knowledge in relation to it, before the default judgment was issued against him.

The court had before it two versions, yet did not seek to investigate the matter further, so as to be in a position to draw a safe conclusion as to which was true. Thus, the appellant’s father’s claim that he did not inform him about finding the writ of summons, as well as the appellant’s claim that he himself did not receive timely knowledge of it remained unchallenged.

In related jurisprudence cited, it was held that the service of the summons at the registered office of a defendant company, without delivering it to any of its officials, was not sufficient for it to be considered that it had received knowledge of the action. For this reason, the first-instance decision, which set aside the decision that had been issued against the defendant in absentia, was deemed correct. It was indicated that her constitutional right to be duly informed of the action was violated.

As in that case, so here, the court had no testimony before it supporting that the appellant had actually learned of the action through the attempted substituted service. The decision issued against him had to be legally set aside and a relevant order was issued giving the right to the appellant to file a memorandum of appearance and defence.

George Coucounis is a lawyer specialising in Immovable Property Law, based in Larnaca. E-mail: [email protected], tel: 24818288