The aim of this article is to analyse whether a judgment delivered in the absence of a defendant can be set aside and to state the criteria which the Courts take into account in such cases, in light of the applicable case law principles.
Regarding the setting aside of a judgment issued in a defendant’s absence, the law has been aptly summarised in the recent Cypriot case of Atlantic Palaemon Shipping AG ν. Veles Bulk Shipping Ltd, General application number 182/2019, judgment of the Limassol District Court dated 16/12/2019. The Limassol District Court, referred to the Supreme Court of Cyprus judgment in Zinonas Merki v. Yiannoukas Holiday Inns Limited (1994) 1 JSC 736, where it was clarified that there are two requirements that should be fulfilled before such a judgment can be set aside. Firstly, there needs to be a prima facie defence in the case. Secondly, there must be “a serious and reasonable reason” as to why the defendant did not appear before the Court and let a judgment be given against them. The Limassol District Court also ruled that besides the above two conditions “the question of whether or not to accept the setting aside of a default judgment depends and is left on the discretion of the Court, which will ultimately decide whether it is right and just to allow the judgment to be set aside or not”.
Furthermore, in Zehil v Roberts (2009) 1JSC 678, it was highlighted by the Supreme Court of Cyprus that various factors will be considered by the Court when exercising its discretionary powers. These include, amongst others, the adequacy of the justification presented by the applicant for not appearing in Court; the need of preserving the right of a hearing; the need of preserving the finality of a judgment, and whether the defendant has proved that they have a prima facie defence in the case. It must be noted that in Milouca Motor Trading Ltd v. Chrysanthos Kourti (1997) 1Β JSC 941, the Supreme Court of Cyprus clarified that even if the defendant proves a prima facie defence in the case, their application for setting aside the judgment may be declined “if it is proved that the defendant has shown indifference to the lawsuit, which takes the form of contempt of Court proceedings and of the rights of the other party”.
Moreover, in Order 17, Rule 10, of the Cypriot Civil Procedure Rules it is stated that: “it shall be lawful for the Court in a proper case to set aside or vary such judgment upon such terms as may be just”. Additionally, in Atlantic Palaemon Shipping AG above the Limassol District Court highlighted that the burden of proof is on the person claiming to set aside the judgment, and that they need to prove their case prima facie in order for the judgment to be set aside.
The English landmark judgment of Evans v. Bartlam  2 All E.R. 646 has been adopted in Cypriot case law with the judgments in Kotsapas v. Titan Construction Engineering Co. (1961) C.L.R. 320, and Christoforou v. Kyriakoullis (1963) 2 C.L.R. 159. In Evans, Lord Atkin stated that “unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure”. Moreover, the discretionary power of the Court was highlighted, and it was noted that the main consideration in such cases is whether the defendant has a prima facie defence that the Court ought to consider. In addition, Lord Wright stated that it is “often convenient in practice to lay down, not rules of law, but some general indications, to help the Court in exercising the discretion.”
Therefore, regarding the setting aside of judgments for failure to appear it is evident that the Court has a discretion in making its decision. Nonetheless, it seems from recent case law that the Courts are generally quite strict in their approach and they do not usually allow the setting aside of default judgment for failure to appear. This can be demonstrated by the English case of Mitchell v News Group Newspapers Ltd  EWCA Civ 1537, where it was clarified that incompetence cannot be accepted by the Court as a good reason for setting aside a judgment. Specifically, at para. 41 it was stated that “mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason.”
Additionally, the Supreme Court of Cyprus ruled in Phylactou v. Michael (1982) 1 CLR 204, that “where the conduct of the party applying to set aside judgment is inexcusable, contumelious to the extent of gross disregard for the judicial process or the rights of his adversary, the Court may, in its discretion, refuse to set aside judgment”. This has been recently confirmed in the recent Supreme Court of Cyprus judgment in Kallishis v. Republic of Cyprus, via the Ministry of Agriculture, Natural Resources and Environment (Department of Water Development), via the Attorney General, Civil Appeal, Appeal No.E207/2014, dated 11/9/2020. It was also clarified in Giorgos Andreou ν. Severis & Athienitis Securities Ltd (2003) 1 JSC 1694, that the time period in which the applicant takes to apply for the setting aside of the judgment against them is relevant: the longer the period, the less the chances of success.
Concluding, it is arguable that Courts both in Cyprus and the UK generally follow a stringent approach in setting aside default judgments which were issued by the failure of defendants to appear before the Court. The Courts have a discretionary power as to how they should deal with such cases. Hence, as the Supreme Court of Cyprus has stated in Eteria Vothrokathariston Lemesou “Vothrotex” v. Praxiteli Fantaki (2001) 1 JSC 339, the Court is essentially conducting a balancing act between the efficient and quick delivery of justice on the one hand and the right of the defendant to be heard on the other.
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