14 Jun Discontinuance of Court proceedings
Discontinuance of Court proceedings
by George Coucounis
“Justice does not function in vain”
Justice cannot function in vain, so any action or other Court proceedings are not maintained or continue when it is found that they have no object and become abusive. The proper way to deal with such proceedings, especially in the case of a lawsuit, is to discontinue and dismiss it either with reservation of the right to reinstate such a cause of action or not and to award the costs against the party who caused them or against both parties if they are both responsible. The issue is regulated by the Civil Procedure Rules and particularly by Order 15 concerning the discontinuance of an action depending on the time it is attempted. The plaintiff may discontinue the action with or without leave of the Court and the defendant, upon an application, may apply that all or part of his defence or counterclaim be withdrawn or struck out.
The issue of discontinuance of an action was raised before the District Court of Larnaca, which examined it in a judgment issued on 22.2.2022. The plaintiff applied for leave of the Court to discontinue the action with reservation of the right to reinstate it or file it again. There was an objection by the defendant who claimed that the application was abusive and that in the event of discontinuance, the plaintiff should not be allowed to reinstate or file his complaint again and that in any case he sought the costs. The Court in its judgment stated that the issue to be resolved was whether the plaintiff should be allowed to discontinue the action and, if so, under what conditions.
The Court, examining the legal basis of the application, held that the starting point of the issue is the wording of Order 15, which is divided in two parts with reference to the point the proceedings reached. The first part concerns the discontinuance of the action when it is attempted before receipt of the defendant’s defence or after its receipt, but before any other step in the action is taken, except an application for an interim order. In this case, the action can be discontinued by filing a written notice, the plaintiff is obliged to pay the costs of the defendant and the discontinuance of the action does not constitute a defence in any subsequent lawsuit. The second part concerns the discontinuance of an action when it is attempted at any other stage of the proceedings. In such a case, the plaintiff must obtain leave of the Court to discontinue it. The Court may grant leave to discontinue the proceedings, imposing conditions for the costs and for the plaintiff’s right to reinstate or file it again and or otherwise as it deems appropriate.
The plaintiff applied for leave of the Court to discontinue the action after the pleadings were closed and the action was set for hearing, the proceedings were not in the first stage of Order 15 but in the second. He claimed that the action had no object anymore, as the defendant had already complied with the plaintiff’s claims. He also claimed that he wished to discontinue the action without the creation of res judicata in the event the defendant started again his illegal activity. He claimed the costs as it was the defendant’s unlawful conduct which led to the need to bring the action, which has now become of no object.
The defendant on the other hand claimed that the application was an abuse of process, it was submitted with excessive delay and in the case of discontinuance, the plaintiff should not be allowed to bring a new action raising the same claims. In any event, the costs of the action should be awarded to him.
The Court referred to caselaw and held that the subject matter of the action had disappeared and there was no reason to compel the plaintiff to proceed with it. It emphasized that the Courts do not act in vain, do not hear academic matters and do not resolve disputes which no longer exist due to change in the circumstances as long as their resolution does not result in any practical outcome. The Court concluded that the need for finality of judgments under the circumstances as a matter of public interest prevails and the discontinuance of the action should be allowed without the plaintiff having the right to file it again. As regards the costs, the Court awarded the costs of the application in favour of the plaintiff and other costs created in favour of the defendant.