27 Aug Addition of a party to a pending action
Addition of a party to a pending action
by George Coucounis
“The criterion is whether his legal rights or financial interests will be directly affected”
THE addition of a person as a party to an action pending before the Court may be ordered if this is deemed necessary for the Court to effectively and completely decide all the issues raised in the case. The matter falls within the discretion of the Court, which, either upon or without the application of either party and on such terms as may appear to the Court to be just, may order the addition of a party. Relevant is O.9 R.10 of the Civil Procedure Rules and in case a person is added as a defendant, the writ of summons must be amended accordingly, the plaintiff shall, unless otherwise ordered by the Court, file a copy of the writ as amended and serve the new defendant with such amended writ or notice and the proceedings shall be continued as if the new defendant had originally been made a defendant. In this way, the presence of all the parties that are necessary before the Court is achieved, in order to decide on their rights in one procedure and to avoid the multiplicity of procedures with the initiation of separate actions.
The Court, in examining the issue of addition or non-addition of a party, does not enter into the substance of the dispute, but the criterion for the addition is the finding that its legal rights or financial interests are affected or disputed, especially in the case of ownership or interest in property where all owners must be represented. The issue of joining a defendant to a pending action was examined by the District Court of Larnaca in a judgment issued on 25.8.2021 in the context of the defendant’s application for the addition of a new defendant, who claimed to be a necessary party. There was an objection on the part of the plaintiff as well as on the part of the proposed co-defendant, who both argued that the proposed co-defendant had no liability and the defendant could apply to the Court for leave to issue and serve a third-party notice.
The matter concerned a claim for an accident and the Court emphasized that in the examination of the application, it does not decide on the allegations of either the defendant or the plaintiff or the proposed co-defendant regarding liability. The plaintiff in his action does not invoke the liability of any third legal or physical person other than the defendant as his employer. The Court, having studied the application and the objections, as well as the case law, considered that it would not be legitimate or right to impose on the plaintiff to proceed with the action against a third person by making him a defendant, while the plaintiff himself has not decided or chosen to do so. If a new defendant is added, the plaintiff will be obliged to amend his pleading, while he does not seek this, he does not invoke the liability of any third party, he does not claim any remedy against him and claims damages only against the defendant. The general principle is that the choice of the defendants in a lawsuit is a right which basically belongs to the plaintiff.
The Court therefore held that it should not exercise its discretion and allow the addition of the defendant against whom the plaintiff does not wish to proceed, unless it is clearly demonstrated that the addition is absolutely necessary in order to decide effectively and fully all the issues raised in the action. In this case, the Court referred to O.10 R.11(1) of the Civil Procedure Rules regarding the procedure of summoning a third party, when the defendant claims against any person who is not already a party to the action, (a) that he is entitled to contribution or indemnity, or (b) that he is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff, or (c) that any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the plaintiff and defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the third party or between any or either of them, the Court may give leave to the defendant to issue a third-party notice. The third party from the service of the notice becomes a party in the action and has the same rights in his defence as if the action against him had been filed by the defendant. The third-party procedure achieves the fastest administration of justice by settling all the disputes of all the parties through the hearing of the case and consequently, the Court dismissed the application.