Court dismisses application to add co-defendant for failing to cite mandatory procedural rules correctly.

[*120] 1980 May 6

(PIKIS, P.D.C.)

IN THE DISTRICT COURT OF LARNACA

Ioannis Kouppa and Another,

Plaintiffs,

v.

Nicos Vassiliades,

Defendant.

(Action No. 1253/79).

Civil Procedure - Practice - Interlocutory proceedings - Specification of the rules relied upon not a matter of mere formality but a substantive provision that should be strictly adhered to - Order 48 rule 1 of the Civil Procedure Rules - Application for addition of co-defendant - Rule relied upon not permitting such addition - Application dismissed.

Chr. Theodoulou, for the Applicants.

A. Poetis, for the Respondent.

RULING

The following ruling was delivered by:-

PIKIS., P.D.C. The plaintiffs by their endorsement [*121] prayed for a declaration that an agreement between themselves on the one hand and the defendant, on the other, dated 28th February 1974, be cancelled on grounds of fraud and misrepresenation and for an order for the return of a sum of £1,700.- paid under the agreement. In the statement of claim that followed details are given of the fraud and misrepresentation allegedly invalidating the agreement repeating their prayer for relief. Shortly before the trial of the action, listed for hearing on 14th February, 1980, the plaintiffs applied for leave to add a certain Georghios Christodoulou as a co-defendant and for leave to amend their statement of claim. Following this application the hearing of the action was adjourned to make possible examination of preliminary issues so that the subject matter would be properly defined before the case proceeded to trial. The aforementioned application was withdrawn and renewed on l4th March 1980, based, as on the first occasion, on an affidavit sworn to by one of the advocates for the plaintiffs, namely Mr. Evgenios Erotokritou. In this affidavit the allegation is made that the addition of a co-defendant, namely Georghios Christodoulou became necessary as it appeared subsequently that he was the principal of the plaintiff. The actual words used were “Enefani ekt ton isteron ….’’. The application is based on Ord. 48, r. 2, Ord. 25, r. 1 and Ord. 9, r. 4 of the Civil Procedure Rules.

The plaintiffs seek, to a large extent, to give a new complexion to their action alleging, contrary to the allegation first made in the statement of claim, that the [*122] defendant is the agent of the person they wish to add as a co-defendant. Further they elaborate on the charges of fraud made against the defendant. The application is opposed and an affidavit was sworn to in support thereof by the defendant.

The deponents were cross-examined following notice given to that end. It was, I must confess, a surprise to the Court to notice the allegations made in paragraph 2 of the affidavit of Mr. Erotokritou earlier mentioned because they are, to say the least, incorrect and inaccurate; he came to know earlier on, contrary to what one is led to infer from paragraph 2 of his affidavit, that there existed a power of attorney whereby the defendant was appointed as the agent of Georghios Christodoulou. Mr. Erotokritou explained that a statement made before the Court on a previous occasion to the effect that the said Georghios Christodoulou is a fictitious person was the result of a mistake on his part for he suspected, as he mentioned, that owing to the lapse of time since the execution of the relevant power of attorney the principal might have passed away. I am very unhappy about this state of affairs. To say the least one should expect from advocates when they swear affidavits to be perfectly accurate in their contentions. And this duty becomes more exacting if affidavits are made by advocates in the course of cases they are briefed to handle before the Courts. It is with a sigh of relief that I leave this subject and shall proceed to examine the substance of the application. [*123]

Mr. Theodoulou referred the Court to the principles that normally guide the Court in the exercise of its powers to allow the addition of new parties and the width of the discretion of the Court in this area. Very recently in Chrysostomou v. Chalkousi & Sons (1978) 1 C.L.R 10 the Supreme Court stressed the wide powers of the Court under Ord.9, r. 10. of the Civil Procedure Rules to add a party at any stage of the proceedings so long as such a joinder is deemed necessary for the effectual and complete determination of the issues under trial. (See also General Insurance Company of Cyprus Ltd. v. Maroulla Georghiou and Antonis Ioannou Koutsoftas (1963) 2 C.L.R.

117 - The Heirs of the late Theodora Panayi v. The Administrators of the Estate of the late Stylianos Mandriotis (1963) 2 C.L.R. 167 - Eleni Gr. HjiNicolaou v. Mariccou Antoni Gavriel & Another (1965) 1 C.L.R. 421 - Marcoullis and Others v. Tsakkistos (1970) 1 J.S.C. 36.) A study of decisions given under the corresponding order of the rules in England, Ord. 16, r. 11 of the Old Rules of the Supreme Court, suggests that leave to add a new defendant is liberally granted although the Court retains a discretion in the matter and may refuse an application if the joinder will cause undue embarrassment or raises a completely new cause of action. (See Annual Practice, 1952 at p. 255). The Court has an equally wide power likewise freely exercised, especially before the trial, to authorize the amendment of the endorsement and the statement of claim in order to enable the Court to adjudicate [*124] finally upon the matter in dispute thus avoiding, multiplicity of proceedings. (See Yiannakis Kyriakou Pourikkos v. Mehmed Fevzi (1963) 2 C.L.R.24, Katerina

N.A. Georghiou and Another v. Chrystalla Michael Pistolia. (1969) 1 C.L.R. 613 Tsiappa v. The.Republic (1974) 11 J.S.C. 1048,

Louca v. Miliotou (1975) 12 J.S.C. 2024.)

Mr. Theodoulou invited the Court, in the light of the principles above mentioned, to exercise its discretion in favour of the plaintiffs and direct the addition of Georghios Christodoulou as co-defendant. Mr. Poetis, in his submission, invited the Court to dismiss the action for two reasons: Firstly because none of the rules relied upon in the application permit the joinder of a defendant and secondly because it is fraught with mala fides. He argued that the only rule that confers discretion for the addition of a party after the institution of the proceedings is Ord. 9, r. 10, not relied upon in the application whereas the order cited, notably Ord. 9, r. 4 merely defines the persons who may be joined as parties in a civil action. In reply Mr. Theodoulou invited the Court not to be swayed by technical considerations in the exercise of its discretionary powers.

I have time and again subscribed to the proposition that rules of procedure must be preserved as instruments in the pursuit of justice and never be allowed to dominate the judicial process whereupon they can indeed becomes dangerous masters. Therefore rules must be broadly [*125] construed paving the way for the fruitful administration of justice. But the duties of the Court not to allow the road to justice blocked by procedural rules is no authority for ignoring mandatory rules of procedure like the provisions of Ord. 48, r.1 of the Civil Procedure Rules that lays down “Every application to the Registrar shall be in writing stating the nature of the request made and referring to the specific section of the law or to the specific rule of Court upon which it is founded.....”. The word “shall”, in the context of these rules, specifies definitively both the manner in which the

request must be made and the legal framework within which it can be pursued. The specification of the rules relied upon in interlocutory

proceedings is not, to my comprehension, a matter of mere formality but a substantive procedural provision that should be strictly adhered to. For interlocutory proceedings are proceedings of an extraordinary nature in that deliberations are made without a complete trial, the normal process through which a cause is ventilated before the Court. Hence procedural safeguards designed to elicit the questions in issue and put the matter in a proper perspective should be

meticulously observed especially mandatory provisions like those set out in Ord. 48, r. 1. It is no accident that the legal substratum of an application

must, unlike the statement of claim, be specified for there are compelling reasons that side issues should be succinctly defined both legally and factually so that the Court may, without undue delay, [*126] deal with them and thus pave the way for the trial of the main issues in dispute.

For the reasons above given the Court has no discretion to order the addition of a new defendant. I deem it inadvisable to examine the second submission of the defendant that the application is fraught with mala fides for I may in future have to deal with a similar application. Perhaps I might point out that it is unusual for the Court to examine the bona fides of the parties at an interlocutory stage.

In the result, the application is dismissed with costs.

Application dismissed with costs.