Court dismisses plaintiff's action for discontinuance as prayers are misconceived and groundless.

[*211] 1979 May 10

(PlKIS, P.D.C. & CONSTANTINIDES, D.J.)

IN THE DISTRICT COURT OF LARNACA

Demetris S. Demetriou,

Plaintiff,

v.

Pavlos G. Hilides and Others,

Defendants.

(Action No. 355/78).

Civil Procedure - Action - Discontinuance after commencement of hearing - Leave - Discretion of Court - Principles applicable - Res judicata - Issue estoppel - Rules 1 and 4 of Order

15 of the Civil Procedure Rules.

A. Poetis, for Applicant-Plaintiff.

C. Varda (Mrs.), for Defendants-Respondents.

JUDGMENT

The judgment of the Court was delivered by:-

PIKIS. P.D.C.: At the end of the proceedings when judgment had been reserved application was made by the plaintiff for leave to discontinue the action for the reason that the prayer, evidently meaning the remedies applied for, are not consonant with the facts of the case as they emerged at the trial. The application is based on the provisions of Order 15, rules 1-4 of the Civil Procedure Rules making discontinuance of the action after a certain stage dependent on the leave of the Court. This order originates from and corresponds to Order 26, r.1 of the English R.S.C. 1883. The statutory provision for [*212] discontinuance aimed at replacing the common law rule that entitled the plaintiff to discontinue proceedings at any time before judgment. The object of the new rule is to deprive the plaintiff of dominion that he enjoyed over the proceedings after a certain stage of litigation. Thereafter the Court itself has ultimate responsibility for the fate of the proceedings, an alteration brought about in order to ensure that the right to discontinue is not exercised to the disadvantage of the defendant or better still to ensure that the defendant is not nonsuited to his disadvantage. Here, as elsewhere, the involvement of the Court in securing a fair trial is made more direct.

The authorities on the subject of discontinuance stress the width of the Court’s discretion without seeking to limit it in any way that might fetter the Court’s hands to do justice in the individual circumstances of a case. (See Hess v. Labouchers 14 T.L.R. 350; Fox v. Star Newspaper Co. , 16 L.J. Q.B.454; and Tsirou v. Shitta (1974) 6 J,s.C. 753). In a recent decision of the English High Court, not referred to by counsel, Graham

J. sums up the principles emerging from the authorities as follows:-

"The principles to be culled from these cases are, in my judgment, that the Court will, normally at any rate, allow a plaintiff to discontinue if he wants to, provided no injustice will be caused to the defendant. lt is not desirable that a plaintiff should be compelled to litigate against his will." – [*213]

Covell Matthews & Partners v. French Wools Limited (1977) 2 All E.R.591 at p.594, letters A-B.

Now we must refer to the background of the case in order to discern the real reason for plaintiff’s wish to withdraw his action at this late stage. It can be stated as follows; Plaintiff wants to withdraw the action sensing that it will be dismissed, so as to prevent any estoppel operating against him in the event of raising a future action based on the same facts. Therefore he wishes to discontinue the action in order to deprive the defendants of the fruits of a successful litigation or more accurately still to forestall the likely consequences from the dismissal of the action. On the other hand if the dismissal of the action will not give rise to res judicata no practical purpose would be served by giving leave to discontinue the action for in that case the plaintiff will have nothing to gain. In both cases he will be submitting to his fate. Counsel for the defendants opposed the application and argued, inter alia, that plaintiff should not be allowed to litigate the same issue indefinitely.

There is a growing tendency to play down procedural rules and concentrate on the substance of the issues arising for consideration. The gravamen of the submission for the plaintiff is that we should not allow the ill conceived definition of his complaint against the defendants to harm his rights. We do not think that, dismissal of the action on that score would raise an estoppel prohibiting future litigation on the merits. [*214] Res Judicata or issue estoppel is a substantive rule of law dictated by considerations of public policy intended to secure finality in litigation. A series of decisions has established that it can be successfully invoked as a barrier to future litigation if there is (a) judgment on the merits and then (b) only in respect of the distinct issues raised in the first action. (See New Brunswick Ry. Co. v. British & French Trust Corpn. Ltd. (1938) 4 All E.R.754; Re Koenigsberg (deceased)(1949),1 All S.R.809; Carl-Zeiss-Stiftung v. Rayners (No.2) (1966) 2 All S.R.536; Pople v. Evans (1968) 2 All E.R.743; and Carl-Zeiss-Stiftung v. Rayners (1969) 3 All E.R.397). A dangerous precedent would be created if parties were allowed at the end of the day to withdraw their action with reservation of rights. That would be re-introducing the common law rule of non suit that was statutorily abolished for good cause,we might say, for the law in its present form would not allow one for no good reason to eat his cake and preserve it at the same time. We may of course give leave to discontinue without any special directions as to reservation of rights. That would be very similar to judgment being given in the cause but in our judgment the preferable course is to dismiss the application as we are about to do and proceed to give judgment in the case, leaving thenceforth the parties to pursue their rights as may emerge after the judgment of the Court. Therefore the application is dismissed.

By virtue of an agreement dated 26th September 1973, the defendants sold to plaintiff a piece of immovable property for £19,000.000 mils. A controversy arose [*215] respecting the performance of this agreement and as a result the defendants in the present action instituted proceedings seeking a declaration that the contract of sale was nullified owing to the default of the plaintiff in the present action, then the defendant, to fulfil his part of the agreement. (See Action 1078/75 - exhibit 1). Negotiations followed and the dispute was settled on 8th November 1976.

We shall not recount the details of the settlement hut we shall, summarize its effect as follows: The agreement of the parties of 26th September 1973 was cancelled and replaced by a new agreement safeguarding the right of the plaintiff to acquire the immovable property in question upon new terms and conditions agreed therein. In consequence of the settlement reached judgment was given for the defendants for £7,000 with costs subject to stay of execution designed to enable the plaintiff to fulfil his obligations to the defendants in their entirety and acquire the property.

By the present action the plaintiff seeks a number of remedies, some conflicting, none of which unfortunately raises in its proper perspective the remedy actually desired by the plaintiff as it emerged at the trial, that is relief from failure to comply with contractual stipulations of the agreement of the parties declared before the Court on 8th November 1976. During the trial the plaintiff abandoned his prayer for the specific enforcement of the agreement of 26th September 1973, rightly so, for that agreement was cancelled and superseded by the agreement of 8th November 1976.

Also he asks for the specific enforcement [*216] of the agreement of 8th November 1976, again an impossible task. The prayer is vague in itself for the agreement had several distinct provisions, some of which could not be the subject of a specific enforcement. On the face of it, the object of this remedy was to obtain an order directing the defendants, upon satisfaction of certain preconditions, to transfer the immovable property in question to the plaintiff The agreement was not capable of specific performance in that regard for there was no compliance with the provisions of The Sale of Land (Specific Performance) Law, Cap.232 (amended by Laws 50/70 and 96/72).

Alternatively the plaintiff claimed damages notwithstanding the absence of any allegation of breach on the part of the defendant and the return of moneys paid. The only evidence adduced at the trial was directed towards explaining and excusing the default of the plaintiff in not paying one of the instalments envisaged in the agreement of the parties of 8th November 1976 and, as it is emerged, the desired relief is an order of the Court excusing his default. If the plaintiff was successful in the pursuit of such a remedy and his rights under the agreement of 8th November 1976 were preserved notwithstanding his default he could conceivably and provided he complied with the remaining terms of the arrangement of the parties, sue the defendants for breach of contract in the event of failure on their part to transfer the immovable property agreed to be sold.

This is not what the plaintiff asks by his action and without wishing to be disrespectful we must put it on record that we regard plaintiff's action as totally misconceived. Reference is made to a variety of remedies [*217] without putting his finger and without pursuing the one remedy that might help him out of the difficult position in which he has found himself because of his failure to comply with the terms of his agreement with the defendants. His complaint about the return of the sum of £7,000 is, like his other complaints, put in the wrong perspective.

He seeks, in effect, the variation or discharge of an order of the Court. Here as elsewhere the grievance of the plaintiff is ill-defined and clouded in ambiguity. Obviously the judgment debt in Action 1078/75 is made up in part of damages that plaintiff agreed to pay to the defendants for safeguarding his right to acquire the property purchased by virtue of the 1973 agreement. At most the plaintiff could ask, in relation to the judgment debt, for further stay of execution. That of course would in turn be dependent on the Court excusing his default so far.

We shall not examine whether the plaintiff is entitled to relief in equity, excusing his failure to comply with the terms of the agreement between the parties. The issue is not before us and therefore we shall refrain from commenting on such evidence as there is before us that might throw light on the issue.

Summing up our views we find plaintiff's action to be misconceived and as defined groundless. It is therefore dismissed with costs in favour of the defendants.

Action dismissed with costs.