Court holds guardian is not a party to action and dismisses third party notice application.

[*95] 1983 June 21

(S. NICOLAIDES, D. J. )

IN THE DISTRICT COURT OF NICOSIA

Michael Nicolaou, through his father and natural guardian Nicos Andronicou,

Plaintiff-Appli cant,

v.

Frixos Xenofontos and Another,

Defendants-Respondents,

v.

Nicos Andronicou,

Third Party.

(Action No. 245/80).

Civil Procedure - Parties to the action - "Guardian" or "next friend" is not a party to the action.

G. Melissas, for Applicant-Third Party.

P. Ioannides, for the Defendants-Respondents.

RULING

The following ruling was delivered by:- S. NlGOLAIDES, D.J. :- By this application [*96] the third party applied by summons for an order of the Court setting aside a third party notice issued by virtue of an order of the Court dated 15.12.1980 as irregular and in contra vention of the Civil Procedure Rules. The defendants-respondents on whose application leave was granted to issue third party notice opposed the application.

The plaintiff is an infant who filed the action for damages for personal injuries and sues through his father and natural guardian.

The defendants applied to Court and obtain leave to issue and serve third party notice on the father and natural guardian of the plaintiff thereby making him third party to the action: following that the third party filed the present application praying as stated above.

The main argument of counsel for the third party is that the guardian of the plaintiff he is already a party to the action i.e. as plaintiff and therefore could not be made a third party. This being irregular and contrary to the pro visions of 0.10 r.l(l) of the Civil Procedure Rules. He further bases his argument on the wording of 0.9 r.l and

0.9 12 of the Civil Procedure Rules.

Counsel for the defendants argued that a guardian or next friend of an infant plaintiff is not a party to the action basing his argument on a note in the Annual Practice of 1959 at p. 352 where it is stated that "a next friend is not a party to the action" and referred to Dyke v. Stephens (1885) 30. Ch. 189 at p. 190 and Pink v. J.A. Charwood (1913) 2 Ch. p. 286 at p. 288-9. [*97]

0.9 r.l states who may be plaintiffs in an action and there must be "a right to relief" for the plaintiff. In the present case as the w rit of summons is framed no claim of relief by the guardian appears.

0.16 r.l6 of the Rules of the Supreme Court which deals with actions by infants refers only to next friend no mention of guardian is made as our 0.9 r.12 of the Civil Procedure Rules. It is to be noted that 0.16 r.16 of the English Rules of the Supreme Court corresponds to our

0.9 r.12 and deals with the same topic. i.e. actions by infants.

In the Annual Practice 1951 p. 260 under the heading Next friend is said a next friend is no party to the action, (Re Corsellis, 52 IJ Ch. 399. Pink v. Charwood (1913) 2 Ch. 286.)

In my mind I cannot but equate the words guardian and next friend appearing in our 0.9 r.l2 with the word next friend appearing in 0.16 r.l6 of the Rules of the Supreme Court as stated in the Annual Practice (1951) p. 259 and the inter pretation given to the words at p. 260. I find that "guardian" or "next friend" is not & party to the action. This view is supported by what is stated under note "Next friend appearing in Court in person." "The next friend or guardian ad litem of an infant is not entitled to appear in person on behalf of the infant." and is also supported by the wording of our 0.9 r.1. It is my view that a guardian or next friend of an infant plaintiff has "no right to relief". The aforementioned "right to relief" belongs to the infant plaintiff. [*98]

For all the above reasons I feel that I cannot set aside the third party notice.

In the result this application is dismissed with costs in favour of respondents-defendants to be assessed by the Registrar and be paid at the conclusion of the action.

I should further say that probably it would be best for the guardian to remove himself as by becoming a third party he is having an interest in the suit adverse to the infant plaintiff.

Application dismissed

with costs.