Addition of a party to a pending action
By George Coucounis September 6, 2021 September 2, 2021 0184
The criterion is whether their legal rights or financial interests are directly affected
A person can be added as a party to an action pending before court if it is deemed necessary for the court to effectively decide all issues raised in the case. It falls within the discretion of the court, which, either upon or without an application from either party, may order the addition.
According to O.9 R.10 of the Civil Procedure Rules if 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 and the proceedings will continued as if the new defendant had originally been made a defendant.
In this way, all necessary parties will be present in court in order to decide on their rights in one procedure and avoid the multiple procedures.
In examining the issue of whether to add a party, the court does not enter into the substance of the dispute. The criterion for the addition is the finding that the person's 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 adding a defendant to a pending action was examined by the District Court of Larnaca in a judgment issued on August 25 when a defendant applied for a new defendant to be added. 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 emphasised that it does not decide on the allegations of either the defendant or the plaintiff or the proposed co-defendant regarding liability. In his action the plaintiff had not invoked the liability of anyone other than the defendant, his employer. The court decided it would not be right to impose on the plaintiff to proceed with the action against a third person, while the plaintiff himself had not chosen to do so. If a new defendant were added, the plaintiff would be obliged to amend his pleading, while he does not seek this. 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, unless it was clearly demonstrated that the addition is absolutely necessary in order to decide all the issues raised in the action. 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 a person who is not already a party to the action, stating that if (a) the defendant is entitled to contribution or indemnity, (b) the defendant is entitled to any relief or remedy substantially the same as that claimed by the plaintiff or (c) the matter is not only between the plaintiff and defendant but should be properly determined as between the plaintiff, the defendant and the third party or between any or either of them, then 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 parties. Consequently, the court dismissed the application.
George Coucounis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants, email: [email protected]aw
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