Justice does not function in vain
Justice cannot function in vain, so any action or other court proceedings are not maintained when it is found that they have no object and become abusive. The proper way to deal with such proceedings, especially in the case of a lawsuit, is to discontinue and dismiss it either with reservation of the right to reinstate such a cause of action or not with costs falling on the party who caused them or against both parties if they are both responsible.
The issue is regulated by the civil procedure rules and particularly by Order 15 concerning the discontinuance of an action The plaintiff may discontinue the action with or without leave of the court and the defendant, upon an application.
This issue was raised before the District Court of Larnaca in a judgment issued on February 22. The plaintiff applied for leave of the court to discontinue an action with reservation of the right to reinstate it or file it again. The defendant objected claiming that the application was abusive.
The court stated that the issue to be resolved was whether the plaintiff should be allowed to discontinue and, if so, under what conditions and held that the starting point of the issue is the wording of Order 15, which is divided into two parts.
The first part concerns discontinuance attempted before receipt of the defendant’s defence or after its receipt, but before any other step in the action is taken, except an application for an interim order. In this case, the action can be discontinued by filing a written notice, the plaintiff is obliged to pay the costs of the defendant and the discontinuance of the action does not constitute a defence in any subsequent lawsuit.
The second part concerns a discontinuance attempted at any other stage of the proceedings. In such a case, the plaintiff must obtain leave of the court to discontinue. The court may grant leave to discontinue proceedings, imposing conditions for the costs and the plaintiff’s right to reinstate or otherwise as it deems appropriate.
The plaintiff applied for leave of the court to discontinue the action after the pleadings were closed and the action was set for hearing. He claimed that the action had no object anymore, as the defendant had already complied with the plaintiff’s claims. He also claimed that he wished to discontinue the action without the creation of res judicata in the event the defendant started his illegal activity again. He claimed the costs as it was the defendant’s unlawful conduct which led to the need to bring the action.
The defendant on the other hand claimed that the application was an abuse of process, it was submitted with excessive delay and in the case of discontinuance, the plaintiff should not be allowed to bring a new action raising the same claims. In any event, the costs of the action should be awarded to him.
The court referred to case law and held that the subject matter of the action no longer existed so there was no reason to compel the plaintiff to proceed. It emphasised that courts do not act in vain, hear academic matters or resolve disputes which no longer exist due to change in the circumstances as long as their resolution does not result in any practical outcome. The court concluded that the need for finality of judgments as a matter of public interest prevails and the discontinuance of the action should be allowed without the plaintiff having the right to file it again. As regards the costs, the court awarded the costs of the application in favour of the plaintiff and other costs created in favour of the defendant.
George Coucounis is a lawyer practising in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]