clr/1987/1987_1_445.pdf

(2)Rule 5* does not apply to third party proceedings. The term •pleadings» inrule 7invoked bythe trialJudge and which provides that «no other pleadings shall be delivered» is used by reference to the pleadings exchanged between theplaintiff and the defendant and noi tothe pleadings that are tobe exchanged between adefendant and a third party. 5 Appeal allowed. No orderas tocosts. Appeal. Appeal by defendant against the order of the District Court of Limassol (Stavrinides, D.J.) dated the 9th July, 1985 (Action No. 10 1077/85) whereby his application in an action instituted under Order65 oftheCivilProcedure Rulesforleavetoissueand serve a third party notice to a certain Andreas Christou from whom he wasclaimingcontribution and/or indemnityregardingtheclaimof plaintiff for damages, wasrefused. 15 A. S. Myrianthis,for the appellant. No appearance for the respondent. A.LOIZOU,J. gavethefollowing judgment oftheCourt.Thisis an appeal from the order of a Judge of the District Court of Limassol by which he refused the application of the appellant, 20 defendant in the action instituted under Order 65 of the Civil Procedure Rules, for leave to issue and serve a third party notice on a certain Andreas Christou from whom he was claiming contribution and or indemnity regarding the claim of the plaintiff for damages, ashe wasallegingthat theaccidentsubject matterof 25 the said action was due wholly and/or partly to the negligence and/or breach of statutory duty of the saidAndreas Christou. The application was filed on the 3rd April 1985 and the date fixed, on the strength of the provisions of Rule 2

(1),onthe writof summons calling upon the defendant to appear before the Court 30 was the 5th April 1985, informing him that if he intended to dispute theplaintiff's claim he should within ten daysafter service on himofthewritofsummonsdeliverhisdefence inwritingtothe plaintiff at his address or at his address for service, when had he compliedwiththesaidOrdertheCourtwouldhavefixedadatelor -35 thehearing of theaction under rule 14.Itmaybe mentioned here *Therelevantpartofrule5 isquotedatp. 448 post. 446 1C.L.R. Aglsllaou v.S a w a A. L O I T O I M , thatthe usualpractice isforthedefendant orhiscounseltoappear on such a dayand then file the defence for which purpose timeis given. The learned trialJudge in giving hisreasons for the conclusion 5 reached by him in his elaborate judgment referred to almost all rulesofOrder65, butrelied basically ontheprovisionsofRules1, 4, 7 and 8 of the said Order as precluding him from granting the application. The first question considered and answered bythe learned trial 10 Judge waswhether such an application could be filed before the date ofhearing ofthe action. Rule8 provides: 15 «8. No application for interlocutory orders antecedent to judgment (other than application for injunctions or variation of the times prescribed by the rules of this Order) shall be madebefore thehearingoftheaction.Anyapplication forany such interlocutory order may be made orally at the hearing, andtheCourtmayheartheapplicationanddealwithitinsuch manner asmay bejust.» 20 The learned trial Judge concluded after referring to the authorities as to the meaning of the term interlocutory, that the said application was referring to an interlocutory proceeding and consequently rule 8 was applicable and so the said application could not have been filed before the hearing of the action on 25 account of the mandatory provisions of rule 8 and he dismissed the application as premature. Inour view this rule does not exclude an application in writing for leave toissueand serve before the hearing athird party notice whichdoesnotaffect inessencethecasebetween theplaintiff and 30 the defendant but itaimsat introducing inthe proceedingsathird party for indemnity of and contribution to the defendant. Moreoverthisrule hastobe read subject tothe general provision contained in rule 15where in itsconcluding part itsays that «the Court shall have power to vary the procedure in any action to 35 which thisOrder applies in such manner as itmay thinkfitwitha viewtosavingtimeandexpensebutsothatnoprejudice iscaused totheparties concerned.» Weareofthe opinion thatwithin thisprovision thelearnedtrial Judge had power toentertain theapplication forthe issueofthird 40 party proceedings as no prejudice could be caused and 447 A. Lolzou J. Agisllaou v. S a w a

(1987)considerable expense and time would be saved ifthe third party was properly brought before him at the hearing for the final determination of allissuesraised inthe proceedings. Nopractical benefit could have been gained byanyone,tc wait untilthe date of thehearing.After alla third party procedure aims 5 atbringing inonthedateofthehearingathirdparryagainst whom indemnity or contribution et cetera isclaimed. The whole tenor of Order 65 isto simplify proceedings and to save expense and time but in noway that istobe achieved at the expense of the parties or to cause delay or multiplicity of 10 proceedings or deprive a defendant of hisrightto indemnity and contribution that hemayraiseinthirdpartyproceedingsand have the extent of the liability ofa third party decided inthem aswell. On the second question posed by the learned trial Judge. namely whether there existsthe thirdpartyprocedure inOrder65 15 wetake again a different view from that of the learned trialJudge. Under rule 1, Order 65 applies to actions relating to claims now not exceeding five-thousand pounds. In such actions the foregoing Orders of the Civil Procedure Rules must be observed with the modification made by Order 65 in regard tothe conduct 20 ofsuch actions down to judgment. Underrule5thereof «thedefendant maybyhisdefence setupa counterclaim against the plaintiff; but no counterclaim shall be entertained which raisesquestionsbetween thedefendant andthe plaintiff along with others». This rule is clear. It does not apply to the case of third party proceedings where no question arises of a counterclaim filed against the plaintiff along with the third party. Moreover rule 7, invoked by the learned trial Judge in concluding that no third party proceedings could be initiated 30 under Order 65, provides that save as in the preceding rules of Order 65 «noother pleadingsshall be delivered». This rule in other words excludes the exchange of pleadings other than those referred to inthe preceding rules, including rule 5,justreferred to,butaperusal ofrules 1 to6,showsthattheterm 35 «pleadings» in this respect is used by reference to the pleadings 448 25 1 C.L.R. Agisilaouv.Savva A. Loizou J. exchanged between the plaintiff arid the defendant and nottothe pleadings that are to be exchangejd between a defendant and a third party. Forallthe above reasons the appeal succeeds. 5 As the learned trial Judge, however, after concluding that in view alsoof his answer to the second question posed he saw no reason atthatstagetoexaminewhether thegroundsetforth inthe application wouldjustify the grant of same, the application hasto besentbackforretrialtobeexamined byhimonitsmerits,subject 10 toourapproach on the legalaspect of the case. The appeal istherefore allowed with no order astocosts. Appeal allowed. No orderastocosts. 449