In its recent judgment dated 20/10/2020, the District Court of Limassol ruled on the commonly misinterpreted concept of limitation in actionable torts and in particular in medical negligence cases, in which claimants frequently appeal to the context of the continuous suffering of damage for purposes of determining the material time in bringing an action.
In this particular case, in which the author acted as representing counsel, the medical professional provided medical services and appeared as an expert witness in support of the patient’s claim against another professional in a case dated back to 2009. More than 10 years later he was served with a Court order joining him as co-defendant to the proceedings. The claimant had applied ex-parte to obtain such leave following the ruling of the Supreme Court for a retrial after an appeal was filed by the patient challenging the first instance judgment. The claimant succeeded in joining a co-defendant on the allegation of continuous damage suffered for which liability was attributed to both professionals.
In assessing the set aside application filed by the medical professional, the Court ruled in his favour, noting the following:
- The Court accepted that the proper course to challenge the joinder of a defendant is the filing of a conditional appearance on his/her behalf and then to apply to set aside the amended writ and the service of it. The Court thus dismissed the position that the proper course of action was the filing of a defence in which the limitation issue would be pleaded, as per the position advanced by one of the parties.
- Reference was made to the leading English case Liff v. Peasley (1980) 1 All E.R. 623 that was applied in Cyprus in Covotsos Textiles Ltd v Ellerman Lines Ltd and others (1983) 1 C.L.R.479, in which it was stated that leave to join a defendant shall not be granted after the expiration of the limitation period in relation to the proposed defendant.
- In discussing the applicable principles, the Court referred to the benefit of the rule of practice when set aside is pursued on this basis and the two alternative bases for that rule, i.e. the “relation back theory” and the “no useful purpose theory”, that lead to granting the relief of the set aside. As discussed in Liff v Peasly above, the former relates to whether the action against the added defendant relates back to the date of the original writ and the claimant is deemed to have begun his/her action against the defendant when he/she began it against the original defendant, and so the defendant is deprived of his right to rely on the statute of limitations. The latter relates to whether the action against the added defendant is begun at the date of the amendment joining him/her in the action, and so he/she can rely on the statute as barring the claimant from suing him/her. Therefore, an application to set aside the order joining a person as co-defendant will succeed either because he/she would be deprived of his/her right to rely on the statute if the earlier date were preferred or because he/she would be able to rely on the statute and defeat the claimant’s claim if the later date were preferred.
It is noted for purposes of the present that the joinder of a defendant does not have effect retrospectively as of the date of the initial writ of summons, but as of the date of issuance of the order permitting it. (Leadbitter v. Hodge Finance Ltd and others (1982) 2 All E R 167).
- As to the issue on the establishment of a continuing injury that would allow reference to a subsequent date for purposes of defining the date on which the cause of action accrued, the Court reiterated the established principle that continuance of an injury or damage does not merely mean continuance of the injurious effects of a legal injury within the meaning of an enactment prescribing a special period of limitation. Thus, the allegation of a continuous suffering did not suffice for purposes of regenerating the tortious act, in particular as no such reference was made at any stage in the context of the first instance hearing.
The Court concluded that the actionable right against the applicant had already been statute-barred on the date of issuance of the order joining the practitioner as a co-defendant to the action and the set aside relief was granted.
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