Third Parties
Joining a Third Party
The rules of court provide a procedure by which a defendant may join another party to the action as a third party. This may be done where the defendant claims against the third party, that he is entitled to either a contribution towards damages to the claimant or to a complete indemnity.
It may also arise where he is entitled to a relief or right relating to or connected with the subject matter of the original claim and is similar to that claimed by the claimant and that any question or issue relating to or connected with the original claim is substantially the same as that arising between the defendant and the third party. A further alternative ground for the third party procedure is that the claim is for substantially the same relief or remedy or raises a substantially the same question or issue.
The purpose is to avoid the unnecessary proliferation of legal action and to enable insofar as possible, that all issues arising out of a particular incident or transactions are decided by the one court at the same time. This avoids replication of evidence and arguments before different courts.
Right to Contribution
The Civil Liability act provides that a person who is sued for damages or for a contribution, wishes to make a claim for contribution against another, must do so in that particular action if that party is already a party to the action. If he is not already to a party, he must serve a third party notice as soon as reasonably possible and claim contribution under the third party procedure. If the third party notice is not served, the court may in its discretion, refuse to make an order for contribution which might otherwise have been available.
A right to indemnity arises when one person agrees or is deemed to agree to hold another person harmless from claims and demands arising from a particular subject matter. A right to contribution will arise where parties are jointly liable under the same obligation. See the separate sections in relation to the Civil Liability Act, which regulates concurrent liability in these situations.
Time Limits
The time limits for joining third parties to actions under the High Court rules are relatively short. Unless the court otherwise allows, an application for leave to issue a third-party notice must be made within 28 days from the time of delivery of the defence. The is what the rule provides. The legislation provides that the claim must be made as soon as reasonably possible.
In practice, the 28-day period is not always or even often observed and the courts appear to be willing to grant an extension of time, unless the third party or others have been prejudiced. However, the defendant must give a reasonable explanation for the delay in the context of the entire proceedings. In some cases no reasonable explanation or excuse will be available.
In other cases the delay will be reasonable because the solicitors or the defendants will not be in the position to advise that third party proceeding should be instituted. It may be necessary to obtain evidence. The courts appear willing to grant legal advisers, parties and their legal advisers’ latitude in this regard. However, there will be cases where there is no grounds or basis for the delay, and failure to act promptly will lead to loss of rights against third parties.
Consent to Join
The application for consent to join a third party is made by motion to court, with notice to the other party. In the case of a consent application, it is made to the Master. The affidavit sets out the basis on which the third party claim is appropriate.
The plaintiff may himself join the third party as a party. If it does not do so, he will have no direct recourse against the third party. he court may grant the application provided that it satisfied that there is sufficient evidence that there is a basis for a third party claim.
The court may give the third party liberty to appear at trial and take such part in it, as may be just. Generally, it may give directions as it appear proper, to have the matters conveniently determined. It may give directions as to the extent to which the third party is to be bound by and made liable by the judgment in the matter.
An application may be made to set aside third party orders. The third party may challenge the order on the basis that the notice has not been served within the time limits or soon as reasonably practicable.
Third Party Notice and Response
The third party notice sets out the claim against the third party and the remedies sought. It may include directions given when the third party order was made. The third party notice must be served within 28 days of the court order.
The third party must enter an appearance in much the same way as a defendant in the action. Appearances are required within eight days. Within 28 days of the order, the third party must be served with the summons, statement of claim or other pleadings. The statement of claim is required within 21 days of request. The defence is required within 28 days of the entry of an appearance.
The court may make directions regarding the third party notice. They may be varied or amended after the third party has entered in appearance and before defence. The third party may apply to vary the directions after delivery of defence. The third party or other defendants may apply for directions. In such directions, the court may order judgment to be entered against the third party where liability is established.
If there is a proper issue to be determined, the court may try the issue or have it referred to trial in such manners as is appropriate. It may give the third party liberty to defend the claim either alone or jointly with the original defendant on such terms as may be provided.
There is no reason in principle why a third party may not join subsequent parties. The same procedures and creiteria would apply.