3rd party procedure

The rationale for 3rd party procedure is to prevent a multiplicity of actions.  The 3rd party is brought to avoid multiplicity and to avoid the same facts being tried with different results.

In 3rd party proceedings one can claim indemnity or contribution.  Indemnity is where a party is alleging that they are entitled to reimbursement.  This could arise from court or contract.  For example under the Law of Insurance the insurance is bound to indemnify the insured if liability is proved.  Indemnity can also arise from a tort.  Contribution is partial indemnity, simple one is saying that they are supposed to pay but somebody else is also responsible and should pay a portion of the liability.

A claim for relief that is substantially the same as that claim of the plaintiff and which arises out of the same facts.  Note that the language has been given a restricted meaning because it could bring in almost everything.  Also it has been held that similarity of facts is necessary when determining whether the claim is the same and whether it arises out of the same facts.

A claim for resolution is a question that arises out of the plaintiff’s claim and which has to be decided not only between the plaintiff and the defendant but also between the defendant and/or the Plaintiff and the 3rd party.

It is therefore a requirement that the Defendants rights against the 3rd party must be dependent on the Defendant’s liability on the plaintiff to the action.  Unless the defendant is held liable to the plaintiff he has no cause of action to the 3rd party.  Procedure does not apply in situations where the defendant has another cause of action against another person.  When drafting the defence, blaming a 3rd party is not a defence, one must first have a defence.  An allegation must be specifically denied and traversed i.e. the defendant denies causing the accident but simply stating that the 3rd party caused the accident is not a defence.  One can also deny and join issues with the Plaintiff but one must deny and traverse.

The procedure to follow is laid down under Order 1 Rule 14, apply leave of court once granted, its by way of Chamber Summons, ex parte supported by an affidavit. If the 3rd Party is being joined after the limitation period.

Once granted leave serve the 3rd party and procedurally all the 3rd party has to do is to enter appearance but in actual fact the lawyers will serve 3rd party notice and plaint, the defence and serve the order which granted the leave to join the 3rd party. Once 3rd party enters appearance he is ready to be joined.  The trial of 3rd party should take part at the same time that the main suit is proceeding.  The court has agreed that it should be concurrent.  If the 3rd party turns up with appearance and defence, there will be a trial and the court will apportion liability in the usual way.

The Notice is a recital of the claim against the 3rd party and must contain a summary of the Plaintiff’s claim on top of attaching the claim.  It must state clearly if there are several claims the claim by the defendant to the 3rd party, whether it is a claim of damages and the grounds of the claim must be stated also but in the notice to 3rd party they should be in summary since one is going to serve the plaint anyway.

When crafting the notice it is always elegant to use the word ‘you’ instead of the 3rd party is required.  Once must also show the nexus between the plaintiff’s claim and the claim between the Defendant and the 3rd party with a view to showing the common question which must be concurrently tried by court in a 3rd party proceedings. Under Order 1 rule 15 the time limited for applying for third party notice is 14 days after close of pleadings.


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