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PARTIES

Who are the correct parties to the suit – this should be an element of concern.  The topic of parties to a suit can be complicated but some of the rules are straight forward.  One must think of capacity and ask what is the capacity of the plaintiff, if the plaintiff is a minor, one has to look at capacity vis-à-vis the cause of action or if a minor entered into a contract the cause of action does not lie as that contract is void.  The procedure allows parties who lack capacity to litigate under certain circumstances.  If one wants to commence a suit for a minor one has to follow the procedure laid down for example it must be in the name of the minor suing through a friend.

If one is then suing a minor there is a procedure under Order 32, consent of guardian is necessary the interests of the guardian and person suing must not be in conflict with the interests of the minor.  Where it is a corporation which has changed status i.e. if it is under court receivership, one must seek leave, if it is in liquidation, this affects the suit and one has to know which steps to take.

Order 32 – it is important to understand that Order 32 is designed to protect the interests of a minor plaintiff or minor defendant.

The next thing to consider is the question of whether one has the right parties, this is about joinder of parties and joinder of causes of action.  Order 1 is on joinder of suits.  A common question of fact arises where common question of fact arises and if this happens the parties cannot be joined.  If persons travelling in a motor vehicle are injured, if each of them were to file a suit a common question of fact would arise and therefore one can sue three or four of them and they can all sue jointly.  In a situation where there is no common question of fact, one has to separate.  Where one joins a wrong party, this is Misjoinder of a party, they ought not to be joined in the suit.  Misjoinder does not affect the suit as the court can strike out the name of the party who is brought in to that suit and does not belong, where there is one defendant.  One can make an application to substitute the Defendant and bring in the correct Defendant.

Order 1Rule 3 – who may be joined as a defendant.

Order 1 Rule 10 – part two to Rule 10 states that any person whose presence may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit be added.  The Civil Procedure Rules under this rule presupposes the existence of a party who can intervene in circumstances where the parties pecuniary or other interests may be affected. The party does not have to be the Plaintiff or the Defendant but their presence can affect the proprietary of the parties interests.   This is basically an intervener who applies to be joined to protect his interests.   For example where directors of a bank may be involved in a dispute, a bank that has lent them money will be interested in the matter to ensure that their money is secure and will be repaid and that they are not in any danger of losing their money due to the dispute, they join as interested party not as plaintiff or defendant.

Order 1 Rule 8 – representative suits are allowed in situations where instead of having a multitude of plaints in court, you allow one or two to sue but judgment affects all of them.  One must satisfy the court that the parties have a common grievance and common interest.  If that does not appear then the court will introduce leave for representative action.  Look at Smith v Cardiff Corporation (1954) QB226 – This case deals with increase of rent in the case of 13000 tenants.  The corporation had given notice to increase rent in a differential manner.  The tenants commenced a representative suit.  Rule 8 allows for a representative suit.  The court held that there was no common grievance as the tenant were in different categories and paid different rents, the test is common interest and common grievance.

A test suit means there are existing suits which have been filed and when one examines the suit there is a common issue which a court can determine.  The suits are brought in by different parties but rather than have them proceed differently and arrive at different decisions, the procedure to test suit says that one of the suits can be used to determine liability and the finding is used in the other suits. Grievance is not common in a test suit, it could be accident victims with different claims.  When it comes to damages, there are no common damages.  The court finding on liability, the judgment is extracted and used in the other suits.

A representative suit must have common interest and common grievance.

NOTE that with regard to parties, it is important to understand 3rd party procedure which is covered under Order 1.  Here we have an existing suit between plaintiff and defendant.  What happens is when the Defendant denies the claims and puts the plaintiff to strict proof thereof.  It is very rare to find admissions unless it is coached in some language and amount to confession and avoidance.  For example if an MP is sued to statements made on the floor of the house, the defence will be yes I made the statements but its privileged.

The defendant may admit liability to an extent but state that there is a 3rd party who is not part of the action to be blamed.  In situations where the defendant has alleged that a 3rd party ought to be brought in so that the issues can be clearer.  The nature of this 3rd party action is that it is a separate claim, meaning that the Defendant could opt to proceed with the action which the Plaintiff has brought against him and later sue the 3rd party.  When one joins the 3rd party under the rules one commences a separate claim with a life of its own independent of the main action and if the main action is settled, then the 3rd party proceedings can continue.   3rd party proceedings are independent and have a life of their own.  There must be a nexus between the plaintiff’s claim, the defendant’s claim and the 3rd party, there must be a nexus.  Look at Stoth v West Yorkshire Car Co. Ltd [1977]2QB 651

 
 
 

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