joinder

In English litigation, it is the claimant that decides who the initial defendants will be when legal proceedings are commenced. The claimant may commence proceedings against any number of defendants, provided that all the claims made may be conveniently disposed of by the court of in the same set of legal proceedings. It may be the case that the rights of third parties of those initial litigants will be affected or likely to be affected.by the orders of the court after the trial. Joinder describes the joining such further parties to the litigation after the proceedings have been commenced.

Generally speaking, orders of the court will only bind the parties to the proceedings (in personam proceedings), and not the world at large (in rem proceedings). Where a litigant wishes to obtain a remedy against a person, that person must joined to the proceedings.

English Courts maintain a general jurisdiction to make orders to ensure that (1) all matters between the parties are completely and finally determined, and (2) multiplicity of disputes between litigants is minimised or avoided. The power to add parties to existing litigation is one of the more common methods by which the Court may take steps to bring about this end.

Prerequisites to Joinder

The court’s jurisdiction may be exercised to join any number of claimants or defendants to proceedings. In order to be joined to the proceedings, the party seeking to join a third party must have a cause of action against that additional party. The court does not have jurisdiction to add a party simply because a person wishes to obtain disclosure against that person.

Circumstances of Joinder

Where the joinder would assist the court resolving all disputes between the parties to the litigation, or there is an issue in dispute between an existing party to the litigation and the addition of that party would assist the court resolve all the issues between the parties, the court is likely to order the joinder. In addition, where a party ceases to be liable because its interest or liability has passed to a third party, that third party may be substituted for the party who no longer has an interest.

Co-claimants may join the proceedings where their interests do not conflict with those of the first claimant; in that case the parties are joined as defendants to the litigation. All persons jointly entitled to a remedy with the claimant claimed by an existing litigant must be made parties to proceedings. If it is the case that the claimant consents to be joined, it is joined as a claimant, and failing agreement, as a defendant.

An Example

Suppose a software developer claimant issues proceedings against a defendant, in a business dispute where the defendant is said to have infringed the copyright of the claimant by copying its software without permission. If the facts of the case show that a director of the defendant played a hand in the infringement, the claimant would be likely to obtain an order for joinder of the director as the second defendant to the proceedings.

The first defendant may claim that a third party consultant played a hand in the infringement, and that consultant is liable for contribution to the first defendant. The first defendant would be entitled to commence proceedings against the consultant for contribution by way of a Part 20 Claim, which would if successful, lead to liability in the third party consultant to the first defendant.

The consultant could also be joined by the claimant as the third defendant for infringement on that basis that the consultant has played a role in a common design to infringe the intellectual property rights of the claimant, as would other persons alleged to have participated in the infringement of the claimant’s intellectual property rights.

Closing Remarks

Litigants in England should be aware that simply because the claimant issues proceedings against named defendants does not mean that the defendant necessarily need to accept that if anyone is liable, it is the defendant alone. There may be circumstances which give rise to third party liability which may render good grounds for joining those parties to the litigation.

Equally, evidence may come to light at disclosure which indicates liability on the part of defendants to the claimant had no basis to know at the time the claim form was issued. It is likely that a court will permit joinder of those persons for the purposes of maximising the prospect that all disputes relating to the facts are disposed of in one set of proceedings.