The parties to civil proceedings from the outset
In the past all the correct parties had to be included in the proceedings from the start. In the course of the trial there was no way to change the identities and the numbers of the participants. Therefore, mistakes of these kinds could turn to be fatal to the proceedings.
Nowadays, the rules have changed presenting a more flexible approach. Parties may be added after the commencement of the case as well as cease to be part of the dispute. However, it remains important that all necessary parties and no others are named in the proceedings when those are commenced. Further, it is of importance that each party be correctly named.
The failure to comply with those requirements would not be fatal to the outcome but could delay the ultimate resolution of the litigation. In turn, the delay may prejudice the resolution of the proceedings either through evidence becoming stale or lost or due to passing of limitation period.
In addition, failures of the kind are often penalised in costs. Therefore, it still remains of importance for the correct parties to be identified from the outset.
The essence of joinder
The general rule provides that the claimant may use a single claim form to start a number of claims. However, those claims need to be linked with it each other to the effect that they can be conveniently disposed of in the same proceedings. Those links include similar or connected causes of actions against the same defendant or claims arising out of the same incident.
In addition to a number of claims being started together, any number of claimants or defendants may be joined as parties. It could be that two claimants have a joint right, such as where they are joint contractors in suing another party to the contract.
The decisions relating to the joinder of the parties and the actions in the proceedings rest with the claimant whenever he or she is starting the claim. After that point through amendment the other parties could also be given an opportunity to apply to add an additional party to the proceedings.
Joinder in practice
The system provides flexibility where there may be doubt whether a contract was entered into by a claimant as an agent for another, or in the capacity of a principal.
For more information on:
- The courts and inappropriate joinder of parties and causes