Joinder Flashcards
for the plaintiff, what options are available to join a claim or parties to the proceeding?
On commencement: joinder of claims, permissive, joinder of parties, compulsory joinder of necessary parties.
Consider whether joinder inconvenient.
Misjoinder or non-joinder of party does not invalidate the proceeding.
Following the commencement of proceedings: addition, removal, substitution of party.
What is joinder of claims?
The plaintiff may join any number of claims against a defendant, whether the plaintiff makes the claims in the same, or in different capacities; and whether the claims are made against the defendant in the same or in different capacities.
9.01
what is permissive joinder of parties?
The plaintiff may join two or more persons as plaintiff, or defendants in any proceeding:
where
9.02 (a) (i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; AND
9.02 (a) (ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; OR
where
9.02 (b): the court, before, or after the joinder, gives leave to do so.
what is joinder of necessary parties?
Where the plaintiff claims any relief to which any other person is entitled, jointly with the plaintiff, all persons, so entitled, must be made parties to the proceedings, and any person who does not consent to being joined as a plaintiff must be made a defendant. The court may make such an order before or after the non-joinder.
Where the plaintiff claims relief against a defendant who is liable jointly and severally with some other person, that other person need not be made a defendant to the proceedings.
Where persons are liable jointly, but not severally, under a contract, and the plaintiff, in respect of that contract, claims against some, but not all of those persons, the court may stay the preceding until the other persons, so liable are added as defendants.
Joinder inconvenient
The court may order that there be separate trials, that any claim be excluded, that any party be compensated for being required to attend/be relieved from attending, and that any person cease to be a party (with or without a condition that party be bound by the determination)-
Where any joinder of claims or parties might embarrass or delay the trial of the proceeding or cause prejudice to any party or is otherwise inconvenient.
Addition, removal, substitution of party
at any stage, the court may order that any person who is not a proper or necessary party cease to be a party.
At any stage the court may order that any of the following persons be added as a party:
- A person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all questions in the proceedings are effectually and completely determined and adjudicated upon
- A person between whom and any party to the proceedings there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding, which it is just and convenient to determine as between that person, and that party, as well as between the parties to the proceeding
- A person who ought to be added be substituted for a person who ought to cease to be a party
procedure for addition of party
A person must not be added as a plaintiff, without consenting in writing, or in such other manner as the court orders.
Where a person makes an application to be added as a party, their application must be supported by an affidavit, showing that persons interest in the questions in the proceeding or the question to be determined as between that person and any party to the proceeding
Addition of party where proceeding is for the recovery of land
where a person is not a party to a proceeding for the recovery of land, and that person is in possession, either themselves, or by a tenant of any part of the land, then the court may order that the person be added as a defendant under the addition/removal/substitution provision
joinder rules where defendant is dead at commencement of proceeding
where the cause of action survives against the estate of a deceased person, and no grant of representation has been made, a person may bring a proceeding against the estate of the deceased. It will be brought against “the estate of ex-deceased“.
we are proceeding is commenced, naming a defendant who is dead when the preceding commenced, if the cause of action, survives, and no grant of representation has been made, the proceedings will be taken to have been commenced against the estate.
In any proceedings commenced we are no grant of representation has been made, the court may appoint a person to represent the estate of the deceased for the purpose of the proceedings, and may order that the proceeding be carried on against the person so appointed as if that person had been substituted for the estate
Where are proceeding is commenced, naming a defendant, who is dead, when the preceding commenced, and the course of action, survives, and a grant of representation has been made, then the proceedings will be taken to have commenced against the personal representative of the deceased, as representing the estate of the deceased. The court made an order that the personal representative be made a party to the preceding.
Change of party on death and bankruptcy
death: the proceedings shall not abate by reason of the death, and maybe carried on, as follows-where the interest or liability of any party is assigned/transmitted/devolves upon some other person, the court may order that the other person be added as a party or be, made a party in substitution for the original party, and the preceding be carried on. Done by application, and the order must be served on every party to the preceding and on every party who ceases to be a party, or becomes a party as plaintiff by virtue of the order, and in the case of a person who becomes a defendant, the order plus the writ or other originating process must be served personally. That person must then filed a notice of appearance. Within such time is the court directs.
Where an order is made without notice to a person on whom the order is then served, that person may make an application to set aside or vary the order within 10 days of service
Failure to proceed after death of a party
We’re a party dies, the cause of action survives, no order is made substituting a personal representative as a party: a party may make an application for an order that, unless an order for substitution is made within a specified time, the proceeding be dismissed, so far, is it concerns release on the course of action, for, or against the person to whom the course of action or the liability survives
Where it is the plaintiff that has died, the court must not make such an order and less notice of the application, for it has been given to any personal representative of the deceased and any other person having an interest in the estate of the deceased, who should be notified in the opinion of the court
Costs implications are in rule 9.10
Amendment of proceedings after change of party
we are a party has been added/removed/substituted after the proceedings. Have commenced, or where a party is dead at the commencement of the proceedings and the changes required, the Rhett other originating process must be amended within the time specified in the order and otherwise within 10 days after the making of the order. The order/date of the order/date on which the amendment is made shall be endorsed upon the originating process.
The amended originating process with the endorsement should be filed.
Where a defendant is added or substituted, the proceeding against the new defendant commences on the date, the originating process as amended is filed. The plaintive should serve the amended originating process on the defendant. Within such time is the court direct, and it should be served personally, unless the court otherwise orders. There after, the proceedings should continue as if the new defendant was an original defendant, and where the new defendant has been substituted, all things done in the course of the proceedings before it was commenced against the new defendant are in effect taken in relation to the new defendant(except the new defendant needs to file an appearance as well).
Consolidation
where there are two or more proceedings in the court, and some common question of law, or fact arises in both, or all of them, or the rights to relief, claimed are in respect of or arise out of the same transaction or series of transactions, or, for any other reason, it is desirable to make this order -
The court may order the proceedings, be consolidated, or be tried at the same time, or one immediately after the other, or may order that any of them be stayed until the determination of any other of them.
Any order for the trial together of two or more proceedings, or for the trial of one immediately after the other are at the discretion of the trial judge.
