It is common practice for an individual to be dragged before the Courts to answer for a wrong when fault cannot be attributed entirely to the actions of said individual but the blame could be laid or should be laid, might I say, at the feet of a third party who crafted the causal link. When one finds himself in such a situation, one wonders what options are available to him or how to be relieved of the burden of being a defendant in a case. Situations like this have long since occurred and been in the contemplation of the drafters of our laws which is why the High Court (Civil Procedure) Rules, 2004 (C.I. 47) makes provision for Third party Notices.
A third party notice is a legal document that is served on a person, not originally a party to a lawsuit, but who may have an interest in the outcome of the case. It is typically used to bring that person into the lawsuit as a third party defendant. The purpose of a third party notice is to allow the original defendant to shift some or all of the liability to the third party.
Thus, in order for a defendant to be given leave to serve a third party notice, he must satisfy the court of one of the following grounds:
- That the defendant is entitled to contribution or indemnity from the third party,
- That the defendant is entitled, as against the third party, to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as the relief or remedy claimed by the plaintiff, or
- That any question or issue arising between the defendant and the third party relating to or connected with the subject matter is substantially the same as a question or issue arising between the plaintiff and the defendant but also as between the defendant and the third party or between any or either of them.
How then can a person commence Third Party Proceedings?
An application to issue a third party notice shall be made ex-parte with a supporting affidavit stating the following:
- the nature of the claim made by the plaintiff in the action
- the stage at which the proceedings have reached;
- the nature of the claim made by the applicant or particulars of the question or issue required to be determined;
- the facts on which the proposed third party notice is based; and
- the name and address of the person against whom the third party notice is to be issued.
The notice shall be issued not later than 14 days after the leave is granted unless otherwise specified in the order.
What should be contained in the Third Party Notice?
The notice must contain a statement of the nature of the claim made against the defendant and of the nature and grounds of claim made by the defendant against the third party and the question or issue required to be determined. This gives the third party an idea of the case before the court and what he is required to answer to.
Does the service of a Third Party Notice differ from that of other processes?
The provisions in the C.I. 47 regarding service of a Writ and filing of Appearance shall apply to Third Party Notices as well.
In serving a Third Party Notice, copies of the Writ and the pleadings served in the action shall be served as well on the third party. Once served, the third party is deemed to have the same rights in respect of a defence as if a writ had been issued against him by the defendant. The third party is then required to file appearance within 8 days after service unless otherwise specified in the notice. If he fails to do so, he may apply for leave to enter appearance which may be granted on such terms as the Court deems fit.
In Third party proceedings, the Third party is treated like a defendant and the defendant who issued the notice shall be treated like a plaintiff.
What is the next step after service?
Once the third party enters appearance, the defendant shall, by notice to be served on all parties, apply to the Court for directions. If no notice is served on the third party, he or she may apply for directions or for an order to set aside the third party notice not earlier than 8 days after entering appearance.
The Court may make any of the following orders upon hearing the application:
- If the liability of the third party to the defendant who issued the third party notice is established, order such judgment as the nature of the case may require to be entered against the third party in favour of the defendant;
- Order any claim, question or issue stated in the third party notice to be tried in such manner as the Court may direct; or
- Dismiss the application and terminate the proceedings on the third party notice and may do so either before or after any judgment has been signed by the plaintiff against the defendant.
On an application for directions, the Court may give the third party leave to defend the action, either alone or jointly with any defendant and to appear at the trial and participate in the trial as may be just. The Court may also make such orders or give such directions as appear to the Court proper for determining and enforcing in a just manner, the rights and liabilities of the parties including the extent to which the third party is to be bound by any judgment or decision in the action.
What then happens when the third party fails to enter appearance?
If the third party fails to enter appearance or file a defence after being ordered to do so, he or she shall be deemed to admit any claim in the third party notice and shall be bound by any judgment or decision relevant to any claim in the third party notice.
Also, the defendant who issued the third party notice may, if judgment in default is given against the defendant, may enter judgment against the third party in respect of any contribution or indemnity claimed in the notice at any time after the judgment is satisfied or before the judgment is satisfied with leave of the court.
Can a defendant make a claim against another party to the action who is not the plaintiff?
The simple answer is yes!!! This can be done for any contribution or indemnity, or any relief or remedy relating to the subject matter or the same claimed by the plaintiff. In such an instance, the defendant may issue and serve on that person a notice containing a statement of the nature and grounds of the claim without leave of the court.
Note should be taken that this is not in respect of a counterclaim against a Plaintiff. It is a claim against another person to the action, most likely a second defendant and such person does not need to enter appearance if he or she has already done so.
The same procedure in determining a third party proceeding would be adopted in such situations.
Can a Plaintiff issue a Third Party Notice and under what circumstances?
Where in any action a counterclaim is made by a defendant, the provisions relating to Third Party Proceedings shall apply to the counterclaim as if the counterclaim were a writ and statement of claim, and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant, provided that such a plaintiff shall not be required to file appearance.
If this plaintiff, made defendant, believes that another person is liable for the claims made against the plaintiff, he or she may employ the procedure of Third Party Proceedings.
Conclusion
This article seeks to shed light on a mode by which justice is served to ensure that blame or fault is not laid on the wrong person and to give life to the aim of the Rules of C.I. 47 that all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.
Such an avenue may be explored in Insurance claims, Commercial Agreements and so much more.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.