THIRD PARTY NOTICE -WHERE A DEFENDANT BLAMES ANOTHER PARTY FOR THEIR WOES

Question 1

What is the nature of THIRD PARTY PROCEEDINGS?

Answer 1

• The order only applies to cases where the defendant claims to be entitled to contribution or indemnity against a third party
• Where the main action is settled, a third party proceeding still continues. However, a third-party action may be dismissed for want of prosecution even though the main action is still proceeding
• A third party, although not a defendant in the main action, may dispute the liability of the defendant in the main action to the plaintiff and the third party may also dispute its own liability to the defendant in the main action
• The third party may also undertake fourth party proceedings against any other person, including the plaintiff in the main action, where the third party may claim contribution or indemnity
• The third party may also counter-claim against the defendant in the main action at whose instance they were made a third party, but not against the plaintiff, as the third party is not a party in the main action
• A third party may, with leave of the court, appeal against a judgment for the plaintiff in the main action
• The defendant in the main action may claim over against the third party, however, doing so does not provide the defendant with a defence against the plaintiff in the main action for the plaintiff is not concerned that the defendant has a remedy
  against someone

Question 2

What are the limitations when it comes to Third Party Proceedings?

Answer 2

(i) The factors in the original suit and third-party proceeding must be related – i.e. there must be a connection of fact or subject matter between the cause of action upon which the plaintiff sues in the main action and the claim of the defendant
against the third party;
(ii) The third-party claim must not be independent from the original action – i.e. the defendant cannot claim for independent loss from the third-party that is unrelated to the plaintiff’s claim against them;
(iii) The third-party claim need not be similar in the cause of action as the main suit – e.g. the main action may be for tort and the third-party proceeding may be based in contract;
(iv) The claim for contribution and indemnity may be made against a third-party even though the precise amount of claim for which relief is sought has not been finally settled;
(v) There need not be an equivalence in the measure of damages in a third-party proceeding with the main action;
(vi) There must be an existing cause of action between the defendant and the third-party apart from the common question existing between the plaintiff and defendant in the main suit and defendant and third-party in the third-party proceeding;
(vii) If a plaintiff fails to recover damages against the defendant in the main action, the latter’s claim against the third-party will suffer the same fate. However, if the defendant settles in advance of the plaintiff’s claim in the main action, the defendant

Question 3

What is the procedure for applying for third party proceedings?

Answer 3

• They shall apply to the court for leave to issue a third-party notice, and the application shall be by way of an ex parte Chamber Summons application, supported by an Affidavit, within 14 days after the close of pleadings
• A copy of the notice shall be filed and served upon the third party, together with the plaint, having regard to the rules of service of summons
• The notice shall be in the form of Form No. 1, Appendix A and shall state the nature and grounds of the claim, and shall be filed within 14 days of service
• The third party can seek the courts leave to issue a third-party notice to any other third-party that he may deem to be responsible for the initial suit and the same rules shall apply
• The court shall not grant leave to issue a third-party notice against the government unless the court is satisfied that the government has all the information sufficient in the circumstances of the alleged liability which has arisen against it (Order
  1, Rule 16, CPR) * A third party who intends to dispute a plaintiff’s claim as against the defendant or their own liability to the defendant will
  need to enter appearance in the suit on or before the day specified in the notice (Order 1, Rule 17, CPR)

Question 4

What happens in cases of NON APPEARANCE OF THIRD PARTY?

Answer 4

• In default of entering appearance in time, the third-party shall be deemed to admit the validity of the decree obtained against the defendant, whether or not by consent, and their own liability to contribute or indemnify to the extent claimed in the third-party notice (Order 1, Rule 17, CPR)
• The third-party who is in default of entering appearance within the period fixed will, however, have a chance to apply to The court to set aside the admission of liability, showing good cause, and the court may grant leave for them to enter appearance, giving such terms as the court may deem fit
• In the case of third-party proceedings against the government, the government shall not be considered to be in default, and there will not be any admittance of validity of a decree obtained against the defendant or the government’s liability to contribute or indemnify the defendant to the extent claimed in the third-party notice
• An application by Chamber Summons served not less than 7 days before the return day may be made to court seeking an order to declare the government to be in default for not entering appearance

Question 5

How does default judgement work when it comes to Third Party Appearance?

Answer 5

• If the third party makes default in entering appearance or delivering any pleadings, and the defendant giving notice differs
  judgment by default, the defendant shall, after satisfaction of the decree against themselves, be entitled to judgment against the third party to the extent claimed in the third-party notice (Order 1, Rule 19, CPR) * The court may, upon application by the defendant, pass such judgment against the third-party before the defendant has satisfied the decree passed against them
• A defendant shall not be entitled to enter such judgment against the government without the leave of the court (Order 1, Rule 20(1), CPR) * The leave of the court may be sought by a chamber summons application to be served not less than 7 days before the return day (Order 1, Rule 20(2), CPR) * Where the plaintiff has won the case due to the third-party’s default of entering appearance, the court may either at or after trial enter judgment for the defendant giving notice as against a third party (Order 1, Rule 21(1), CPR) * However, execution of such judgment can only be after satisfaction of the decree against him, unless leave of the court is sought (Order 1, Rule 21(1), CPR)
• Where the suit is decided in favor of the plaintiff otherwise than through trial, the court may by an ex parte chamber summons application supported by an affidavit, order judgment for a defendant who has given notice against a third party at any time after satisfaction of the decree obtained against them by the plaintiff (Order 1, Rule 21(2), CPR)