What, if any, are the mechanism for joining third parties to ongoing proceedings and/or consolidating two sets of proceedings in your jurisdiction?
Litigation (2nd edition)
Third-party intervention is possible, if the third party has a legal interest in the success of the joined party. In order to join a proceeding, the third party may file an application for joinder on its own initiative or it may be formally invited to join by one of the main parties of the proceeding. A joinder needs to be approved by the court. The parties may request that a joinder is dismissed, but the court can nevertheless approve the joinder against the parties’ will. A joinder is possible at any stage of a proceeding until a final judgment is rendered.
Austrian law distinguishes between two kinds of third-party intervention. If a third party has a mere legal interest in the outcome of a proceeding, the joining party’s role is limited to assisting the joined party and it does not have the same procedural rights as the main party. If the prospective judgment will have a direct effect on the third party, the third party and the joined party are treated equally and have the same legal position.
Consolidation of two (or more) proceedings pending before the same court and involving the same parties is possible for cost and time saving reasons. A courts’ decision to consolidate proceedings cannot be appealed by the parties and may be revoked by the court at any time. Despite the consolidation, a final judgment may be announced separately for each of the proceedings once it is ripe for decision. Otherwise, a joint judgment is rendered.
Generally, a class action system does not exist in Japan.
However, the “Act on Special Measures Concerning Civil Court Proceedings for the Collective Redress for Property Damage Incurred by Consumers”, which is often referred to as Japan’s version of class action, was passed in 2013 and came into force in 2016.
Under that law, a “Specified Qualified Consumer Organization” files a lawsuit asking for the confirmation of common obligations, which are obligations of companies to pay money to consumers based on factual and legal causes common to a group of consumers. If the court confirms the common obligations, then consumers can essentially “join” the procedure by delegating authority to the Specified Qualified Consumer Organization to file proof of their claims in court. That law only applies to certain types of contracts between a consumer and a company, and the types of damages that can be recovered are limited.
Joining third parties must be allowed by the Court by judgement. A third party may however willingly intervene in a pending court case. Consolidation of separate proceedings may only be ordered by judgement and usually only occurs in the final judgement if requested by the parties or if the Court deems this is in the best interest of justice.
According to Article 56 of the CPL, where a third party has independent right of claim to the subject matter of a litigation, the third party has the right to intervene the litigation. Independent right of claim means third parties with this right are at liberty participate in the litigation proceedings or not. They are more like the plaintiff in litigation. Where a third party does not have independent right of claim to the subject matter of the litigation but has a legal interest in the outcome of the case, it may apply to participate in the litigation, or the court may notify this third party to participate.
Third parties may join the ongoing proceedings as long as they have an interest in the case. The third party may intervene for himself, when he claims the same rights as the claimant in the first place, or he can support another party’s defence, this intervention being ancillary to the main proceedings.
The intervention must respect the formalities required when submitting a claim and can be submitted only in front of the first instance court or in front of the appeal court only with the approval of the parties.
Two proceedings may be reunited into one, in the interest of justice, when they both involve at least one of the parties and theirs object and cause are linked.
The court may, at any stage of the proceedings, either on the application of the plaintiff or the defendant or of its own motion, order that any parties who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the proceedings, be added as parties.
Furthermore, a defendant who claims as against any person not already a party to the proceedings (a"third party" ) (a) that he/she is entitled to contribution or indemnity, or (b) that he/she is entitled to any relief or remedy relating to or connected with the subject matter of the proceedings and substantially the same as some relief or remedy claimed by the plaintiff, or (c) that any question or issue relating to or connected with the subject matter of the should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, may apply to the court for permission to issue and serve a "third-party notice" . If such permission is granted, the third party becomes a party to the proceedings upon being served with the “third-party notice”.
Where two or more sets of proceedings pending in the same court involve a common question of law or fact the proceedings may be consolidated if the court is satisfied that the common questions of law or fact are of such importance in proportion to the rest of the matters involved in the proceedings as to render it desirable that the proceedings should be consolidated. Where proceedings are consolidated, the court usually directs that the plaintiff or plaintiffs who first commenced proceedings shall have the conduct of the consolidated action.
If certain requirements are fulfilled, the plaintiff may make more than one claim against the defendant in one action, and the defendant may submit counterclaims. In addition, more than one party may sue or be sued in one action, and each of the parties may add claims against third parties to the proceedings. The requirements of such consolidations are mainly that the court has jurisdiction, that all claims should be heard under the same procedural rules, and that none of the parties object or – in the event that a party objects – that the claims are sufficiently connected.
A third party may, by filing a writ of summons, join a first instance case as a party. The requirements of such intervention are mainly that the court has jurisdiction, all claims are heard under the same procedural rules, and the third party intends to make a counterclaim in respect of the subject-matter of the proceedings, or the third party’s claim is sufficiently connected with the original claim. Furthermore, a third party having a legal interest in the outcome of an action may join the proceedings in support of one of the parties.
A third party may join the procedures based on the request of the parties and the court, in accordance with the usual proceeding to filing a case. Pursuant to Egyptian law, parties may consolidate two sets of proceedings if the parties, object and the cause of action are the same.
Third parties may be joined to the case on the court’s initiative, at the request of the parties or their own application. The criteria for joining third parties is that the outcome of the case may affect their rights and obligations. Also, a third party may intervene into the proceedings by filing its separate claim if it relates to the subject matter of the case.
Two or more sets of proceedings may be consolidated if the court finds this appropriate in case the parties and/or claims within the disputes coincide. The decisive factor for the court is to exclude the risk of conflicting judgements.
Third parties can be joined by the plaintiff in its complaint, or by the defendant in its answer. Usually, third parties are called to join for the specific purpose of making them part of the final judgment in order to avoid further litigation against such third party. Additionally, third parties can appear by their own right in support of one of the parties, for the determination of a paramount title or right, or even in opposition to both parties.
Now, consolidation of actions takes place in the following cases:
i) identity of the parties and actions,
ii) identity of parties and “things”,
iii) actions that arise from the same cause,
iv) identity of actions and “things”. Consolidation always aims to avoid having two contradictory judgements, and that is standard followed prior to ordering the unification of cases. In case consolidation occurs, each case is tried separately by the same Judge, but only one final judgment is delivered.
Parties may join ongoing litigation mainly in two ways:
- Third-party intervention (Nebenintervention) in support of a party to the dispute pursuant to sec. 66 ZPO, allows a party who has a legitimate interest to the proceedings to join the proceedings.
- A party may also file a third-party notice (Streitverkündung) to a third party if the party believes that it will be able to assert a warranty claim or a claim of indemnification against that third party in the event the legal dispute’s outcome is not in its favour. Similarly, a party concerned that such a claim may be brought against it by a third party may also file third-party notice to that third party.
Alternatively, a plaintiff can also sue two or more defendants on the basis of the same complaint, thereby joining two procedural matters in the same proceedings. The court may separate the proceedings pursuant to sec. 145 ZPO if this is required to promote the efficiency of the proceedings.
Finally, a consolidation of proceedings may also be directed by the court on the basis of sec. 147 ZPO if the claims asserted by the respective plaintiffs are legally closely connected or could have been brought in one single complaint.
The mechanisms for joining third parties to ongoing proceedings and/or consolidating two sets of proceedings are provided by the Rules of the High Court (Cap. 4A).
With respect to joining third parties to ongoing proceedings, two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the court or where:
- some common question of law or fact would arise in all the actions (if separate actions were brought by or against each of them); and
- all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of (or arise out of) the same transaction (or series of transactions).
Similar principles apply under the court’s consolidation mechanism. The court may, on such terms as it thinks just, order two or more proceedings to be consolidated where:
- some common question of law or fact arises in both or all of the proceedings;
- the rights to relief claimed in such proceedings are in respect of (or arise out of) the same transaction (or series of transactions); or
- for some other reason it is desirable to consolidate the proceedings.
Rule 37 of the RCCR enables the court to order a party to be joined to ongoing proceedings. The court will consider whether it is just and convenient to do so for the purposes of determining an issue.
The court can order for the consolidation (crochetées) of actions under Rule 31 of the RCCR. Alternatively, the court can order for one set of proceedings to be joined if there is a common question of law or fact, or where the relief claimed in each case arises from the same transaction, or for any other reason desirable to the court.
The Code under Order I Rule 8A provides for the power of the court to permit a person or body of persons to present opinion or to take part in the proceedings if the court is satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in public interest to allow that person or body of persons to present his or its opinion on that question of law.
Even though there is no specific provision for consolidation of suits under the Code, the Supreme Court has, in Chitivalasa Jute Mills vs. Jaypee Rewa Cement [AIR 2004 SC 1687], stayed a suit filed later in point of time under Section 10 of the Code when the issues in two different suits were not only directly and substantially the same but also between the same parties. .
On the other hand, there are no provisions for joining third parties or consolidating two proceedings in arbitrations. However, the Supreme Court has ruled held that the benefit of a single/joint arbitration may be granted in transactions of composite nature to avoid injustice, multiplicity of proceedings and conflicting decisions [P.R Shah, Shares and Stock Brokers Private Limited v. B.H.H Securities Private Limited (2012) 1 SCC 594; Chloro Controls India (P) Ltd. v. Severn Trent Water Purification Inc. (2013) 1 SCC 641].
Isle of Man
Under rule 6.49 a defendant who wishes to counterclaim against a person other than the claimant must apply to the court for an order that that person be added as defendant to counterclaim.
Rule 6.51 applies to other additional claims including in effect “third parties” in the language of the old rules. A defendant may make an additional claim (a) without the court’s permission if the additional claim is issued before or at the same time as he files his defence; (b) at any other time with the court’s permission and such application may be made without notice unless the court directs otherwise. The application must be supported by relevant evidence.
The court has very wide case management powers including under rule 7.2(2)(g) the specific and express power to consolidate proceedings and under (h) to try 2 or more claims on the same occasion.
If authorized by the Judge, any party can bring action against a third party in pending proceedings, to the extent that such party has a legal position that is objectively connected to the matter under discussion, or the legal position of such party is connected to the pending proceedings, being a decision on such concern either preliminary or subsequent to the decision of such proceedings.
Any party that has a legal position that is objectively connected to proceedings pending between third parties or depending on the cause of action brought in such proceedings can intervene in it on its own motion so that such legal position is enforced against those third parties.
Any party having a legal interest in the outcome of proceedings pending between third parties can voluntarily intervene, to support the position of one of them.
Should the Judge consider appropriate that pending proceedings involve also a third party bearing a legal position connected to the matter under discussion, he can order such party to intervene.
Consolidation of different proceedings is possible when proceedings on the same cause of action have been lodged separately or when the matters discussed in the separate proceedings are connected.
A party may file a third-party complaint against a third person for contribution, indemnity, subrogation or any other relief with respect to the other party’s claim. The third party will be impleaded in the proceeding upon approval of the court.
At its own initiative, a court may also order that a party be joined as a defendant if the presence of such party is required for the grant of complete relief in a counterclaim or cross-claim.
Upon motion or at the court’s initiative, two proceedings involving a common question of law or fact may be consolidated or jointly heard.
The Portuguese Civil Procedural Code foresees mechanisms – incidents – for third parties to join ongoing proceedings on the side of the plaintiff or the defendant, when certain criteria are met and accepted by the court.
If 2 or more sets of proceedings, even if they are running in different courts, connect in relation to the parties or the matter to be analysed and therefore could be ruled on as if they were one, any of the parties can request their consolidation.
Third parties can be joined to ongoing proceedings in two ways: the first one is joining a third party to one of the parties to the proceedings on application of the plaintiff. That third party joins the plaintiff or defendant and has all the rights and duties arising out of that position.
The second one is intervention of an intervenor. An intervenor is a person who participates in the proceedings alongside the plaintiff or defendant and has a legal interest – arising out of substantive law – in the result of the proceedings. However, when an intervenor joins the proceedings, the legal liability of the defendant does not pass onto the intervenor and the intervenor also does not share legal liability with the defendant.
The intervenor’s legal interest consists in the following: the losing party in the proceedings may usually initiate a so-called regress claim against the intervenor, arising out of substantive law (which happens most frequently in liability insurance cases).
Intervention is excluded in non-contentious proceedings (Art. 11 of RCNP).
Two sets of proceedings may be consolidated under RCCP. The court consolidates proceedings that are factually related or related to the same parties. However, the court may consolidate only the proceedings that have commenced before the same court. If the proceedings were given to several judges of the same court, the judge that commenced the proceedings earlier should decide on the consolidation.
A party to proceedings may file a motion for consolidation; however, the court will decide on the consolidation also without such a motion of a party to proceedings.
RCNP explicitly excludes consolidation of two sets of proceedings.
If a person not party to the proceedings requests joint adjudication upon instituting an action, which concerns the same matter at issue, against one or both parties, the cases may be joined in one proceeding.
If a party, in the event that it loses the case, wishes to present a claim for damages, or a similar claim against a third party, such party may institute proceedings against the third party for joint adjudication with the main claim. Moreover, if a third party, by reason of the potential outcome of a pending case, wishes to institute proceedings of the kind stated in the first paragraph against one or both of the parties, such third party may institute this action for joint adjudication with the main claim.
Claims between the same or different parties may also be joined in one proceeding in situations other than those described above if the joinder benefits the examination of the claims.
The Code of Judicial Procedure also contains provision regarding third-party intervention in specific cases; however, these are rarely used.
The procedures for adding third parties to ongoing proceedings or for consolidating two sets of proceedings are outlined in the CPRs. The court’s permission is usually required for joining new parties to ongoing proceedings (although a defendants can issue a claim against a third party without the court’s permission if that claim is issued before they file their defence). In deciding whether additional parties should be added to ongoing proceedings, the court will consider whether it is ‘desirable’ to add the new party to resolve the matter. A court may order closely connected claims to be consolidated. Consolidation will be ordered only where there is a strong overlap of issues of fact or law, or where there is a risk of irreconcilable judgments.
Third party has the right to join or be joined in ongoing proceedings by submitting a joinder memorandum and paying the applicable fees. The court may at its discretion join third party in cases of fraud.
Consolidation of cases is permissible when the cases are linked or for good procedural conduct.
The law provides for voluntary and compulsory intervention of third parties. Hence, whenever a third party does not originally appear as a party of the process, it can perfectly become a party in the proceedings through any of the two mechanisms mentioned above. Moreover, courts may consolidate matters that were originally brought as independent cases provided that their connection is well-evidenced.
The involvement of a third party into an ongoing case differs depending on the context of the third party’s involvement. In a civil case, an intervention is one of the means for a third party to participate in an ongoing case as one of the parties. This is based on the ground that the intervention applicant has a valid legal interest to the merits of the case.
In particular, the Indonesian civil procedural law acknowledges 3 forms of intervention
a. Voeging: a voluntary intervention where the interested party has sided with either the plaintiff or the defendant;
b. Tussenkomst: a voluntary intervention without siding with either of the disputing parties and internvetion is based only on the ground that the third party’s interests are affected; and
c. Vrijwaring: a requested intervention by one of the disputing parties to support their arguments.
According to Articles 279 to 282 of the Reglement op de Rechtsvordering (“RV”), an intervention is petitioned by a party who claims to have an interest in the merits of an ongoing case. The petition will be decided through an interlocutory injunction by the presiding judge. If the injunction approves the petition, the intervening party can then participate as a party to the dispute.
A third party may be joined to an ongoing proceedings vide Order 15 Rule 4 and Order 15 Rule 6 of the ROC.
Order 15 Rule 4 provides that two or more persons may be joined together in one action as Plaintiffs or as Defendants with the leave of the court except when the following two conditions are met, a leave of court is exempted:-
- If separate actions were brought, a common question of law or fact would arise in all the actions, and
- The claims arise out of the same transaction or series of transactions.
Besides, under Order 15 Rule 6, the Court may also on its motion or on application, order any of the following persons to be added as a party to an ongoing proceedings:-
- Any person who ought to have been joined as a party or whose presence before the Court is necessary in order to ensure that all matters in may be effectually and completely determined and adjudicated upon; or
- Any person between whom and any party to the cause or matter there may exist a question or issue arising out of any relief claimed in the cause or matter which, the Court is of the view that it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.
Consolidation of two separate proceedings is also available under Order 4 Rule 1 of the ROC. The Court is empowered to grant a consolidation order of causes or matters when the Court is satisfied that it will be just to do so as long as any of the requirements below is fulfilled:-
- There is common question of law or fact;
- The rights to relief are in arising out of the same transactions or series of transactions; or
- For some other reasons consolidation is desirable.
Chilean legislation admits the appearance of "third parties" to processes that are already initiated, as long as they have a current interest in the results of the trial. Also, a defendant can force other plaintiffs to join. What it is not allowed is that a defendant forces another defendant, or a plaintiff forces another plaintiff to appear in court.
It is also possible that two procedures that are being processed independently can constitute a single trial (similar to consolidation) and end with a single judgement. It's called "accumulation" In order for this accumulation to proceed, certain requirements (same parties, similar claims, etc.) must be met.
Any person who shows to the satisfaction of the court that he is interested in any suit already pending between other parties, may, on an application, be admitted in statu et terminis as a party to the suit at any stage thereof, whether in first or in second instance; but such admission shall not suspend the proceedings of the suit.
A third party may also, by decree of the court, at any stage of the proceedings before the judgment, be joined in any suit pending between other parties in a court of first instance, whether upon the demand of either of such parties, or without any such demand. The third party joined in the suit shall be served with the application, whether sworn or not, and shall for all purposes be considered as a defendant; and as such he shall be entitled to file any written pleading, raise any plea and avail himself of any other benefit which the law allows to a defendant; and the claim may, according to circumstances, be allowed or disallowed in his regard, as if he were an original defendant.
In regards to the consolidation of proceedings by the court, the CCP provides for the possibility of the court to order the joinder of separately filed actions in order to simplify the proceedings. Such court-ordered joinder is generally only permissible if both actions are within the scope of the court's subject matter jurisdiction and if the actions are to be handled in the same type of procedure. If the cases are factually connected but pending before different courts, the court subsequently seized may transfer the case to the court seized first if the latter agrees to take over the case. The court taking over the case may then order the joinder of the actions. It is disputed among Swiss scholars whether such transfer of actions is also permissible in cases where the court that will take over the case would normally have no territorial jurisdiction over the case.
With regard to the mechanisms for joining third parties to ongoing proceedings, the following instruments exist:
A person claiming to have a better right in the object of a pending dispute between litigating third parties may bring a claim directly against the litigating third parties in the court in which the dispute is pending (so-called ‘principal intervention’). The court may then either suspend the proceedings until the case of the principal intervenor is finally adjudicated or join the two cases.
Moreover, any person who shows a credible legal interest in having a pending dispute decided in favour of one of the litigating third parties may submit an intervention application to the court in order to intervene as an accessory party in support of the party it would like to prevail in the on-going proceedings (so-called ‘accessory intervention’). Upon receipt of an intervention application, the court will grant the litigating third parties the possibility to comment on the application and will allow the accessory intervention if the intervening party can credibly argue a sufficient legal interest for the intervention. Such interest may for example be affirmed if the intervening party is subject to redress by the one litigating third party it intends to support should such party lose the case. The intervenor is limited to procedural acts in support of the one litigating third party it wishes to support; procedural acts of the intervenor that would be detrimental to such party would be disregarded by the court. Moreover, the intervenor may only carry out procedural acts that are still permitted in the actual stage of the proceedings. If the one litigating third party in support of which the intervention is made loses the case notwithstanding the support of the intervenor, the intervention will deploy its effects in case of future proceedings between the former intervenor and the formerly supported litigating third party (so-called ‘intervention effect’): unfavorable results of the former main proceedings are also effective against the former intervenor unless it was prevented by the acts or omissions of the supported litigating third party party to make use of offensive or defensive measures or if the supported litigating third party has failed wilfully or through gross negligence to make use of offensive or defensive measures of which the intervenor was not aware.
Pursuant to the case law of the Swiss Federal Tribunal, although not expressly provided in the CCP, another type of intervention is permissible if the main dispute will result in a judgment that directly affects the legal position of the intervenor. In this case, the intervention primarily serves to preserve the intervenor's right to be heard and the intervenor is therefore not limited to procedural acts in support of the litigating third party.
Furthermore, a party to ongoing court proceedings may notify a third party of the dispute if in case of being unsuccessful it intends to take redress against that third party or is subject to re-dress of that third party (so-called third party notification). The third party may then (i) intervene in the main proceedings by way of accessory intervention without having to prove an additional legal interest other than the third party notification it received, or (ii) proceed in place of the notifying party if the latter consents thereto, or (iii) remain passive and await the result of the main proceedings without participating. In any event, in case the judgment of the main proceedings is detrimental to the notifying party, such judgment would deploy the intervention effect (described above) in future proceedings between the notifying party and the notified party.
As an alternative to a simple third party notification, the notifying party may also file a so-called third party action. In this case, the notifying party directly files the claims to which it would be en-titled if it loses the main proceedings with the court that is dealing with the main action.
Third parties can intervene in a trial, to which they were not initially parties, in order to protect their interests either voluntarily, in case of a voluntary intervention (in which case the motion to join the proceedings should be filed and served in the context of the ordinary procedure within 60 days from the filing date of the main legal action), or involuntarily, as a result either of an impleader or of a notice by the party already participating in the proceedings (in which case the motion to join the proceedings should be filed and served in the context of the ordinary procedure within 90 days from the filing date of the main legal action). A third party can intervene either in order to invoke his own right claiming the object of the dispute for himself (principal intervention) or in order to support one of the main litigant parties (accessory intervention). A principal intervener is entitled to intervene at the first instance whereas an accessory intervener at every stage of the proceedings until the issuance of a decision which cannot be anymore subject to cassation.
As regards the consolidation of claims, the plaintiff can consolidate more claims in one action against the same defendant pursuant to article 218 GCCP, if the claims are not contradictory or incompatible (with the exception of subsidiary structure of the claims), belong a) (in total) to the subject matter competence of the court where they are submitted, b) to the territorial competence of the same court, are to be examined following the same proceedings and no inconvenience is caused.
Both the plaintiff and the defendant can bring new claims or claims against a third party during the proceedings. A requirement is that the court has jurisdiction for all the claims and that the same procedural rules apply. However, if this is to be done within 14 days of the commencement of the main hearing, stricter rules apply. Then either the other party must agree, or the court must give its consent.
Third parties can also intervene if Norwegian courts has jurisdiction and the third party has a separate claim regarding the subject matter of the case or that it is so closely linked with the subject matter that it should be dealt with in the same case. Additionally, third parties with a legal interest can intervene in favour of one of the parties without formally becoming a party if certain conditions are met.
The procedural rules applicable in Luxembourg effectively provide for the possibility for a third party to join an ongoing procedure.
There are two types of interventions:
- voluntary intervention
- forced intervention
Voluntary intervention is the act by which an interested third party requests to be admitted to the proceedings. Voluntary intervention is carried out by an act of lawyer to lawyer or by an oral statement in the context of an oral procedure. It does not require a bailiff's act.
This procedure is only admissible from those who could have formed a third party opposition against the decision. The intervener must be a third party and must have a legitimate interest to justify its participation in the proceedings.
Concerning forced intervention, this is the case where one of the parties to the proceedings forces a third party to enter the proceedings. To be admissible, the forced intervention must take the form of a real summons.
The forced intervention can only be directed against a third party to whom it is in the interest of opposing the judgment and who could have made a third party-opposition against the decision to be taken.
In federal court, third parties can join an ongoing proceeding as plaintiffs so long as (1) they assert any right to relief with respect to or arising out of the same transaction, and (2) any question of law or fact common to all plaintiffs will arise in the action. There are similar requirements for joining third parties as defendants. In some circumstances, the court may order that a third party must be joined either as a plaintiff or a defendant.
Federal court proceedings may be consolidated if they involve a common question of law or fact. If the cases are pending in multiple federal districts, a judicial panel will decide whether the actions should be consolidated for pre-trial proceedings and the jurisdiction in which the cases should be consolidated. After consolidated pre-trial proceedings, the presiding judge will remand each case to its originating district for trial, unless otherwise dismissed.
Generally, state jurisdictions have similar mechanisms for joinder of parties and case consolidation.
A third party directly affected by the proceedings, or a third party whose interests are affected upon prevailing of one of the disputing parties may join the proceedings either at the first instance or appeal stages by filing a joinder petition with the court prior to the conclusion of the proceedings. Usually, joinder petitions are submitted prior to the end of the last hearing session in the Court of First Instance or conclusion of the court’s review in the appeal stage.
If two claims are considered sufficiently related to each other, the proceedings may be consolidated by judicial authority in the relevant courthouse in charge of referring cases to court branches.
In addition, in the event of a counterclaim, a joinder or summoning of third parties to the proceedings, a consolidation occurs by default since these claims are related to the main claim or have the same cause of action.
By impleader a third party can be involuntarily summoned by one of the parties in a separate third-party proceedings which is dealt with concurrently with the ongoing proceedings.
A third party who has an interest in the ongoing proceedings may apply for permission to join the lawsuit or to intervene in it. In a joinder, the interested third party supports the position of one of the parties. In the case of an intervention, the interested third party takes up its own position in respect of both the claimant and the defendant.
Proceedings between the same parties can be joined (consolidated) if they are about the same subject matter. The same applies in the event of a close connection between proceedings, whether or not the same parties are involved. For consolidation, the proceedings need to be pending before the same court. If different courts are involved, the case may be referred to the other court. Such request for reference may be succeeded by a request for consolidation.
As a general rule, a third party damaged by court orders may intervene in all proceedings, including enforcements. The motion to join the proceedings will be heard and ruled on by the judge presiding the case. Third-party motions to join may be filed during the trial phase and/or enforcement.
When filing his motion to join, a third party must state all evidentiary means he will use to justify his intervention in the proceedings.
In Ecuador, joinders are possible in the following cases:
a) When the judgment to be issued in one process may give rise to a res iudicata defense in another;
b) When there is a pending process on the same matter that is the subject of another process subsequently filed;
c) When processes filed separately have identical persons, things, and actions.
For proceedings to be joined, the following requirements must be met:
a) That the judge seeking to join the different proceedings have jurisdiction to hear all of them;
b) That all proceedings be subject to the same procedure or that the parties agree to be bound by the same procedure;
c) That the proceedings to be joined not be pending before different-level courts.
The motion to join cases is ruled upon at the preliminary hearing.
Pursuant to the provisions of the Civil Procedures Law, a plaintiff may request to join to the case a third party which could have been included in the claim at the time of filing it.
A defendant may also request the court to join another party, if he claims that the said joined party has an obligation with regards to the claim.
In addition, any party with an interest may intervene in the action, joining one of the adversaries or seeking judgement for himself with a request linked with the action. However, no intervention is admissible after the court closes or ceases hearing arguments (when the case is adjourned for judgment).
The court may also at its own discretion order to join a third party to a claim for the interests of justice or to reveal the truth.
Third party’s participation at the procedure depends on whether they have an individual claim addressed to one of the parties to a litigation. Third parties who have an individual claim can engage in litigation by filing a claim before the court decides on the distribution of the burden of proof. The third parties that do not have an individual claim, on the other hand, may be brought at the side of either the plaintiff or the defendant before the end of the trial, and in some cases even until the judgment is announced, if their rights or obligations are affected by the judgment or the latter may result in creating rights and obligations for them. They are involved in the proceedings either at their own or the court’s initiative or by the motion of one of the parties.
The court shall have the right to consolidate several similar cases before the burden of proof is distributed if the parties to the dispute fully or partially coincide, if there is a mutual connection between the cases and if their joint trial may ensure the fastest and most effective solution of the dispute.