What, if any, are the mechanisms for joining third parties to ongoing proceedings and/or consolidating two sets of proceedings?
Litigation & Dispute Resolution
Anyone who can make it probable to the court that a dispute matter at issue has an impact on his or her legal rights or obligations may intervene in a court proceeding.
The rules on consolidation are complex and there are several ways in which two or more court proceedings can be consolidated, some of which are mandatory. Mandatory consolidations are normally applied if the same claimant initiates more than one court proceeding against the same defendant or if one or more claimants initiate proceedings against one or more defendants, if, under all these circumstances, the claims are based on essentially the same legal ground (e.g. the same contract or negligent act). The most common reason for consolidation in other situations is that a consolidation would benefit the handling of the court proceedings, but this type of consolidation is not mandatory. Court proceedings may also be separated for the same reason at a later stage.
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.
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.
It is possible to implead defendants, or for parties with an interest to ask to be joined to the proceedings, but both procedures are rare in practice. As a general rule, commercial cases tend to be between one claimant and one defendant. Consolidation of proceedings is generally not possible.
Third parties can join to ongoing proceedings, typically if the third party intends to submit an independent request for relief concerning the subject matter of the dispute in the action, or to submit a claim that is so closely connected to the original claim that it ought to be heard in the action (for instance a recourse claim). A third party with a legal interest in one of the parties winning the case, may also on his or her own account join the proceedings by declaring third party intervention in support of one of the parties, without becoming a formal party. Proceedings that raise similar issues and that shall be heard by a court with the same composition and principally pursuant to the same procedural rules, may be consolidated for joint hearing and joint ruling. Cases can also be transferred from one court to another court at the same level if this is considered necessary or convenient.
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.
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.