What, if any, are the mechanisms for joining third parties to ongoing proceedings and/or consolidating two sets of proceedings?
Third parties can be joined as parties to ongoing proceedings as defendants or plaintiffs under Order I, Rule 10(2) of the Civil Procedure Code. Any party to the claim may move an application requesting the court to pass an appropriate order for adding a third party. If the third-party qualifies as a necessary or proper party, the court can accept the application and add them as a party. Alternatively, the court may pass such an order on its own volition without any party having to move such an application.
Moreover, courts have the inherent power to consolidate suits under section 151 of the Civil Procedure Code particularly where they relate to the same cause of action. The underlying rationale is to avoid multiplicity of proceedings.
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 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.
Third parties may be joined to ongoing proceedings. A defendant must issue a third party notice with the leave of the Court. However, he does not require the leave of the Court if the action was begun by writ and he issues the third party notice before serving his defence on the plaintiff.
Two or more matters may also be consolidated if the Court is satisfied that: (a) some common question of law or fact arises in both or all of them; (b) the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; and (c) for some other reason a consolidation of proceedings is desirable.
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.
The participation of third parties in ongoing proceedings is expressly regulated in the Spanish Civil Procedure Act. While proceedings remain pending, anyone who can prove a direct and legitimate interest in the case may be admitted as a claimant or defendant, especially when it comes to consumer proceedings. A request to join the ongoing proceedings does not suspend them in any way and, when admitted, there will be no retroactive action.
There is also a specific mechanism by virtue of which one of the parties may force a third party to intervene in the proceedings provided such intervention is expressly authorised an regulated under Spanish law. In this particular case, the request does suspend ongoing proceedings until the third party responds or the time limit has passed.
The joinder of ongoing proceedings is also regulated in the Spanish Civil Procedure Act. Proceedings can generally be consolidated on the grounds that the judgment to be issued in one of the proceedings may undermine the other, or that the matters at issue are connected and handling them separately may lead to contradictory decisions.
Involvement of a third party into an ongoing case differs depending on the context of the involvement. In civil cases, an intervention is one of the means to participate in an ongoing case as one of the parties. It is based on the ground that the intervention applicant has a valid legal interest to the merits of the case.
In particular, Indonesian civil procedural laws acknowledge 3 (three) forms of intervention elaborated below:
a. Voeging: voluntary intervention where the interested party has sided with either the plaintiff or the defendant
b. Tussenkomst: voluntary intervention without siding with either disputing parties, only on the ground that the party’s interests are affected
c. Vrijwaring: requested intervention by one of the disputing sides whether the plaintiff or the defendant to support their arguments.
According to Articles 279 to 282 of the Reglement op de Rechtsvordering (“RV”), intervention is petitioned by a party who claims interests to the merits of an ongoing case. The petition shall be decided through an interlocutory injunction by the presiding judge. Should the injunction approve the petition, the intervening party can then participate as the party to the dispute.
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.
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.
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, or involuntarily, as a result either of an impleader or of a notice by the party already participating in the proceedings. 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.
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.
The mechanisms for joining third parties to ongoing proceedings and/or consolidating two sets of proceedings are governed 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.
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 defendant may join a third party to proceedings if they believe (and can demonstrate) that the third party may be in some way responsible for the wrongdoing alleged in the proceedings and the defendant’s claim against the proposed third-party involves the same subject matter and similar relief as that in the main action. An application to join a third party to proceedings must be brought as early as possible in the proceedings and usually no later than the delivery of the Defence.
Proceedings may be consolidated by consent of the parties and / or Order of the Court where the parties to the various sets of proceedings (or some of them) are common and where the subject matter or issues in dispute are in some way connected.
A consolidation of different proceedings can be ordered by the court in order to simplify the proceedings.
As for the joinder for third parties, Swiss law provides for the following mechanisms:
Any person who claims to have a better right in the object of a dispute to the exclusion of the parties, may bring a claim directly against the parties in the court in which the dispute is pending (main intervention). The court may either suspend the proceedings until the case of the intervenor is finally concluded, or join the two cases.
Furthermore, any person who shows a credible legal interest in having a pending dispute decided in favor of one of the parties may intervene at any time as an accessory party and for this purpose submit to the court an intervention application (accessory intervention). The court decides on the application after hearing the parties. The intervenor may carry out any procedural acts in support of the principal party, provided they are permitted at the relevant stage of the proceedings. The intervenor may in particular make use of any offensive or defensive measures and also seek appellate remedies. The procedural acts of the intervenor must however not be contradictory to those of the party. A result that is unfavourable to the principal party is in principal also effective against the intervenor.
Eventually, a party may notify a third party of the dispute if, in the event of being unsuccessful, the party might take recourse against or be subject to recourse by a third party (third party notice; or third party action if the notifying party already makes claims against the notified party in the same proceeding).
The CPC contains provisions that allow a third party to join ongoing proceedings in the following cases:
Article 21. If the claim is filed by one person and the action submitted also corresponds to another person or persons, the defendants can request to the court that any plaintiffs not joined be notified of the suit. Those other plaintiffs must decide within a short period of time whether or not they shall join the ongoing proceeding. If they do not do so, the court decision shall affect them with no further notice.
Article 22. This allows a third party whose rights are incompatible to those of the other parties over the object of the action to join the proceeding admitting the current status of the proceeding.
Article 23. This allows a third party to join the proceeding in order to support any of the parties’ positions in the trial and it also allows the intervention of a third party that invokes an independent interest to the one alleged by the other parties.
Exceptionally, Chilean law establishes certain cases where a defendant can force a third party to take part in a proceeding, such as the following cases: (i) the purchaser of an estate being sued by a third party who claims rights over that estate, may legally summon the seller to defend it in the proceeding (article 1843 of the Civil Code); and (ii) a guarantor can request that the plaintiff has to sue the main debtor in the first place (article 2357 of the Civil Code).
As for the consolidation of two sets of proceedings, Article 92 of the CPC allows the joinder of proceedings, only if the following requirements are fulfilled: (i) there are closely connected claims based on identical legal actions, or when the proceedings arose from the same facts; (ii) there are closely connected claims based on a similar subject matter between the same parties, notwithstanding the fact that the legal actions are not identical; or (iii) in general, whenever the sentence that should be issued entitles to file res judicata as a defence in another proceeding.
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.
In general, parties who have certain interests in the outcome of a suit may join the ongoing proceeding to assist one party or as an independent party (CCP, Articles 42 and 47). The Companies Act permits a company to join derivative lawsuits to assist its directors, under certain conditions (e.g., approval of all auditors in the case of a company with auditor). The parties may ask the court to consolidate the two set of proceedings; however, any decision to allow or reject the consolidation is at the court’s sole discretion.
The procedures to add third parties to ongoing proceedings or to consolidate two sets of proceedings are outlined in the Civil Procedure Rules. Court approval is generally required (although Part 20 Defendants can be added without permission at the time of filing the Defence). To add parties to an ongoing trial, the court must find that it is ‘desirable’ to add the new party to resolve the matter. The test for joint claimants are that the claims can be ‘conveniently’ disposed of in the same proceedings. For a group litigation order to be made, the issues must be common or related.
It is possible for each of the parties to bring claims against third parties during the proceedings. It is a requirement that the court has jurisdiction for all the claims in Denmark and that the same procedural rules applies.
Additionally, third parties can intervene. This is possible if the third party files a writ of summons, the third party's plea must have such a connection with the case that it should be dealt with in the case and if there is the necessary jurisdiction. The court can reject the third party's claim, if the parties request it and the court finds that the requirements are not met
Joinder of third parties to ongoing proceedings may result from:
- a ‘voluntary intervention’ requested by the third party. The voluntary intervention is considered as ‘principal’ when the third party makes a claim; it is ‘ancillary’ when the third party merely endorses another party’s claim. The voluntary intervention must be requested by way of submissions before the court;
- a ‘forced intervention’ requested by the parties to the ongoing proceedings. The forced intervention allows the parties to make claims against a third party which was not initially party to the proceedings. The forced intervention must take the form of a writ of summons against the third party.
A court may, of its own accord or at the parties’ request, consolidate two sets of pending proceedings, provided that there is a link between the disputes and that it is in the interest of a proper administration of justice.
Besides, European and French rules apply where several courts are seized of the same or related dispute(s). When the same dispute is pending before two different courts (lis pendens):
- if both courts are in France, the second court seized must, of its own motion or at the request of a party, decline jurisdiction;
- if both courts are in the European Union, the second court seized must, of its own motion, stay its proceedings until the first seized court has decided whether it has jurisdiction.
Where two related disputes are pending before two different courts:
- if both courts are in France, a court may, upon request of a party, decide to decline jurisdiction in favour of the other court;
- if both courts are in the EU, the second court seized may stay its proceedings.
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 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].