In the past all the correct parties had to be included in the proceedings from the start. In the course of the trial there was no way to change the identities and the numbers of the participants. Therefore, mistakes of these kinds could turn to be fatal to the proceedings.
Nowadays, the rules have changed presenting a more flexible approach. Parties may be added after the commencement of the case as well as cease to be part of the dispute. However, it remains important that all necessary parties and no others are named in the proceedings when those are commenced. Further, it is of importance that each party be correctly named.
The failure to comply with those requirements would not be fatal to the outcome but could delay the ultimate resolution of the litigation. In turn, the delay may prejudice the resolution of the proceedings either through evidence becoming stale or lost or due to passing of limitation period.
In addition, failures of the kind are often penalised in costs. Therefore, it still remains of importance for the correct parties to be identified from the outset.
The general rule provides that the claimant may use a single claim form to start a number of claims. However, those claims need to be linked with it each other to the effect that they can be conveniently disposed of in the same proceedings. Those links include similar or connected causes of actions against the same defendant or claims arising out of the same incident.
In addition to a number of claims being started together, any number of claimants or defendants may be joined as parties. It could be that two claimants have a joint right, such as where they are joint contractors in suing another party to the contract.
The decisions relating to the joinder of the parties and the actions in the proceedings rest with the claimant whenever he or she is starting the claim. After that point through amendment the other parties could also be given an opportunity to apply to add an additional party to the proceedings.
The system provides flexibility where there may be doubt whether a contract was entered into by a claimant as an agent for another, or in the capacity of a principal. In those situations, joint claimants could sue in the alternative. Therefore, they would both be named on the claim but only one may be successful at the resolution of the dispute.
In another example, it may be convenient to join causes of action where they are simply alternative ways of formulating a single claim. In practice, examples for such alternatives are a negligence claim and breach of implied term to carry out work with reasonable skill and care. Other examples of alternative causes are negligence and occupier’s liability.
Whenever, the court is presented with a claim comprising of a number of causes of action or parties, who have been joined together, the court retains the power to separate them if it regards the joinder as inconvenient. Inconvenience could be seen because the joinder makes the claim unnecessarily complicated. Consequently, there could be concern about causing potential delays or increase of the costs in the claim. If the court is of the opinion that those would be avoided if the parties are sued separately or if the claims had been brought separately, then they could exercise the power to separate the claims.
Further, within the case management powers available to the court are the options of dealing with those issues through directing separate trials or deciding on a convenient order in which the issues are to be tried. Another more draconian means available is striking out part of the claim. However, due to the nature of the severity of that measure, it is exercised only where the circumstances in question are likely to obstruct the just disposal of the proceedings.
Within the court’s general powers exists a further power to consolidate proceedings. This involves ordering two or more separate claims to continue together with one of the claims being nominated as the lead claim.
The rule does not itself specify when it would be appropriate for the power to be used. However, it is likely to be just to make an order in accordance with the overriding objective, where the various cases have a strong link with each other. This maybe because they all involve the same allegations of negligence or breach of contract against a common defendant, or due to the claims arising out of the same incident.
When considering whether to consolidate proceedings, the court would exercise their power to do so in accordance with the need to save time and ensure the cost-efficiency of the proceedings.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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