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Rules of the Superior Courts

Order: 16

Third-party procedure

1. (1) Where in any action a defendant claims as against any person not already a party to the action (in this Order called "the third-party") -
      (a) that he is entitled to contribution or indemnity, or

      (b) that he is entitled to any relief or remedy relating to or connected with the original subject matter of the action 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 said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the third-party or between any or either of them, the Court may give leave to the defendant to issue and serve a third-party notice and may, at the same time, if it shall appear desirable to do so, give the third party liberty to appear at the trial and take such part therein as may be just, and generally give such directions as to the Court shall appear proper for having any question or the rights or liabilities of the parties most conveniently determined and enforced and as to the mode and extent in or to which the third-party shall be bound or made liable by the decision or judgement in the action.

(2) The application for such leave shall be made by motion on notice to the plaintiff. Unless the plaintiff wishes to add the third party as a defendant, his attendance at the hearing of the motion shall not be necessary. If he does attend, he shall not be entitled to costs except by special direction of the Court.

(3) Application for leave to issue the third-party notice shall, unless otherwise ordered by the Court, be made within twenty-eight days from the time limited for delivering the defence or, where the application is made by the defendant to a counterclaim, the reply.

2. (1) The third-party notice shall state the nature and grounds of the claim or the nature of the question or issue sought to be determined and the nature and extent of any relief or remedy claimed and any directions of the Court given under rule 1 (1) hereof. It shall be in accordance with the Form No. 1 or the Form No. 2 in Appendix C, and shall be sealed, and served on the third-party, and a copy thereof filed with the proper officer in the same manner as in the case of an originating summons.

(2) The notice shall, unless otherwise ordered by the Court, be served within twenty-eight days from the making of the order, and with it there shall be served a copy of the originating summons and of any pleadings delivered in the action.

3. The third-party shall, as from the time of the service upon him of the notice, be a party to the action with the same rights in respect of defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

4. (1) The third-party may enter an appearance in the action within eight days from service or within such further time as may be directed by the Court and specified in the notice: Provided that the third-party failing to appear within such time may apply to the Court for leave to appear, and such leave may be given upon such terms, if any, as the Court may think fit. The memorandum of appearance shall be in the Form No. 3 in Appendix A, Part II.

(2) Where a third party has entered an appearance and has requested a statement of claim, the defendant shall deliver a statement of claim to the third party within twenty-one days from the entry of appearance.

(3) Where a third-party has entered an appearance he shall deliver his defence—

      (a) in case he has not by notice requested a statement of claim, within twenty-eight days from the entry of appearance;

      or

      (b) in case he has requested a statement of claim, within twenty-eight days from the date of delivery of the statement of claim.

5. If a third-party duly served with a third-party notice does not enter an appearance or makes default in delivering any pleading which he has been ordered or is bound to deliver, he shall be deemed to admit the validity of and shall be bound by any judgement given in the action, whether by consent or otherwise, and by any decision therein on any question specified in the notice; and when contribution or indemnity or other relief or remedy is claimed against him in the notice, he shall be deemed to admit his liability in respect of such contribution or indemnity or other relief or remedy.

6. Where a third-party makes default in entering an appearance or delivering any pleading which he has been ordered or is bound to deliver and the defendant giving the notice suffers judgement by default, such defendant shall be entitled at any time, after satisfaction of the judgement against himself, or before such satisfaction by leave of the Court, to enter judgement against the third-party to the extent of any contribution or indemnity claimed in the third-party notice, or, by leave of the Court, to enter such judgement in respect of any other relief or remedy claimed as the Court shall direct: provided that it shall be lawful for the Court to set aside or vary such judgement against the third-party upon such terms as may seem just.

7. After the third-party enters an appearance, and before the expiration of the time limited for delivery of defence, he may, after serving notice of the intended application upon the plaintiff and all defendants, apply to the Court to vary any directions given by the Court under sub rule (1) of rule 1 of this Order.

8. (1) After the third-party has delivered his defence, the defendant giving notice may, after serving notice of the intended application upon the plaintiff, the third-party and any other defendant, apply to the Court for directions and the Court may—

      (a) where the liability of the third-party to the defendant giving the notice is established on the hearing of the application, order such judgement as the nature of the case may require to be entered against the third-party in favour of the defendant giving the notice, or

      (b) if satisfied that there is a question or issue proper to be tried as between the plaintiff and the defendant and the third-party or between any or either of them as to the liability of the defendant to the plaintiff or as to the liability of the third-party to make any contribution or indemnity claimed in whole or in part, or as to any other relief or remedy claimed in the notice by the defendant, or that a question or issue stated in the notice should be determined not only as between the plaintiff and the defendant but as between the plaintiff, the defendant and the third-party or any or either of them, thereupon try such question or issue or order it to be tried in such manner as the Court may direct, or

      (c) If it shall appear desirable to do so, give the third party liberty to defend the action, either alone or jointly with the original defendant, upon such terms as may be just, or

      (d) dismiss the application.

(2) Any directions given pursuant to this rule may be given either before or after any judgement has been obtained by the plaintiff against the defendant in the action, and may be varied from time to time or rescinded.

(3) The third-party proceedings may at any time be set aside by the Court.

9. (1) Where the action is tried, the Court which tries the action may, at or after the trial, give such judgement as the nature of the case may require for or against the defendant giving the notice against or for the third-party, and may grant to the defendant or to the third-party any relief or remedy which might properly have been granted if the third-party had been made a defendant to an action duly instituted against him by the defendant: provided that execution shall not be issued against the third-party without leave of the Court until after satisfaction by the defendant of any judgement against him.

(2) Where the action is decided otherwise than by trial, the Court may, on application therefor, make such order as the nature of the case may require, and, where the plaintiff has recovered judgement against the defendant, may order such judgement as may be just to be entered for or against the defendant giving notice against or for the third-party.

10. The Court may decide all questions of costs as between a third-party and the other parties to the action, and may order any one or more to pay the costs of any other or others or give such directions as to costs as the justice of the case may require.

11. (1) Where a third-party makes as against any person not already a party to the action such a claim as is defined in rule 1 the provisions of this Order regulating the rights and procedure as between the defendant and the third-party shall apply mutatis mutandis as between the third-party and such other person and the Court may give leave to such third-party to issue a third-party notice, and the preceding rules of this Order shall apply, mutatis mutandis, and the expression "third-party notice" and "third-party" shall apply to and include every notice so issued and every person served with such notice respectively.

(2) Where a person served with a notice under this rule by a third-party in turn makes such a claim as is defined in rule 1 against another person not already a party to the action, this Order as applied by this rule shall have effect as regards such further person and any further person or persons so served and so on successively.

12. (1) Where a defendant claims against another defendant -

      (a) that he is entitled to contribution or indemnity, or

      (b) that he is entitled to any relief or remedy relating to or connected with the original subject matter of the action 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 said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant making the claim and should properly be determined not only as between the plaintiff and the defendant making the claim but as between the plaintiff and the defendant and the other defendant or between any or either of them,the defendant making the claim may, without any leave, issue and serve on such other defendant a notice making such claim or specifying such question or issue. No appearance to such notice shall be necessary.

(2) After service of such notice either defendant shall be at liberty to apply for directions as regards pleadings between them if either considers it necessary to do so. In default of such application within twenty-eight days of service of such notice, the claim, question or issue shall be tried at or after the trial of the plaintiff's action as the trial judge shall direct.

(3) Nothing herein contained shall prejudice the rights of the plaintiff against any defendant to the action.

13. In this Order the words "plaintiff" and "defendant" respectively, shall include a plaintiff and a defendant to a counterclaim.