Lecture 5. Commensing a claim

5.1. Joinder of parties and causes of action

5.1.1. Introduction

The Supreme Court Act 1981, s. 49(2), requires the court to exercise its discretion so as to ensure that:

as far as possible, all matters in dispute between the parties are completely and finally deter­mined, and all multiplicity of legal proceedings with respect to any of those matters is avoided.

The CPR absolutely reflect this viewpoint. Under r. 3.1(2) (g) and (h) the court has powers to consolidate proceedings and to try two or more claims on the same occasion. In r. 7.3 it is provided that a single claim form may be used to start all claims which can conveniently be disposed of in the same proceedings and all parties jointly entitled to a remedy must be joined as joint claimants (r. 19.2). In r. 19.1(2) the court is empowered to add a party where it is desirable:

(a) to enable it to resolve all the matters in dispute in the proceedings; or

(b) to resolve a matter between an existing party and a proposed new party which is connected with an issue in the claim.

Likewise the court has the power to 'tidy up' proceedings under r. 19.1(3) by remov­ing a party where it is not desirable for him to remain a party to the claim.

To take a common example: if one driver should leave the road and knock down several people standing in a bus queue all the potential claimants can combine together to issue just one claim form against the driver, because their actions arise out of the same facts. There is no obligation to do so and indeed in many cases it might be tactic­ally or procedurally inconvenient. In that case each could issue a separate claim form.

Where there is more than one claimant on the same claim they must all use the same solicitor and counsel and may not generally make allegations of fact which are incon­sistent with each other's cases. Thus, if some or all of the persons in the bus queue happened to know each other or be related, they might well combine to issue one form of claim. If, however, they were strangers, each might prefer to issue separate proceed­ings using his own choice of solicitor and counsel.

Similarly, if the cause of a motorway accident seems to be the negligence of two or more drivers, e.g., where there is a crash involving several vehicles in fog, and it may be impossible for an innocent person initially to judge which of several other drivers may have been to blame, the claimant can (and would usually be wise to) sue two or more defendants jointly or in the alternative in the same proceedings. If there is more than one defendant, each is entitled to his own individual choice of solicitor and counsel— there is no compulsion to use the same one as there is likely to be a conflict of interest in such cases as each defendant attempts to blame the others.

In terms of joinder of causes of action there is nothing to stop a claimant who has a number of causes of action against the same defendant or defendants suing for all of them in the same proceedings, even if there is no factual connection between them. For example, if a claimant is owed money by a defendant and in the course of discus­sions the argument becomes heated and the defendant assaults the claimant, there is nothing to stop the claimant including both causes of action on the same claim form. Whether it would be tactically wise to do so would be another matter and indeed it might be in such a case that the court thought it convenient to dispose of the two issues by allocating them to different tracks, but the right to start proceed­ings in this way exists.