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The County Court Rules 1981

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ORDER 12THIRD PARTY AND SIMILAR PROCEEDINGS

Third party notice

1.  (1)  Where in any action a defendant—

(a)claims against a person not already a party to the action any contribution or indemnity, or

(b)claims against such a person any relief or remedy relating to or connected with the original subject-matter of the action and substantially the same as some remedy or relief claimed by the plaintiff, or

(c)requires any question or issue relating to or connected with the original subject-matter of the action to be determined not only as between the plaintiff and the defendant but also as between either or both of them and a person not already a party to the action,

then, subject to paragraph (2), the defendant may issue a notice (in this Order referred to as a third-party notice) containing a statement of the nature and grounds of the claim made by the defendant or, as the case may be, of the question or issue required to be determined.

(2) A third party notice shall not be issued without the leave of the court—

(a)in a fixed date action, or

(b)in a default action where a day has been fixed under Order 9, rule 5, for the hearing or pre-trial review of the action.

(3) An application for leave to issue a third party notice shall be made on notice to the plaintiff, and on the hearing of the application the court, if it grants leave, shall give directions as to the service of the third party notice and as to the further conduct of the proceedings.

(4) The defendant shall file a copy of the third party notice when it is issued or, if leave to issue the notice is required, when he gives the proper officer notice of his application for leave.

(5) Where a third party notice is issued pursuant to paragraph (1) without the leave of the court, the proper officer shall fix a day for the pre-trial review of the action and notice of the day so fixed shall be contained in or indorsed on every copy of the third party notice for service under paragraph (6).

(6) Subject to any directions given under paragraph (3), the third party notice accompanied by a copy of the summons in the action and of the particulars of claim annexed thereto and any pleading delivered by the defendant shall be served on the third party in accordance with the rules applicable to the service of the summons in a fixed date action and, where the notice is issued pursuant to paragraph (1) without leave, a copy shall also be served on the plaintiff.

(7) Where a third party notice is issued in a default action, judgment on admission or in default shall not be entered against the defendant under Order 9, rule 3(2) or 6.

Admission or defence by third party

2.  Order 9, rules 2, 9 and 11, shall apply, with the necessary modifications, in relation to a third party notice as if—

(a)the third party notice were a summons and the proceedings begun thereby an action, and

(b)the defendant issuing the third party notice were a plaintiff and the person against whom it is issued a defendant in that action.

Hearing of action

3.  (1)  Subject to any directions given under rule 1(3) or otherwise, the court shall have power at the hearing of the action to determine what part the third party shall take in the trial and generally how the trial shall be conducted.

(2) As between the defendant by whom the third party notice was issued and the third party, the court may grant to either party any relief or remedy which might properly have been granted if the claim against the third party had been made in a separate action and may give such judgment for either party against the other as may be just.

(3) If the third party does not appear at the hearing, he shall be deemed to admit any claim stated in the third party notice and shall be bound by any judgment (including judgment by consent) or decision in the action in so far as it is relevant to any claim, question or issue stated in the notice.

(4) Where judgment is given for the payment of any contribution or indemnity to a person who is under a liability to make a payment in respect of the same debt or damage, execution shall not issue on the judgment without the leave of the court until that liability has been discharged.

In this paragraph “liabilityincludes liability under a judgment in the same or other proceedings and liability under an agreement to which section 1(4) of the Civil Liability (Contribution) Act 1978 applies.

Setting aside third party proceedings

4.  Proceedings on a third party notice may be set aside by the court at any stage of the proceedings.

Claim against person already a party

5.  (1)  Subject to paragraph (3), a defendant in any action who makes against a person already a party to the action a claim or requirement to which rule 1(1) would apply if that person were not a party may, without leave, issue and serve on that person a notice containing a statement of the nature and grounds of his claim or, as the case may be, of the question or issue required to be determined and the same procedure shall be adopted for the determination of the claim, question or issue as would be appropriate under this Order if the person served with the notice were a third party.

(2) A defendant who issues a notice under paragraph (1) shall at the same time file a copy.

(3) Nothing in paragraph (1) shall apply in relation to a claim which could be made by the defendant by counterclaim in the action.

Fourth and subsequent parties

6.  Where a defendant has issued a third party notice and the third party makes such a claim or requirement as is mentioned in rule 1(1) or 5(1), this Order shall apply, with any necessary modifications, as if the third party were a defendant; and where the person against whom the claim or requirement is made makes such a claim or requirement against a further person, this Order shall similarly apply and so on successively.

Offer of contribution

7.  (1)  A party to an action who stands to be held liable in the action to another party to contribute towards any debt or damages which may be recovered against that other party in the action may make, without prejudice to his defence, a written offer to that other party to contribute to a specified extent to the debt or damages and reserve the right to bring the offer to the attention of the court at the hearing.

(2) A defendant who makes such an offer shall file a copy, but the offer shall not be brought to the attention of the court at the hearing until after all questions of liability and amount of debt or damages have been decided, and if the offer is then brought to the attention of the court in pursuance of the right reserved by the defendant to do so, the court shall take the offer into account, to such extent, if any, as may be appropriate in the circumstances, in exercising its discretion as to costs.

Application to counterclaim

8.  The foregoing provisions of this Order shall apply in relation to a counterclaim by a defendant as if the subject-matter of the counterclaim were the original subject-matter of the action and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant.

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