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At any stage in the proceedings, the court may add a third party to the proceedings if (a) it is desirable to do so in order to resolve all matters in dispute, or (b) there is a connected issue involving a third party which may conveniently be resolved by adding that party1. By the same token, the court may direct that the third party be removed if his participation is no longer required2 . When the court makes an order under this rule, it may give consequential directions about service and management generally3. An application for joinder must be made in accordance with Part 18 procedure and, unless otherwise directed, should be supported by evidence setting out the factors which connect the third party with the proceedings or, as the case may be, prompt his removal4. The court may add a party of its own motion5

As seen elsewhere6, the rules require service of Form A on interested third parties such as mortgage lenders and pension trustees. The mere fact that they are to be served does not mean they should be joined. This arises only where there is an issue to be resolved: for example, a third party (often a parent) may be asserting property rights that are inconsistent with the case pleaded by the applicant or respondent. Where the third party is outside the jurisdiction (e.g. an offshore trustee), there may be no practicable way of enforcing joinder. The court may nonetheless invite the trustee to intervene or to give assistance to the court; and a failure to do so may be material on which the court can draw inferences7.

Who should apply for joinder? Mostyn J gives some useful guidance in Fisher Meredith v JH8:

(a) If assets stand in the name of the respondent, but he claims they are beneficially owned by a third party, it is his responsibility to join that party so that the matter can be tested. The applicant can sit back if so advised.

(b) Conversely if it is her case that a third party acts as nominee for the respondent, it is her duty to seek directions 9.

(To which it may be added, that if the third party wishes for his own reasons to intervene, he should do so by Part 18 application).

Where there is an issue about the ownership of property involving a third party, the following things should ordinarily happen:

(i) the third party should be joined to the proceedings at the earliest opportunity;

(ii) directions should be given for the issue to be fully pleaded by points of claim and defence;

(iii) separate witness statements should be directed in relation to the dispute;

(iv) the dispute should be heard separately as a preliminary issue, preferably before the FDR 10.

DRAFT ORDER

UPON it appearing to the court that there is an issue between the applicant and [name] of [address] ('the third party') as to the ownership of [description of property] ('the disputed property'), which it is desirable to resolve in these proceedings ('the preliminary issue')

(a) The third party is added to these proceedings in the style of '[name] (Third party)' and, until further order, shall be named on all pleadings and court papers.

(b) The applicant shall by 4pm on [date] file and serve points of claim setting out concisely her case as to why the disputed property is said to belong to the respondent. 

(c) The respondent and the third party shall by 4pm on [date] file and serve points of defence setting out concisely why (if it be the case) he contests the applicant's claim in relation to the disputed property.

(d) The parties to the preliminary issue shall give standard disclosure in accordance with CPR Part 31 by 4pm on [date].

(e) The preliminary issue is set down for a hearing before a district judge of this court on [date and time] (T/E 1 day) [or as case may be].

(f) Any party wishing to call a witness of fact at that hearing must serve a copy of the relevant witness statement on the other parties not less than 28 days before the hearing.

Notes

1  FPR 2010, r 9.26B(1) (added by SI 2012/679). The rule is in identical terms to CPR 19.2(2)

2  r 9.26B(2)

3  r 9.26B(3)

4  r 9.26B(5)

5  r 9.26B(4)

6  See 'First Appointments'

7  See 'Trusts'

8  Fisher Meredith v JH and PH (Financial Remedy: Appeal: Wasted Costs) [2012] EWHC 408 (Fam)

9  Examples given by Mostyn J at paras 49-50

10 TL v ML [2006] 1 FLR 1263, per Mostyn J at para. 36, approved in Goldstone v Goldstone [2011] 1 FCR 324 and Edgerton v Edgerton & Anor [2012] EWCA Civ 181

See also

  • Duration of Marriage Read the entry taken from the Dictionary of Financial Remedies 2016, published February 2016. law & practice • 24/02/2016

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