CIVIL PROCEDURE- THIRD PARTY PROCEEDING (CHAP 9)

1. INTRODUCTION
• Initiation of proceeding in a proceeding = 3rd party proceeding = distinct from the main action
• A 3rd party proceeding provided by the law under Order 16 Rule 1(1) , in which a Df may after having
entered appearance institute an action against a person not a party to the action for all/part of the Pf claim
against him. The nature is to indemnify/that the person has somehow contributed to the action. The court will
allow the application and determine the issues between the Df and the 3rd party, in the meantime the action
between Pf and Df will be postpone.

2. NATURE AND CIRCUMSTANCES

• O16 R 1 (1) (a) - claims for contribution/indemnity

§ Where in any action a defendant who has entered an appearance, claims against a person not already a
party to the action any contribution or indemnity
§ E.g- one of several trustees sued in breach of trust. Joint tortfeasors. insurer who has issued by a policy
covering the same assured and the same peril as another insurer
• O16 R 1 (1) (b) - claims related to relief

§ Where in any action a defendant who has entered an appearance, 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 relief or remedy claimed by the plaintiff
§ E.g- Pf is injured by a falling roof in Df’s house, The roof was repaired the previous day by T, a
contractor. Pf is now suing Df
• O16 R 1 (1) (c) - claims related to question/ subject matter

§ Where in any action a defendant who has entered an appearance, requires that any question or issue
relating to or connected with the original subject matter of the action should 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
§ E.g- A’s car was stolen by B. B sold the car to C. C sold the same car to D. The car is in D’s possession.
A is now suing D for its return

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3. PROCEDURE
• The procedure is instituted once the Df files a 3rd party notice in Form 22 and 23
• Where the court has allowed a 3rd party proceeding, then in actual fact there will be 2 separate actions in p
same suit
i. Pf v Df
ii. Df(as Pf) v 3rd party(as Df)
• The objects of 3rd party procedure are:
i. Prevent multiplicity of actions- save costs + avoid different findings by court
ii. 3rd party bound by the decision reached in the proceeding between Pf and Df
iii. To ensure the questions between 3rd party and Df decided immediately after the decision between Pf
and Df
• If Pf obtains judgment against the Df, he cannot enforce it against the 3rd party. 3rd party procedure is available
to Df where he wants to:
i. Claim against person not already a party to the action a contribution/indemnity
ii. Claim against such a person any relief/remedy relating to or connected with the original subject matter
of the action and substantially the same as some relief/remedy by Pf
iii. Ascertain any question/issue relating to or connected with the original subject matter of the action
which should be determined not only as between the Pf and Df, but also as between either both/
person not already a party to the action

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4. NOTICE

• Defendant must first enter appearance

• Issue a 3rd party notice and serve it to 3rd party. 3rd party must enter appearance- Form 18 and 19
• Must be served personally on the 3rd party together with originating process and pleadings
• If 3rd party desires to dispute the claim à 3rd part must enter appearance à Df must issue application for
directions and serve on all parties in action
• If Df fails to file summons for direction within time(no time limit but must be ASAP after 3rd party enter
appearance), 3rd party may not earlier than 7 days after enter appearance apply to court for directions/ order to set
aside the 3rd party notice
• Set aside 3rd party notice:
i. Same application to strike out under O 18 R 19
ii. Inherent jurisdiction of court- must show special circumstances as to why proceeding should not continue

• 3rd party notice must contains:

i. A statement specifying the nature of claim made by Pf against Df + on the grounds of the claim made by
Df against 3rd party
ii. A direction to 3rd party that if he wishes to dispute Pf’s claim against Df/Df’s claim against him, he must
enter appearance + admit that Df’s claim against him will be bound by any judgment given in the cation +
judgment may be enforced against him

5. LEAVE TO ISSUE THIRD PARTY NOTICE

• By ex parte application in Form 24

• O16 R 2 (1) - An application for leave to issue a third party notice may be made by way of ex parte notice
of application in Form 20 but the Court may direct the application to be served
• Affidavit must satisfy O16 R 2 (2)
• Leave is required to issue third party notice unless:-
i. Defendant has issued defence- O 16 R 1 (2)
ii. 3rd party notice is sought to serve on the government- O 73 R 8
• The granting of leave is at the discretion of court
• The order granting leave to issue a 3rd party notice may contain directions as to the period within which notice
is to be issued

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6. 3 PARTY DIRECTIONS
• O16 R4 (1) - If the third party enters an appearance in Form 21, the defendant who issued the third party
notice shall, by a notice of application to be served on all the other parties to the action, apply to the Court for
directions

• The court has wide discretion to make suitable orders and directions:
i. O16 R4 (3)(a) - to enter judgement, if the liability of the third party to the defendant who issued
the third party notice is established on the hearing
ii. O16 R4 (3)(b) - order any claim, question or issue stated in the third party notice to be tried in

such manner as the Court may direct

iii. O16 R4 (4) - On an application for directions under this rule, the Court may give the third party

leave to defend the action, either alone or jointly with any defendant
iv. To determine the extent to which the 3rd party is to be bound

• O16 R4 (2) - If no application is served on the third party after 7 days 3rd party enter appearance, the 3rd

party may apply to the Court for directions or for an order to set aside the third party notice, by notice in the
Form 22

• O16 R4 (3) (c)- On an application for directions, the Court may dismiss the application and terminate the
proceedings on the third party notice. Any order made/direction given may be varied/rescinded by the court at
any time

• O16 R5 (1) - If a third party does not enter an appearance or, having been ordered to serve a defence but

fails to do so
i. 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 that notice
ii. the defendant by whom the third party notice was issued may, if judgment in default is given against
him in the action, at any time after satisfaction of that judgment and, with the leave of the Court,
before satisfaction thereof, enter judgment against the third party in respect of any contribution or
indemnity claimed in the notice, and, with the leave of the Court, in respect of any other relief or
remedy claimed therein.

Mat Abu b. Man v Govt. of Malaysia

It is settled law that Third Party proceedings for contribution are regarded as independent of and separate from
proceeding between a plaintiff against a defendant