Family Law Hub

Joinder of Third Parties

Practice Note reproduced from the Dictionary of Financial Remedies 2018. See more here: https://classlegal.com/books/dictionary-of-financial-remedies

  • See also: TOLATA Claims

    At any stage in financial remedy proceedings Note that this does not extend beyond financial remedy proceedings to other family proceedings per Goldstone v Goldstone [2011] 1 FLR 1926, 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 party FPR 2010, r 9.26B(1) (added by SI 2012/679). The rule is in identical terms to CPR 19.2(2). By the same token, the court may direct that the third party be removed if his participation is no longer required r 9.26B(2). When the court makes an order under this rule, it may give consequential directions about service and management generally r 9.26B(3). 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 removal r 9.26B(5). The court may add a party of its own motion r 9.26B(4).

    As seen elsewhere See ‘First Appointments’, 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 inferences See ‘Trusts’.

    Who should apply for joinder? Mostyn J gives some useful guidance in Fisher Meredith v JH Fisher Meredith v JH and PH (Financial Remedy: Appeal: Wasted Costs) [2012] EWHC 408 (Fam):

    1. 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.
    2. Conversely if it is her case that a third party acts as nominee for the respondent, it is her duty to seek directions Examples given by Mostyn J at paras 49-50.

    (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:

    1. the third party should be joined to the proceedings at the earliest opportunity;
    1. directions should be given for the issue to be fully pleaded by points of claim and defence;
    2. separate witness statements should be directed in relation to the dispute;
    1. the dispute should be heard separately as a preliminary issue, preferably before the FDR TL v ML [2005] EWHC 2860 (Fam), per Mostyn J at para. 36, approved in Goldstone v Goldstone [2011] 1 FCR 324 and Edgerton v Edgerton & Anor [2012] EWCA Civ 181.

    An application under MCA 1973, s 24(1)(c) to vary a post-nuptial settlement (whether onshore or offshore) should result in the trustees being invited to join the proceedings TM v AH [2016] EWHC 572 (Fam), Moor J, disapproving the contrary view of Mostyn J in DR v GR [2013] EWHC 1196 (Fam).

Practice note, published: 01/05/2018

Topics


Published: 01/05/2018

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item