A dispute rarely produces just one cause of action. A builder who abandons a job may be liable for breach of contract, in negligence, and for the return of a deposit. Order 5 Rule 1 of the National Court Rules 1983 says when those may be brought together.
Order 5 Rule 1
A plaintiff may, in any proceedings, claim relief against the same defendant in respect of more than one cause of action —
(a) where the plaintiff claims, and the defendant is alleged to be liable, in the same capacity in respect of all the causes of action; or
(b) where the plaintiff claims, or the defendant is alleged to be liable, in the capacity of executor of the will of a deceased person or administrator of the estate of a deceased person in respect of one or more of the causes of action, and in his personal capacity but with reference to the estate of the same deceased person in respect of all other causes of action; or
(c) where the Court gives leave to do so.
There is no requirement of a common question, and no requirement that the causes of action arise out of the same transaction. Those tests appear in Rule 2, which governs joining parties, not claims.
So against one defendant sued in one capacity, a plaintiff may join entirely unrelated causes of action as of right. A landlord suing a tenant for arrears of rent may in the same proceeding sue that tenant for damage to a motor vehicle in an unconnected accident.
Whether that is wise is another question — see Rule 6 below.
What “the same capacity” means
A person may be sued in more than one capacity: personally; as trustee; as executor or administrator of an estate; as the holder of a public office. Each capacity is treated as a different legal persona.
Under paragraph (a), a claim against Mr X personally may be joined with another claim against Mr X personally — but not with a claim against Mr X as executor of his father’s estate, because the capacities differ.
Paragraph (b) creates one express exception: a claim against a person as executor or administrator may be joined with a claim against that same person personally, if the personal claim is made with reference to the estate of the same deceased person. That covers, for instance, a claim against an executor for the estate’s debt joined with a claim against them personally for having taken estate property.
| Situation | Joinder |
|---|---|
| Two contract claims against the same defendant personally | As of right — r 1(a) |
| Contract and tort claims against the same defendant personally | As of right — r 1(a) |
| Wholly unrelated claims against the same defendant personally | As of right — but see r 6 |
| Claim against X personally + claim against X as trustee | Leave needed — r 1(c) |
| Claim against X as executor + claim against X personally re that estate | As of right — r 1(b) |
| Claims against different defendants | Not Rule 1 at all — see Rule 2 |
Rule 4 — how leave works
(1) The Court may grant leave under Rule 1 or 2 before or after the joinder, and may grant leave under Rule 3(2) before or after the non-joinder.
(2) A plaintiff may apply for leave before or after filing his originating process, and may apply without serving notice of the motion on any person on whom the originating process has not been served.
Leave can be retrospective. If you have already joined claims that needed leave, the position is not fatal — apply for leave, which the Court may grant after the joinder.
Leave can precede the writ. An application may be made before the originating process is filed at all, which allows a plaintiff to know where they stand before committing to a form of proceeding.
Leave can be sought without notice to a person not yet served. This is one of the specific instances contemplated by Order 4 Rule 38, under which a motion may be made ex parte where the Rules or the nature of the case allow. See making an interlocutory application.
Rule 6 — the Court’s control
Where any joinder of parties or causes of action may embarrass or delay trial of the proceedings or is otherwise inconvenient, the Court may order separate trials or make such other order as the Court thinks fit.
Rule 1(a) permits joinder; Rule 6 lets the Court undo the practical effect of it. Where unrelated claims would make a trial unmanageable, the answer is separate trials — and a plaintiff who insisted on joining them may face the costs of the application.
Rule 6 is also the mirror of consolidation: one rule splits what has been joined, the other joins what has been split.
Pleading several causes of action
Joining claims does not relax the pleading rules. Each cause of action must be pleaded so that the essential facts appear.
Order 8 Rule 7 — a pleading shall be divided into paragraphs, numbered consecutively, each dealing so far as convenient with a separate matter.
Order 8 Rule 8 — a party may plead alternatively, and may plead inconsistent allegations in the alternative, so long as the pleading is not embarrassing.
Cross-refer: the statement of claim and pleading in the alternative.
Under Order 4 Rule 9, the writ must bear a statement of claim or a sufficient statement of the nature of the claim and the relief claimed. Where several causes of action are joined, the endorsement must cover all of them — a plaintiff cannot smuggle in an unendorsed claim later without amendment.
Sources
- National Court Rules 1983 — O 4 rr 9, 38; O 5 rr 1, 2, 4, 6; O 8 rr 7, 8
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.