We recently had the opportunity to clarify the procedure to join an additional party to a counterclaim.
A counterclaim against an additional party is governed by Order 15 Rule 3 of the Rules of Court 2012.
The first step would be to “add that person’s name to the title of the action”.[1]
The second step would be to endorse the counterclaim “with a notice, in Form 14”.[2]
The third step would be to serve the counterclaim on the additional party.[3]
Once the above has been complied with, the additional party would “become a party to [the action] as from the time of service”.[4]
Under the Rules of Court 2012, there is no requirement to:
(a) Obtain the leave of Court; and
(b) File a “notice stating the grounds of the application and the name, address and occupation of [the additional party], and supported by affidavit (if any) [“NOA Supported By Affidavit“].
Order 8 Rule 3 of the Subordinate Court Rules 1980 and Order 15 Rule 3 of the Rules of the High Court 1980, both of which were applicable prior to the Rules of Court 2012, contained the NOA Supported By Affidavit requirement.
This can be seen, for example, in Tang & Sim (1983) Co & Anor v PPES Resorts Sdn Bhd [1992] 2 MLJ 326.[5]
However, in legislating the Rules of Court 2012, the Rules Committee saw it fit to remove the NOA Supported By Affidavit requirement in order to join an additional party to a counterclaim.
What is evident is that the three steps stated above would suffice procedurally to join an additional party to a counterclaim.
[1] Order 15 Rule 3(2) of the Rules of Court 2012
[2] Order 15 Rule 3(5) of the Rules of Court 2012
[3] Order 15 Rule 3(2) of the Rules of Court 2012
[4] Ibid.
[5] Tang & Sim (1983) Co & Anor v PPES Resorts Sdn Bhd [1992] 2 MLJ 326, at pp. 328-329