Last edited 10 Nov 2020

Joinder

This is the joining of a person/s to an action where common questions of law or fact arise.

Many construction disputes are resolved by the major participants to being joined in one proceeding. The benefit of this is that all related disputes are dealt with at once, with the consistency of being resolved by a single judge, jury, adjudicator, arbitration panel and so on.

If a dispute is subject to arbitration, as specified in the contract, then these provisions govern the issue of whether multiple parties can be joined in one arbitration (joinder).

For example, where design flaws are alleged to have contributed to a defect in the construction works, employers may seek to have the design professional(s) added as a party to proceedings to either defend their services or accept liability. Alternatively, two claimants could have a joint right, for example where there are joint contractors suing another party to the contract.

In adjudication proceedings, a party may at any time request additional parties to be joined, subject to the agreement of the adjudicator, existing parties and the additional parties.

When courts are presented with a claim comprising a number of causes of action or parties that have been joined together, they have the power to separate them if the joinder is regarded as inconvenient. This could be because the joinder makes the claim unnecessarily complicated, or may cause delays or increase the costs in the claim.

An alternative to joinder is consolidation. This involves two or more separate claims with a strong link with each other being continued together with one claim being nominated as the lead. For example, this could be appropriate when the same allegations of negligence or breach of contract are made against the same defendant but in relation to different claims. Again, the court must exercise their power to consolidate claims with consideration of the time and cost implications.