Questioning the functional framework for adding new parties to civil proceedings : a comparative study between Scottish rules of civil procedure and the United States federal rules of civil procedure
This thesis discusses Scottish rules of civil procedure and the United States Federal rules of Civil Procedure relating to four mechanisms of adding new parties to the pending action in the light of certain basic interests. These devices are intervention, third party procedure, interpleader by way of counterclaim and, joinder of parties. The thesis aims to accomplish two basic objectives as follows. First, to identify whether coherence exists between Scottish and the United States Federal laws in respect of the procedural rules which regulate the process of adding new party to civil action. Second, on the basis of identifying whether there is coherence between Scottish and Federal rules underlying the rules for inclusion of additional parties, it aims to study these rules and criteria in the light of three vital interests which are involved in any case when a new party is added to the pending action; the interest of the absentee, the interest of the original parties, and the public interest. Mainly, this thesis addresses the question as to what extent the Scottish and Federal rules of civil procedure accord respect to the above-mentioned interests. There appears to be no existing comprehensive legal and theoretical evaluation that addresses the question as to whether the Scottish and the United States Federal rules for admitting additional parties further or inhibit the proposed balance between the above-mentioned interests appropriately. In addition, the very few comparative studies which address questions of civil procedure in general and comparative procedural law between Scottish and the United States Federal rules in particular, provide an additional backdrop to this research. It is argued that, for the most part, Scottish rules accord respect to the proposed balance of interests to a greater extent than does Federal rules of additional parties. The reasons that Federal rules of additional parties do not accord sufficient respect to the proposed balance of interests as outlined throughout this thesis are due to the following: (i) the categorization of intervention into two lands; intervention of right and permissive intervention (ii) The non-availability of third party procedure for a defender against some one who is liable to a pursuer (iii) Adopting a long process to assert third party procedure against some one who is already a party to the action, (iv) Permitting a defender to assert a remedy of interpleader against the original pursuer and non-parties in the original action which may extend the scope of the original action to include ancillary issues. However, it was argued that in relation to the mechanism "joinder of parties" and for the most part, both Scottish and the United States Federal rules intend to protect similar interests that have been already protected by other procedural vehicles. It is argued that this trend causes particular difficulties such as producing an overlap between the process of adding new parties and may result in anomalous results by giving the same matter different meanings.