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Cite as: [2002] IESC 53, [2003] 1 ILRM 29, [2002] 2 IR 593

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Barlow v. Fanning [2002] IESC 53 (2nd July, 2002)

THE SUPREME COURT

Keane C.J.

McGuinness J.

Fennelly J.

264/00

BETWEEN:

ANTHONY BARLOW, MARTIN KENNEALLY AND MICHAEL Ó SUILEABHAIN

PLAINTIFFS/RESPONDENTS

AND

CONNELL M FANNING

FIRST NAMED DEFENDANT

/RESPONDENT

AND

UNIVERSITY COLLEGE CORK

SECOND NAMED DEFENDANT

/APPELLANT

JUDGMENT delivered the 2nd day of July, 2002 by Keane C.J. [Nem Diss.]

1. The background to this protracted litigation is a dispute in the economics department of the second named defendant (hereafter "the University"). The first named defendant/respondent (hereafter "Professor Fanning") is Professor of Economics in the University and head of the department.

2. These proceedings began in 1998. In them, the plaintiffs, who are two present members of staff, and one former member of staff, in the economics department, claim inter alia damages for negligence and breach of contract against Professor Fanning and the University. In their statement of claim, they plead that the former:

(1) refused to involve them in the administration and development of the department;

(2) isolated and marginalised them within the department;

(3) refused their access to sabbatical leave;

(4) frustrated their chances of promotion;

(5) refused to consider them for any administrative post within the department;

(6) refused to permit them participate on interview boards and departmental committees;

(7) failed to listen to their grievances and refused them appropriate office and computer equipment;

(8) used abusive and intimidating language to them and about them;

(9) discouraged other members of staff from making contact with them or co-operating with them;

(10) discriminated against them generally; and

(11) failed to take sufficient measures to protect their interests and reputations.

3. The plaintiffs claim that the University authorities are vicariously responsible for the alleged acts or omissions on the part of Professor Fanning: it is also alleged against them that they failed to supervise the administration by Professor Fanning of the department, failed to mediate between the plaintiffs and Professor Fanning and, in general, failed to monitor affairs in the department and to appreciate and address the concerns of the plaintiffs.

4. It was initially agreed between the University and Professor Fanning that the defence to these proceedings would be conducted on behalf of both of them by the University's solicitors. An appearance on behalf of both of them was accordingly entered on 30th March 1998, following which a detailed notice of particulars was served on their behalf and responded to on behalf of the plaintiffs.

5. On the 8th June 1999, the plaintiffs' solicitors filed a notice of discontinuance of their claim against Professor Fanning. This followed the institution of a mediation process in the University in which the plaintiffs, Professor Fanning and the University were, initially at all events, involved. However, Professor Fanning became dissatisfied with the manner in which the mediation procedure was being conducted by the University and was of the view that it was in breach of the agreement he had reached with the University as to the joint defence of these proceedings. This ultimately led to the institution of a new set of proceedings by Professor Fanning against the University.

6. Also on the 8th June 1999, the solicitors for the plaintiffs wrote to the solicitors for the defendants in these proceedings as follows:

"Our clients want the mediation process to continue to its conclusion in the hope and expectation that it will resolve all matters in issue between our clients on the one hand and [the University] and Professor Fanning on the other hand.

"It would now appear to our clients, however, that the inclusion of Professor Fanning as a joint defendant in our clients' proceedings is, in part at least, inhibiting the mediation process from continuing to a successful conclusion. Accordingly, our clients have now instructed us to unconditionally serve a notice of discontinuance of the above proceedings against [Professor Fanning], while reserving the right to continue the proceedings against [the University] alone in the unfortunate event that an amicable resolution of the matters at issue cannot otherwise be achieved."

7. The letter also stated

"For the avoidance of any possible doubt, we wish to confirm on behalf of our clients that in no circumstances whatsoever will our clients issue further proceedings against Professor Fanning arising out of the matters in issue in the above proceedings."

8. Professor Fanning was of the view that the plaintiffs had adopted this procedure in order to prevent him from defending his reputation and that it was designed to facilitate a settlement between the plaintiffs and the University in which he would not be consulted. An application was, accordingly, made on his behalf to the Master of the High Court pursuant to Order 15 Rule 13 for an order "rejoining" him as a defendant in the proceedings. The Master having refused to grant the order sought, an appeal against that refusal came before Johnson J who, in an extempore judgment, allowed the appeal. The learned High Court judge said:

"The vast majority of the allegations as pleaded in the statement of claim are made against [Professor] Fanning and in the circumstances, it seems to me that it is proper that he be rejoined to the proceedings. Applying the reasoning of Mr. Justice Lynch [in Fincoriz S.A.S. Di Bruno Tassin Din e C -v- Ansbacher & Co. Limited and Others, unreported, judgment delivered 20th March 1987], this seems to me to be a clear case where I should exercise my discretion to rejoin Professor Fanning to the proceedings or, in the alternative, to strike out the notice of discontinuance.

"Accordingly, I propose to allow the appeal and to make an order that either Professor Fanning be rejoined in the proceedings or that the notice of discontinuance would be struck out."

9. Counsel for the plaintiffs having indicated that he would need to take instructions from his clients as to whether they would consent to striking out the notice of discontinuance, and that consent ultimately not having been forthcoming, the High Court ordered that Professor Fanning be rejoined in the proceedings and the notice of discontinuance "do stand struck out".

10. From that judgment and order, the University have now appealed to this court. Although no notice of appeal has been served on behalf of the plaintiffs, they appeared on the hearing of the appeal and supported the position of the University.

11. Order 15, Rule 13 provides as follows:

"No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The court may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter be added..... Every party whose name is so added as defendant shall be served with a summons or notice in manner hereinafter mentioned, or such other manner as the court may direct, and the proceedings as against such party shall be deemed to have begun only on the making of the order adding such party."

12. Neither the High Court nor this court were referred to any authority for the proposition that this rule authorises the High Court to join a party as a defendant to the proceedings in the face of opposition, not merely from the defendant/defendants to the proceedings, but also of the plaintiff. Nor was this court referred to any authority in support of the proposition that, where a plaintiff issues proceedings against more than one defendant and, for whatever reason, discontinues the proceedings against one of the defendants, the High Court may, on the application of that defendant, join him as a defendant in the proceedings, although the plaintiff has expressly abandoned any claim for relief against him and although the remaining parties to the proceedings, far from having sought his being joined, are opposed to his being joined and where the sole ground for joining him is that allegations or findings affecting his good name may be made in the course of the proceedings.

13. The absence of any authority in support of those propositions is not surprising. In Vandervell Trustees Limited -v- White and Ors. [1971] AC 912, Viscount Dilhorne said of the corresponding words in the English rule which were the same as ours:

"The many reported cases in which this rule has been considered were comprehensively reviewed by Devlin J (as he then was) in Amon -v- Raphael Tuck & Sons Limited [1956] 1KB 357. He said, at p.361:

'There are two views about its scope; an authority can be cited for both. One is that it gives a wide power to the court to join any party which has a claim which relates to the subject matter of the action.... If that is right, it really kills any submission about jurisdiction. The court is hardly likely in the exercise of its discretion to join as a party somebody who has no claim relating to the subject matter of the action: and if its powers extend to joining anyone who has, the question whether the particular intervenor should be joined becomes virtually one of discretion.'

"In this case the Court of Appeal held that there should be a wide interpretation of the rule. Lord Denning said [1970] Ch 44, 56-57:

'We will in this court give the rule a wide interpretation so as to enable any party to be joined wherever it is just and convenient to do so. It would be a disgrace to the law that there should be two parallel proceedings in which the self same issue was raised, leading to difficult and inconsistent results. It would be a disgrace in this very case if the special commissioners should come to one result and a judge in the chancery division should come to another result as to who was entitled to these dividends.'

"Whether this interpretation is wider than that stated by Devlin J in the passage cited above, it is not necessary to consider. My difficulty about accepting Lord Denning's wide interpretation is that it appears to me wholly unrelated to the wording of the rule. I cannot construe the language of the rule as meaning that a party can be added whenever it is just or convenient to do so. That could have been simply stated if the rule was intended to mean that. However wide an interpretation is given, it must be an interpretation of the language used. The rule does not give power to add a party whenever it is just or convenient to do so. It gives power to do so only if he ought to be joined as a party or if his presence is necessary for the effectual and complete determination and adjudication upon all matters in dispute in the cause or matter. It is not suggested that the revenue ought to have been joined."

14. The scope of the rule in England was subsequently widened by the addition of Order 15 Rule 62(b)(ii) which provides that a court may order to be added as a party to the proceedings

"(i) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter."

15. There has been no corresponding amendment to the Rules of the Superior Courts in this jurisdiction.

16. The law in England and Wales is stated as follows in Halsbury's Laws of England (4th Edition) Vol. 37, para. 226 at p. 171:-

"The general rule of practice is that the plaintiff is entitled to choose the person or person as defendants against whom he wishes to pursue his claim for the relief or remedy he seeks, and that he cannot be compelled to proceed against other persons whom he has no desire to sue. Nevertheless the court has power to add a person who is not a party to the action as originally constituted as a defendant against the will of the plaintiff, either on the application of the defendant or of the non party. An application by any person to be added as a party must, except with the leave of the court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter or the question or issue to be determined as between him and any party to the cause or matter.

"A person having no legal but only a commercial interest in the outcome of the litigation between the plaintiff and the original defendant cannot be added as a party either for the convenience of the court or otherwise. On the other hand, a person may be added as a defendant, either on his own application or the application of the defendant, where his proprietary or pecuniary rights are or may be directly affected by the proceedings either legally or financially, by any order which may be made in the action, or where the intervenor may be rendered liable to satisfy any judgment either directly or indirectly."

17. In Fincoriz S.A.S. Di Bruno Tassin Din e C -v Ansbacher & Co. Ltd., & Ors, the plaintiffs had brought the action in order to establish their rights in or title to a fund of some US$30 million which was lodged with the first named defendants in the name of the second named defendants who in turn were controlled by the third named defendants. The applicants before Lynch J had obtained an injunction in separate proceedings prohibiting the defendant from parting with or transferring the fund of US$30 million: a similar injunction had been obtained by another party against the defendants. The learned trial judge pointed out that, in the event of the plaintiffs succeeding in the action and obtaining an order for the payment to them of the fund, the defendants would be in an impossible position if the injunctions obtained against them by the applicants and the other party were still subsisting. The plaintiffs opposed the joining of those parties but the learned trial judge, while acknowledging that there must be exceptional circumstances before a person could be joined as a defendant against the wishes of the plaintiff, was satisfied that there were such exceptional circumstances in that case and ordered the applicants and the other party to be joined.

18. No exceptional circumstances of that kind exist in the present case: the plaintiff's claim against Professor Fanning having been discontinued, it cannot be said, even on the most liberal construction of Order 15, Rule 13, that he ought to have been joined or that his presence is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, the latter having unquestionably been the case in Fincoriz. It is no doubt the case that, if the plaintiffs succeed in the present action, the good name and reputation of Professor Fanning may be adversely affected, since, for the most part, the establishment of the plaintiff's case against the University necessitates the proof by them of damaging allegations against Professor Fanning. However, that can often be the case in litigation where a party elects to sue one defendant in reliance on his vicarious liability for the wrongdoing of another who is not sued. Thus, the owner of a vehicle is frequently sued as being vicariously responsible for the negligence of a person driving the vehicle with his consent. If the submissions advanced on behalf of Professor Fanning were well founded, it would be necessary in every such case for the High Court, on the application of the driver, to join him as a defendant in the proceedings because his good name and reputation might be adversely affected by what was said during the course of the case or, indeed by the findings of the trial judge. I am satisfied that Order 15 Rule 13 cannot be so construed and that a person in the position of Professor Fanning cannot be regarded as a party who ought to have been joined or whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter.

19. I would allow the appeal and substitute for the order of the High Court an order dismissing the application.