High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"Damages for personal injury loss and damage sustained by him by reason of the negligence and breach of statutory duty of the defendant, his servants and agents in and about the occupation, care and control and safe-keeping of the shop premises at Main Street, Castlewellan."

"whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon'.

Order 15 Rule 6 (2) now provides -

"(2) (a) Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter (whether before or after final judgment)] the Court may on such terms as it thinks just and either of its own motion or on application –

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order any of the following persons to be added as a party, namely –

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) 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."

"98.-(1) Where a person (in this Article referred to as 'the claimant') has in any court, in proceedings of which the insurer or the giver of the security hereinafter mentioned had notice, obtained judgment against the owner or the driver of a motor vehicle for a sum in respect of the liability for which that owner or driver is insured by a policy issued, or secured by a security given; for the purposes of this Part, and the claimant has not recovered from that owner or driver the whole amount of the judgment, the claimant may, within such time as may be prescribed by rules of court or county court rules, apply to the court in which he recovered the judgment for an order against he insurer or the giver of the security, as the case may be, to pay to the claimant any sum payable under the judgment, including any sum payable thereunder in respect of costs, and thereupon the court may, if it thinks proper, grant the application either in respect of the whole amount of the judgment and costs, or in respect of any specified part of that amount.

(2) The notice mentioned in paragraph (1) shall be in such form as maybe prescribed by rules of court or county court rules, and shall be given to the insurer or the giver of the security, as the case may be, before or within 7 days after the commencement of the proceedings in which the judgment is sought.

(3) A court before whom an application under this Article is made shall not, as a ground for refusing the application, take into consideration any invalidity of the policy or security arising from any fraud or any misrepresentation or false statement (whether fraudulent or innocent) unless –

(a) the claimant was a party or privy to the fraud, misrepresentation or false statement; or

(b) the fraud, misrepresentation or false statement, is constituting an offence under Article 174, has been made the subject of a prosecution and conviction under Article 174.

(4) References in this Article to the owner or driver of a motor vehicle shall, where the context so admits, be construed as including the personal representative of the owner or driver, as the case may be."

"It has been argued that upon the construction of that paragraph there must be shown to be a question or issue between the applicant – that is Win in the present case – and the party to the proceedings between whom and the applicant it is said that a question or issues exists; and of course that must be so. It seems to me that in the present case there clearly is a question or issue between Win and the plaintiff company in which both parties have an important interest, namely the validity of the plaintiffs' patent… The validity of the patent and the question of whether Win's lighters infringe the patent are matters of very considerable commercial importance to Win, because there is a large market for their lighters in this country."

"The plaintiffs brought an action against the defendants claiming payment of the purchase price of a quantity of lead. The defendants, while not disputing their purchase of the lead, claimed that the purchase had been made from a subsidiary of the plaintiffs and that the purchase price was owed to the subsidiary instead of the plaintiffs. The defendants set up a special account in which they held the amount owing pending resolution of the dispute. By an unconnected contract the subsidiary agreed to purchase a quantity of lead from the applicants and when the subsidiary breached the terms of that contract the applicants brought an action for damages against the subsidiary and obtained a Mareva injunction over all the assets of the subsidiary within the jurisdiction. The injunction specifically referred to the moneys held by the defendants in their special account. The plaintiffs applied to be, and were, joined as defendants in the action between the applicants and the subsidiary which had given rise to the Mareva injunction. That action was ordered to be tried at the same time as the action between the plaintiffs and the defendants. The applicants then applied under RSC Ord 15, r 6(2)(b)(ii) to be joined as defendants in the action between the plaintiffs and the defendants, on the ground that there existed between the applicants and a 'party to the cause or matter … a question or issue arising out of or relating to or connected with [the] relief or remedy claimed in the cause or matter' which it was just and convenient to determine at the same time. The judge ordered the applicants to be joined as defendants in the action, on the basis that they would suffer immediate and direct financial harm if the defendants allowed the action to go by default since ownership of the defendants' debt would thus be decided in a way which defeated the applicants' claim. The plaintiffs appealed against the order.

Held – A person had to have an interest directly related to the subject matter of an action before he was entitled to intervene in the action under RSC Ord 15, r 6(2)(b)(ii). A mere commercial interest in the outcome of the action, divorced from its subject matter, such as the interest of a creditor of one of the parties, was not sufficient to entitle a person to intervene. Since the question whether the defendants' debt was owed to the plaintiffs or the subsidiary was not in issue between any of those parties and the applicants, and since the Mareva injunction had not conferred on the applicants any proprietary interest in, or charge over, the moneys in the defendants' special account the applicants were not entitled to intervene in the action between the plaintiffs and the defendants. The judge therefore had no jurisdiction to order the applicants to be joined as defendants in the action. In any event, even if he had had jurisdiction he ought to have exercised his discretion by refusing to allow the applicants to be joined, because it was only in the most exceptional circumstances that a Mareva creditor ought to be permitted to intervene in an action where his interest in the outcome related solely to the fate of his injunction. The plaintiffs' appeal would therefore be allowed."

"In my view the rule requires some interest in the would-be intervener which is in some way directly related to the subject matter of the action. A mere commercial interest in its outcome, divorced from the subject matter of the action, is not enough. It may well be impossible, and would in any event be undesirable, to attempt to categorise the situations in which the interests of would-be interveners are sufficient to satisfy the requirements of the rule. The authorities show that the existence of a cause of action between the intervener and one of the parties is not a necessary prerequisite for this purpose. But they also go no further than to show that there must be some direct interest in the subject matter, such as an alleged infringement of a patent, trade mark or copyright with which the intervener is concerned (see Tetra Molectric Ltd v Japan Imports Ltd (Win Lighter Corp intervening) [1976] RPC 541 and Rexnord Inc v Rollerchain Distributors Ltd [1979] FSR 119), though even in such cases the interest of the intervener must raise an existing issue and not merely a contingent one (see Spelling Goldberg Productions Inc v BPC Publishing Ltd [1981] RPC 280). Another illustration is provided by cases where the intervener can show that he will in some way be compelled to 'foot the bill', depending on the outcome of the action (see Gurtner v Circuit [1968] 1 All ER 328 at 331, [1968] 2 QB 587 at 595), though I bear in mind that the wording of Ord 15, r 6(2) was then much narrower than it is now. However, as counsel for Metal rightly conceded, no case has gone so far as to allow intervention by someone who is only a creditor, or alleged creditor, with no more than a creditor's commercial interest in the outcome of the action, and in my view it makes no difference whatever that the creditor in question is one who has obtained a Mareva injunction whose fate may in some way depend on the outcome."

"It seems to me that, when two parties are in dispute in an action at law and the determination of that dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the court in its discretion may allow him to be added as a party on such terms as it thinks fit. By so doing, the court achieves the object of the rule. It enables all matters in dispute 'to be effectually and completely determined and adjudicated upon' between all those directly concerned in the outcome. I would apply this proposition to the present case. If the Motor Insurers' Bureau are not allowed to come in as a defendant, what will happen? The order for substituted service will go unchallenged. The service on the defendant will be good, even though he knows nothing of the proceedings. He will not enter an appearance. The plaintiff will sign judgment in default of appearance. The judgment will be for damages to be assessed. The master will assess the damages with no-one to oppose. The judgment will be completed for the ascertained sum. The defendant will not pay it. Then the plaintiff will be able to come down on the Motor Insurers' Bureau and call on them to pay because they have made a solemn agreement that they will pay. They made an agreement with the Minister of Transport on June 17, 1946, by cl. 1 of which they agreed that, if a judgment for an injured person against a motorist is not satisfied in full within seven days, the Motor Insurers' Bureau would pay the amount of the judgment to the injured person."

Later at p 331 he said

"It is thus apparent that the Motor Insurers' Bureau are vitally concerned in the outcome of the action. They are directly affected, not only in their legal rights, but also in their pocket. They ought to be allowed to come in as defendants. It would be most unjust if they were bound to stand idly by watching the plaintiff get judgment against the defendant without saying a word when they are the people who have to foot the bill."

"The bureau are plainly not 'a person who ought to have been joined as a party'. The action is perfectly well constituted without them. The question is whether, within the meaning of the rule, the bureau are 'a person … whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon … '."

"The bureau's legal obligation differs from the statutory obligation of an ordinary insurer under s 207 of the Road Traffic Act, 1960, owed to a judgment creditor in a running-down action to satisfy the judgment obtained against the assured, in that the insurer's legal obligation is directly enforceable by the plaintiff in the running-down action, whereas the bureau's legal obligation is not enforceable by the plaintiff himself but is enforceable for his benefit by the Minister who is not a party to the action. Clearly the rules of natural justice require that a person who is to be bound by a judgment in an action brought against another party and directly liable to the plaintiff on the judgment should be entitled to be heard in the proceedings in which the judgment is sought to be obtained. A matter in dispute is not, in my view, effectually and completely "adjudicated upon" (my italics) unless the rules of natural justice are observed, and all those who will be liable to satisfy the judgment are given an opportunity to be heard. In the case of an ordinary insurer, this does not arise in practice, since the standard terms of a third-party liability policy give to the insurer a contractual right to conduct the defence of the running-down action in the name of the assured. As I read his judgment in the Fire, Auto and Marine case, however, John Stephenson J would have allowed an ordinary insurer to be added as a party to a running-down action if the policy of insurance did not contain such a term; and this, I think, would be right.

"Having drawn attention to the undesirability of propounding general propositions, I desire to emphasise that my judgment in the present case is based on the special position of the bureau under their contract with the Minister. What reasons influenced the government to adopt this oblique and extra-statutory way of imposing liability on the bureau, despite the legal complications this involves, I do not know. The courts must, however, accept it as it is and try, so far as we are permitted by the rules, to make it work with justice to the bureau as well as to the persons for whose benefit the Minister made the contract. Nothing that I have said is intended necessarily to have any wider application than to this unique legal situation resulting from the Minister's contract with the bureau. I prefer to decide other cases on their own different facts when they arise."

"Accordingly if the relief sought by a plaintiff or, as in the present case, a counterclaiming defendant may affect a third person in respect of his legal rights or obligations the jurisdiction under the rule may arise.

No distinction is, I think, to be drawn here between rights and obligations at common law and equitable rights and obligations. The mere fact, however, that the relief may affect someone who is not a party in respect of his rights and obligations is not enough, in my judgment, to give rise to jurisdiction under the rule. In respect of anyone who is not a person 'who ought to have been joined as a party' it must also be demonstrated that he is a person ( see RESC Ord 15 r 6(2)(b) –

' …. whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon …'"

Thus he had in mind, the requirements of the rule as then drawn.

"Now, it has been said in the present case that the decision of the issues between the plaintiffs and the trustees will affect the Commissioners of Inland Revenue in their pocket because if the trustees succeed in their claim to be entitled to retain the dividends it may be that the liability of the estate to tax in respect of these dividends will disappear; and, therefore, it is said, this is a matter in which the Commissioners of Inland Revenue have an important interest affecting their pocket and it is desirable that they should be heard in these proceedings and that the judgment should be binding on them. But the position seems to me very different in the present case from the position in Gurtner v Circuit because there the whole point of the case was that there was no one to fight the plaintiff's claim unless the bureau was allowed to do so, and the bureau was the body that was going to have to meet the claim eventually. In the present case, however, there are the plaintiffs themselves who are concerned to dispute the case put forward by the trustees and the interests of the plaintiffs and the inland revenue go hand in hand except so far as the matter may be affected ex post facto by the deed of 19 January 1965 which, as I have pointed out, may have the result of leaving the estate liable for tax although the trustees are entitled to retain the dividends. But apart from that aspect of the matter, the plaintiffs and the inland revenue have an identical interest; and in those circumstances I do not think that it can be said that the presence of the Commissioners of Inland Revenue before the court is necessary to ensure that all matters in dispute in the cause or matter may be 'effectually and completely determined and adjudicated upon', and unless that can be said the case is not one which falls within the ambit of the rule at all."

"That wide interpretation was adopted and applied by this court in the recent case of Gurtner v Circuit. I know that there have been cases at first instance (such as Amon v Raphael Tuck & Sons Ltd, and Fire Auto and Marine Insurance Co Ltd v Greene), when the rule has been given a narrow interpretation. But that narrow interpretation should no longer be relied on. We will in this court give the rule a wide interpretation so as to enable any party to be joined whenever 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 different 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. Such different and inconsistent results are to be deplored and avoided. It can be done by bringing all parties before the court so as to have the issue finally decided between all of them and so that all be bound."

Sachs LJ also adopted the broader construction and Karminsky LJ followed Lord Denning MR.

"All matters in dispute in the action will, it seems to me, be effectually and completely disposed of without the Inland Revenue being added as a party. Their presence is not necessary to ensure that the court can effectually and completely determine whether Mr Vandervell was entitled to the beneficial interest in the shares and whether, if he was, the deed operated retrospectively so as to deprive his executors of a right to the dividends paid before its execution.

The rule does not provide that a party may be added on account of matters in dispute in another cause or matter. And even if it did, for the reasons I have given, it could not be said that the determination of the matter in dispute in this action would effectually and completely determine the liability to surtax. I do not regard the proceedings on the appeals against the assessments and this action as parallel proceedings, nor do I feel that it is accurate to say that the self same issue arises in both proceedings."

"3. The Court may order any question or issue arising in a cause or matter, whether of fact or of law or partly of law, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the questions or issue shall be stated."