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Clarity for Insurers Seeking to Join Proceedings
The April 2018 decision of Bin Sun v Jason Price(1) provides a useful summary of the circumstances in which a party can be joined as co-defendant against the wishes of the plaintiff.
The case related to a road traffic accident and the defendants were insured by Bump Insurance. The insurer had carried out an investigation, which uncovered that some of the occupants of the car were known to each other. The insurer refused to indemnify the defendants, and was concerned that if the plaintiff was successful in his action, he would seek to enforce his award pursuant to Section 76 of the Road Traffic Act 1961. Section 76 facilitates a claimant in a road traffic case, who has recovered judgment against the owner or user of the vehicle who is covered by a policy of insurance, to enforce the judgment against the insurer.
The insurer applied to the court to be joined as a party to proceedings. The plaintiff objected to the application. The master of the High Court initially refused the application, and the insurer appealed to the High Court.
Overturning the decision of the master, Mr Justice Barrett summarised the "exceptional circumstances" required to join a co-defendant to private inter partes proceedings where a plaintiff objects. He outlined the following circumstances required for a would-be applicant or defendant who:
- should have been joined as a defendant in the first instance by the plaintiff;
- will, as a matter of probability, be necessary to allow the court to effectively and completely adjudicate the matter and settle all questions;
- may have their proprietary or pecuniary rights affected, either legally or financially, by any order in the action; and
- may be rendered liable to satisfy any judgment (directly or indirectly).
Where these circumstances are present, the party may be joined, subject to the proviso that:
- the interests of justice are served by adding the would-be defendant (it is perhaps in this context that any potential prejudice resulting from the joinder falls most heavily to be weighed); and
- joining the would-be added defendant serves the court's interest in seeing that:
- litigation is properly conducted; and
- its processes are operated in such a way that is just and fair and in the interest of the would-be added party.
Barrett clarified that fraud is not a necessary ingredient but could be an additional or relevant factor that leads the court to find that exceptional circumstances are present. The court further held there to be no prejudice to the other parties, as the insurer provided a "notable" undertaking to discharge any award for damages or costs made in favour of the plaintiff, and to discharge any reasonable costs incurred by the defendants. The court also referred to the additional benefit that all issues between the parties could be dealt with at once.
This decision provides useful clarity for insurers as to the circumstances in which an insurer could seek to be joined to proceedings at first instance, which could prevent or substantially reduce their exposure in a subsequent application by a claimant to enforce against an insurer. While this decision was made in the context of Section 76 – which is limited to road traffic cases – Section 62 of the Civil Liability Act is similar but applies more broadly to all types of insurance and therefore this case could potentially have a much wider remit.
(1)  IEHC 201.
This article first appeared in the International Law Office Insurance Newsletter on 16 April 2019, and was co-authored by Solicitor Siofra Maguire.