ADDITIONAL PARTIES CANNOT BE ADDED IF THERE IS NO CONNECTION TO CURRENT ACTION: THE ABC OF XYZ

In the latest decision in the XYZ case [2014] EWHC 4056 (QB) Mrs Justice Thirlwall DBE rejected an application that the insurers of the defendants be joined into the action.  There was no real connection between the issues in the action and the declarations sought from the proposed new defendants. There are important observations that general case management powers cannot be used to override the specific requirements in the rules.

THE ACTION

Around 1000 female claimants are bringing actions against companies running private hospitals for supplying defective implants used in breast implant surgery.

THE INSURANCE POSITION OF THE DEFENDANTS

In an earlier judgment one of the defendants had been ordered to file a witness statement in relation to its insurance position. Some of the defendants brought their insurers into the action.

One of the defendants, Clover Leaf, made no application to join its insurers. Clover Legal had no assets.  One of the defendants sought to join Clover Leaf’s insurers into the action for the purpose of obtaining a declaration in relation to their liability to indemnify.

THE JUDGE’S FINDINGS

1.  There was no issue between the two insurers that was connected to issues in the  main action as required by CPR 19.2(b). This dispute was quite separate.

2. An order could not be made under CPR 20.9.2(a) and (c) because there was no connection between the proposed claims for a declaration and the current actions.

THE ARGUMENT THAT THIS COULD BE DONE AS A RESIDUAL “CASE MANAGEMENT” POWER

This argument was roundly rejected by the judge.

CPR 3.1 (2) (m)

  1. Finally Travelers submit that the orders may be made pursuant to my general case management powers under CPR 3.1 (2) (m). I disagree. I accept that the CPR may be applied flexibly and even imaginatively in furtherance of the overriding objective but in my judgment it is not permissible to use a general case management power in such a way as to circumvent the effect of specific rules, here CPR 19 and 20. This application is designed to establish in advance how much money is available from Amlin. That is not a matter of case management.

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