In (1) Dornoch Ltd (On Its Own Behalf & On Behalf Of All Other Underwriting Members Of Sydicate 1209 For The 2007 Year Of Account) (2) Royal & Sun Alliance Insurance Plc (3) Aspen Insurance UK Ltd & Ors v (1) Westminster International BV (2) Koninklijke Boskalis Westminster NV (3) Boskalis Westminster Ltd (4) Nigerian Westminster Dredging & Marine Ltd - Lawtel 17.2.09 the Applicant excess layer underwriters applied under CPR r.19.2 to join the primary layer underwriters as defendants to the action so that they would be bound by the court's determination of the issues which arose between all of the underwriters. The Defendants (the subject vessel’s owners) objected to the joinder of the primary layer underwriters as additional defendants because that would be contrary to the exclusive Dutch jurisdiction clause in the primary layer policy, upon which they wished and were entitled to rely. The Applicants submitted that they were entitled as of right to join the additional defendants pursuant to Article 6(1) of Regulation 44/2001. The Defendants submitted that the joinder of the proposed additional defendants was neither necessary nor desirable: if the primary layer underwriters consented to be joined and proposed simply to follow or to adopt the stance taken by the excess layer underwriters, then presumably they would be willing to agree to be bound by the decision of the court without the necessity for their joinder as parties.
The Admiralty Court held that the Applicants would not be entitled as of right to the joinder of the proposed additional defendants even if the Regulation allocated relevant jurisdiction. The Regulation might sometimes require a court to stay its own proceedings or to decline jurisdiction but neither art.6 nor art.24 compelled the court to exercise the jurisdiction with which it was thereby invested. So far as concerned joinder in an existing action, CPR r.19.2 conferred upon the court a discretion.
In this case it appeared that the primary layer underwriters had not in fact been asked whether they would simply agree to be bound, as between themselves and the excess layer underwriters, by the court's determination. There was no reason in principle why the primary layer underwriters should not agree to be so bound. Joinder was not shown to be necessary. It followed that it was not necessary to decide whether reliance by the insured upon the Dutch exclusive jurisdiction clause represented a complete bar to joinder of the primary layer underwriters as defendants.