Dornoch v Westminster International [2009] EWHC 201 (Admlty) relates the right of marine insurers under the Marine Insurance Act 1906 to take over a vessel after it has become a constructive total loss as the result of a collision.
This preliminary hearing concerned the court's power to order a person to be added as a new party, in the context of the EC regulation on jurisdiction in international cases (Council Regulation (EC) No. 44/2001) (Jurisdiction Regulation). This regulation came into play because the parties were domiciled in various EC countries.
The claimants, excess layer insurers, wished to join the primary layer insurers as additional defendants to the existing defendants (which included the insured in respect of the vessel), because they wanted all insurers to be bound between themselves by the court's determination of the issues in the case.
The primary layer insurers were in favour of being joined as additional defendants. The existing defendants, however, objected to their joinder. They objected on the basis that the primary layer policy was governed by a Dutch exclusive jurisdiction clause, which they argued would be subverted by the joinder of the primary layer insurers to the English High Court proceedings; and, as the judge suggested, perhaps also for "tactical and obstructive" reasons.
Accordingly, it fell to the court in this preliminary hearing to decide whether, on the one hand, the primary layer insurers were entitled as of right to join the proceedings as additional defendants, or, on the other hand, whether the court had discretion as to permitting them to join. The judge held that he had discretion under the Civil Procedure Rules (CPR 19.2). He decided that the court was not compelled by the Jurisdiction Regulation to accept jurisdiction in relation to the primary layer insurers as additional defendants.
Exercising his discretion, the judge decided not to join the primary layer insurers to the proceedings, because it had not been shown that this was necessary. The primary and excess layer insurers could simply agree to be bound as between themselves by any decision of the court.