It seems unusual that an insurer would actually seek to join itself to a set of existing proceedings. However such an application was the subject of a recent High Court decision delivered on 19 April 20181.
The proceedings concerned a road traffic accident where the plaintiff was travelling as a passenger in a motor vehicle which was collided into by a vehicle owned and insured by Jason Price. The driver of the vehicle was John Price who was a named driver on Jason Price's policy.
Jason Price held a policy of insurance with Bump Insurance. Bump Insurance carried out an investigation into the accident. It had a number of concerns about the exact circumstances of the accident, in particular the alleged accidental nature of the incident. Bump Insurance then decided to refuse to provide an indemnity to the defendants.
Bump Insurance wanted to bring a number of matters to the attention of the court including their allegation that the occupants of each vehicle are well known to each other. They applied to the Master of the High Court to be joined to proceedings as a co-defendant. This application was refused and Bump Insurance appealed the Master's decision.
Bump Insurance was concerned that in the event that Mr. Sun was successful in his action he would then invoke the provisions of Section 76 of the Road Traffic Act 1961 against them. Section 76 provides that:
"Where a person (in this section referred to as the claimant) claims to be entitled to recover from the owner of a mechanically propelled vehicle or from a person (other than the owner) using a mechanically propelled vehicle (in this section referred to as the user), or has in any court of justice (in proceedings of which the vehicle insurer or vehicle guarantor hereinafter mentioned had prior notification) recovered judgment against the owner or user for, a sum (whether liquidated or unliquidated) against the liability for which the owner or user is insured by an approved policy of insurance or the payment of which by the owner or user is guaranteed by an approved guarantee, the claimant may serve by registered post, on the vehicle insurer by whom the policy was issued, or on the vehicle insurer or the vehicle guarantor by whom the guarantee was issued, a notice in writing of the claim or judgment for the sum."
In order for Bump Insurance to make a successful application to join themselves as co-defendants they must fall under one of the following circumstances as laid out generally under Order 15, Rule13 of the Rules of the Superior Courts 1986 and considered in previous case law:
1. The would-be defendant is a person who ought to have been joined as defendant by the plaintiff in the first instance2;
2. It is shown at the time of the joinder application that the wouldbe defendant's presence before the court of trial will as a matter of probability be necessary to enable the court effectually and completely to adjudicate upon and settle all questions in the cause or matter3;
3. The would-be defendant's proprietary or pecuniary rights are or may be directly, as opposed to merely `precedentially', affected by the proceedings either legally or financially, by any order which may be made in the action4; and
4. The would-be defendant may be rendered liable to satisfy any judgment either directly or indirectly5.
They also must prove the following in all instances:
A. The interests of justice are served by adding the would-be defendant;
B. Joining the would-be defendant serves the court's interest in seeing that (a) litigation is properly conducted, and (b) its processes are operated in such a way that is just and fair and in the interest of the would-be party6.
Mr Justice Max Barrett of the High Court ultimately allowed the appeal and allowed Bump Insurance to be joined as a co-defendant having met the requirements under sections 3 and 4 listed above. The court also held that it satisfied sections A and B listed above in that it would be more efficient and cost effective to hear all issues arising at the same time.
This is a welcome decision for insurers as it means that they can apply to be joined to proceedings, even after refusing to provide an indemnity. This allows insurers to have more control over the proceedings and also to provide ongoing assistance to the court in reaching their determination.