Barlow v Fanning

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Keane C.J.
• Judgment Date: 02 July 2002
• Neutral Citation: [2002] IESC 53
• Docket Number: [S.C. No. 264 of 2000]
• Date: 02 July 2002

BARLOW & ORS v. FANNING & UNIVERSITY COLLEGE CORK (UCC)

BETWEEN:

ANTHONY BARLOW, MARTIN KENNEALLY AND MICHAEL Ó SUILEABHAIN

PLAINTIFFS/RESPONDENTS

AND

CONNELL M FANNING

FIRST NAMED DEFENDANT/RESPONDENT

AND

UNIVERSITY COLLEGE CORK

SECOND NAMED DEFENDANT/APPELLANT

[2002] IESC 53

Keane C.J.

McGuinness J.

Fennelly J.

264/00

THE SUPREME COURT

Synopsis:

PRACTICE AND PROCEDURE

Addition of party to proceedings

Appeal against order of the High Court adding a party as a co-defendant - Whether such party ought to have been joined - Whether such party's presence before the court necessary to enable court effectually and completely adjudicate upon and settle all questions involved in cause - Whether fact that good name and reputation of party seeking to be joined may be adversely affected by outcome of proceedings a sufficient ground for joining that party - Rules of the Superior Courts 1996, Order 15, rule 13 (264/2000 - Supreme Court - 2/7/2002)

Barlow v Fanning - [2002] 2 IR 593 - [2003] 1 ILRM 29

Facts: It had been initially agreed between the first and the second defendant that the defence to the proceedings would be conducted on behalf of both of them by the second defendant's solicitors. On the 8th June 1999, the plaintiffs' solicitors filed a notice of discontinuance of their claim against the first defendant. The first defendant was of the view that the plaintiffs had adopted this procedure in order to prevent him from defending his reputation and that it was designed to facilitate a settlement between the plaintiffs and the second defendant in which he would not be consulted. An application was, accordingly, made on his behalf to the Master of the High Court pursuant to Order 15, Rule 13, R.S.C. for an order "rejoining" him as a defendant in the proceedings. The Master having refused to grant the order sought, an appeal against that refusal came before the High Court which allowed the appeal. From that judgment and order, the second defendant appealed to the Supreme Court.

Held in allowing the appeal and substituting for the order of the High Court an order dismissing the application that there must be exceptional circumstances before a person could be joined as a defendant against the wishes of the plaintiff and that no exceptional circumstances of that kind existed in the present case. The court was satisfied that Order 15, Rule 13, R.S.C. could not be so construed that a person in the position of the first defendant , whose good name and reputation may be adversely affected should the plaintiffs succeed in the present action, should be regarded as a party who ought to have been joined or whose presence before the court was necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter. This was especially so where that had been the sole ground advanced by the first defendant for joining him and where the remaining parties to the proceedings were also opposed to his being joined. It also applied to a case such as the present where a plaintiff issued proceedings against more than one defendant and, for whatever reason, discontinued the proceedings against one of the defendants.

Citations:

RSC O.15 r13

FINCORIZ SAS V ANSBACHER & CO LTD UNREP LYNCH 20.4.1987 1987/2/592

VANDERVELL TRUSTEES LTD V WHITE 1971 AC 912

AMON V RAPHAEL TUCK & SONS LTD 1956 1 KB 357

VANDERVELLS TRUSTS WHITE & ORS V VANDERVELL TRUSTEES LTD & INLAND REVENUE COMMISSIONERS 1970 CH 44

RULES OF THE SUPREME COURT O.15 r62(b)(ii)

RULES OF THE SUPREME COURT O.15 r62(b)(i)

HALSBURYS LAWS OF ENGLAND 4ED V37 PARA 226

1 JUDGMENT delivered the 2nd day of July, 2002 by Keane C.J. (Nem diss)

2 The background to this protracted litigation is a dispute in the economics department of the second named defendant (hereafter "the University"). The first named defendant/respondent (hereafter "Professor Fanning") is Professor of Economics in the University and head of the department.

3 These proceedings began in 1998. In them, the plaintiffs, who are two present members of staff, and one former member of staff, in the economics department, claim inter alia damages for negligence and breach of contract against Professor Fanning and the University. In their statement of claim, they plead that the former:

4 (1) refused to involve them in the administration and development of the department;

5 (2) isolated and marginalised them within the department:

6 (3) refused their access to sabbatical leave;

7 (4) frustrated their chances of promotion;

8 (5) refused to consider them for any administrative post within the department;

9 (6) refused to permit them participate on interview boards and departmental committees;

10 (7) failed to listen to their grievances and refused them appropriate office and computer equipment;

11 (8) used abusive and intimidating language to them and about them;

12 (9) discouraged other members of staff from making contact with them or co-operating with them;

13 (10) discriminated against them generally; and

14 (11) failed to take sufficient measures to protect their interests and reputations.

15 The plaintiffs claim that the University authorities are vicariously responsible for the alleged acts or omissions on the part of Professor Fanning: it is also alleged against them that they failed to supervise the administration by Professor Fanning of the department, failed to mediate between the plaintiffs and Professor Fanning and, in general, failed to monitor affairs in the department and to appreciate and address and concerns of the plaintiffs.

16 It was initially agreed between the University and Professor Fanning that the defence to these proceedings would be conducted on behalf of both of them by the University's solicitors. An appearance on behalf of both of them was accordingly entered on 30th March 1998, following which a detailed notice of particulars was served on their behalf and responded to on behalf of the plaintiffs.

17 On the 8th June 1999, the plaintiffs" solicitors filed a notice of discontinuance of their claim against Professor Fanning. This followed the institution of a mediation process in the University in which the plaintiffs, Professor Fanning and the University were, initially at all events, involved. However, Professor Fanning became dissatisfied with the manner in which the mediation procedure was being conducted by the University and was of the view that it was in breach of the agreement he had reached with the University as to the joint defence of these proceedings. This ultimately led to the institution of a new set of proceedings by Professor Fanning against the University.

18 Also on the 8th June 1999, the solicitors for the plaintiffs wrote to the solicitors for the defendants in these proceedings as follows:

"Our clients want the mediation process to continue to its conclusion in the hope and expectation that it will resolve all matters in issue between our clients on the one hand and [the University] and Professor Fanning on the other hand."

"It would now appear to our clients, however, that the inclusion of Professor Fanning as a joint defendant in our clients" proceedings is, in part at least, inhibiting the mediation process from continuing to a successful conclusion. Accordingly, our clients have now instructed us to unconditionally serve a notice of discontinuance of the above proceedings against [Professor Fanning]. while reserving the right to continue the proceedings against [the University] alone in the unfortunate event that an amicable resolution of the matters at issue cannot otherwise be achieved."

19 The letter also stated

"For the avoidance of any possible doubt, we wish to confirm on behalf of our clients that in no circumstances whatsoever will our clients issue further...