McDonagh v McDonagh

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 24 July 2015
• Neutral Citation: [2015] IEHC 543
• Court: High Court
• Date: 24 July 2015

[2015] IEHC 543

THE HIGH COURT

[No. 9 CA/2015]

McDonagh v McDonagh

BETWEEN:

CELINE McDONAGH

PLAINTIFF

AND

JOHN McDONAGH

DEFENDANT

Damages & Restitution – Practice & Procedures – O. 6, r. 4 of the Circuit Court Rules 2001 as substituted by r. 7 of the Circuit Court Rules (General) 2007 – S. 76 (1) of the Road Traffic Act 1961 – Joinder of parties – Legitimate interests

Facts: The applicant/insurer had applied for an order for reversing the decision of the Circuit Court dismissing the appeal of the applicant from an order of the County Registrar refusing the application of the applicant to be joined as a co-defendant in the proceedings initiated by the plaintiff for personal injuries against the defendant. The applicant alleged that since it refused to indemnify the defendant on the basis of inconsistencies, it was a necessary party to the suit.

Mr. Justice Kearns P. granted an order to the applicant that he should be joined as the notice party to the aforesaid proceedings. The Court held that the general rule as envisaged under o.6, r. 4 of the Circuit Court Rules 2001 was that the plaintiff was entitled to choose the person against whom he wished to pursue his claim for the desire relief sought and he could not be compelled to proceed against his desire. The Court however, observed that said o. 6 also permitted the Court to allow joinder of parties provided it was necessary for the adjudication of the issues between the parties. The Court held that in the subject case, the pecuniary interest of the applicant was at stake because if the plaintiff was successful in obtaining judgment in her favour, the execution of the judgment would be made against the applicant under s. 76 of the Road Traffic Act, 1961. The Court held that it would be appropriate for a third person against whom no relief had been sought to be joined as a notice party rather than a defendant.

1 JUDGMENT of Kearns P. delivered on 24th day of July, 2015

2 The applicant, RSA Insurance Ireland Limited, wishes to be joined as either a defendant or notice party to these proceedings. In this appeal, the applicant seeks to reverse the decision of the Circuit Court dated 16 ^th January, 2015 whereby it dismissed the applicant's appeal from an order made by the County Registrar for the Counties of Laois and Offaly dated 17 ^th November, 2014 refusing the applicant's application, brought pursuant to Order 6, Rule 4 of the Circuit Court Rules 2001, to be joined as a co-defendant to the proceedings.

BACKGROUND

3 The plaintiff and the defendant are brother and sister. On or about 18 ^th November, 2012 the plaintiff was a passenger in the defendant's motor vehicle on the Tullamore to Mountmellick Road when it is alleged that, owing to negligence and breach of duty, including breach of statutory duty, on the part of the defendant, his vehicle collided into the rear of a stationery vehicle causing the plaintiff to suffer severe personal injuries, loss, damage, and expense. The plaintiff commenced personal injuries proceedings by Civil Bill in the Circuit Court on 7 ^th November, 2013.

4 The defendant's insurer, RSA Insurance Ireland Ltd., has declined to indemnify the defendant arising from what are alleged to be 'material inconsistencies' in accounts furnished in relation to the road traffic accident. The defendant was notified of the refusal of indemnity by letter dated 16 ^th May, 2014. In effect, the insurers in this case believe this to be a fraudulent claim.

5 By notice of motion dated 1 ^st August, 2014 the applicant sought an order pursuant to Order 6, Rule 4 of the Circuit Court Rules 2001 to be joined as a co-defendant to the proceedings. This application was refused by the County Registrar on 17 ^th November, 2014. The Circuit Court then dismissed the applicant's appeal of this order on 16 ^th January, 2015.

6 The matter came before this Court on 29 ^th April, 2015. Following submissions by counsel for all parties the matter was adjourned to allow the applicant to deliver a supplemental affidavit setting out the basis upon which the applicant could reasonably allege, or undertake to allege fraud in these proceedings.

STATUTORY PROVISIONS

7 Order 6, rule 4 of the Circuit Court Rules 2001 was substituted by Rule 7 of the Circuit Court Rules (General) 2007 ( SI No. 312 of 2007) which provides as follows -

"No action, cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Judge may in every action, cause or matter deal with the subject in controversy so far as regards the rights and interests of the parties actually before him. The Judge may, at any stage of the proceedings, either upon or without the application of any party, and on such terms as may appear to him to be just, order that the name of any party, whether plaintiff or defendant, who has been improperly joined, be struck out, and that the name of any person who ought to have been joined as a party, or whose presence before the Court may be necessary in order to enable the Judge to adjudicate upon and settle all the questions involved in the cause or matter, be added as a plaintiff or a defendant. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his consent in writing thereto. Every person whose name is so added as defendant shall be served with a Civil Bill in such manner as may be prescribed by any Order of the Court, and the action, cause or matter, as against such party, shall be deemed to have begun only on the making of the Order adding such party."

8 The issue of joinder of parties is dealt with in the Rules of the Superior Courts at Order 15, rule 13 which is in near identical terms.

9 The opposition to any joinder of the insurance company is based on the simple proposition that a plaintiff cannot be forced to sue a party he does not wish to sue and that a specific statutory procedure exists which adequately addresses the situation which the insurers wish to address in bringing this application. That is contained in section 76(1) of the Road Traffic Act 1961 which provides as follows -

10 76.-(1) 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, and upon the service of the notice such of the following provisions as are applicable shall, subject to subsection (2) of this section, have effect:

11 a (a).....

12 b (b).....

13 2 (c) where the claimant has so recovered judgment for the sum, or after service of the notice so recovers judgment for the sum or any part thereof and has not recovered from the owner or user or such insurer or guarantor the whole amount of the judgment, the claimant may apply to the court in which he recovered the judgment for leave to execute the judgment against the insurer or guarantor, and thereupon the court may, if it thinks proper, grant the application either in respect of the whole amount of the judgment or in respect of any specified part of that amount;

14 3 (d) where the claimant has not so recovered judgment for the sum, the claimant may apply to any court of competent jurisdiction in which he might institute proceedings for the recovery of the sum from the owner or user for leave to institute and prosecute those proceedings against the insurer or guarantor (as the case may be) in lieu of the owner or user, and the court, if satisfied that the owner or user is not in the State, or cannot be found or cannot be served with the process of the court, or that it is for any other reason just and equitable that the application should be granted, may grant the application, and thereupon the claimant shall be entitled to institute and prosecute those proceedings against the insurer or guarantor, and to recover therein from the insurer or guarantor any sum which he would be entitled to recover from the owner or user and the payment of which the insurer or guarantor has insured or guaranteed;

15 4 (e) the insurer or guarantor shall not, as a ground for refusing payment of moneys to the claimant or as a defence to proceedings by the claimant, rely on or plead any invalidity of the policy or guarantee arising from any fraud or any misrepresentation or false statement (whether fraudulent or innocent) to which the claimant was not a party or privy and which, if constituting a misdemeanour under this Part of this Act, was not the subject of a prosecution and conviction under the relevant section of this Act.

SUBMISSIONS OF THE APPLICANT

16 When the matter came before this Court on 29 ^th April, 2015 the Court directed that an affidavit setting out the basis for joining the applicant for the purposes of enabling the applicant to plead that a fraud had been perpetrated in relation to the claim. An affidavit was filed on 7 ^th May, 2015 by Joyce Foley, an employee of the applicant insurance company who is assigned to their investigation unit. It is averred that during the course of an investigation into...