McDonagh v Ward and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 31 July 2017
• Neutral Citation: [2017] IEHC 513
• Date: 31 July 2017
• Court: High Court
• Docket Number: [2017 No. 12 C.A.T.] [2017 No. 11 C.A.T.]

[2017] IEHC 513

THE HIGH COURT

Meenan J.

[2017 No. 12 C.A.T.]

[2017 No. 10 C.A.T.]

[2017 No. 11 C.A.T.]

BETWEEN

WINIFRED MCDONAGH

PLAINTIFF

AND

HELEN WARD

AND

ANTHONY WARD

DEFENDANTS

BETWEEN

MARTIN WARD

PLAINTIFF

AND

HELEN WARD

AND

ANTHONY WARD

DEFENDANTS

BETWEEN

PATRICK WARD [A MINOR]

PLAINTIFF

AND

HELEN WARD

AND

ANTHONY WARD

DEFENDANTS

Tort – Damages & Restitution – Motor vehicle accident – Personal Injuries – S.76 of the Road Traffic Act, 1961 – Decline of indemnity to defendants – Right to join as co-defendant – Exceptional circumstances

Facts: The plaintiffs filed an appeal against the order of the Circuit Court to the effect that the insurer should be joined as a notice party in the plaintiffs' claim for damages. The plaintiffs were passengers in a car that was driven by the first named defendant and owned by the second named defendant. The insurer of the defendants, after inspection, declined the indemnity to the defendants and proposed to the plaintiffs to allow that insurer to be joined as a co-defendant. The key issue arose as to the circumstances in which a Court might add a defendant to the proceedings despite the objections from the plaintiffs. The plaintiffs contended that there were no exceptional circumstances, such as existence of fraud in the present case, which would warrant the insured to be joined as a co-defendant in the proceedings.

Mr. Justice Meenan refused the application of the plaintiffs. The Court observed that the insurer had a proprietary or a pecuniary and was directly affected by the proceedings either legally or financially. The Court held that the insurer had satisfied the exceptional circumstances test and ought to have been joined as a co-defendant in the proceedings. The Court noted that fraud was not necessary to establish exceptional circumstances. The Court held that it would be more efficient use of the Court's time if all the issues had been resolved at one hearing.

JUDGMENT of Mr. Justice Meenan delivered on the 31st day of July, 2017.

Background

1 The above entitled proceedings arise out of a car accident that took place on or about 21st October, 2013, on the public highway at or near Caltralea, Ahascragh, Ballinsloe, Co. Galway. Each of the plaintiffs were passengers in a car which was then driven by the first named defendant and owned by the second named defendant. It is alleged that, by reason of the negligence and breach of duty of the defendants, the car veered out of control and collided with a sign post as a consequence of which the plaintiffs sustained personal injuries loss and damage.

2 At the time of the collision, the second named defendant held a policy of insurance with Zurich Insurance plc. ('Zurich') in respect of the car; therefore, Zurich were the relevant motor liability insurer for the second named defendant and the driver of the car, the first named defendant.

3 Zurich were duly notified of the claim and then carried out investigations. Following the investigations Zurich decided to decline indemnity to the defendants. The reason for this was set out in a letter dated 29th April, 2015. Zurich relied upon a condition of the insurance policy to the effect that Zurich would not be liable in respect of any claim arising when the car was being used or driven 'to the knowledge of the insured in an unsafe and unroadworthy condition.' The letter stated that, following an inspection of the car, it was noted that the tyre thread depth of two of the tyres was below the legal limit and that the condition of the tyres contributed to the accident.

4 It was stated that the second named defendant had confirmed that he was aware of the condition of the tyres in advance of the accident but had not made any arrangements to replace the tyres. The letter also noted that the second named defendant was subsequently convicted and fined arising out of the condition of the two tyres.

5 In particular, for the purposes of this application, the letter further stated:-

'If we are forced under s. 76 of the Road Traffic Act 1961 to deal with the third party claims, we will seek to recover all sums paid from you.

Please sign the enclose (sic) mandate authorising us to deal with the claim on your behalf and return it to this office'.

Under the enclosed mandate the defendants would agree to pay to Zurich all sums paid by it in respect of any settlement or judgment arising from the accident.

6 By letter dated 30th April, 2015, solicitors, instructed by Zurich, wrote to the solicitors on record for the plaintiffs advising them that the indemnity had been declined and proposing that Zurich be joined in the proceedings as a co-defendant. There was no response to this letter. In further correspondence, solicitors for the plaintiffs declined to agree to Zurich being joined as a co-defendant in each of the above proceedings.

7 Subsequently a successful application was made to the County Registrar of Co. Galway to join Zurich as a notice party in the above proceedings. This order was confirmed by the Circuit Court. The plaintiffs have appealed the Circuit Court order to this Court.

8 Thus the issue before this Court are the circumstances under which a court may add a defendant to proceedings despite objections from the plaintiff.

Submissions of the Parties

9 Zurich ground their application on the affidavit of Mr. David Snow, claims officer, who deposes to the facts set out in the paragraphs above. It is clear from the affidavit, and was confirmed in the course of submissions, that Zurich is not alleging fraud against either of the defendants.

10 While Zurich accept the general principle that a plaintiff is entitled to sue only whom it wishes, they say this principle, on the authorities, is subject to exceptions, in particular, where there are 'extraordinary...