Quatja v Badila
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 23 March 2018 |
| Neutral Citation | [2018] IEHC 202 |
| Docket Number | [2017 No. 353 CA] |
| Court | High Court |
| Date | 23 March 2018 |
[2018] IEHC 202
[2017 No. 353 CA]
THE HIGH COURT
Tort – Personal injuries – Damages & Restitution – Road traffic accident – Appeal – Judgment in default – Joinder of third party.
Facts: The second named defendant brought an appeal against the order of the Circuit Court for entering the judgment in default against the first named defendant on a motion for judgment in default of appearance filed by the plaintiff in the Circuit Court. The second named defendant alleged that there was collusion between the plaintiff and the first named defendant and the second named defendant had the pecuniary interest in the outcome of the case as it was the insurer/indemnifier of the first named defendant.
Mr. Justice MacGrath allowed the appeal and vacated the order of the Circuit Court. The Court noted that the judgment that was entered in default of appearance against the first named defendant by the Circuit Court Judge should be vacated and the said motion should be adjourned to the hearing of the action. The Court held that the second named defendant in the case must have locus standi on any particular application where such an application might affect the conduct of the case and had the potential to impact upon its liability and obligation to indemnify as statutory insurers.
The plaintiff resides at 26, Ashbrook, Oranmore, County Galway. At the time of the issuing of the proceedings, the defendant was resident at Ballybane, Galway.
The underlying proceedings arise out of a road traffic accident which occurred on 8th April, 2014. The plaintiff alleges that he was stopped at a junction at Headford Road, Galway when the defendant's vehicle drove into the rear of the his vehicle, in consequence of which he sustained loss of consciousness, injuries to his lumbar and cervical spine, grazing to his forehead and discomfort of his right knee.
The first named defendant was indemnified by AXA Insurance Limited (' AXA'). Following initial investigations, officials of AXA became suspicious of the circumstances of the accident which ultimately resulted in the company refusing to accept service of the proceedings and their application to be joined as co-defendant. AXA suspected that there was collusion between the plaintiff and the defendant.
When the matter came before the Personal Injuries Assessment Board, on 6th November, 2014, the application for assessment was rejected by AXA. An authorisation pursuant to provisions of the Personal Injuries Assessment Board Act issued on 14th March, 2016 and the personal injuries summons issued on 6th May, 2016.
The reasons for the suspicions of the insurance company are outlined in an affidavit sworn on 1st September, 2016 by Ms. Roisin McGuinness, insurance official of the second named defendant. She avers that on 11th April, 2014, the first named defendant made a statement to an AXA investigator in which he asserted that he did not know any of the passengers in the plaintiff's vehicle. However, it is sworn that three weeks prior to the defendant obtaining insurance cover, he applied to AXA in respect of a different vehicle and the address that he gave on that application was an email address of a passenger who was in the plaintiff's car at the time of the collision. It is also averred that he provided the mobile telephone number of that person as his own.
In addition it is averred that while the defendant maintained that he had three passengers in his vehicle, the gardaí did not observe one of the passengers at the scene, nor, when they were at the scene, were they told that such person was a passenger. No affidavit evidence was adduced from members of An Garda Síochána. Suspicion was also raised in respect of the post accident position of the vehicles and the finding of a claw hammer near the scene, noting that two windows in the car were broken.
In a replying affidavit of Mr. Quatja, sworn on 4th October, 2016, he vehemently denies that there is collusion and takes grave exception to the assertions in, and implications of Ms. McGuinness's affidavit.
AXA applied to the County Registrar to be joined as co-defendant to the proceedings. The Court understands that this application was made on the basis that if the plaintiff established negligence against the defendant then the plaintiff could seek to recover judgment against AXA pursuant to the procedures envisaged by s. 76 of the Road Traffic Act 1961; and that therefore AXA had a proprietary and pecuniary interest in the outcome of the case and were entitled to be joined as parties thereto.
On 10th October, 2016, the County Registrar ordered that AXA be joined as co-defendants and that the title of the proceedings be amended accordingly.
AXA has delivered a full defence alleging, inter alia, that the collision was stage managed between the plaintiff and the defendant. An affidavit of verification of the defence has been sworn by Ms. McGuinness.
The order of the County Registrar was not appealed and therefore, in consequence, the entitlement of AXA to participate in these proceedings is established.
The rationale of the joinder of an insurance company in a case such as this was addressed by Kearns P. in McDonagh v. McDonagh [2015] IEHC 543 where he observed:-
'This is not a case, as referred to in Barlow and Others v Fanning & UCC [2002] 2 IR 593, where the applicant seeks to be joined merely because its reputation is at risk and they wish to defend it. Nor is the applicant seeking to be joined simply because it is interested in the proceedings, as opposed to having a genuine legal interest in the outcome of the proceedings. The applicant insurer's proprietary or pecuniary rights are very much at stake in these proceedings. If judgment is entered against the defendant, the plaintiff may then seek to execute the judgment against the applicant under s.76.'
Kearns P. noted that there was no statutory provision precluding such joinder and recognised the ever increasing exhortations of appellate courts to permit a notice party to be joined, in order to ensure that cases and legal business in general be disposed of efficiently and expeditiously. Further, in the particular circumstances of the case, he also referred to the fact that EC Motor Regulations now expressly provide that insurers may be sued directly. These were factors strongly in favour of the course sought by the applicant in that case. Kearns P. was satisfied that it was clear that fraud was being alleged against the plaintiff and while the applicant insurance company would not be restrained by s. 76(e) from defending such application on the basis of fraud, the court was satisfied that requiring the applicant to defend a s. 76 application rather than joining them as a party to the proceedings, would be an inefficient use of court time and would cause unnecessary costs to be incurred by the parties.
In the Court's view, AXA's locus standi has been acknowledged by the making of the order by the County Registrar. It is implicit in the making of that order that this is an exceptional case and that AXA has a necessary proprietary or pecuniary right and interest in the outcome of the proceedings. In McDonagh, Kearns P. accepted that it was appropriate that the indemnifier be joined to the proceedings as notice party rather than defendant. No issue has been raised in this case on the joinder of AXA as a defendant, rather than as notice party. In McDonagh v. Ward [2017] IEHC 513, a decision of Meenan J., the insurance...
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Fergus Slattery v Gerard McCoy
...of the proceedings. For example, there is a line of case law most recently considered by MacGrath J in Quatja v Badila and Axa Insurance [2018] IEHC 202 dealing with the position of insurers in road traffic cases. Insurers are nominally strangers to the litigation between plaintiff and defe......