JOINDER OF NEW PARTIES INTO EXISTING PROCEEDINGS 1: NOTIFY THE EXISTING PARTIES: THE RULES DON’T SAY SO BUT COMMON SENSE DOES

There are a few interesting procedural matters that flow from the decision of HHJ Kimbell QC (sitting as a High Court judge) in  Molavi v Hibbert & Ors [2020] EWHC 121 (Ch).  Here we look at the judge’s comments on the need to notify the existing parties when an application is made to join new parties. This is not mentioned expressly in the rules but is required as a matter of common sense, and to comply with the overriding objective.

“Whilst it is true, that the CPR 19.2(2) does not expressly require all applications to join or substitute a party to be served on the existing parties, it seems to me to be a matter of common sense that the existing parties to these proceedings ought to be served with copies of the application notice and evidence”

THE CASE

The claimant brings an action alleging breach of various intellectual property rights by the existing defendants in relation to the development certain television programmes. She attempted to join in additional defendants.

NOTIFICATION OF THE EXISTING DEFENDANTS

The judge observed that the existing defendants had not been served with the application and evidence in support, although they did attend the hearing. The judge held that the failure to serve the existing defendants was a mistake.

  1. The joinder application was not listed for hearing until 27 November 2019. It occupied a day of court time. At the hearing Mr Engelman relied on a 39 page skeleton argument dated 22 November 2019 and three witness statements by the Claimant dated 12 December 2018, 9 May 2019 and 26 June 2019. I will refer to these statements as Molavi 1,2 and 3 respectively. It was Molavi 2 which was referred to in the application notice as supporting the application.
  2. Mr Norris, who appeared on behalf of he BBC relied on his skeleton served for the hearing listed in July and the witness statements of Richard Stokes dated 13 June 2019 and 11 July 2019, Virginia Gilbert dated 12 June 2019, Stephen Wright dated 13 June 2019 and 11 July 2019 and Dr Dean (undated).
  3. Mr Cronan, who appeared on behalf of Mr McCrery relied on a skeleton updated since the hearing July 2019 and the evidence served by the BBC supplemented by two short witness statements from Mr McCrery.
  4. The evidence filed for the application ran to five lever arch files in total.
  5. Neither of the Defendants to the ITV claim were served with notice of the joinder application. In letters sent by Mr Engelmann to both Defendants dated 11 June 2019, they were informed that as the joinder application was not “against” them there was no need for notice to be given or for the evidence in support of the application to be made available to them.
  6. In my judgment the refusal of the Claimant to serve the application and supporting evidence on the Defendants was mistaken. Whilst it is true, that the CPR 19.2(2) does not expressly require all applications to join or substitute a party to be served on the existing parties, it seems to me to be a matter of common sense that the existing parties to these proceedings ought to be served with copies of the application notice and evidence.
  7. Where the addition of one or more parties will potentially increase the cost, delay or length of the existing proceedings, in my judgment, the existing parties ought to be served with the application and evidence in support. This was the practice in the Chancery Division under RSC O.15 r. 6: see The Supreme Court Practice 1999 Vol 1 15/6/17 at p.229 citing Tildesley v Harper (1876) 3 Ch.D. 277 and Re Colbeck (1888) 36 W.R. 259.
  8. Under CPR 1.3, parties are required to help the court further the overriding objective. When the Defendants asked the Claimant for sight of the joinder application notice and evidence, they ought, in my judgment, to have been granted it pursuant to CPR 1.3.
  9. If there is substantial dispute about whether joinder is appropriate, in particular where it appears that joinder may cause delay or increase costs in the proceedings, then a case management conference ought generally to be convened for the court to consider the case management implications of the proposed joinder in the round. While exceptionally some purely formal applications involving the substitution of say ‘X PLC’ for ‘X Ltd’ may not require such an approach and may well be capable of being dealt with by consent and without a hearing, a disputed application to add substantial new causes of action against new Defendants to an existing action seems to me to be a situation where the existing parties ought to be given notice of the application and for the application generally to heard at a case management conference.
  10. The Defendants in this case did eventually receive notice of the hearing and copies of the evidence served (from the Respondents). Mr Johnson for the Second Defendant served submissions in writing dated 21 November 2019. I found his submissions of great assistance, not least because they addressed the case management implications of the proposed joinder in greater detail than the skeletons submitted by either the Applicant or the Respondents. Neither of the Defendants in the ITV claim attended the hearing.