Tantera & Anor v Moore

In managing a Civil Procedure Rules 1998 Part 20 additional claim, the court should, so far as practicable, manage it with the original claim and consider whether a single trial is appropriate where the issues share a common factual kernel. A third party facing findings of negligence is not deprived of a fair opportunity to defend himself merely because his interests broadly coincide with those of the defendant. The court must weigh fairness, equal footing, delay, cost, trial length, court resources and prejudice to other parties. Appellate intervention in case-management decisions remains exceptional, but is justified for an error of principle or a plainly wrong exercise of discretion. Procedural delay should not displace the rationale of Part 20 where one trial can proceed without disproportionate prejudice.

The claimant suffered catastrophic spinal injuries while using a snowmobile supplied by the third party during a holiday arranged by the defendant. She brought contractual and tortious claims against the defendant. The defendant brought an additional claim under Part 20 seeking an indemnity or contribution from the third party.

The additional claim had progressed slowly and had not been directed to trial. The third party applied shortly before the liability trial for permission to participate by cross-examining witnesses, giving evidence, calling witnesses and making submissions. The High Court refused the application, principally because the third party and defendant were said to share a common interest and separate representation would increase cost and lengthen the trial. The central issue was whether that case-management decision properly balanced the third party’s right to defend himself against delay, expense and prejudice to the claimant.

Appeal allowed. Ward LJ held, with Wilson LJ agreeing, that the judge had erred in refusing the third party permission to participate in the forthcoming trial.

1. The judge correctly recognised the relevance of Part 20, the case-management powers and the overriding objective. The original claim and additional claim had a common factual kernel concerning the care taken in instructing the claimant about the snowmobile. Part 20 supported managing the claims together and avoiding two trials where one could determine the relevant issues.
2. The common interest between the defendant and third party did not remove the third party’s need for a fair opportunity to defend himself. Findings of negligence would effectively be made against him in his absence. He could not defend himself on an equal footing if he were unable to cross-examine witnesses or make submissions through representatives of his choice. The potential reputational consequences made that prejudice legally significant.
3. The appellate court will not readily interfere with a case-management discretion. Intervention is justified where there is a misdirection, an error of principle, failure to take a material matter into account, or a decision falling outside the generous ambit within which reasonable disagreement is possible.
4. Delay was relevant but had been given excessive weight. The consequences of joinder should not be treated as prejudice caused by delay. The evidence did not show a realistic risk that the claimant would be unable to obtain insurance, and any additional premium was not shown to create disproportionate disadvantage. The benefits of fairness, expedition and saving court resources outweighed the procedural criticism.

The reasoned judgment therefore allowed the appeal and granted the third party permission to participate in the trial. The transcript’s final line records “Application refused”, which is inconsistent with the express disposition in paragraphs 35 and 36.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 1393, the appeal was allowed and the third party was granted permission to participate in the forthcoming liability trial.
2. High Court of Justice, Queen’s Bench Division: On 14 October 2009, Mr Justice MacDuff refused the third party’s application to participate in the trial.