Dornoch Ltd & Ors v Westminster International BV & Ors

Jurisdiction under the Judgments Regulation does not compel joinder in an existing action. Where CPR 19.2 applies, joinder remains discretionary. A proposed party need not be joined where it can agree to be bound by the court’s determination and joinder is not necessary to resolve the dispute. The prospect that the proposed party may adopt a different position, disrupting an urgent timetable, is a relevant consideration. Articles 6 and 24 of Council Regulation (EC) No 44/2001 do not themselves require joinder, particularly where there is no relevant claim against the proposed party and Article 24 concerns jurisdiction following an appearance.

The claim concerned rights asserted by hull and machinery underwriters after the constructive total loss of a dredger. Excess-layer underwriters applied under CPR 19.2 to join primary-layer underwriters as defendants so that all underwriters would be bound by the determination of issues concerning possession of and title to the vessel.

The proposed defendants consented to joinder, but the existing defendants objected, relying on an exclusive Dutch jurisdiction clause in the primary policy. The applicants relied on Articles 6(1) and 24 of Council Regulation (EC) No 44/2001. The central issue was whether the proposed parties should be joined to the existing action.

1. The application to join the primary-layer underwriters was refused. Under CPR 19.2, the court has a discretion to add a party where joinder is desirable to resolve matters in dispute or a connected issue. The existence of jurisdiction under the Judgments Regulation does not remove that discretion.

2. The proposed underwriters could, in principle, agree to be bound as between themselves and the excess-layer underwriters by the court’s determination without becoming parties. Joinder was therefore not shown to be necessary.

3. If the proposed underwriters intended to adopt a materially different position, their participation could imperil the established timetable for the first tranche of issues. That possibility was a further reason to decline joinder in the circumstances.

4. It was unnecessary to decide whether the exclusive jurisdiction clause in the primary policy constituted a complete bar to joinder, since the point had not been argued.

5. The judge expressed the preliminary view that Article 6 was not engaged because the draft amended claim contained no claim by the existing claimants against the proposed defendants. Article 24, which concerns jurisdiction after a defendant enters an appearance, did not assist on an application concerning joinder.

Not stated in the judgment.