PeCe Beheer BV & Anor v Alevere Ltd & Ors

For an application to join a new defendant under CPR 19.2(2)(b), the court ordinarily applies the test applicable to striking out a pleaded claim under CPR 3.4(2)(a) or (b). The question is whether, assuming the pleaded facts can be proved, the proposed claim discloses reasonable grounds. Where evidence is properly before the court, it may approach the application analogously to summary judgment and ask whether the proposed claimant has no real prospect of success. A precise requirement of a “good arguable case” is not a separate joinder threshold.

The claimants brought proceedings concerning trade mark, copyright and passing-off allegations arising from competing weight-loss therapies. Several defendant clinic companies counterclaimed in negligence and sought permission to add Dr Claudia van der Lugt as a defendant. The proposed claim alleged negligent misstatement concerning the selection and continued use of an ultrasound machine.

The application raised whether the pleaded and evidential case disclosed a sufficiently arguable cause of action, whether the contractual arrangements excluded a tort claim, and whether there had been blameworthy delay.

1. Joinder test. The court held that permission should not be refused merely because earlier authorities had used the expression “good arguable case”. That expression was not intended to establish a precise criterion for joinder. The ordinary test under CPR 19.2(2)(b) is the test applicable to an application to strike out under CPR 3.4(2)(a) or (b): assuming the pleaded facts can be established, does the statement of case disclose reasonable grounds for bringing the claim against the proposed defendant?
2. There is substantial overlap between strike-out and summary-judgment applications, but they are not identical. Strike-out focuses on the pleading. Summary judgment may also take account of evidence. Since evidence had been adduced without objection, the court approached the application analogously to summary judgment and asked whether the defendants had no real prospect of succeeding.
3. The relevant issue was whether there was no real prospect of showing that Dr van der Lugt had given advice which, objectively viewed, could create an assumption of personal responsibility, and that the advice was negligent. The emails showed direct communications, including technical advice about the ultrasound machines, their repair and their suitability. It remained a matter for trial whether personal responsibility had in fact been assumed and whether the advice was negligent.
4. The contractual entire-agreement clause did not exclude the proposed tort claim. Properly construed, it prevented reliance on extraneous statements as affecting the contractual agreement. It did not address an alleged negligent misstatement by a third party, which could potentially found an independent tort claim.
5. There was no blameworthy delay. Permission was therefore granted to join Dr van der Lugt as a defendant to the counterclaim.