Wise Payments Limited v With Wise Limited & Ors

An application to join additional parties to a counterclaim requires a discretionary assessment of both merits and case management. The proposed claim must have a real, rather than fanciful, prospect of success. It must carry some degree of conviction, be coherent and properly particularised, and be supported by evidence establishing a sufficiently arguable factual basis. In IPEC, the court must also balance the likely benefit of joinder against the additional cost, complexity, preparation and trial time. A director, officer or employee is not liable for a company’s tort merely because of that role. Personal involvement sufficient to constitute joint tortfeasance must be shown; mere facilitation is insufficient. The court may consider concise factual evidence at the joinder stage where it materially informs the prospects of success and avoids disproportionate future costs.

The First Defendant sought to join Wise plc and three individuals to a passing-off counterclaim concerning the Claimant’s rebranding and use of the name Wise. Wise plc was joined by consent. The Claimant and the three individuals opposed joinder. The objections concerning Mr Käärmann and Mr Hinrikus relied on IPEC case-management and proportionality considerations. Mr Nash additionally argued that the proposed counterclaim lacked reasonable grounds, a sufficient evidential basis and a real prospect of success.

The court considered the interaction between CPR 20.5, CPR 19.2(2), the summary-judgment test and the IPEC cost-benefit approach. The central issues were whether the proposed claim against each individual was sufficiently arguable and whether the procedural benefit of joinder justified the additional cost and complexity.

1. Applicable approach. The court treated an application under CPR 20.5 as requiring an exercise of discretion analogous to CPR 19.2(2). The merits threshold was that under CPR 24(2)(a): the claim must have a real, not fanciful, prospect of success. It must carry some degree of conviction, be coherent and properly particularised, and have evidential support establishing a sufficiently arguable factual basis. [2024] EWHC 234 (IPEC) [29]-[37].
2. IPEC cost-benefit assessment. The court had to balance the benefit of determining the dispute against the inevitable additional cost, complexity, disclosure, evidence and trial time. IPEC’s case-management powers could control those burdens, but joinder was not to be permitted as a matter of course. The relevant assessment also engaged the overriding objective and the principles governing consequential amendments under CPR 17.1(2)(b). [33]-[37], [65]-[72].
3. Joint tortfeasance. Applying Fish & Fish Ltd v Sea Shepherd UK, personal involvement in the commission of the tort was required. Mere facilitation was insufficient. The fact that an individual was a director, officer, shareholder or employee did not itself establish liability; the particular role played in the tort had to be examined. [39]-[42], [74]-[83].
4. Evidence at the joinder stage. It was appropriate to have regard to a short witness statement describing Mr Nash’s role. Such evidence could supplement the existing material and assist in deciding whether the proposed claim had real prospects, particularly in a cost-sensitive jurisdiction. [78]-[82].
5. Disposition. Joinder of Mr Käärmann and Mr Hinrikus was allowed. The application to join Mr Nash was dismissed on both merits and cost-benefit grounds. The case was to be managed so that the liability trial, with the additional parties, remained within three days, followed by a separate quantum trial. [69]-[73], [83]-[89].