One Unique LLC v Kamiz Babaee & Ors

Joinder after service of the claim form is governed by desirability, not necessity. A person may be added where this will enable the court to resolve all matters in dispute, or a connected issue involving an existing party. At the joinder stage, the court does not determine the ultimate merits. It asks whether the proposed claim is properly arguable and whether the objections justify summary disposal.

Recipients of alleged proprietary assets may properly be joined where there is an arguable case that they received the assets as volunteers, had sufficient knowledge for knowing receipt, or still hold the assets or traceable proceeds. Lack of evidence that the original money remains does not necessarily defeat joinder, particularly where disclosure is incomplete.

The claimant brought claims arising from an alleged fraudulent property-management scheme involving rental income from a residential apartment. It alleged deceit, unlawful means conspiracy, breach of fiduciary duty, dishonest assistance, knowing receipt and restitution, together with proprietary claims.

The application sought permission to amend the particulars of claim and claim form, and to join the first defendant’s adult son and wife as additional defendants. The proposed claims alleged that they had received rental monies belonging beneficially to the claimant, as volunteers and knowing recipients. The application was opposed by the first defendant and the proposed additional defendants. The central issues were whether the proposed claims were sufficiently arguable and whether joinder was desirable under CPR 19.2(2).

1. Joinder and amendments. Permission was granted to amend the particulars of claim and claim form, and the first defendant’s son and wife were joined as additional defendants. Under CPR 19.2(2), the touchstone is desirability rather than necessity. The test is satisfied where joinder will enable the court to resolve all matters in dispute, or a connected issue involving the proposed party and an existing party.
2. The proposed pleading disclosed a sufficiently arguable case that the payments received by the proposed defendants were derived from the claimant’s proprietary rental monies. There were also triable issues as to knowledge, including whether knowledge could be inferred from the pleaded facts. The proposed defendants’ status as volunteers supported an arguable constructive-trust claim.
3. The court accepted that property received by a volunteer may be traced into other assets. There were triable issues as to whether the original assets or traceable proceeds remained in the proposed defendants’ hands, given the absence of full disclosure. The court did not finally determine the strength of the claims and did not join the proposed defendants as participants in the alleged underlying fraud.
4. The objections, including alleged lack of knowledge, expenditure of the monies, alternative sources of funds and prejudice, did not justify summary disposal of the proposed claims. The pleaded without-prejudice material was disregarded for the purpose of the application.
5. Costs. The first defendant and the two additional defendants were ordered to bear the costs of the opposition jointly and severally. The costs were assessed on the standard basis and summarily assessed at £53,500.