JOINDER OF NEW PARTIES IN EXISTING PROCEEDINGS 2: THE PRINCIPLES (AND THE COSTS!)

We are looking again at the decision of HHJ Kimbell QC (sitting as a High Court judge) in  Molavi v Hibbert & Ors [2020] EWHC, this time relating to the principles to be considered in relation to joinder of additional parties.

 

There is no inherent or general discretion to add a new party to existing proceedings”

THE CASE

The claimant brings an action alleging breach of various intellectual property rights by the existing defendants in relation to the development certain television programmes. She attempted to join in additional defendants.

COSTS

A brief word  of warning about costs for anyone considering a joinder application: the judgment gives an indication of the costs involved, in the joinder application alone. 

The Claimant’s costs of the joinder application alone are said to be £155,282 and the BBC’s costs of responding to the application are £32,179.”

THE JUDGE’S CONSIDERATION OF THE PRINCIPLES RELATION TO ADDING PARTIES

The judge pointed out that in order for a new party to be joined the conditions in CPR 19 (2) have to be satisfied. There is no general discretion beyond this.

    1. There is no inherent or general discretion to add a new party to existing proceedings. In re Pablo Star [2018] 1 WLR 738 at [47] Sir Terence Etherton MR put it very simply:
CPR r 19.2 confers a discretion on the court to join a party if the conditions in rule 19.2(2)(a) or (b) are satisfied“.
    1. CPR 19.2 (2) provides as follows:
“The court may order a person to be added as a new party if –
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue.
    1. The two limbs are different and independent. Even if one or other (or both) are satisfied, the addition of a party does not follow automatically. The use of the word ‘may’ in the first line shows that the court must stand back and exercise an overall discretion even if one or other (or both) of the threshold criteria are satisfied.
    2. The power to add a party to existing proceedings is essentially a case management decision. An order will only be made if it would further the overriding objective in the concrete circumstances of the case. This is clear from In Re Pablo Star at [60], in which the following was said:
“In considering whether or not it is desirable to add a new party pursuant to CPR r 19.2(2) the lodestars are the policy objective of enabling parties to be heard if their rights may be affected by a decision in the case and the overriding objective in CPR Pt 1.”
    1. The starting point for any application ought to be to identify which of the two limbs in CPR 19.2 (2) is being relied upon. The Claimant’s application failed to do this. Neither the application notice nor the draft order identifies the basis of the order sought. The Claimant’s 25-page witness statement served in support of the application also fails to identify which part of CPR 19.2(2) is being relied upon.
    2. The Claimant’s updated skeleton argument served for this hearing is also completely silent as to the basis of the application. Moreover, it failed to engage with any of the case management implications of the order sought. When I asked Mr Engelman to identify which of the limbs of CPR 19.2(2) he was relying on as justifying the joinder of each of Mr McCrery and the BBC to the ITV claim, he eventually said that he relied with equal force on both provisions in relation to both of the Respondents. I was left with the uncomfortable impression that he had given little if any consideration to this question before the hearing. This was not a promising start to the application.
    3. It also proved to be a somewhat tortuous and time-consuming exercise to obtain basic case management information about the ITV claim and the potential impact of combining it with the Betrayal claim. Had the application been made at a case management conference, the court would have at least been provided with the standard information contained in the case management information sheets.
    4. Eventually, by means of oral questions and answers at the hearing the following case management points emerged:
i) The ITV claim would, if tried as presently constituted, be suitable for trial in the short and flexible trial scheme. It would be at most a 2-3 day claim with factual evidence from at most four witnesses, limited disclosure and no expert evidence.

ii) The Betrayal claim would involve between nine witnesses of fact, would involve far more disclosure than the ITV claim and may require expert evidence (on word clusters / comparative script analysis).

iii) The Betrayal claim would not be suitable for trial in the short and flexible trials scheme. It followed that joining the Betrayal claim to the ITV claim would inevitably take the ITV claim out of the short and flexible trial scheme.

iv) The ITV claim is of uncertain value but it is not a high value claim. The Betrayal claim had the potential to be worth significantly more than the ITV claim because of the success of the Silent Witness brand

v) If joinder were ordered, progress in the combined action would not be swift. Although the Claimant had produced a draft amended Particulars of claim, no application had been issued for permission to amend. The draft Amended Particulars of Claim was said to be merely indicative of how the claim might be put but the Claimant wished to reconsider the draft if joinder were ordered.

    1. The status of the draft amended Particulars of Claim was further confused by the fact that prior to the adjourned hearing of this application in July 2019, the Claimant had asked IPEC to order that the “existing pleadings of C, D1 and D2 stand as pleading for trial in the Ch.D” after transfer to the general intellectual property list. This would suggest that at least at one stage the Claimant was intending to produce a separate pleading for her claim against the BBC and Mr McCrery.

THE SEPARATE LIMBS OF CPR 19(2)

The judge then went on to consider the relevance of each limb, he held that neither applied in this case.

The application under CPR r 19.2(2)(a) [ “it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings;” ]
  1. In re Pablo Star, the Court of Appeal held in [48] that the first limb of CPR 19.2(2) should be interpreted as containing two conditions: (1) the new party can assist the court to resolve the matters in dispute in the proceedings and (2) it is desirable to add the new party to achieve that end”. The Court of Appeal also stated that CPR 19.2(2) ought to be given a wide interpretation. The words “in dispute” ought to be read as “in issue”.
  1. In light of the matters in issue in the ITV claim, it is in my judgment obvious that the BBC cannot assist the court to resolve them. The BBC had no involvement at all in the pitch to ITV.
  2. As to the application in respect of Mr McCrery, in my judgment, that does potentially satisfy the first condition of CPR r 19.2(2)(a). He was clearly involved in the crucial meeting alongside Mr Hibbert. He may well be able to assist the Court with resolving the matters in dispute between the Claimant, Forge and Mr Hibbert.
  3. However, it my judgment it is not desirable to add him as a new party to achieve that end. Such assistance as he can provide to the court can be achieved as a witness. It is open to either or both parties to approach him for a further witness statement or for permission to rely on his two statements produced to date. He has stated what he recalls of the run up to the pitch to ITV in paragraphs 16 – 20 of his witness statement dated 13 June 2019. He has also voluntarily provided documents requested by the Claimant.
  4. In the circumstances, in my judgment, the court will gain nothing of substance from ordering him to be added as a Defendant. All the matters in dispute can be resolved fairly without the addition of Mr McCrery as a Defendant. To take this step would not be in accordance with the overriding objective because it would only increase costs and delay without assisting in the resolution of the issues.
  5. Mr McCrery was not joined as a Defendant to the ITV claim because the Claimant did not perceive him as having breached any duty to her. The reason why the application has been made to join Mr McCrery now is because of his involvement with Silent Witness and that is of relevance only to the Betrayal claim. Whilst it is true that the draft amended Particulars of Claim seek to make him formally a party to the breach of confidence in relation to Works 1 and 2, that seems to me to be without any proper evidential basis. Mr McCrery has said in his second witness statement that he knew nothing about any agreement between Mr Hibbert and the Claimant. He also says he did not see Work 1 or 2. Mr Hibbert in his witness statement confirms that he did not show either document to Mr McCrery. This is unsurprising given that on the Claimant’s own case her agreement with Mr Hibbert was made orally only a day or so before the meeting with ITV.
  6. The Claimant did not assert that since issuing the claim form in these proceedings that she had discovered any new facts about Mr McCrery’s involvement with the pitch to ITV which constituted a basis for a claim against him or which made it desirable that he be joined as Defendant. In my judgment, there is no evidential foundation that Mr McCrery did anything other than attend the meeting with ITV in order to pitch of his own and Mr Hibbert’s work. To the extent that Mr Hibbert went beyond that Mr McCrery is a potential witness to a claim against Mr Hibbert and/or Forge but nothing more.
  7. In so far as the application to join the BBC and Mr McCrery is made under CPR 19.2(1)(a) it is accordingly rejected.
CPR 19.2(1)(b) [“there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue”]
    1. For an applicant to succeed with an application under CPR 19.2(1)(b), three conditions must be met: (1) an issue must be identified between the proposed new party and an existing party (2) the issue must be connected to the matters already in dispute in the proceedings (3) it is desirable to add the new party so that the court can the issue identified in condition (1).
    2. As to Condition (1) it is clear that it is not necessary for the issue between the new party and the existing party to be a cause of action: see XYX v Transform Medical Group [2014] EWHC 4056 at [22], in which a number of authorities are cited to the this effect.
    3. Condition (2) is the critical condition. The issue between the existing and the proposed new party must be connected to the matters already in issue in the proceedings. The nature of the required connection is not prescribed. In some cases, the connection will be in the form of an overlap of factual evidence between the existing proceedings and issue with the proposed new party – see, for example, Dunlop Haywords (DHL) Ltd. v Erinaceous Insurance Services Limited [2009] EWCA Civ 354 at [88].
    4. In other cases, the connection is that the new party is concerned in with the outcome in some way such that it is desirable to have all parties connected to the dispute before the court in one set of proceedings so that they are bound by the outcome. This was the case for the excess insurers proposed to be added as defendants in Dunlop Haywords (DHL) Ltd. v Erinaceous Insurance Services Limited [2009] EWCA Civ 354 at [89].
    5. In some cases, it is an existing Defendant who raises an issue which makes it desirable that another party be joined: see e.g. Sheikhar Dooma Shetty v Al Rushaid Petroleum Investment Company [2011] EWHC 1460 (Ch) at [15].
    6. Connection is clearly a matter which can only be determined on the facts of the individual case.
    7. Under Condition (3) the court must be satisfied that the joinder is desirable to resolve the issue between the existing party and the proposed new party. In other words, even if there is a connection between the new issue and the exiting issues in the proceedings, the question is whether it is really desirable that the proposed new party be joined to resolve that issue or whether it is better to let it be resolved in separate proceedings.
    8. Condition (1) is, in my judgement, met in this case. The Claimant has a clearly articulated claim for infringement of copyright against the BBC. The claim against Mr McCrery is less clear but the Claimant appears to be saying that Mr McCrery was a route by which the BBC came to use her work.
    9. Condition (2) is in my judgement not satisfied for the following reasons:
i) There is no significant degree of overlap in the factual issues or evidence. The ITV claim is concerned with events in 2017. At the heart of the ITV claim is the pitch at the meeting on 19 April 2017. The Betrayal Claim by contrast concerns a serious of events in 2018 and 2019 culminating in the broadcast of the allegedly infringing work in February 2019. The trial of the Betrayal claim requires consideration of the development of the script for Betrayal following Victoria Gilbert’s pitch to the BBC in May 2018 on the one hand and the Claimants own development of Works 3 – 5 in the course of 2018 together with consideration of how if at all there was any connection between the two. The only minor evidential overlap is that fact that Works 3 – 5 had their origin in the ideas expressed briefly in Works 1 – 2.

ii) Although the Claimant is the author of all the works, the works in issue in each of the claims are distinct. The ITV dispute is confined to Works 1 and 2. The Betrayal claim is concerned with comparing Works 3 – 5 (but mainly Work 5) with the allegedly infringing work, Betrayal as broadcast.

iii) The BBC has no interest in the outcome of the ITV claim and the Defendants to the ITV claim have no interest in the outcome of the Betrayal Claim. There is no sense in which make sense for the BBC to be bound by the outcome of the ITV claim.

iv) The centre of gravity of the two disputes are different. The centre of gravity of the ITV claim is an alleged breach of contract and/or breach of confidence by Mr Hibbert and/or Forge. The Betrayal claim has as its centre of gravity an infringement of copyright claim. The focus of the evidence will be on the BBC’s case of lack of access / independent generation.

v) Whilst Mr McCrery plays a role in both the ITV claim and the Betrayal claim his roles in both claims are peripheral. In the former, he is at the critical pitch to ITV; in the latter he is said to be a potential route by which the BBC came to have access to the Claimant’s work. His involvement in both claims is in my judgement a connection but an insignificant one.

    1. In summary, Mr Norris was, in my judgement, right when he submitted that what the draft amended Particulars of Claim does is to “shunt” together two separate and distinct claims.
    2. Condition (3) is also, in my judgement, not satisfied. I cannot see any respect in which it would be ‘desirable’ to try the Betrayal claim as part of the ITV claim. The evidence and legal argument in the ITV claim will not assist the trial judge to decide the Betrayal claim. There will be no saving of costs or time in hearing them together. On the contrary, if the two claims were joined together, all the time when the court is concerned with argument or evidence in the ITV claim, the witnesses and legal representatives of the BBC would be looking on as uninterested observers. Even worse, whilst the much longer and more detailed evidence and argument is heard in the Betrayal Claim, Mr Hibbert and Forge’s legal representatives would be sitting idly by incurring costs for no useful purpose.
    3. In my judgement, it would also be contrary to the overriding object for the existing ITV claim, which ought to be capable of being tried quickly and relatively cheaply in the short and flexible trials scheme, to be delayed and bolted on to a non-short and flexible trial scheme trial in which the Particulars of Claim are not even finalised yet. Not only am I not convinced that is desirable to have the Betrayal claim incorporated into the ITV claim, I am sure that the opposite is the case. Given the different nature and scope of the two claims, I am sure that it would be better for the Betrayal Claim to proceed as a free-standing set of proceedings. The lodestar of the overriding objective points firmly away from joinder.
Conclusion on joinder application 
  1. For the reasons set out, the Claimants application to join the BBC and MrCrery as Defendants to the claim against Mr Hibbert and Forge fails both under CPR 19.2(2)(a) and (b) and is therefore dismissed.