knowledge 12 February 2026 |

Insurers Joining Proceedings as a Defendant

In a recent English High Court judgment¹, the Court (Hutton KC) granted an application by an insurer to be added as a defendant to proceedings in which its insured was the existing defendant but was refusing to defend the claim. Although there are differences in the applicable Irish rules, such applications in this jurisdiction would likely be treated in a similar way.

Background

The proceedings involved a claim by Managed Legal Services (“MLS”), a litigation funder, against a solicitor trading as Fortitude Law (“Fortitude”) which had conducted litigation funded by MLS that was unsuccessful. HDI had insured Fortitude under a professional indemnity insurance policy. While Fortitude had initially participated actively in the proceedings and sought to defend MLS’s claims, it ceased doing so after a certain point. This ultimately led to Fortitude’s own solicitors coming off record and to the Court making an Order debarring Fortitude from defending the proceedings. In the circumstances, HDI (as Fortitude’s insurer) may ultimately have become directly liable to MLS in the event that MLS’s claim against Fortitude was successful². HDI therefore applied to be added as a defendant.

Judgment

The relevant rule of the English and Welsh Civil Procedure Rules (CPR) is CPR 19.2. It provides as follows:

All parties accepted that HDI did have an interest in at least one issue in the proceedings; which was whether solicitors such as Fortitude owe a freestanding tortious duty of care to a litigation funder such as MLS – this was referred to as the “Freestanding Tortious Duty issue” in the judgment. In seeking to be added as a defendant, HDI argued (and the Court accepted) that there was a conflict of interest between Fortitude and HDI in respect of the Freestanding Tortious Duty issue. This arose because if MLS was successful on any issue in the case, it would have been in Fortitude’s interest for the Freestanding Tortious Duty issue to also be resolved in favour of MLS. This is because Fortitude would likely then be entitled to be indemnified by HDI under the professional indemnity policy. This was not the case for HDI. Rather, it was in HDI’s interest in all circumstances for the Freestanding Tortious Duty issue to be resolved against MLS, because HDI would then be unlikely to have to indemnify Fortitude under the policy.

Accepting this position, the Court noted that the Freestanding Tortious Duty issue would not be contested in the proceedings unless HDI was joined. Accordingly, the Court found that it would be “desirable” (within the meaning of CPR 19.2) to join HDI to enable it to be heard on the Freestanding Tortious Duty issue - unless there were factors relevant to the overriding objective of the CPR (of dealing with cases justly and at proportionate cost) which sufficiently weighed against HDI’s joinder. Various arguments were made my MLS which it submitted should weigh against the joinder of HDI. These included claims of delay, claims that an insurer should not be put in a better position than its insured in the proceedings, and authorities holding that defendants should not be permitted to “gatecrash” proceedings where their presence was not necessary. Ultimately, these were all rejected by the Court which granted HDI’s application, finding that it would be desirable for HDI to be joined.

Position in Ireland

The relevant procedural rule in the Irish High Court is Order 15, rule 13 which provides that the Court may order that any parties (whether plaintiffs or defendants) “whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added”.

Similar applications to the one brought by HDI in the MLS proceedings have been brought by insurers before the Irish Courts. In the 2017 case of McDonagh v Ward & ors³, the High Court granted such an application brought by Zurich Insurance plc. That case arose out of a road traffic accident where the injured plaintiffs had sued the defendant owners/operators of the motor vehicle, and one of the defendants was insured by Zurich. The effect of section 76 of the Road Traffic Act 1961 is such that if the plaintiffs had obtained an award against defendants in relation to the accident, Zurich would be required to satisfy that award on the basis that it was the insurer⁴. Zurich had also declined the defendant’s insurance claim on the basis of a failure to maintain the vehicle in a roadworthy condition⁵.

The Irish High Court (Meenan J) considered previous judgments on such applications where the person seeking to be joined was required to show “exceptional circumstances” in order to justify a departure from the general position that a plaintiff is entitled to sue – or not – any party that it wishes. The Court also cited authority finding that a party may be joined “where his proprietary or pecuniary rights are or may be directly affected by the proceedings either legally or financially”.

Meenan J found that as it was a “near certainty” that Zurich would be called on to satisfy any award made to the plaintiffs, it was clearly a case where the insurer’s “proprietary or pecuniary rights are or may be directly affected by the proceedings either legally or financially”. He also held that this was sufficient to satisfy the “exceptional circumstances” test. Ultimately the Court held that joining Zurich would allow all issues between all parties (plaintiffs, defendants and insurer) to be heard at the same time which was in the interest of the efficient administration of justice.

Comment

The precise parameters of the respective legal tests for applications by insurers to join proceedings as defendants differ in each jurisdiction. Ultimately however, both the Irish and English Courts focus on questions concerning the efficient administration of legal proceedings and the ability of the Court to adjudicate on and resolve all issues in dispute between the relevant parties. In both jurisdictions, there is a clear basis for insurers who may be directly affected by the outcome of proceedings to be joined as a defendant.

The general approach of the Courts is captured by the following excerpt from a previous Irish High Court case quoted with approval by Meenan J at the end of the McDonagh judgment:

“The point of joining a new defendant is in the interest of justice, in the court’s interest in seeing that litigation is properly and effectively conducted and that its processes are operated in a way that is just and fair and also in the interest of the added party because of the impact of the litigation on his rights.”

Also contributed to by Áine Crowley