Guidance For Insurers Seeking Joinder In Liability Proceedings

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Key Takeaways:

• Insurer Joinder in Litigation: The English High Court in Managed Legal Solutions v Hanison (trading as Fortitude Law) & Anor [2025] EWHC 2645 (Comm) allowed an insurer (HDI) to be joined as a defendant where it had a direct interest in a core liability issue.

• Protecting Insurer Interests: HDI’s joinder was permitted because the outcome of the tortious duty of care question would directly affect indemnity under the professional indemnity policy. The court considered joinder “desirable” as otherwise the plaintiff would only have to discharge the burden of proving its case at an uncontested hearing, as the defendant was debarred from defending the proceedings due to procedural non‑compliance.

• Joinder Under English CPR 19.2: The judgment demonstrates the court’s willingness to add parties where doing so helps resolve issues in dispute in the proceedings or resolves a connected issue between that party and an existing party.

• Irish Perspective on Joinder:

  • Under Order 15 Rule 13 RSC, the Irish courts may join parties in order to enable the Court effectuallyand completely to adjudicate upon and settle all the questions involved in the cause or matter.

  • Key Irish cases (Fincoriz, BUPA, Persona, McDonagh) emphasise that joinder may be permitted to protect efficient, just litigation management.

• High Threshold in Ireland: While plaintiffs generally choose their defendants, Irish courts will, in exceptional circumstances, join insurers against a plaintiff’s wishes where the insurer’s interests could be materially impacted and where not doing so risks inefficiency, duplicate proceedings, or incomplete adjudication.

• Implications for Insurers: Both English and Irish authorities indicate that insurers may successfully apply to be joined where coverage issues hinge on the existence (or non‑existence) of a duty of care or where the insurer’s defence diverges from that of the insured.

In a recent decision of the English High Court, Managed Legal Solutions v Hanison (trading as Fortitude Law) & Anor [2025] EWHC 2645 (Comm), the court granted an insurer’s application to be joined as a defendant to ongoing proceedings.

While the Irish Rules of the Superior Courts (RSC) differ from the English and Welsh Civil Procedural Rules (CPR), this judgment, along with the Irish court’s own jurisprudence on joinder applications, offers helpful guidance as to how the Irish High Court could approach a similar application.

Application before the English High Court

In these proceedings, a damages claim was issued by a UK‑based litigation funder (MLS), against a solicitor firm in respect of a failed group litigation that MLS had supported financially. 

HDI Global Speciality SE (HDI), the solicitor firm’s professional indemnity insurer, denied all claims that it was liable to indemnify the firm for losses relating to the failed group litigation. HDI based this plea on a “traded debts exclusion” which was triggered under the insurance policy. A separate arbitration between the solicitor firm and HDI had been commenced in respect of a dispute about coverage under the policy.

The solicitor firm initially defended the damages claim, however, the court ultimately issued an order debarring it from doing so due to procedural non‑compliance. It was at this juncture that HDI sought to be joined as a defendant to the proceedings in order to safeguard its interests. 

HDI argued it had an interest in a live issue in the proceedings, namely whether the solicitor firm owed MLS a freestanding tortious duty of care, as this would affect the solicitor firm’s entitlement to indemnity under the insurance policy. More specifically, HDI contended that a conflict of interest arose because the solicitor firm, if held liable, would benefit from a finding that a tortious duty existed in order to pursue indemnity under the policy, whereas HDI’s interest lay in demonstrating that no such duty existed. 

English High Court Decision

HDI applied to be joined to the proceedings pursuant to CPR 19.2, which allows the court to add a new party where this would help resolve all the issues in dispute in the proceedings or resolve a connected issue between that party and an existing party.

There was no dispute that HDI had an interest in the freestanding tortious duty issue. The court noted that unless HDI was joined, MLS would only have to discharge the burden of proving its case at an uncontested hearing, as the solicitor firm was barred from defending the matter. The court held that joining HDI to the proceedings was “desirable” in these circumstances, and this application ought to succeed unless there were objective factors to weigh against it. Arguments made against the joining of HDI on the basis of inter alia delay by the insurer or that the joinder would avoid the adverse consequences of the debarring order made against the solicitor, were not accepted by the court and HDI was joined to the proceedings.

Position in Ireland 

In Ireland, Order 15 Rule 13 RSC allows the court to join a party to proceedings “in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter”.

While it is generally the case that a plaintiff is ordinarily entitled to choose the person(s) against whom they wish to commence proceedings, the Irish courts may join a party to those proceedings against the wishes of the plaintiff, but only in exceptional circumstances (Fincoriz SAS v Ansbacher Ltd. [1987] IEHC 19). When considering such an application pursuant to Order 15 Rule 13 RSC, the proprietary and/or pecuniary rights of the party wishing to be joined to proceedings are a relevant consideration for the courts (BUPA Ireland Limited v HealthInsurance Authority [2006] 1 IR 201).

Subsequently in Persona Digital Telephony Limited & anor v The Minister for Public Enterprise & ors [2014] IEHC 78, the court set out the rationale for joining a new defendant, namely that it serves the interests of justice by allowing litigation to be properly and effectively conducted in a way that is just and fair and also in the interests of the added party because of the impact of the litigation on its rights. 

In McDonagh v McDonagh [2015] IEHC 543, the High Court considered an appeal by an insurance company from a Circuit Court decision refusing its application to be joined to the proceedings. The insurer had declined to indemnify the defendant in respect of a road traffic accident in which his sister was the plaintiff. The insurer sought to be joined so that a defence of fraud could be pleaded and to, it argued, protect its interests in the most cost, resource and time efficient manner.

In its judgment the court referenced the high threshold to be met when bringing an application to be joined to proceedings but was satisfied that it had been met. It was obvious to the court that there was a real risk that the defence of the kind sought to be made by the insurer would not have been advanced by the existing defendant. While there was a statutory mechanism available to the insurer to pursue in respect of its position (Section 76 Road Traffic Act 1961), the court held that requiring the insurer to do so rather than joining them as a party to these proceedings would be an inefficient use of court time and would cause unnecessary costs to be incurred by the parties.

Conclusion

While procedural rules differ between England & Wales and Ireland, the English High Court’s approach in the Managed Legal Solutions case underscores the willingness of courts to permit insurer participation where the insurer has a real and determinative interest in a key issue in the case, namely, whether a tortious duty of care existed. Irish jurisprudence shows that the Irish courts will join a party against the wishes of the plaintiff only in exceptional cases but will do so where their presence is necessary to adjudicate the matter completely or to protect significant proprietary or pecuniary interests. Taken together, these authorities suggest that insurers seeking to safeguard their position may, in appropriate circumstances, successfully apply to be joined to proceedings in Ireland where the underlying issues could materially affect their liability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.