Issues of Joinder of Parties and Amendment of Pleadings Explored in Wise Payments Ltd v With Wise Ltd Case

Citation: [2024] EWHC 234 (IPEC)
Judgment on

Introduction

In the case of Wise Payments Limited v With Wise Limited & Ors, the Intellectual Property Enterprise Court (IPEC) explored the legal principles related to the addition of parties to proceedings under CPR 20.5 and the related counterclaim amendments under CPR 17.1(2)(b). Applying relevant case law principles, the court considered whether the proposed additional parties, specifically Mr. Nash, should be joined to the proceedings based on the criteria of arguability, coherence, and evidential support, as well as cost-benefit balance and case management considerations unique to the IPEC.

Key Facts

Wise Payments Limited, the claimant, alleged trademark infringement and passing off against With Wise Limited, the first defendant. The first defendant filed a counterclaim and sought to add four new parties, including Wise plc and three individuals, Mr. Käärmann, Mr. Hinrikus, and Mr. Nash, to the counterclaim. The court had to decide whether to permit the addition of these parties and make consequential amendments to the pleadings. While Wise plc was added by consent, the other three parties resisted the application based on IPEC case management, proportionality grounds, and substantive grounds. The first defendant argued that these individuals were jointly liable for the decision to rebrand and the alleged acts of passing off. Ultimately, the court allowed the inclusion of Mr. Käärmann and Mr. Hinrikus but dismissed the application with respect to Mr. Nash.

Joinder of Parties

Under CPR 20.5, the court may order a person to be added as a new party if it is desirable to resolve all the matters in dispute. This mirrors the approach under CPR 19.2(2), as seen in PeCe Beeher BV v Alevere Ltd and requires a discretion similar to that under applications to strike out under CPR 3.4(2) or summary judgment under CPR 24(2). The key test, highlighted in Kawasaki Kisen Kaisha Ltd v James Kemball Limited, is whether the case against the new party has sufficient prospects of success, as evinced by the pleadings carrying conviction, coherency, and evidential material establishing an arguable case.

Amendment of Pleadings

CPR 17.1(2)(b) deals with applications to amend pleadings. The court applies a discretion aligned with the overriding objective and must ensure amendments do not cause prejudice that cannot be compensated for in costs. Temple Island v New English Teas and Vimage v Data Candy have confirmed the importance of assessing whether the likely benefit justifies the amendment considering the cost and case management implications.

Joint Tortfeasance

Joint tortfeasorship hinges on personal involvement in the commission of a tort sufficient to render the individual liable. This principle is underscored in cases such as Fish & Fish Ltd v Sea Shepherd UK and Urbanbubble Ltd v Urban Evolution Property Management Ltd. The individual must have furthered the commission of the tort and done so in pursuance of a common design for them to be held liable as a joint tortfeasor.

Outcomes

The court granted the application to join Mr. Käärmann and Mr. Hinrikus as counterclaim defendants, assessing that the substantive claim against them had sufficient prospects of success and could be case managed within IPEC constraints. However, it dismissed the application concerning Mr. Nash, deeming the evidential basis for alleging joint tortfeasance insufficient and considering the cost-benefit balance unsupportive of adding him as a party.

Conclusion

The decision in Wise Payments Limited v With Wise Limited & Ors illustrates the rigorous standard against which applications for joinder of parties and amendment of pleadings are measured within the IPEC framework. The case reinforces the principle that an arguable case must be supported by coherent pleadings and evidential material to warrant the addition of new parties, especially within a jurisdiction sensitive to cost and case management efficiency. Moreover, this case affirms that being a company director or an employee in and of itself is not sufficient to establish joint tortfeasance – there must be personal involvement and a common design in the commission of the tort. The outcome hinged on maintaining a balance between the desire to adjudicate all matters in dispute and the unique cost-benefit considerations of the IPEC.

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