Supreme Court allows appeal to reinstate Voluntary Health Insurance Board as notice party due to exceptional financial interests.

THE SUPREME COURT

[APPEAL NO. 315/05]

JUDICIAL REVIEW

2005 NO. 532JR

Kearns J.

Macken J.

Clarke J.

BETWEEN

BUPA IRELAND LIMITED AND BUPA INSURANCE LIMITED

APPLICANT/RESPONDENTS

AND

THE HEALTH INSURANCE AUTHORITY, THE MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

VOLUNTARY HEALTH INSURANCE

NOTICE PARTY/APPELLANT

JUDGMENT delivered by Kearns J. on the 2nd day of December, 2005

1. These proceedings concern an appeal brought by the notice party/appellant, The Voluntary Health Insurance Board (“VHI”), from

the judgment of the High Court (Peart J.) delivered on the 27 July, 2005, and from the order made pursuant to that judgment on 29

July, 2005, whereby the High Court directed that the action should proceed as between the applicants/respondents, BUPA Ireland

Limited and BUPA Insurance Limited (“BUPA”) and the third and fourth named respondents being respectively The Health Insurance

Authority (“HIA”), the Minister for Health and Children (“the Minister”), Ireland and the Attorney General (“the State”) without the

presence of VHI as a notice party. The purpose of the appeal therefore is to reinstate the VHI as a notice party on the basis that it is

a party genuinely interested in and affected by these proceedings which are scheduled to be heard in the High Court in early

December.

Background

2. The proceedings were commenced by BUPA pursuant to leave granted by the High Court (Clarke J.) on 24 May, 2005. As originally

initiated, BUPA’s claim sought to impugn a recommendation (“the First Recommendation”) dated 29 April, 2005 of the HIA to the

Minister that payments under the Risk Equalisation Scheme, 2003 (“the Scheme”) should be commenced by the Minister. BUPA also

sought to impugn the Scheme and certain provisions of the Health Insurance Act, 1994 (as amended) (“the Act”) under which the

Scheme was established. BUPA sought to do so on various grounds, including constitutional grounds, and other grounds which include

alleged breaches of the law of the European Union.

3. The principle of community rating is at the heart of the dispute between the parties, a dispute the resolution of which is seen by

both BUPA and VHI as having enormous financial implications for both insurers to the point where it has been said that a successful

outcome for one party would threaten the other’s financial viability and ability to compete. The fundamental principle of community

rating is that all insured persons should share equally in the cost of health care on the basis that the excess of premiums over claims

for younger, healthier members is used to pay the excess of claims over premiums for older and less healthy members. It is based on

the principle of societal and inter-generational solidarity and prevents insurers risk-rating individuals for health insurance. It is

combined with the principle of “open enrolment” which dictates that a private health insurer cannot refuse cover to anyone below

age 65 and also the principle of “lifetime cover” which guarantees the right of the insured to renew a private health insurance policy.

Furthermore the legislation incorporates the principle of “minimum benefits”, which dictates that all private health insurance schemes

or plans must provide at least a certain level of coverage. The scheme is intended to assist the maintenance of community rating

across the market for people who are or may become privately insured, providing that health insurance undertakings, whose risk

profile of members is less costly than the risk profile of all insured persons, should compensate those undertakings with more costly

risk profiles. While VHI contend that the Scheme is essential to render effective the principle of community rating, BUPA takes quite a

different position. It contends:-

(a) That s.12 of the Act provides for an unauthorised delegation of legislative power contrary to Article 15 of the Constitution.

(b) That the Risk Equalisation Scheme implemented under s.12 of the Act amounts to an imposition of a form of direct or

indirect taxation, or implementation of a money bill, by way of delegated legislation contrary to Articles 15 and 21 of the

Constitution.

(c) That the imposition of charges pursuant to s.12 interferes with BUPA’s rights to private property and to carry on its

business, contrary to articles 40.3 and 43 of the Constitution.

(d) That s.12 of the Act and the Scheme constitute an impermissible restriction by Ireland upon BUPA’s right of establishment

and freedom to provide services subsisting under the EC Treaty and the Third Non-Life Insurance Directive, contrary to the

provisions of the Treaty and the Directive.

(e) That the State has failed to discharge its obligations under Article 10 of the EC Treaty in enacting a Scheme which results

or is capable of resulting in the reinforcement of VHI’s dominant position in the Irish market, contrary to Article 82 of the

Treaty.

(f) That the State has breached Article 86 of the EC Treaty in enacting a scheme which might have the consequence of

bringing about the abuse of the VHI’s dominant position contrary to Article 82 of the Treaty.

4. At present the Scheme does not operate. The Act and the Statutory Instrument made thereunder provide for the introduction of

the Scheme in certain circumstances. The Risk Equalisation Scheme, 2003 (S.I. No.261/2003) provides for an evaluation by HIA of the

operation of health insurance in the market and in particular requires the HIA to determine the nature and distribution of risks amongst

Scheme undertakings and to make recommendations to the Minister. The Minister is empowered to make a determination to introduce

the Scheme. If the Scheme is implemented, it will undoubtedly involve the making of very substantial payments to VHI.

5. When granting leave to BUPA to commence these proceedings on 24 May, 2005, the court also granted a stay on the

implementation of the First Recommendation. Ultimately, however, the Minister did not accept the first Recommendation and the

Scheme was not implemented. However, as appears later, the HIA thereafter made a provisional Second Recommendation that the

Scheme be implemented, which said recommendation became a final Recommendation on the 28 October, 2005, the day following the

hearing of this appeal by the court.

6. By Notice of Motion dated 27 May, 2005, application was made on behalf of VHI pursuant to Order 84, Rule 22(6) and/or Order 84,

Rule 26(1) of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court, joining VHI as a notice party

to the proceedings and permitting VHI to participate in the proceedings. In the grounding affidavit in support of the application, David

Clarke, solicitor for the VHI, outlined VHI’s interest in the proceedings. He asserted there was a clear justification for VHI being joined

as a notice party because VHI was and is the party entitled to receive the greater part of any funds becoming available as a result of

payments directed by the Minister under the Scheme. VHI also relied on the fact that the Statement grounding BUPA’s application for

judicial review and the affidavit sworn on behalf of BUPA by Martin O’Rourke on 24th May, 2005, made a number of specific claims,

assertions and allegations in relation to the situation and conduct of VHI in the market.

7. The High Court (Quirke J.) made an order on 30 May, 2005, joining VHI as a notice party to the proceedings. It is of some

significance to note that BUPA did not oppose VHI’s application at that time.

8. Thereafter, Opposition papers were served on behalf of the State and on behalf of VHI. The Statement of Opposition on behalf of

VHI was verified by an affidavit sworn by Vincent Sheridan, the Chief Executive Officer of VHI, on 15 June, 2005. In the meantime,

however, the Minister decided on 27 June, 2005, not to accept the First Recommendation and the claim by BUPA in respect of the

First Recommendation as such became moot. However, the balance of BUPA’s claims continued, although from that point in time

onwards - and in the absence of any further recommendation - it is fair to say that BUPA regarded the presence of the HIA and VHI

as superfluous to the issues to be disposed of by the High Court.

9. The matter came back to the High Court (Quirke J.) on 4 July, 2005, when, with the agreement of the parties, the court directed

the parties to exchange Points of Claim and Points of Defence. I should observe that the court on that occasion did not direct that

the proceedings be remitted to plenary hearing. The proceedings were at all times and remain even now judicial review proceedings.

The court did not rule on the appropriateness of VHI remaining as a notice party on that date and the respective positions of the

parties were reserved.

10. Thereafter Points of Claim were served on behalf of BUPA on 6 July, 2005. Points of Defence were served on behalf of the State

on 14 July, 2005. Points of Defence were served on behalf of VHI on 15 July, 2005.

11. By Notice of Motion issued on 8 July, 2005, BUPA sought certain directions from the High Court. Those directions were:-

(a) As to pleadings;

(b) As to the mode of trial;

(c) As to the further involvement in the proceedings of VHI;

(d) As to date of trial.

12. That application was granted on an affidavit sworn by Liam Kennedy on 8 July, 2005. In his affidavit, Mr. Kennedy asserted (inter

alia) that VHI was no longer a proper person to be heard in the proceedings in light of the fact that the Minister had decided not to

accept the First Recommendation. It was contended on behalf of BUPA that once the challenge to the validity of the First

Recommendation was no longer a live issue in the proceedings and where the remaining subsisting issue was a constitutional and EC

law challenge to the validity of the Scheme and to the 1994 Act, it was no longer appropriate for VHI to be a Notice Party to the

proceedings.

13. In the course of his affidavit Mr. Kennedy asserted that had BUPA proceeded by way of plenary proceedings to bring its

constitutional challenge, VHI “would have had no basis for seeking to become involved in those proceedings” and that while VHI may

have had an interest in the outcome of the proceedings, it was “no different from any party interested in the outcome of a

constitutional challenge brought to legislation”. He also contended that VHI was not a “proper person” to be heard within the

meaning of Order 84 of the Rules of the Superior Courts. On that basis, BUPA requested the court to direct that VHI should no longer

participate in the proceedings.

14. BUPA’s application was resisted by VHI for the reasons already stated. Quite apart from the potential effects of the First

Recommendation, it was contended on behalf of VHI that there were other allegations and assertions made by BUPA which directly

affected VHI, which said allegations in relation to the position or conduct of VHI could not properly be dealt with without VHI being a

party to the proceedings. It was submitted that the proceedings were judicial review proceedings and that the court had already

directed that VHI was an appropriate party to be joined as a notice party to the proceedings in its order of 30 May, 2005. It was

further contended that, even if proceedings had been commenced by way of plenary summons, that would not have prevented VHI

from being entitled to apply to be joined as a party to the proceedings having regard to the allegations made against VHI in the

proceedings. In an affidavit sworn by Mr. Clarke on the 14 July, 2005, Mr. Clarke asserted in the clearest possible terms that the

statutory provisions which the applicant sought to impugn affected only a very limited number of persons, namely, providers of private

health insurance in Ireland. He stated that the evidence already placed before the court demonstrated clearly that VHI would be

“uniquely adversely affected” by the undermining of the Scheme through any finding of unconstitutionality in the legislation, a fact

which had been recognised by the HIA, the Minister and even the applicants themselves. No replying affidavit had been sworn on

behalf of BUPA asserting the contrary.

15. By way of completion of the background circumstances, it should also be noted that proceedings were also brought by BUPA

against a decision of the Commission approving the Risk Equalisation Scheme which is now the subject of a pending appeal before the

Court of First Instance of the European Communities. VHI applied to intervene in those proceedings and an order permitting VHI to do

so was made by the President of that Court on 2 April, 2004. In contrast with the Irish position, BUPA had opposed VHI’s application

to intervene in those proceedings on the grounds that the position of VHI should be taken to correspond substantially with that of the

State which had been already given leave to intervene in those proceedings. That particular contention however was rejected by the

President of the Court of First Instance. The Court found that VHI would require to put its own arguments quite independently of the

State.

16. The High Court (Peart J.) delivered judgment on BUPA’s application on 22 July, 2005. The court held that the remaining claims in

the proceedings, namely, the constitutional and EU law challenge to the 1994 Act, were matters which could be decided upon by the

court without the participation of VHI at the hearing.

17. The court explained its conclusion in the following passage of the judgment delivered by Peart J. (at p.9):-

“Arising out of a successful challenge to any piece of legislation there may often be persons who would be affected financially

or otherwise. That fact alone is not sufficient to permit such persons to be joined in the plenary proceedings commenced

against the Attorney General so that they can add their voices to the submissions which will be put forward by the Attorney

General when he discharges his obligation to argue for the upholding of the legislation impugned. In the present case, the

Attorney General is and will be fully and expertly represented to argue that case. He is not arguing that case in any sense on

behalf of VHI, even though it is the principal, and indeed probably the intended beneficiary of the Scheme. Rather he is arguing

for the constitutionality of the legislation on behalf of the Government and the people of Ireland. The private interest of VHI is

not one which needs to be heard in order to decide upon the constitutionality of the legislation or the EU law challenge.”

18. The court referred to the provisions of Order 84, Rule 22(2) of the Rules of the Superior Courts. It had been submitted on behalf

of VHI that VHI was “directly affected” by the remaining claims in the proceedings and that it should, therefore, remain a Notice

Party. However, in addressing that point, the court appeared to take the view that the proceedings were no longer judicial review

proceedings and that the VHI did not come within the provisions of Order 84, but rather that VHI came within the provisions of Order

15 of the Superior Court Rules, but failed to satisfy the requirements of the latter. The court thus decided to make an order directing

that the remainder of the action proceed as between BUPA and Ireland and the Attorney General only.

19. Since the date of the judgment of the High Court a number of significant events have taken place.

20. Firstly, further evidence has been delivered on behalf of BUPA in the proceedings. This consists of affidavits of Martin O’Rourke

(the Chief Executive of BUPA Ireland), Dr. Christian Kobolt (an economist) and Mr. Robert Parke (an actuary). The affidavits of Mr.

O’Rourke and Mr. Parke each refer extensively to the alleged attributes and actions on the part of VHI in support of the claims made

by BUPA in the proceedings. Moreover, the evidence of Dr. Kobolt comprises expert economic evidence which BUPA relies upon to

contend that the Scheme is inconsistent with the purposes of the policy of the 1994 Act and infringes the EC Treaty. Dr. Kobolt in his

report refers to the key attributes and conduct of VHI and the effect of that conduct. He produces statistical data relating to VHI’s

business. A great deal of the report is alleged to contrast the positions and conduct of what Dr. Kobolt refers to as the “incumbent”

or “monopolist” health insurer on the one hand and any new entrant to the Irish private insurance market on the other. Much of what

Dr. Kobolt says in his report with regard to VHI’s operations and how it does its business is disputed by the VHI. VHI apprehends that

Dr. Kobolt’s evidence will be directed to establishing that the Scheme is not necessary and/or that it is a restriction in competition. It

thus contends that the court should have available to it all relevant evidence with regard to the market analysis which will form an

integral part of the case.

21. It is important to point out that, by agreement between the parties, this proposed evidence has been served on VHI and VHI has

responded to it in the interim without prejudice to the outcome of this appeal and so as to avoid the trial of the proceedings being

delayed in the event that the appeal succeeds.

22. More significantly, under the 1994 Act and the Scheme, the HIA is obliged to consider on a half-yearly basis whether or not it is

appropriate for it to recommend to the Minister whether Risk Equalisation payments should commence. In accordance with those

obligations, the HIA did, on 12 September, 2005, express a further provisional recommendation to the Minister that the Minister should

order the commencement of Risk Equalisation payments under the Scheme. The HIA, as already noted, made its substantive

recommendation in favour of commencement to the Minister on 28 October, 2005. It is not in dispute that if the Minister accepts the

further recommendation, the greater part of any Risk Equalisation Payments ordered by the Minister will require to be paid to VHI. On

this basis, VHI contends it has an ongoing interest in the 1994 Act and in upholding the Scheme and that that interest is not and

should not be dependent upon whether a recommendation is current or on whether the Minister accepts or refuses to accept any

particular recommendation of the HIA.

Decision

23. Given that the court at the conclusion of the hearing herein directed that the appeal be allowed and that VHI be rejoined as a

Notice Party in the proceedings, the remainder of this judgment is confined to an outline of the reasons for the court’s decision.

24. Firstly, it is clear beyond question that the present proceedings have at all times been judicial review proceedings and continue

now as such. As noted above, Points of Claim, rather than a Statement of Claim, were delivered pursuant to the court’s directions

and Points of Defence, as is appropriate to judicial review proceedings, were filed in reply by the State respondents. Indeed the State

respondents objected strongly to the applicant’s attempts to convert the proceedings from judicial review to a plenary hearing, not

least because it was apprehended that more challenges might be made in respect of any further recommendations of the HIA.

25. Order 84, Rule 22(2) of the Rules of the Superior Courts provides that:-

“The Notice of Motion or summons must be served on all persons directly affected…”

26. Order 84, Rule 22(6) provides that:-

“If on the hearing of the motion or summons the court is of opinion that any person who ought, whether under this rule or

otherwise, to have been served has not been served, the court may adjourn the hearing on such terms (if any) as it may

direct in order that the Notice or Summons may be served on that person.”

27. Order 84, Rule 26(1) provides that:-

“On the hearing of any motion or summons under Rule 22, any person who desires to be heard in opposition to the motion or

summons, and appears to the court to be a proper person to be heard, shall be heard, notwithstanding that he has not been

served with Notice of the Motion or the summons.”

28. In O’Keeffe v An Bord Pleanála (1993) 1 I.R. 39, the Supreme Court granted an application to a party to be added to proceedings

for the purposes of an appeal before the court, concluding that in the interests of justice it was necessary that Radio Tara, who

would be very clearly affected by the result of the appeal, should be added as a party to it.

29. In the course of his judgment, Finlay C.J. (at p.78) stated as follows:-

“If application is made for liberty to issue proceedings for judicial review and the claim includes one for certiorari to quash the

decision of a court or of an administrative decision- making authority the applicant must seek to add as a party any person

whose rights would be affected by the avoidance of the decision impugned. If liberty is granted the court should except for

special reasons ordinarily add such person as a party.”

30. A similar view was taken by this court in Spin Communications T/A Storm F.M. v Independent Radio and Television Commission

(unreported, Supreme Court, 14 April, 2000). In that case, Keane C.J. stated as follows:-

“This is a case in which the notice party, as indeed the High Court judge accepted, is a party with a vital interest in the

outcome of the matter. As Finlay C.J. said in the O’Keeffe v An Bord Pleanála case, where you have a party such as the Notice

Party in the present case who is vitally interested in the outcome of the proceedings, they must be joined as a party and will

be joined by the court if the applicant does not join them. In those circumstances, it seems to me that once the notice party

is there, once he is in the proceedings protecting his interests, he may find himself in precisely the same position as the

respondent. He may find himself in the position that he has been there, of necessity, to protect his interests, to advance

arguments that may not have been advanced by the IRTC, and to have had the benefit of his own counsel and solicitor to

protect his interests. It would be quite unjust that he should have to pay his costs because the applicant company has no

assets, where he has been brought there as a necessary party.”

31. These cases demonstrate that where a party has a “vital interest in the outcome of the matter” or is “vitally interested in the

outcome of the proceedings” or would be “very clearly affected by the result” of the proceedings, it is appropriate for that party to

be a notice party in the proceedings.

32. While it is true, as argued by counsel for BUPA, that a challenge to legislation per se is a matter of public law affecting the public

at large and that a private citizen normally will not be joined in proceedings where the Attorney General seeks to uphold the

constitutionality of the legislation in question, a very different situation may be said to exist when, as in the present case, a

particular party would be “uniquely adversely affected” if the application to strike down the Act and Scheme were to be successful.

33. In this regard counsel for the Minister has pointed out that it is by no means unusual for third parties to be heard where the issue

is the alleged unconstitutionality of legislation.

34. Thus, for example, in Buckley v Attorney General (1950) I.R. 67, the personal representative of the surviving trustees was a

defendant. Likewise, in Blake v Attorney General (1982) I.R. 117, the tenants of one of the defendants were represented by counsel

and argued the case before the High Court. Again, in O’B v S (1984) I.R. 316, where the constitutionality of certain provisions of the

Succession Act, 1965 were under challenge, both the testator and the offspring appeared and argued the constitutional point.

Counsel for the Minister suggested therefore that it may be said there is a practice that at least a third party who stands

“immediately affected” by the outcome of a constitutional challenge is entitled to appear and be heard in such proceedings.

35. In the instant case it may be genuinely said that the abolition of the Scheme would immediately impact the legal environment in

which VHI is required to operate and would have very significant consequences for how VHI does its business in the future having

regard in particular to its statutory obligations to maintain reserves.

36. Furthermore, very serious allegations are made by BUPA in its Points of Claim to suggest that if Risk Equalisation payments are

commenced under the Scheme, VHI will be thereby enabled to abuse its dominant position in the Irish market. In the course of the

hearing before us Mr. Gallagher on behalf of VHI submitted, we believe correctly, that a detailed market analysis will in this context

form an integral part of the upcoming hearing. Indeed the exchange of evidence and other materials which has taken place since the

hearing in the High Court fully supports that proposition. It is incontrovertible that VHI is in a unique position to contribute to that

debate and is, in the words of its own solicitor, likely to be “uniquely adversely affected” if the applicant’s claims, which go beyond a

mere challenge to the constitutionality of the legislation, are successful.

37. The proceedings will inevitably involve an examination of the nature of Risk Equalisation, the competitiveness of the market, the

nature of community rated markets and the issue of risk selection. The role of VHI in that market and the nature of its behaviour in

the market will be central issues. It follows that VHI has the greatest possible interest and need to express its views on matters

which go to the heart of the case being made by BUPA. Any suggestion that VHI is likely to abuse such dominance with the activation

of Risk Equalisation makes it all the more important that the views and input of the VHI in this case would be available to the court.

38. While it is true to say that the proceedings as presently constituted are shorn of any challenge to the first recommendation from

HIA to implement Risk Equalisation, recent days have brought news of a further recommendation from HIA which confirms our view

that the original status quo wherein VHI was joined to the proceedings without demur by BUPA has been restored. While Mr. Collins on

behalf of BUPA stated in court that his clients had no present plans to challenge that new recommendation, preferring instead to

challenge the legislation, it is impossible to avoid the conclusion that there is a certain inconsistency in BUPA’s position between then

and now in relation to VHI’s participation in the proceedings.

39. In the course of argument, it was also suggested by counsel for VHI that the learned High Court judge had applied the wrong test

in deciding the issue of joinder or non-joinder by reference to Order 15 of the Rules of the Superior Courts.

40. Order 15, Rule 13 provides:-

“No cause or matter shall be defeated by reason of the mis-joinder or non-joinder or parties, and the court may in every case

or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The

court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may

appear to the court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants,

be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or 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.”

41. It does seem from a reading of the judgment of the High Court that Peart J took the view that all issues in the case could be

dealt with by the High Court “effectually and completely” without the involvement of VHI. Considerable importance in this respect was

attached by the learned High Court judge to the decision of this court in Barlow v Fanning (2002) 2 I.R. 593.

42. In that case the plaintiffs had instituted proceedings against two defendants, but in due course served Notice of Discontinuance

in respect of the first named defendant. That defendant applied under Order 15 to be rejoined to the proceedings on the basis that

he feared his reputation might be impugned in the course of the hearing against the second named defendant and he wished to

protect himself in that regard. The court held that a person whose good name and reputation might be affected by the outcome of a

case was not automatically entitled to be joined as a defendant, if his presence was not required by the court for the effectual and

complete adjudication of the issues to be determined. The court also approved the reasoning of Lynch J in Fincoriz S.A.S. Di Bruno

Tassin Din e C v Ansbacher & Co. Ltd (Unreported, High Court, Lynch J., 20th April, 1987) that there must be “exceptional

circumstances” before a person could be joined as a defendant against the wishes of a plaintiff.

43. Quite apart from the fact that this court believes that the test in Barlow Fanning was not the correct test to apply in this

particular case, the court feels nonetheless that the facts of the present case are such as to bring it within the principles laid down

in that case. That is to say, this court is strongly of the view that this case does involve exceptional circumstances and that the

continued presence of VHI in the proceedings is “necessary in order to enable the court effectually and completely to adjudicate

upon and settle all questions involved in the cause or matter”. The court has reached this conclusion having regard, in particular, to

the matters alleged against VHI or directly affecting VHI in the Statement of Grounds, the affidavit sworn on behalf of BUPA, the

Points of Claim delivered by BUPA and having regard also to the fact that VHI would be “uniquely adversely affected” if BUPA were to

succeed in the proceedings. Furthermore, even if the test contained in Order 15, Rule 13 were the correct test to apply, this court

feels that there ample grounds for holding that VHI is a body whose “proprietary or pecuniary rights are or may be directly affected

by the proceedings either legally or financially”. That this may be a relevant consideration is evident from the corresponding law in

England, as noted by Keane CJ in Barlow v Fanning when (at p.599)he cited a passage to that effect from Halsbury’s Laws of England

(4th ed.) Vol. 37, para.226. Mr. Collins rather ingeniously sought to deal with this aspect of the case by suggesting that VHI would

lose nothing if the case went against them, that they merely have at present the contingent possibility of a ‘financial windfall’ if the

Scheme becomes operative. The court can not accept this contention because to do so is to ignore the reality of the unprecedented

mano a mano struggle between the rival insurers in this case and their respective claims of detriment to financial viability if

unsuccessful in the proceedings.

44. Given that the circumstances which warrant the joinder or intervention of a party in proceedings before the Court of First

Instance are agreed not to coincide with those contained in the Rules of the Superior Courts, the court does not seek to invoke in aid

of its decision the fact that the Court of First Instance has allowed VHI intervene in the challenge to the ruling of the Commission in

favour of Risk Equalisation.

45. It is nonetheless a factor which at the level of practical common sense suggests the appropriateness of rejoining VHI in the

present proceedings, particularly when the further recommendation of the HIA for the commencement of Risk Equalisation is taken into

account.

46. For these various reasons, the court has allowed the appeal in this case.