Reporter’s Notes:

(1973): Rule 24(a), with the exception of the substitution of “Commonwealth” for the “United States” is identical to Federal Rule 24(a). It permits the intervention of a party as a matter of right in two instances: (1) where permitted by statute and (2) where the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect his claimed interest, unless such interest is adequately represented by existing parties.

Prior to a 1966 amendment to Federal Rule 24, apart from statutory authorization, intervention was allowed as a matter of right only upon a showing (1) that the applicant might be bound by a judgment in the action, and that existing parties would inadequately represent his interests; or (2) that the applicant would be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court.

The Advisory Committee on the Federal Rules felt that the “res judicata” or “fund” requirements of the former Federal Rule 24(a) were unnecessarily restrictive. If the interests of an absentee who would be substantially affected in a practical sense by the determination are not adequately represented by existing parties, he should, as a matter of right, be allowed to intervene.

The amended version of Federal Rule 24(a) coordinates more closely intervention with joinder (Rule 19 ) and class actions (Rule 23 ). The amendment provides that an applicant is entitled to intervene in an action when his position is comparable to that of a person under Rule 19(a)(2)(i) unless his interest is already adequately represented by existing parties.

Adequacy of representation under Rule 24(a) is not confined to formal representation like that provided by a trustee for his beneficiary or a representative party in a class action for a member of the class. Ford Motor Co. v. Bisanz Bros. Inc., 249 F.2d 22 (8th Cir.1957) presents a good illustration of practical representation and of the wisdom of eliminating the res judicata requirement of the former version of Federal Rule 24(a). Ford involved an action by property owners against a railroad company to enjoin the operation of freight cars on certain trackage. Ford, which owned an assembly plant which was serviced by this particular trackage, sought to intervene under Federal Rule 24(a). The United States Court of Appeals vacated an order of the District Court and allowed Ford to intervene. On the argument of plaintiff that Ford should not be allowed to intervene because it would not be bound by any judgment against the railroad, the Court held that a judgment against the railroad would have the practical effect of denying Ford a service essential to its operation. As amended, Rule 24(a) codifies this reasoning.

Apart from a few isolated situations covered by statute (see G.L. c. 12, § 8; G.L. c. 149, § 29; G.L. c. 151D, § 3; G.L. c. 241, § 6 ), intervention as a matter of right did not exist under prior Massachusetts practice.

A person could intervene in Massachusetts only upon a showing that he had a substantial interest in the subject matter of the litigation (Check v. Kaplan, 280 Mass. 170, 178, 182 N.E. 305, 308 (1932)). In all cases a motion to intervene was addressed to the sound judicial discretion of the presiding judge; his decision would not be reversed unless it clearly appeared that there has been an abuse of such discretion. Haverhill v. Di Burro, 337 Mass. 230, 235, 236, 148 N.E.2d 642, 645, 646 (1958).

Rule 24(b) provides for permissive intervention when allowed by statute or where an applicant’s claim or defense and the main action have a question of law or fact in common. The purpose of Rule 24(b) is to facilitate the disposal in one action of claims involving common questions of law or fact, thus avoiding both court congestion and undue delay and expense to all parties. On the other hand, one could argue that intervention may unduly delay or prejudice the adjudication of the right of the original parties.

Rule 24(b) clearly alters Massachusetts practice which required as a condition for the allowance of intervention a showing by the applicant of a substantial interest in the subject matter of the litigation. See Check v. Kaplan, supra.

Rule 24(c) regulates the form of the prospective intervenor’s notice to the parties.

Under Rule 24(d), the obligation to notify the attorney general that the constitutionality of an act of the legislature or of a municipality is being questioned in the action is placed upon the party asserting the unconstitutionality of the act (or the unconstitutionality or invalidity of an ordinance or by-law) rather than, as in Federal Rule 24(c), on the court.