Contents

Appendix A

Indicative draft: relief for minor defendant

Relief for minor defendant
(1) In this section minor defendant means a party held liable in a civil action but which or whom the court or tribunal determines bears only a minor and limited responsibility for the plaintiff’s loss.
A liable party is not a minor defendant only because:
(a) the party’s share of responsibility falls below a particular percentage or proportion, or is less than any other party’s share of responsibility, or both;
(b) the party’s involvement in relevant events was largely or completely restricted to providing verification, certification or other independent services required to facilitate the events or elements of them; or
(c) the party was under a statutory obligation to provide relevant services or take relevant actions.
(2) In this section and for the avoidance of doubt, “damages”, include damages, interest and costs awarded by a court or tribunal, other than any separate costs awards for which the minor defendant is not expressly made liable.
(3) A party may make an application, before or at trial, to be declared a minor defendant, but such a declaration has no effect unless and until the applicant is held liable. Applications must be on appropriate notice, in accordance with the High Court Rules.
(4) A liable party that has been declared a minor defendant may make an application at or after trial for relief from the full effect of their joint and several liability to the plaintiff provided:
(a) the application for relief is made within 12 months of the sealing of the of the relevant judgment on damages, except that the court or tribunal may grant leave for a late application where it is in the interests of justice that the application be heard;
(b) the minor defendant (or minor defendants, if the court has determined that there is more than one minor defendant) is or are the only remaining liable party or parties available to meet the judgment sum or an unpaid part of the judgment sum.
(5) The court or tribunal may grant relief to a minor defendant only if it is satisfied that the normal application of joint and several liability would produce a clear injustice because:
(a) the minor defendant would be required to meet damages substantially in excess of those indicated by the minor defendant’s share of responsibility; and
(b) the circumstances otherwise provide justification for relief.
(6) When determining whether there is justification for relief in terms of paragraph (5)(b), the court or tribunal shall take into account all relevant circumstances including but not limited to:
(a) the minor defendant’s adjudged share of fault or responsibility for the plaintiff’s loss;
(b) whether any of the factors listed in paragraphs (1)(b) or (1)(c) apply to the minor defendant and if so, whether or not the minor defendant’s conduct in their role, office or duty tends to support relief being granted.
(c) the likely effects on the minor defendant if relief is not granted, and the extent to which any relief might mitigate such effects;
(d) the likely effects on the plaintiff if any relief is granted, (other than any effects that would prevent the plaintiff from receiving an effective remedy, see paragraph 7(a)).
(7) The court or tribunal may, if it considers the case for relief is made out, reduce a minor defendant’s liability to an amount or maximum amount that is just in all the circumstances and which ensures that:
(a) the plaintiff will still receive an effective remedy; and
(b) the result achieves reasonable fairness as between plaintiff and minor defendant.
‚Äč(8) What constitutes an effective remedy for the purposes of subsection (7)(a) shall be determined by the court or tribunal in each case, except that in no case may relief reduce the plaintiff’s potential total recovery to less than half the damages they were originally awarded.