Contents

Chapter 4
Partial reform options

Assessment of partial reform options

4.21Partial reform options enable a more targeted response to issues identified for particular classes of defendants, particular industries, or particular fact patterns within civil litigation. This offers a more nuanced approach than a move to proportionate liability, while potentially addressing some of the more significant criticisms of the status quo. However, there are some pitfalls of partial reform options – including the risk that these can result in unprincipled or incoherent law that is complicated to apply.

4.22In later chapters we suggest some partial reform measures that we consider will improve the status quo in a targeted and workable manner. In developing these proposals, we have sought to create principled reform that will achieve intended outcomes without causing unforeseen consequences. We have drawn from a number of the partial reform options explored in this chapter, but we do not suggest any of the more common “hybrid” models. Our reform proposals are more narrowly focussed, addressing particular areas in which we can locate a strong case for reform.

4.23We have considered the effects on settlement and litigation strategy, and the potential for defendants or plaintiffs to “game the system”. We have also sought to retain aspects of the common law that are particularly important, such as the autonomy of the plaintiff. Most importantly, partial reform options were assessed for their implications for equity as between plaintiffs and defendants. We have deliberately rejected reform options that merely shift the outcome in favour of defendants; rather, we consider that to justify change there must be benefits across the board, either in terms of economic efficiency or the conduct of litigation.

Recommendation

R2 A hybrid rule, incorporating some elements of proportionality into joint and several liability, should not be introduced into the liability regime for multiple defendants.