5.6The minor defendant issue may be more readily apparent in the usual situation where the contribution of each liable defendant is determined at the same time as judgment is given in the main proceeding. For example, in a leaky building claim a judge gives judgment against a number of defendants for the whole loss, making them all liable defendants. The judge then determines how responsibility should be apportioned between liable defendants and makes contribution orders accordingly. One of the liable defendants, a subcontractor, is adjudged to have a five per cent share of responsibility and gets the benefit of a contribution order for any amount he pays above that level. Under joint and several liability the plaintiff is not concerned with the contribution order and is entitled to demand the full amount of damages from the subcontractor. If the subcontractor pays as demanded he can then use the contribution order to seek contributions from the other liable defendants, subject to their respective maximum obligations to contribute. If one or more of the other liable defendants is insolvent or has absconded, the subcontractor may be left bearing the cost of most or even all the plaintiff’s damages.
5.8As a secondary consideration, the multiple defendant liability rules ought to be seen to operate fairly. If there is a widespread view that an aspect of our civil litigation system is unfair then the integrity of the system may be undermined. The submissions we received confirm that views continue be strongly divided, depending on whether the observer is associated with or is more likely to be a plaintiff or defendant. Nevertheless, we accept that there is a concern, likely to continue among a significant number of litigants or potential litigants, regarding the implications of joint and several liability for smaller defendants. We also accept that minor defendants exist and may suffer demonstrably excessive liability in circumstances where the minor defendant must pay close to or 100 per cent of a judgment, despite their responsibility for the plaintiff’s damage being set at a very small proportion, for example, five or ten per cent. No doubt defendants may initially be overly inclined to see themselves as “minor defendants” – it may take some time for expectations to be set by Court decisions. We nevertheless consider that the overall system, including joint and several liability as the central principle and rule, will be better accepted and function better if some limited scope to deal with hard cases is introduced.
5.9We stress that any discretion to reduce or remove unfairness must be limited. Joint and several liability remains the general rule, and may only be departed from so far as is necessary to alleviate the injustice, to the extent this is possible, while still providing a fair and effective remedy for the plaintiff. In the next section we discuss how a minor defendant regime ought to operate, including the protection of the plaintiff interest and the necessary balancing of fairness to plaintiff and liable defendant.