Chapter 5
Relief for a minor defendant

The case for reform

5.5In the course of this review, many consultation participants argued that joint and several liability is unfair because it could result in a very minor party bearing the full amount of a loss. It was difficult to assess whether this is predominantly a theoretical problem or fear, or whether such results occur reasonably often in practice. This is because while judgments are public documents, their enforcement is generally undertaken by and between the parties, so that who actually pays and how much is not normally a matter of public record.63 However, we can reasonably conceive that there will be cases in which the loss may be largely due to the wrongdoing of other defendants and may significantly exceed the amount of loss that can be reasonably attributed to the actions of the minor defendant alone.64

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.

5.7This example confirms that the main justification to allow relief in such a situation is to redress or reduce unfairness or injustice that clearly could otherwise arise, in extreme cases. This is not so much because of a weakness in the joint and several liability rule, but rather is an attempt to address an inherent problem in application that will arise regardless of which liability rule applies. Under joint and several liability, a clearly unfair or unjust result is most likely where most, or all but one, liable defendants are insolvent, but there is a solvent minor defendant who can be made to pay the whole of the damages.65 The solvent minor defendant in such a situation may be required to pay many times more than their share of responsibility indicates – for instance 19 times their own share of responsibility, if they were adjudged to have a 5 per cent share of responsibility. We expect that this result would generally be regarded as unfair or unjust, depending on all the facts in a particular case, and some facility is warranted to at least reduce the harshness or injustice of the result.

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.

63Cases disposed of by settlement – which almost certainly include the significant majority of disputes – are even less open to scrutiny, unless some element of the settlement is later brought to court.
64For example, in a defamation claim (putting aside pure defamation law), the major defendants might be the journalist and the newspaper publisher, while minor defendants might include individuals who posted the article on Facebook. Subcontractors in building and other industries are also likely to generate potential minor defendants – but always depending on the facts in each case.
65The corresponding situation with proportionate liability is also where most liable defendants are unavailable, with the difference that the cost is borne by the plaintiff.