Joint and Several Liability and a System for Proportionate Liability

This chapter is taken directly from Griffiths & Armour’s publication Constructing Change: Evolving the Status Quo or Time to Reset?, which brings together sector perspectives on key legal, construction and insurance challenges.

The chapter examines the impact of joint and several liability on construction professionals – especially in cases where one party must shoulder the costs of others’ mistakes cand argues for the implementation of proportionate liability models. The content below is unedited and drawn exactly from the original report.

Extracts from the chapter:

“Industry must lobby for the creation of a statutory scheme of proportionate liability and for Government to ask the Law Commission to review the subject once more.”

“Much has changed since the last review and, in particular, there have been many international developments on how such a scheme could be implemented. It’s no longer a case of all or nothing. Variations on a proportionate liability model include:

• Schemes that maintain joint and several liability but incorporate a mechanism for reallocating the risk of unenforceable judgments across all remaining parties, including the claimant.
  
• Systems that apply joint and several liability when a defendant’s responsibility exceeds a certain percentage threshold, but otherwise implement a proportionate liability model (i.e. they penalise the most culpable).
• Systems that differentiate between economic and non-economic losses…
• Similarly, the system could distinguish between ‘consumer’ claimants and others, acknowledging that the former lack the same resources and knowledge as businesses.”