Managing claims with multiple defendants
Defendant personal injury practitioners are often required to manage claims involving multiple defendants, particularly in cases involving large loss. These claims can be complex in terms of facts, law, procedure and evidence. Not only must practitioners decide how best to manage claims against their clients, they are additionally required to consider if and how to proceed against other existing or potential parties, to recover some or all of the damages payable to claimants.
Claims with multiple defendants, can include those that are not already a party to the proceedings, but are added because they are in part responsible and so there is a need for them to cover a contribution of the claim or to provide indemnity. The most common scenarios that may give rise to claims with multiple defendants include:
- Where one party’s breach of duty results in an accident for which another party is liable – usually arising where the claimant’s injury is caused because a third party has breached a term of contract between the defendant and that third party and there is a term in the contract passing this risk to the third party and thus giving the defendant a direct claim against that third party.
- Where two or more defendants’ are in breach of their duty – this provides the claimant the option to claim against one or more defendants.
- Intervening act - Where a subsequent intervening act has caused additional injury or exacerbated the initial injury caused by the original wrongdoer, the defendant may have a claim against the third party responsible for that intervening act. An example would be where there was negligence in the claimant’s treatment of the initial injury and this amounted to gross negligence.
Commonly sought remedies for such claims include a contribution of the damages payable to a claimant and/or an indemnity, which can be claimed concurrently. An indemnity seeks to make one party responsible for another party’s entire loss and is more appropriate in direct claims, whereas a contribution is a liability to share another’s party’s loss.
These remedies can be claimed whether or not liability to the claimant is admitted and may be claimed from a joint wrongdoer, contractor or co-insurer.
How to bring an additional claim
Procedurally there are three ways to bring an additional claim:
- Where the main claim is against multiple defendants and the defendants seek a contribution from each other, a claim against an existing defendant is commenced by serving a Contribution Notice (the Notice), which does not incur a fee. There is no requirement for the court’s permission provided the Notice is served while filing your client’s defence.
- Where the main claim is against one defendant and that defendant wants to claim against a new party, it must issue a Part 20 Claim Form when filing its defence to commence the additional claim without the court’s permission. Otherwise an application must be issued to seek the Court’s permission to issue the Part 20 Claim Form. Alternatively, the defendant may issue a separate Part 7 claim and apply to join this to the main claim. Either way, the defendant must pay the full issue fee which could be up to £10,000.
- Where the claimant’s claim against the defendant is concluded and the defendant brings a separate claim against a new party to recover some or all of its losses arising from the claimant’s claim.
If you represent an existing defendant who intends to make an additional claim, consider the following:
- Cases are expensive and complex – you will therefore need to consider whether a contribution claim is justified based on the value of the claim.
- Time is of the essence - if the additional claim is brought subsequent to the defence being filed, the court’s permission will be required. If there is a delay in making the application for permission, this is likely to be refused unless there is adequate reasons for the delay.
- Concluding the main claim - where liability is in dispute, consider if there might be a tactical or costs advantages to conclude the main claim prior to making a contribution claim. Settling a claim is not a bar to bringing subsequent contribution proceedings, which must be brought within 2 years from final judgment or agreed settlement date. However, bringing an additional party into a disputed claim may be the only way to secure evidence from that party.
- If multiple defendants are involved and liability is clear cut - it is worth exploring whether a without prejudice apportionment of liability can be agreed to avoid additional claims between the defendants.
Being joined to a claim as an additional party
Representing an additional party who has been joined in a claim has a number of repercussions, including dealing with a claim without prior notice or investigation and dealing with claims that would otherwise be statute barred. As a newly joined party to the additional claim you have limited influence on the evidence as you were not part of the original claim and so may have to rely on co-operation of other parties.
You will also need to give early consideration as to whether or not to retaliate against co-defendants at times with limited evidence, as not doing so could risk paying the entire judgement even though your client may not be liable in full.
Attention must be paid as to how claims with multiple defendants are concluded. If they are settled by way of consent order and/or at a joint settlement meeting, it is vital that you ensure that settlement terms do not have unintended consequences on other parties, or claims against them, or unintended costs consequences for your client. For example, consent orders should be carefully worded to ensure that claimant’s costs are properly apportioned between different defendant, costs incurred by or in connection with other defendants do not become payable by your client and if your client to intends on bringing recovery proceedings, this is not prevented by settlement terms.
If these claims are not managed tactically and skilfully there are many pitfalls to catch you out. Failing to follow the necessary formalities and procedure may result in failure to secure judgement or missing strict deadlines in commencing the additional claim, which could necessitate applications being made to the court or limitation being missed. On the other hand unsuccessful additional claims will almost certainly result in adverse costs orders for your client. Therefore full and proper consideration must be given to evidence and merits of a claim prior to commencing additional claims.