Pursuing all Defendants
Section 35 (1)(i) of the Civil Liability Act 1961 states that a Plaintiff will be responsible for a degree of liability where there are multiple wrongdoers and the Plaintiff did not pursue all of them in litigation. This together with recent case law illustrates the necessity to ensure that all the correct Defendants to a cause of action are sued.
Where more than one person is found liable but only one of those people is sued, that Defendant who is sued can hold the Plaintiff responsible for the wrong doing attributable to the party who is not sued. This section applies to Defamation proceedings also so it is important for the Plaintiff to sue the author as well as the host or person who republishes.
The balance of fairness in modern litigation may require that the legislation be reviewed. The Statute of Limitations have changed; modern technology and social media might make it impossible to identify all Defendants; a potential Defendant may not be able to meet any award for damages and issues relating to vicarious liability might arise. Equally, the range of Defendants may be broader under these considerations also.
Initial instructions are very important and when in doubt, it is suggested that all potential wrong doers are pursued.
CONCLUSION
As a Plaintiff, it is very important to identify the correct Defendants and ensure all are included in the litigation. It is better to let a Defendant out of the proceedings than realising too late that one ought to have been included.
As a Defendant, you may be able to attribute that liability found against a non-party to the proceedings against the Plaintiff if that Plaintiff did not sue all wrong doers. This may result in a reduction in the damages relative to the non-party portion of liability. For example, if the Defendant is found 40% liable but a non-arty found 60%, the court may reduce the award of total damages by 60%.
If you have any litigation queries, please do not hesitate to contact Niall MacCarthy or Brendan Dillon of this office on (01) 2960666 or niallmaccarthy@dillon.ie.
