The use of the words 'joint and several liability' means that two or more people are are liable for the loss suffered by another person.
Joint and several liability may arise under:
- contract law as a result of a contractual commitment, or
- under tort law as a result of commission of a tort, by cooperating with others to commit the tort.
The overall aim is for the innocent party to recover judgment debts and enforce court orders against all those responsible for the wrongdoing, rather than just some of them.
Joint and several liability may be imposed by a joint and several liability clause.
In this case, each contracting party is liable on the obligation to pay money or deliver on the promise stated in contract, which they agreed to accept (by signing the contract). They are jointly (or paraphase to "together") liable to perform the obligations stated in the contract.
For instance, loan agreement, personal guarantee or indemnity given in a contract may state that two or more signatories to the agreement are jointly and severally liable under contract.
When the contract is not performed, a breach of contract takes place. Liability arises to honour the contract for the breach for either:
- a debt due, or
Example of joint and several liability
- A and B promise to pay £100 to C. That is a joint obligation which gives rise to joint liability if the payment is not made
- A promises to pay C £100 and B promises to pay C £80. They are separate - several - obligations to pay. Each has their own liability. It is several liability. The debts are cumulative.
A is not liable for B's debt to C, and B is not liable for A's debt to C.
- Following on from paragraph 2 immediately above, A and B also promise to be jointly and severally liable to C for one another's payment.
In this case, A and B are both (jointly and severally) liable to C for a total of £180.
The creditor in these cases tends to sue all of those in default at once. The creditor does so, so that it has multiple judgment debtors to choose from to recover the judgment debt.
Suing multiple debtors in this way also increases the pool of assets against the which the judgment debt may be recovered.
That will be the totality of the value of the assets owned by all of the debtors.
The law permits creditors pick and choose their judgment debtors for the purposes of enforcement.
There is no compulsion or requirement for the creditor to choose one or the other, or some and not others.
If the judgment creditor is not successful in recovering some or all of the judgment against one of the judgment debtors, they are able to move on the next judgment debtor.
The judgment debtors have rights between themselves. For example, if one judgment debtor pays the whole debt, it is entitled to recover the proportions from the other debtors.
Torts that attract joint and several liability include:
- passing off
- infringement of intellectual property rights, that is copyright, designs, trademarks, and patents
- malicious falsehood
- trespass to goods
- tort of conversion, and
- many others.
There is no reason in principle why a group of persons - tortfeasors - may not be found jointly and severally liable in a court case - it depends on the facts of the case and whether the separate persons participated in a common design.
"Tortfeasors" is a legal term which refers to someone who commits a tort - such as an infringement of patent rights, or any of the other torts listed above.
The loss or damage suffered at the hands of the tortfeasors may be:
- caused by the same persons, or
- separate and distinct loss, each caused by different persons, whether individuals or separate legal entities.
"Jointly" and "Severally"' have different meanings. They both relate to the same loss.
In tort law, joint liability arises where a person:
- urges, directs or provokes another to commit the same tort
- actively participates in the commission of the tort, or
- participates in a common design,
provided that the damage is the same.
A person that facilitates the tort as opposed to bringing about or procuring the tort is not a joint tortfeasor; although liability may arise by participation the common design.
Several liability arises where different damage is caused by different tortfeasors to the same claimant.
The liability of each tortfeasor is separate and distinct because:
- the causes of action are different, and
- the liability for loss arises from different acts.
In these cases, a claimant must recover the separate damage from the particular defendant that caused the damage.
Reason for Joint and Several Liability
When a tort is committed by a number of different persons which causes the same damage any one or more of those responsible may be sued for the loss.
From a legal perspective, it makes senses that if two or more people cooperate unlawfully to infringe someone else's rights, and their unlawful acts cause the same damage, they should all be liable for it.
Differences between Joint Liability and Several Liability
The difference between joint liability and several liability lies in that the damage caused is different in cases giving rise to several liability.
Where the damage is the same, joint liability arises between the tortfeasors.
There are other consequences, such as releasing one joint tortfeasor will release all other joint tortfeasors from liability. Subject to satisfaction of certain conditions, this is the case for several liability as well.
Where different damage is caused by different persons, each person is only liable for the loss that they caused - ie several liability.
Is it Joint or Several Liability?
In a case where multiple defendants are involved in the commission of a tort, whether or not joint liability exists is determined by focusing on the acts that were committed that gave rise to liability in the first place - ie the cause of action.
In the case that each of the intended defendants can be sued:
- on the same set of facts,
- for the same liability (including through vicarious liability),
then each of the defendants are joint tortfeasors.
Where each is liable for a separate tort, and not the same tort, they are several tortfeasors.
Application of the Law
Where a claimant has a good arguable case that several defendants are liable for damage caused, it can be used in support of interim injunctions to obtain interim relief at the outset of legal proceedings, against all of the tortfeasors.