joint and several liability

The use of the words 'joint and several liability' indicates that multiple defendants are liable for the loss suffered by a claimant. When loss is suffered by a claimant, that loss may at law be caused in whole or in part by a number of different tortfeasors.

The particular loss in question may have been caused by the same persons (ie 'joint' tortfeasors), or separate and distinct loss may be have caused by the different persons (ie 'several' tortfeasors). 'Jointly' and 'severally' have different meanings which both relate to the loss that may be recovered from multiple defendants. 

There is no reason in principle why a group of persons may not be found jointly and severally liable in a court case - it depends on the facts of the case and whether a common design has been established on the evidence.

Torts include conspiracy, infringement of intellectual property rights (copyright, designs, trademarks, and patents), malicious falsehood, defamation, trespass to goods and many others. Tortfeasors is a legal term which refers to someone who commits a tort - such as an infringement of patent rights.

Reasons for Joint and Several Liability

When a tort is committed by a number of different persons which causes the same damage, any one of the number of tortfeasors may be sued for the loss.

The objective of suing more than one defendant is to establish joint and several liability so that the claimant can select defendants against which to recover a the judgment debt that follows and/or enforce an injunction restraining repetition of the tort.

Where different damage is caused by different persons, each person is only liable for the loss that they caused - 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 - the cause of action.

In the case that each of the intended defendants could be sued on the same set of facts (the cause of action), 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.

Joint

Joint liability arises where a person:

1. urges, directs or provokes another to commit the same tort;
2. actively participates in the commission of the tort; or
3. 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 in a common design.

Several

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 as liability for loss arises from different acts. In these circumstances, a claimant must recover the separate damage from the particular defendant that caused the damage.

Where a claimant has a good arguable case that several defendants are liable for damage caused, this form of liability is used in support of interim injunctions to obtain interim relief at the outset of legal proceedings.

Summary

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.