Contribution
Contribution
The amount of contribution fixed by the court between parties is to be such as is just and equitable having regard to each party’s degree of fault. One person may be indemnified completely. Comparative blameworthiness is considered.
A concurrent wrongdoer who has settled the claim may seek a contribution from the others. If the settlement was excessive, the amount of contribution may be fixed at a reasonable sum. The contribution may be allowed, even though other concurrent wrongdoers may not be covered by the settlement in that further action could be taken against them. There is provision, however for an ultimate proportionate allocation of liability and payments between the parties.
If a concurrent wrongdoer has not been joined to the proceedings, an application can be made and the court may make an order against that party. Similarly, a person already joined as a concurrent wrongdoer may seek to join a third party. The amount which may be recovered from a third-party is limited to his just proportion. If the amount paid by the defendant is not the full liability, then the amount he may contribute is limited accordingly.
Concurrent wrongdoers who are sued for damages or contribution and wish to make a claim for contribution, shall not, if the person from whom he proposes to claim contribution is already a party, be entitled to claim contribution except in a claim in that action. If that person is not already a party, he must serve a third-party notice on the person concerned as soon as reasonably possible.
Having served such notice, he is not entitled to claim contribution except under the third-party procedure. If the third-party procedure is not followed, the court may at its discretion refuse to make an order for contribution against the person from whom contribution is claimed.
If the concurrent wrongdoer does not serve a third-party notice as soon as reasonably possible, he may take independent action against the third-party at a later date. The court has the discretion to refuse contribution if it thinks appropriate. The right of contribution does not necessarily preclude other actions against the third party by the defendant.
Judgement and Execution
The claimant will not be allowed to execute judgment for contribution until after satisfaction in whole or part by him or her of the damages for which he is liable, at the time when satisfaction is made to the injured person or his representatives. Apportionment is made on the basis of blameworthiness of each concurrent wrongdoer’s wrongdoing.
Where judgment is given for contribution in respect of damages for which the claimant is or has been liable to the injured person, execution shall not be issued on such judgment until after satisfaction by the claimant in whose favour it is given, before or after the said judgment, of the whole or part of the damages for which he is liable to the injured person. Execution shall then issue only in respect of the amount by which the sum paid by him exceeds his just proportion of that particular amount, as such proportion is determined by the court.
Execution may be issued on such judgment as aforesaid after satisfaction by the claimant in whose favour it is given, of his just proportion of the damages for which he is liable to the injured person, provided that in this case, the court makes provision, by obtaining the personal undertaking of the claimant’s solicitor or otherwise, for applying the sum received under the said judgment towards satisfaction of the damages due to the injured person. “Damages for which he is liable to the injured person” means damages for which the claimant is liable at the time when satisfaction is made to the injured person, his representatives or lawful assignees.
A payment of damages by the claimant at a time when the injured person’s cause of action against the claimant is barred by the Statute of Limitations or any other limitation enactment, does not found a claim to levy execution under a judgment for contribution: but such a payment shall found such a claim if, at the time when it was made, the injured person’s cause of action against the contributor was not barred.
A judgment for contribution may be given in respect of costs payable to the injured person or incurred by the claimant: but, where the injured person has sued the claimant and the contributor together and has recovered judgment for costs against both of them, the above provisions shall apply to costs, in the same manner as damages.
Already a Party
A concurrent wrongdoer who is sued for damages or for contribution and who wishes to make a claim for contribution shall not, if the person from whom he proposes to claim contribution is already a party to the action, be entitled to claim contribution except by a claim made in the said action, whether before or after judgment in the action.
He shall, if the said person is not already a party to the action, serve a third-party notice upon such person as soon as is reasonably possible and, having served such notice, he shall not be entitled to claim contribution except under the third-party procedure. If such third-party notice is not served as aforesaid, the court may in its discretion refuse to make an order for contribution against the person from whom contribution is claimed.
The above does not apply to any contribution claim where the parties to the claim are precluded by agreement or otherwise from disputing any earlier determination by a court of the amount of the injured person’s damages and the proportion in which contribution should be made.
Contribution Issues I
Where, of three or more concurrent wrongdoers, one is omitted from the claim for contribution, a contribution shall be awarded to the claimant on the basis that responsibility for the damage is to be borne by the claimant and the contributor or contributors without regard to the responsibility of the omitted wrongdoer.
In such a case, a claimant whose net remaining liability is increased or a contributor whose contribution is increased by reason of the fact that judgment has not been given against the omitted wrongdoer may claim contribution from such omitted wrongdoer. Where such claim for contribution is made by a contributor in respect of his own liability to make contribution and judgment is given in such contributor’s favour, execution shall be limited as above.
For the purpose of a claim for contribution a person who restores property to its true owner shall be deemed to be a concurrent wrongdoer with one through whom he originally claimed the property and who was a wrongdoer in respect of it towards the true owner. Such restoration of property shall, as against such wrongdoer, be deemed to be a payment of damages to the extent of the value of the property.
Where it is sought to serve a third-party notice making a claim for contribution, or making a claim for damages in respect of a wrong committed to the third-party plaintiff, such claim for damages having arisen in whole or in part out of the same facts as the facts giving rise to the principal plaintiff’s claim, leave to serve a third-party notice shall not be refused merely because the issue between the third-party plaintiff and the third party will involve a difficult question of law.
Where a concurrent wrongdoer makes a payment to the injured person without action in settlement of the injured person’s claim against himself and subsequently claims contribution, the contributor shall have the right to have the injured person joined as co-defendant for the purpose of binding him by the determination of the proportions of contribution, unless the injured person is co-plaintiff in the action or the injured person has effectively agreed to be bound by such determination or the injured person has no claim against the contributor or the injured person has already sued the contributor to judgment.
Where, of three or more concurrent wrongdoers, judgment for contribution is given in favour of one against two or more, the claimant, at any time within the period limited by law for the enforcement of judgments and upon proof that, after taking reasonable steps, he has failed to obtain satisfaction of any judgment in whole or in part, shall have liberty to apply for secondary judgments having the effect of distributing the deficiency among the other defendants in such proportions as may be just and equitable.
Contribution Issues II
In any proceeding for contribution, the contributor shall not be entitled to resist the claim on the ground that the claimant who has paid the injured person was not liable to such person; but, subject to this provision and to the general law of estoppel, he may resist the claim on the ground that he himself is not liable to such person and, for this purpose, may dispute any question of law or fact even though that question arises also on the liability of the claimant to the injured person; and the contributor may in the same way dispute the amount of the damage suffered by the injured person.
Where a claim for contribution is made by third-party notice in the injured person’s action and the third party is given leave to defend the main action, he shall be bound by the finding of the court upon the questions that he is given leave to defend.
Where the contributor had knowledge of an action brought by the injured person against the claimant, and unreasonably failed to make a proposal for assisting the claimant in the defence of the action, and the injured person obtained judgment against the claimant, the contributor shall, in any proceeding brought against him by the claimant, be estopped from disputing the propriety or amount of the judgment obtained by the injured person or any question of law or fact common to the claimant’s liability to the injured person and the contributor’s liability to the injured person: but the contributor shall not be so estopped where the claimant submitted to judgment in fraud of the contributor.
In any proceeding for contribution, the claimant shall be bound by any finding of law or fact in the injured person’s action against him that was necessary to establish his liability to the injured person.
Where the injured person has sued the claimant and contributor together and failed against the contributor, the claimant shall, in any proceeding for contribution, be bound by any finding of law or fact that was necessary to negative the contributor’s liability to the injured person: provided that the claimant shall not be so bound where the injured person submitted to judgment in fraud of the claimant.
This does not apply where the injured person’s action was brought in a court outside the State, unless by the law of the court the claimant had an opportunity of presenting evidence against the contributor, of appealing against a judgment in his favour and of contesting an appeal by him.
A decision on the proportion of fault between claimant and contributor on a claim for contribution shall be binding upon the same persons in a subsequent claim in respect of damage suffered by one or both of them arising out of the same facts, and, conversely, such a decision in a claim in respect of such damage shall be binding upon the same persons in a subsequent claim for contribution. This applies between two parties notwithstanding that one of them is party to the two actions in different capacities.
Contribution Issues III
A concurrent wrongdoer who makes a payment to the injured person without action in settlement of the injured person’s claim against himself and who subsequently claims contribution shall, where the injured person has sued the contributor, be bound by the apportionment made by the court in the injured person’s action.
It shall not be a defence to a claim for contribution merely to show that the injured person has failed in an action against the contributor to which the claimant was not a party.
The right to ask the court for an award of contribution shall be deemed to be in the nature of a quasi-contractual right which shall pass to the personal representatives of the claimant for the benefit of his estate, and shall avail against the personal representatives of the contributor; The right to contribution is subject to the two year period for making claims against the estate of a deceased person.
An action may be brought for contribution within the same period as the injured person is allowed by law for bringing an action against the contributor, or within the period of two years after the liability of the claimant is ascertained or the injured person’s damages are paid, whichever is the greater.
Where an action is brought against two or more persons as concurrent wrongdoers, each defendant shall have the right to present evidence against the other or others. Where an action is brought against two or more persons as concurrent wrongdoers and the plaintiff obtains judgment and the judgment is satisfied by one of such wrongdoers, another of such wrongdoers may appeal against the judgment notwithstanding that it has been satisfied.
Where an action is brought against two or more persons as concurrent wrongdoers and the plaintiff obtains judgment and one defendant appeals against the judgment, another defendant may, upon giving such notice as may be required by rules of court, contest the appeal as respondent.
Where an action is brought against two or more persons as concurrent wrongdoers and the plaintiff succeeds against one and fails against another, the unsuccessful defendant may appeal against the judgment in favour of the successful defendant.
Contract
For the purpose of a contract insuring against liability for a wrong or against a liability to pay damages, the liability of a wrongdoer to make a contribution under this Part to a concurrent wrongdoer shall be deemed to be a liability to pay damages for a wrong unless the contrary intention appears from the contract.
Where a claim for contribution between wrongdoers is made under a contract for contribution between them, the above provisions shall apply to the extent that the claim could have been made under the provisions of this Part instead of under the contract for contribution.