Two or more persons can become jointly liable in tort when they act together, or where one defendant has induced or incited another to commit a tort.

The principles

  • Two or more persons can become jointly liable for the commission of a tort in a variety of ways. They may act together, or one defendant may incur joint liability by inducing, inciting or persuading another to commit a tort. Certain relationships can give rise to joint liability, eg an agent who commits a tort on behalf of his principal is jointly liable with the principal.
  • Accessory liability, and the tort of common design, were considered in Sea Shepherd UK v Fish & Fish Ltd. To establish accessory liability in tort, proof of two elements is required; the defendant must have acted in a way which furthered the commission of the tort by the main actor, and must have done so in pursuance of a “common design” or joint plan.
  • Some torts more commonly give rise to joint liability than others. Conspiracy is an obvious example, since the tort requires more than one actor, and other common examples are lawful or unlawful means conspiracy and deceit.
  • Our article Mass torts and parentco liability considers the liability of a parent company for actions of a subsidiary.

In the courts

  • In UPL Europe Ltd & Ors v Agchemaccess Ltd & Ors the court considered allegations of accessory liability in the context of production of pesticides. It was held that the ambit of conspiracy ought not to be extended so as to cover breaches of regulatory legislative provisions whose enforcement was the responsibility of a government authority (here, the HSE had said no prosecution lay). Also reiterated that the necessary elements of the tort of unlawful means conspiracy are (a) a combination of actions or agreement; (b) the use of unlawful means; (c) the intention to injure a claimant; (d) the claimant suffering loss or damage as a result.
  • Fraudulent misrepresentations by directors of companies which they intend to be relied upon are actionable against them personally in deceit if the elements of the tort can be shown against them (namely, a representation, which is false, dishonestly made, intended to be relied on and in fact relied on.)
    • In Inter Export LLC v Townley , faced with allegations of forged documents and fake payments, the court declined to find the defendant directors liable in deceit or conspiracy. No (convincing) evidence was provided as to fabrication of documents.
    • In Federation International de L'Automobile v Gator Sports Ltd, however, a case involving allegations of trademark infringements and passing off, there was evidence that the defendant director had personally involved himself with the relevant aspects. The court was satisfied that he had materially assisted in the common design, so he was held liable as a joint tortfeasor.

What this means

  • The scope of joint tortious liability is often highly fact-specific, and proving the "joint" element, be it a combination or common design, can be difficult. Evidential challenges are augmented where allegations of deceit, conspiracy or other "foul play" are in issue. Directors should be aware of the potential for allegations of joint liability when corporate wrongdoing is in issue.
  • Witness deployment and credibility, for instance, can be key considerations. In the Inter Export case, Proudman J expressed concern that that “the whole truth has not been accorded to me”. For defendants to this type of claim, proving the negative (eg that a combination was entirely lawful) can tempt disclosure of vast amounts of innocuous evidence to demonstrate that their actions were at all times "above board".
  • Settlement of disputes involving joint tortfeasors requires particular consideration; our article Settlement with multiple defendants looks at issues when settling a claim with multiple defendants.

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