Section 35(1) of the Irish Civil Liability Act 1961, as amended, (the "Act") lists a number of grounds by which a plaintiff's acts or omissions with respect to the liability of concurrent wrongdoers can result in a reduction of the plaintiff's award. Those acts or omissions include entering into exclusion clauses, limitation clauses, and/or settlements with a concurrent wrongdoer.

One particular ground that has been the focus of recent judicial comment is the failure of the plaintiff to sue a concurrent wrongdoer, resulting in the claim as against that not-joined wrongdoer becoming statute-barred (pursuant to s. 35(1)(i) of the Act).

A party who has been joined as a defendant to an action can claim that, should the plaintiff succeed in its case, then the plaintiff should be fixed with the liability of the not-joined concurrent wrongdoer. In this way, the joined defendant only becomes liable for his or her share of the plaintiff's total loss, rather than all of it.

A 2017 Supreme Court decision clarified that the principle was not limited to cases involving claims of negligence, and two recent High Court decisions1 have applied the principle to claims made for the torts of trespass to the person and defamation.

McCarthy v James Kavanagh t/a Tekken Security & Herlihy Supermarket Group Limited

In the early hours of a busy festival weekend in Cork in 2011, a scuffle occurred at the Second Defendant’s shop on Grand Parade. The innocent Plaintiff was ejected by security guards employed by the First Defendant. The Plaintiff was pursued by his assailants and, when he sought to re-enter the shop, a different security guard pushed the Plaintiff away towards a crowd, where he tripped over and knocked a young woman to the ground. This woman's partner ("Mr C") struck the Plaintiff, causing him to fall to the ground and suffer a serious head and brain injury.

The Defendants denied any duty of care to the Plaintiff and claimed that, while they may have had a liability to the Plaintiff if he was the victim of an attack by the original assailants, the assault by Mr C was in fact an intervening cause.

These defences having failed, the Defendants' remaining defence was that the Plaintiff had not sued Mr C in the proceedings and, since the claim against him was allegedly statue-barred, the Plaintiff should be fixed with Mr C's liability.

The court set out the process that it must apply when considering the application of s. 35(1)(i) of the Act, stating that it must make a determination as if the not-joined concurrent wrongdoer was now joined, and had pleaded the Statute of Limitations.

Applying that process to the case, the court noted that, if the Plaintiff had sued Mr. C in the proceedings, the claim would have been made for trespass to the person. While the limitation period for an action in negligence had expired, the limitation period for a claim in trespass to the person had not.

While accepting the merit of the defence in principle, the court found that the Plaintiff had a live, unbarred action for trespass to the person against Mr C and s.35(1)(i) therefore did not afford a defence in this instance.

Kehoe v Raidió Teilifís Éireann

The Plaintiff, a senior member of the political party Sinn Féin, claimed that he was defamed by Joe Costello TD during the Defendant's live broadcast of a current affairs radio programme, “Saturday with Claire Byrne”. The Plaintiff issued proceedings against RTÉ, as publisher of the alleged defamation, but he did not sue Deputy Costello as the maker of the statement.

The issue for determination by the High Court was whether the issue paper to be submitted to the jury should include a question asking them, in the event of a finding of defamation, to apportion RTÉ's share of liability. The proposed question was framed with the provisions of s. 35(1)(i) in mind.

The Plaintiff argued that RTÉ and Mr Costello were not concurrent wrongdoers, so s. 35(1)(i) did not apply. He further argued that s. 35(1)(i) and the concept of contributory negligence played no part in 'unintentional' torts, including defamation, and referred to an old common law rule that, in defamation cases, a jury can only deliver one verdict and one judgment against all defendants for the total damages - and so could not apportion liability between them. RTÉ argued that it was clear that Mr Costello was a concurrent wrongdoer, that s. 35(1)(i) did apply to unintentional torts, including defamation, and that the recent legislation had removed the old common law rule on single verdicts.

The court held that Deputy Costello and RTÉ were concurrent wrongdoers and, furthermore, that s. 35(1)(i) extended to all wrongs involving concurrent wrongdoing, whether intentional or unintentional.

The court ultimately held that, as the Plaintiff had permitted his claim against Deputy Costello, a concurrent wrongdoer, to become statute-barred, the Defendant was entitled to rely on the plea pursuant to s. 35(1)(i) by way of defence to the Plaintiff’s claim.

In light of its finding, the court invited the parties to make submissions on the exact form of the question for the jury. Subsequent media reports recorded that the jury found RTÉ 35% liable, and so awarded the Plaintiff €3,500 of the €10,000 total loss.

Conclusion and Key Takeaways

Where a plaintiff permits his or her claim against any not-joined concurrent wrongdoer to become statute-barred, s. 35(1)(i) deems the liability of that party to be a form of contributory negligence which may be pleaded by the joined defendant against the plaintiff in order to reduce the defendant's liability for the total award of damages.

It is therefore of vital importance that a plaintiff and its legal advisors consider all potential concurrent wrongdoers and, even if the prospect of monetary recovery is deemed remote, potentially include them as co-defendants to the action so that the effects of s.35(1)(i) can be avoided.

For a defendant and its legal advisors, s. 35(1)(i) is a provision that can, in appropriate circumstances, be used to limit a defendant's exposure to solely its fair share of the total loss suffered by a plaintiff.