Joint and several liability
If, with JSL in place, you need to sue for your fees, you should select the party most able to pay!
In contract, joint and several liability (JSL) arises when two or more people enter into an obligation (such as a contract for the provision of services). The law will interpret this as an undertaking by those persons to be responsible, either individually or jointly, for any liability that may exist after any one of them has failed to meet an obligation under the contract.
The nature of joint and several liability will mean that both parties are 100% liable. They can be pursued separately or together. Indeed, a creditor is not obliged to go after both and, in the case of a debt, will often pursue the person thought most able to pay. There is no concept of ‘proportionate liability’ in English law. Thus, if some attempt is to be made to apportion liability, it would be necessary to make contractual provision for this in the shape of a net liability agreement. The only proviso is that one is unable to recover more than 100% of the liability. Accordingly, if an SJE, say, succeeds in recovering 80% from one party, only 20% may be recovered from the remaining party or parties. It is true to say, however, that those bearing a disproportionate share of the liability will often be entitled to claim an indemnity from the others.
It is relatively common for instructions to be given to the SJE by solicitors acting for only one of the parties to proceedings. A potential difficulty therefore arises. Is there a contractual nexus between the expert and the other party’s solicitor that will render both the instructing solicitor and the other party’s solicitor jointly and severally liable for the expert’s fees? If there are written terms of engagement, they will – or should – make provision for this.
Even if this were not so, Part 35 of the Civil Procedure Rules (CPR) makes specific provision for this eventuality in the case of SJEs. Rule 35.8(5) states that, unless the court directs otherwise, the instructing parties are jointly and severally liable for the payment of the expert’s fees and expenses. The court can also give specific directions in relation to the payment of an expert’s fees and can order the whole of the money to be paid into court.
In the event that an SJE renders a bill for the work carried out and the instructing solicitor fails to make payment, he or she is fully entitled to pursue any other solicitor on whose behalf those joint instructions were prepared. There is no need to apportion the amount between them. As already seen, each is responsible for the whole of the debt.
There are, however, two points of which to be wary. First, if an expert is asked to render separate bills that apportion the costs between two or more solicitors, it should be made clear that this is done without prejudice to any right to recover in full from both solicitors on a joint and several basis. Second, the expert should be aware that, in the event of a dispute over expert costs, any compromise reached with one of the solicitors is likely to bind any dealings with the others. So, if the expert agrees to accept a lesser sum from one solicitor that is expressed to be in full settlement of that solicitor’s liability, he or she may find that the right to pursue the others for the balance may have been lost.