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Colleagues:

The twists & turns, the past few years, in England's contribution jurisprudence as judges struggle with the scope of the 1978 Civil Liability (Contribution) Act have made for interesting reading. And probably larger fees for solicitors and barristers.

Charles Mitchell, in his last message, mentions the seeming incongruity of allowing what amounts to a common law claim for contribution where the statutory claim must fail because the statute does not apply. I agree with the view that the ultimate rationale for contribution is in UE; however, I don't see the incongruity where the significant reason why the contribution claim failed is merely that the categorisation of the concurrent wrongdoers' liability to the injured person puts the situation outside of the limited ambit of the contribution legislation. Any other approach, I feel, is another reminder of Maitland's now almost 1 century old reminder that while the forms of action have been abolished they still rule from their graves.

The logical and better solution, I feel - Occam's Razor - is to create an analogous common law contribution right among concurrent wrongdoers applicable to cases where the legislation does not apply, but generally tracking the sensible portions of the jurisprudence on the statutory right.

I recommend Weinrib, Contribution in a Contractual Setting (1976) 54 Can Bar Rev 338 for an excellent and succinct explanation of why this is the better approach.

That is what is occurring in Ontario. Although the jurisprudence is still in its infancy, Ontario judges have been able to avoid dodges like equitable subrogation to allow contribution between multiple concurrent wrongdoers whose wrongs have caused the same DAMAGES to the injured person, in cases where the Ontario contribution statute - which is limited to claims for contribution between concurrent tortfeasors - does not apply, by creating an analogous common law contribution right. And then importing the principles from the statutory contribution right into the common law right. The rationale is, of course, that the common law is creation of the judges, there is no statutory impediment, and that the legislation may be looked at as indication of how the common law should develop.

As to the statutory right, while the Ontario legislation is limited to claims for contribution between tortfeasors, Ontario judges, fortunately, been able to duck - actually, I think it's generally overlooked - the distinction between DAMAGE and DAMAGES, which seems to bedevil the English jurisprudence, because the Ontario statute, unlike England's form (current and past), provides that contribution applies where the DAMAGES have been caused by the fault or negligence of two or more tortfeasors.

David Cheifetz
Toronto, Canada

----- Original Message -----
From: Charles Mitchell
Sent: Friday, February 06, 2004 5:35 AM
Subject: [RDG:] McDonald v Coys of Kensington

Have you ever yearned for a personalised number plate? Or do you think they're tacky? Would you think yourself enriched if you came by someone else's personalised number plate? How about 'TAC 1'? These and other fascinating issues are discussed in the language of subjective devaluation, incontrovertible and readily realised benefits by Mance LJ at [26]-[40]:

http://www.bailii.org/ew/cases/EWCA/Civ/2004/47.html

At [44] it also seems that defence counsel failed to spot until too late that the contribution claim against his client should have been a non-starter following the decision by Lord Steyn in Royal Brompton NHS Trust v Hammond that a claim will not lie under the 1978 Act between two parties, one of whom is liable in tort or breach of contract and the other in UE - a last ditch effort to amend was turned down - counsel for the other side said that if the amendment had been allowed then he 'would have argued for contribution in accordance with the doctrine of equitable subrogation pursuant to Banque Financière de la Cité v. Parc (Battersea) Ltd. [1999] 1 AC 221'. Presumably this means that he has read Niru and like Moore-Bick J is untroubled by the fact that it is incoherent to allow a claim for contrib 'via subrog' where a direct claim for contrib is not available, given the statements in Parc and Dubai that contrib and subrog are both remedies for UE.

 

CH4RLE2