Date: Tue, 13 Sep 2005 23:18:31 -0400

From: David Cheifetz

Subject: Brian Warwicker Partnership plc v HOK International Ltd

One problem, if I may, is that it doesn't make sense to attempt to compare the conduct of one wrongdoer against the conduct of another, whether that conduct is before or after the relevant damage. That, as I understand the cases you're describing, from what you've said, is what the courts did. I agree that that's wrong.

The apportionment process shouldn't involve any attempt to directly compare the misconduct of the wrongdoers. What it attempts to compare, no matter how arbitrary the process is, is a value: the extent (degree) to which the wrongdoer departed from the standard of care required of that wrongdoer. Those values can be compared, in the sense that we can use adjectives such as "more, less, the same" when we compare the extent to which each of the tortfeasors departed from their standard.

If we look at the process that way, it should become apparent that the egregious of the misconduct, or even its intentional quality, isn't necessarily determinative in the apportionment process. It isn't necessarily the case that intentional or egregiously bad conduct represents a departure which is necessarily greater than that of mere negligence. The standards of care for each of the wrongdoer's may not be equivalent. The negligence may represent an egregious departure; the intentional misconduct a slight error.

One advantage of looking at the process that way is that it shows why after the injury misconduct should not be relevant to the apportionment process - because it's irrelevant to the process of determining the value which represents the extent of the wrongdoer's departure from the standard of care.

David Cheifetz

----- Original Message -----
From: Charles Mitchell
Sent: Tuesday, September 13, 2005 9:59 AM
Subject: ODG: Brian Warwicker Partnership plc v HOK International Ltd

I share Andrew's misgivings about the second of these cases - and also about Re-Source America International Ltd v Platt Site Services Ltd [2004] EWCA Civ 665, which is the earlier CA case on which the finding in Warwicker was based. In Re-Source, the CA found that when the trial judge had made a 100% apportionment against D he had been entitled to take into account D's employee's behaviour in:

instigating the hotwork originally in highly contentious circumstances, of his directing it in a wholly dangerous manner and of his deliberate decision to leave site as soon as he learnt that a fire had started so as to avoid criticism in these regrettable acts. This was then followed by a lengthy campaign in which he sought to show that he had left site earlier than he did and in innocent circumstances, that the fire was exclusively caused by the reckless conduct of Platt which he knew that Platt had not engaged in and which aimed to vindicate both Barkin and himself and unfairly leave Platt solely responsible, liable and culpable for the fire.

In effect the CA therefore held that a court can punish a defendant who behaves badly by lying and denying responsibility for his actions after the event by making an apportionment weighted against him in contribution proceedings on the ground of moral blameworthiness - even though his bad behaviour related to what we might call the 'fall-out' from the accident rather than the accident itself. Rix J took a similar line at first instance in Dubai Aluminium v Salaam [1999] 1 Lloyd's Rep 415, where he held that it was a relevant circumstance when he came to make his apportionment between multiple defendants that some had settled the claims against them quickly while others had reprehensibly held out until after the initiation of court proceedings even though they were clearly liable. However it seems to me that this kind of behaviour is better dealt with when costs orders are made against the parties, and that where a contribution claimant wishes to invoke the defendant's bad behaviour as a reason for making an apportionment weighted against him he should have to prove a closer connection between the defendant's behaviour and the 'damage' for which he and the claimant must be commonly liable before the 1978 Act can be brought into play.

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