CHAPTER 4

CONTRIBUTION BETWEEN DEFENDANTS

TABLE OF CONTENTS
1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-001
2. ENTITLEMENT TO CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . 4-002
3. LIABILITY OF THE PERSON CLAIMING CONTRIBUTION . . . . . . . . . . 4-003
(a) Basis of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-007
(b) Meaning of “the same damage” . . . . . . . . . . . . . . . . . . . . 4-009
4. THE CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-013
(a) Matters Which Cannot be Raised in Defence to a Claim . 4-013
(b) Matters Which Can be Raised in Defence to a Claim . . . 4-014
(c) Basis of Assessment of Contribution . . . . . . . . . . . . . . . . 4-015
(d) Time for bringing a Claim for Contribution . . . . . . . . . . . 4-019

1. INTRODUCTION
Where the claimant’s injury or loss was caused by the breach of duty of more 4-001
than one person, contribution proceedings are often instituted between the parties
alleged to be responsible. Earlier editions of this book have discussed the Law
Reform (Married Women and Tortfeasors) Act 1935, the Civil Liability (Contribu-
tion) Act 1978 and the somewhat complicated interrelationship between the two
Acts. The time has now passed, however, when any proceedings are likely to be
brought under the 1935 Act.1 For discussion of that Act and the transitional provi-
sions, see the second and third editions of this book and the Court of Appeal’s deci-
sion in Lampitt v Poole BC (Taylor, Third Party).2 This chapter is concerned with
the Civil Liability (Contribution) Act 1978.3

2. ENTITLEMENT TO CONTRIBUTION
Section 1(1) of the Civil Liability (Contribution) Act 1978 provides that, subject 4-002
to the qualifications thereafter set out, “any person liable in respect of any damage

1 Such proceedings might be brought if the limitation period had been suspended, because the claim-
ant was under a disability or because of fraud or deliberate concealment by the defendant.
2 [1991] 2 Q.B. 545.
3 The Act was passed following the Law Commission’s Report on Contribution (Law Com. No.79)
and replaces s.6(1)(c) of the Law Reform (Married Women and Tortfeasors) Act 1935. For a
comprehensive review of the working of the Act, see C. Mitchell, “The Civil Liability (Contribu-
tion) Act 1978” [1997] R.L.R. 27.

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suffered by another person may recover contribution from any other person liable
in respect of the same damage (whether jointly with him or otherwise)”.4

3. LIABILITY OF THE PERSON CLAIMING CONTRIBUTION

4-003 Section 1(1) gives a right to claim contribution to “any person liable”. In practice
contribution claims are often made between co-defendants who are both denying
liability and against whom no finding of liability has been made. There is no dif-
ficulty in those circumstances, because their respective liability to the claimant will
be determined at the trial of the claimant’s action against them. However, there are
two respects in which the requirement of liability is qualified. First, the fact that by
the time the claim for contribution is made the person making it has acquired a
defence of limitation which bars the remedy, but not the right,5 provides no
defence.6 This is sensible, because if a claim were made against a defendant at the
end of the applicable limitation period, the defendant might otherwise be unable to
claim contribution.7 Secondly, a person claiming contribution who has made or
agreed to make any payment in bona fide settlement or compromise of a claim, is
entitled to claim contribution “without regard to whether or not he himself is or ever
was liable in respect of the damage, provided, however, that he would have been
liable assuming the factual basis of the claim against him could be established”.8
Two issues arise in relation to this provision: (i) what is the “factual basis” of the
claim; and (ii) for the purposes of assessing contribution, is the settling party to be
deemed to have been liable on that basis, or is it for the party against whom
contribution is sought to establish that?9
4-004 Most issues in most claims are issues of fact. However, there will also be issues
of law or of mixed fact and law, or of pure law. Where, for example, there is an is-
sue as to whether a duty of care in tort was owed in particular circumstances, that
is a question of law, not of fact. The effect of s.1(4) is that a party claiming contribu-
tion must show that, had the factual basis of the claim against them been proved,
then any issues of law as to their liability would have been resolved against them.
For example, if a claim were brought against an accountant for allegedly making a
representation to a third party as to the client company’s accounts, then it would not
matter that the accountant denied making the statement: that was an allegation of
fact. However, it would be open to the party against whom contribution was claimed
to argue that in the circumstances alleged, no duty of care was imposed as a mat-
ter of law.

4 Although a detailed discussion is beyond the scope of this book note that, in Roberts v Soldiers,
Sailors, Airmen and Families Association—Forces Help [2020] EWCA Civ 926; [2021] 2 W.L.R.
87, the Court of Appeal found that the Contribution Act has extra territorial effect and applies to all
cases before the English courts, even where, under the operation of private international law, the
proper law of the liability for contribution is not English (in this case, German) law.
5 Most limitation periods bar the remedy, but not the right. Of those relevant to claims against profes-
sional persons, s.14B of the Limitation Act 1980 is the only one which might be thought to bar the
right. However, it appears that it too only bars the remedy: see Financial Services Compensation
Scheme Ltd v Larnell (Insurances) Ltd (In Creditors’ Voluntary Liquidation) [2005] EWCA Civ
1408; [2006] Q.B. 808 at [44] per Lloyd LJ and at [71] per Moore-Bick LJ Sir Peter Gibson agreed
with both judgments. See further, para.5-118.
6 Civil Liability (Contribution) Act 1978 s.1(2).
7 See para.4-019, for the time for bringing a claim for contribution.
8 Civil Liability (Contribution) Act 1978 s.1(4).
9 The second issue is addressed in para.4-015.

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The question of what a party who had settled a claim had to prove in order to 4-005
claim a contribution arose in Dubai Aluminium Co Ltd v Salaam.10 In that case the
original claim had been brought against a number of defendants, including a firm
of solicitors, one of whose partners was alleged to have knowingly participated in
a major fraud. The other partners reached a settlement with the claimant on terms
that the allegations against them and against the allegedly fraudulent partner were
withdrawn. They then claimed a contribution against other defendants (but not
against their partner). One issue was whether that partner had been acting in the
ordinary course of the business of the firm so as to render his partners vicariously
liable for his wrongful acts.11 Reversing the decision of the Court of Appeal12 the
House of Lords held that whether a partner was acting in the ordinary course of the
business of his firm was “a question of law, based on primary facts, rather than a
simple question of fact”13 so that it was open to challenge by the party against whom
contribution was claimed. On the limited material before them on the appeal they
held that the partner had been acting in the ordinary course of his firm’s business.
Finally, until recently the position appeared to be that the wording of the proviso 4-006
in s.1(4) of the Civil Liability (Contribution) Act 1978 (“provided, however, that
he would have been liable assuming that the factual basis of the claim against him
could be established”) was wide enough to allow a person against whom contribu-
tion is sought to dispute that claim on the basis that the person seeking to recover
contribution had a collateral defence which it would have been for him, and not the
original claimant, to establish (namely a defence which depended on facts which
were not inconsistent with the facts pleaded by the original claimant and required
to be assumed under the proviso, such as limitation).14 The Court of Appeal has held
that this is not the case.15 The purpose of the s.1(4) proviso is to prohibit any inquiry
into whether the party seeking contribution was not actually liable to the claimant.
All the party seeking contribution needs to do is show that, on the assumption that
the factual basis of the claim against him could be established, such factual basis
discloses a reasonable cause of action in law against him so as to make him liable
to the claimant.16

10 [2002] UKHL 48; [2002] 2 A.C. 366.

11 Partnership Act 1890 s.10.
12 [2001] Q.B. 113.
13 [2002] UKHL 48; [2002] 2 A.C. 366 at [24] per Lord Nicholls with whom Lords Slynn, Hutton and
Hobhouse agreed; Lord Millett considered that it was “a factual conclusion based on an assess-
ment of the primary facts”: see [112] of his speech; he then went on to conclude that the conclusion
that the partner was so acting was “legally open to the trial judge had the case proceeded to trial”:
at [131].
14 BRB (Residuary) Ltd v Connex South Eastern Ltd [2008] EWHC 1172 (QB); [2008] 1 W.L.R. 2867,
Cranston J, following Arab Monetary Fund v Hashim, Times, 17 June 1993, Chadwick J. Cranston
J considered himself bound to follow this decision.
15 WH Newson Holding Ltd v IMI Plc [2016] EWCA Civ 773; [2017] Ch. 27. The Court of Appeal (per
Sir Colin Rimer) held that a Pt 20 defendant could not resist the contribution claim on the grounds
that the defendant was not, or would not have been, liable to the claimant because the claim against
it was time barred.
16 The Court of Appeal considered Hashim at length and decided that, in so far as Hashim decided that
the party against whom contribution was sought was permitted to raise an inquiry as to whether, in
light of any collateral defence raised by the party seeking contribution to the claimant’s claim, he
would not have been actually liable to the claimant, it was wrongly decided. Newson was applied
in Percy v Merriman White [2021] EWHC 22 (Ch); [2021] P.N.L.R. 11 so that a claim to contribu-
tion was made out regardless of whether the claimant’s claim against the contributing defendant
would have been barred by the rule against reflective loss.

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(a) Basis of Liability

4-007 Section 6(1) provides:
“A person is liable in respect of any damage for the purposes of this Act if the person who
suffered it (or anyone representing his estate or dependents) is entitled to recover
compensation from him in respect of that damage (whatever the legal basis of his li-
ability, whether tort, breach of contract, breach of trust or otherwise).”

This is widely drafted and has been so interpreted. The question whether a person
has suffered damage is entitled to recover “compensation” against another person
has led to some difficulty, particularly in relation to claims in restitution which
might be thought to be based upon the unjust enrichment of the defendant rather
than upon compensating the original claimant for loss. The decision of the Court
of Appeal in Friends’ Provident Life Office v Hillier Parker May & Rowden17 that
a person who was liable in restitution could be the subject to a claim for contribu-
tion was not approved by Lord Steyn, with whom the other members of the House
of Lords agreed, in the later decision of Royal Brompton Hospital NHS Trust v
Hammond.18 However, this passage of Lord Steyn’s speech was obiter so that
Friends’ Provident Life Office v Hillier Parker May & Rowden remains good and
binding authority.19 So, a disposition of property in breach of trust can give rise both
to a claim for damages for breach of trust and a claim in restitution to restore the
trust property. A claim for “knowing receipt” is fault based,20 and, adopting a “wide
view” of the Civil Liability (Contribution) Act 1978, a knowing recipient is liable
to make good loss in a way which can be referred to as “compensatory”.21
4-008 It does not appear that a person who is liable in debt is liable for damage.22

17 [1997] Q.B. 85.

18 [2002] UKHL 14; [2002] 1 W.L.R. 1397 at [33]. Lord Steyn accepted the criticisms of the decision
of the Court of Appeal in Friends’ Provident Life Office v Hillier Parker May & Rowden [1997] Q.B.
85 made in Goff & Jones, The Law of Restitution, 5th edn (London: Sweet & Maxwell, 1998), p.396:
a claim in restitution is not for “damage suffered” by the claimant, but in respect of the unjust enrich-
ment of the defendant. See too the most recent edition: C. Mitchell, P. Mitchell and S. Watterson
(eds), Goff & Jones, The Law of Restitution, 9th edn (London: Sweet & Maxwell, 2016) (10th edn
forthcoming, 2022). It is not a claim for compensation and so does not fall within s.1(1). At [26] Lord
Steyn also stated that the 1978 Act was intended to extend the reach of the contribution principle to
a wider range of cases than before.
19 Niru Battery Manufacturing Co v Milestone Trading Ltd [2004] EWCA Civ 487; [2004] 2 Lloyd’s
Rep. 379 and City Index Ltd v Gawler [2007] EWCA Civ 1382; [2008] Ch. 313, affirming the deci-
sion of Sir Andrew Morritt C in Charter Plc v City Index Ltd [2006] EWHC 2508 (Ch); [2007] 1
W.L.R. 26.
20 Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001] Ch. 437.
21 City Index Ltd v Gawler [2007] EWCA Civ 1382; [2008] Ch. 313 per Carnwath LJ, with whom
Mummery LJ agreed. It does not necessarily follow that all claims in restitution have the necessary
compensatory characteristic. This was emphasised by Arden LJ, who agreed with the result, but not
the reasoning of Carnwath LJ on this point. She distinguished between “claims for unjust enrich-
ment based on the wrongful conduct of the defendant (known as knowing receipt) and claims for
unjust enrichment based on innocent receipt (often called claims for money had and received)”. She
also drew attention to the need “to distinguish between a claim that a person should pay damages
to make good the claimant’s loss and a claim that a person should account for profits which he has
made by use of the claimant’s property”. The latter is not compensatory and Arden LJ considered
that it was to that type of claim that the comments of Lord Steyn in Royal Brompton Hospital NHS
Trust v Hammond [2002] UKHL 14; [2002] 1 W.L.R. 1397 were directed.
22 Hampton v Minns [2002] 1 W.L.R. 1, where Kevin Garnett QC, sitting as a deputy High Court judge,
held that the Civil Liability (Contribution) Act 1978 did not apply to a claim in debt, including a

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However, it has been held that a person who is liable under a guarantee to make
good loss suffered by litigants by reason of having to satisfy an adverse costs order
is liable in respect of the same damage as after the event insurers who have declined
to pay under a policy issued to those litigants, who have suffered damage in the
form of their liability under the order.23 Obviously the person against whom
contribution is claimed must be liable to the person to whom the person claiming
contribution is or may be liable. So, where no claim would lie by an employer under
a building contract against the building contractor because of the contractual provi-
sions as to insurance, architects and engineers sued by the employer could not claim
contribution from the building contractor.24

(b) Meaning of “the same damage”

While contribution may be claimed on the basis of the widest possible range of 4-009
liabilities, both the person claiming and the person from whom contribution is
claimed must be liable to the same person in respect of the same damage.25 This
problem was considered by the Court of Appeal in Birse Construction Ltd v
Haiste.26 Birse contracted with Anglian Water to design and construct a reservoir.
Birse engaged Haiste, consulting engineers, to assist in preparing their tender and
designing the reservoir. N, an employee of Anglian, administered the project as
engineer. Following completion, defects emerged. Birse settled Anglian’s claim
against it by constructing a new reservoir at its own expense. Birse brought proceed-
ings against Haiste for negligence. Haiste brought contribution proceedings against
N under the Civil Liability (Contribution) Act 1978. The Court of Appeal held that
the contribution proceedings should be struck out. The ground of the decision was
that the damage allegedly caused by N to Anglian was not “the same damage” as
the damage allegedly caused by Haiste to Birse. Sir John May stated:

claim against a guarantor of a debtor. See also Howkins & Harrison v Taylor [2001] Lloyd’s Rep.
P.N. 1 CA. In RSA Insurance Plc v Assicurazoni Generali SpA [2018] EWHC 1237 (QB); [2019] 1
All E.R. (Comm) 115 the court ruled that a claim for contribution between indemnity insurers was
a claim for “damages” falling within the Civil Liability (Contribution) Act 1978 (and thus subject
to a two-year limitation period).
23 Greene Wood & McLean v Templeton Insurance Ltd [2010] EWHC 2679 (Comm), Cooke J (see also
Greene Wood & McLean v Templeton Insurance Ltd [2009] EWCA Civ 65; [2009] 1 W.L.R. 2013).
24 Co-operative Retail Services Ltd v Taylor Young Partnership Ltd (Carillion Construction Ltd, Part
20 Defendants) [2002] UKHL 17; [2002] 1 W.L.R. 1419. See also Cohen v Davies [2006] EWHC
768 (Ch); [2007] 2 B.C.L.C. 274 (Richard Sheldon QC, sitting as a Deputy Judge of the High Court):
Claims by liquidator against former directors of a company under ss.214, 238 and 239 of the
Insolvency Act 1986 were brought by him as liquidator. It followed that a claim for contribution by
defendants to such claims against a person who was allegedly liable to the company but not the
liquidator should be struck out. In Davy Estate v CIBC World Markets Inc 2009 ONCA 763; (2009)
313 D.L.R. (4th) 246 a claim by a defendant against the claimant’s solicitors for contribution on the
basis that the solicitors had negligently advised the claimant so that the claimant had failed to
mitigate its loss was struck out. The solicitors were not liable to the claimant for the original damage.
25 In the light of the decision of the House of Lords in Banque Bruxelles Lambert SA v Eagle Star Insur-
ance Co Ltd [1997] A.C. 191 (see para.3-003), it is now possible for one party to be liable only for
some of the damage suffered. This does not prevent another party responsible for the whole dam-
age from claiming contribution: Ball v Banner [2000] Lloyd’s Rep. P.N. 569 per Hart J. See also
Rahman v Areanose Ltd [2001] Q.B. 351 CA.
26 [1996] 1 W.L.R. 675.

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“The Act is in my opinion concerned with the relatively simple sharing of existing liability.
I would be surprised if against this background the Act created potentially complicated
and some might say tortuous legal relationships.”27

Roch LJ summarised his reasoning and conclusion:

“The word ‘damage’ in the phrase ‘the same damage’ in section 1(1) does not mean ‘dam-
ages’ …
The damage suffered by Anglian in this case was the physical defects in the reservoir.
The damage suffered by Birse was the financial loss of having to construct a second
reservoir for Anglian. Anglian and Birse did not suffer the same damage.”28

4-010 In the same way, a claimant who suffers personal injuries whose claim against
the person who negligently caused them is not issued in time may have a claim
against their former solicitor. That claim is clearly related to the original claim, but
it is not for the same damage.29 The damage in the original claim was the personal
injuries themselves. The damage in the second claim is the loss of the chance to
bring the original claim (or the reduced value of that claim if it is necessary to rely
on s.33 of the Limitation Act 1980).30 In Royal Brompton Hospital NHS Trust v
Hammond,31 the claimant sought damages against the architect for negligently
granting the contractor extensions of time. The architect sought to claim a contribu-
tion from the contractor. The House of Lords held that the claim against the architect
was for damage in the sense of impairment of the claimant’s rights against the
contractor. That was not the same damage as the claimant’s claim against the
contractor to have the extensions of time set aside. The position would be differ-
ent if the claim against the architect were for negligent supervision or inspection
of the contractor’s work. In that case both would be liable for the defective work
and so liable for the same damage.32

27 [1996] 1 W.L.R. 675 at 680C.

28 [1996] 1 W.L.R. 675 at 682C–682F. See also Mahony v J Kruschich (Demolitions) Pty Ltd (1985)
156 C.L.R. 522, HCA.
29 Wallace v Litwiniuk (2001) 92 Alta. L.R. (3d) 249, ABCA; approved in Royal Brompton Hospital
National Health Service Trust v Hammond [2002] UKHL 14; [2002] 1 W.L.R. 1397. In the same
way, a building contractor who builds a defective building is not liable for the same damage as an
insurer. The former was liable for the damage suffered as a result of the defects, whereas the insurer
could only be liable for financial loss caused by failure to pay under the policy: Bovis Construction
Ltd v Commercial Union Assurance Co Plc [2001] 1 Lloyd’s Rep. 416, David Steel J. However,
solicitors who guarantee their clients against liability for adverse costs orders are liable for the same
damage as insurers under an ATE policy issued to those clients: Greene Wood & McLean v Templeton
Insurance Ltd [2010] EWHC 2679 (Comm), Cooke J (see also Greene Wood & McLean v Templeton
Insurance Ltd [2009] EWCA Civ 65; [2009] 1 W.L.R. 2013).
30 As to which see paras 5-123 to 5-132.
31 [2002] UKHL 14; [2002] 1 W.L.R. 1397, dismissing an appeal from the decision of the Court of Ap-
peal reported at [2000] Lloyd’s Rep. P.N. 643.
32 The decision of the House of Lords in Royal Brompton Hospital NHS Trust v Hammond [2002]
UKHL 14; [2002] 1 W.L.R. 1397 was followed by the Court of Appeal in Northern Ireland in Dingles
Building (NI) Ltd v Brooks [2003] P.N.L.R. 8. It Dingles Building it was held that the damage which
formed the subject of a claim by the claimant company for breach of warranty of authority against
a sole trustee who purported to contract on behalf of his fellow trustees was not the same as that suf-
fered by reason of any negligent failure of the claimant company’s solicitors to advise that the other
trustees be asked to sign the contract. The damage for which the solicitors might be liable was the
loss of the chance to obtain those signatures, whereas the sole trustee was liable for the damage suf-
fered by reason of his lack of authority. See also Cohen v Davies [2006] EWHC 768 (Ch); [2007] 2
B.C.L.C. 274 (Richard Sheldon QC, sitting as a Deputy Judge of the High Court): the damage suf-

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The same reasoning was applied by the Court of Appeal in Howkins & Har- 4-011
rison v Tyler. 33 In that case the claimant was a firm of valuers which had
compromised a claim against it by a building society. The claim had been for al-
legedly negligent overvaluation of a property taken as security for a loan to the
defendants. Having settled the building society’s claim, the firm brought an action
for contribution. The claim failed on a preliminary issue as to whether the firm and
the defendants had been liable for the same damage. Scott VC, with whom Aldous
and Sedley LJJ agreed, proposed this test:
“Suppose that A and B are the two parties who are said each to be liable to C in respect
of ‘the same damage’ that has been suffered by C. So C must have a right of action of
some sort against A and a right of action of some sort against B. There are two questions
that should then be asked. If A pays C a sum of money in satisfaction, or on account, of
A’s liability to C, will that sum operate to reduce or extinguish, depending upon the
amount, B’s liability to C? Secondly, if B pays C a sum of money in satisfaction or on
account of B’s liability to C, would that operate to reduce or extinguish A’s liability to C?
It seems to me that unless both of those questions can be given an affirmative answer, the
case is not one to which the 1978 Act can be applied. If the payment by A or B to C does
not pro tanto relieve the other of his obligations to C, there cannot, it seems to me, pos-
sibly be a case for contending that the non-paying party, whose liability to C remains un-
reduced, will also have an obligation under section 1(1) to contribute to the payment made
by the paying party.”34

Applying that test to the facts, payment by the valuers to the building society did
not reduce the debt secured on the property.35
The test suggested in Howkins & Harrison v Tyler36 was considered by the House 4-012
of Lords in Royal Brompton Hospital NHS Trust v Hammond.37 Lord Steyn, with
whom the other members of the House of Lords agreed, said that the Howkins &
Harrison test might render questions of contribution unnecessarily complex if it
were regarded as a threshold and that it was best regarded as “a practical test to be
used in considering the very statutory question whether two claims under considera-
tion are for ‘the same damage’.”38 However, he said that the safest course was to
apply the statutory test. Lord Bingham, with whom the other members of the House
of Lords agreed, said:
“When any claim for contribution falls to be decided the following questions in my
opinion arise. (1) What damage has A suffered? (2) Is B liable to A in respect of that dam-

fered by a company when money is wrongly paid away is different from the damage represented
by the loss of the opportunity to bring proceedings to recover that money earlier than they were in
fact taken. But this must not be taken too far: see FFSB (formerly known as Fortis Fund Services
(Bahamas) Ltd v Seward & Kissell LLP [2007] UKPC 16 at [26]–[27] per Lord Hoffmann giving
the Opinion of the Privy Council: both defendants were liable for the same damage, namely the loss
of invested funds, albeit their different breaches of duty caused that damage in different ways.
33 [2001] Lloyd’s Rep. P.N. 1.
34 [2001] Lloyd’s Rep. P.N. 1 at 4. See also Eastgate Group Ltd v Lindsey Morden Group Inc [2001]
EWCA Civ 1446; [2002] 1 W.L.R. 642.
35 Scott VC then considered to what extent the valuers might have a claim were the building society
subsequently to recover the full debt or by joining the building society to a claim for the debt. Such
claims, however, would be matters of subrogation and restitution and had nothing to do with the Civil
Liability (Contribution) Act 1978: ibid. at 5.
36 [2001] Lloyd’s Rep. P.N. 1.
37 [2002] UKHL 14; [2002] 1 W.L.R. 1397.
38 [2002] UKHL 14; [2002] 1 W.L.R. 1397 at [28].

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 CONTRIBUTION BETWEEN DEFENDANTS

age? (3) Is C also liable to A in respect of that damage or some of it? … I do not think it
matters greatly whether, in phrasing these questions, one speaks (as the 1978 Act does)
of ‘damage’, or of ‘loss’ or ‘harm’, provided it is borne in mind that ‘damage’ does not
mean ‘damages’ (as pointed out by Roch LJ in Birse Construction Ltd v Haiste Ltd [1996]
1 W.L.R. 675, 682) and that B’s right to contribution by C depends on the damage, loss
or harm for which B is liable to A corresponding (even if in part only) with the damage,
loss or harm for which C is liable to A.”39

4. THE CLAIM

(a) Matters Which Cannot be Raised in Defence to a Claim

4-013 It is no defence to a claim for contribution that, had the original claimant brought
the claim against the party from whom contribution is sought, such claim would
face a good limitation defence, unless that defence barred the right and not the
remedy.40 It is generally no defence that the person from whom contribution is
sought has reached a settlement with the original claimant.41

(b) Matters Which Can be Raised in Defence to a Claim

4-014 Judgments given in any part of the UK between the original claimant and the
person from whom contribution is claimed are conclusive as to any issue
determined in the latter’s favour.42 So, if there has been a favourable judgment on
liability, there is no right to claim contribution, even if the party seeking contribu-
tion disagrees with that result.43

(c) Basis of Assessment of Contribution

4-015 The principles of apportionment are set out in s.2 of the Civil Liability (Contribu-
tion) Act 1978. Section 2(1) provides that “the amount of the contribution recover-
able from any person shall be such as may be found by the court to be just and

39 [2002] UKHL 14; [2002] 1 W.L.R. 1397 at [6]. See also Alexander v Perpetual Trustees WA Ltd
[2004] HCA 7; (2004) 216 C.L.R. 109. Deciding whether B and C are both liable to A for the same
damage can raise difficult questions of causation and, in particular, as to whether the subsequent
negligence of C has broken the chain of causation in relation to B’s earlier negligence. The deci-
sion of Davies J in Luke v Kingsley Smith & Co (A Firm) [2003] EWHC 1559 (QB); [2004] P.N.L.R.
12 contains a helpful discussion.
40 Civil Liability (Contribution) Act 1978 s.1(3). See para.4-003, fn.5.
41 See Kenburgh Investments (Northern) Ltd (In Liquidation) v Minton [2000] Lloyd’s Rep. P.N. 736
CA at 743; and Logan v Uttlesford DC (1986) 136 New L.J. 541 and the decision of the Court of
Appeal in Jameson v Central Electricity Generating Board [1998] Q.B. 323. However, the settle-
ment may have extinguished the original claimant’s right to make any further claim, so that the
person seeking contribution was not liable to him: see Jameson v Central Electricity Generating
Board [2001] 1 A.C. 455 HL (reversing the decision of the Court of Appeal on this ground) applied
in Heaton v AXA Equity & Law [2002] UKHL 15 and Cape & Dalgleish (A Firm) v Fitzgerald
[2002] UKHL 16. See, in the professional liability context, Gladman Commercial Properties v Fisher
Hargreaves Proctor [2013] EWCA Civ 1466; [2014] P.N.L.R. 11.
42 Civil Liability (Contribution) Act 1978 s.1(5).
43 In James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 C.L.R. 53 the High Court of Australia
held that a consent judgment entered between the original claimant and the person from whom
contribution was claimed provided a complete defence to the claim for contribution. However, the
person claiming contribution was entitled to be heard in opposition to the entry of judgment by
consent.

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equitable having regard to the extent of that person’s responsibility for the dam-
age in question”. It is for the person seeking contribution to prove that the person
from whom contribution is sought would have been liable to the original claimant
and the basis of that party’s responsibility for the relevant damage.
The question arises whether, in a case in which a person claiming contribution 4-016
settled the claim against them,44 their liability is to be assumed or whether it has to
be proved by the person against whom contribution is sought if they wish contribu-
tion to be assessed on the basis that the other was also responsible. It might be said
that s.1(4) envisages a claim by someone who denies liability to the original claim-
ant on the facts, but claims to have nevertheless entered into a bona fide settlement.45
This provision would serve little purpose if the assessment of contribution proceeds
on the basis that they are deemed liable. However, the decision of the House of
Lords in Dubai Aluminium Co Ltd v Salaam46 proceeds on the basis that liability
is to be assumed and does not have to be proved by the person against whom
contribution is sought. Their Lordships also held that the assessment of contribu-
tion should take account of the receipt of the proceeds of the original fraud by those
against whom contribution was sought.47
The person against whom contribution is claimed can rely upon any defence of 4-017
contributory negligence which would have been available as against the original
claimant48 and on any limitation on his liability under statute or under any agree-
ment made before the damage occurred.49 Contribution can only be claimed to the
extent that the party from whom it is claimed would in fact have been liable and
not by reference to settlement of an overstated claim.50 Where a party claiming
contribution has settled the original claim on a costs-inclusive basis, they are able
to recover a contribution towards the whole sum paid in settlement and, in addi-
tion, sums paid in respect of the injured party’s costs, under s.51(3) of the Senior
Courts Act 198151 and as part of the claim for contribution based on “liability for
damage”.52
Where the client suffers loss or injury as a result of the negligence of two or more 4-018
of his professional advisers, the apportionment of liability between them is
governed by the same general principles as apply to any other wrongdoers. The
court should have regard both to the culpability of the various parties and to the

44 See paras 4-003 to 4-006.

45 See para.4-003.
46 [2002] UKHL 48; [2002] 2 A.C. 366.
47 This aspect of the decision of the House of Lords in Dubai Aluminium Co Ltd v Salaam [2002]
UKHL 48; [2002] 2 A.C. 366 was applied by Morgan J in Pulvers (A Firm) v Chan [2007] EWHC
2406 (Ch); [2008] P.N.L.R. 9. See also Cook v Green [2009] B.C.C. 204, HH Judge Pelling QC, sit-
ting as a judge of the High Court. However, where a party has received money which represented
the original loss, but no longer holds it, it does not follow that the recipient will be liable to contribute
100% of the amount he had received: City Index Ltd v Gawler [2007] EWCA Civ 1382; [2008] Ch.
313.
48 Civil Liability (Contribution) Act 1978 s.2(3)(b) and (c).
49 Civil Liability (Contribution) Act 1978 s.3(3)(a).
50 J Sainsbury Plc v Broadway Malyan [1999] P.N.L.R. 286 per Judge Lloyd QC.
51 BICC Ltd v Cumbrian Industrial Ltd [2001] EWCA Civ 1621; [2002] Lloyd’s Rep. P.N. 526 at
[114]–[123] per Henry LJ giving the judgment of the Court of Appeal.
52 Mouchel Ltd v Van Ooord (UK) Ltd (No.2) [2011] EWHC 1516 (TCC); [2011] P.N.L.R. 26 at [25]
per Ramsey J. This case also confirms that the party seeking contribution cannot recover, in a
contribution claim under the Act, his own costs of being sued by the claimant.

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extent to which each party’s conduct “caused” the damage in question.53 This
includes consideration of each party’s “moral responsibility in the sense of culpabil-
ity and organisational responsibility in the sense of where in the hierarchy of
decision-making and in the organisational structure leading to the damage the
contributing party was located”.54 The “just and equitable” criterion is wide enough
to enable the apportionment take account of blameworthiness as well as causative
potency,55 and even, to an extent, of non-causative matters,56 but the financial means
of the party from whom contribution is sought have held not to be relevant.57
However, the main factor to consider is each party’s responsibility for the damage.58
Questions of apportionment arise most commonly in the building professions and
these are discussed in Ch.9.59 Apportionment of liability for medical accidents is
discussed in Ch.13.60 Apportionment of liability between successive solicitors or
between solicitors and members of other professions is discussed in Ch.11.61 The
question of apportionment between defendants should be considered separately
from the assessment of contributory negligence as between the claimant and all
defendants.62 It is not possible to proceed upon assumptions as to the existence and
breach of a duty for the purposes of making an apportionment. The actual duty and
breach need to be found.63

(d) Time for bringing a Claim for Contribution

4-019 Section 10 of the Limitation Act 1980 provides that a claim for contribution must
be brought within two years of a judgment or arbitration award against him in
favour of the original claimant or of the date of any agreement to make a payment
in settlement of a claim against him.64 Time will only start running from the date

53 Where one partner was culpable and his “innocent” partners seek a contribution, they are to be treated
as culpable when seeking contribution: Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2002]
2 A.C. 366. But it seems inconceivable that “innocent” partners would be treated as culpable were
they to claim contribution against the culpable partner.
54 BICC Ltd v Cumbrian Industrial Ltd [2001] EWCA Civ 1621; [2002] Lloyd’s Rep. P.N. 526 at
[106]–[108] per Henry LJ giving the judgment of the Court of Appeal.
55 Madden v Quirk [1989] 1 W.L.R. 702, Simon Brown J and see Dawson v Bell [2016] EWCA Civ
96; [2016] B.C.L.C. 59 where it was not “just and equitable” to order an “innocent” partner to make
a contribution to the culpable partner, even where the “innocent” partner was assumed to know (in
part) of the culpable partner’s wrongdoing.
56 Re-Source America International Ltd v Platt Site Services Ltd [2004] EWCA Civ 665; (2004) 95
Con. L.R. 1; followed in Brian Warwick Partnership v HOK International Ltd [2005] EWCA Civ
962; [2006] P.N.L.R. 5.
57 Omar Barraq Mohidin v Commissioner of Police of the Metropolis [2016] EWHC 105 (QB); [2016]
1 Costs L.R. 71.
58 Brian Warwick Partnership v HOK International Ltd [2005] EWCA Civ 962; [2006] P.N.L.R. 5 at
[45] per Arden LJ, with whom Keene LJ agreed on this point at [51]. For a careful and illuminating
analysis of how to assess contribution between two parties who are liable in different amounts and
only one of whom has a partial defence of contributory negligence see the decision of Clarke J in
Nationwide Building Society v Dunlop Haywards (DHL) Ltd [2009] EWHC 254 (Comm); [2010] 1
W.L.R. 258.
59 See paras 9-250 and 9-265.
60 See paras 13-119 and 13-120.
61 See paras 11-353 to 11-357.
62 Fitzgerald v Lane [1989] A.C. 328.
63 Amaca Pty Ltd v The State of New South Wales [2003] HCA 44; (2003) 199 A.L.R. 596.
64 Note that the relevant date of the accrual of the right to recover contribution might vary depending
on the purpose for which the question was being asked. So, in Kazakhstan Kagazy Plc v Zhunus

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 THE CLAIM

of a binding agreement as to the amount of payment. Anything short of a binding

agreement on that issue (as opposed to ancillary matters) will not suffice.65 Where
an agreement is later embodied in a consent order, time will run from when the
agreement was made and not from the date of the order.66 And when judgment is
given on liability with damages to be assessed, time runs not from then, but from
the date on which damages are subsequently assessed.67 When a claim is settled by
an agreement as to the amount to be paid with the amount of costs payable to be
determined or agreed at a later date, time runs from the date when damages are
agreed and not from the later date when costs are determined or agreed: Chief
Constable of Hampshire v Southampton City Council.68

[2016] EWCA Civ 1036; [2017] 1 W.L.R. 1360 it was held that a party could apply for a freezing
injunction in aid of a claim for contribution, once a contribution notice had been filed and served
as of right or the Court had given permission to file and serve a contribution notice; before the party
claiming contribution had been held liable in respect of the damage or had made or agreed to make
a payment in compensation for the damage in question.
65 RG Carter Building Ltd v Kier Business Services Ltd [2018] EWHC 729 (TCC); [2018] B.L.R. 441.
66 Knight v Rochdale Healthcare NHS Trust [2003] EWHC 1831 (QB); [2004] 1 W.L.R. 371, Crane
J. The decision (but not necessarily the reasoning) in Knight v Rochdale Healthcare NHS Trust
[2003] EWHC 1831 (QB); [2004] 1 W.L.R. 371 was approved by the Court of Appeal in Chief
Constable of Hampshire v Southampton City Council [2014] EWCA Civ 1541; [2015] P.I.Q.R. P5.
67 Aer Lingus Plc v Gildacroft Ltd [2006] EWCA Civ 4; [2006] 1 W.L.R. 1173. The court, applying
Aer Lingus in Spire Healthcare Ltd v Nicholas Brooke [2016] EWHC 2828 (QB); [2017] 1 W.L.R.
1177, held that an interim payment (whether court ordered or voluntary) did not start time running.
68 [2014] EWCA Civ 1541; [2015] P.I.Q.R. P5.

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