I move amendment No. 13 :
In subsection (1), page 8, line 4, before " 38 and 47 " to insert " 14,".
This amendment will cover a point raised by the Bar Council. Subsections (3) and (6) of section 14 contain provisions subject to which concurrent wrongdoers are liable for the whole of the damage. There is a consequential amendment to section 14 (3) and another amendment proposed to clarify section 14 (6).
I move amendment No. 14:
In subsection (2), page 8, line 7, to delete "parties" and substitute "persons".
I move amendment No. 15 :
In subsection (2), page 8, line 10, to delete "party" and substitute "person".
I move amendment No. 16:
In subsection (2), page 2, line 10, to delete "the parties" and substitute "such person".
I move amendment No. 17:
In subsection (3), page 8, line 16, to delete "parties" and substitute "persons."
I move amendment No. 18 :
In subsection (1), page 8, line 28, to delete " render " and substitute " give ".
I move amendment No. 19 :
In subsection (1), page 8, line 31, to delete " rendered " and substitute " given ".
I move amendment No. 20 :
In subsection (2), page 8, line 33, to delete " subsection (3) " and substitute " subsections (3) and (6)".
This amendment is consequential on amendment No. 13 to section 12.
I move amendment No. 21 :
In subsection (3), page 8, line 44, to delete " expressly or impliedly ".
This amendment will meet a point raised by the Bar Council in regard to the use of the words " expressly or impliedly ". I propose to delete the words, which are unnecessary.
I move amendment No. 22 :
In subsection (3), pages 8 and 9, to delete paragraph (c) and substitute the following paragraph:
" (c) the plaintiff, at any time within the period limited by law for the enforcement of judgments and upon proof that, after taking reasonable steps, he has failed to obtain satisfaction of any judgment in whole or in part, shall have liberty to apply for secondary judgments having the effect of distributing the deficiency among the other defendants in such proportions as may be just and equitable."
This amendment deals with the difficultyin regard to insolvency, raised by the Bar Council. I propose to follow the Council's suggestion and to allow the plaintiff to apply for secondary judgments only upon satisfying the Court that he had taken reasonable steps to obtain satisfaction in whole or in part of his original judgment against one of the wrongdoers. The amendment will also cover a point which Deputy Costello made to me about absence of a defendant beyond the seas. I think that Deputy Costello suggested the use of the words " or other default " after " insolvency " The amendment will cover the Deputy's point. I am proposing similar amendments to sections 28 and 38 (2).
I move amendment No. 23 :
In subsection (6), page 9, to add to the subsection the following:
" ; and the judgment against him may be given accordingly."
This amendment concerns a further matter raised by the Bar Council and also, informally, by Deputy Costello. I am agreeable to adding at the end of section 14 (6) the words suggested by the Bar Council. In the defamation case envisaged in section 14 (6) there will be two judgments. This is also contemplated by section 14 (1).
I am still concerned with the point raised by Deputy Costello regarding the words " shall be entitled to the said mitigation of damages ". How do you establish that one of the concurrent tortfeasors would have been entitled to mitigation ? I want to assemble a case together. There is an action against, say, the editor of a newspaper and the author of some article. In the ordinary way, there would be a single judgment against the two defendants as far as the paper is concerned and there the case ends. At some stage, subsequent to that, regard will have to be had to subsection (6) and at that stage how do you say whether the editor or the author would have been entitled to a mitigation of damages if he had been singled out? How does he prove that or how is it established?
That is proved on the evidence in the course of the action. My trouble is that at the end of the case the jury goes into the question of damages. They bring in one lump sum—a composite sum—for damages against all the defendants. Some of them were more guilty in the publication of the libel than the others. The man who wrote the article must bear the greatest brunt of it. The man who published it perhaps in all innocence should have some sort of protection. These sections were intended to meet that situation. How is that done? Will the jury be prepared to give £1,000 as a whole and apportion it as to A, £500 and as to B, £500 ?
Section 14 (1) says that you can have judgment against the defendants together or separately. I think in the case mentioned that the Court would award damages as follows: £1,000 against the writer . . .
The point in that case was to permit that one should pay less than the other.
It does not seem fair that the person who does the mechanical job of printing should bear the brunt of it.
Does that mean he is entitled to mitigation ? Does that carry out that intention " damages payable by him had he been a single tortfeasor ".
He would have been entitled to mitigation of the damages—it does allow mitigation.
He would have been entitled to mitigation of the damages payable by him had he been a single tortfeasor. It is a mitigation provision.
I wonder would the word " such " not be better.
I move amendment No. 24:
In subsection (1), page 9, line 27, after " default " to insert " of appearance of defence ".
It is proposed to make clear, as the Bar Council suggest, that " default " means " default of appearance or defence ".
