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I'm an onlooker in a substantial case in the UK, which has an interesting feature. Legal advice hasn't been sought (but will be), but in the meantime as an onlooker I'm curious about one aspect of the claim, and how it would usually be handled.

The case is in High Court rather than County Court limits (professional negligence > £50k). The case is almost entirely about D1's work, but for one part of the work (about 15% of the case), D1 recommended a second opinion, which was obtained from D2.

D1's work was undoubtedly negligent, but it's not clear whether or not D2's work was also negligent, and (if it was) whether in fact it made any difference to the damage in law. (Maybe D1's work tainted D2's work and was the primary work relied on; alternatively the court might rule that D2's work was the main work relied on.)

My curiosity is raised about D2's position as a possible party, because of the pros and cons:

  • If D2 isn't a party, D1 can deflect concerns, requiring a second case on the same facts, and in a separate case D2 might re-deflect the matter back onto D1 which can't be claimed as that case is closed.
  • If D2 is a party, they will incur costs. If the eventual ruling finds D1 fully liable, then D2's costs will be bourne by the claimant under UK law, and they will be high because of the court.

Do UK court rules contain a way to notify a court in the claim, that a second party may exist and might need to be joined later if applicable, but not immediately have them as a party, for a specific aspect of the case where they are involved?

That would seem the obvious solution, but I am curious to find out the detail, such as how such a situation is usually handled in an initial claim, and how courts deal with it. (As a non-party onlooker I won't get to hear this from their solicitor)

  • In Colorado, a defendant can designate a "non-party at fault" in a case without joining them as a party. Then the party sued can point a finger at the non-party at fault to reduce their share of liability even if they aren't joined. As a practical matter having litigated attorney malpractice and other professional malpractice claims, these are very hard tactical decision to make in a case for multiple reasons including those you identify. In the U.S. since there is not fee shifting, the default rule is "sue everybody" but that logic doesn't work in the U.K. due to fee shifting. – ohwilleke Aug 23 '17 at 22:04
  • One common strategy is to sue everybody, then to settle with a minor player early on for a fairly low dollar amount compared to risk at trial and to use that settlement to help finance the rest of the litigation against the primary person at fault in the case. – ohwilleke Aug 23 '17 at 22:06

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