As a minimum, a legal dispute requires at least two opposing parties. Each party will be arguing the opposite in the hope the Court will agree with their side, should it proceed to trial. There are occasions where a party will find themselves tied into proceedings following advice from a 3rd party, often from a friend or family member. In this instance, is the party being pursued able to hold that friend or family equally as liable for encouraging the offending act?
A person assisting an individual committing a tort (the legal word for wrongful act) may also be held liable for committing the tort if the person guilty of committing the offence (referred to as the tortfeasor) can show the following:
- The encouraging party acted in a way which furthered the commission of the tort;
- The encouraging party had to have done so in pursuance of a common design with them; and
- The encouraging party had to have done or have secured the doing of the acts which had constituted a tort.
This confirms that the tortfeasor can pursue the encouraging party when they persuade them to act, or acted with them, with the same view of its impact. This suggests the encouraging party therefore would have been aware that by acting, that person would be committing a tort.
A tortfeasor taking legal action against an encouraging party
In practice, the tortfeasor, when pursued, would seek to take action against the encouraging party. The person pursuing the claim may also be able to include the encouraging party into the proceedings (although this would be subject to them finding out about the encouragement and being able to prove it). This may be to add the encouraging party as a defendant or, to seek separate proceedings against that individual. This means the person encouraging an action can be equally as liable as the person acting and suggests individuals should be cautious when advising others to act in a way which may be unreasonable.
This was noted in the case of Lumley v Gye where a person encouraging a breach of contract was jointly liable for the breach. This rule extends beyond breach of contract and could be used in respect of a breach of confidence, trespass to goods, misuse of private information, conversion or breach of copyright.
The limitation on the tortfeasor, however, is that the encouraging party may seek to argue he/she was unaware a breach would have been committed as a result of his/her suggested actions. Being that they were not fully informed of the situation and therefore unaware of the consequences from the act they encouraged. This may act as a defence to any claim pursued against them from the tortfeasor.
How Nelsons can help
Stuart Parris is a Trainee Solicitor at Nelsons.
If you have been encouraged to act and are being pursued as a result of that act, please contact a member of our expert Dispute Resolution team in Derby, Leicester or Nottingham who will be able to assist. Please call 0800 024 1976 or contact us via our online form.