Liability including joint and several liability: secondary (joint and several) liability
The following is a definition of joint and several liability provided by Solicitor’s Office:
“Where liability is several, it is possible to proceed against each person individually and recover from each person individually.
Where there is a joint liability, proceedings must be taken against persons jointly, but each person is jointly liable for any debt such that where one person has no funds the whole of the amount of any debt can be recovered from the other person or persons who are jointly liable.”
What this means, if a number of persons are jointly and severally liable, is that we can take civil recovery action against them all at the same time, or one at a time.
In excise legislation, it is often the case that one person is defined as having a primary liability to pay, and other persons are identified as having a secondary, joint and several liability.
Those with a secondary liability will be liable to pay with the first named person. It is therefore clear that, although their liability is “several” as well as joint, that liability is dependent on the first named person being liable.
In such cases, it is necessary to assess the person with primary liability in order to establish the connection between that person and the person(s) with secondary liability. Without a legally valid assessment to primary liability there is no legally enforceable debt in respect of secondary -joint and several- liability.
The person(s) with secondary liability should not be assessed. Instead, they should be notified of their liability to pay by letter, see EAIG21000.