Does Rule 37(31) mean joint tortfeasors?

Rule 37(31) has been interpreted narrowly. In Brown v. Lowe, Southin J.A. held that “jointly” means that the defendants must be sued as joint tortfeasors and it does not include defendants whose liability is not joint but several. In this case, the hospital and nurse defendants were sued as joint tortfeasors, because the hospital would have been vicariously liable for the negligence of its nurse employees. The physician defendants were sued as several concurrent tortfeasors, whose independent acts combined to produce the same damage.

The defendants submit that in these circumstances, they are not prohibited from making a valid joint offer to settle under Rule 37. They distinguish decisions at both trial and appellate levels, which have cited Brown v. Lowe as authority for the proposition that non-joint defendants may not make joint offers to settle. They say that Rule 37(31) is a restriction on the application of Rule 37(2), in that it only requires defendants who are sued jointly to make a joint offer. It does not prohibit multiple defendants in an action from making a joint offer to settle, provided that the offer is clear and unambiguous, particularly where some of the defendants are joint tortfeasors and all of the defendants are tortfeasors whose independent acts combined to produce the same damage. They submit that their joint offer is valid under Rule 37(2).