The ‘Insolvent Contributor’ Problem: Considering the Apportionment of Liability in Construction Cases

Caitlin Moore

April 2025

Highly Commended in the SCL Hudson Prize 2024, published in the SCL Journal: Spring 2025

The paper looks at the so-called Insolvent Contributor problem, an issue where guidance from case law is lacking, particularly so in construction cases, where it is likely that contribution proceedings may involve an insolvent contributor. The paper proposes a three limb solution which has the capacity to apportion the insolvent contributor’s share of the damage fairly, focused on whether a contributing party had control over the insolvent contributor risk. The paper uses diagrams to illustrate the problem and the possible solution and goes on to examine alternatives to the proposed solution. The author hopes that the proposal could provide parties with greater certainty as to how courts will approach apportionment.

1. Introduction – 2. Apportionment in English law – (a) Contractual allocation – (b) Causative potency – (c) Moral blameworthiness – 3. Exhaustive apportionment – 4. ‘Insolvent Contributor’ problem – 5. A call for a solution – 6. The three limb solution – (a) Limb one – (b) Limb two – (c) Limb three – 7. Alternative solutions – 8. The conceptual alternative – 9. Conclusions

The author: Caitlin Moore is a pupil barrister at Atkin Chambers

Text: 14 pages