Facts
On September 18, 1987, minority shareholders of company V. SA (the plaintiffs) brought an action for liability against the directors of the company (defendants no. 1 to 7) as well as against the auditing body. They concluded that all defendants should be held jointly and severally liable to pay the company the amount of 5,309,298 francs.
By judgment of March 6, 1995, the Civil Court of the Cantonal Tribunal of the Canton of Neuchâtel partially upheld the claim and held all members of the board of directors jointly and severally liable, insofar as they were part of this board at the time of the commission of the alleged act of mismanagement, to make good the damage caused to the company by this act. Defendants no. 1 to 7 were thus ordered to pay the company the sum of 3,211,803 francs jointly and severally, and defendants no. 1 to 5 were ordered to pay the company the amount of 805,555 francs jointly and severally. The auditing body was released from all liability.
The appeal for reform by defendant no. 1 was declared inadmissible. The appeal of defendants no. 2 to 7 was partially upheld, the judgment was annulled and the case was remanded to the cantonal court for a new judgment.
Considerations
According to the interpretation of Art. 759 para. 2 CO, when the plaintiff sues several liable parties together for the entire amount of the damage, he only bears the risk of the costs and expenses of the proceedings with respect to one opposing party and not with respect to each defendant. Conversely, if the plaintiff is entirely successful in the amount of the total damage claimed, the defendants bear the costs and expenses jointly and severally solely by virtue of their potential joint and several liability.
In the present case, the action for liability brought by the plaintiffs was upheld for a little over 4 million francs out of the…