Accessory Liability 9781474203081

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Foreword This is a work of formidable scholarship. It is 150 years overdue. In the great treatise writing period in the nineteenth century, the structural outlines of our law of obligations formed around the leading doctrinal texts. The first editions of Chitty on Contracts (1826), Snell’s Equity (1868) and Clerk & Lindsell on Torts (1889) were part of a movement away from the forms of action to a focus on substantive areas of law and the principles underpinning them. However, in that movement, so central to the way we think about the law today, the possibility for a unifying view of common principles of accessory liability for civil wrongs was obscured. This book confirms the viability and coherence of adopting a unifying view of that kind, which has been submerged for so long. The strength of the case which Paul Davies makes for recognition of a unified approach to accessory liability in civil law stems from the range of the materials on which he draws. He refers widely to the literature on the philosophical underpinnings of the law of contract, tort and equity, and makes telling comparisons with the law of accessory liability in the criminal law. At the same time, he deploys his wide learning regarding cases in the margins of all these areas and through an impressive exercise in pattern recognition he draws out the threads of common principle from the disparate materials he reviews. His discussion of the theoretical bases for the law and his comparison of cases in different areas dealing with similar issues provides a powerful platform for his discussion of the fundamentals of accessory liability and for cross-fertilisation and critique. Each chapter and topic area bristles with difficult questions. Since accessory liability cases have sprung up in isolated pockets appended to other parts of the law of obligations, they have not been subjected to rigorous scrutiny over time. Unlike for the main categories of the law of obligations, such as contract, tort and equity, the law of accessory liability is not the product of the accumulated wisdom of common law judges, lawyers and commentators consistently focused to produce analytical coherence. The attention given to it has been sporadic and attenuated. In this book, however, we are given a penetrating account of the issues and a review of the factors which should guide the courts in developing this area of law for the future. The discussion is nuanced and sensitive to the range of considerations which need to be borne in mind to make the law of civil accessory liability coherent and practically effective, but also to ensure that it is constrained within proper limits. Mr Davies clears the ground so that the reader can see the connections between the cases clearly. He exposes the tensions within the confusing catch-all notion of ‘joint tortfeasance’. He argues persuasively for recognition of civil liability for

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knowing inducement and encouragement of the commission of civil wrongs by others, and also for recognition of liability for knowing assistance in committing such wrongs. The case is made all the stronger by his discussion of the topic of defences. Surely he is right that explicit recognition of a defence of justification should be central to providing a coherent structure for the law in this area. Judges, practitioners and academic lawyers who read this book will be indebted to Mr Davies for bringing clarity and coherence to what should now be recognised as a major category of civil liability in its own right. Philip Sales 3 September 2014

Acknowledgements This book considers common themes and principles that underpin accessory liability, and suggests that much can be learned by looking across different areas of the law of obligations. I have been especially inspired by those who have considered the liability of third parties in the private law generally. Philip Sales’ ground-breaking article, ‘The Tort of Conspiracy and Civil Secondary Liability’ (1990) 49 CLJ 491, was particularly influential, and I am delighted that he has written the Foreword to this book. It will be obvious why he was the one person I could ask to do so. Lord Justice Sales read the entire manuscript in draft, and provided detailed comments which have helped to improve the finished product. David Cooper’s doctoral thesis, Secondary Liability for Civil Wrongs (PhD thesis, University of Cambridge, 1996) was also a valuable source which fortified my view that looking at the private law as a whole is a worthwhile exercise. It is a shame that the thesis remains unpublished and therefore relatively inaccessible. I began thinking about accessory liability when a student at Downing College, Cambridge. I had supervisions with Graham Virgo on accessory liability in both criminal law and equity in the space of a few weeks, and have been fascinated by the subject ever since. Graham’s support and advice has been invaluable as this project has progressed, and I am extremely grateful for his interest in and comments on my work. I was taught the so-called ‘economic torts’ by Jonathan Morgan and Nick McBride on the excellent ‘Aspects of Obligations’ course. Both have continued to encourage my work in this area. Nick read every chapter of the book as soon as I sent it to him, and saved me from many errors. At times Nick has been more enthusiastic about this project than me, and he has always given me confidence that this would all come together as a monograph. I owe him a great deal for his generosity and friendship. My research on accessory liability began whilst a Fellow at Gonville and Caius College, Cambridge. The support of the Master and Fellows allowed me to balance the demands of both teaching and research, and I was very fortunate to have the best of colleagues in Pippa Rogerson and Jens Scherpe to guide me through the initial stages of my academic career. I have finished writing the book at St Catherine’s College, Oxford, where the Master and Fellows have been similarly supportive. Andrew Dickinson has been particularly helpful in responding to my musings about accessory liability when he could have been enjoying his lunch in peace. I have been thinking about this subject for a long period of time, and almost every colleague and friend who has made the mistake of asking me how I was doing or

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what I was working on has suffered a conversation on accessory liability. I am very grateful to all those people; every time I have talked about my work, my thinking has developed. The list of those I should thank is very long indeed, and includes Neil Andrews, Lionel Bently, Alan Bogg, Andrew Burrows, Matthew Conaglen, Graeme Dinwoodie, Matt Dyson, James Edelman, Paul Finn, Dev Gangjee, James Goudkamp, Sarah Green, David Ibbetson, Angus Johnston, Ben McFarlane, Richard Nolan, Janet O’Sullivan, Andrew Simester, Bill Swadling, Peter Turner, Fred Wilmot-Smith and Sarah Worthington. Joshua Getzler commented on many chapters as the manuscript was nearing completion, and has provided energetic motivation on many occasions. Rob Stevens helped me to formulate the initial proposal for the book when we were both at different institutions; now in Oxford, Rob has continued to provide generous support (generally in the King’s Arms on a Friday evening) and he read the entire manuscript in draft. Richard Hart has patiently backed this project from an early stage, and I have appreciated the friendly help of Tom Adams, Bill Asquith, Mel Hamill, Emma Swinden, Rachel Turner and the team at Hart Publishing. I am also thankful for the efficient assistance of Jodi Gardner in preparing the book for publication. I have given various presentations on my work during the lifetime of this project, and am very grateful to the organisers of those events for inviting me to speak, and for the discussions those papers generated. Some of the ideas presented here have been sketched out in earlier published work, particularly ‘Accessory Liability for Assisting Torts’ (2011) 70 CLJ 353, ‘Accessory liability: protecting IP Rights’ [2011] IPQ 390, ‘Aid, abet, counsel or procure?’ in S Pitel, J Neyers, E Chamberlain (eds), Tort Law: Challenging Orthodoxy (Hart Publishing, 2013), and ‘Complicity’ in M Dyson (ed), Unravelling Tort and Crime (CUP, 2014). This book would not have been written without the support of my family. Mum has read the entire book in draft, despite having little interest in accessory liability, and has gone above and beyond in trying to remain involved in what I am doing. Dad has helped me to keep things in perspective by providing running updates on the important things happening at home: since the beginning of this project, Mansfield Town has dropped out of the Football League, been to Wembley, and been promoted back to League Two. When I have been struggling with various parts of my research, my sister, Karen, has sensibly reminded me that teaching is the most important thing I do anyway. My wife, Marine, has uncomplainingly put up with my working on this book when I should have been spending time with her. Even though she does not quite grasp the legal aspects of accessory liability, Marine has always encouraged me to work harder and finish the book. I owe them all so much. For reasons of both space and expertise, the focus of this book is on the common law in England and Wales, although reference is made to other jurisdictions where appropriate. The text was completed in June 2014, but it has been possible to incorporate some later developments as well. Paul S Davies St Catherine’s College, Oxford 1 October 2014

Table of Cases A Schroeder Music Publishing Co Ltd v Macauley [1974] 3 All ER 616 (HL)...................144 Abbey National plc v Solicitors’ Indemnity Fund Ltd [1997] PNLR 306 (QBD)...............117 Abou-Rahmah v Abacha [2006] EWCA Civ 1492, [2006] 1 All ER (Comm) 827, [2007] 1 Lloyd’s Rep 115................................................................6, 49, 50, 91, 92, 105, 118 Adelaide Partnerships Ltd v Danison [2011] EWHC 4090 (Ch).........................................121 Aerostar Maintenance International Ltd v Wilson [2010] EWHC 2032 (Ch)...................159, 257, 268 Agip (Africa) Ltd v Jackson [1991] Ch 547 (CA)................................... 92, 106, 111, 112, 116 AIB Group (UK) Plc v Mark Redler & Co Solicitors [2013] EWCA Civ 415.....................257 Aimster Copyright Litigation, Re 334 F 3d 643 (7th Circuit, 2003)....................198, 241, 244 Allcard v Skinner (1887) 36 Ch D 145 (CA)........................................................................103 Allen v Flood [1898] AC 1 (HL)...............................................14, 135, 137, 138, 147, 157, 162 Alleyne v Darcy (1854) 4 Ir Ch Rep 199.................................................................................93 Alliance and Leicester Building Society v Edgestop Ltd [1993] 1 WLR 1462 (Ch D)........264 Amstrad Consumer Electronics plc v British Phonograph Industry Ltd [1986] FSR 159 (Ch D)..................................................................................................................178 Arab Monetary Fund v Hashim (No 9) The Times, 11 October 1994 (Ch)........................256 Armitage v Nurse [1998] Ch 241 (CA).................................................................................262 Aroso v Coutts & Co [2002] 1 All ER (Comm) 241...............................................................98 Arthur v Attorney General of the Turks and Caicos Islands [2012] UKPC 30.....................92 Associated British Ports v TGWU [1989] 1 WLR 939 (CA)........................................183, 184 Attorney-General for New South Wales v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237.........................................................................................................................164 Attorney General of Zambia v Meer Care & Desai (A Firm) [2007] EWHC 952 (Ch), [2008] EWCA Civ 1007, [2008] Lloyd’s Rep FC 587........................................106, 119, 123 Attorney-General v Able [1984] QB 795................................................................................76 Attorney-General v Blake [2001] 1 AC 268 (HL)................................... 15, 166, 176, 265, 266 Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (HL)...........101, 102 Attorney-General v The Corporation of Leicester (1844) 7 Beav 176..................................93 Attorney-General’s Reference (No 1 of 1975) [1975] QB 773 (CA)................... 22, 24, 30, 32 Backun v United States 112 F 2d 635 (NC 1940)...................................................................75 Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509.................................. 5, 24, 37, 44–6, 106, 109, 110, 111, 112, 113, 114, 119, 228, 283 Baker v Willoughby [1969] 3 All ER 1528..............................................................................36 Balfron Trustees Ltd v Petersen [2001] IRLR 758 (Ch D)...........................................108, 120 Bank Tejarat v Hong Kong and Shanghai Banking Corpn (CI) Ltd [1995] 1 Lloyd’s Rep 239 (Cmml Ct).............................................................................................................98 Barber v Pigden [1937] 1 KB 664 (CA)................................................................................193 Barker v Braham (1773) 2 Wm Bl 866..........................................................................177, 225

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Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37, [2006] 1 WLR 1476.................................................................43, 50, 106, 111, 117, 118, 121 Barnes v Addy (1874) LR 9 Ch App 244 (CA)..............................................5, 88–96, 123, 253 Barney, Re [1892] 2 Ch 265...............................................................................................90, 94 Batts Combe Quarry Ltd v Ford [1942] 2 All ER 639 (CA).................................................152 BCCI (Overseas) Ltd v Akindele [2001] Ch 437 (CA)...................................... 45, 50, 91, 112, 115, 119, 128 Belegging-en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd [1979] FSR 59 (CA).................................................. 179, 186, 200, 280, 285 Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] Ch 250 (CA).........................97 Belmont Finance Corp Ltd v Williams Furniture Ltd (No 2) [1980] 1 All ER 393........................................................................................................110, 112, 113 Bence Graphics International Ltd v Fasson UK Ltd [1998] QB 87 (CA)............................260 Benford v Sims [1898] 2 QB 641.............................................................................................70 Bents Brewery v Hogan [1945] 2 All ER 570 (Assizes)........................................................142 Bieber v Teathers Ltd [2012] EWCA Civ 1466......................................................................175 Bird v O’Neal [1960] AC 907 (PC)........................................................................................200 Blake v Lanyon (1795) 6 Term Rep 221................................................................................134 Blakeley v DPP [1991] RTR 405 (DC)....................................................................................78 Blyth v Fladgate [1891] 1 Ch 337..........................................................................................263 Boardman v Phipps [1967] 2 AC 46 (HL)..............................................................15, 176, 265 Bowen v Hall (1881) LR 6 QBD 333 (CA)............................................................................135 Boxfoldia Ltd v National Graphical Association [1988] IRLR 383 (QBD).........................259 Boyce v Douglass (1807) 1 Camp 58.....................................................................................220 Brein v Techno Design [2006] ECDR 21 (Netherlands)......................................................201 Brimelow v Casson [1924] 1 Ch 302................................................................. 4, 173, 247, 248 Brinks Ltd v Abu-Saleh (No 3) [1996] CLC 133 (HC)..........................................43, 108, 110 Bristol and West Building Society v Mothew [1998] Ch 1 (CA)...........................................97 British Homophone Ltd v Kunz and Crystallate Gramophone Record Manufacturing Co Ltd [1935] All ER Rep 627 (KBD).....................................................232 British Industrial Plastics Ltd v Ferguson [1938] 4 All ER 504 (CA), [1940] 1 All ER 479 (HL)........................................................................................ 46, 102, 159, 205 British Motor Trade Association v Salvadori [1949] Ch 556.......................6, 145, 150–2, 162 Brooke v Bool [1928] 2 KB 578 (DC)...........................................................................181, 187 Brown and Isaac v The State [2003] UKPC 10.......................................................................66 Brown v Bennett [1999] 1 BCLC 649, [1999] BCC 525 (CA)....................... 5, 33, 91, 99, 109 Brown v InnovatorOne plc [2012] EWHC 1321 (Comm)....................................................99 Bunt v Tilley [2006] EWHC 407 (QB), [2007] 1 WLR 1243...............................................207 C Evans Ltd v Spritebrand Ltd [1985] 1 WLR 317, [1985] FSR 267 (CA)....................54, 60, 203, 204, 269 Cairns v Henry Walker Ltd 1914 SC 51................................................................................204 Callow v Tillstone (1900) 83 LT 411 (QBD).....................................................................70, 79 Camden Nominees Ltd v Forcey [1940] Ch 352............................................ 27, 155, 227, 248 Camellia Tanker Ltd SA v International Transport Workers’ Federation [1976] ICR 274 (CA).......................................................................................................................28 Campbell v MGN Ltd [2002] EWCA Civ 1373, [2003] QB 633, [2004] UKHL 22, [2004] 2 AC 457.........................................................................................................101, 102



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Canada Safeway Ltd v Thompson [1951] 3 DLR 295 (BCSC)............................................265 Car and Universal Finance Co Ltd v Caldwell [1965] 1 QB 525 (CA)................................144 Carl Zeiss Stiftung v Herbert Smith & Co (No 2) [1969] 2 Ch 276 (CA).................... 110–12 Carter v Richardson [1974] RTR 314 (QBD).........................................................................78 Casio Computer Co Ltd v Sayo (No 3) [2001] EWCA Civ 661...................................109, 256 Cassell & Co Ltd v Broome [1972] AC 1027 (HL)...............................................................273 Catnic Components Ltd v C Evans & Co Ltd [1983] FSR 401 (Patent Ct)........................277 Cattley v Pollard [2006] EWHC 3130 (Ch), [2007] Ch 353................................................252 CBS Inc v Ames Records and Tapes Ltd [1982] Ch 91...................................................26, 192 CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL)...............................................7, 26, 30, 34, 35, 48, 149, 179, 182, 183, 186, 189, 191–6, 198, 202, 207, 210, 216, 219, 221, 245, 251, 258, 281 Charter plc v City Index Ltd [2007] EWCA Civ 1382, [2008] Ch 313................................271 Chillingworth v Chambers [1896] 1 Ch 685 (CA)...............................................................105 Christie v Davey [1893] 1 Ch 316...........................................................................................14 Clark v Hosier & Dickson Ltd [2003] EWCA Civ 1467.......................................................178 Clayton v R [2006] HCA 58, (2006) 231 ALR 500...........................................................62, 67 Collett v Foster (1857) 2 H & N 356.....................................................................................225 Collinson v Lister (1855) 7 De G M & G 634.......................................................................106 Comax Secure Business Services Ltd v Wilson (21 June 2001, unreported).......................265 Commonwealth Oil & Gas Co Ltd v Baxter [2007] CSOH 198, affirmed: [2009] CSIH 75, 2010 SC 156..........................................................................................................60 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 (HCA).................................................................................................................115, 126, 267 Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 (Australia).....................201 Corporación Nacional del Cobre de Chile v Sogemin Metals Ltd [1997] 1 WLR 1396 (Ch D)...........................................................................................................264 Corr v IBC Vehicles Ltd [2008] UKHL 13, [2008] 1 AC 884.................................................35 Coventry v Lawrence (No 2) [2014] UKSC 46, [2014] 3 WLR 555..................... 38, 185, 206, 210, 230, 261, 285 Cowper v Stoneham (1893) 68 LT 18 (Ch D)......................................................................256 Cream Holdings Ltd v Banerjee [2004] UKHL 44, [2005] 1 AC 253..................................234 Credit Lyonnais Bank Nederland NV (Now Generale Bank Nederland NV) v Export Credits Guarantee Department [1998] 1 Lloyd’s Rep 19, [2000] 1 AC 486 (HL).............................................7, 19, 49, 64, 183, 186, 196–8, 202, 214, 216–18 Criterion Properties plc v Stratford UK Properties LLC [2002] EWCA Civ 1783, [2003] 1 WLR 2108.............................................................................................51 Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435...................................248 Crookes v Wikimedia Foundation Inc [2011] SCC 47, [2011] 3 SCR 269.........................201 Crown Dilmun v Sutton [2004] EWHC 52 (Ch), [2004] 1 BCLC 468.................................92 Crystalens Ltd v White [2006] EWHC 3357 (Comm).........................................................235 Cunliffe v Goodman [1950] 2 KB 237....................................................................................41 Curwen v Milburn (1889) 42 Ch D 424 (CA)......................................................................251 Dadourian Group International Inc v Simms [2009] EWCA Civ 169, [2009] 1 Lloyd’s Rep 601...............................................................................................................184 Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762.................................................148 Dallison v Caffery [1965] 1 QB 348 (CA).............................................................................238

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Daventry District Council v Daventry & District Housing Ltd [2011] EWCA Civ 1153, [2012] 1 WLR 1333.....................................................................................45, 119 Dawson (dec’d), Re [1966] 2 NSWR 211 (NSWSC)............................................................257 Day v Mead [1987] 2 NZLR 443 (NZCA)............................................................................264 DC Thomson & Co Ld v Deakin [1952] Ch 646 (CA)............................... 6, 29, 31, 137, 140, 146–8, 154, 155, 236, 260 De Francesco v Barnum (1890) 45 Ch D 430.......................................................................143 De Jetley Marks v Lord Greenwood [1936] 1 All ER 863 (KBD)................................227, 237 De Mattos v Gibson (1858) 4 De G & J 276.........................................................143, 230, 232 Dellabarca v Northern Storemen and Packers Union [1989] 2 NZLR 734 (NZHC).........264 Denaby and Cadeby Main Colleries Ltd v Yorkshire Miners’ Association [1906] AC 384 (HL).......................................................................................................................153 Devenish Nutrition Ltd v Sanofi-Aventis SA [2008] EWCA Civ 1086, [2009] Bus LR 858.........................................................................................................................269 Donoghue v Stevenson [1932] AC 562...................................................................................14 Douglas v Hello! Ltd [2005] EWCA Civ 595, [2006] QB 125.......................... 7, 139, 141, 158 Dow Chemical AG v Spence Bryson & Co Ltd [1982] FSR 397 (CA).........................194, 285 DPP for Northern Ireland v Lynch [1975] AC 653 (HL).................................................76, 82 DPP for Northern Ireland v Maxwell [1978] 3 All ER 1140 (HL)........................................77 Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), [2012] 3 CMLR 14................................................................. 186, 190–3, 211, 216, 275, 280 Du Cros v Lambourne [1907] 1 KB 40...................................................................................71 Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366...... 60, 90–2, 197, 257 Dunlop Pneumatic Tyre Co Ltd v David Moseley & Sons Ltd (1904) 21 RPC 274 (CA).......................................................................................................186, 200 Dyson Technology Ltd v Curtis [2010] EWHC 3289 (Ch)............................................99, 100 Eagle Trust plc v SBC Securities Ltd [1993] 1 WLR 484 (Ch D).................................112, 118 East England Schools CIC v Palmer [2013] EWHC 4138 (QB), [2014] IRLR 191....158, 273 Eaves v Hickson (1861) 30 Beav 136............................................................. 104, 123, 128, 271 Edgington v Fitzmaurice (1885) 29 Ch D 459 (CA)..............................................................36 Edwin Hill & Partners v First National Finance Corp plc [1989] 1 WLR 225 (CA)..........................................................................................173, 227–32, 238 Egger v Viscount Chelmsford [1965] 1 QB 248 (CA)..........................................................183 Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 (CA)................ 7, 52, 160, 274 EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch), [2013] Bus LR 884.....................................................................................................209, 274 Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 (HL)................35 Equitable and Scottish Mercantile Investment Company Ltd v Brunton [1892] 2 QB 700 (CA).....................................................................................................................45 Esso Petroleum Co Ltd v Kingswood Motors (Addlestone) Ltd [1974] QB 142........143, 274 Evans v E Hulton & Co Ltd [1924] All ER Rep 224 (Ch D)................................................192 Exchange Telegraph Co Ltd v Gregory & Co [1896] 1 QB 147 (CA)..........................102, 259 Experience Hendrix LLC v PPX Enterprises Inc [2003] EWCA Civ 323, [2003] 1 All ER (Comm) 830........................................................................................................270 Falcon v The Famous Players Film Company Ltd [1926] 1 KB 393, [1926] 2 KB 474 (CA).......................................................................................... 5, 95, 178, 192, 193



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Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, (2007) 230 CLR 89............................................................................................. 45, 94, 113, 115, 128 FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45, [2014] 3 WLR 535..............................................................................................................105 Financial Services Authority v Asset LI Inc [2013] EWHC 178 (Ch), [2013] 2 BCLC 480........................................................................................................................208 Financial Services Authority v Fradley [2004] EWHC 3008 (Ch), [2005] EWCA Civ 1183; [2006] 2 BCLC 616...............................................................................208 Fiona Trust & Holding Corp v Privalov [2010] EWHC 3199 (Comm)..........................54, 99 Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867............3, 8, 19, 55, 64, 186, 189–91, 199, 200, 210, 214, 216, 218–20, 280, 283 Fitzalan-Howard v Hibbert [2009] EWHC 2855 (QB)........................................................107 Football Association Premier League Ltd v QC Leisure [2008] EWHC 1411 (Ch), [2008] UKCLR 329............................................................................................................191 Football Dataco Ltd v Stan James plc [2013] EWCA Civ 27, [2013] 2 CMLR 932............................................................................... 194, 195, 205, 209, 210, 223 Force India Formula One Team Ltd v 1 Malaysia Racing Team [2012] EWHC 616 (Ch), [2012] RPC 757............................................................................101, 102 Ford Motor Co Ltd v AEU [1969] 2 QB 303........................................................................171 Forsikringsaktieselskapet Vesta v Butcher [1986] 2 All ER 488 (QBD), affirmed [1989] AC 852 (CA);..........................................................................................................264 Forsyth-Grant v Allen [2008] EWCA Civ 505, [2008] 2 EGLR 16......................................269 Foxton v Manchester and Liverpool District Banking Co (1881) 44 LT 406......................110 Francis v Brown (1997) 30 HLR 143 (CA)...........................................................................273 Frank Houlgate Investment Co Ltd v Biggart Baillie LLP [2013] CSOH 80, 2014 SLT 993.............................................................................................. 200, 204, 207, 210 Fraser v Thames Television [1984] QB 44............................................................................111 Fresh’n’Clean (Wales) Ltd v Miah [2006] EWHC 903 (Ch)..................................................60 Fyffes Group Ltd v Templeman [2000] 2 Lloyd’s Rep 643 (Cmml Ct)...............100, 101, 267 Fyler v Fyler (1841) 3 Beav 550.....................................................................................5, 93, 94 G Scammell and Nephew, Ltd v Hurley [1929] 1 KB 419 (CA)..................................235, 249 Galambos v Perez [2009] SCC 48, [2009] 3 SCR 247....................................................98, 174 Garbutt Business College Ltd v Henderson [1939] 4 DLR 151 (Alta SC (App Div)..........260 Gencor ACP Ltd v Dalby [2000] 2 BCLC 734 (Ch D)...........................................................99 Gieseke v IDCA, Inc, 2014 WL 1230224 (26 March 2014)....................................................14 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL)..................................................................................................... 75, 76, 83, 234 Giorgianni v R (1985) 156 CLR 473 (HCA)...........................................................................78 Glamorgan Coal Co Ltd v South Wales Miners’ Federation [1903] 2 KB 545 (CA), [1905] AC 239 (HL)................................................................227, 229, 248 Global Resources Group Ltd v Mackay [2008] CSOH 148, [2009] SLT 104.......................................................................................................6, 149, 151–3, 280 Goldsoll v Goldman [1914] 2 Ch 603...................................................................................259 Goldtrail Travel Ltd v Aydin [2014] EWHC 1587 (Ch).................................................99, 257 Goose v Wilson Sandford & Co (a firm) [2001] Lloyd’s Rep PN 189.........................5, 92, 99 Granby Marketing Services Ltd v Interlego [1984] RPC 209 (Ch D).................................230 Gray v Thames Trains Ltd [2009] UKHL 33, [2009] AC 1339........................ 19, 36, 216, 225

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Greig v Insole [1978] 1 WLR 302 (Ch D)....................................................... 29, 143, 147, 148 Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6, (2012) 200 FCR 296...............................................................................................................113, 128 Grimme Maschinenfabrik GmbH v Derek Scott (t/a Scotts Potato Machinery) [2010] EWCA Civ 1110, [2011] Bus LR D129, [2011] FSR 193................... 8, 10, 179, 186, 206, 208, 241, 269 Grupo Torras SA v Al-Sabah [1999] CLC 1469 (QBD), [2001] CLC 221 (CA).................109 GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 TLR 376 (KBD).........................................146 Hadley v Baxendale (1854) 9 Exch 341.................................................................................259 Halberstam v Welch 705 F 2d 472 (Col 1983).................................. 25, 38, 179, 181, 198, 282 Halifax Building Society v Thomas [1996] Ch 217 (CA)....................................................264 Hall v Hebert [1993] 2 SCR 159 (SCC)..........................................................................19, 216 Harris v Digital Pulse Pty Ltd [2003] NSWCA 10, (2003) 197 ALR 626............................273 Harris v James (1876) 45 LJQB 545 (QBD)..................................................................185, 192 Heinl v Jyske Bank (Gibraltar) Ltd [1999] Lloyd’s Rep Bank 511 (CA).......... 98, 99, 106, 121 Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 (QBD)...............................234 Hendler v Cuneo Eastern Press, Inc 279 F 2d 181 (CA 1960).............................................232 HL Weiss Forwarding Ltd v Omnus [1976] 1 SCR 776, (1976) 63 DLR (3d) 654 (SCC)...........................................................................................................................273 Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468.................................................14 Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL)...........................................57, 182 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 (HCA)............................................................................................................175 Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040, (2001) 110 FCR 157...........................................................................................259, 269, 273 Hotel Cipriani SRL v Cipriani (Grosvenor Street) Ltd [2010] EWHC 628 (Ch).......267, 269 Hulton (E) & Co v Jones [1910] AC 20 (HL).......................................................................209 Hyam v DPP [1975] AC 55 (HL)............................................................................................42 ILG Travel Ltd, Re [1995] 2 BCLC 128.................................................................................103 Independent Oil Industries Ltd v Shell Co of Australia Ltd (1937) 37 SR (NSW)....232, 248 Independent Trustee Services Limited v GP Noble Trustees Limited [2010] EWHC 1653 (Ch)..............................................................................................................106 Initial Services v Putterill [1968] 1 QB 396 (CA).................................................................234 Innes v Short and Beal (1898) 15 RPC 449 (QBD)..............................................................199 Interflora Inc v Marks and Spencer plc [2009] EWHC 1095 (Ch), [2009] ETMR 54.......202 Island Records Ltd v Tring International plc [1996] 1 WLR 1256 (Ch D).........................278 James v Commonwealth of Australia [1936] AC 578 (PC), (1939) 62 CLR 339 (HCA)....................................................................................................194, 230 Jasperson v Dominion Tobacco Co [1923] AC 709 (PC)....................................................159 JD Wetherspoon plc v Van de Berg & Co Ltd [2009] EWHC 639 (Ch), [2009] 16 EG 138 (CS).......................................................................................... 5, 36, 99, 100, 123 JGE v Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938, [2013] QB 722..............................................................................................................60, 180 Joe Lee Ltd v Lord Dalmeny [1927] 1 Ch 300......................................................................143 Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171.......................................204



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Johnson v Youden [1950] 1 KB 544 (HL).................................................................43, 76, 203 Kalman v PCL Packaging (UK) Ltd [1982] FSR 406 (Patent Ct)........................................188 Karak Rubber Co Ltd v Burden (No 2) [1972] 1 WLR 602 (Ch D)..............................91, 112 Keane v Boycott (1795) 2 Hy Bl 511......................................................................................143 Keeble v Hickeringill (1706) 11 East 574n (Ct of QB)...........................................................14 Kooragang Investments Pty Ltd v Richardson & Wrench Ltd [1982] AC 462 (PC).....59, 180 Koursk, The [1924] P 140 (CA)...............................................61, 179, 180, 191, 194, 205, 216 Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29, [2002] 2 AC 122.................................................................................................................272 Kuwait Airways Corp v Iraqi Airways Co [2002] UKHL 19, [2002] 2 AC 883...................261 Lacroix Duarib SA v Kwikform (UK) Ltd [1998] FSR 493 (Patent Ct)..............................201 Lands Allotment Co, Re [1894] 1 Ch 616 (CA)...................................................................262 Lemons v Kelly (1964) 397 P 2d 784 (Or 1964)...................................................................250 Lennard’s Carrying Co Ltd v Asiatic Petroleum Ltd [1915] AC 705.....................................60 Lewis v Yeeles [2010] EWCA Civ 326..............................................................................28, 154 Lictor Anstalt v Mir Steel UK Ltd [2011] EWCH 3310 (Ch), [2012] 1 All ER (Comm) 592.................................................................. 91, 152, 162, 237, 238, 247 Lipkin Gorman v Karpnale Ltd [1987] 1 WLR 987 (QBD) [1990] 2 AC 548 (HL)............................................................................................................254, 257 Lonmar Global Risks Ltd v West [2010] EWHC 2878, [2011] IRLR 138...........................152 Lord Dudley v Lady Dudley (1705) Prec Ch 241...................................................................88 L’Oréal SA v eBay International AG [2009] EWHC 1094 (Ch), [2009] ETMR 53............................................................................................................186, 201, 274 L’Oréal SA v eBay International AG (Case C-324/09) [2012] All ER (EC) 501.........201, 202, 209, 250, 275 Lumley v Gye (1853) 2 E & B 216................... 6, 7, 9, 16, 17, 20, 27, 42, 47, 126, 132–40, 142, 143, 146, 147, 149, 153, 154, 156–59, 161, 164, 165, 167, 170–4, 189, 198, 205, 226, 235, 258, 259, 260, 262, 269, 273, 284 Lumley v Wagner (1852) 5 De G & Sm 485..........................................................................133 Macklin and Murphy’s Case (1838) 2 Lew CC 225................................................................65 Mainstream Properties Ltd v Young [2005] EWCA Civ 861, [2005] IRLR 964.............................. 18, 47, 141, 150, 151, 159, 161, 162, 169, 172, 175, 206 Malone v Metropolitan Police Commissioner [1979] Ch 344 (DC)...................................234 Malzy v Eichholz [1916] 2 KB 308 (CA)...............................................................................185 Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd (The Star Sea) [2001] UKHL 1, [2003] 1 AC 469.........................................................................45, 46, 160 Mara v Browne [1896] 1 Ch 199 (CA)....................................................................................90 Marchant v Ford [1936] 2 All ER 1510 (CA)........................................................................200 Mayor, The Aldermen and Burgesses of the Borough of Salford v Lever [1891] 1 QB 168 (CA)............................................................................................................105, 276 MCA Records Inc v Charly Records Ltd [2001] EWCA Civ 1441, [2002] FSR 26 (CA).................................................................................................................61, 282 McManus v Bowes [1938] 1 KB 98.......................................................................................138 Meade v Haringey London Borough Council [1979] 1 WLR 637 (CA).............................184 Meretz Investments NV v ACP Ltd [2006] EWHC 74 (Ch)................................................231

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Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 (PC)......................................................................................................................60 Merkur Island Shipping Corpn v Laughton (The Hoegh Anapa) [1983] 2 AC 570 (HL)......................................................................................................41, 137, 160 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 (CA).....................................................................................................54, 105, 285 Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913 (2005)................................................................................................. 4, 187, 199, 211, 242–6 Metrobus Ltd v UNITE [2009] EWCA Civ 829, [2010] ICR 173........................................171 Metropolitan Borough of Solihull v National Union of Teachers [1985] IRLR 211 (Ch D)................................................................................................................160 Metropolitan Police Commissioner v Caldwell [1982] AC 341 (HL)...................................51 MGM Studios Inc v Grokster Ltd 545 US 913 (2005)...........................................................49 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48, (2011) 244 CLR 427.......................................................................................................256, 268, 276 Middlebrook Mushrooms Ltd v TGWU [1993] ICR 612 (CA)....................................29, 154 Midgley v Midgley [1893] 3 Ch 282 (CA)....................................................................104, 108 Millar v Bassey [1994] EMLR 44 (CA)................................................. 136, 147, 157, 167, 168 Millar v Ministry of Transport [1986] 1 NZLR 660 (NZCA)................................................78 Ministry of Defence v Ashman [1993] 2 EGLR 102 (CA)...................................................265 M’Laughlin v Pryor (1842) 4 Man & G 48...........................................................................177 M’Neillie v Acton (1853) 4 De G M & G 744.......................................................................106 Mogul Steamship Co Ltd v McGregor, Gow & Co (1889) 23 QBD 598 (CA), [1892] AC 25 (HL).....................................................................................................138, 228 Monckton v Pathé Frères Pathephone Ltd [1914] 1 KB 395 (CA)......................................192 Montagu’s Settlement Trusts, Re [1987] Ch 264....................................................47, 116, 118 Moore v Drinkwater (1858) 1 F & F 134..............................................................................194 Morgans v Launchbury [1973] AC 127 (HL).......................................................................181 Morris v Tolman [1923] 1 KB 166..........................................................................................70 Murad v Al-Saraj [2005] EWCA Civ 959, [2005] WTLR 1573............................................268 Mutua v Foreign and Commonwealth Office [2012] EWHC 2678 (QB), [2012] NLJR 1291..............................................................................................................189 Napster.no [2005] IIC 120 (Norway)....................................................................................201 National Coal Board v Gamble [1959] 1 QB 11 (DC)................................... 13, 22, 76, 79, 83 National Phonograph Co Ltd v Edison-Bell Co Ltd [1908] 1 Ch 335 (CA).......................246 Nationwide Building Society v Balmer Radmore [1999] PNLR 606 (Ch D).....................264 New South Wales v Lepore [2003] HCA 4, (2003) 212 CLR 511..........................................59 News Group Newspapers Ltd v Society of Graphical and Allied Trades [1987] ICR 181 (QBD)..................................................................................................................194 Nichol v Martyn (1799) 2 Esp 732........................................................................................138 Norberg v Wynrib (1992) 92 DLR (4th) 449 (SCC)............................................................175 Northland Bank v Willson (1999) 249 AR 201 (Alberta CQB)...........................................263 Novoship (UK) Ltd v Mikhaylyuk [2012] EWHC 3586 (Comm), [2014] EWCA Civ 908...............................................................................................................5, 276 Novoship (UK) Ltd v Nikitin [2014] EWCA Civ 908, [2014] NLJ 7615...................................................................................................99, 100, 256, 266–9



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OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1................. 6, 7, 9, 14, 17, 30, 31, 33, 37, 40, 42, 43, 46, 47, 51, 52, 54, 98, 105, 132, 137–9, 141, 142, 145, 147, 148–50, 152, 153, 155, 157–64, 168, 172, 174, 175, 184, 222, 226, 283 Oropesa, The [1943] P 32........................................................................................................35 Ostrich Farming Corp Ltd v Wallstreet LLC (8 October 1998, unreported)......................265 Otkritie International Investment Management Ltd v Urumov [2014] EWHC 191 (Comm).................................................................................................120, 276 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 (PC)..........................................................260 Palmer v Wryght (1529) 94 SS 254........................................................................................135 Paragon Finance plc v D B Thakerar & Co [1999] 1 All ER 400 (CA)........................251, 252 Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd [2014] EWHC 937 (Ch).......................................................................274 Parkes v Prescott (1869) LR 4 Exch 169................................................................................193 Paterson Zochonis & Co Ltd v Merfarken Packaging Ltd [1986] 3 All ER 522 (CA)......................................................................................................182, 200 Pauling’s Settlement Trusts (No 2), Re [1963] Ch 576.........................................................105 Peconic Industrial Development Ltd v Lau Kwok Fai [2009] HKCFA 17, [2009] HKLRD 537............................................................................................................252 Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2009] UKPC 45, [2011] 1 WLR 2370............................................................................................258, 269, 271 Penn v Bibby (1866) LR 3 Eq 308.........................................................................................277 People v Hernandez 18 Cal App 3d 651 (Cal 1971)...............................................................84 Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 (CA).................................................................................................. 60, 192, 194, 281 Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd [1924] 1 KB 762............................................................................................................ 177–8 Petrie v Lamont (1841) Car & M 93.....................................................................................177 Petrotrade Inc v Smith [2000] 1 Lloyd’s Rep 486 (QBD)....................................................100 Phillips v Montana Education Association 610 P 2d 154 (Mont 1980)..............................236 Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 (HL)..............................145 Pilmer v Duke Group Ltd [2001] HCA 31, (2001) 207 CLR 165........................................175 Pinkerton v United States 328 US 640 (1946)........................................................................69 Pitt v Holt [2011] EWCA Civ 197, [2012] Ch 132, [2013] UKSC 26, [2013] 2 AC 108.......98 PLG Research v Ardon International [1993] FSR 197...........................................................60 Polly Peck International plc v Nadir (No 2) [1992] 4 All ER 769 (CA)..............................112 Pratt v British Medical Association [1919] 1 KB 244................................... 177, 227, 232, 259 Premier Model Management Ltd v Bruce [2012] EWHC 3509 (QB).................................152 Preston v R [1949] SCR 156 (SCC).........................................................................................78 Pritchard v Briggs [1980] Ch 338..................................................................................160, 231 Proform Sports Management Ltd v Proactive Sports Management Ltd [2006] EWHC 2903 (Ch)..........................................................................................143, 144 Protea Leasing Ltd v Royal Air Cambodge Co Ltd [2002] EWHC 2731 (Comm)...............54 Public Transport Commission (NSW) v Perry (1977) 137 CLR 107 (HCA).....................182 Pwllback Colliery Co Ltd v Woodman [1915] AC 634 (HL)...............................................185 Quinn v Leathem [1901] AC 495 (HL)....................14, 135, 137, 138, 140, 146, 157, 161, 226

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R (on the application of Gujra) (FC) (Appellant) v Crown Prosecution Service [2012] UKSC 52, [2013] 1 AC 484..................................................................................................39 R v Anderson and Morris [1966] 2 QB 110 (CCA)..........................................................66, 80 R v Attorney-General of England and Wales [2003] UKPC 22, [2003] EMLR 499...........103 R v Bainbridge [1960] 1 QB 129 (CCA)...........................................................................43, 77 R v Becerra and Cooper (1975) 62 Crim App Rep 212 (CA)..........................................81, 82 R v Bourne (1952) 36 Cr App Rep 125 (CCA)...........................................................55, 68, 81 R v Bristow [2013] EWCA Crim 1540....................................................................................66 R v Broadbridge (1983) 5 Cr App Rep (S) 269 (CA)...............................................54, 84, 255 R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592......................... 41, 44, 64, 67, 71, 72, 75, 79, 81, 84 R v Calhaem [1985] QB 808 (CA)....................................................................................25, 74 R v Campbell [2009] EWCA Crim 50.....................................................................................81 R v Cato (1976) 62 Cr App Rep 41 (CA)................................................................................73 R v Chief Constable of the North Wales Police, ex parte AB [1998] 3 WLR 57 (CA)........234 R v Clarke (1984) 80 Cr App Rep 344 (CA)...........................................................................82 R v Clarkson [1971] 1 WLR 1402 (C-MAC)....................................................................25, 26 R v Cogan and Leek [1976] QB 217 (CA)..................................................................56, 68, 70 R v Coney (1882) 8 QBD 534............................................................................................23, 25 R v Cunningham [1957] 2 QB 396 (CCA).............................................................................51 R v Dunlop [1979] 2 SCR 881 (SCC).....................................................................................78 R v Fretwell (1862) Le & Ca 161 (CCR).................................................................................76 R v G [2003] UKHL 50, [2004] 1 AC 1034.................................................................51, 77, 78 R v Ghosh [1982] QB 1053 (CA)....................................................................................50, 117 R v Giannetto [1997] 1 Cr App Rep 1 (CA)...............................................................38, 73, 86 R v Gnango [2011] UKSC 59, [2012] 1 AC 827............................21, 26, 33, 35, 65, 66, 80, 85 R v Howe [1987] AC 417 (HL)..........................................................................................82, 84 R v Huggins (1730) 2 Str 883..................................................................................................69 R v Jefferson (1994) 99 Cr App Rep 13 (CA)..........................................................................21 R v JF Alford Transport Ltd [1997] 2 Cr App Rep 326 (CA)...........................................71, 76 R v Kennedy (No 2) [2007] UKHL 38, [2008] 1 AC 269.....................................34–6, 74, 216 R v Looseley; A-G’s Reference (No 3 of 2000) [2001] UKHL 53, [2002] 1 Cr App Rep 360.................................................................................................................82 R v Loukes [1996] 1 Cr App Rep 444 (CA)............................................................................71 R v Luffman [2008] EWCA Crim 1379............................................................... 72, 73, 80, 224 R v Manley (1844) 1 Cox CC 104..............................................................................21, 68, 216 R v Martin [2010] EWCA Crim 1450, [2011] RTR 46...........................................................77 R v Mendez [2010] EWCA Crim 516, [2011] QB 876............................. 32, 35, 37, 67, 72, 80 R v Mercer [2001] EWCA Crim 638.................................................................................19, 86 R v Michael (1840) 9 C & P 356 (CCR)..................................................................................68 R v Millward [1994] Crim LR 527 (CA).................................................................................71 R v Mitchell [2008] EWCA Crim 2552, [2009] 1 Cr App Rep 438........................................81 R v Mitchell and King [1999] Crim LR 496 (CA)..................................................................81 R v O’Flaherty [2004] EWCA Crim 526, [2004] Crim LR 751........................................81, 82 R v Paine (1696) 5 Mod Rep 163...........................................................................................200 R v Powell and English [1999] AC 1 (HL)................................................ 62, 66, 70, 76, 78, 86 R v Rahman [2008] UKHL 45, [2009] 1 AC 129....................................................................80 R v Rajakumar [2013] EWCA Crim 1512, [2014] 1 Cr App Rep 12.....................................82



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R v Richards [1974] QB 776 (CA)...........................................................................................84 R v Robinson (unreported, 3 February 2000 (CA)................................................................81 R v Rock and Overton (Gloucester Crown Court, 6 February 2010)...........................23, 234 R v Rook [1993] 2 All ER 955 (CA)..................................................................................79, 81 R v Saik [2006] UKHL 18, [2007] 1 AC 18.............................................................................44 R v Saunders and Archer (1573) 2 Plowd 473........................................................................82 R v Smith [1960] 2 QB 423 (CCA).........................................................................................82 R v Stewart and Schofield [1995] 1 Cr App Rep 441, [1995] Crim LR 420..........................67 R v Stringer [2011] EWCA Crim 1396, [2011] 3 WLR 1243, [2012] QB 160.............................................................................. 21–3, 25, 32, 35, 38, 70, 72 R v Swindall and Osborne (1846) 2 Car & Kir 230................................................................86 R v Tyler (1838) 8 C & P 616...................................................................................................68 R v Tyrell [1894] 1 QB 710;.....................................................................................................80 R v Webster [2006] EWCA Crim 415, [2006] 2 Cr App Rep 6......................................... 77–9 R v Woollin [1999] 1 AC 82 (HL).....................................................................................42, 76 Raby v Ridehalgh (1855) 7 De GM & G 104........................................................................105 Rafael v Verelst (1776) 2 Wn Bl 1055....................................................................................216 Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1921] 2 AC 465................60 Read v Friendly Society of Operative Stonemasons of England, Ireland and Wales [1902] 2 KB 88 (DC)....................................................................... 227, 230, 232, 246 Redland Bricks Ltd v Morris [1970] AC 652 (HL)...............................................................275 Reeves v Commissioner of the Metropolis [2000] 1 AC 360.................................................35 Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19, [2008] 1 AC 1174................................................................................. 61, 138, 139, 175, 181 Rich v Basterfield (1847) 16 LJCP 273..................................................................................199 Rickless v United Artists Corporation [1988] QB 40 (CA).............................................6, 151 Ridgeway Maritime Inc v Beulah Wings Ltd (The Leon) [1991] 2 Lloyd’s Rep 611 (Comml Ct).................................................................................................235, 236 Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16, (2012) 248 CLR 42................................................................................................... 18, 192, 206, 213 Rogers v RJ Reynolds Tobacco Co 761 SW 2d 788 (Tex 1988)............................................187 Rookes v Barnard [1964] AC 1129 (HL)..............................................................................166 Rotocrop International Ltd v Genbourne Ltd [1982] FSR 241 (Patent Ct)........................201 Rowland v Witherden (1851) 3 Mac & G 568......................................................................263 Rowlands v Chief Constable of Merseyside Police [2006] EWCA Civ 1773, [2007] 1 WLR 1065............................................................................................................273 Rowlandson v National Westminster Bank Ltd [1978] 3 All ER 370 (Ch D).....................106 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC).............5, 6, 9, 14, 16, 17, 22, 41, 45, 49–52, 54, 88, 90, 92, 95–7, 99, 107, 112–27, 129, 141, 174, 175, 222, 229, 253, 255, 256, 263, 280, 283 Royal Norwegian Government v Constant & Constant and Calcutta Marine Engineering Co [1960] 2 Lloyd’s Rep 431 (QBD).................................................................................251 Russell v Marboro Books183 NYS 2d 8 (1959)....................................................................200 Sabaf SpA v MFI Furniture Centres Ltd [2002] EWCA Civ 976, [2003] RPC 264.......55, 210 Said v Butt [1920] 3 KB 497.................................................................... 61, 234, 236, 237, 259 Salford Corp v Lever [1891] 1 QB 168 (CA)........................................................................263 Saltman Engineering Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413 (CA)......102

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Samson v Aitchison [1912] AC 844 (PC).............................................................................181 Sandman v Panasonic UK Ltd [1998] FSR 651 (Ch D).......................................................199 Satnam Investments Ltd v Dunlop Heywood & Co Ltd [1999] 3 All ER 652 (CA).........5, 99 Scruttons Ltd v Midland Silicones Ltd [1962] AC 446 (HL)...............................................262 Seaward v Paterson [1897] 1 Ch 545 (CA)...........................................................................284 Secretary of State for Justice v Topland Group plc [2011] EWHC 983 (QB).....................121 Securities and Investments Board v Pantell SA (No 2) [1993] Ch 256 (CA)......................208 Securities and Investments Board v Scandex Capital Management A/S [1998] 1 WLR 712 (CA)................................................................................................................208 Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 1 WLR 1555 (Ch D).........112 Serco Ltd v National Union of Rail, Maritime and Transport Workers [2011] EWCA Civ 226, [2011] 3 All ER 913.................................................................................249 Shah v Gale [2005] EWHC 1087 (QB).........................................................................190, 280 Shell International Trading & Shipping Co Ltd v Tikhonov [2010] EWHC 1399 (QB)..............................................................................................................276 Slater v Hoyle & Smith Ltd [1920] 2 KB 11 (CA)................................................................260 Slazenger & Sons v Spalding & Bros [1910] 1 Ch 257.........................................................265 Smith, Re (1902) 86 LT 401 (Ch D)......................................................................................223 Smith New Court Securities Ltd v Citibank NA [1997] AC 254 (HL)................................260 Smith v Littlewoods Organisation Ltd [1987] AC 241 (HL).........................................57, 213 Smith v Morrison [1974] 1 WLR 659 (Ch D)......................................................................144 Smith v Pywell [1959] CLY 3215...........................................................................................285 Smith v Stone (1647) Sty 65..................................................................................................182 Smithies v National Association of Operative Plasterers [1909] 1 KB 310 (CA)............................................................................................ 153, 227, 231, 232 Soar v Ashwell [1893] 2 QB 390 (CA)......................................................................90, 93, 252 Sony Corp of America v Universal City Studios Inc 464 US 417 (1984)..........................................................................187, 198, 199, 221, 241, 243, 245, 250 South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 (HL)....................................................................................... 157, 162, 227, 234, 249 Southport Corporation v Esso Petroleum Co Ltd [1953] 3 WLR 773, 1953] 2 All ER 1204 (QBD)...................................................................................................15, 226 Southwark London Borough Council v Mills [2001] 1 AC 1 (HL).............................183, 185 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 (CA)............212 Speight v Gaunt (1883) 22 Ch D 727, (1883) 9 App Cas 1..............................................94, 98 Spread Trustee Co Ltd v Hutcheson [2011] UKPC 13, [2012] 2 AC 194............................262 Spring Form Inc v Toy Brokers Ltd [2002] FSR 276 (Ch D)...............................................277 Square Grip Reinforcement Co Ltd v MacDonald (No 2) [1968] SLT 65..........................155 Standard Chartered Bank v Pakistan National Shipping Corp (Nos 2 and 4) [2002] UKHL 43, [2003] 1 AC 959...........................................................................263, 264 Starglade Properties Ltd v Nash [2010] EWCA Civ 1314, [2011] Lloyd’s Rep FC 102.................................................................................. 19, 50, 64, 118, 120 State v Melchert-Dinkel 844 NW 2d 13 (2014, Minn)...........................................................23 State v Tally 15 So 722 (1894, Ala)..........................................................................................23 Statek Corp v Alford [2008] EWHC 32 (Ch), [2008] BCC 266..........................................106 Stevenson v Singh [2012] EWHC 2880 (QB).......................................................................121 Stocznia Gdanska SA v Latvian Shipping Co & Ors (No 2) [2002] EWCA Civ 889, [2002] 2 All ER (Comm) 768..............................................................................................18



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Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889, [2002] 2 All ER (Comm) 768............................................................................171, 226, 229 Stott v Gamble [1916] 2 KB 504............................................................................................249 Stratford & Sons Ltd v Lindley [1965] AC 269 (HL)...........................................142, 155, 159 Stuart, Re [1897] 2 Ch 583....................................................................................................223 Surujpaul v R [1958] 3 All ER 300 (PC).................................................................................84 Swiss Bank Corp v Lloyds Bank Ltd [1979] Ch 548.....................................................230, 232 Sykes v Howorth (1879) 12 Ch D 826...................................................................................186 T Mahesan S/O Thambiah v Malaysia Government Officers’ Co-operative Housing Society Ltd [1979] AC 374 (PC).......................................................................................276 Tamiz v Google Inc [2013] EWCA Civ 68, [2013] EMLR 14...............................................207 Tang Man Sit v Capacious Investments Ltd [1996] AC 514 (PC)...............................276, 278 Target Holdings Ltd v Redferns [1996] AC 421 (HL)..................................................106, 257 Taylor v Davies [1920] AC 636 (PC).......................................................................................91 TCP Europe Ltd v Perry [2012] EWHC 1940 (QB).....................................................121, 159 Temperton v Russell [1893] 1 QB 715 (CA).................................................................135, 157 Tetley v Chitty [1986] 1 All ER 663 (QBD)..........................................................................185 Texaco Inc v Pennzoil 729 SW 2d 768 (Tex 1988)................................................................273 Thomas v Pearce [2000] FSR 718 (CA)........................................................................100, 113 Thornton v Mitchell [1940] 1 All ER 339 (KBD).............................................................70, 71 Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 (CA)............................... 6, 27, 31, 98, 137, 145, 146, 155 Townsend v Haworth (1875) 48 LJ Ch 770n (CA)...............................................186, 199, 200 Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2008] UKHL 48, [2009] AC 61....................................................................................................259 Tuck v Robson [1970] 1 WLR 741 (QBD)..............................................................................71 Tulk v Moxhay (1848) 41 ER 1143................................................................................143, 232 Tullett Prebon plc v BGC Brokers LP [2010] EWHC 484 (QB), [2010] IRLR 648, [2011] EWCA Civ 131, [2011] IRLR 420..........................................................................153 Tuttle v Buck 107 Minn 145 (1909)........................................................................................14 Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 1981 (Ch), [2012] 1 All ER 806............................................................................274 Twentieth Century Fox Film Corp v Harris [2014] EWHC 1568 (Ch)........ 61, 106, 202, 281 Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2011] Bus LR D49....................... 55, 186, 190, 192, 193, 202, 208, 210, 211, 251, 275, 280 Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164..................5, 6, 9, 13, 43, 49, 50, 95–7, 106, 110, 111, 113, 116–21, 123, 151, 174, 175, 283 Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2006] FSR 17............. 64, 91, 92, 106, 112, 256, 265–8 Unilever plc v Gillette (UK) Ltd [1989] RPC 583 (CA)...............................................189, 285 United States v Peoni 100 F 2d 401 (NY 1838)................................................................75, 78 University of New South Wales v Moorhouse (1975) 133 CLR 1 (HCA)...................192, 207 Vale v International Longshoremen’s and Warehousemen’s Union, Local 508 (1979) 12 BCLR 249 (CA).....................................................................................................259, 260 Vandepitte v Preferred Accident Insurance Corp of New York [1933] AC 70 (CA).............98

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Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 AC 1...........................................................................................................................60, 180 Vercoe v Rutland Fund Management [2010] EWHC 424 (Ch)..........................................270 Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] UKSC 31, [2013] 1 WLR 1556........................................................................................ 101, 102, 113, 188, 205 Virgin Atlantic Airways Ltd v Delta Airways Inc [2010] EWHC 3094 (Pat), [2011] RPC 242, [2011] EWCA Civ 162, [2011] Bus LR 1071................................200, 241 Vyse v Foster (1872) 8 Ch App 309...............................................................................266, 273 Walker v Stones [2001] QB 902 (CA).....................................................................................47 Warren v Mendy [1989] 1 WLR 853 (CA)............................................................................275 Watson v Dolmark Industries Ltd [1992] 3 NZLR 311 (NWCA).......................................128 Waver v Ward (1616) Hob 134..............................................................................................182 Webb v Bloch (1928) 41 CLR 331 (HCA)............................................................................200 Welsh Development Agency v Export Finance Co Ltd [1992] BCC 270 (CA)...........235, 236 Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) [2012] WASCA 157, (2012) 44 WAR 1................................................................................................................126 White v Withers LLP [2009] EWCA Civ 1122, [2010] 1 FLR 859.......................................178 Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 (HCA).................................................273 Whittaker v Child Support Registrar [2010] FCA 43, (2010) 264 ALR 473.......................249 Wilcox v Jeffery [1951] 1 All ER 464 (KBD).....................................................................38, 73 William Bros v Ed T Aguis Ltd [1914] AC 510 (HL)...........................................................260 Williams-Ashman v Price and Williams [1942] Ch 219........................................................47 Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355................54, 90–2, 97, 251–3, 256, 268 Williams v Williams (1881) 17 Ch D 437.............................................................................129 Woolley v UP Global Sourcing UK Ltd [2014] EWHC 493 (Ch).......................................267 Wrotham Park Estate Co v Parkside Homes Ltd [1974] 1 WLR 798..........................269, 271 Yeshiva Properties No 1 Pty Ltd v Marshall [2005] NSWCA 23, (2005) 219 ALR 112......263 Yip Chiu-Cheung v R [1995] 1 AC 111 (PC).........................................................................82 Your Response Ltd v Datateam Business Media Ltd [2014] EWCA Civ 281......................161 Yullie v B&B Fisheries (Leigh) Ltd (The Radiant) [1958] 2 Lloyd’s Rep 596 (P, D and Admlty)..............................................................................................................216 Zhu v The Treasurer of the State of New South Wales [2004] HCA 56, (2004) 218 CLR 530....................................................................................... 125, 126, 165, 227, 232

Tables of Legislation UK Statutes Accessories and Abettors Act 1861....................................................................................70, 84 s 8.......................................................................................................2, 19, 21, 22, 55, 83, 219 Cinematograph Act 1909 s 5........................................................................................................................................249 s 6........................................................................................................................................249 Civil Liability (Contribution) Act 1978 s 1........................................................................................................................................263 s 2(1)...................................................................................................................................271 s 3........................................................................................................................................263 Copyright Act 1956................................................................................................................196 s 1(2)...................................................................................................................................192 Copyright, Designs and Patents Act 1988 s 16(2).................................................................................................................................186 ss 22–26..............................................................................................................................186 s 97......................................................................................................................................208 Coroners and Justice Act 2009, s 54(8)...................................................................................83 Crime and Disorder Act 1998, s 34.........................................................................................58 Criminal Law Act 1967, s 4................................................................................................40, 71 Criminal Law Act 1977 s 1..........................................................................................................................................69 s 1(2).....................................................................................................................................44 Sch 12...................................................................................................................................21 Defamation Act 1996, s 1...............................................................................................234, 254 Financial Services Act 1986, s 6.............................................................................................208 Financial Services and Markets Act 2000 s 380....................................................................208 Homicide Act 1957, s 2(4).......................................................................................................84 Insolvency Act 1986, Sch B1..................................................................................................237 Law Reform (Contributory Negligence) Act 1945 s 1(1)...................................................................................................................................263 s 4................................................................................................................................263, 264 Limitation Act 1980 s 14......................................................................................................................................251 s 21(1)(a)............................................................................................................................252 s 21(3).................................................................................................................................253 s 32......................................................................................................................................251 Patents Act 1977 s 60......................................................................................................................................240 s 60(2).................................................................................................................186, 206, 241

xxxii

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s 60(3).................................................................................................................................241 s 61......................................................................................................................................278 s 61(2).................................................................................................................................277 Prosecution of Offences Act 1985, s 6(2)................................................................................39 Public Authorities Protection Act 1893, s 1..........................................................................249 Serious Crime Act 2007 Pt 2 (ss 44–67)............................................................................................ 12, 25, 32, 69, 218 s 50..........................................................................................................................82, 83, 228 s 50(3)...................................................................................................................................83 Sexual Offences Act 2003 s 1..........................................................................................................................................71 s 73........................................................................................................................................76 Trade Disputes Act 1906........................................................................................................249 Trade Marks Act 1994, s 10(5)...............................................................................................186 Trade Union and Labour Relations (Consolidation) Act 1992 s 179....................................................................................................................................171 s 219............................................................................................................................171, 249 s 219(1)(a)..........................................................................................................................249 Trustee Act 1925 s 61..............................................................................................................................223, 228 s 62......................................................................................................................................107 Unfair Contract Terms Act 1977...........................................................................................145 s 11......................................................................................................................................261

Australia Trade Practices Act 1974 (Cth)..............................................................................................196

Canada Canadian Criminal Code, s 22................................................................................................77

US Model Penal Code, §3.02.......................................................................................................228 Restatement (Second) of the Law of Torts,........................................................... 24, 25, 28, 37

Treaties and Conventions Community Patent Convention 1975 Art 25..................................................................................................................................240 Art 26..................................................................................................................................240 European Convention on Human Rights and Fundamental Freedoms 1950 Art 6(3).................................................................................................................................19 Art 6(3)(a)............................................................................................................................85 Art 10..................................................................................................................................234 World Intellectual Property Organisation Copyright Treaty, Art 11...................................211



Tables of Legislation

xxxiii

EU Directive 89/104/EEC Trade Marks Directive......................................................................201 Directive 2008/95/EC Trade Marks Directive.......................................................................201 Directive 2000/31/EC E-Commerce Directive.....................................................................201 Arts 12–15..........................................................................................................................250 Art 14..................................................................................................................................250

1 Introduction ‘Accessory liability’ involves fundamental issues of responsibility, causation and justice. Complications concerning accessories are to be found in every area of the law, whether the defendant’s liability is accessorial to a breach of fiduciary duty, to a breach of contract, or to a tort, for example. But each such area of the law has tended to be examined as a discrete topic, isolated from how accessory liability operates in neighbouring parts of the legal landscape. This book aims to reverse that trend. ‘Accessories’ give rise to much debate beyond the legal context. The most common usage of the term is in the world of fashion. Whether or not a particular outfit cuts the mustard amongst the fashion cognoscenti may well depend upon how it is accessorised. The accessories – handbag, earrings, necklace, and so on – are not the primary focus of a person’s attire, but are potentially very important. Without such accessories, an outfit may feel incomplete. So it is with the law. It is possible simply to say that a trustee committed a breach of trust, and leave it at that. But that may not present a complete picture of what happened. The breach of trust may only have been committed because the trustee was induced to act in the way he or she did by a friend, and was wrongly assured that his or her actions were lawful by a dishonest solicitor. Adding the friend and solicitor as ‘accessories’ provides a fuller account of the situation. They should not simply be ignored, and their role in the infringement of the claimant’s rights deserves to be properly understood.

I.  What is Accessory Liability? For accessory liability to arise, a ‘primary wrong’ must first be established: this may be the breach of an equitable obligation, breach of contract, or a tort. The person who commits this primary wrong can be called a ‘primary wrongdoer’. It must then be shown that the accessory did something in relation to the primary wrong (the conduct element) and was at fault in some way (the mental element). The following diagram may help to represent accessory liability:

2

Introduction Primary wrong Primary ^ wrongdoer

Victim of the wrong / Claimant Accessorial liability for the primary wrong

Some sort of ‘involvement’ Accessory

This ‘triangle’ of liability can be found in every area of the law. The focus of this book will be upon the private law of obligations. However, the same diagram can also be used to illustrate accessory liability in the criminal sphere. In the criminal domain, the language of a ‘primary offence’ committed by a ‘primary offender’ might be preferred to the language of ‘wrongdoing’. But little seems to turn on this distinction, and it should not be confusing to call a criminal act a ‘wrong’. The term ‘primary wrong’ will therefore generally be used to encompass criminal acts as well as civil wrongs. The key potential conduct and mental elements for accessory liability will be outlined in chapter two. It is important to appreciate at the outset that accessory liability is based upon the defendant’s deliberate participation in a primary wrong committed by another. This requirement of participation has been encapsulated in the criminal law by the words ‘aid, abet, counsel, or procure’.1 The accessory must act in a manner which contributes to the commission of the primary wrong, and thereby the infringement of the victim’s rights. Accessory liability is derivative in the sense that it must be parasitic to a primary wrong.

II.  Why is Accessory Liability Important? Accessory liability has received far more attention in the criminal context than in the private law.2 The comparative neglect of accessory liability in the law of obligations is both surprising and undeserved. Possible rationales for accessory liability will be introduced in chapter two, but there are three important, practical concerns which have meant that cases concerning accessory liability continue to exercise the courts.

  Accessories and Abettors Act 1861, s 8.   For an excellent monograph on the criminal law in this area, albeit now a little dated, see KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford, Clarendon Press, 1991). 1 2



What is Accessory Liability?

3

A.  Pragmatic Factors i. Insolvency Often the reason why a claimant chooses to sue an accessory rather than, or in addition to, a primary wrongdoer, is a fear that it will be impossible to obtain a satisfactory remedy from the primary wrongdoer due to the latter’s poor financial situation. This may well be because the primary wrongdoer is insolvent, and therefore unable to satisfy the victim’s claim. In such situations, claimants have a natural tendency to look to someone else to provide redress. This regularly prompts claims to be made against accessories who have participated in the primary wrong.

ii.  Preserving Relationships A claimant may have a pre-existing relationship with the primary wrongdoer, which the claimant does not want to endanger through litigation. For example, the claimant may be the employer of an employee who has breached a contract, or the claimant may be the beneficiary under a trust which has been run, in breach of duty, by a trustee who is a relative of the claimant. In such circumstances, the claimant may understandably seek to avoid the risk of jeopardising the relationship he or she enjoys with the employee or relative, and try to obtain a remedy for the infringement of his or her rights by bringing a claim against an accessory instead. So, if possible, the claimant might prefer to sue a trade union which induced the employee to breach his or her employment contract, or a solicitor who encouraged the relative to act in a manner which the solicitor knew constituted a breach of trust.

iii. Convenience It may be more convenient for a claimant to sue an accessory rather than the primary wrongdoer. For instance, the accessory might be within the jurisdiction of the court, but not the primary wrongdoer.3 And where there is one person who participates in a large number of similar primary wrongs, it might be difficult to track down every individual primary wrongdoer, but straightforward to identify the person who could be sued as an accessory. This type of scenario has recently been particularly prominent in the context of intellectual property rights: one website might actively encourage millions of users to access material, such as videos and music, which infringes a copyright held by the claimant, for example. It would clearly be very difficult to sue each primary wrongdoer who accesses the

3   A claimant might be required to establish a claim against an accessory in order to serve a primary wrongdoer outside the jurisdiction as a necessary or proper party to the claim against the accessory: see eg Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867.

4

Introduction

material. By contrast, it would seem much more efficient to bring a claim against the owner of the website which encourages the numerous primary wrongs.4

B.  Moral Considerations Although claimants are generally motivated by the practical desire to obtain compensation for losses they have wrongfully suffered, it is crucial to appreciate that accessory liability does not rest exclusively upon these practical concerns. There is a moral core at the heart of accessory liability which justifies its existence. In his Nobel Lecture, the Russian writer Aleksandr Solzhenitsyn said: ‘And the simple step of a simple courageous man is not to take part in the lie, not to support deceit. Let the lie come into the world, even dominate the world, but not through me’.5 This theme has been taken up by legal philosophers,6 and Cooper has argued that accessory liability ‘reflects this common and intuitive moral perception that responsibility for wrongs extends to participants in wrongs’.7 Examples are commonly found in everyday life; if one schoolchild paints graffiti on the wall of a school at the instigation of a classmate, both children will be in trouble. Yet the latter did not directly graffiti at all, and did not even touch a paintbrush. But because of his or her participation in the vandalism, it is inevitable that he or she will not be spared the ire of the teachers. However, Solzhenitsyn’s principle, as expressed above, may be too absolute.8 It is unrealistic to expect people not to participate in wrongs at all costs; such participation will sometimes be justifiable.9 And often parties will have no inkling that they are participating in a primary wrong. To impose liability upon such persons would greatly restrict their freedom to carry out apparently lawful acts. That seems unreasonable: it is important that the victim’s rights be appropriately protected, but those rights are not absolute. The moral core of accessory liability is best respected by imposing liability only upon those who are culpable.10

4  In Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913, 929–930 (2005) Souter J, delivering the Opinion of the US Supreme Court, said: ‘When a widely shared service or product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement’. 5   A Solzhenitsyn, One Word of Truth . . . (London, Bodley Head, 1972) 27. 6   For discussion, see eg J Gardner, ‘Complicity and Causality’ (2007) 1 Criminal Law and Philosophy 127, reprinted in J Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford, Oxford University Press, 2007) ch 3. 7   DJ Cooper, Secondary Liability for Civil Wrongs (PhD thesis, University of Cambridge, 1996) 1. 8   C Kutz, Complicity: Ethics and Law for a Collective Age (Cambridge, Cambridge University Press, 2000) 190–191. 9   See eg Brimelow v Casson [1924] 1 Ch 302. See further ch 7. 10   See ch 2.III.



Doctrinal Difficulties in the Law of Obligations

5

III.  Doctrinal Difficulties in the Law of Obligations The lack of attention paid to accessory liability in the private law has perhaps contributed to some of the doctrinal difficulties that have arisen regarding third party liability in every area of the law of obligations. The confusion that has arisen suggests, at the very least, that a more detailed and considered examination of accessory liability is warranted. Some of these problems will be outlined here, before being developed more fully in subsequent chapters.

A. Equity Accessory liability in equity has had a chequered trajectory. It was for a long time understood that a person could be liable for inducing any breach of trust,11 but would only be liable for assisting a breach of trust if that primary breach of trust were dishonest.12 Not only did this create a distinction between inducement and assistance,13 but it also meant that a dishonest person who assisted an innocent breach of trust could not be liable, whereas an honest person who assisted a dishonest breach of trust might be. However, it now appears, in England at least, that a person can incur accessory liability for assisting or inducing any breach of fiduciary duty.14 Nevertheless, important difficulties remain. For example, it is not yet entirely clear whether or not the primary wrong must concern the claimant’s property.15 Nor has a clear, stable mental element been established by the cases. Earlier authority favoured ‘knowledge’,16 although that term itself potentially covers a wide range of mental elements.17 Current orthodoxy prefers a mental element of ‘dishonesty’, although it is perhaps not entirely clear whether ‘dishonesty’ is defined objectively, the standard being set by what the reasonable man would   Fyler v Fyler (1841) 3 Beav 550.   Barnes v Addy (1874) LR 9 Ch App 244.   C Harpum, ‘The Stranger as Constructive Trustee’ (1986) 102 LQR 114, 141–146. For exploration of these conduct elements, see ch 2.II. 14   Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC), 387 (Lord Nicholls); Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164. Compare the position in Australia: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, (2007) 230 CLR 89. 15   The better view is that it should not: Brown v Bennett [1999] 1 BCLC 649, 657 (Morritt LJ); Goose v Wilson Sandford & Co (a firm) [2001] Lloyd’s Rep PN 189, [88] (Morritt LJ); JD Wetherspoon plc v Van de Berg & Co Ltd [2009] EWHC 639 (Ch), [2009] 16 EG 138 (CS), [518] (Peter Smith J); Novoship (UK) Ltd v Mikhaylyuk [2014] EWCA Civ 908 [87]–[93] (Longmore LJ, delivering the judgment of the Court). cf Satnam Investments Ltd v Dunlop Heywood & Co Ltd [1999] 3 All ER 652 (CA), 671 (Nourse LJ delivering the judgment of the Court); Petrotrade Inc v Smith [2000] 1 Lloyd’s Rep 486 (QBD), [25]–[28] (Steel J). See further ch 4.III.B. 16  eg Barnes v Addy (1874) LR 9 Ch App 244. 17   Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509, 575–576 (Gibson J). The concept of ‘knowledge’ is further explored in ch 2.III.B. 11 12 13

6

Introduction

consider to be dishonest,18 or subjectively, such that the defendant him or herself must realise that his or her conduct would be considered to be dishonest.19 Moreover, it is not even clear whether ‘dishonesty’ is an appropriate test, particularly since it necessarily depends upon what the defendant knows.20 Claims against an inducer or assister have been recognised to be accessorial in nature.21 But the same principles underpinning liability for ‘dishonest assistance’ in equity have sometimes been said to explain liability for receipt of trust property in breach of trust.22 It will be important to consider whether such arguments should be accepted; the better view is that receipt-based liability is based upon the recipient’s beneficial receipt of trust property, and does not inevitably depend upon the recipient’s participation in another’s wrong.23 It may be that a party both assists and receives,24 but it is helpful to disentangle assistance liability in order to appreciate its accessorial, parasitic and participatory nature.25

B. Contract In the contractual context, accessory liability is recognised under the ‘tort of inducing a breach of contract’, which is sometimes also known as the ‘tort of Lumley v Gye’, or the ‘Lumley tort’, after the leading case of the same name.26 Establishing the elements required for accessory liability has proved troublesome. For a long period, it was not even clear that the primary wrong required a breach of contract; it was thought that simple interference with contractual rights, which fell short of any breach of the promissory obligations, might also provide the basis of a claim against an accessory.27 But it has recently been made clear that a breach of contract is necessary:28 accessory liability must be parasitic to a primary wrong. However, difficulties still surround both the conduct and mental element. Orthodoxy indicates that inducement alone can give rise to accessory liability,29 but in some cases assistance, or facilitation, may also suffice.30 The mental element   Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC).   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164. 20   Lord Millett has described dishonesty as ‘an unnecessary distraction, and conducive to error’: Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [134]. 21   Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC). 22   eg P Finn, ‘The Liability of Third Parties for Knowing Receipt or Assistance’ in DWM Waters (ed), Equity, Fiduciaries and Trusts (Ontario, Carswell, 1993). 23   cf Lord Nicholls, ‘Knowing Receipt: The Need for a New Landmark’ in W Cornish, R Nolan, J O’Sullivan and G Virgo (eds), Restitution: Past Present and Future (Oxford, Hart Publishing, 1998). 24  eg Abou-Rahmah v Abacha [2006] EWCA Civ 1492, [2006] 1 All ER (Comm) 827. 25   D Sheehan, ‘Disentangling Equitable Personal Liability for Receipt and Assistance’ (2008) 16 Restitution Law Review 41. 26   Lumley v Gye (1853) 2 E & B 216. 27   Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 (CA). 28   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1. 29   See eg H Carty, ‘The Economic Torts in the 21st Century’ (2008) 124 LQR 641, 651. 30   British Motor Trade Association v Salvadori [1949] Ch 556 (Roxburgh J), 565; D C Thomson & Co Ltd v Deakin [1952] Ch 646 (CA), 694 (Jenkins LJ); Rickless v United Artists Corporation [1988] QB 40 (CA), 59 (Stephen Brown LJ); Global Resources Group Ltd v Mackay [2008] CSOH 148, 2009 SLT 104, [13]. 18 19



Doctrinal Difficulties in the Law of Obligations

7

has proved similarly problematic. The Lumley tort is often known as an ‘intentional’ tort,31 but ‘recklessness’ appears to suffice,32 and the basis of liability may essentially rest upon knowledge.33 The suggestion that accessory liability will only be imposed upon a defendant who intended to harm the victim is often raised,34 but this is not generally accepted.35 The idea that accessory liability requires an intention to harm the claimant may be a result of the fact that the Lumley tort is often considered to be one of the socalled ‘economic torts’, which generally require such an intention.36 However, not only do the other ‘economic torts’ have a different mental element to the Lumley tort, they also have different conduct elements and are not parasitic upon a wrong committed by another. Moreover, the Lumley tort can apply in relation to any breach of contract, and is not limited to protecting economic, trade or business interests. Although it has been suggested that only a ‘purist’ would linger upon such distinctions,37 these differences are important. Liability under Lumley should not be crammed under the umbrella of the economic torts. It is better considered to be an example of the general law of accessory liability.

C. Tort The elements of accessory liability where the primary wrong is a tort are a little obscure. This is because accessory liability largely lies latent beneath the expansive heading of ‘joint tortfeasance’.38 In a leading study, Carty has suggested that there are three main conduct elements which may lead to liability as a joint tortfeasor: authorisation, combination and procurement.39 But defining these terms is no easy task.40 For example, to what extent, if any, is combination distinct from conspiracy? Significantly, restricting accessory liability to these three conduct element means that assistance or encouragement will not, without more, lead to liability:41   See eg OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [1] (Lord Hoffmann).   Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 (CA), 700–701 (Lord Denning MR); OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [40] (Lord Hoffmann). 33   See eg AP Simester and W Chan, ‘Inducing a Breach of Contract: One Tort or Two?’ (2004) 63 CLJ 132. 34   Douglas v Hello! Ltd [2005] EWCA Civ 595, [2006] QB 125, [221] (Arden LJ); OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [306] (Baroness Hale, in contrast to the leading approach of Lord Hoffmann and Lord Nicholls). 35   Lumley v Gye (1853) 2 E & B 216; OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1. 36   This intention is required of the tort of intentionally causing loss by unlawful means and unlawful means conspiracy, eg. See generally H Carty, An Analysis of the Economic Torts, 2nd edn (Oxford, Oxford University Press, 2010). 37   S Deakin and J Randall, ‘Rethinking the Economic Torts’ (2009) 72 MLR 519, 536. 38   Even Glanville Williams’ seminal book on joint torts only devotes seven pages to accessory liability: GL Williams, Joint Torts and Contributory Negligence (London, Stevens & Sons Ltd, 1951) 9–16. 39   H Carty, ‘Joint Tortfeasance and Assistance Liability’ (1999) 19 Legal Studies 489. 40   See further ch 6.III. 41   CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC 1013 (HL); Credit Lyonnais Bank Nederland NV (Now Generale Bank Nederland NV) v Export Credits Guarantee Department [2000] 1 AC 486 (HL). 31 32

8

Introduction

assistance falls beyond the scope of procurement, and, absent a common design, there will be no combination. This exclusion of assistance from the scope of accessory liability is controversial.42 Problems also surround the mental element, and this has been exacerbated by the lack of judicial discussion. At times, it appears to have been assumed that the mental element necessary for accessory liability simply mirrors that required for the primary wrong.43 But this may set the mental element at too low a level, given that many torts do not demand a high level of fault, if they even require the defendant to be at fault at all. The lack of clarity provided by cases on joint tortfeasance led the Court of Appeal in Grimme Maschinenfabrik GmbH v Derek Scott (t/a Scotts Potato Machinery)44 to seek guidance from the analogous contract cases decided under Lumley. This might lead to a more restrictive mental element, which needs to be clearly established. A failure properly to highlight the accessorial nature of liability is one reason why the conduct and mental elements remain to some extent uncertain. Joint tortfeasance is a vast concept. Conspirators and those liable vicariously may also be branded ‘joint tortfeasors’, and where two defendants both commit the primary wrong jointly, the label of ‘joint tortfeasance’ may still be used. Yet the relationship between accessory liability and these other types of liability is weak, and lies essentially in the fact that there is more than one defendant. More could be learned from looking to instances of accessory liability in other areas of the law.

IV.  Looking Across the Legal Landscape The above, brief survey of the problems faced in every area of the private law reveals some interesting similarities and common difficulties. Regardless of the nature of the primary wrong, courts have struggled to maintain a stable approach either to the conduct element or to the mental element. In every area of the civil law, instances of accessory liability tend to be subsumed within larger umbrella headings which cover not only accessory liability but also other forms of liability which rest upon different principles: ‘third party liability’ in equity; the ‘economic torts’ where the primary wrong is a breach of contract; ‘joint tortfeasance’ in tort. These headings are prone to mislead and give rise to confusion. It would be better to look across the private law, and have a general heading of ‘accessory

42  J Dietrich, ‘Accessorial Liability in the Law of Torts’ (2011) 31 Legal Studies 231; P Davies, ‘Accessory Liability for Assisting Torts’ (2011) 70 CLJ 353. See too Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [41]–[44] (Beatson LJ). 43   eg Carty, ‘Joint Tortfeasance and Assistance Liability’, above n 39 at 501. 44   Grimme Maschinenfabrik GmbH v Derek Scott (t/a Scotts Potato Machinery) [2010] EWCA Civ 1110, [2011] Bus LR D129, [106] (Jacob LJ). The primary wrong at issue was breach of a patent: see ch 6.IV.B.



Looking Across the Legal Landscape

9

liability’.45 An insistence upon examining the private law by reference to discrete subjects – such as equity, contract and tort – may fail to illuminate the key principles underpinning liability.46 However, by looking at particular themes in the law of obligations, lessons already learned in analogous areas are more readily assimilated. Accessorial liability regarding a breach of contract seems much more closely related to accessorial liability regarding a breach of fiduciary duty than to the ‘economic tort’ of intentionally causing loss by unlawful means, for example. It is helpful to recognise this explicitly. As Birks has argued, there should be ‘one law on the civil liability of accessories’.47 Throughout the private law, accessory liability is ripe for thorough examination. In Royal Brunei Airlines v Tan,48 accessory liability in equity underwent significant re-examination, and in OBG Ltd v Allan49 the House of Lords emphasised the importance and accessorial nature of Lumley liability. Calls for the ‘fusion’ of the common law and equity in this area are not new,50 and in OBG Lord Nicholls explicitly chose to ‘leave open the question of how far the Lumley v Gye principle applies equally to inducing a breach of other actionable obligations such as statutory duties or equitable or fiduciary obligations’.51 The clarity which is emerging in the equitable and contractual spheres should be encouraged, and its focus sharpened. Looking at parallel developments in other areas of the law may help to achieve this, and further provide guidance as to the appropriate approach where the primary wrong is a tort. This is particularly important in the tortious context given the impetus provided by extensive litigation concerning the protection of intellectual property rights. Some of the difficulties which have emerged from the cases may be due to a failure clearly and convincingly to identify the rationales of liability. This is not an easy task, but is rendered all the more difficult if a blinkered approach to discrete subjects is taken. Considered discussion of accessory liability in one area might help to inform accessory liability in another. At the very least, the reasons why a primary wrong, conduct element and mental element are all required in every area of the private law should be better understood, even if it were ultimately to be concluded that different primary wrongs can legitimately generate different regimes of accessory liability. It is suggested that similar principles underpin the imposition of liability upon an accessory regardless of the nature of the primary wrong: the protection of the victim’s rights, the culpability of the defendant, and the potential effect of liability 45   See eg P Sales, ‘The Tort of Conspiracy and Civil Secondary Liability’ (1990) 49 CLJ 491; Cooper, Secondary Liability for Civil Wrongs, above n 7. 46   W Gummow, ‘Knowing Assistance’ (2013) 87 Australian Law Journal 311. 47   P Birks, ‘Civil Wrongs: A New World’ in Butterworth Lectures 1990–91 (London, Butterworths, 1992) 100. 48   [1995] 2 AC 378 (PC), 387 (Lord Nicholls). 49   [2007] UKHL 21, [2008] 1 AC 1. 50  eg Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC), 387 (Lord Nicholls); Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [127] (Lord Millett). 51   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [190] (Lord Nicholls); see too [3] (Lord Hoffmann).

10

Introduction

upon a party’s freedom of action are all consistently important concerns.52 Moreover, issues regarding the remedies available against accessories, and what defences they may have, appear similar in each area of the law. Much is to be gained from looking beyond the confines of ‘tort’, ‘contract’ and ‘equity’ and across to neighbouring areas in order to ensure a coherent means of analysing and then tackling problems regarding accessories.53

V.  Approach of the Book Chapter two examines the key terms and concepts which are used in every area of the law. It is important to do this at the outset: the same language should have the same meaning regardless of the particular nature of the primary wrong. It is both confusing and unnecessarily complex for the same terms to have different meanings in different domains of the law. Chapter two also highlights the principal possible conduct and mental elements which might provide the foundations for accessory liability in the private law. Chapter three then provides a brief survey of how accessory liability operates in the criminal sphere. Although this might be considered to be somewhat tangential to the core, private law focus of this book, accessory liability has been analysed much more extensively in the criminal law; important lessons might be drawn in appropriate circumstances from the criminal experience, as is highlighted in subsequent chapters. A detailed analysis of accessory liability in the law of obligations is then necessary to show how the fundamental concepts described in chapter two are employed when the primary wrong is a breach of equitable duty (chapter four), breach of contract (chapter five), or a tort (chapter six). In each chapter, the current law is discussed before the rationales and appropriate shape of accessory liability are considered. It will be argued that knowingly assisting a wrong is itself wrong. It is necessary to consider equity, contract and tort in separate chapters in order to illustrate how legal doctrine has developed into its present state. But chapters four, five and six will only go as far as establishing the conduct and mental elements which might ground a claim against an accessory and lead to prima facie liability. There may still be defences available to the defendant, and these are discussed in chapter seven with reference to the entirety of the law of obligations. Similarly, the remedies available to claimants who bring private law claims against accessories are considered in chapter eight, and similarities across the traditional boundaries of the law of obligations highlighted. Finally, chapter nine offers some conclusions regarding accessory liability. The key themes and tensions are illus  These principles are outlined in ch 2.I.   As is perhaps suggested by cases such as Grimme Maschinenfabrik GmbH v Derek Scott (t/a Scotts Potato Machinery) [2010] EWCA Civ 1110, [2011] Bus LR D129. 52 53



Approach of the Book

11

trated in the context of private law claims more generally. It is important that further consideration is given to when, why and by what methods English law imposes accessorial liability. This book aims to contribute to this significant topic.

2 Fundamentals There are a number of key issues that underpin accessory liability in every area of the law. This chapter will introduce those concepts and principles, in order to provide a stable structure for further detailed analysis in subsequent chapters. The principal justifications for liability will first be highlighted, before considering potential conduct elements, mental elements and the nature of accessory liability. It will then be possible to demarcate the scope of accessory liability by distinguishing it from other doctrines alongside which it is commonly considered.

I.  Principles Underpinning Accessory Liability Much doctrinal confusion has arisen in each area of the law due to an inability clearly to identify the rationales of accessory liability and the principles that are at stake when deciding what shape accessory liability should take. This section will canvass the major factors to which reference will be made throughout the book. It is important to note that these considerations may not necessarily be of equal weight in every instance, and some might ultimately be considered unconvincing. Nevertheless, a careful balancing of relevant factors is crucial to ensuring that accessory liability is both principled and justifiable.

A. Responsibility A defendant should only be liable for the injury suffered by a claimant as a result of a primary wrong if the defendant bears some responsibility for it. Otherwise, the liability of the defendant may drift towards inchoate liability, where it would no longer be necessary to ground the claim in any harm suffered.1 This is inappropriate: accessory liability is parasitic upon a primary wrong actually committed. It is well established that there must be at least some connection between the acts of the accessory on the one hand, and the primary wrong and therefore harm suffered on the other. This connection should be sufficient to ensure that the   This has occurred by virtue of statute in the criminal arena: see Serious Crime Act 2007, pt 2.

1



Principles Underpinning Accessory Liability

13

requirement of responsibility is fulfilled. The preferable view is that the defendant’s acts should have some causal impact upon the primary wrong and thereby the harm inflicted upon the claimant.2 Such a causal explanation is consistent with orthodox theories of responsibility: a person should only be held responsible for acts to which he has contributed. The importance of this condition of responsibility should not be underestimated: if a claimant were to be able to sue a defendant who bore no responsibility for the loss suffered, the scope of accessory liability could extend to cover an excessively wide range of actors.

B. Culpability The requirement of culpability ensures that only those who have acted in a morally blameworthy3 manner are liable. It would be inappropriate to impose accessory liability upon a party who legitimately had no idea that his or her actions would induce or assist a primary wrong: the ability of people to act without fear of liability would otherwise be unduly restricted. The actions of the accessory become unlawful because of his or her deliberate4 participation in a primary offence. A requirement of culpability has been explicitly recognised in the criminal context.5 Indeed, the entirely lawful act of selling a permitted good later used to commit a crime may lead to accessory liability if the vendor satisfies the requisite mental element.6 A similar emphasis on the mental element of accessory liability may be found in the private law.7 For example, when discussing assistance liability in equity, Lord Millett has said: ‘[w]hile negligence is not a sufficient condition of liability, intentional wrongdoing is. Such conduct is culpable’.8 It is notable that the culpability of the accessory may feasibly surpass that of the primary wrongdoer. For example, a corrupt, professional adviser may induce an innocent, lay trustee to appoint property in breach of the terms of the trust instrument; in such circumstances, the dishonest accessory can be considered to be the ‘more’ culpable. Two important points are worth highlighting here. First, a subjective mental element may be preferred in order to reflect a sense of moral culpability. But even this may be insufficient, without more, to ensure that liability does not extend beyond those who are culpable: both knowledge and intention, for example, are sufficiently wide to encompass situations where the defendant is not morally   See section II.B below.   A Solzhenitsyn, One Word of Truth . . . (London, Bodley Head, 1972) 27, quoted in ch 1.II.B. 4   To use a relatively neutral word; for further consideration of possible mental elements, see section III below. 5   See eg Law Commission, Inchoate Liability for Assisting and Encouraging Crime (Law Com No 300, 2006) paras 2.14–2.18. 6   National Coal Board v Gamble [1959] 1 QB 11, 23 (Devlin J). 7   J Dietrich, ‘The Liability of Accessories under Statute, in Equity, and in Criminal Law: Some Common Problems and (Perhaps) Common Solutions’ (2010) 34 Melbourne University Law Review 106, 118. 8   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [127]. 2 3

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blameworthy. For instance, a police officer might persuade an informant to commit various wrongs in order to gain information to prevent further, more serious offences. That officer might not be thought to be culpable. For this reason, the mental element for accessory liability should be buttressed by a robust defence of justification.9 Secondly, culpability alone does not give rise to liability. This was established as a general proposition in the law of England by the famous case of Allen v Flood:10 culpability must be coupled with unlawful conduct. Admittedly, some instances can be found where a defendant appears to have incurred liability on the basis of a culpable motive, despite that person’s actions not being otherwise unlawful,11 and Finnis has strongly argued that ‘[o]ne’s conduct will be right only if both one’s means and one’s end(s) are right . . . all the aspects of one’s acts must be rightful for the act to be right’.12 But in OBG, Lord Nicholls was not prepared to ‘enter upon the pros and cons of this particular debate’ about whether Allen v Flood was correctly decided,13 even though he did recognise that the criticisms of the decision ‘have force’.14 In any event, it is unnecessary to criticise Allen v Flood in the context of accessory liability: unlawful conduct will be present, albeit directly committed by the primary wrongdoer rather than the accessory. The claimant does not bring a claim simply because of the accessory’s bad conduct, but as a result of the violation of his or her rights.

C.  Protecting Rights Accessory liability strengthens the rights of an innocent victim of a wrong. It provides the claimant with somebody else to sue, increasing the likelihood of obtaining satisfactory redress. It may be that people have the right to expect that

9   Such a defence even appears to have been recognised by Lord Nicholls in the context of a mental element of dishonesty: Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC), 389; see ch 4.V.D.vi. For defences generally, see ch 7. 10   Allen v Flood [1898] AC 1 (HL). This decision has been rejected in America: see eg Tuttle v Buck 107 Minn 145 (1909); KJ Vandevelde, ‘The Modern Prima Facie Tort Doctrine’ (1991) 79 Kentucky Law Journal 519. Heydon has written extra-judicially that ‘though the doctrine of Tuttle v Buck may not often have to be invoked, and may be difficult to invoke, a legal system which lacks it seems deficient, particularly since no English judge has ever adequately explained its absence’: D Heydon, Economic Torts, 2nd edn (London, Sweet & Maxwell, 1978) 28. For an apparent recent shift in approach away from Tuttle v Buck, see Gieseke v IDCA, Inc, 2014 WL 1230224 (26 March 2014). 11   In the context of nuisance, see eg Christie v Davey [1893] 1 Ch 316. See also Keeble v Hickeringill (1706) 11 East 574n (Ct of QB); Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468; Quinn v Leathem [1901] AC 495 (HL). 12   J Finnis, ‘Intention in Tort Law’ in DG Owen (ed), Philosophical Foundations of Tort Law (Oxford, Oxford University Press, 1995) 238 (emphasis in original). 13   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [148]. 14  ibid [147]. For the argument that tort law should not be slow to sanction culpable conduct, see eg T Honoré, ‘The Morality of Tort Law – Questions and Answers’ in DG Owen (ed), Philosophical Foundations of Tort Law (Oxford, Oxford University Press, 1995) 74. Note also the moral overtones in Donoghue v Stevenson [1932] AC 562.



Principles Underpinning Accessory Liability

15

nobody else should culpably participate in the infringement of their rights.15 The existence of liability may also deter accessories from deliberately participating in primary wrongs, thereby reducing the instances of primary wrongs. This could be viewed as protecting the general existence of the primary rights violated.16 In the contractual context, Simester and Chan have suggested that ‘the community as a whole would also suffer harm were the general regime of contract law to be undermined. The relevant harm is thus of a lost-opportunity kind, where the ineffectiveness of a contract-law regime would result in a substantial loss of opportunity for personal and social advancement through reliable coordinated economic activity’.17 But do all rights deserve to be protected to the same extent? Some sort of hierarchy of rights may be discerned in the private law: the right to bodily integrity, for example, warrants greater protection that rights to property.18 It is possible that the protection afforded by accessory liability might vary according to the nature of the primary wrong. On the other hand, it may be that the strength of the primary right at issue is adequately reflected in the nature of the claims and remedies available against the primary wrongdoer,19 and that this should not affect the shape of accessory liability. After all, if a right is worth protecting against a primary wrongdoer, perhaps such protection might invariably be extended to those who culpably participate in the infringement of that right. Any other approach may give too much weight to the nature of the right of the claimant, as opposed to the wrong of the defendant.20

D. Deterrence Accessory liability might help to deter third parties from participating in primary wrongs. This may be desirable in order to protect claimants’ rights. In Tan, Lord Nicholls recognised that a possible reason for accessory liability was that of 15   The normative question of whether such a right should be recognised might be thought to raise moral considerations: see generally R Stevens, Torts and Rights (Oxford, Oxford University Press, 2007) 329–337, esp 334. DJ Cooper has insisted that accessory liability reflects an ‘intuitive moral perception that to participate in a wrong is itself a wrong’: Secondary Liability for Civil Wrongs (PhD thesis, University of Cambridge, 1996) 4. 16   In an analogous manner, perhaps, to restitutionary damages, which have been justified on the basis that they protect ‘facilitative institutions’: see eg IM Jackman, ‘Restitution for Wrongs’ (1989) 48 CLJ 302. See too S Worthington, ‘Reconsidering Disgorgement for Wrongs’ (1999) 62 MLR 218. 17   AP Simester and WMF Chan, ‘Inducing Breach of Contract: One Tort or Two?’ (2004) 63 CLJ 132, 144. See too F Sayre, ‘Inducing Breach of Contract’ (1923) 36 Harvard Law Review 663, 700. 18   Southport Corporation v Esso Petroleum Co Ltd [1953] 3 WLR 773 (QBD) 779 (Devlin J); N McBride, ‘Tort Law and Human Flourishing’ in S Pitel, J Neyers and E Chamberlain (eds), Tort Law: Challenging Orthodoxy (Oxford, Hart Publishing, 2013); P Cane, The Anatomy of Tort Law (Oxford, Hart Publishing, 1997) ch 3. 19   eg an account of profits is more readily awarded for breach of fiduciary duty than a breach of contract: compare Boardman v Phipps [1967] 2 AC 46 (HL) and Attorney-General v Blake [2001] 1 AC 268 (HL). 20   See further ch 9.

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Fundamentals

‘imposing a liability which will discourage others from behaving in a similar fashion’.21 Deterrence is particularly relevant in this area as the conduct of the accessory is calculated ex ante: a conscious decision is taken by the accessory, so an opportunity to deter the accessory from becoming ‘involved’ in the primary breach clearly exists. There is academic support for deterrence providing a rationale of accessory liability in both the contractual22 and equitable spheres,23 and Cane has observed that ‘as a generalization it is probably true to say that the deterrent theory of tort liability is most likely to be relevant to torts involving liability for calculated conduct’.24 Although there may be some disquiet about relying on deterrence in order to justify liability,25 it seems as if tort law has some deterrent effect even in the context of negligence,26 so it would be unsurprising if deterrence were to play some role in accessory liability.

E. Loss-shifting The ‘loss-shifting’ function of accessory liability has been described as a ‘pragmatic rationale’ of assistance liability in equity.27 The law might seek to ensure that the culpable participant in the wrong bears the loss caused, rather than the innocent victim. This may appeal to an intuitive sense of justice; in Tan, Lord Nicholls observed that ‘increasingly plaintiffs have recourse to equity for an effective remedy when the person in default, typically a company, is insolvent. . . . Affording the beneficiary a remedy against the third party serves the . . . purpose of making good the beneficiary’s loss should the trustee lack financial means’.28 However, there is a danger that the importance of this rationale be over-stated. ‘Defendant-shopping’ is not always to be encouraged; allowing claimants to search for alternative defendants does not give any indication as to how wide accessory liability should be.29 Claimants should only be allowed to recover against   Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC), 387.   H Carty, An Analysis of the Economic Torts, 2nd edn (Oxford, Oxford University Press, 2010) 312–313: ‘the role of tort law in this area . . . is to act as a deterrent’. The contrary argument that breach of contract should not be deterred rests upon the idea of efficient breach: see section I.G below. 23   P Ridge, ‘Justifying the Remedies for Dishonest Assistance’ (2008) 124 LQR 445, 446: ‘to deter third party participation in breach of trust or fiduciary duty, thereby restricting the opportunities for wrongdoing by trustees and fiduciaries’. 24   P Cane, Tort Law and Economic Interests, 2nd edn (Oxford, Clarendon Press, 1996) 470. 25   For general discussion see YL Tan, ‘Deterrence in Private Law’ in A Robertson and HW Tang (eds), The Goals of Private Law (Oxford, Hart Publishing, 2009). 26   See eg W Landes and R Posner, The Economic Structure of Tort Law (Cambridge MA, Harvard University Press, 1987) 9–13; Cane, Tort Law and Economic Interests, above n 24 at 469–473; G Schwarz, ‘Reality in the Economic Analysis of Tort Law? Does Tort Law Really Deter?’ (1994) 42 UCLA Law Review 377. cf SD Sugarman, ‘Doing Away with Tort Law’ (1985) 73 California Law Review 555. 27   Ridge, ‘Justifying the Remedies for Dishonest Assistance’, above n 23. 28   [1995] 2 AC 378 (PC), 386–387. 29   See eg Coleridge J in Lumley v Gye (1853) 2 E & B 216, 253. Carty has also written of the ‘constant attempts by plaintiffs to widen liability in the search for the deepest pockets’: ‘Joint Tortfeasance and Assistance Liability’ (1999) 19 Legal Studies 489, 489. 21 22



Principles Underpinning Accessory Liability

17

those who have shown a sufficiently high degree of responsibility and fault for it to be fair to ask them to provide redress for the primary wrong.30

F. Property Accessory liability is sometimes justified using proprietary reasoning. For example, in OBG Lord Hoffmann stated that Lumley liability treats ‘contractual rights as a species of property which deserve special protection’.31 However, the fact that there is an obligation not to participate in a breach of contract need not be analysed as proprietary, but simply as an incident of contracts being worthy of protection. Indeed, Cooper has argued that ‘all such property-based theories are inconsistent with an analysis based on secondary liability, since they treat the promisor’s breach of contract not as the wrong in which the defendant participates, but rather as the damage itself’.32 It may be better to abandon the language of property. After all, in the equitable context – where a stronger proprietary flavour might be expected33 – Lord Nicholls has insisted that accessory liability ‘is not property-based’.34 Accessory liability might operate to protect property where property rights have been infringed, but, where this is not the case,35 proprietary language could be superfluous and potentially misleading.

G.  Law and Economics It is sometimes said that a ‘law and economics’ approach undermines the existence of accessory liability. Howarth has argued36 that Lumley liability discourages ‘efficient’37 breaches of contract: third parties would be deterred from inducing a breach of contract, even if the result of the breach would be that the subjectmatter of the contract would pass to the person who values it the most (typically the inducer), the claimant would be no worse off through receiving compensation 30   Even though an accessory should be able, in principle, to seek contribution from the primary wrongdoer for any compensation paid out to the victim of the wrong, such a claim will be worthless if the primary wrongdoer is insolvent, and insolvency is often the very reason why the victim chooses to sue the accessory rather than the primary wrongdoer: see ch 8.V. 31   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [32]. See further W Anson, Principles of the English Law of Contract, 2nd edn (Oxford, Clarendon Press, 1882) 208; R Bagshaw, ‘Inducing Breach of Contract’ in J Horder (ed), Oxford Essays in Jurisprudence, 4th edn (Oxford, Oxford University Press, 2000). 32  Cooper, Secondary Liability for Civil Wrongs, above n 15 at 75. 33   T Weir, Economic Torts (Oxford, Clarendon Press, 1997) 31. 34   Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC), 387. 35   Numerous examples could be given, such as battery and defamation. 36   D Howarth, ‘Against Lumley v Gye’ (2005) 68 MLR 195. 37  On efficient breach, see eg R Posner, Economic Analysis of Law, 8th edn (New York, Aspen Publishers, 2011) ch 4.10; D Campbell and D Harris, ‘In Defence of Breach: A Critique of Restitution and the Performance Interest’ (2002) 22 Legal Studies 208. cf D Friedmann, ‘The Efficient Breach Fallacy’ (1989) 18 Journal of Legal Studies 1.

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for his or her loss, and the contract-breaker would be better off by making a greater profit. However, arguments founded upon ideas of economic efficiency rarely speak with one voice. Indeed, it may be that accessory liability actually improves efficiency, since making a person liable as an accessory ‘gives him an incentive to go to the promisee and bargain with him rather than seducing or browbeating the promisor’.38 The cost of the potential accessory’s negotiating an agreement with the promisee may be much less than the costs which arise after a breach of contract.39 Arguments based upon law and economics appear to be sufficiently malleable to be used both for and against accessory liability.40 They have been given little weight in either equity41 or the tortious sphere.42 Nor does ‘efficient breach’ explain the current state of contract law.43 It is at odds with a more moralistic foundation of contract law which sees contracts as legally binding because they are morally binding promises.44 As Rix LJ has observed in Stocznia Gdanska SA v Latvian Shipping Co & Ors (No 2), when explaining accessory liability for breach of contract, the ‘philosophical basis appears to be that contracts should be kept rather than broken’.45

H.  Evidential Considerations In some instances, the existence of accessory liability may provide forensic advantages. For example, if two people are involved in beating up a victim, it may be unclear which person actually landed the blow which broke the person’s arm, and which person ‘only’ assisted the attack. If there were no possibility of accessory liability, the claimant would have to engage in the difficult process of proving which of the two defendants struck the relevant blow in order to recover damages 38  Weir, Economic Torts, above n 33 at 5. This is clearly adopted as regards fiduciaries, where the aim is to provide an incentive to gain the fully informed consent of the principal. 39   ‘ “Talking after a breach” may be one of the most expensive forms of conversation to be found, involving, as it so often does, engaging high-price lawyers, and gambits like starting litigation, engaging in discovery, and even trying and appealing cases’: I Macneil, ‘Efficient Breach of Contract: Circles in the Sky’ (1982) 68 Virginia Law Review 947, 968–969. See too W Landes and R Posner, The Economic Structure of Intellectual Property Law (Cambridge MA, Harvard University Press, 2003) 118–119; Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16, (2012) 248 CLR 42, [110] (Gummow and Hayne JJ). 40   Mainstream Properties Ltd v Young [2005] EWCA Civ 861, [2005] IRLR 964, [92]–[93] (Sedley LJ). 41   cf A Duggan, ‘Is Equity Efficient?’ (1997) 113 LQR 601. 42   cf Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16, (2012) 248 CLR 42, [110] (Gummow and Hayne JJ). 43   ‘If the common law were efficient, judges would not invent a cause of action that penalizes efficient breach – but they have’: F McChesney, ‘Tortious Interference with Contract Versus “Efficient” Breach: Theory and Empirical Evidence’ (1999) 28 Journal of Legal Studies 131, 136. 44  C Fried, Contract as Promise (Cambridge MA, Harvard University Press, 1981). See too Friedmann, ‘The Efficient Breach Fallacy’, above n 37. 45   Stocznia Gdanska SA v Latvian Shipping Co & Ors (No 2) [2002] EWCA Civ 889, [2002] 2 All ER (Comm) 768, [130].



Principles Underpinning Accessory Liability

19

from that defendant. But if it is clear that one person was the primary wrongdoer and the other an accessory, and a remedy is available against both, it is much easier for the claimant to obtain satisfactory redress. Such evidential considerations have proved to be particularly useful in the criminal context. Section 8 of the Accessories and Abettors Act 1861 provides that an accessory can be charged, indicted and punished as a principal offender. This means that the prosecution can obtain a conviction even if it cannot be proved whether the accused was a principal offender or an accessory, provided that it can be proved that the defendant must have been one or the other.46

I.  Consistency in the Law In the limited sense that one area of the law should not undermine another, the law might strive to be consistent.47 Given that it is well established that a party who procures or assists any crime may be liable as an accessory, a principle of consistency might suggest that if the crime committed is also a civil law wrong, the victim should be able to sue the accessory. Indeed, since the burden of proof is higher in the criminal context, and the sanctions more severe, it might seem logical for civil liability to exist wherever a person is liable as an accessory to a crime which is also a civil wrong.48 However, English judges appear reluctant to recognise a need for consistency with the criminal law of accessory liability.49 Seeking consistency with the criminal law rests upon an assumption that the criminal law has adopted the correct approach, which may also be controversial.50 But in any event, even if consistency were to be recognised as a desirable goal of the law in this area, it could not explain all instances of accessory liability: accessory liability is clearly not confined to civil law wrongs which are also criminal offences.

J.  Freedom of Action The prospect of accessory liability may inhibit the ability of persons to act in a lawful manner without fear of liability. This is a significant factor which might 46  In R v Mercer [2001] EWCA Crim 638 it was held that there is no violation of Article 6(3) of the European Convention on Human Rights and Fundamental Freedoms where the prosecution alleges that an accused is a party to an offence, but cannot specify his or her precise role. See too ch 3.VII.C. 47   Hall v Hebert [1993] 2 SCR 159 (SCC); Gray v Thames Trains Ltd [2009] UKHL 33, [2009] AC 1339 (in the context of the illegality defence). 48   See further ch 6.VI.B. 49   Credit Lyonnais Bank Nederland NV (Now Generale Bank Nederland NV) v Export Credits Guarantee Department [1998] 1 Lloyd’s Rep 19 (especially Hobhouse LJ; see too Lord Woolf in the House of Lords: [2001] AC 486, 500). cf Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [41]–[44] (Beatson LJ); Starglade Properties Ltd v Nash [2010] EWCA Civ 1314, [2011] Lloyd’s Rep FC 102, [42]–[45] (Leveson LJ); see too W Gummow, ‘Knowing Assistance’ (2013) 87 Australian Law Journal 311. 50   See generally ch 3.

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Fundamentals

militate against, or at least limit the scope of, accessory liability. In Lumley v Gye, Coleridge J insisted that ‘the general rule of our law is to confine its remedies by action to the contracting parties’,51 and Howarth has since argued that ‘[c]ontract law is optional. Imposing its obligations on unwilling parties requires special justification’.52 In the equitable sphere, Sir Leonard Hoffmann (as he then was) has pondered, extra-judicially, ‘why should anyone else incur a liability which he would not otherwise incur because he helps the trustee to do something which he knows is a breach of trust?’53 Such scepticism about the very existence of accessory liability54 is undeniably important and must be borne in mind. There seems to be unease about imposing liability upon a party who has not agreed to the contractual or fiduciary obligations which have been breached. However, some concerns may be based upon a ‘privity fallacy’.55 Accessory liability does not unduly interfere with privity. The only parties who have duties to perform the contract, for example, are the parties to the contract themselves. Accessory liability does not impose a positive duty on third parties to comply with the contract, but only a negative duty not to participate deliberately in the breach of those contractual obligations. This is much less intrusive into the rights and liberties of those who might fall within the scope of accessory liability, particularly if only the culpable can be liable as accessories.

K. Preliminary Conclusions Decisions regarding accessory liability are often reached with little, if any, discussion of the underlying principles. That these key principles have largely lain latent, just beneath the surface of judges’ reasoning, has no doubt contributed to doctrinal confusion.56 Overt recognition of the importance of these factors should make the task of explaining and assessing accessory liability much clearer. No single principle appears to be conclusive. A rational justification for accessory liability can only be found through amalgamating core reasons. Accessory liability helps to ensure that a loss suffered by an innocent claimant is borne by a culpable party who bears responsibility for the infringement of the claimant’s right. Accessory liability further protects the rights of the victim, and may deter the commission of primary wrongs. It is suggested that the principles of responsi  Lumley v Gye (1853) 2 E & B 216, 246.   Howarth, ‘Against Lumley ’, above n 36 at 195. 53   L Hoffmann, ‘The Redundancy of Knowing Assistance’ in P Birks (ed), The Frontiers of Liability, vol 1 (Oxford, Oxford University Press, 1994) 28. 54   In the criminal context, the Law Commission once suggested that an assister should bear no responsibility for the commission of the primary offence, but has since departed from this position: compare Assisting and Encouraging Crime (Law Com Consultation Paper No 131, 1993) with Inchoate Liability for Assisting and Encouraging Crime, above n 5, and Participating in Crime (Law Com No 305, 2007). 55  Cooper, Secondary Liability for Civil Wrongs, above n 15 at 16–17. For consideration of other concerns, see eg ch 5.VII and ch 4.VII. 56   For an initial outline of some areas of difficulty, see ch 1.III. 51 52



Conduct Element

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bility, culpability and protecting rights are crucial and able to explain why accessory liability has been consistently recognised by the courts. These principles are of paramount importance in every area of the law.

II.  Conduct Element Accessory liability is based upon a third party’s participation in a wrong committed by the primary wrongdoer. But, assuming that any relevant mental element is established, what acts are sufficient to ground accessory liability? Some guidance may be provided by the criminal law; section 8 of the Accessories and Abettors Act 1861 provides that:57 Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.

This section highlights four conduct elements – ‘aid’, ‘abet’, ‘counsel’ and ‘procure’ – and continues to provide the basis of the criminal law of accessories.58 It is important to note that the Act did not affect the substantive conduct elements which lead to accessory liability; section 8 is simply a deeming provision regarding how secondary parties should be dealt with at trial.59 The substance of this provision was already well established by the seventeenth century.60 For example, in 1682, Hale was able to state that an accessory was a person who ‘being absent at the time of the felony committed, doth yet procure, counsel, commend or abet to commit a felony’.61 The conduct elements necessary for accessory liability were therefore developed at common law and continue to be defined by the common law. There is no reason to consider that the potential conduct elements should necessarily differ between the criminal law and private law; the various ways in which an accessory can feasibly participate in a primary wrong do not depend upon the nature of that primary wrong. Indeed, the origins of accessory liability appear to be the same across the civil/criminal law divide,62 and it seems that the private law had some influence upon the development of accessory liability in the criminal law. As   As amended by the Criminal Law Act 1977, sch 12.   See eg R v Gnango [2011] UKSC 59, [2012] 1 AC 827, [13] (Lord Phillips of Worth Matravers PSC and Lord Judge CJ, with whom Lord Wilson JSC agreed). 59   R v Jefferson (1994) 99 Cr App Rep 13 (CA), 22 (Auld J). 60   R v Stringer [2011] EWCA Crim 1396, [2012] QB 160, [42] (Toulson LJ). 61   M Hale, Pleas of the Crown, vol 1 (London, Printed by the assigns of Richard and Edward Atkyns, Esquires, 1682) 615. cf J Stephen, A Digest of the Criminal Law, 4th edn (London, Macmillan, 1877) Article 39: ‘An accessory before the fact is one who directly or indirectly counsels, procures, or commands any person to commit any felony . . . which is committed in consequence of such counselling, procuring, or commandment.’ 62   R v Manley (1844) 1 Cox CC 104; R v Mazeau (1840) 9 C & P 676; DJ Ibbetson, A Historical Introduction to the Law of Obligations (Oxford, Oxford University Press, 1999) 180. 57 58

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Fundamentals

Holdsworth has observed,63 trespasses had . . . their civil as well as their criminal side; and, seeing that all concerned in a trespass were equally liable to pay damages if sued by the injured party in a civil action, it was only logical to make them equally liable to punishment if prosecuted by the crown.

The language of ‘aid, abet, counsel, or procure’ used in the 1861 Act may now seem somewhat antiquated; in its recent review of the criminal law, the Law Commission preferred the more modern, accessible language of ‘assists, encourages, or procures’.64 These terms are more readily understood and should be generally preferred. Nevertheless, it remains useful carefully to examine the four conduct elements present in the statute in order to justify the ‘streamlining’ of ‘aid, abet, counsel’ to ‘assist or encourage’. Indeed, in Attorney-General’s Reference (No 1 of 1975), Lord Widgery CJ said:65 We approach section 8 of the Act of 1861 on the basis that the words should be given their ordinary meaning, if possible. We approach the section on the basis also that if four words are employed here, “aid, abet, counsel or procure,” the probability is that there is a difference between each of those four words and the other three, because, if there were no such difference, then Parliament would be wasting time in using four words where two or three would do.

A.  ‘Aid, Abet, Counsel or Procure’ i. Aid The Oxford English Dictionary defines ‘aid’ as ‘to give help, support, or assistance’, or, alternatively, ‘to be or constitute an aid to (a person or thing); to promote or encourage; to facilitate’.66 The scope of ‘aid’ is very wide. There are innumerable ways by which a person might help somebody else to commit a primary wrong. Lending a gun which is then used to shoot somebody could obviously aid the primary crime of murder, or tort of battery.67 Providing financial assistance to a trustee in order to further the latter’s scheme to defraud his or her principal would aid the trustee’s breach of fiduciary duty and, possibly, breach of contract.68 Establishing hyperlinks on a website which direct users to videos or songs that infringe another’s copyright might be considered to assist the users’ infringements of intellectual property rights.69 63   W Holdsworth, A History of English Law, 3rd edn, book 3 (London, Sweet & Maxwell, 1922) 308. See too W Blackstone, Commentaries on the Laws of England, 3rd edn, vol 3 (Oxford, Clarendon Press, 1768) ch 10. 64   Law Commission, Participating in Crime, above n 54. See too R v Stringer [2011] EWCA Crim 1396, [2012] QB 160, [42]–[51] (Toulson LJ). 65   Attorney-General’s Reference (No 1 of 1975) [1975] QB 773 (CA), 779. 66   Oxford English Dictionary (Oxford, Oxford University Press, OED Online). 67   National Coal Board v Gamble [1959] 1 QB 11 (DC), 23. 68   Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC). 69   cf R v Rock and Overton (Gloucester Crown Court, 6 February 2010).



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Many other examples could be given, but it is important to note four things at the outset. First, the ‘aid’ of the accessory must actually assist the primary wrong committed. So, if a defendant leaves a back window unlocked in an attempt to help a primary wrongdoer to enter the claimant’s property as a trespasser, but the primary wrongdoer then enters the property by breaking in through the front door, it would appear that leaving the window open did not assist the primary wrong as it was actually committed; the act of the defendant did not contribute to the primary wrong.70 However, if the act of leaving the window open was communicated to the primary wrongdoer, then this may have encouraged the primary wrongdoer in his endeavours, even if it cannot easily be said that it assisted him. This distinction might suggest that ‘assistance’ is insufficiently broad to encompass ‘encouragement’, and the two terms may usefully be separated.71 Secondly, an accessory who is liable for aiding the primary wrong is rarely the person who formed the idea to commit the primary wrong. A person who provides the reasons for a primary wrongdoer to act in a certain way is best described as having ‘procured’ or induced’ the wrong.72 Assistance is generally pursuant to an idea that the primary wrongdoer already had: the aid rendered helps to realise a plan previously, or at least simultaneously, concocted by a primary wrongdoer. Moreover, the primary wrongdoer need not necessarily know that the commission of the primary wrong has been assisted by another defendant. This is well illustrated by the famous American case of State v Tally.73 Judge Tally’s brothersin-law were planning to kill somebody. Tally knew this, and consequently prevented the delivery of a telegram which warned the intended victim of the danger. Tally was held liable as an accessory to the murder. Tally’s acts clearly made it easier for the primary offence of murder to be committed, and the fact that his brothers-in-law were unaware of his assistance was irrelevant.74 Thirdly, the definition of ‘assistance’ includes ‘facilitation’. For example, the acts of Tally facilitated the murder by rendering it easier to accomplish. This can legitimately be described as assistance. Indeed, it does not seem artificial to view all acts of facilitation as acts of assistance. Facilitation might conceivably cover acts of omission: by not intervening to prevent a primary wrong, a person might facilitate its commission. Although, as a general rule, a person is under no duty to act to prevent a wrong from occurring,75 where the defendant had the power to control the conduct of the primary wrongdoer but failed to do so, accessory liability might

  It is possible to consider this to be a matter of causation: see section II.B below.   The Supreme Court of Minnesota has recently highlighted that ‘encouraging’ suicide should be distinguished from ‘assisting’ suicide: State v Melchert-Dinkel 844 NW 2d 13 (2014, Minn). 72   H Hart and T Honoré, Causation in the Law, 2nd edn (Oxford, Oxford University Press, 1985) 378. 73   State v Tally 15 So 722 (1894, Ala). 74   For a recent statement that the primary wrongdoer need not know of the assistance rendered, see R v Stringer [2011] EWCA Crim 1396, [2011] 3 WLR 1243, [49] (Toulson LJ). 75   ‘It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder’: R v Coney (1882) 8 QBD 534, 557–558 (Hawkins J). 70 71

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lie. For example, if a wife stands by whilst her husband abuses their child, the wife will be an accessory to the primary wrongs committed by her husband.76 Fourthly, it might be appropriate for accessory liability not to arise unless the assistance provided was ‘substantial’. In Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA, Peter Gibson J considered accessory liability in equity and said: ‘it seems to me to be a simple question of fact, whether or not there has been assistance. . . . [T]he assistance must . . . not be of minimal importance’.77 Similarly, the Restatement (Second) of the Law of Torts provides that a person may be liable as an accessory to a tort if the assistance rendered is ‘substantial’.78 The commentary to the Restatement gives the example of a messenger who takes a message from his employer to his employer’s workmen, which directs the workmen to commit a tort.79 In this situation, the messenger is simply used as a means of communication, and his assistance is considered to be so slight that he would not be liable. This de minimis requirement may be relevant to all conduct elements, and will be discussed more fully once the conduct elements have been outlined and the importance of causation can be considered.80

ii. Abet The Oxford English Dictionary defines ‘abet’ as ‘to encourage or assist’.81 Given the comments of Lord Widgery CJ in Attorney-General’s Reference (No 1 of 1975),82 ‘abet’ and ‘aid’ should have different meanings, so ‘abet’ generally equates to ‘encouragement’, which in turn can be defined as ‘to incite, induce, instigate; in weaker sense, to recommend, advise’.83 There is clearly a significant overlap with inducement; if an accessory urges another to breach a contract, the accessory’s encouragement could constitute inducement, for example. But not all acts of encouragement are tantamount to inducement. If the contracting party had already decided to breach a contract, and informs the defendant about this, then the defendant’s subsequent encouragement of the primary wrong cannot be said to induce or procure the breach of contract: the primary wrongdoer had already decided to breach his or her obligations. In that scenario, it might be argued that the accessory assists the breach of contract, because the encouragement emboldens the primary wrongdoer and thereby assists the commission of

76   This does not preclude the possibility that the mother might not only be liable as an accessory but also as a primary wrongdoer who owes a primary, independent duty to her child: see section V.A below. 77   Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509n (Ch D), 574. 78  American Law Institute, Restatement (Second) of the Law of Torts, vol 4 (St Paul, MN, ALI Publishers, 1979) para 876. 79   ibid comment d, illustration 11. 80   See section II.B.iii below. 81   Oxford English Dictionary, above n 66. 82   [1975] QB 773 (CA), 779, quoted above at n 65. 83   Oxford English Dictionary, above n 66.



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the primary wrong.84 Although such an approach might sensibly emphasise that all conduct elements are simply different modes of participation on a spectrum of participatory conduct,85 such conduct should be described as ‘encouragement’. Both the criminal86 and private87 law regularly distinguish between ‘assistance’ and ‘encouragement’; the two do not invariably overlap.88 Nevertheless, many of the considerations highlighted in the context of ‘aid’ also apply to ‘abet’. Thus the encouragement provided must actually encourage the primary wrongdoer.89 So, if a broker, in the course of a telephone conversation, encourages a trustee to invest trust money in breach of trust, the broker will only have encouraged the trustee if the latter actually hears the encouragement. If the telephone line ‘cut off’ before the encouragement was communicated to the trustee, the broker will not be liable as an accessory: accessory liability is not inchoate.90 Moreover, if the broker encouraged the trustee to appoint money to persons outside the scope of the trustee’s powers, but the trustee instead made an unrelated, unauthorised investment in land, the broker will not be liable as an accessory because the primary breach of trust that occurred was not encouraged by the broker. This suggests that some element of causation is required for encouragement; indeed, the potential requirement that the acts of the accessory be substantial and surpass a de minimis threshold seems to be equally relevant to encouragement as to assistance, and the Restatement makes no distinction between the two.91 It is also apparent that establishing actual encouragement may meet significant obstacles of proof: it may often be argued that the primary wrongdoer simply ignored the encouragement, for example, and that the encouragement was irrelevant and had no causal effect. It therefore seems appropriate to employ a strong presumption that if the encouragement was communicated to the primary wrongdoer, and a reasonable person in the latter’s position would have been encouraged by it, then encouragement can be established.92 84   Cooper has questioned whether ‘encouragement’ has any independent value: acts of encouragement may be adequately covered by a broad approach to both inducement/procurement and assistance: Cooper, Secondary Liability for Civil Wrongs, above n 15 at 10. 85   P Sales, ‘The Tort of Conspiracy and Civil Secondary Liability’ (1990) 49 CLJ 491, 507. 86  eg Law Commission, Inchoate Liability for Assisting and Encouraging Crime, above n 5; Law Commission, Participating in Crime, above n 54. 87   eg American Law Institute, Restatement (Second) of the Law of Torts, above n 78 at para 876. 88   For an example of assistance without encouragement, see State v Tally 15 So 722 (1894, Ala) and above n 71. 89   R v Coney (1882) 8 QBD 534; R v Clarkson [1971] 1 WLR 1402 (C-MAC). cf R v Calhaem [1985] QB 808 (CA). 90   For a recent statutory intervention to introduce inchoate liability for encouragement in the criminal sphere, see Serious Crime Act 2007, pt 2. This does not affect either the common law of accessory liability, or the private law of obligations. 91   American Law Institute, Restatement (Second) of the Law of Torts, above n 78 at para 876. See too Halberstam v Welch 705 F 2d 472 (1983, Col). 92   R v Stringer [2011] EWCA Crim 1396, [2011] 3 WLR 1243 [50] (Toulson LJ). See too K Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford, Clarendon Press, 1991) 85–88. Such a presumption could be rebutted by showing that the primary wrongdoer rejected or ignored the encouragement.

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Two further points should be highlighted at this stage. First, encouragement is not satisfied by mere omission nor passive presence at the scene of a wrong. In R v Clarkson,93 two soldiers entered a room where other soldiers were raping a young woman. The two soldiers remained in the room and watched the offence, but did not do or say anything either to encourage or discourage the other soldiers. They were found liable as accessories to the rape at a court-martial, but the Court of Appeal quashed their convictions, because the Judge-Advocate had not made it clear that the defendants not only needed to intend to encourage the primary offence, but also needed in fact to encourage the rape. Megaw LJ insisted that mere presence does not by itself necessarily encourage any wrong; it might do so, but such encouragement would need to be proved.94 Secondly, the breadth of ‘encouragement’ is both wide and objectively defined. This has been emphasised by the recent decision of the Supreme Court in another criminal case, R v Gnango.95 Gnango and another man, known as ‘Bandana Man’, engaged in a gunfight in public. Neither hit the other, but during the course of the shooting, Bandana Man shot a passer-by and killed her. Gnango was charged as an accessory to the murder, and the Supreme Court held that he could be convicted since he had encouraged Bandana Man to shoot. Gnango’s firing at Banadana Man might, objectively, have been considered to ‘incite’ or ‘instigate’ a return of fire. But the decision in Gnango is very controversial.96 Objective encouragement alone is insufficient for accessory liability. The defendant must also intend to encourage the primary offence: it is difficult to describe a person as intentionally encouraging a result which he or she did not at all want to occur.97 One final term seems appropriate now to consider at the end of this discussion of ‘encouragement’, and that is the potential conduct element of ‘authorisation’.98 This conduct element is widely accepted in the tortious context in particular.99 In the leading case of CBS Songs v Amstrad Consumer Electronics plc,100 Lord Templeman cited with approval the following observation of Whitford J in CBS Inc v Ames Records and Tapes Ltd:101 Any ordinary person would, I think, assume that an authorisation can only come from somebody having or purporting to have authority and that an act is not authorised by somebody who merely enables or possibly assists or even encourages another to do that act, but does not purport to have any authority which he can grant to justify the doing of the act.   R v Clarkson [1971] 1 WLR 1402 (C-MAC).   ibid 1407–1408. See too R v Gnango [2011] UKSC 59, [2012] 1 AC 827, [116] (Lord Kerr). 95   R v Gnango [2011] UKSC 59, [2012] 1 AC 827. 96   See ch 3.I.A. 97   R Buxton, ‘Being an Accessory to One’s Own Murder’ [2012] Criminal Law Review 275, 277. 98   This should be distinguished from vicarious liability: see section V.C below. 99   See Carty, ‘Joint Tortfeasance and Assistance Liability’, above n 29; G Williams, Joint Torts and Contributory Negligence (London, Stevens & Sons, 1951) §4. 100   CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1054. 101   CBS Inc v Ames Records and Tapes Ltd [1982] Ch 91, 106. The dispute was in the context of intellectual property rights, but there seems no reason to restrict these comments to that context. 93 94



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The crucial feature of authorisation, therefore, is that it derives from a person having, or purporting to have, authority over the ‘primary’ wrongdoer.102 But in authorising something, a party will often be encouraging its commission. Authorisation might also overlap with both inducement and assistance. For example, authorising an act which the primary wrongdoer had not previously contemplated closely resembles inducement. And if a defendant’s authorisation is provided by making available the means by which the primary wrongdoer commits a wrong, this might legitimately be described as assistance.

iii. Counsel The Oxford English Dictionary defines ‘counsel’ as ‘to give or offer counsel or advice to (a person); to advise’. If ‘counsel’ has a meaning distinct from that of ‘aid’, ‘abet’ and ‘procure’, it must be found in the concept of ‘advice’. This is a difficult concept. Significantly, a difference might be drawn between advising a person to do something and advising that person about the situation at hand. As Hart and Honoré have explained:103 Mere advice differs from inducement in that the role of the first person is primarily that of drawing the attention of the second to reasons for or against doing some action. This is to advise another upon or about some contemplated action. . . . To advise another to do an action, of course, goes beyond this discussion of the pros and cons. In saying ‘I advise you to do this’ the speaker personally commends the action, and his doing this may of itself render it eligible in the eyes of someone who trusts or respects him. Hence, if the advice is taken, the mere giving of the advice may be the second person’s reason for acting; in other cases the merits of the action which have emerged in the course of the discussion may also have weighed with him in deciding to do it.

Hart and Honoré suggest that where the defendant simply provides information about a fact, it is that fact which might lead to the primary wrong rather than the advice itself. As a result, the advice given is not an inducement to commit a wrong. But where a solicitor advises a client to breach his or her contract, for example, this may be tantamount to encouragement or inducement: the advice given may create a reason for the primary wrongdoer’s committing the primary breach of contract.104 It is admittedly tricky to draw sharp boundaries in this area. In Lumley v Gye, Coleridge J, dissenting, warned:105 To draw a line between advice, persuasion, enticement and procurement is practically impossible in a court of justice; who shall say how much of a free agent’s resolution 102   Absent such authority, the conduct of the accessory is preferably described as encouragement or inducement. 103   Hart and Honoré, Causation in the Law, above n 72 at 54–55. 104  ‘Advice which is intended to have persuasive effects is not distinguishable from inducement’: Camden Nominees Ltd v Forcey [1940] Ch 352, 366 (Simonds J). 105   (1853) 2 E & B 216, 252. See too Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 (CA), 147 (Winn LJ).

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Fundamentals flows from the interference of other minds, or the independent resolution of his own? This is a matter for the casuist rather than the jurist; still less is it for the juryman.

Indeed, given the difficulties inherent in distinguishing between the various ways in which a person could participate in a primary wrong, it might be argued that all acts of advice should be included within the possible modes of participation for accessory liability. Such an approach would require defendants who provide advice in good faith, generally in the performance of a legal duty and pursuant to a request, to be able to avail themselves of a defence of justification.106 Thus a doctor who, in order to protect a patient’s health, advises a patient to stop working and consequently breach a contract, should have a defence of justification. This approach might be supported on the basis that a stringent requirement of culpability, coupled with justificatory defences, should be sufficiently robust to bear the strain that would be placed upon it to determine whether or not the advice given should lead to accessory liability. However, it is unclear whether it is satisfactory for those who provide ‘neutral’ advice about a situation to have to justify their actions. In Lewis v Yeeles,107 it was argued that a solicitor should be accessorially liable for a breach of contract committed by the client he was advising. Although the Court of Appeal allowed the claim on the facts, Mummery LJ emphasised that this was only because what the solicitor did ‘went beyond the allowable area of arranging for advice to be given about the contract and entered the prohibited pastures of persuasion and procurement’.108 The implication seems to be that the ‘mere’ arranging for advice to be given is insufficient participation in the primary wrong. Importantly, this limit does not simply turn upon the culpability of the defendant. Thus in Camellia Tanker Ltd SA v International Transport Workers’ Federation, the defendant union official’s hope that a breach of contract would occur did not mean that his neutral provision of information to the contracting party could ground a claim for accessory liability.109 However, such a defendant may still be liable if he communicates his motive to the primary wrongdoer: this may then represent encouragement or inducement. This accords with Hart and Honoré’s suggestion that the advice should be ‘disinterested’,110 since the advice proffered ought not to communicate the motive of the communicator. One issue which sometimes poses problems under the heading of ‘counsel’ concerns communications from the purported accessory which take the form of threats.111 Threats can readily constitute inducement. For example, in Greig v 106   cf American Law Institute, Restatement (Second) of the Law of Torts, above n 78 at para 772. See D Heydon, ‘Justification in Intentional Economic Loss’ (1970) 20 University of Toronto Law Journal 139, 168; Bagshaw, ‘Inducing Breach of Contract’, above n 31 at 144. 107   Lewis v Yeeles [2010] EWCA Civ 326. 108   ibid [24]. 109   Camellia Tanker Ltd SA v International Transport Workers’ Federation [1976] ICR 274 (CA), 296 (Megaw LJ). 110   Hart and Honoré, Causation in the Law, above n 72 at 190. 111  Cooper, Secondary Liability for Civil Wrongs, above n 15 at 87–88.



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Insole 112 it was held that a threat to ban players from test and county cricket if they played in Kerry Packer’s ‘World Series Cricket’ was an inducement for those players to breach the contracts they had entered into to play World Series Cricket. This is because the threats provided a reason for the players to commit the primary wrong of breach of contract. However, where the threat concerns conduct not by the defendant but by an independent third party, the threat more closely resembles advice: the defendant points out a reason for the primary wrong which exists – the likely conduct of the third party – and does not urge any particular course of conduct. Thus in Middlebrook Mushrooms Ltd v Transport and General Workers’ Union, Hoffmann LJ said:113 It is more usual . . . for the contracting party to be told expressly or impliedly that some action will [be] taken if or unless he breaks the contract. In such a case, it is the occurrence or apprehension of that action which causes the contract to be broken, not the communication. To decide whether the inducement was direct or indirect, one therefore has to ask whether the actual or apprehended action was on the part of the defendants or persons for whom they were in law responsible.

So, if a union official advises employees that they should breach their employment contracts, this might lead to accessory liability. But if the official merely advised an employer of a threat that if the employer did not breach his contract with a particular claimant, then a group of employees would take industrial action, this seems more likely to constitute ‘neutral’ advice; the official’s participation in any consequent breach of contract by the employer appears insufficient for accessory liability.114

iv. Procure The Oxford English Dictionary defines ‘procure’ as ‘to contrive or devise with care (an action or proceeding); to try to bring about, esp. to bring (usually something harmful) upon a person’, or ‘to prevail upon, induce, persuade, get (a person) to do something’.115 This suggests that ‘procure’ and ‘induce’ are closely related. The Oxford English Dictionary defines ‘induce’ as follows: ‘to lead (a person), by persuasion or some influence or motive that acts upon the will, to . . . some action, condition, belief, etc.; to lead on, move, influence, prevail upon (any one) to do something’.116 The meanings of ‘procure’ and ‘induce’ are very similar. Indeed, the two terms generally appear to be interchangeable. In Lumley v Gye, the judges seemed to consider the inducement of a breach of contract and the procurement of a breach

  Greig v Insole [1978] 1 WLR 302 (Ch D).   Middlebrook Mushrooms Ltd v Transport and General Workers’ Union [1993] ICR 612, 626. For the distinction between ‘direct’ and ‘indirect’ in this context, see ch 5.IV.A.ii. 114   See eg DC Thomson & Co Ld v Deakin [1952] Ch 646 (CA), 685–686 (Evershed MR). 115   Oxford English Dictionary, above n 66. 116  ibid. 112 113

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of contract to be the same thing.117 The same use of language appeared in the House of Lords’ decision in OBG Ltd v Allan118 over one hundred years later. In the tortious context, Lord Templeman said in CBS Songs v Amstrad Consumer Electronics plc that ‘procurement’ means ‘inducement, incitement or persuasion’.119 However, a distinction is sometimes drawn between ‘procure’ and ‘induce’. For example, Kadish has written that: ‘Induce means to persuade, but may suggest influence beyond persuasion. Procure seems to go further, suggesting bringing something about in the sense of producing a result’.120 But ‘inducement’ can also produce a result, and is often used in the sense Kadish intended for ‘procurement’. Finn has similarly sought to differentiate inducement and procurement, arguing that inducement concerns ‘pressure or insistence or steps taken which commit the fiduciary’ to the primary breach, whereas procurement involves ‘a course of action calculated to, or likely to, lead a fiduciary to act improperly’.121 It is unclear how tangible the distinction between these two terms really is. The courts appear to use the two terms synonymously, and so will this book. ‘Inducement’ tends to influence and operate through the mind of the primary wrongdoer.122 Hart and Honoré have suggested that an inducement can ‘make a given course of action more eligible or desirable in the eyes of the other than it would otherwise have been, or seem more eligible or desirable than it really is’.123 To this it might be added that an inducement tends to give another person an idea he or she would not otherwise have had. If the primary wrongdoer had already resolved to commit the primary wrong before the participation of the defendant, then the defendant’s actions may constitute encouragement or assistance, but not inducement. The inducement should bring about the primary wrong, but it is not necessary for the primary wrongdoer to realise that the consequence of his or her actions is the violation of a claimant’s rights. For instance, a dishonest solicitor might persuade a trustee to appoint property to a third party in breach of trust. If the persuasion operated on the decision of the trustee to act in such a manner, the solicitor could be liable as an accessory to the breach of trust; that the trustee may not have realised that his or her actions constituted a breach of trust should be irrelevant: it is sufficient that the persuasion gave the trustee a reason to act as he or she did. 117   (1853) 2 E & B 216. Bagshaw has called ‘procure’ the ‘legal synonym’ of ‘induce’: ‘Inducing Breach of Contract’, above n 31 at 141. 118   [2007] UKHL 21, [2008] 1 AC 1. 119   [1988] AC 1013 (HL), 1058. 120   SH Kadish, ‘Complicity, Cause and Blame: A Study in the Interpretation of Doctrine’ (1985) 73 California Law Review 323, 343. Similarly, in Attorney-General’s Reference (No 1 of 1975), Lord Widgery CJ thought that ‘procure’ means ‘to produce by endeavour’: [1975] QB 773 (CA), 779. 121   P Finn, ‘The Liability of Third Parties for Knowing Receipt or Assistance’ in D Waters (ed), Equity, Fiduciaries and Trusts (Toronto, Carswell, 1993) 212. 122   Hart and Honoré, Causation in the Law, above n 72 at 53. See similarly Cooper, Secondary Liability for Civil Wrongs, above n 15 at 10. 123   Hart and Honoré, Causation in the Law, above n 72 at 187–188.



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If the defendant prevents another from carrying out his or her duties, the better view is that this is not tantamount to inducement since the primary wrongdoer will not have made a decision to carry out the acts which constitute the primary wrong. The nature of the defendant’s wrong seems to be different.124 The appropriate claim would be for intentionally causing loss by unlawful means; it is important to note that this form of liability is not parasitic upon the wrong committed by another. Separating this free-standing claim for inflicting loss by unlawful means from the accessorial claim for inducement removes some of the previous confusion that plagued the contract cases in particular.125 Another source of difficulty concerns the once-drawn distinction between ‘direct’ and ‘indirect’ inducement.126 ‘Indirect’ inducement covered not only acts of prevention by the defendant, but also situations in which the defendant cornered the market in a particular type of product by purchasing all the available products in the market, leaving a third party unable to fulfil a contract to sell that product to the claimant.127 Such a defendant has consistently been thought to fall beyond the scope of accessory liability. This might be explained on the basis that the acts are too ‘indirect’, or perhaps ‘remote’, but the ‘direct’/‘indirect’ distinction does not seem to survive OBG Ltd v Allan.128 A better explanation may be that there is no inducement because the defendant does not act through the mind of the primary wrongdoer, and does not participate in a decision of the primary wrongdoer to breach a contract. The defendant’s conduct should only be sanctioned if he or she employed unlawful means to inflict loss upon the claimant.

B. Causation For all the conduct elements outlined above, it seems that there must be some link between the act of the accessory and the violation of the claimant’s rights through the primary wrong. After all, if there is no such link, then there is no reason why the accessory should bear any responsibility for the primary wrong and claimant’s loss. But the question of whether ‘causation’ is required is controversial in every area of accessory liability.129 The argument that a causal link is necessary for accessory liability has a long and distinguished pedigree. For example, in 1877, Stephen wrote that ‘[a]n accessory before the fact is one who directly or indirectly counsels, procures, or   See eg Stevens, Torts and Rights, above n 15 at 280–281 (discussing the contractual context).   See ch 5.I.B. 126   See ch 5.IV.A.ii. 127   DC Thomson & Co Ld v Deakin [1952] Ch 646 (CA), 680 (Evershed MR); Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 (CA), 138 (Lord Denning MR). 128   [2007] UKHL 21, [2008] 1 AC 1, [34]–[38] (Lord Hoffmann) and [186] (Lord Nicholls). 129   Dietrich has written that ‘A’s conduct does not need to cause P’s loss: it is the link between A’s conduct and PW’s wrong (that caused P’s loss) which justifies making A liable’ whilst recognising that this is an ‘unusual conclusion’: ‘The Liability of Accessories’, above n 7 at 138. 124 125

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commands any person to commit any felony . . . which is committed in consequence of such counselling, procuring or commandment’.130 It is important to emphasise that a defendant will only be liable as an accessory if the primary wrong is actually committed: accessory liability at common law is not inchoate.131 This requirement that the wrong actually be committed seems to ground liability in the harm and suggest that a causal link is required. As Keith Smith has written:132 It has always been implied in the concept of complicity that an accessory’s involvement . . . did make some difference to the outcome, and, as a consequence of this, accessories have been implicitly linked to the harm element in the principal offence. No other plausible explanation exists for complicity’s tenacious, fundamental requirement of the commission of the principal offence.

Demanding that the primary wrong occur establishes that the act of the accessory alone is insufficient for liability, regardless of the accessory’s culpability. The accessory’s act must be linked with the harm that occurs. As Gardner has persuasively argued, the only link that can lead to accessory liability is a causal link.133 Of course, the causal force of the accessory differs from that of the primary wrongdoer, but the actions of the former should have some impact upon at least the timing or way in which the primary wrong is carried out if accessory liability is to be established. There is further doctrinal support for a requirement of causation. For example, in Attorney-General’s Reference (No 1 of 1975), Lord Widgery CJ said ‘[y]ou cannot procure an offence unless there is a causal link between what you do and the commission of the offence’.134 Some criminal cases continue to refer to a condition that the accessory cause the primary offence, or at least that there be a ‘connecting link’ between what the accessory did and the primary offence.135 In R v Mendez, Toulson LJ said that:136 secondary liability is founded on a principle of causation, that a defendant . . . is liable for an offence committed by a principal actor . . . if by his conduct he has caused or 130  Stephen, A Digest of the Criminal Law, above n 61 at 33 (Article 39, emphasis added). See too M Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry; And of Other Crown Cases: to which are Added Discourses Upon a Few Branches of the Crown Law, 3rd edn (London, Clarke and Sons, 1792) 369. 131   Although inchoate liability for assisting or encouraging is now possible as a result of statute: Serious Crime Act 2007, pt 2. 132   KJM Smith, ‘The Law Commission Consultation Paper on Complicity: Part 1: A Blueprint for Rationalism’ [1994] Criminal Law Review 239, 244; cited by Law Commission, Inchoate Liability for Assisting and Encouraging Crime, above n 5 at para 2.19. See further K Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford, Clarendon Press, 1991) ch 3. Compare Carty, ‘Joint Tortfeasance and Assistance Liability’, above n 29 at 502. 133   J Gardner, ‘Complicity and Causality’ (2007) Criminal Law and Philosophy 127, reprinted in J Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford, Oxford University Press, 2007) ch 3. 134   [1975] QB 773 (CA), 780. 135   See eg R v Stringer [2011] EWCA Crim 1396, [2012] QB 160, [48] (Toulson LJ). Admittedly, the cases are not entirely consistent on this point: for further consideration of the criminal law, see ch 3.III. 136  eg R v Mendez [2010] EWCA Crim 516, [2011] QB 876, [18].



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materially contributed to the commission of the offence (with the requisite mental element); and a person who knowingly assists or encourages another to commit an offence is taken to have contributed to its commission.

Causal language has also been explicitly adopted in the civil law. In OBG Ltd v Allan, Lord Hoffmann assessed accessory liability in the contractual context and stated that ‘the real question which has to be asked [is]: did the defendant’s acts of encouragement, threat, persuasion and so forth have a sufficient causal connection with the breach by the contracting party to attract accessory liability?’137 Similarly, in Brown v Bennett, Morritt LJ considered the requirements for accessory liability in equity and said that ‘if there is no causative effect and therefore no assistance given by the person . . . on whom is sought to establish the liability as [an accessory], for my part I cannot see that the requirements of conscience require any remedy at all.’138 Weight has therefore been placed upon a requirement of causation in both the criminal and private law domains. Given their common origins, this is unsurprising. The concern here is ‘factual causation’: it needs to be ascertained whether the actions of the accessory contributed to the primary wrong as a matter of fact. Such logic operates in a similar manner across the criminal/civil law divide, but does not purport to answer the subsequent, normative question about whether the imposition of liability is appropriate. Distinguishing between factual and normative matters139 further helps to demarcate actions from culpability. Attention should first be focussed upon what the defendant actually does, without complicating that inquiry by amalgamating the question of whether liability should be imposed. It follows that Lord Clarke was right to observe in R v Gnango that ‘the principles seem to me to be much the same’ regarding causation in both crime and tort.140

i.  Novus Actus Interveniens The major obstacle to a causal analysis is the intermediate act of the primary wrongdoer: as an independent, voluntary, autonomous party, the primary wrongdoer is often considered to be a ‘novus actus interveniens’141 and therefore to ‘break’ any ‘chain of causation’142 between what the accessory does and the loss the claimant suffers. The concept of ‘novus actus’ has a moral core: an independent person acts for a variety of reasons, and it might be considered to be an affront to the primary wrongdoer’s dignity to decide that he or she was caused to act by   [2007] UKHL 21, [2008] 1 AC 1, [36].   Brown v Bennett [1999] BCC 525 (CA), 533. See too S Elliott and C Mitchell, ‘Remedies for Dishonest Assistance’ (2004) 67 MLR 16, 17–20. 139   See eg J Stapleton, ‘Cause-in-Fact and the Scope of Liability for Consequences’ (2003) 119 LQR 388. 140   [2011] UKSC 59, [2012] 1 AC 827, [90]. 141   Literally translated as ‘new intervening act’. 142   For criticism of these terms, see J Stapleton, ‘Unpacking “Causation”’ in P Cane and J Gardner (eds), Relating to Responsibility (Oxford, Hart Publishing, 2001). 137 138

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the actions of another.143 Such reasoning was apparent in the criminal case of R v Kennedy.144 The defendant prepared a dose of heroin for his friend, and gave him a syringe ready for injection. The friend injected himself and consequently died. The defendant was accused of manslaughter. The House of Lords, overturning the decision of the courts below, insisted that the voluntary, informed act of the friend in injecting himself with heroin was a novus actus for which the defendant could not be responsible. Lord Bingham cited with approval the following passage from Causation in the Law:145 The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.

Similar concerns are sometimes raised in the private law. For example, in CBS Songs Ltd v Amstrad Consumer Electronics plc,146 the defendants manufactured hi-fi systems which facilitated the recording of cassettes in violation of the claimants’ copyright. One reason why the House of Lords rejected the possibility of accessory liability was the issue of causation.147 Lord Templeman said:148  But in the present case Amstrad do not procure infringement by offering for sale a machine which may be used for lawful or unlawful copying and they do not procure infringement by advertising the attractions of their machine to any purchaser who may decide to copy unlawfully. Amstrad are not concerned to procure and cannot procure unlawful copying. The purchaser will not make unlawful copies because he has been induced or incited or persuaded to do so by Amstrad. The purchaser will make unlawful copies for his own use because he chooses to do so. Amstrad’s advertisements may persuade the purchaser to buy an Amstrad machine but will not influence the purchaser’s later decision to infringe copyright.

Lord Templeman elsewhere observed that ‘the operator of an Amstrad tape recording facility, like all other operators, can alone decide whether to record or play and what material is to be recorded’.149 However, some caution should be exercised before concluding that such statements preclude a causal analysis of accessory liability.150 It is important to note 143   See eg I Kant, ‘On a Supposed Right to Lie from Altruistic Motives’ in his Critique of Practical Reason and Other Writings in Moral Philosophy (L Beck tr, Chicago, University of Chicago Press, 1949). The same considerations do not apply where the ‘primary wrongdoer’ is not a voluntary, autonomous actor: see section V.B below. 144   R v Kennedy [2007] UKHL 38, [2008] 1 AC 269. 145   ibid [14], quoting Hart and T Honoré, Causation in the Law, above n 72 at 326, as quoted by G Williams, ‘Finis for Novus Actus?’ (1989) 48 CLJ 391, 392. 146   [1988] AC 1013 (HL). 147   For further discussion of the case, see ch 6.III.D.i. 148   [1988] AC 1013 (HL), 1058. 149   ibid 1053 (emphasis added). 150   cf Kadish, ‘Complicity, Cause and Blame’, above n 120 at 405, who influentially relied upon the concept of novus actus to argue that the ‘reason why complicity emerges as a separate ground of liability is that causation doctrine cannot generally deal satisfactorily with results that take the form of another person’s voluntary action.’ See too eg M Moore, Causation and Responsibility (Oxford, Oxford University Press, 2009) pt IV, especially ch 13.



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that the novus actus principle is often invoked as regards acts of assistance or encouragement, but not inducement or procurement.151 Yet even in the context of inducement, the primary wrongdoer, as an autonomous, voluntary party, will decide to commit the primary wrong.152 It might appear more consistent if the novus actus principle were to apply either to both inducement and assistance, or to neither. The latter option seems preferable.153 Moreover, neither Kennedy nor CBS should be taken to have provided the final word on this matter. Indeed, in Kennedy itself, Lord Bingham expressly recognised that ‘causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises’.154 In the criminal law, cases concerning accessory liability do still refer to a causal element.155 In R v Gnango, Lord Clarke said:156 I refer only to the well known judgment of Lord Wright in the Court of Appeal in The Oropesa [1943] P 32. After noting at p 37 that human action does not itself sever the chain of causation and referring to a number of the cases, Lord Wright said, at p 39: ‘To break the chain of causation it must be shown that there is something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic. I doubt whether the law can be stated more precisely than that.’

Clearly, such an approach recognises that the acts of the primary wrongdoer will not inevitably break a chain of causation. There are many instances in the private law where the voluntary acts of an autonomous primary wrongdoer have not prevented a third party’s bearing responsibility for the claimant’s loss. For example, in Reeves v Commissioner of the Metropolis,157 a deliberate decision to commit suicide did not break the chain of causation that linked the defendant’s negligence and the death. A similar conclusion was reached in Corr v IBC Vehicles Ltd,158 where Lord Bingham found that ‘the rationale of the principle that a novus actus interveniens 151   See eg JC Smith, ‘Aid, Abet, Counsel or Procure’ in PR Glazebrook (ed), Reshaping the Criminal Law (London, Stevens & Sons, 1978) 134. 152   R Taylor, ‘Procuring, Causation, Innocent Agency and the Law Commission’ [2008] Criminal Law Review 32, 45. 153   Hart and Honoré have written that ‘the provision of a means which is in fact used by another to carry out his plan, like the provision of an opportunity which is in fact exploited by another, may in a broad sense be said to give rise to a causal relationship’: Hart and Honoré, Causation in the Law, above n 72 at 388. 154   [2007] UKHL 38, [2008] 1 AC 269, [15]. It is notable that the novus actus principle is not invariably applied in the criminal law; eg in Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 (HL) the defendant company was held to have polluted a river even though it was clear that an unknown third party had released the pollutant into the river – presumably a voluntary, informed act. 155  eg R v Mendez [2010] EWCA Crim 516, [2011] QB 876 and R v Stringer [2011] EWCA Crim 1396, [2012] QB 160. See too GR Sullivan, ‘First Degree Murder and Complicity – Conditions for Parity of Culpability between Principal and Accomplice’ (2007) 1 Criminal Law and Philosophy 271, 277. 156   [2011] UKSC 59, [2012] 1 AC 827, [90]. 157   Reeves v Commissioner of the Metropolis [2000] 1 AC 360. 158   Corr v IBC Vehicles Ltd [2008] UKHL 13, [2008] 1 AC 884.

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breaks the chain of causation is fairness’;159 his Lordship thought it would be unfair for the novus actus principle to operate where the defendant’s gross breach of duty had clearly had some impact upon the decision of another to commit suicide. This might be contrasted with the same judge’s comments in Kennedy. In some circumstances there is clearly a willingness to look beyond the novus actus principle.160 It is suggested that there is no reason why the acts of the primary wrongdoer should necessarily rule out a causal basis for accessory liability; the application of the novus actus principle is neither uniform nor invariably endorsed. However, the fact that a causal analysis is not precluded does not establish what test of causation is appropriate. This needs to be considered next.

ii.  The Test of Causation The most common test of causation is the ‘but for’ test: a defendant will only be liable if the claimant’s loss would not have occurred ‘but for’ the defendant’s actions. This test is sometimes employed in the context of accessory liability. In JD Wetherspoon plc v Van de Berg & Co Ltd, Peter Smith J, discussing accessory liability in equity, recognised that ‘in most cases the breach can only occur as a result of the activities of the assistor’.161 If someone wishes to shoot another, and the only person who can supply a gun is the defendant, then the assistance of the defendant in the tort of battery is clearly of the utmost importance to the tort’s being committed. However, the ‘but for’ test generally appears somewhat weak in the context of accessory liability, especially where the primary wrongdoer had already resolved to commit the primary wrong, and that wrong would somehow have happened in any event.162 If the ‘but for’ test is to operate in this area, it might emphasise that, without the relevant assistance, encouragement or inducement, the primary wrong would not have been carried out at the time that it was, or in the manner that it was.163 This diluted ‘but for’ test may not be best suited to instances of accessory liability. Other alternatives might be considered. For example, an analogy could be made with the test of causation in instances of misrepresentation, which merely demands that the defendant’s misrepresentation played some role in the claimant’s entering into the contract; the misrepresentation need not be the sole or dominant cause.164 In the context of accessory liability, this accords with a test of   ibid [15].   See too eg Gray v Thames Trains Ltd [2009] UKHL 33, [2009] AC 1339; Baker v Willoughby [1969] 3 All ER 1528. 161   JD Wetherspoon plc v Van de Berg & Co Ltd [2009] EWHC 639 (Ch), [518]. 162   Kadish, “Complicity, Cause and Blame’, above n 120 at 357–361; J Dietrich, ‘Accessorial Liability in the Law of Torts’ (2011) 31 Legal Studies 231, 242–243. However, this may be difficult to judge after the event: ‘Virtually every study on judging in hindsight has concluded that events seem more predictable than they actually are’: J Rachlinski, ‘A Positive Psychological Theory of Judging in Hindsight’ (1998) 65 University of Chicago Law Review 571, 580. 163   See generally Smith, A Modern Treatise on the Law of Criminal Complicity, above n 132 at ch 3. See also Gardner, Offences and Defences, above n 133 at ch 3. 164   Edgington v Fitzmaurice (1885) 29 Ch D 459 (CA). 159 160



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‘material contribution’,165 and may require some assessment of the ‘causal potency’ of the defendant’s acts.166 A further possibility is the ‘NESS’ test of causation, which provides that something should be considered to be a cause if it is a ‘Necessary Element of a Set of conditions jointly Sufficient for the result’.167 For instance, if a person stabs another, then the necessary elements in a sufficient set of conditions for the battery include the fact that the primary wrongdoer obtain a knife. So, if another person gave a knife to the primary wrongdoer, that act of assistance would represent a necessary element in a sufficient set of conditions for the primary tort of battery, and thus a cause of the stabbing. It is important to note that trivial acts are unlikely to constitute causes; if the defendant had given the primary wrongdoer a sweet on his or her way out of the door instead of the knife, then no causal link would arise: the sweet was not necessary for the sufficiency of the set of conditions sufficient for the stabbing. The set would have been just as sufficient had the sweet not been given. However, the principal difficulty with the NESS test lies in determining what set of conditions are sufficient, and which elements within that set are necessary.

iii.  Substantial Cause Regardless of the test of causation favoured, it might be thought desirable to insist that the acts of the defendant play more than a minimal role in the infringement of the claimant’s rights. Concerns about excessive ‘defendant-shopping’ and the need for defendants to be able to have wide freedom of action without fear of liability suggest that only acts which are a substantial cause of the claimant’s loss should ground accessory liability. This might be why, in OBG, Lord Hoffmann demanded a ‘sufficient causal connection’,168 and may further explain the insistence of Peter Gibson J in Baden v Société Générale that any assistance ‘must not be of minimal importance’.169  In deciding whether or not the assistance rendered is substantial, the American Restatement highlights five factors as being relevant: ‘the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other [tortfeasor] and his state of mind.’170 These considerations were approved by the United States Court of Appeals, 165   See above, eg R v Mendez [2010] EWCA Crim 516, [2011] QB 876; S Steel, ‘Causation in Tort Law and Criminal Law: Unity or Divergence?’ in M Dyson (ed), Unravelling Tort and Crime (Cambridge, Cambridge University Press, 2014). 166   R Bagshaw, ‘Causing the Behaviour of Others and Other Causal Mixtures’ in R Goldberg (ed), Perspectives on Causation (Oxford, Hart Publishing, 2011). 167   See eg R Wright, ‘Causation in Tort Law’ (1985) 73 California Law Review 1735. For consideration of this type of test in the criminal sphere, see Sullivan, ‘First Degree Murder and Complicity’, above n 155 at 277–279. 168   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [36] (emphasis added). 169   Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509n, 574. 170   American Law Institute, Restatement (Second) of the Law of Torts, above n 78 at para 876 comment d. It is unclear why the defendant’s state of mind is relevant when deciding whether or not the assistance is substantial; the conduct and mental element should be considered separately.

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District of Columbia Circuit in Halberstam v Welch, which added a further element: the duration of the assistance provided.171 In Coventry v Lawrence (No 2),172 Lord Carnwath referred to the Restatement 173 when assessing whether a defendant ‘participates to a substantial extent’ in another’s nuisance. However, a de minimis requirement might be criticised on the basis that if the defendant’s actions do actually assist the primary wrong, then liability should essentially turn upon the culpability of the assister.174 This was ultimately the conclusion of the Law Commission in the criminal context, which was wary of difficult distinctions being drawn between substantial and non-substantial acts of assistance.175 Nevertheless, there is some suggestion even in the criminal law that a de minimis requirement is recognised.176 For example, in R v Stringer, Toulson LJ said that177 [t]here may be cases where any assistance or encouragement provided by D is so distanced in time, place or circumstances from the conduct of P that it would be unjust to regard P’s act as done with D’s encouragement or assistance.

Prosecutions are rarely brought against a defendant whose contribution to the primary offence is minimal.178 Indeed, Glanville Williams thought that as ‘a matter of common sense a person who gives very minor assistance ought not to be held liable as an accessory’.179 It is possible that the criminal and civil law may differ regarding a requirement of substantiality: the criminal law might be more focussed upon punishing a person’s culpable intentions, even if his or her contribution to the primary offence was minimal. By contrast, the private law might be wary about making a person liable to compensate a victim of the primary wrong if that person has done very little to contribute to the infringement of the victim’s rights. 180 The danger of the claimant’s ‘defendant-shopping’ for an accessory with the means to provide ade-

  705 F 2d 472, 484 (1983) (Circuit Judge Wald).   Coventry v Lawrence (No 2) [2014] UKSC 46, [2014] 3 WLR 555, [58]. 173   American Law Institute, Restatement (Second) of the Law of Torts, above n 78 at paras 834 and 837; comment d to the former refers to para 876, considered above n 170. 174   See section III below. In Halberstam v Welch 705 F 2d 472 (1983) the Court laid much emphasis upon the state of mind of the defendant when assessing whether his assistance was substantial. 175   Law Commission, Participating in Crime, above n 54 at para 3.22. 176   Admittedly the authorities are not clear. eg in R v Giannetto [1997] 1 Cr App Rep 1, 13, the Court of Appeal did not criticise a judge who thought that a person could be found guilty as an accessory if all he did, upon being told by the principal of the principal’s plan to commit a crime, was to pat the principal on the back, nod and say ‘Oh, goody!’. It is suggested that such an approach is inappropriate: see ch 3.III. 177   [2011] EWCA Crim 1396, [2011] 3 WLR 1243, [52]. See too Halberstam v Welch 705 F 2d 472 (1983), 478 (Circuit Judge Wald). 178   Although compare eg Wilcox v Jeffery [1951] 1 All ER 464 (KBD); see ch 3.III. 179   G Williams, Criminal Law: The General Part (London, Stevens & Sons, 1953) 294. See too Smith, A Modern Treatise on the Law of Criminal Complicity, above n 132 at 86–88; M Moore, ‘Causing, Aiding, and the Superfluity of Accomplice Liability’ (2007) 156 University of Pennsylvania Law Review 395, 421. 180   See eg ch 6.VI.B. 171 172



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quate redress does not arise in the criminal sphere: prosecutions are brought by the state, and deciding whether or not a defendant should be charged as an accessory remains within the discretion of the prosecutor.181 By contrast, a court is powerless to prevent the bringing of a private law claim if all the elements necessary for the suit can be established by the claimant, so a de minimis threshold of participation may be particularly desirable. But it may nevertheless seem fundamentally unsatisfactory in every area of the law of accessories for a defendant to be held responsible for the infringement of a victim’s rights if the defendant had only a minimal impact upon the course of events. Overtly recognising a de minimis threshold would ensure that a person does not run the risk of accessory liability for negligibly contributing to a wrong committed by another, and in such instances difficult inquiries into the defendant’s culpability would not be necessary. So, for example, a defendant who works on the turnstiles at a sports stadium, thereby assisting the stadium owners to commit a nuisance through excessive noise, may not be subjected to a tricky assessment of his or her culpability, and may not have to fear any potential accessory liability, if the defendant’s contribution to the primary wrong committed were considered to be insufficiently substantial.

C.  Preliminary Conclusions: Causal Participation in a Primary Wrong It is suggested that the conduct elements sufficient for accessory liability should be limited to modes of participation which have a substantial causal impact upon the primary wrong and the infringement of the victim’s rights.182 This may be accommodated within either the statutory formulation of ‘aid, abet, counsel or procure’, or the more modern language of ‘assist, encourage or procure’. The latter will generally be preferred in this book, although other words may be used to communicate much the same effect. So ‘assistance’ might also be described as ‘aid’, ‘help’ or ‘facilitation’, whilst courts have been prepared to substitute ‘procure’ with one of the following terms: ‘command’, ‘induce’, ‘incite’, ‘instigate’, ‘invite’, ‘persuade’ and ‘solicit’. Some terms might straddle both assistance and inducement depending on the particular facts of a case; for example, ‘advice’ might assist, encourage or induce a primary wrong.

181   Admittedly, a claimant may then bring a private prosecution, but this is very rare. Moreover the CPS might be able to intervene to continue or discontinue such a prosecution: Prosecution of Offences Act 1985, s 6(2); R (on the application of Gujra) (FC) (Appellant) v Crown Prosecution Service [2012] UKSC 52, [2013] 1 AC 484. More fundamentally, relying upon prosecutorial discretion may seem unsatisfactory: J Dressler, ‘Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem’ (1986) 37 Hastings Law Journal 91, 119; see ch 3.III. 182   cf Dietrich, ‘Accessorial Liability in the Law of Torts’, above n 162 at 240: ‘involvement can be any conduct that increases the likelihood of the commission of the tort or wrong’.

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The conduct elements of accessory liability might be seen as existing on a spectrum of participatory conduct. As a result, the categories often cannot be easily separated. Sales has observed that:183 In many cases . . . the dividing line between inducing a third party to commit a wrong and assisting him in its commission is so fine as to be non-existent. Often the offering of assistance is itself an inducement to the third party to act wrongfully.

All forms of participation that create a link between the defendant and the infringement of the claimant’s right by contributing in a more than minimal way to the primary wrong should be sufficient for accessory liability. The corollary of this is that conduct which does not have a causal effect is insufficient for accessory liability: a requirement of causation can help to demarcate the boundaries of accessory liability. Thus ‘accessories after the fact’ have been described by Blackstone as having a ‘different species of guilt’184 since they bear responsibility only for the concealment, but not the commission, of the primary offence.185 This also explains why ratification should not be considered to be a conduct element of accessory liability; acts of ratification subsequent to the commission of the primary wrong do not contribute to the commission of that wrong and are preferably explained on principles of vicarious liability or agency rather than principles of accessory liability .186 However, accessory liability does not solely depend upon factual causation. The possible mental elements which might support accessory liability now need to be considered.

III.  Mental Element As Lord Nicholls observed in OBG, ‘causative participation is not enough’ for accessory liability.187 The conduct element must be complemented by an appropriate mental element. This section seeks to provide an outline of the possible mental elements which can be used consistently throughout the law of accessory liability; employing different definitions of the same term in different areas of the law is likely to lead to confusion.

183   Sales, ‘The Tort of Conspiracy and Civil Secondary Liability’, above n 85 at 507. Sales also wrote that ‘[t]he requisite element of causation in the case of both inducement of and assistance in the commission of a civil wrong is broadly similar’: 509, fn 62. See too C Harpum, ‘The Stranger as Constructive Trustee’ (1986) 102 LQR 114, 116. 184   W Blackstone, Commentaries on the Laws of England, 3rd edn, vol 3 (Oxford, Clarendon Press, 1768) 40. 185   See now Criminal Law Act 1967, s 4. 186   J Dietrich, ‘Accessorial Liability in the Law of Torts’ above n 162 at 248; cf R Stevens, Torts and Rights, above n 15 at ch 11. 187   [2007] UKHL 21, [2008] 1 AC 1, [191].



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It is important to note at the outset that the accessory’s mental element might conceivably relate to two different things:188 first, the conduct of the accessory him or herself, and, secondly, the effect of that conduct element. The former tends not to pose problems. Inadvertent conduct will not ground a claim against an accessory: the conduct of the accessory must have been deliberate and intentional.189 Difficulties tend to revolve around the latter element: what, if anything, must be in the accessory’s mind as regards the primary wrong? This section will focus on this important question. In any event, it is clear that strict liability is inappropriate for accessory liability. As Lord Nicholls trenchantly observed in Tan, ‘ordinary, everyday business would become impossible if third parties were to be held liable for unknowingly interfering in the due performance of . . . personal obligations’.190

A. Intention The core meaning of ‘intention’ suggests that a person acts with the purpose of achieving something. In Cunliffe v Goodman, Lord Asquith said: ‘[a]n “intention” to my mind connotes a state of affairs which the party “intending” . . . does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about’.191 The person acts because of his belief or desire that he can bring about a certain consequence. This consequence must be at the root of his decision to act, either as an end in itself or a means to an end. If the person merely foresees an outcome as resulting from his actions, he does not intend it in this ‘core’ sense.192 However, this concept of intention has proved to be very difficult in the criminal law, and ‘intention’ has expanded beyond its core definition to cover ‘oblique intention’:193 a person will be taken to have intended something if it was a virtually certain consequence of his or her actions. For example, a person might seek to blow up a commercial airplane during the course of its flight simply to collect the insurance money on the ’plane. Such a person might not care whether or not he harms anyone, but, if passengers are killed, the defendant will be guilty of murder, which requires intentional conduct, because the passengers’ death was a virtually 188  In Merkur Island Shipping Corpn v Laughton (The Hoegh Anapa) [1983] 2 AC 570 (HL), 608, Lord Diplock described the mental element for accessory liability in contract law as a ‘two-fold’ requirement. 189   In the criminal context see eg R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592, [61] (Potter LJ), citing with approval AP Simester and GR Sullivan, Simester and Sullivan’s Criminal Law: Theory and Doctrine (Oxford, Hart Publishing, 2000) 198. See similarly OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [39] (Lord Hoffmann), [191]–[192] (Lord Nicholls). 190   Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC), 387 (emphasis in original). 191   Cunliffe v Goodman [1950] 2 KB 237, 253. See too Bagshaw, ‘Inducing Breach of Contract’, above n 31 at 141. 192   See eg A Kenny, ‘Intention and Purpose in Law’ in R Summers (ed), Essays in Legal Philosophy (Oxford, Blackwell, 1968) 155. 193   See eg G Williams, ‘Oblique Intention’ (1987) 46 CLJ 417.

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certain consequence of the explosion. As Lord Hailsham put it when discussing a similar example, ‘their death will be a moral certainty’.194 In the context of accessory liability, care must be taken about whether ‘intention’ is to be used in its ‘core’ or ‘oblique’ sense. And need defendants ‘only’ intend that the primary wrong occur? Or must they further intend to harm the claimant?195 The latter is much the rarer; for example, the defendant might intend that the primary wrongdoer breach her contract with the claimant in order to work for the defendant, but that does not equate with the defendant’s acting with the purpose or desire of harming the claimant.196 Given the travails of ‘intention’ in the criminal law, and lack of clarity regarding the boundaries of what constitutes ‘virtual certainty’ or ‘moral certainty’ in the context of ‘oblique intention’,197 caution might be exercised before adopting ‘intention’ in the context of accessory liability in the private law. Indeed, ‘intention’ is not presently demanded for accessory liability in the criminal sphere.198 Cane has argued that in the private law there is a separate idea of ‘tortious intention’, which refers to a composite of intention and conscious recklessness.199 This reduces much of the pressure placed upon locating the precise boundary between intention and recklessness; this boundary is blurred by the concept of ‘oblique intention’ in the criminal law.200 If such a concept of ‘tortious intention’ were employed in the context of accessory liability, it would suggest that intention in its core sense is sufficient but not necessary, and that the minimum mental element required is conscious recklessness.

B. Knowledge Knowledge may be closely linked to intention. As Lord Nicholls has remarked in the contractual sphere, ‘[i]ntentional interference presupposes knowledge of the contract’.201 However, knowledge is a complicated concept which has two important facets. It must be established both what the defendant knows, and to what standard or degree the defendant knows it.202 These issues are sometimes conflated, but in principle should remain distinct.

194   Hyam v DPP [1975] AC 55 (HL), 74. See too R v Woollin [1999] 1 AC 82 (HL) and Finnis, ‘Intention in Law’, above n 12 at 238. 195   See eg S Deakin and J Randall, ‘Rethinking the Economic Torts’ (2009) 72 MLR 519. 196   See eg Lumley v Gye (1853) 2 E & B 216. 197   For a survey of this area, see AP Simester, JR Spencer, GR Sullivan and GJ Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine, 5th edn (Oxford, Hart Publishing, 2013) 126–140. 198   See ch 3.IV. 199   P Cane, ‘Mens Rea in Tort Law’ (2000) 20 OJLS 533. 200   However, as Cane also observes, generalisations in this area are difficult: ibid 552. 201   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [192]. 202   R Austin, ‘Constructive Trusts’ in PD Finn (ed), Essays in Equity (Sydney, Law Book Company, 1985) 235.



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i.  Content of Knowledge It is important to consider precisely what the accessory should know. The defendant must know that he or she is carrying out a relevant conduct element. But must the defendant also know that a consequence will be the commission of a primary wrong? In Johnson v Youden, Lord Goddard CJ insisted that ‘before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence’.203 The criminal law has found it difficult clearly to establish what these ‘essential matters’ are, but it seems that the defendant needs to know both that the principal will commit the acts which constitute the primary offence, and that the principal will do so with the mental element required for the offence.204 A similar approach can be found in the private law.205 However, it is important to note that the defendant need not know the precise nature of the relationship between the primary wrongdoer and claimant in order to incur liability as an accessory; as Lord Hoffmann explained in Barlow Clowes International Ltd v Eurotrust International Ltd,206 it seems ‘quite unreal’ to expect a detailed knowledge of the relationship between the primary wrongdoer and claimant, or its legal effects. A difficult question concerns the precision with which knowledge is demanded. This is particularly significant in the context of crimes and torts, since there are a plethora of possible wrongs that might be committed after a defendant’s assistance or encouragement. It is suggested that the defendant must know that his or her conduct will constitute causative participation in the type of primary wrong actually committed. For example, in R v Bainbridge,207 a defendant supplied oxygen-cutting equipment to a primary wrongdoer who used the equipment to break into a bank in Stoke Newington. The defendant argued that, although he realised that the primary wrongdoer would use the equipment for some illegal purpose (such as breaking up stolen goods), he did not know that the equipment would be used to break into a bank, let alone the Midland Bank at Stoke Newington. The Court of Criminal Appeal held that, if the evidence had supported the defendant’s contention, he would not have had the requisite mental element for accessory liability since he did not know of the type of primary offence committed. However, if the defendant had known that the primary wrongdoer   Johnson v Youden [1950] 1 KB 544 (HL), 546.   See ch 3.IV.B. 205  eg OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [39] (Lord Hoffmann). 206   Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37, [2006] 1 WLR 1476, [28]. Lord Hoffmann favoured the approach of Lord Millett in Twinsectra Ltd v Yardley, in which Lord Millett thought it sufficient that the defendant be aware that the subject-matter of the trust at issue in the case ‘is not at the free disposal of the principal’ ([2002] UKHL 12, [2002] 2 AC 164, [135]), but departed from the view expressed by Rimer J, that a defendant must know of the existence of the fiduciary relationship, or the facts giving rise to it, before he could be made liable as an accessory (Brinks Ltd v Abu-Saleh [1996] CLC 133 (Ch D), 151). See further ch 4.V.A. 207   R v Bainbridge [1960] 1 QB 129 (CCA). 203 204

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intended to break and enter in order to steal, the fact that the defendant did not know the target was a particular bank in a particular place could not spare him from liability. One further issue might be raised here: it is sometimes said that discussion of ‘knowledge’ is inappropriate when the object of such a mental element concerns events in the future, as a person cannot ‘know’ future facts.208 But this is not necessarily persuasive. If knowledge is understood to indicate a (correct) belief, acceptance or assumption of something without substantial doubt,209 then it does seem possible to know of events in the future; for example, I can know that there will be daylight tomorrow.210 Indeed, this has been recognised by statute; section 1(2) of the Criminal Law Act 1977 states that a defendant is not guilty unless ‘he and at least one other party to the agreement intend or know that that fact or circumstances shall or will exist at the time when the conduct constituting the offence is to take place’. The crucial issue is the level of conviction with which the defendant acted; if the defendant accepted or assumed the essential matters of the primary offence and acted with no substantial doubts then he or she can fairly be said to ‘know’ the essential elements of that offence.211

ii.  Standard of Knowledge ‘Knowledge’ has been used to cover a spectrum of mental elements, ranging from actual knowledge through to constructive and imputed knowledge. In Baden v Société Générale, Peter Gibson J influentially adopted counsel’s submission that:212 knowledge can comprise any one of five different mental states . . .:  (i) actual knowledge; (ii) wilfully shutting one’s eyes to the obvious; (iii) wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make; (iv) knowledge of circumstances which would indicate the facts to an honest and reasonable man; (v) knowledge of circumstances which would put an honest and reasonable man on inquiry. 208   The Law Commission once wrote: ‘In the strictest sense of the word one cannot “know” that something will be the case in the future’: Law Commission, A Criminal Code for England and Wales (Law Com No 177, 1989) pt 8, para 8.11; and in R v Bryce, Potter LJ expressed the concern that ‘it is inappropriate and unworkable to require knowledge of the essential matters constituting the offence in a situation where the offence is yet to be committed in the future or by a person of whose precise intentions the accused cannot be certain in advance’, citing P Murphy (ed), Blackstone’s Criminal Practice (Oxford, Oxford University Press, 2004) 75, but went on to say that ‘[i]t is thus sufficient for the accused to have knowledge of the type of crime in contemplation’: [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592, [49]. See too R v Saik [2006] UKHL 18, [2007] 1 AC 18, [20] (Lord Nicholls). 209   Simester, Spencer, Sullivan and Virgo, Simester and Sullivan’s Criminal Law, above n 197 at 148– 149. 210   S Shute, ‘Knowledge and Belief in the Criminal Law’ in S Shute and A Simester (eds), Criminal Law Theory: Doctrines of the General Part (Oxford, Oxford University Press, 2002) 187. 211   A Simester, ‘The Mental Element in Complicity’ (2006) 122 LQR 578, 587. 212   [1993] 1 WLR 509n (Ch D), 575–576.



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These five elements became known as the ‘Baden scale of knowledge’. This scale was formulated in the equitable context; even though it now appears to have been largely discarded by the English courts regarding accessory liability in equity,213 the different meanings of knowledge highlighted by the Baden scale are of more general significance. Only the first category on the Baden scale encompasses actual knowledge. All the other elements represent forms of constructive knowledge.214 However, it would be inappropriate to limit any fault element to the first category of knowledge on the Baden scale: a person would be able to escape liability simply by refusing to draw sensible inferences or ask obvious questions on the basis of information he or she does actually know. This explains the second category of knowledge, which is sometimes called ‘blind-eye knowledge’, or ‘Nelsonian knowledge’. The origins of this appellation can be found in the story that Admiral Nelson explained his refusal to follow orders to withdraw prior to the Battle of Copenhagen on the basis that he did not know about them – but this was only because he held a telescope to his blind eye, rather than his good eye, when ‘looking’ at the signals being given! Such wilful conduct in seeking to avoid ‘actual’ knowledge can sensibly be equated with ‘knowledge’ when considering relevant mental elements for accessory liability. As Lord Scott remarked in a different context, ‘“Blind-eye” knowledge approximates to knowledge. . . . an imputation of blind-eye knowledge requires an amalgam of suspicion that certain facts may exist and a decision to refrain from taking any step to confirm their existence.’215 This covers the second category on the Baden scale, but does it also include the third? The third category also involves not making possible inquiries, and in BCCI (Overseas) Ltd v Akindele,216 Nourse LJ asserted that ‘the first three categories have been taken to constitute actual knowledge (or its equivalent) and the last two constructive knowledge’. Nevertheless, categories (ii) and (iii) are not exactly the 213  In Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC), 392 Lord Nicholls thought that the ‘Baden . . . scale of knowledge is best forgotten’. Yet Nourse LJ has since expressed the view that the Baden ‘categorisation is often helpful in identifying different states of knowledge which may or may not result in a finding of dishonesty for the purposes of knowing assistance’: BCCI (Overseas) Ltd v Akindele [2001] Ch 437 (CA), 455. The use of the scale seems to survive in Australia: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, (2007) 230 CLR 89, [177], and in other contexts in England and Wales: see eg Daventry District Council v Daventry & District Housing Ltd [2011] EWCA Civ 1153, [2012] 1 WLR 1333 (concerning rectification). 214   Although compare Equitable and Scottish Mercantile Investment Company Ltd v Brunton [1892] 2 QB 700 (CA), 707–708, in which Lord Esher MR said: ‘When a man has statements made to him, or has knowledge of facts, which do not expressly tell him of something which is against him, and he abstains from making further inquiry because he knows what the result would be – or, as the phrase is, he “wilfully shuts his eyes” – then judges are in the habit of telling juries that they may infer that he did know what was against him. It is an inference of fact drawn because you cannot look into a man’s mind, but you can infer from his conduct whether he is speaking truly or not when he says that he did not know of particular facts. There is no question of constructive notice or constructive knowledge involved in that inference; it is actual knowledge which is inferred.’ 215   Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd (The Star Sea) [2001] UKHL 1, [2003] 1 AC 469, [112]. 216   BCCI (Overseas) Ltd v Akindele [2001] Ch 437 (CA), 454.

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same.217 A failure to make inquiries into what one realises is obvious might legitimately be considered to represent a similar level of fault to actual knowledge. But a failure to make such inquiries as a reasonable man would make is a much lower threshold. In the context of accessory liability, accepting this lower mental element in category (iii) would mean that a defendant could be liable even if he or she genuinely and honestly thought that there was no need to pursue matters any further; if a reasonable person would have made those inquiries, liability may nonetheless fall upon the defendant. Yet making a decision that something is none of one’s business, even if objectively unreasonable, is tangibly different from the subjective level of fault typified in ‘Nelsonian knowledge’. Category (iii) therefore seems to move away from a subjective standard towards a more objective, imputed approach to knowledge on the basis of what the defendant ought to have known had he or she acted reasonably. Admittedly, this may be thought to describe category (ii) as well. However, deliberately shutting one’s eyes to the obvious (category (ii)) seems more culpable than merely failing to make the inquiries a reasonable person would have done (category (iii)), and may be practically desirable because ‘actual knowledge’ (category (i)) can be extremely difficult to prove. Categories (iv) and (v) of the Baden scale move even further away from ‘actual knowledge’ of the relevant facts: knowledge of circumstances which might indicate those facts is sufficient. These mental elements raise the idea that the defendant was put on ‘notice’ regarding something. Essentially, the inference is that although the defendant was not actually aware of certain facts, he or she acted unreasonably in not acquiring such knowledge. This seems very closely related to negligence. However, the cause of action in negligence is distinct from parasitic, accessorial liability, and a defendant who is merely ‘negligent’ does not necessarily ‘know’ of the facts at issue. As Lord Hoffmann observed in OBG Ltd v Allan:218 It is in accordance with the general principle of law that a conscious decision not to inquire into the existence of a fact is in many cases treated as equivalent to knowledge of that fact: see Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd [2003] 1 AC 469. It is not the same as negligence or even gross negligence: in British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479,219 for example, Mr Ferguson did not deliberately abstain from inquiry into whether disclosure of the secret process would be a breach of contract. He negligently made the wrong inquiry, but that is an altogether different state of mind.

‘Knowledge’ has been used in various senses. The Baden scale of knowledge has been influential, but is not without its flaws:220 the boundaries between the various categories are difficult to discern, and there are other formulations of the different possibilities which might work equally well. It is therefore important not to 217   See eg A Berg, ‘Accessory Liability for Breach of Trust’ (1996) 59 MLR 443; P Birks, ‘Accessory Liability’ [1996] Lloyd’s Maritime and Commercial Law Quarterly 1. 218   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [41]. 219   See ch 5.V.C.ii. 220   See further ch 4.V.A.ii.



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become too bogged-down in the intricacies of how each category is expressed. The most important distinction is between ‘actual, subjective knowledge’, including a very narrow extension to cover wilful blindness (categories (i) and (ii)), and ‘objective, constructive knowledge’, which describes what a person ought to have known had he or she acted in the manner expected of a reasonable person (categories (iii), (iv) and (v)). Mistakes and Forgetfulness If a defendant sincerely but mistakenly believes a particular state of affairs to exist, that defendant does not actually know of the true situation. So, if the defendant mistakenly but genuinely believes that the actions of the primary wrongdoer are not unlawful, the requisite mental element for accessory liability will not be established. This is illustrated by Mainstream Properties Ltd v Young.221 Two employees of a property company, ‘Mainstream’, in breach of their contracts of employment, diverted a business opportunity open to Mainstream to a joint venture in which they were involved. Mainstream sued the two employees, but also a Mr De Winter under the Lumley tort. Mr De Winter had provided financial assistance to the employees, without which they would not have been able to exploit the business opportunity. Their Lordships decided that Mr De Winter should not be liable as an accessory to the breach of contract because he lacked the necessary mental element: Mr De Winter honestly believed that there was no breach of contract.222 Lord Nicholls emphasised that ‘[i]t matters not that his belief is mistaken in law. Nor does it matter that his belief is muddle-headed and illogical’.223 In a similar vein, a person who once knew a fact but subsequently forgot it should not be taken to know that fact at the later date. Since the mental element for accessory liability is assessed at the time the defendant carries out the relevant conduct element, this means that a defendant who manages to show that he or she honestly forgot a fact cannot be considered to have actually known it at the requisite moment. In Re Montagu’s Settlement Trusts, Megarry VC said:224 If a person once has clear and distinct knowledge of some fact, is he to be treated as knowing that fact for the rest of his life, even after he has genuinely forgotten all about it? To me, such a question almost answers itself. I suppose that there may be some remarkable beings for whom once known is never forgotten; but apart from them, the generality of mankind probably forgets far more than is remembered. . . . it seems to me   One of the appeals decided alongside OBG: [2007] UKHL 21, [2008] 1 AC 1.   This finding by the trial judge was perhaps rather generous on the facts: see the judgment of Sedley LJ in the Court of Appeal: [2005] EWCA Civ 861, [2005] IRLR 964, [90]–[91]. 223   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [202]. In the equitable context, Mitchell has noted that ‘[d]ishonesty is not the same thing as stupidity’: C Mitchell, ‘Assistance’ in P Birks and A Pretto (eds), Breach of Trust (Oxford, Hart Publishing, 2002) 206. cf Walker v Stones [2001] QB 902 (CA) (Sir Christopher Slade). 224   Re Montagu’s Settlement Trusts [1987] Ch 264, 284. See too Williams-Ashman v Price and Williams [1942] Ch 219, 223, in which the defendant solicitor was held to lack the necessary mental element of knowledge about a trust: even though he did once know the relevant details about the trust, the solicitor no longer remembered those details at the time of his participation in the primary breach of duty. 221 222

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In practice, however, it will be very difficult to show that the defendant made a mistake or forgot the relevant fact. General Versus Specific Knowledge It is difficult to determine how certain a defendant must be that a particular wrongdoer will commit a particular primary wrong before any ‘knowledge’ requirement is satisfied. For example, Simester has written:225 [A] . . . distinction should be drawn between general and specific knowledge: the latter is needed. As a computer manufacturer, I may know, statistically speaking, that 30% of my customers will use the computer illegally to copy music. In each particular sale, I therefore know there is a substantial possibility that my conduct will facilitate a crime of music piracy. But I do not know whether this customer will use the product for such a purpose.

This distinction between ‘general’ and ‘specific’ knowledge is relevant not only in crime: if the copyright holders were to sue the computer manufacturer as an accessory to the infringement of copyright, similar issues arise. Given that the accessory is further removed from the actual commission of the primary wrong than the primary wrongdoer, it may seem only right that the primary wrong be identified and that the claimant should have to prove (on the balance of probabilities) that the defendant knew of the particular primary wrong which occurred. Simply asserting vagaries will not do. As Lord Templeman remarked in CBS Songs Ltd v Amstrad Consumer Electronics plc: ‘Generally speaking, inducement, incitement or persuasion to infringe must be by a defendant to an individual infringer and must identifiably procure a particular infringement in order to make the defendant liable as a joint infringer.’226 Demanding ‘specific’ knowledge emphasises that accessory liability should not be an ‘easy option’, and should not be easier to establish than the primary wrong itself.227 But the need to prove that the assister knew of specific wrongs may often be troublesome. Take the scenario, more difficult than that given by Simester, where the computer manufacturer knows that, statistically speaking, it is not 30 per cent of its customers who will use the computer illegally, but 95 per cent. Should it still matter that the manufacturer does not know for certain whether a particular customer will use the computer in such a manner? On the balance of probabilities, the manufacturer does know that the computer will be used unlaw225   Simester, ‘The Mental Element in Complicity’, above n 211 at 590, fn 54. See too R v Lomas (1913) 9 Cr App Rep 220 (CCA). 226   CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1058. 227   Indeed, if the relevant primary wrongs are not established, it is very difficult to determine the appropriate remedy against the assister: what loss has the victim suffered? Admittedly, the remedy sought is not always compensation: see ch 8.



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fully to commit a breach of copyright, but the manufacturer is still not sure that this particular customer will do so. If the manufacturer is to be liable, it should perhaps be on the basis that it is turning a blind eye to the obvious – 95 per cent is a very high probability.228 This example raises an important distinction between general suspicions and particular knowledge. The better approach may be to demand knowledge of a particular wrong, rather than simply a suspicion that unascertainable parties may commit wrongs.229 Admittedly, this restricts the concept of knowledge, and makes it very difficult to impose accessory liability upon manufacturers in the scenarios discussed above. But this is not obviously inappropriate.230 If the product provided is not unlawful in itself, then the fact that it is used by others in an unlawful manner should not easily lead to accessory liability for those supplying the product. As Longmore J observed at first instance in Credit Lyonnais Bank Nederland NV (Now Generale Bank Nederland NV) v Export Credits Guarantee Department, ‘[k]nowledge is one thing; suspicion is another’.231 Suspicions alone should not be enough, unless they are particular to the primary wrong at issue and deliberately ignored, such that actual knowledge is wilfully avoided. Any more lenient approach may prove too disruptive to defendants’ freedom of action.

C. Dishonesty Dishonesty is an evocative label for a mental element. It clearly suggests that the defendant must be culpable in order to incur liability as an accessory, and helps to emphasise a moral foundation to participatory liability. On the other hand, its negative connotations and implied sense of disapprobation may make some judges wary of branding a defendant dishonest.232 It is difficult to establish precisely what dishonesty means and how it is assessed.233 In Royal Brunei Airlines Sdn Bhd v Tan,234 the Privy Council decision which jettisoned knowledge in favour of dishonesty as regards equitable wrongs, Lord Nicholls thought that dishonesty should be objectively ascertained in the light of the defendant’s knowledge. In Twinsectra Ltd v Yardley, a decision of the House of Lords,235 Lord Hutton purported to accept the guidance provided by 228   Importantly, even in this scenario the manufacturer may have a defence of justification if the computer is capable of substantial lawful uses: see ch 7.II.C. 229   cf Abou-Rahmah v Abacha [2006] EWCA Civ 1492, [2007] 1 Lloyd’s Rep 115 in the context of assistance liability in equity. 230   cf MGM Studios Inc v Grokster Ltd 545 US 913 (2005). 231   Credit Lyonnais Bank Nederland NV (Now Generale Bank Nederland NV) v Export Credits Guarantee Department [1996] CLC 11 (QBD), 42–43. 232  eg Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [35] (Lord Hutton). 233   See further ch 4.V.D. ‘Dishonesty’ seems to be a good example of a jury question; its roots can be found in the criminal law, where it is most regularly employed, but dishonesty is not the mental element necessary for accessory liability in the criminal sphere: see ch 3.IV. 234   [1995] 2 AC 378 (PC). 235   [2002] UKHL 12, [2002] 2 AC 164.

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Lord Nicholls in Tan, but expressed the view that dishonesty also carried with it a further subjective element, such that the accessory must realise that his or her conduct would be said to be dishonest by a reasonable person. This mirrors the Ghosh test adopted in criminal law,236 but leads to what has been termed a ‘Robin Hood’ problem: if a defendant must realise that an objective, reasonable observer would consider the defendant to be dishonest, this allows an escape route for defendants such as Robin Hood, who may not have thought that reasonable people consider it dishonest to rob from the rich to give to the poor. Such discord concerning the meaning of dishonesty might cause unease. The approach of Lord Nicholls in Tan currently appears to be preferred to that of Lord Hutton in Twinsectra,237 but in Starglade Properties Ltd v Nash, Leveson LJ expressed ‘a note of concern if the concept of dishonesty for the purposes of civil liability differed to any marked extent from the concept of dishonesty as understood in the criminal law’.238 Yet dishonesty is not used by the criminal law in the context of accessory liability. It seems odd to borrow a criminal law concept from a different area; Lord Millett, dissenting in Twinsectra, may well have been right to say that ‘the introduction of dishonesty is an unnecessary distraction, and conducive to error’.239 After all, whatever other factors are relevant to a finding of dishonesty, the court must first establish what the defendant knew, and only then consider whether the defendant can be considered to be ‘dishonest’.

D. Unconscionability Like dishonesty, ‘unconscionability’ connotes a certain degree of disapproval. But, also similar to dishonesty, it is difficult clearly to ascertain what unconscionability means and how it is to be assessed. Does the defendant’s own conscience actually need to have been affected, or is it sufficient that the objective observer’s conscience would be offended? In Royal Brunei Airlines v Tan, Lord Nicholls considered that ‘unconscionability’ should best be avoided in the context of accessory liability.240 His Lordship thought that if dishonesty and unconscionability meant the same thing, the former should be preferred, and that if the two terms were not synonymous, then it was not clear how unconscionability differed from dishonesty, and should still be rejected. Yet in the area of receipt-based liability, the courts have favoured a test of ‘unconscionability’ to one of ‘dishonesty’.241 It may be that the courts adopt a more subjective test for unconscionability than dishonesty.   R v Ghosh [1982] QB 1053 (CA).   Barlow Clowes International Ltd (in Liquidation) v Eurotrust International Ltd [2005] UKPC 37, [2006] 1 WLR 1476; Abou-Rahmah v Abacha [2006] EWCA Civ 1492, [2007] 1 All ER (Comm) 827; Starglade Properties Ltd v Nash [2010] EWCA Civ 1314. 238   [2010] EWCA Civ 1314, [42]. 239   [2002] UKHL 12, [2002] 2 AC 164, [134]. 240   [1995] 2 AC 378 (PC), 392. 241   BCCI (Overseas) Ltd v Akindele [2001] Ch 437 (CA). 236 237



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However, the content of unconscionability remains unclear. To some, this is an advantage, since it gives the court great flexibility and room to manoeuvre in deciding whether liability is warranted.242 A range of factors, including the fault of both parties and the actions and knowledge of the defendant in the context of the commercial relationship as a whole may be taken into account.243 But the concept may become too vague to be of much predictive value. Burrows has criticised unconscionability as being ‘the most slippery of words’.244 It does not provide sufficient certainty in the context of accessory liability.

E. Recklessness Recklessness is a ‘lower’ mental element than intention: the defendant does not need to intend the relevant event, but if the defendant foresees that his or her conduct will give rise to a risk of that event happening, and it is unreasonable for the defendant to run that foreseen risk, the defendant may be said to be reckless. There has been much debate in the criminal context about whether the defendant must actually foresee the risk,245 or simply ought to have foreseen the risk had he or she been reasonable.246 The former, subjective test is currently preferred.247 The latter, objective test suggests that a defendant would be reckless if he or she did not actually foresee a risk which was reasonably apparent. This elides recklessness with negligence, which should be kept distinct. In the context of accessory liability, a mental element of recklessness would require a claimant to establish both the risks that the defendant foresaw, and also that those risks were unreasonable. A very narrow concept of recklessness may be identified in the private law. Although in Tan Lord Nicholls emphasised that ‘imprudence is not dishonesty’,248 his Lordship went on to recognise that ‘acting in reckless disregard of others’ rights or possible rights can be a tell-tale sign of dishonesty.’249 It might be suggested that recklessness roughly equates to points (ii) and (iii) on the Baden scale of knowledge: (ii) being tantamount to subjective recklessness and (iii) equating to objective recklessness. If the defendant knows certain facts which give rise to particular risks, his or her failure to investigate further may either be deemed to constitute knowledge, or be considered to represent recklessness. In OBG Ltd v Allan, Lord Hoffmann cited with approval

242   See eg Criterion Properties plc v Stratford UK Properties LLC [2002] EWCA Civ 1783, [2003] 1 WLR 2108, [31] (Carnwath LJ). 243   ibid [37]–[38]. 244  A Burrows, ‘Construction and Rectification’ in A Burrows and E Peel (eds), Contract Terms (Oxford, Oxford University Press, 2007) 88. 245  eg R v Cunningham [1957] 2 QB 396 (CCA). 246  eg Metropolitan Police Commissioner v Caldwell [1982] AC 341 (HL). 247   R v G [2003] UKHL 50, [2004] 1 AC 1034. 248   Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC), 389. 249  ibid 390.

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the following passage of Lord Denning MR in Emerald Construction Co Ltd v Lowthian:250 Even if [the defendants] did not know the actual terms of the contract, but had the means of knowledge – which they deliberately disregarded – that would be enough. Like the man who turns a blind eye. . . . For it is unlawful for a third person to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not.

F. Negligence If negligence were sufficient for accessory liability, a defendant who merely ought to have realised that he or she was participating in a primary wrong may incur liability. The major attraction of negligence as a mental element lies in the fact that it is relatively easy to establish, thereby strengthening the protection afforded to the claimant’s rights. For example, Carpenter has argued that the invasion of property rights and contractual rights by third parties should be treated in the same manner, and that intentional participation in the primary wrong is therefore unnecessary: losses should be borne by a negligent accessory rather than an innocent claimant.251 However, the desire to protect claimants’ rights must be balanced with the need for a wrong to have been committed by a defendant. It does not seem appropriate for accessory liability to restrain a defendant’s freedom to act unless the defendant can be said to be culpable. Negligence is too low a threshold to satisfy this requirement, and has consistently been rejected as a mental element for accessory liability.252 Moreover, the boundary between accessory liability and free-standing liability in negligence should not be blurred.253 Indeed, accessory liability is most useful where there is no duty of care owed by the defendant to the claimant such that a negligent breach of that duty would entitle the claimant to sue for damages. Given that the law has decided not to impose a duty of care in such circumstances, this might further suggest that negligence is an inappropriate mental element for accessory liability.

G.  Preliminary Conclusions It is suggested that a subjective approach to the mental element is to be preferred to an objective approach. This helps to ensure that the defendant is morally culpa250   Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691, 700–701, cited in OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [40]. 251   C Carpenter, ‘Interference with Contract Relations’ (1928) 41 Harvard Law Review 728, 737–742. 252   See eg Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC), 391–392 (Lord Nicholls). Indeed, many claims brought against accessories are for ‘pure’ economic loss, which are notoriously difficult in negligence; this might further suggest that negligence is insufficiently demanding as a mental element. 253   See section V.A below.



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ble, and also restricts the number of possible claims that may be brought. Admittedly, a subjective fault element will be difficult to prove and those advising potential claimants at an early stage may be unsure whether a claim against an accessory will be upheld. But this seems appropriate: claims against accessories should not readily succeed, and a claimant should have to work hard to show that anyone other than the primary wrongdoer should be liable for the loss he or she has suffered. Knowledge is crucial to accessory liability, and should be restrictively defined. Actual knowledge should be required. The only, narrow extension to this is where the claimant deliberately avoids actual knowledge by wilfully turning a blind eye to known facts. But even this can be seen to constitute a subjective fault element, since the defendant actually knew of the relevant facts, and consciously decided not to investigate them. Constructive knowledge, on the other hand, may frequently equate to negligence, albeit often gross negligence; this mental element seems inappropriate in situations where the law of tort does not find a ‘freestanding’ duty of care owed by the defendant to the claimant. Alternative mental elements to knowledge seem troubled by greater difficulties. Intention seems problematic; very rarely will a defendant set out with the purpose of participating in a primary wrong and inflicting loss upon a claimant. Generally, the defendant will be motivated by self-interest, which tends to be financial. Any intention regarding the primary wrong which the defendant has will tend to be an ‘oblique intention’; the experience of the criminal law in dealing with this concept should lead to great caution before it is adopted more broadly.254 Uncertainty also seems to beset both dishonesty and unconscionability; the meaning of these terms is difficult firmly to pin down. In any event, both depend upon first ascertaining what the defendant knew: if the defendant knew nothing at all about the primary wrong, then it is difficult to conclude that he or she acted either dishonestly or unconscionably. So what do these labels add to the basic requirement of knowledge? The answer appears to lie in a sense of disapprobation, highlighting the culpability of the defendant. But the vagueness of the terms ‘dishonesty’ and ‘unconscionability’ means that this seems to be achieved in a rather haphazard way. A less evocative mental element, such as knowledge, could be coupled with appropriately framed defences, such as justification, to ensure that only the culpable are liable.255 More detailed consideration of the appropriate mental elements can be found within the discussion of how accessory liability operates in each area of the law.256 It may even be that the mental element should vary according to the nature of the claim, or the conduct element; for example, acts of inducement may require a less demanding mental element than acts of assistance.257 However, given the 254   McBride though that such a development would be ‘depressing’: N McBride, ‘Fatal Attraction: The Economic Torts in the Court of Appeal’ (2005) 64 CLJ 550, 553. 255   See ch 7. 256   See chs 3–6. 257   cf Finn, ‘The Liability of Third Parties’, above n 121 at 215–217.

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difficulties inherent in distinguishing between the various conduct elements, this may be both undesirable and unnecessarily complex.

IV.  Nature of Accessory Liability Lord Nicholls has described accessory liability in both contract and equity to be ‘secondary’.258 ‘Secondary liability’ and ‘accessory liability’ often appear to be used interchangeably. Such terminology is generally only used to highlight the fact that the defendant’s liability depends upon a wrong committed by another.259 The parasitic nature of accessory liability is crucial. However, the language of ‘secondary liability’ might also suggest that an accessory is secondarily liable for the same wrong as the primary wrongdoer. This reasoning may rest upon the idea that the liability of the primary wrongdoer is attributed to the accessory, such that only one wrong is at issue;260 this tends to lead to the conclusion that the liability of the accessory duplicates that of the primary wrongdoer. That approach sits uncomfortably with the fact that the defences and remedies available against the primary wrongdoer and accessory can differ.261 Even in the criminal law, where the language of ‘secondary liability’ is regularly employed, liability is not necessarily duplicative: the accessory may receive a more severe or more lenient sentence than the principal.262 The better view is that the accessory is liable for his or her own wrong. In both the contractual and equitable arenas, the liability of the accessory has been recognised as distinct from that of the primary wrongdoer.263 This also explains, for example, why the conflict of laws rules may differ as between the primary wrongdoer and accessory.264

258   Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC), 382; OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [172] (and see also eg OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [32] (Lord Hoffmann), [320] (Lord Brown)). 259  eg Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC), 382. 260   See eg Cooper, Secondary Liability for Civil Wrongs, above n 15 at ch 1; Elliott and Mitchell, ‘Remedies for Dishonest Assistance’, above n 138. cf C Mitchell and S Waterson, ‘Remedies for Knowing Receipt’ in C Mitchell (ed), Constructive and Resulting Trusts (Oxford, Hart Publishing, 2009) 150–154. 261   See chs 7 and 8. 262   R v Broadbridge (1983) 5 Cr App Rep (S) 269 (CA); J Richardson (ed), Archbold Criminal Pleading, Evidence and Practice (London, Sweet & Maxwell, 2014) paras 5-154–5-159. The exception concerns murder, for which a life sentence is mandatory. 263  eg Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355; Ridge, ‘Justifying the Remedies for Dishonest Assistance’, above n 23. 264  eg Fiona Trust & Holding Corp v Privalov [2010] EWHC 3199 (Comm), [153] (Andrew Smith J): ‘the law governing the liability of the secondary party to breach of fiduciary duty (whether the claim is for dishonest assistance or for knowing receipt) is not necessarily that which governs the relationship between the fiduciary and his principal’; Protea Leasing Ltd v Royal Air Cambodge Co Ltd [2002] EWHC 2731 (Comm), [75]–[80] (Moore-Bick J) (on inducing breach of contract); Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 (CA). See too eg Casio Computer Co Ltd v Sayo (No 3) [2001] EWCA Civ 661 (on jurisdiction over claims in dishonest assistance).



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It is sometimes argued that tort law is different. This may be because some tort cases refer to a need for a defendant to ‘make the wrong his own’,265 or due to the view that in tort law it is the action of the primary wrongdoer that is attributed to the accessory, not the liability of the primary wrongdoer.266 By contrast, a breach of contract or equitable obligation cannot be attributed to an accessory who did not assume any such contractual or equitable obligations, so raise different considerations from tort law.267 It is suggested that it is unsatisfactory to draw a distinction between different areas of the private law in this way. The basis of accessory liability is the same across the common law,268 and haphazard developments in various pockets of the law should not lead to fundamentally different explanations of accessory liability. Some writers have argued that the ‘joint tortfeasance’ model of liability recognised in tort should be more generally applied across the law of obligations.269 Whilst it is indeed desirable for accessory liability to have the same basis across the common law, it is suggested that this approach is flawed and too restrictive;270 the wrong of the accessory should preferably be analysed as independent from, albeit parasitic to, the primary wrong. Even in tort law, the defences and remedies available against the primary wrongdoer and accessory are not inevitably the same, and the language of ‘joint liability’ seems inappropriate. After all, inducing someone to punch another on the nose is different from actually punching a person; the accessory is responsible for his or her acts of inducement. Claimants have a right that others do not culpably participate in the infringement of the rights they have against primary wrongdoers. It is worth noting that the criminal law may also be amenable to a similar analysis. Although the accessory is punished ‘as a principal’,271 the punishment of the accessory and principal are rarely the same,272 and concerns of ‘fair labelling’ may generally incline towards making explicit the fact that liability is for assisting or inducing.273 For instance, in R v Bourne,274 a man forced his wife to have sex with an animal, and the husband was convicted of buggery. But the buggery was 265  eg Sabaf SpA v MFI Furniture Centres Ltd [2002] EWCA Civ 976, [2003] RPC 264, [58]–[59] (Peter Gibson LJ; reversed, but not on this point, in [2004] UKHL 45, [2005] RPC 10); Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2011] Bus LR D49, [108] (Kitchen J). cf Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [56] (Beatson LJ). 266   See eg Stevens, Torts and Rights, above n 15 at 257. Compare the approach of Baughen, who has argued, somewhat artificially, that the contractual or equitable obligations assumed by the primary wrongdoer should be attributed to the accessory: S Baughen, ‘Accessory Liability at Common Law and in Equity – “The Redundancy of Knowing Assistance” Revisited’ [2007] Lloyd’s Maritime and Commercial Law Quarterly 545, 551. 267   This approach to attribution covers liability in situations beyond the boundaries of assistance, encouragement and inducement: see Stevens, Torts and Rights, above n 15 at ch 11. 268   See section II above. 269   At least at common law: see eg Carty, ‘Joint Tortfeasance and Assistance Liability’, above n 29. 270   See further ch 6.VI. 271   Accessories and Abettors Act 1861, s 8. 272   See n 262 above. 273  D Husak, ‘Abetting a Crime’ (2014) 33 Law and Philosophy 41. cf JC Smith, ‘Secondary Participation in Crime – Can We Do Without It?’ (1994) 144 New Law Journal 679. 274   R v Bourne (1952) 36 Cr App Rep 125 (CCA).

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committed directly by the wife, and for reasons of ‘fair labelling’ the husband may be better convicted for ‘inducing buggery’ rather than buggery itself.275 In any event, whether or not there is only one wrong at issue does not alter the investigation into whether there is and should be some form of accessory liability which is parasitic upon a primary wrong committed by another. The precise characterisation of liability does not readily influence consideration of the elements which prima facie constitute a claim against an accessory. But the nature of the accessory’s liability is significant when considering both defences and remedies, and will be further discussed in chapters seven and eight.

V.  Distinguishing Accessory Liability Accessory liability should be limited to situations where a defendant has culpably participated in a primary wrong, mirroring the formulation often found in the criminal law of ‘aid, abet, counsel and procure’. However, the confusion that has plagued the case law has led to the boundaries of accessory liability becoming somewhat blurred. Particular instances of confusion will be considered within the discussion of each area of the private law.276 This section will raise some more general doctrines which lie beyond the scope of the law of accessories, even though it seems that a person other than the ‘direct’ wrongdoer incurs liability.

A.  Free-standing Duty of Care In some instances, a claimant will be able to sue a defendant for breach of the latter’s own, independent duty of care. This will typically be a contractual or a tortious duty of care. Significantly, the claimant would not need to prove that a primary wrong was committed by a third party, or that the defendant culpably participated in it. For example, if a bank pays out on a cheque which purports to be from one of its customers, but in fact was fraudulently made payable personally to an employee by that employee,277 then it may be that the bank has assisted the fraud perpetrated by its employee. The victim of the fraud, from whose account the money was drawn, might therefore be able to sue the bank as an accessory. However, the victim may also be able to bring a claim which does not depend upon accessory liability: the bank owes its customer a contractual obligation to protect him or her 275   See too R v Cogan and Leek [1976] QB 217 (CA). Indeed, the common law previously labelled accessories ‘principals in the second degree’ or ‘accessories before the fact’. This helped further to distinguish accessory liability from liability for the primary offence. 276   eg the distinction between accessory liability and receipt-based claims in equity is considered in ch 4.I.B, and the difference between accessory liability and the tort of intentionally causing loss by unlawful means in ch 5.I.B. 277  Cooper, Secondary Liability for Civil Wrongs, above n 15 at 14.



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from fraud, and the claimant could sue for a breach of this duty. This contractual claim may be by far the more straightforward: contractual liability is strict. Although the two claims may lead to the same result – compensation for loss suffered – they are conceptually distinct. Similarly, the defendant may owe a free-standing tortious duty of care to the claimant where there is a particularly close relationship between the defendant and the primary wrongdoer. In Home Office v Dorset Yacht Co Ltd,278 young offenders escaped from custody on an island, boarded a yacht, and then collided with the claimant’s yacht. The claimant sued the officers who had been supervising the offenders. The officers had retired to bed at the time, in breach of their instructions. The House of Lords held that the ‘free-standing’ tortious claim succeeded: the officers owed a duty of care to the claimant to take reasonable steps not to let the boys escape. This claim in negligence was more straightforward than any alternative based upon accessory liability,279 particularly since negligence liability does not require such a demanding mental element. However, in most instances of accessory liability, it will be impossible to establish that a defendant owes a primary duty of care to the victim of a wrong. For instance, there may be no ‘proximity’ between the defendant and the claimant, or the court may decide that it is not ‘fair, just and reasonable’ to impose such a duty. In CBS Songs Ltd v Amstrad Consumer Electronics plc,280 Lord Templeman criticised the tendency to plead, on very flimsy grounds, that a duty of care was owed to the claimant; the courts have been especially wary about finding that a person owes a tortious duty to prevent the conduct of an independent third party.281 Such reticence in the context of negligence is entirely understandable: the fault element of negligence is relatively low, and the courts might baulk at the prospect of imposing liability upon third parties if they were merely negligent. By contrast, accessory liability demands a higher degree of fault, and has consistently and rightly rejected mere negligence as a sufficient mental element. It would be unsatisfactory for accessory liability to be shoe-horned into negligence, or for the understandable reluctance to expand the tort of negligence282 to affect the rational development of accessory liability, which does not rest upon the same foundations.

B.  Innocent Agency An adult might give a child under 10 years old a loaded gun, knowing that the child would like to shoot and cause serious harm to his teacher. If the child does shoot and kill his teacher, that child cannot be found guilty of murder because he   Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL).   The actions of the officers facilitated the primary wrong committed by the offenders.   [1988] AC 1013 (HL), 1059–1060. 281   See eg Smith v Littlewoods Organisation Ltd [1987] AC 241 (HL). 282   See generally T Weir, ‘The Staggering March of Negligence’ in P Cane and J Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming (Oxford, Clarendon Press, 1998). 278 279 280

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is not yet 10 years old.283 ‘Innocent agency’, which deems the child to ‘drop out of the picture’, might apply: the criminal act can be found to have been effectively carried out by the adult, who had the appropriate mental element for murder.284 However, it is important to note that the adult in this example is not liable as an accessory, but rather as the principal. Although it might appear that the adult assisted the offence of the child, there is no primary offence committed by the child because the child is incapable, at law, of committing such an offence. It therefore follows that the liability of the adult is not parasitic upon the primary wrong of another, so cannot be characterised as accessorial. This doctrine of innocent agency has been best developed by the criminal law, and it is important to appreciate the limits of this notion. It only applies where the person who is the most immediate cause of the infringement of the victim’s right cannot be considered to be a participant in the wrong and responsible for his or her actions. The notion of innocent agency is inapplicable where the primary wrongdoer realises that he or she is committing a wrong, even if the primary wrongdoer might be able to escape or reduce his or her liability through relying upon a defence. For example, a primary wrongdoer might stab another, and plead a defence of duress. Even if this defence does avail the perpetrator,285 it would not render the perpetrator an innocent agent or mere tool of the accessory who assisted or procured the stabbing. Indeed, the fact that the primary wrongdoer realised that he or she was committing a wrong is absolutely consistent with the essence of duress. So, even if such a wrongdoer were to be acquitted of an offence, or absolved of responsibility in a tort claim brought by the victim, the assister can still be said to have participated in the wrongful actions. Accessory liability therefore seems to be parasitic upon the wrongful conduct of the primary wrongdoer, which is assessed before any potential defences are taken into account.286

C.  Vicarious Liability A person found liable for assisting or procuring a wrong is sometimes said to be a ‘secondary’ party, and vicarious liability is also often viewed as a form of ‘secondary’ liability. But this further highlights the inadequacy of the term ‘secondary’ in this context to provide suitable guidance about the form of liability involved. Accessory liability and vicarious liability are distinct notions which rest upon very different conceptual bases. Vicarious liability typically arises where an employer   Crime and Disorder Act 1998, s 34.   The Law Commission has even supported an expansion of this doctrine: Law Commission, Participating in Crime, above n 54 at pt 4. 285   For discussion of the possible existence of a defence of duress in private law, see J Edelman and E Dyer, ‘A Defence of Duress in the Law of Torts’ in A Dyson, J Goudkamp and F Wilmot-Smith (eds), Defences in Tort Law (Oxford, Hart Publishing, 2015). 286   This conclusion is of wider significance: eg a primary wrongdoer who commits a breach of contract may be able to reduce his or her liability due to a limitation clause in the contract, but should an accessory also be able to rely upon such a clause? The impact of defences is considered further in ch 7. 283 284



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becomes liable for the conduct of an employee.287 However, vicarious liability does not depend upon the employer’s culpable participation in a primary wrong, but simply flows from the relationship between the employer and employee.288 The employment does not have any (substantial) causal effect upon the primary wrong actually committed in instances of ‘pure’ vicarious liability.289 Admittedly, it is possible that the employer is liable both vicariously and accessorially if it assisted or induced the employee’s wrong. But such situations are rare. If an employee were to be liable in negligence, the employer might be liable vicariously if it could be shown that the performance of what the employee did was authorised, even if the negligent manner of performance was not. By contrast, for a claim based upon accessory liability to succeed, it would need to be established that the employer authorised the wrongful performance itself.290 A difficult case which raised some of these issues is Brooke v Bool.291 The defendant landlord, together with a lodger, examined a gas pipe in a tenant’s shop. The lodger used a naked light to inspect the pipe, and this caused an explosion in the claimant tenant’s property. The Divisional Court held that the defendant was liable for the explosion. Various reasons were given for this conclusion, including vicarious liability and participation in a common design. But the latter justification is dubious, since there does not seem to have been any agreement between the landlord and lodger that a naked light be used; nor was the lodger encouraged to do so.292 The preferable explanation is to be found in vicarious liability; the landlord and lodger were engaged in a joint venture, and the lodger may even be considered to have been acting as the agent of the landlord when he negligently inspected the gas pipe.293 It is unhelpful to attempt to squeeze the status-based doctrine of vicarious liability within accessory liability. The basis of vicarious liability is difficult to discern294 but appears to be largely driven by policy considerations,295 influenced by the fact that an employee is far less likely to have the means to provide adequate 287   For further consideration of the relationships which give rise to vicarious liability, see generally PS Atiyah, Vicarious Liability in the Law of Torts (London, Butterworths, 1967); P Giliker, Vicarious Liability in Tort: A Comparative Perspective (Cambridge, Cambridge University Press, 2010). 288   For the distinction between liability based upon a ‘relationship link’ and liability based upon a ‘participation link’ see Carty, ‘Joint Tortfeasance and Assistance Liability’, above n 29 at 490. 289   See eg Gardner, ‘Complicity and Causality’, above n 133 at 130. 290   cf Kooragang Investments Pty Ltd v Richardson & Wrench Ltd [1982] AC 462 (PC), 472–473. 291   Brooke v Bool [1928] 2 KB 578 (DC). 292   Carty has noted that if accessory liability did arise on the facts then the decision ‘is probably at the outer limits of secondary liability based on complicity’: Carty, ‘Joint Tortfeasance and Assistance Liability’, above n 29 at 500). 293   N McBride and R Bagshaw, Tort Law, 4th edn (Harlow, Pearson, 2012) 869. 294   In the decision of the High Court of Australia in New South Wales v Lepore [2003] HCA 4, (2003) 212 CLR 511, [299] Kirby J said: ‘The joint reasons in this Court in Hollis v Vabu Pty Ltd . . . remarked that a “fully satisfactory rationale for the imposition of vicarious liability in the employment relationship” was “slow to appear in the case law” and that no single explanation could be offered which was “completely satisfactory for all cases”. Even now, none has really emerged. The history of the imposition of vicarious liability demonstrates that the foundation for such liability has been uncertain and variable’. 295   cf Stevens, Torts and Rights, above n 15 at ch 11.

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redress than his or her employer.296 It is clearly not based upon culpable, causal participation in a primary wrong committed by another, and it would be unfortunate if the uncertainties inherent in vicarious liability were to afflict the distinct concept of accessory liability.

D.  Corporate Attribution An employer or principal might incur liability for the wrong of his or her employee or agent, regardless of whether or not the employer or principal culpably participated in the primary wrong, by virtue of the relationship at issue. In a similar vein, a company or partnership297 could be liable for the wrongs committed by its directors or partners. But it is more difficult for a company to be liable as an accessory. This is because legal persons can only act through the minds and bodies of natural persons. For a company to be an accessory to a primary wrong, the ‘directing mind and will’298 of the company must satisfy the requisite mental element for accessory liability so that it can be attributed to the company. Determining whether a legal person is liable as an accessory therefore demands careful consideration of the rules on corporate attribution. For instance, it might be expected that it would be easier to fix a company with the knowledge of a director in the case of a one-man company than where a larger organisation is concerned.299 But the relationship between the company and its directing mind and will is a question of company law and agency. Although important when deciding whether or not a company can be sued as an accessory, this issue is not peculiar to accessory liability and will not be considered further here.300 In any event, the fact that a company incurs liability for a wrong does not prevent a director from being liable as an accessory. However, the director will only be liable if his or her involvement would be such as to render him or her liable as an accessory if the company had not existed;301 the director must actively participate in the primary wrong.302 A defendant should not escape accessory liability 296   JGE v Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938, [2013] QB 722, [19]– [20] (Ward LJ); Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 AC 1, [34] (Lord Phillips). See generally Giliker, Vicarious Liability in Tort, above n 287. 297   Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366. 298   Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 (PC) (Lord Hoffmann); Lennard’s Carrying Co Ltd v Asiatic Petroleum Ltd [1915] AC 705, 713 (Viscount Haldane LC). 299   Compare eg Fresh’n’Clean (Wales) Ltd v Miah [2006] EWHC 903 (Ch) (Martin Mann QC) and Commonwealth Oil & Gas Co Ltd v Baxter [2007] CSOH 198 [203]–[205] (Lord Ordinary Reed) (affirmed: [2009] CSIH 75, 2010 SC 156 [21] (Lord President Hamilton)). 300   See generally P Davies and S Worthington, Gower and Davies’ Principles of Modern Company Law, 9th edn (London, Sweet & Maxwell, 2012) ch 7; P Watts (ed), Bowstead & Reynolds on Agency, 19th edn (London, Sweet & Maxwell, 2013) 8-207–8-214. 301   PLG Research v Ardon International [1993] FSR 197, 238 (Aldous J) (reversed, but not on this point, by the Court of Appeal: [1995] FSR 116); C Evans & Sons Ltd v Spritebrand Ltd [1985] FSR 267 (CA). 302   Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1921] 2 AC 465, 475–476 (Lord Buckmaster); Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 (CA), 14–15



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simply by virtue of being a director, although the duties and responsibilities of such a position may help the director to establish a relevant defence.303

E. Conspiracy Conspiracy is sometimes considered to be another mode of participation in a wrong. This is understandable: it is possible to be liable for being part of a conspiracy to commit any primary wrong – whether it be a tort, breach of contract, or breach of fiduciary duty – and by entering into the conspiracy it may seem as if the defendant has participated in that primary wrong. Moreover, combination is recognised as a conduct element which is sufficient for liability as a ‘joint tortfeasor’. This seems to derive from The Koursk.304 That case actually held that the two tortfeasors were several concurrent tortfeasors rather than joint tortfeasors, in order to restrict the scope of joint and several liability, but the following quotation of Scrutton LJ has had great effect:305 I am of [the] opinion that the definition in Clerk and Lindsell on Torts, 7th ed., p. 59, is much nearer the correct view: ‘Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design’ . . .. ‘but mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be concerted action to a common end.’

The need for there to be a common design effectively equates combination with conspiracy. However, the suggestion that conspiracy is a form of accessory liability has been rejected by the House of Lords in Revenue and Customs Commissioners v Total Network SL.306 Their Lordships insisted that even unlawful means conspiracy is not necessarily based upon participation in another’s wrong, and is not parasitic upon the commission of a primary wrong. Total Network suggests that it is the act of joining together for the purpose of harming the claimant which provides the basis of conspiracy liability. This clearly differs from the general approach to accessory liability, which does not require any agreement between the accessory and primary wrongdoer. As a result of Total Network, the scope of unlawful means conspiracy is, somewhat controversially, much broader than liability which is parasitic upon a primary wrong. Nevertheless, many examples of combination do involve accessory liability. This is because a party to a conspiracy might – either through the (Atkin LJ); MCA Records Inc v Charly Records Ltd [2001] EWCA Civ 1441, [2002] FSR 26 (CA) [48]– [53] (Chadwick LJ); Twentieth Century Fox Film Corp v Harris [2014] EWHC 1568 (Ch) [135]–[136] (Barling J); N Foster, ‘Personal Civil Liability of Company Officers for Company Workplace Torts’ (2008) 16 Torts Law Journal 20, 24–34; S Lo, ‘Liability of Directors as Joint Tortfeasors’ [2009] Journal of Business Law 109. 303   See the discussion of Said v Butt [1920] 3 KB 497 in ch 7.II.B. 304   The Koursk [1924] P 140 (CA). 305   ibid 156. 306   [2008] UKHL 19, [2008] 1 AC 1174.

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agreement itself or other acts – assist, encourage or induce the primary wrong. Claims for accessory liability and conspiracy may therefore be brought concurrently. Distinguishing between accessory liability and conspiracy in the private law would mirror the criminal law, where conspiracy is a form of inchoate liability with different roots from accessory liability. An agreement of concerted action for a common purpose is at the very core of conspiracy, but unnecessary for accessory liability.

F.  Joint Enterprise The language of ‘joint enterprise’ poses many difficulties. This is partly because it may be used in different ways. Where two people deliberately embark on a ‘joint enterprise’ of burglary, it seems uncontroversial that both should be liable for burglary. The more difficult meaning of ‘joint enterprise’ liability involves an extension of accessory liability. For example, during the course of the burglary, one of the robbers might assault the homeowner with a knife which his partner suspected he had with him. In such circumstances, can the partner be considered to be an accessory to the assault? This could be problematic since it is not clear that the partner has provided substantial assistance to the offence which is ‘collateral’ to their agreement, let alone satisfied any mental element required as regards the assault. The law surrounding joint enterprise in this context is replete with difficulties and decisions which are not easy to interpret.307 Nevertheless, the law of joint enterprise cannot readily be reconciled with the general principles of accessory liability.308 In fact, it is not easy to understand precisely why the partner should be liable for anything other than the burglary, and why he should bear any responsibility for the assault which was extraneous to what he had signed up for. As Lord Mustill remarked in R v Powell and English, ‘[i]ntellectually, there are problems with the concept of a joint venture, but they do not detract from its general practical worth’.309 Yet its practical worth does not seem to be based upon culpable participation in a wrong in the same manner as accessory liability. Indeed, the High Court of Australia has accepted that joint enterprise is different from accessory liability;310 the essence of a joint enterprise is concerted action. By entering into an agreement, a person changes his or her normative position and associates him or herself with the group in a way that accessories do not. Criminal groups are particularly dangerous, and ‘present a threat to public safety that ordinary

  See further ch 3.I.B.   Compare JC Smith, ‘Criminal Liability of Accessories: Law and Law Reform’ (1997) 113 LQR 453; G Virgo, ‘Joint Enterprise Liability is Dead: Long Live Accessorial Liability’ [2012] Criminal Law Review 850. 309   R v Powell and English [1999] 1 AC 1 (HL), 11. 310   Clayton v R [2006] HCA 58, (2006) 231 ALR 500, [20], citing with approval Simester, ‘The Mental Element in Complicity’, above n 211. 307 308



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criminal prohibitions, addressed to individual actors, do not entirely address’.311 This overriding pragmatic rationale for liability does not similarly underpin accessory liability more generally. Caution should be exercised surrounding joint enterprise liability even in the criminal law, and it should probably not play any role in the private sphere.

  Simester, Spencer, Sullivan and Virgo, Simester and Sullivan’s Criminal Law, above n 197 at 249.

311

3 Crime ‘Accessory liability’ is probably more likely to evoke ideas of criminal law than private law. When considering accessories in the private law, references to the criminal law are not uncommon.1 It is therefore helpful to have a broad understanding of the operation and basis of accessory liability in the criminal sphere when considering the private law. Significantly, it is clear that criminal accessory liability can attach to any primary offence; that the primary offender and accessory may not be punished in the same way;2 and that the defences available to the accessory and primary offender may operate differently. These considerations provide a useful background to the discussion of accessory liability more generally. However, it is important to appreciate that much in the criminal law is unclear; Ashworth has written that this area of the law is ‘running wild – there are too many decisions on complicity, so that courts (and/or counsel) tend to pick and choose among the many precedents; and there is no settled set of principles, which means that judicial development of the law does not always conduce to coherence’.3

I.  Scope of Accessory Liability Just as in every area of the private law, defining the boundaries of accessory liability has proven difficult for the criminal courts. This section will briefly elaborate on the principal neighbouring sources of confusion in the criminal context. This is important: when drawing analogies in private law with accessory liability in the criminal law, it is crucial not to consider criminal cases which drift beyond the boundaries of ‘aid, abet, counsel and procure’. 1  See eg Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [1998] 1 Lloyd’s Rep 19 (CA) (esp Hobhouse LJ; see too Lord Woolf in the House of Lords: [2001] AC 486, 500); Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2006] FSR 17, [1506] (Lewison J); Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [41]–[44] (Beatson LJ); Starglade Properties Ltd v Nash [2010] EWCA Civ 1314, [2011] Lloyd’s Rep FC 102, [42]–[45] (Leveson LJ); W Gummow, ‘Knowing Assistance’ (2013) 87 Australian Law Journal 311. 2   One exception concerns murder, for which a life sentence is mandatory. 3   AJ Ashworth, ‘Aiding and Abetting: Mens Rea – Intention to Assist’ [2004] Criminal Law Review 936, 937, commenting on R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592. For an excellent monograph on this area of the criminal law, see generally KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford, Clarendon Press, 1991).



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A. Co-principals Two parties may be convicted of the same offence as co-principals rather than as principal and accessory. For example, if two defendants attack a victim who dies from the combined effect of their blows, both defendants may be guilty of murder or manslaughter.4 Provided that each defendant commits some of the conduct element of the crime, and together they commit the crime, each is liable as a coprincipal. So, if one defendant holds a victim at gunpoint and the other takes the victim’s wallet, both will be liable as co-principals for the crime of robbery.5 Accessory liability is simply not relevant in such circumstances. Although principals and accessories should, in principle, be clearly distinguished, the boundary between the two is sometimes blurred. A recent example is R v Gnango.6 Gnango and another man, known as ‘Bandana Man’, engaged in a gunfight in public. Neither hit the other, but during the course of the shooting, Bandana Man shot a passer-by and killed her. The Supreme Court held that Gnango should be convicted of murder,7 but the basis of the conviction is unclear. Lords Brown,8 Clarke9 and Dyson10 thought that Gnango could be a joint principal with Bandana Man pursuant to a common intention to commit a crime. Lords Phillips, Judge and Wilson found Gnango liable as an accessory, but considered that this was not a difference of substance.11 Since Lord Dyson also appeared essentially to base his decision upon accessory liability, this appears to be the ratio of the case.12 It is surely inappropriate for Gnango to be liable as a co-principal, since Gnango did not commit any of the conduct element of the murder of the victim.13 However, the case highlights that the divide between accessories and joint principals may not always be made entirely clear.

  Macklin and Murphy’s Case (1838) 2 Lew CC 225.   See SH Kadish, ‘Complicity, Cause and Blame: A Study in the Interpretation of Doctrine’ (1985) 73 California Law Review 323, 344. 6   R v Gnango [2011] UKSC 59, [2012] 1 AC 827. 7   The majority comprised Lords Phillips, Brown, Judge, Clarke, Dyson and Wilson; Lord Kerr dissented. 8   R v Gnango [2011] UKSC 59, [2012] 1 AC 827, [71]. 9   ibid [81]. 10   ibid [105]. 11   ibid [62]. This is in itself unsatisfactory: see R Buxton, ‘Being an Accessory to One’s Own Murder’ [2012] Criminal Law Review 275, 279. 12   However, the case is undoubtedly very difficult, and is the subject of much controversy, some of which will be discussed further below. It has given rise to rigorous debate in the pages of the Criminal Law Review: see D Ormerod, ‘Worth the Wait?’ [2012] Crim LR 79; Buxton, ‘Being an Accessory’, above n 11; G Virgo, ‘Joint Enterprise Liability is Dead: Long Live Accessorial Liability’ [2012] Criminal Law Review 850; SJ Odgers, ‘Letters to the Editor’ [2013] Criminal Law Review 222; G Virgo, ‘Letters to the Editor’ [2013] Criminal Law Review 224; P Mirfield, ‘Guilty by Association: a Reply to Professor Virgo’ [2013] Criminal Law Review 577; G Virgo, ‘Guilty by Association: a Reply to Peter Mirfield [2013] Criminal Law Review 584. 13   R v Gnango [2011] UKSC 59, [2012] 1 AC 827, [129] (Lord Kerr); Buxton, ‘Being an Accessory’, above n 11 at 278–279. 4 5

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B.  Joint Enterprise The law regarding ‘joint enterprise’ is fraught with difficulty.14 Indeed, the very term ‘joint enterprise’ is used in different ways. It is even sometimes employed to describe co-principals acting together pursuant to a common design. But, as Lord Kerr observed in Gnango, ‘[t]o speak of joint principal offenders being involved in a joint enterprise is, at least potentially, misleading. The essential ingredient for joint principal offending is a contribution to the cause of the actus reus. If this is absent, the fact that there is a common purpose or a joint enterprise cannot transform the offending into joint principal liability’.15 More problematic than ‘plain vanilla’ forms of joint enterprise, which can readily be equated with general principles of accessory liability,16 are cases where the primary offence committed is not part of the joint criminal design. Where the principal intentionally departs from an agreed plan and commits a further offence, the other party to the criminal enterprise will not, generally, be liable as an accomplice for the additional offence.17 However, in some circumstances, liability might arise if the defendant foresaw the commission of the additional offence as a possibility flowing from the agreed unlawful purpose.18 The basis of this form of liability – which forms the core of ‘joint enterprise’ – is very difficult to discern. It seems to extend the reach of the criminal law. This might be justified on the basis that the defendant so changed his or her normative position by entering into a criminal enterprise that he or she should be liable for foreseen departures from that unlawful design.19 This is essentially a pragmatic justification to ensure that those who seem to be culpable can incur the wrath of the criminal law.20 Yet Krebs has carefully argued that the origins of joint enterprise liability were not concerned with extending the scope of the criminal law, but rather with limiting it;21 as Stephen wrote:22

14   See recently R v Bristow [2013] EWCA Crim 1540, noted by D Ormerod, ‘R v Bristow: Joint Enterprise – Burglary – Owner of Premises Intervened’ [2014] Criminal Law Review 457. The House of Commons Select Committee has recommended statutory reform: House of Commons Justice Committee, Joint Enterprise: Eleventh Report of Session 2010–12 (HC 1597, 2012) 15. 15   R v Gnango [2011] UKSC 59, [2012] 1 AC 827, [129]; see too [81] (Lord Clarke); B Krebs, ‘Joint Criminal Enterprise’ (2010) 73 MLR 578, 592. 16   Brown and Isaac v The State [2003] UKPC 10, [13] (Lord Hoffmann); R v Rahman [2008] UKHL 45, [2009] 1 AC 129, [9] (Lord Bingham). 17   R v Anderson and Morris [1966] 2 QB 110 (CCA). 18   R v Powell and English [1999] AC 1 (HL); R v Gnango [2011] UKSC 59, [2012] 1 AC 827, [42] (Lords Phillips and Judge). 19   See AP Simester, ‘The Mental Element in Complicity’ (2006) 122 LQR 578, 598–599; AP Simester, JR Spencer, GR Sullivan and GJ Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine, 5th edn (Oxford, Hart Publishing, 2013) 248–249. 20   As Lord Mustill remarked in R v Powell and English, ‘[i]ntellectually, there are problems with the concept of a joint venture, but they do not detract from its general practical worth’: [1999] 1 AC 1 (HL), 11. 21   Krebs, ‘Joint Criminal Enterprise’, above n 15. 22   JF Stephen, A Digest of the Criminal Law (St Louis, Thomas & Wentworth, 1877) art 38.



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When several persons take part in the execution of a common criminal purpose, each is a principal in the second degree, in respect of every crime committed by any one of them in the execution of that purpose. If any of the offenders commits a crime foreign to the common criminal purpose, the others are neither principals in the second degree, nor accessories unless they actually instigate or assist in its commission.

However, this does not seem consistent with many modern examples where joint enterprise liability has been found: where a defendant agrees to participate in a burglary, during the course of which his or her criminal partner shoots a neighbour, can it really be said that the defendant has assisted or encouraged the shooting, rather than simply the burglary? Krebs concludes that joint enterprise liability is a sui generis form of liability.23 The Law Commission has also considered joint enterprise liability to be distinct from accessory liability based upon ‘aid, abet, counsel or procure’.24 This seems sensible: the defendant does not assist, encourage or procure the primary offence that is not part of the joint venture. Moreover, the mental element of joint enterprise liability requires only foresight that the primary offence might be committed; this is a low threshold which may well be inappropriate in general instances of accessory liability.25 Nevertheless, some have argued that joint enterprise liability is simply an instance of ‘normal’ accessory liability.26 But that would seem to distort, or at least extend, the fundamental principles of participatory accessory liability, leading to liability based simply upon association.27 It is suggested that the civil law should not embrace a notion of ‘joint enterprise’ that goes beyond ‘assist, encourage or procure’ as part of the law of accessories: the accessory might have assisted or encouraged a planned burglary, but not an independent shooting. The defendant did not know the shooting would happen, and did not contribute in a substantial manner to its occurrence. Responsibility for the shooting rests upon the shoulders of the primary offender alone. Although joint enterprise liability might possibly be justified in the criminal sphere from a pragmatic standpoint,28 even this seems unsatisfactory. The general rationales which underpin accessory liability do not operate in the same manner for joint enterprise liability. Joint enterprise liability   Krebs, ‘Joint Criminal Enterprise’, above n 15.   Law Commission, Participating in Crime (Law Com No 305, 2007). See too R v Stewart and Schofield [1995] 1 Cr App Rep 441, [1995] Crim LR 420; R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592, [71]; J Hobhouse, ‘Agency and the Criminal Law’ in FD Rose (ed), Lex Mercatoria: Essays on International Commercial Law in Honour of Francis Reynolds (London, LLP Professional, 2000). 25   Simester, ‘The Mental Element in Complicity’, above n 19; Clayton v R [2006] HCA 58, (2006) 231 ALR 500. See further section IV below. 26   JC Smith, ‘Criminal Liability of Accessories: Law and Law Reform’ (1997) 113 LQR 453; Virgo, ‘Joint Enterprise Liability’, above n 12. See too R v Mendez [2010] EWCA Crim 516, [2011] QB 876, [17] (Toulson LJ). 27   This idea is very controversial, and on balance seems inappropriate: see further Virgo, ‘Joint Enterprise Liability’, above n 12; Odgers, ‘Letters to the Editor’, above n 12; Virgo, ‘Letters to the Editor’, above n 12; Mirfield, ‘Guilty by Association’, above n 12; Virgo, ‘Guilty by Association’, above n 12. 28   See ch 2.V.F. 23 24

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should properly remain distinct from accessory liability, if it is to be maintained at all.

C.  Innocent Agency In R v Michael,29 a defendant gave some poison to a nurse, saying that it was medicine to be administered to a baby. The nurse left the bottle on the side, but a child then took the bottle and gave the contents to the baby. The baby died, and the defendant was convicted as a principal. This was because the nurse and child were ‘innocent agents’ and simply dropped out of the picture. The defendant could be seen to act ‘through’ the nurse and child. A person can be considered to be an innocent agent in the criminal law where he or she is under 10 years old,30 insane,31 or acts without the fault required to commit the offence.32 Where the person does possess the requisite fault element but has an excuse,33 then that person cannot be an innocent agent. Glanville Williams termed such persons ‘semi-innocent agents’, and wrote that:34 If a person can act through a completely innocent agent, there is no reason why he should not act through a semi-innocent agent. It is wholly unreasonable that the partial guilt of the agent should operate as a defence to the instigator.

However, to some this might add ‘conceptual mystery’.35 For example, in R v Bourne,36 the wife was excused from the crime of bestiality, having been forced by her husband to have sex with a dog. Although she only acted under the duress being exerted by her husband, she knew that having sex with an animal was an unlawful act. She was therefore not an ‘innocent agent’; there is no reason to see the husband as the principal. The act of buggery was committed by the wife, not the husband. It is preferable to analyse the latter’s liability as accessorial, since he induced the conduct element of the offence.37

  (1840) 9 C & P 356 (CCR).   R v Manley (1844) 1 Cox CC 104. 31   R v Tyler (1838) 8 C & P 616. 32   R v Michael (1840) 9 C & P 356 (CCR). 33  eg R v Bourne (1952) 36 Cr App Rep 125 (CCA); R v Cogan and Leek [1976] QB 217 (CA). 34   GL Williams, Textbook on Criminal Law, 2nd edn (London, Stevens & Sons, 1983) 374. 35   Kadish, ‘Complicity, Cause and Blame’, above n 5 at 387. 36   R v Bourne (1952) 36 Cr App Rep 125 (CCA). 37   For further consideration of situations in which the principal is acquitted, see section V.A below. The Law Commission has proposed an extension of innocent agency (Law Commission, Participating in Crime, above n 24 at pt 4) but the proposals seem overly elaborate (R Taylor, ‘Procuring, Causation, Innocent Agency and the Law Commission’ [2008] Crim LR 32) and there is no immediate prospect of their being implemented by Parliament. 29 30



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D.  Vicarious Liability The criminal law clearly highlights the difference between vicarious liability and accessory liability, since there is no general doctrine of vicarious liability in the criminal law. For example, in R v Huggins, Raymond CJ said:38 It is a point not to be disputed, but that in criminal cases the principal is not answerable for the act of the deputy, as he is in civil cases: they must each answer for their own acts, and stand or fall by their own behaviour.

It is important that a defendant be liable only for his or her own actions. This is consistent with accessory liability, but not vicarious liability, which is generally only recognised in the criminal law by express legislation.39

E. Conspiracy In the United States there is a rule that a person who enters into a conspiracy can become liable for every reasonably foreseeable crime committed by his or her coconspirators in furtherance of the conspiracy.40 But such a broad rule is not to be found in England and Wales.41 Conspiracy is recognised to be a form of inchoate liability which does not require the commission of a primary offence.42 This alone makes conspiracy distinct from accessory liability; it is no surprise that the elements of liability are very different.43

F.  Inchoate Liability for Assisting or Encouraging an Offence Inchoate liability for assisting or encouraging a crime has now been introduced by Part 2 of the Serious Crime Act 2007. Even if the primary offence does not actually occur, a person may nonetheless commit a crime by assisting or encouraging that offence. This extends the reach of the criminal law, but the focus here will be upon the principles underpinning the common law of accessories. In the private law, it is still the case that a primary wrong should actually have been committed for accessory liability to arise.44

  R v Huggins (1730) 2 Str 883, 885. See Simester, ‘The Mental Element’, above n 19 at 580–581.   See generally Simester, Spencer, Sullivan and Virgo, Simester and Sullivan’s Criminal Law, above n 19 at ch 8. 40   Pinkerton v United States 328 US 640 (1946). 41   Indeed, the wide rule in Pinkerton is not replicated in the US Model Penal Code, §2.06. 42   See Criminal Law Act 1977, s 1. 43   See generally Simester, Spencer, Sullivan and Virgo, Simester and Sullivan’s Criminal Law, above n 19 at §9.3. 44   Inchoate liability is generally inappropriate in the private law, but for the possibility of quia timet injunctions, see ch 8.VII. 38 39

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II.  Primary Offence Whereas the approach of the private law to accessory liability has tended to differentiate between various ‘species’ of wrongs (particularly torts, breach of contract and equitable wrongs), this is not the case in the criminal context. As Lord Steyn remarked in Powell and English, ‘[t]he principle governing the criminal liability of accessories applies across the spectrum of most criminal offences’.45 The substantive elements of accessory liability can operate in similar fashion whether the primary offence concerns murder or strict liability offences.46 A woman can even be guilty of rape as an accessory, even though she could not be convicted as a principal.47 At common law, it is clear that liability can only attach to a primary offence that has actually been committed. In Morris v Tolman, Avery J insisted that ‘[a] person cannot aid another in doing something which that other has not done’.48 However, in some circumstances, it is possible for the defendant to be liable as an accessory even if the principal is acquitted of the primary offence.49 As Kadish has observed:50 If a defendant may fairly be held liable when he aids or encourages a guilty principal to commit the crime (even where the defendant is not within the defined class or where the criminal action is nonproxyable), there is no moral or policy reason why he should not be similarly treated if he causes the prohibited actions of an unwitting primary actor.

For example, in Cogan and Leek,51 the primary offender had sexual intercourse with the defendant’s wife, but was acquitted of rape because he believed, on the basis of what the defendant told him, that the wife was consenting. The defendant was nevertheless guilty as an accessory; the wife had clearly been raped,52 and the defendant’s liability was parasitic to the conduct element of that offence,53 even   R v Powell and English [1999] 1 AC 1 (HL), 12.   cf Callow v Tillstone (1900) 83 LT 411 (QBD); Benford v Sims [1898] 2 QB 641. 47   Sexual Offences Act 2003, s 1. 48   Morris v Tolman [1923] 1 KB 166, 171, cited by Hewart LCJ in Thornton v Mitchell [1940] 1 All ER 339 (KBD), 341. 49   The Accessories and Abettors Act 1861 was essentially a procedural statute which abolished the old rule that a person could not be convicted as a secondary party unless the principal offender had been convicted: see R v Stringer [2011] EWCA Crim 1396, [2012] QB 160, [42] (Toulson LJ) and ch 2.II. 50   Kadish, ‘Complicity, Cause and Blame’, above n 5 at 374. See too R Taylor, ‘Complicity, Legal Scholarship and the Law of Unintended Consequences’ (2009) 29 Legal Studies 1. 51   R v Cogan and Leek [1976] QB 217 (CA). 52   [1976] QB 217 (CA), 223. See too Kadish, ‘Complicity, Cause and Blame’, above n 5 at 374. 53   The court seemed to think that the defendant could be viewed to have acted through the primary offender as an ‘innocent agent’, but this is surely misconceived because rape cannot be committed through an innocent agent: Simester, Spencer, Sullivan and Virgo, Simester and Sullivan’s Criminal Law, above n 19 at 206. 45 46



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though the primary wrongdoer lacked the necessary mens rea to be convicted himself.54

III.  Conduct Element The conduct element of accessory liability in the criminal sphere is very wide. It encompasses acts of procurement, assistance and encouragement.55 The conduct element of accessory liability may even be satisfied by an omission in situations where the defendant had the power to control the conduct of the primary offender but failed to do so.56 For instance, accessory liability may arise where the owner of a car who is a passenger fails to exercise his or her power to direct the driver to drive in certain ways and the car is driven carelessly;57 the licensee of a public house has the power to require customers to leave at closing-time, and may be liable as an accessory for drinking after hours if he or she fails to do so;58 employers may be liable for failing to control the acts of their employees.59 A difficult issue with which the criminal law has had to grapple is why certain sorts of conduct should lead to accessory liability. It is suggested that the most coherent explanation has been provided by Keith Smith, who has written that:60 To a large degree the appeal, or otherwise, of the present parasitic or derivative form of secondary liability turns on the acceptance of a group of fundamental tenets of responsibility; most especially the legitimacy granted to the role of causally attributed harm.

Accessory liability hinges upon the defendant’s conduct having some causal effect. However, ‘the precise extent to which it is necessary to prove a causative link between the act of assistance alleged against the secondary party and the substantive crime committed by the perpetrator is by no means clearly established in our criminal law’.61 Causation in this sense is a question of fact to be determined by

54   R v Millward [1994] Crim LR 527 (CA). cf Thornton v Mitchell [1940] 1 All ER 339 (QBD); R v Loukes [1996] 1 Cr App Rep 444 (CA). 55  The participation must contribute to the primary offence. Although the common law has imposed liability upon those who are ‘accessories after the fact’, eg by helping to cover up a crime, such defendants have a ‘different species of guilt’ (W Blackstone, Commentaries on the Laws of England, 3rd edn, vol 3 (Oxford, Clarendon Press, 1768) 40) since they bear responsibility only for the concealment, but not the commission, of the primary offence (see now Criminal Law Act 1967, s 4). Yet some wrongs may be ‘continuing’, and a defendant who offers assistance after the inception of the wrong may still assist in the completion of that wrong. 56   See A Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424, 445–447. cf Law Commission, Participating in Crime, above n 24 at paras 3.39–3.41. 57   Du Cros v Lambourne [1907] 1 KB 40. 58   Tuck v Robson [1970] 1 WLR 741 (QBD). 59   R v JF Alford Transport Ltd [1997] 2 Cr App Rep 326 (CA). 60  Smith, Treatise, above n 3 at viii. See too J Gardner, ‘Complicity and Causality’ (2007) 1 Criminal Law and Philosophy 127 and more generally the discussion at ch 2.II.B. 61   R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592, [72].

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the jury.62 Indeed, such a causal basis of accessory liability has a long pedigree 63 and continues to be regularly invoked by the courts. For example, in R v Mendez, Toulson LJ said that:64 At its most basic level, secondary liability is founded on a principle of causation, that a defendant (D) is liable for an offence committed by a principal actor (P) if by his conduct he has caused or materially contributed to the commission of the offence (with the requisite mental element); and a person who knowingly assists or encourages another to commit an offence is taken to have contributed to its commission.

Nevertheless, the causal basis of accessory liability remains controversial.65 Textbook accounts tend to suggest that whilst ‘aiding’ must actually assist but need not be communicated, ‘abetting’ and ‘counselling’ require a consensus but not causation, and only ‘procurement’ requires causation in any meaningful sense.66 Some of the difficulties stem from the fact that ‘cause’ is used by different commentators in different senses.67 The primary concern should be whether or not the conduct of the defendant had some impact upon the manner or timing of the primary offence, even if that is achieved by having an effect upon the resolve of the primary wrongdoer to carry out the crime.68 Yet it is not appropriate for any factual cause to suffice. As the Court of Appeal recognised in Stringer:69 62   R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592, [32]. See too J Dressler, ‘Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem’ (1986) 37 Hastings Law Journal 91, 128: ‘As long as we are prepared to allow juries to reach common sense conclusions about causal responsibility without requiring scientific certainty, we can reaffirm the importance of causation to accomplice liability’. In R v Stringer [2011] EWCA Crim 1396, [2012] QB 160, [51] the Court of Appeal added the sensible proviso that the issue should be withdrawn from the jury if no fair-minded jury could properly reach the conclusion that the conduct of the defendant had some causative effect. 63  Stephen, A Digest, above n 22 at art 39; M Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry; And of Other Crown Cases: to which are Added Discourses Upon a Few Branches of the Crown Law, 3rd edn (London, Clarke and Sons, reprinted 1809) 369. 64   R v Mendez [2010] EWCA Crim 516, [2011] QB 876, [18]. See too eg R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592, [72]–[74]; R v Stringer [2011] EWCA Crim 1396, [2012] QB 160, [47]–[51]; R v Luffman [2008] EWCA Crim 1379, [40]. 65   And philosophers also disagree: compare C Kutz, Complicity: Ethics and Law for a Collective Age (Cambridge, Cambridge University Press, 2000), which does not rely upon causation, and C Lepora and RE Goodin, On Complicity and Compromise (Oxford, Oxford University Press, 2013), which favours a causal analysis. 66   eg D Ormerod, Smith and Hogan’s Criminal Law, 13th edn (Oxford, Oxford University Press, 2011) 192; Simester, Spencer, Sullivan and Virgo, Simester and Sullivan’s Criminal Law, above n 19 at 208–212. 67   See generally ch 2.II.B; L Farmer, ‘Complicity Beyond Causality: A Comment’ (2007) 1 Criminal Law and Philosophy 151. In R v Kennedy (No 2) [2007] UKHL 38, [2008] 1 AC 269, [15] Lord Bingham said that ‘causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises’. See too Law Commission, Participating in Crime, above n 24 at para 2.33. 68   Kadish, ‘Complicity, Cause and Blame’, above n 5 at 359–360 suggests that it might be sufficient if the conduct of the defendant could possibly have had an effect, which would seem to represent a lower causal threshold. 69   R v Stringer [2011] EWCA Crim 1396, [2012] QB 160, [52] citing M Foster, A Report of Some Proceedings, above n 63 at 354.



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There may be cases where any assistance or encouragement provided by D is so distanced in time, place or circumstances from the conduct of P that it would be unjust to regard P’s act as done with D’s encouragement or assistance.

It would be consistent with general principles of causation70 for accessory liability only to arise if the conduct element played a more than minimal, or substantial, role in the commission of the primary offence.71 Although a requirement for a substantial causal impact has received some judicial recognition,72 it is not clearly established in the criminal law. This may be partly attributable to prosecutorial discretion:73 instances where the defendant has played only a minimal role in the primary offence are rarely pursued by the Crown Prosecution Service.74 Yet some examples of judicial preparedness to accept minimal causes can be found. In R v Giannetto,75 the Court of Appeal did not criticise a judge who thought that a person could be found guilty as an accessory if all he did, upon being told by the principal of the principal’s plan to commit a crime, was to pat the principal on the back and say ‘Oh, goody!’. It is suggested that such an approach is inappropriate, and that accessory liability should only arise where the conduct element plays a substantial role in the primary offence. Any decisions to the contrary should be treated as suspect. If the defendant can prove that the offence would have happened in exactly the same way anyway, and that his or her conduct played no more than a minimal role in the primary wrongdoer’s decision to commit the primary offence,76 then accessory liability should not lie. However, some caution should be exercised when assessing such arguments in any given case; it is very difficult to remove a ‘hindsight bias’ when considering events which have already occurred.77

 eg R v Cato (1976) 62 Cr App Rep 41 (CA).   GL Williams, Criminal Law: The General Part (London, Stevens & Sons, 1953) 294. See too Smith, Treatise, above n 3 at 82–88; Kadish, ‘Complicity, Cause and Blame’, above n 5 at 362–363. 72   R v Luffman [2008] EWCA Crim 1379, [40]. 73   Dressler (‘Reassessing the Theoretical Underpinnings’, above n 62 at 119, fn 160) has suggested that it is not satisfactory always to rely upon prosecutorial discretion: ‘Why was Herbert William Wilcox prosecuted for being an accomplice of saxophonist Coleman Hawkins, who violated the British law against aliens by accepting employment in England? See Wilcox v. Jeffery, [1951] 1 All E.R. 464. Wilcox ran a periodical, Jazz Illustrated, which published a positive review of the Hawkins concert, and Wilcox was among those who met Hawkins at the airport. We also know Wilcox applauded at the concert, because the court made a point of this fact. However, there was no evidence that Wilcox was instrumental in any way in Hawkins’ decision to come to England, or in Hawkins’ ability to obtain the concert date. Although Hawkins was somewhat more visible (by virtue of his magazine affiliation) than others, many other people, including all the spectators at the concert, were presumably subject to prosecution. Why were they not prosecuted? Why, on the other hand, was anyone other than Hawkins prosecuted? It is possible that such selective prosecution is based on factors that ought not to be a part of the prosecutorial process.’ 74   A major exception appears to be instances of joint enterprise, considered in section I.B above. 75   R v Giannetto [1997] 1 Cr App Rep 1 (CA), 13. 76   For further consideration of the role of encouragement in this context, see ch 2.II.A.ii. 77   JJ Rachlinski, ‘A Positive Psychological Theory of Judging in Hindsight’ (1998) 65 University of Chicago Law Review 571, 580: ‘Virtually every study on judging in hindsight has concluded that events seem more predictable than they actually are.’ 70 71

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One important decision that is sometimes relied upon to undermine a causal approach to accessory liability in the criminal sphere is R v Calhaem.78 The defendant hired Zajac to kill a woman. After being paid by the defendant, Zajac decided not to kill the woman, but did go to her house in order to act out a charade which would give the defendant the impression that he had intended to kill the woman. Upon Zajac’s entering the house, the woman screamed, and Zajac panicked and killed her with a hammer. The defendant argued that this act of killing was unconnected to her counselling Zajac: the defendant reasoned that Zajac killed the woman due to his state of panic, and not the defendant’s counselling, since Zajac had decided not to follow her instructions. The Court of Appeal rejected this argument, and apparently thought that it was not necessary to show that the counselling was a substantial cause of the killing. Yet it was crucial that the primary offence fell within the ‘authority’ provided by the counselling. This concept of ‘authorisation’ is unclear.79 The preferable explanation of Calhaem is actually grounded upon a causal basis.80 The court recognised that ‘it is difficult to see that counselling was not at least a substantial cause of the death’.81 If the conduct of the defendant did not contribute to the primary offence in a meaningful way then accessory liability should not lie. The causal basis of accessory liability might be questioned on the basis that the actions of the primary wrongdoer could be considered to constitute a novus actus interveniens.82 This principle is controversial in itself; Kreutzer has argued that:83 The very existence of accomplice law rejects the idea that free will creates a level of uncertainty that precludes us from imposing liability. . . . It seems almost perverse to argue that because the existence of free will makes any showing of causation suspect, we should remove causation altogether as an element of blameworthiness. In this context, the existence of free will simply creates some irreducible uncertainty about what would have happened in the counterfactual world without the accomplice’s actions.

The very existence of accessory liability might suggest an exception to the principle of novus actus interveniens.84 Or perhaps the actions of the primary offender could be considered to be insufficiently independent from the acts of the defendant to break any ‘chain of causation’ that may exist. Procurement is gener  R v Calhaem [1985] QB 808 (CA).   Keith Smith thought this decision ‘resist[s] easy comprehension’: Treatise, above n 3 at 60. 80  ibid. Wilson has remarked that ‘whatever Parker LJ thought he was saying, the effect was to create a loose causal requirement’: W Wilson, Criminal Law, 5th edn (Harlow, Pearson, 2014) 567. For support for the contention that the encouragement must have had some effect on the principal, see also Coney (1882) 8 QBD 534; Clarkson [1971] 1 WLR 1402. 81   R v Calhaem [1985] QB 808 (CA), 812. 82   See generally ch 2.II.B.i; R v Kennedy (No 2) [2007] UKHL 38, [2008] 1 AC 269; H Hart and T Honoré, Causation in the Law, 2nd edn (Oxford, Oxford University Press, 1985) 326. 83   J Kreutzer, ‘Causation and Repentance: Re-examine Complicity in Light of Attempts Doctrine’ (2008) 3 NYU Journal of Law & Liberty 155, 181. See too M Moore, Causation and Responsibility (Oxford, Oxford University Press, 2009) pt IV, especially ch 13. 84   See ch 2.II.B. 78 79



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ally considered to require an element of causation,85 and the preferable view is that the novus actus principle similarly poses no insurmountable bar to a causal analysis regarding acts of assistance and encouragement as well.

IV.  Mental Element Significantly, the necessary mental element for accessory liability does not vary according to the conduct element at issue.86 It is generally accepted that the mental element should be set at a high level.87 This reflects the fact that accessory liability is based upon a less ‘direct’ causal link than that required of the principal,88 and helps to balance the social interest in well-being and security with the individual interest of the particular defendant against the restraint of his or her liberty.89 It is uncontroversial that the assistance, encouragement or procurement must be rendered deliberately.90 In this sense, at least, intention is relevant; inadvertent conduct will not suffice. However, there is much debate about what mental element a defendant should possess as regards the primary offence. Traditionally, a defendant had to know of the primary offence in order to be convicted as an accessory, but recent cases seem to indicate a possible shift towards recklessness or foresight.

A. Intention It would be possible to demand that the defendant must act for the purpose of contributing to the primary offence in order to incur liability.91 This narrow mental element is sometimes used to explain the decision in Gillick v West Norfolk and Wisbech Area Health Authority.92 The House of Lords, by a majority, held that a doctor who provides contraceptive advice and treatment to a girl under 16 years 85   cf JC Smith, ‘Aid, Abet, Counsel or Procure’ in PR Glazebrook (ed), Reshaping the Criminal Law (London, Stevens & Sons Ltd, 1978) 134. 86   R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592, [41]: ‘[t]he required mens rea is the same for aiding, abetting counselling and procuring’. See too R v Rook [1993] 2 All ER 955 (CA). 87   Kreutzer, ‘Causation and Repentance’, above n 83 at 175. 88   Gardner, ‘Complicity’, above n 60. 89   FB Sayre, ‘Criminal Responsibility for the Acts of Another’ (1930) 43 Harvard Law Review 689, 720. See too Krebs, ‘Joint Criminal Enterprise’, above n 15 at 590. 90  eg R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592, [71]. Admittedly, this may cast some doubt upon some of the reasoning of the Supreme Court in R v Gnango [2011] UKSC 59, [2012] 1 AC 827: did Gnango really intend to encourage Bandana Man to shoot? See eg Buxton, ‘Being an Accessory’, above n 11 at 279–279. 91   W Wilson, Criminal Law, 5th edn (Harlow, Pearson Education, 2014) 575; Smith, Treatise, above n 3 at ch 5. See too United States v Peoni 100 F 2d 401 (NY 1838); Model Penal Code § 2.06(3)(a); cf Backun v United States 112 F 2d 635 (NC 1940). 92   [1986] AC 112 (HL), adopting the decision of Woolf J on the criminal law: [1984] QB 581.

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old, which facilitates unlawful sexual intercourse, should not be liable as an accessory to such unlawful acts because the doctor would not intend there to be illegal conduct. Such a doctor acts for clinical reasons in the interests of the patient; facilitating under-age sex is not the doctor’s purpose. However, Gillick is something of an outlier as regards the mental element for accessory liability,93 and ‘should probably not be treated as conclusive on the issue of accomplice liability, since their Lordships did not trouble to examine the existing authorities in their speeches’.94 After all, a defendant should not be able to avoid liability simply by saying that he or she would rather the primary offence not take place.95 Purposive intent is sufficient but not necessary for accessory liability. If intention is to be employed in this context, ‘oblique intention’ is at issue,96 but, in the context of complicity, courts have evaded the vagaries inherent in the boundaries of this controversial concept. As will be seen below, ‘lower’ mental elements are also sufficient and evince the defendant’s culpability. Gillick is a difficult case, but it should not distort the mental element of liability: it would have been preferable to decide that doctors acting reasonably in the best interests of their patients should have a defence to any accusation of being an accessory.97

B. Knowledge In Johnson v Youden, Lord Goddard CJ insisted that ‘[b]efore a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence’.98 This is the traditional test for establishing the mental element. Both the content and level of knowledge required need further examination.

i.  Content of Knowledge According to Johnson v Youden, the defendant must know the ‘essential matters’ of the offence, but ‘need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the

93   Although see too eg R v Fretwell (1862) Le & Ca 161 (CCR), 169; yet in Attorney-General v Able [1984] QB 795, 811 Woolf J thought Fretwell should be regarded as ‘confined to its own facts’. 94   A Ashworth and J Horder, Principles of Criminal Law, 7th edn (Oxford, Oxford University Press, 2013) 434. eg in R v JF Alford Transport Ltd [1997] 2 Cr App Rep 326, the Court of Appeal followed National Coal Board v Gamble [1959] 1 QB 11 (DC), 23 (Devlin J) without citing Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL); and in R v Powell and English [1999] 1 AC 1 (HL), 25 Lord Hutton expressly declined to follow the Gillick approach. 95  eg DPP for Northern Ireland v Lynch [1975] AC 653 (HL), 678 (Lord Morris); National Coal Board v Gamble [1959] 1 QB 11 (DC), 23 (Devlin J); R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592, [45] (Potter LJ). 96   Encompassing foresight of virtually certain consequences: R v Woollin [1999] 1 AC 82 (HL); Law Commission, Participating in Crime, above n 24 at para 3.88. See ch 2.III.A. 97   See now Sexual Offences Act 2003, s 73; see too section V.E below. 98   Johnson v Youden [1950] 1 KB 544 (DC), 546.



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law is not a defence’.99 The essential matters encompass both the conduct element of the primary offence, and the relevant mental element with which that offence was committed. Although knowledge of a specific offence is generally required, sometimes it is sufficient that the defendant knows that the primary offender will commit an offence, even if he or she does not know its precise nature.100 Provided that the primary offender commits an offence of the type the defendant knew would be committed, accessory liability might result.101 It is not clear what the defendant is required to know in situations where the primary offence is one of constructive liability. For example, for the offence of causing death by dangerous driving it only needs to be shown that the principal was driving dangerously, and that this caused death. The principal does not need to know that such driving might cause death. But should an accessory have to know only that the primary offender drives dangerously, or also that this could cause death? This issue remains unclear.102 Constructive offences involve a degree of ‘moral luck’,103 but to translate this from the primary offender to the accessory may be a step too far. It is suggested that it would be preferable for accessory liability to attach only to the dangerous driving – which could be known – rather than extend to causing death by dangerous driving, which is unknowable; the ‘moral luck’ regarding the outcome of the dangerous driving should be affixed to the principal offender alone.104

ii.  Standard of Knowledge The requirement of knowledge generally demands actual knowledge on the part of the defendant. This is consistent with the criminal law’s focus upon subjective fault in order to ensure appropriate levels of culpability.105 A defendant who actually knows that he or she is participating in a primary offence has the opportunity to decide not to proceed with a course of conduct. The situation is different where the defendant merely ought to have known of the essential matters of the primary offence.106

 ibid.   See generally ch 2.III.B. 101   R v Bainbridge [1960] 1 QB 129 (CCA), discussed in ch 2.III.B.i. See too DPP for Northern Ireland v Maxwell [1978] 3 All ER 1140 (HL). For a critical analysis of the development of this approach in the criminal context, see J Spencer, ‘Trying to Help Another Person Commit a Crime’ in P Smith (ed), Criminal Law: Essays in Honour of J.C. Smith (London, Butterworths, 1987) 149–151. 102   See eg R v Webster [2006] EWCA Crim 415, [2006] 2 Cr App Rep 6; R v Martin [2010] EWCA Crim 1450, [2011] RTR 46; see generally S Cunningham, ‘Complicating Complicity: Aiding and Abetting Causing Death by Dangerous Driving in R v Martin’ (2011) 74 MLR 767. 103   Which is perhaps justifiable due to the ‘intrinsic risk’ of the activity: A Simester, ‘Is Strict Liability Always Wrong?’ in A Simester (ed), Appraising Strict Liability (Oxford, Oxford University Press, 2005) 44–46. 104   See similarly Cunningham, ‘Complicating Complicity’, above n 102 at 777. 105   cf R v G [2003] UKHL 50, [2004] 1 AC 1034. 106   Although it has nevertheless sometimes been suggested that this lower level of fault ought to suffice: Canadian Criminal Code, s 22. 99

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However, consciously turning a blind eye to something, despite having the means to find out what that something is, can sensibly be categorised ‘in the same moral case as a person who has explicit knowledge’.107 Thus it may be sufficient for the defendant to know facts that should obviously lead to knowledge of the primary offence; deliberately ignoring those known facts could justify accessory liability. This might explain why it is sufficient for a defendant only to know of the type of offence which the principal will commit: if the defendant deliberately fails to find out which precise offence will be committed, he or she takes the risk of a share of the responsibility for the consequences which follow.108

C. Recklessness Recklessness should be assessed subjectively:109 the defendant should actually contemplate, or foresee the possibility of, the occurrence of the primary offence when providing the relevant assistance, encouragement or procurement. Recklessness also requires that it then be unreasonable for the defendant to take the risk that the primary offence occur.110 The suggestion that recklessness satisfies the mental element of accessory liability might be compatible with the decision in Blakeley v DPP.111 The defendant laced the principal’s drink with alcohol in an attempt to get him to spend the night with her rather than drive home. However, the principal did drive home whilst drunk, and the court held that the defendant could have been convicted as an accessory to the offence of drink driving if she had foreseen the possibility of the principal’s driving whilst drunk. In Powell and English,112 the House of Lords made it clear that recklessness is sufficient for joint enterprise liability, and this may have had some effect upon the mental element generally demanded in the neighbouring context of accessory liability.113 Such decisions dilute the knowledge requirement enunciated in Johnson v Youden. This is unfortunate.114 Given the wide conduct element of accessory liability, a narrower mental element should be required in order to ensure that liability does not expand too far.115 The net of accessory liability would be cast very 107   G Sullivan, ‘Knowledge, Belief and Culpability’ in S Shute and AP Simester (eds), Criminal Law Theory: Doctrines of the General Part (Oxford, Oxford University Press, 2002) 213. 108   This has been called ‘reckless knowledge’: Ashworth and Horder, Principles of Criminal Law, above n 94 at 435–436. 109  eg R v Webster [2006] EWCA Crim 415, [2006] 2 Cr App Rep 6, [25]. See too R v G [2003] UKHL 50, [2004] 1 AC 1034. 110   See eg Spencer, ‘Trying to Help’, above n 101 at 149–151. 111   Blakeley v DPP [1991] RTR 405 (DC). See too Carter v Richardson [1974] RTR 314 (QBD). 112   [1999] AC 1 (HL). 113  eg R v Webster [2006] EWCA Crim 415, [2006] 2 Cr App Rep 6, [23]. 114   Other common law jurisdictions have consistently rejected recklessness as a mental element in this context: Australia: Giorgianni v R (1985) 156 CLR 473 (HCA); New Zealand: Millar v Ministry of Transport [1986] 1 NZLR 660 (NZCA), 674 (McMullin J); Canada: Preston v R [1949] SCR 156 (SCC); R v Dunlop [1979] 2 SCR 881 (SCC); US: United States v Peoni 100 F 2d 401 (NY 1838). 115   Ashworth and Horder, Principles of Criminal Law, above n 94 at 432–433.



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widely indeed if it could catch a defendant who simply thought it a possibility that a crime be committed when carrying out an ordinary act in offering goods for sale, for example.116 As Simester has argued, ‘Simply put: if my action is lawful and not wrong, someone else’s crime does not become my lookout – and should not be my moral or legal responsibility – simply because I foresee its possibility. Something more is required’.117 That ‘something more’ is knowledge, which provides the normative function of justifying and constraining accessory liability, ensuring that the defendant’s freedom of action is not unduly curtailed.118 In any event, it is not clear that ‘recklessness’ rather than ‘knowledge’ really is sufficient for accessory liability in English law. Ashworth and Horder have observed that ‘[c]ases in which recklessness is relied upon have been rare’,119 and Simester has carefully argued that decisions highlighting the possibility of recklessness as a fault element tend to go further than is required to decide the appeals in question, and therefore supply only obiter dicta.120 Joint enterprise liability is separate from ‘ordinary’ accessory liability based upon ‘aid, abet, counsel or procure’,121 so even if recklessness is sufficient in the former context, that does not necessarily mean that the same is true for accessory liability. Nevertheless, the criminal law appears to be at least seriously flirting with a broader mental element of recklessness.122 Such a departure from the more traditional approach of the common law seems to be based upon a desire to criminalise what is perceived to be culpable conduct, but this risks over-criminalisation.123 

D. Negligence It follows from the discussion above that mere negligence is insufficient for accessory liability. This remains true even if the principal offence requires a lesser fault element. For example, in Callow v Tillstone,124 a butcher asked a veterinary surgeon to examine some meat, and the vet provided a certificate that the meat was sound. Unfortunately, the examination had been negligently conducted and the meat was unsound. The butcher was liable for the sale of unsound meat, a strict liability offence. But even though the vet was more at fault than the butcher, the vet could not be liable as an accessory because he had simply been negligent. A more demanding mental element is required for accessory liability.   cf National Coal Board v Gamble [1959] 1 QB 11 (DC).   Simester, ‘The Mental Element’, above n 19 at 589–590 (emphasis added). 118   ibid 588–591. 119   Ashworth and Horder, Principles of Criminal Law, above n 94 at 433. 120   Simester, ‘The Mental Element’, above n 19 at 585–588. 121   See section I.B above. 122   See eg R v Rook [1993] 2 All ER 955 (CA); R v Webster [2006] EWCA Crim 415, [2006] 2 Cr App Rep 6; R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592; Crown Court Bench Book – Directing the Jury, 3rd edn (Judicial Studies Board, 2010) 59. 123   Simester, ‘The Mental Element’, above n 19 at 591–593. 124   Callow v Tillstone (1900) 83 LT 411 (QBD). 116 117

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V. Defences Knowing participation in a primary offence only gives rise to prima facie liability; a defendant may be able to rely upon a defence.125 These defences are generally mirrored in the private law,126 and will be subject to further examination in chapter seven.

A.  Defences Available to the Principal The principal may have a defence which leads to him or her being acquitted of the primary offence. A defendant might also be able to rely upon this in order to evade accessory liability. In R v Luffman,127 the defendants were prosecuted as accessories to a murder committed by Thomas Convery as the principal offender. The defendants argued that Convery only killed in self-defence; on the facts, this contention was clearly rejected, yet had it been true, Convery’s defence of selfdefence may also have assisted the defendants.128 This is because the killing could have been considered to be justified, so on one view there would be no wrongful act to which accessory liability could attach. However, it may be too quick automatically to assume that no accessory liability can lie where the principal has a defence of self-defence: it might depend upon whether or not the defendant realised that defensive force was justified.129 For example, if the defendant persuaded 125   The focus here will be on ‘additional’ arguments a defendant might raise if he or she satisfies the required conduct and mental elements for accessory liability: see generally J Goudkamp, Tort Law Defences (Oxford, Hart Publishing, 2013) 1–7. A lack of the required mental element is therefore not considered to be a defence: the burden here rests upon the prosecution rather than the defendant. So, if the principal commits a fundamentally different sort of act from that known or intended by the defendant, the latter will not be liable as an accessory, since ‘an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors’ will spare the defendant from accessory liability (R v Anderson and Morris [1966] 2 QB 110 (CCA), 120 (Lord Parker CJ); see too R v Mendez [2010] EWCA Crim 516, [2011] QB 876, [20]). But this is essentially a question of the necessary mental element, rather than a particular defence. For further consideration of what constitutes a ‘fundamentally different’ act see eg R v Rahman [2008] UKHL 45, [2009] 1 AC 129. 126   One important exception concerns the ‘Tyrell principle’: a victim of a crime will not be liable as an accessory to it if the victim falls within a category of persons protected by the principal offence: R v Tyrell [1894] 1 QB 710; Law Commission, Participating in Crime, above n 24, Draft Bill, cl 16; Serious Crimes Act 2007, s 51. However, it is difficult to see how this defence can apply in the civil context, and it will not be examined further here; in any event, its boundaries remain unclear: see generally R v Gnango [2011] UKSC 59, [2012] 1 AC 827; Buxton, ‘Being an Accessory’, above n 11 at 280; B Hogan, ‘Victims as Parties to Crime’ [1962] Criminal Law Review 683; G Williams, ‘Victims as Parties to Crime – A Further Comment’ [1964] Criminal Law Review 686; G Williams, ‘Victims and Other Exempt Parties in Crime’ (1990) 10 Legal Studies 245; J Herring, ‘Victims as Defendants: When Victims Participate in Crimes Against Themselves’ in AM Reed and M Bohlander (eds), Participation in Crime: Domestic and Comparative Perspectives (Farnham, Ashgate Publishing, 2013). 127   R v Luffman [2008] EWCA Crim 1379. 128   eg ibid [18]. 129   See eg Goudkamp, Tort Law Defences, above n 125 at 143.

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a victim to pretend to attack a principal but not actually harm the principal, and the principal was unaware of this, then the principal might be able to use reasonable force to protect himself from the objectively dangerous attack. But if the defendant encouraged the principal to use such force, despite knowing that the attack was only pretend, there seems to be no reason for the defendant to escape liability just because the principal was acting in self-defence. If the principal relies upon a defence which is not a justification but rather an excuse, then that excuse is personal to the principal and cannot be relied upon by the accessory. For example, if pressure was exerted upon the principal such that he or she would have a defence of duress, there is no reason necessarily to excuse the accessory as well; the accessory may not have been subject to any pressure at all.130 In such circumstances, a wrong will still have been committed, and accessory liability can attach to that wrongful conduct. 131

B. Withdrawal In R v O’Flaherty, Mantell LJ said that ‘[a] person who unequivocally withdraws from a joint enterprise before the moment of the actual commission of the crime by the principal . . . should not be liable for that crime’.132 Although the basis and boundaries of this defence of withdrawal have not been clearly enunciated,133 it is suggested that the defendant should normally be required to negate the causal impact of his or her conduct: the defendant would not then bear any responsibility for the harm caused.134 Mere repentance alone is clearly inadequate.135 In R v Becerra and Cooper, the defendant handed the principal a knife to be used on anyone interfering with a burglary. When the victim appeared, the defendant said, ‘Come on, let’s go!’ and left through a window. The Court held that this was clearly ineffective as a withdrawal, and that greater intervention was required.136 Even when the principal offence occurs spontaneously, rarely will it be sufficient for a defendant simply to walk away.137 The defendant’s withdrawal should be 130   Indeed, the accessory may have been the person exerting the pressure: cf R v Bourne (1952) 36 Cr App Rep 125 (CCA). 131   See eg Kadish, ‘Complicity, Cause and Blame’, above n 5 at 380–381. The same is true where the principal enjoys a defence of entrapment or diplomatic immunity: Kadish, ‘Complicity, Cause and Blame’, above n 5 at 341. 132   R v O’Flaherty [2004] EWCA Crim 526, [2004] Crim LR 751, [58]; R v Mitchell [2008] EWCA Crim 2552, [2009] 1 Cr App Rep 438; R v Campbell [2009] EWCA Crim 50. 133   See KJM Smith, ‘Withdrawal in Complicity: A Restatement of Principles’ [2001] Criminal Law Review 769; A Reed, ‘Repentance and Forgiveness: Withdrawal from Participation Liability and the Proportionality Test’ in AM Reed and M Bohlander (eds), Participation in Crime: Domestic and Comparative Perspectives (Farnham, Ashgate Publishing, 2013). 134   Law Commission, Participating in Crime, above n 24 at para 3.67; D Lanham, ‘Accomplices and Withdrawal’ (1981) 97 LQR 575. 135   R v Becerra and Cooper (1975) 62 Crim App Rep 212 (CA); R v Rook [1993] 2 All ER 955 (CA); R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592, [75]. 136   See similarly R v Campbell [2009] EWCA Crim 50. 137   R v Mitchell and King [1999] Crim LR 496 (CA) was restricted in R v Robinson (Unreported, 3 February 2000 (CA)).

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communicated to the principal, such that the latter has ‘unequivocal notice’ that if he or she proceeds, he or she does so without the further aid and assistance of the withdrawing party.138 This must obviously occur prior to the primary offence,139 and it seems sensible to demand some sort of proportionality between the conduct element and withdrawal, such that ‘the greater D’s encouragement or assistance, and the closer D’s purported withdrawal is to the commission of the offence, the harder it should be for D to claim that he or she successfully negated the effect of his or her conduct’.140 Whether or not the defence of withdrawal is enlivened is a matter of fact and degree.141 In some situations, it might be necessary to inform the police in order to prevent the occurrence of the primary offence.

C. Duress Duress is generally available as a defence in the criminal law, and might be invoked by both principals and accessories. It may be available to an accessory in situations where it does not assist a principal. However, although it was previously the case that accessories could rely upon a defence of duress even regarding murder charges,142 this defence is no longer available in such circumstances.143 This is controversial and, on balance, seems inappropriate.144 Yet this issue is really linked to English law’s approach to murder, and is not peculiar to accessories.

D.  Preventing the Commission of an Offence A defendant who assists an offence in order to prevent a crime could have a defence to accessory liability.145 For example, in Clarke,146 the defendant knowingly assisted a burglary but was acquitted because he only participated in the offence in order to help the police capture both the burglars and the stolen property. This defence of acting for the purpose of assisting law enforcement has also been recognised as regards inchoate liability for assisting or encouraging crime.147 138   R v Becerra (1975) 62 Crim App Rep 212 (CA), 218 (Roskill LJ). In some instances where communication to the principal is not possible, the defendant may be required to inform the police of the planned crime in good time to allow that police to prevent it. 139   R v Saunders and Archer (1573) 2 Plowd 473, 476. 140   Law Commission, Participating in Crime, above n 24 at para 3.66. See too R v O’Flaherty [2004] EWCA Crim 526, [2004] Crim LR 751, [60]. 141   R v O’Flaherty [2004] EWCA Crim 526, [2004] Crim LR 751, [60] (Mantell LJ); R v Rajakumar [2013] EWCA Crim 1512, [2014] 1 Cr App Rep 12, [42]–[52] (Davis LJ). 142   DPP for Northern Ireland v Lynch [1975] AC 653 (HL). 143   R v Howe [1987] AC 417 (HL). 144   A Reed, ‘The Need for a New Anglo-American Approach to Duress’ (1996) 61 Journal of Criminal Law 209. 145   But police officers must be careful about entrapment: R v Looseley; A-G’s Reference (No 3 of 2000) [2001] UKHL 53, [2002] 1 Cr App Rep 360. 146   R v Clarke (1984) 80 Cr App Rep 344 (CA). 147   Serious Crimes Act 2007, s 50. cf R v Smith [1960] 2 QB 423 (CCA); Yip Chiu-Cheung v R [1995] 1 AC 111 (PC).



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E.  Acting Reasonably Where the defendant has acted reasonably, convicting him or her as an accessory may be considered to be unfair. A defence of ‘acting reasonably’ might therefore be appropriate. Such a defence has been explicitly recognised in section 50 of the Serious Crime Act 2007 as regards the inchoate offence of assisting or encouraging crime. It is not so clearly entrenched in the common law, however;148 this may be partly due to the fact that prosecutors may exercise their discretion and refrain from prosecuting those who have acted reasonably, and jurors may simply choose to acquit defendants who have not acted unreasonably. The application of any ‘acting reasonably’ defence would depend upon the particular facts at issue, and the contours of such a defence are difficult to define with precision. Factors to be considered include the seriousness of the primary offence, the purposes for which the defendant was acting, and any authority by which the defendant was acting.149 So, this defence might have applied on the facts of Gillick,150 and generally cover those who act reasonably in the course of their employment. Glanville Williams expressed the view that ‘[t]he seller of an ordinary marketable commodity is not his buyer’s keeper in criminal law unless he is specifically made so by statute. Any other rule would be too wide an extension of criminal responsibility’.151 However, this approach may be too blunt; the sale of a gun by a shop assistant, knowing that it will be used to kill someone,152 and the sale of spray paint by a check-out assistant who knows it will be used to cause criminal damage,153 might be distinguished on their facts and raise difficult questions concerning the outer limits of criminalisation.154 What constitutes reasonableness depends upon the circumstances of any given case and must be a question of fact for the jury.

VI.  Nature of Liability Section 8 of the Accessories and Abettors Act 1861 provides that an accessory ‘shall be liable to be tried, indicted, and punished as a principal offender’155 in 148   Arguably, such a defence would not be needed were the mental element of accessory liability to be confined to intentional participation in a primary offence: Law Commission, Participating in Crime, above n 24 at para 5.6. 149   Serious Crimes Act 2007, s 50(3). 150   See section IV.A above. This defence might also be broad enough to cover acting to prevent the commission of crime. 151  Williams, Criminal Law, above n 71 at 373. 152   National Coal Board v Gamble [1959] 1 QB 11 (DC), 23. 153   Law Commission, Inchoate Liability for Assisting and Encouraging Crime (Law Com No 300, 2006) para A.63. 154   AP Simester and A von Hirsch, Crimes, Harms and Wrongs: On the Principles of Criminalisation (Oxford, Hart Publishing, 2011) 83–85. 155   Emphasis added. In 1993, the Law Commission wrote that ‘“[a]iding and abetting” is not in law a separate offence, but only a means of committing the offence abetted’: Law Commission, Assisting

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English law. This might suggest that only one offence is at issue.156 In Surujpaul v R, Lord Tucker cited with approval the following passage of Russell on Crime:157 [W]hen the law relating to principals and accessories as such is under consideration there is only one crime, although there may be more than one person criminally liable in respect of it . . . There is one crime, and that it has been committed must be established before there can be any question of criminal guilt of participation in it. . .

Nevertheless, it is possible that the accessory be convicted of a different offence to the principal: for example, the accessory may be convicted of murder but the principal guilty only of manslaughter.158 The accessory may be convicted even where the primary offender is acquitted.159 The liability of the accessory does not necessarily duplicate that of the primary offender.160 The relative culpability of the parties may be very different,161 and they contribute to the victim’s harm in different ways.162 Such factors indicate that the nature of the accessory’s liability is different from that of the principal; concerns of fair labelling suggest that it would be preferable explicitly to convict a defendant as an accessory to an offence rather than as a principal offender,163 contrary to the deeming provision of the 1861 Act. If a woman encourages a man to rape somebody, it seems odd to call the woman a ‘rapist’ when she is incapable of committing rape as a principal.164 It would be more appropriate for her to be convicted as an ‘accessory to rape’. An accessory is liable for his or her own, distinct contribution to the harm occasioned. Such an approach would highlight the important differences165 that exist between principals and accessories. A failure to do so might exacerbate a tendency and Encouraging Crime (Law Com No 131, 1993) para 1.11. Contrast the earlier tendency of the common law to call accessories ‘principals in the second degree’ or ‘accessories before the fact’, which helped further to distinguish principals and accessories. 156   This is perhaps exacerbated by the language of ‘secondary liability’: see ch 2.IV. If such language is to be employed in the criminal context, it may be in the sense advocated in R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App Rep 592, [38]: ‘It seems to us that, in one respect at least, the term “secondary parties” is preferable because it emphasises that the secondary liability of an accomplice is derivative from the liability of the principal offender’. 157   Surujpaul v R [1958] 3 All ER 300 (PC), 301 citing JW Cecil Turner (ed), Russell on Crime, 11th edn (London, Stevens & Sons, 1958) 134–135. 158   R v Howe [1987] AC 417 (HL), rejecting the reasoning in R v Richards [1974] QB 776 (CA). 159   See section V.A above. The liability of the accessory will not be affected or diminished by the diminished responsibility of the primary offender (Homicide Act 1957, s 2(4)) or the primary offender’s loss of self-control (Coroners and Justice Act 2009, s 54(8)). 160  The accessory may receive a more severe or more lenient sentence than the principal: R v Broadbridge (1983) 5 Cr App Rep (S) 269 (CA); PJ Richardson (ed), Archbold Criminal Pleading, Evidence and Practice (London, Sweet & Maxwell, 2014) paras 5-154–5-159. The exception concerns murder, for which a life sentence is mandatory. 161   Although Germany systematically reduces the sentence of the accessory, this will not invariably be appropriate: see GP Fletcher, Rethinking Criminal Law (Boston, Little, Brown and Co, 1978) 649– 657. 162   Gardner, ‘Complicity’, above n 60; Kadish, ‘Complicity, Cause and Blame’, above n 5 at 337; cf Dressler, ‘Reassessing the Theoretical Underpinnings’, above n 62 at 109. 163   cf Simester, ‘The Mental Element’, above n 19 at 580. 164   People v Hernandez 18 Cal App 3d 651 (Cal 1971); Smith, Treatise, above n 3 at 107–110. 165   Notably the elements of liability, available defences and appropriate punishments.



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to blur the distinction between principal and accessory liability. For instance, in Gnango, Lord Phillips and Lord Judge thought that whether a person was convicted as a principal offender or accessory was ‘not a difference of substance’.166 Sir Richard Buxton has described such comments as ‘a matter of some concern . . .Where the two routes to a conviction depend on different analyses of complex facts, the prosecution at the trial should be required to nail its colours to one or other of those different theories. The fair charging rules in art.6(3)(a) of the European Convention require no less’.167

VII.  Rationales of Liability Case law has not clearly enunciated the rationales for accessory liability in the criminal law. Given reasons tend to overlap and, in some instances, contradict one another. Keith Smith observed that ‘[s]urveying complicity’s hazy theoretical landscape can, depending on the commentator’s nerve, temperament, and resilience, induce feelings running from hand-rubbing relish to hand-on-the-brow gloom’.168 Nevertheless, some general, important considerations may still be discerned.

A. Responsibility Accessory liability is not inchoate and the defendant must bear some responsibility for the primary offence committed.169 This is consistent with the need for the conduct of the accessory to have contributed to the occurrence of the harm. Acts of assistance, encouragement or inducement may all contribute to, and make the defendant responsible for, the harm inflicted.170

B. Culpability The requirement of a subjective mental element suggests that the defendant must be culpable. A demand for some sort of moral congruence between the accessory and principal might lead to calls for the accessory to have to intend the primary offence before liability will arise,171 but a sufficient degree of culpability can be   R v Gnango [2011] UKSC 59, [2012] 1 AC 827, [62].   Buxton, ‘Being an Accessory’, above n 11 at 279. 168  Smith, Treatise, above n 3 at 4. 169   Simester, ‘The Mental Element’, above n 19 at 600. 170   See K Smith, ‘The Law Commission Consultation Paper on Complicity: (1) A Blueprint for Rationalism’ [1994] Criminal Law Review 239, 244; Gardner, ‘Complicity’, above n 60 at 128: accessories make ‘a difference to the difference that principals make’. 171   eg Dressler, ‘Reassessing the Theoretical Underpinnings’, above n 62 at 411, Kadish, ‘Complicity, Cause and Blame’, above n 5 at 453. 166 167

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evidenced by lesser mental elements. For instance, it is generally inappropriate for defendants to participate in an offence knowing that a crime will be committed. Although a reckless defendant may also seem to be morally blameworthy, recklessness should not ground accessory liability. Culpability alone is not enough;172 the defendant’s freedom of action must also be respected, and this would be unduly curtailed were the boundaries of criminal liability to be extended too far such that liability could be imposed merely on the basis of foresight of a possibility that an offence be committed.173

C.  Evidential Considerations The common law previously labelled accessories ‘principals in the second degree’ or ‘accessories before the fact’. Procedural considerations subsequently led to an amalgamation of liability, such that accessories are convicted ‘as principals’: the prosecution can obtain a conviction even if it cannot be proved whether the accused was a principal or an accessory, provided that he or she must have been one or the other.174 However, such forensic considerations would not necessarily be lost by insisting upon a separate label of ‘accessory liability’: if the prosecution can prove that a defendant must have been either the principal or the assister, that defendant could be convicted of at least assisting the offence and sentenced accordingly.

D.  Public Acceptability It is important that those who knowingly participate in criminal offences are sanctioned. As Lord Steyn remarked in Powell and English, accessory liability deals with an ‘important social problem’.175 It seems that offences are more likely to occur in groups, and that it is therefore appropriate to seek to deter accessories and punish them if they do participate in crimes.176 But this does not inevitably mean that accessories should be punished as principals; public acceptability may also demand adherence to the principle of ‘fair labelling’, such that a person who facilitates a murder should be convicted as an ‘accessory to murder’ rather than a ‘murderer’.177 172   ‘Frequently, the approach of the courts has been to focus on the defendant’s culpability; hence the drift toward recklessness as sufficient mens rea for aiding and abetting. Ex post, when the deed is done, this perspective may well be tempting. But it is simplistic. Rather like the law of omissions, culpability is not enough’: Simester, ‘The Mental Element’, above n 19 at 600. 173   ibid 582–583. 174  eg R v Swindall and Osborne (1846) 2 Car & Kir 230; R v Giannetto [1997] 1 Cr App Rep 1 (CA); R v Mercer [2001] EWCA Crim 638. 175   [1999] 1 AC 1 (HL), 14. 176  See eg PH Robinson and JM Darley, ‘Does Criminal Law Deter? A Behavioural Science Investigation’ (2004) 24 OJLS 173, eg 180–181. 177   D Husak, ‘Abetting a Crime’ (2014) 33 Law and Philosophy 41.

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VIII. Conclusions The criminal law of complicity is a notoriously difficult area. It ‘raises some of the most difficult questions that can be asked . . . and can test almost to destruction our theories and concepts by which we hold an individual accountable in the relatively more simple case where he or she is acting in isolation’.178 Yet some understanding of the criminal law is important to accessory liability more widely. There continue to be calls to look across to the criminal law from the civil law.179 In some circumstances, the primary offence will be both a crime and an equitable wrong or a tort. If different approaches are to be adopted in different areas, this clearly requires further consideration;180 but references to the criminal sphere in the private law context must be wary of the varying import of the principles and policies underpinning the two areas, and some lack of clarity concerning the content of criminal doctrine. Nevertheless, five general observations are worth emphasising and bearing in mind when considering accessory liability in the private law. First, the criminal law does not alter its approach to accessory liability depending upon the precise nature of the primary offence: the same conduct elements, mental element and defences apply. Secondly, the elements of liability appear to consist of a broad conduct element and a narrow mental element. Thirdly, some sort of contribution to the primary wrong is required. Fourthly, a range of defences might help a defendant; however, the nature and availability of such defences have perhaps been obscured by the generally prudent exercise of prosecutorial discretion: those who act reasonably are rarely brought to trial, even if they appear to satisfy the requisite conduct and mental elements for accessory liability. Fifthly, although the language of ‘secondary liability’ is used to describe a defendant’s liability, this rarely means that the punishment of the secondary party will duplicate that of the primary offender.

  Taylor, ‘Procuring, Causation, Innocent Agency’, above n 37 at 32.   See eg Gummow, ‘Knowing Assistance’, above n 1. 180   See further ch 9. 178 179

4 Equity To include a discrete chapter on ‘equity’ may seem odd. ‘Equity’ is a body of law which traditionally operates to mitigate the harshness of the common law.1 If equity is to be contrasted with something, it should be the common law rather than ‘contract’ and ‘tort’. Indeed, equitable principles operate within the common law doctrines of contract and tort, and are increasingly assimilated within them.2 Nevertheless, separate consideration of equity is helpful here: the role of accessory liability in protecting equitable rights has developed differently from parallel areas of the common law and traditionally, at least, is thought to remain distinct. Accessory liability has struggled to establish a clear definition and identity amidst the mass of cases which have been brought against defendants who are third parties to a primary equitable relationship. However, more recent developments have led to a better appreciation of the importance of delineating the scope and nature of accessory liability. The decision of the Privy Council in Royal Brunei Airlines Sdn Bhd v Tan in 1995 represents something of a fresh start: Lord Nicholls explicitly recognised an ‘accessory liability principle’ and it now appears that a defendant who dishonestly assists a breach of an equitable duty will incur liability.3

I.  Seeds of Confusion: The Effect of Barnes v Addy Traditionally, claims against accessories are considered together with other types of claims which a beneficiary might make against a third party. This has served to obscure the accessorial nature of liability, and important concepts have been confused by drawing analogies with instances of liability of a different nature. At the root of many of the difficulties lies the decision of the Court of Appeal in Barnes v Addy.4

  Lord Dudley v Lady Dudley (1705) Prec Ch 241, 244.   See eg A Burrows, ‘We do this at Common Law but that in Equity’ (2002) 22 OJLS 1. 3   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC). 4   Barnes v Addy (1874) LR 9 Ch App 244 (CA). 1 2



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John Addy held property on trust for Ann Barnes for life, and thereafter for her children. Addy fell out with Ann Barnes’ husband, Henry Barnes, and decided that he no longer wished to be trustee of the trust fund. He decided to transfer the property to Mr Barnes to hold on trust on similar terms. Addy’s solicitor, Mr Duffield, advised Addy of the risk of Mr Barnes’ misappropriating the trust money, but Addy thought that such a possibility was unlikely and instructed Duffield to prepare the deeds necessary to transfer the trust to Mr Barnes. Duffield reluctantly carried out this work, and also prepared a deed of indemnity which he advised Addy to take from Mr Barnes. All these documents were examined by Mr Preston, a solicitor who acted not only for Mr Barnes, but also for Mrs Barnes and her children. Mrs Barnes was happy with this arrangement, and with the proposed transfer of trusteeship. The deeds were therefore executed. Upon becoming trustee, Barnes sold the trust property, which consisted of consols, and invested the proceeds in his own business. Unfortunately, Barnes soon became bankrupt. The children then brought a claim against Addy5 for breach of trust in transferring the trust to the trusteeship of Barnes alone. Wickens VC upheld this claim.6 Significantly, the children also sued both Duffield and Preston. This claim was unsuccessful before Wickens VC, and the children appealed. The Court of Appeal dismissed this appeal. It is worth considering why the children wished to sue the solicitors as well as the trustee who committed the primary wrong of breach of trust. The answer undoubtedly lies in the fact that the children were unlikely to gain full satisfaction through a claim against Addy alone. But the judges clearly thought that the claims against the solicitors had little merit. Preston had no idea that any improper application of the trust fund was contemplated. Duffield may have had such an inkling, but since he initially advised against the transfer, acted in accordance with his instructions, prepared a deed of indemnity and insisted upon Ann Barnes’ seeking the opinion of a solicitor for both herself and her children, the court thought that Duffield should not be liable. The Court of Appeal felt able to hand down judgment ex tempore. The crucial, oft-cited passage of the decision was given by Lord Selborne LC:7 [I]n this case we have to deal with certain persons who are trustees, and with certain other persons who are not trustees. That is a distinction to be borne in mind throughout the case. Those who create a trust clothe the trustee with a legal power and control over the trust property, imposing on him a corresponding responsibility. That responsibility may no doubt be extended in equity to others who are not properly trustees, if they are found either making themselves trustees de son tort, or actually participating in any fraudulent conduct of the trustee to the injury of the cestui que trust. But, on the other hand, strangers are not to be made constructive trustees merely because they act as the agents of trustees in transactions within their legal powers, transactions, perhaps of which a Court of Equity may disapprove, unless those agents receive and become   The claim was actually brought against Addy’s estate: Addy had died in the intervening period.   (1873) 28 LT 398. 7   (1874) 9 Ch App 244 (CA), 251–252. 5 6

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Equity chargeable with some part of the trust property, or unless they assist with knowledge in a dishonest and fraudulent design on the part of the trustees.

Given that this judgment was unreserved, it is perhaps surprising that it became so influential. In Soar v Ashwell in 1893, the Court of Appeal recognised that Lord Selborne’s judgment may not be comprehensive.8 Nevertheless, the above passage has cast a long shadow over the development of the law in this area; in Tan, Lord Nicholls noted ‘a tendency to cite and interpret and apply Lord Selborne LC’s formulation in Barnes v Addy . . . as though it were a statute’.9 Lord Selborne identified three possible claims which could be made against a third party to the trust. First, a party who intermeddles with trust affairs may thereby become a trustee de son tort. Secondly, a defendant may incur liability due to his or her receipt of trust property. Thirdly, a claim may be available against a third party who assists a breach of trust. In all instances it is traditionally said that the defendant would be liable as a ‘constructive trustee’; this has perhaps led to elisions being made between the three areas. But, as will be seen, the label of ‘constructive trustee’ sits uncomfortably with those liable as accessories: defendants who induce or assist a wrong will not necessarily receive any property which could be held on trust.10 It is important to explain why the three claims highlighted by Lord Selborne are best considered to be separate and distinct.

A. Trustee de son tort A person may become a trustee de son tort, or a ‘trustee by his own wrong’, in two situations. First, where a person assumes the position of a trustee and intends to act as trustee, even though he or she has not been properly appointed.11 Alternatively, such trusteeship might arise where a person has obtained such command or control of trust property that he or she can call for title to the property to be vested in him or her.12 Although it is sometimes said that a trustee de son tort is liable as a constructive trustee,13 the better view is that the defendant is liable as an express trustee.14 This is because the intermeddling with an existing trust and decision to carry out acts   Soar v Ashwell [1893] 2 QB 390 (CA).   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 386. Similarly, Finn noted the ‘almost biblical reverence being shown this observation’ (P Finn, ‘The Liability of Third Parties for Knowing Receipt or Assistance’ in DWM Waters (ed), Equity, Fiduciaries and Trusts (Toronto, Carswell, 1993) 205), and Harpum lamented that ‘[t]his dictum has over the years been invested with the status of a legislative text, and has been construed entirely out of context with predictably undesirable consequences’ (C Harpum, ‘The Stranger as Constructive Trustee: Part 1’ (1986) 102 LQR 114, 145). 10  eg Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366, [141]–[142] (Lord Millett); Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355. 11   Mara v Browne [1896] 1 Ch 199 (CA), 209 (AL Smith LJ). 12   Re Barney [1892] 2 Ch 265, 273 (Kekewich J); Soar v Ashwell [1893] 2 QB 390 (CA), 394 (Lord Esher MR). 13   Soar v Ashwell [1893] 2 QB 390 (CA), 405 (Kay LJ). 14   ibid 394 (Lord Esher MR). 8 9



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characteristic of a trustee are sufficient to make the defendant an actual trustee.15 Lord Millett has said that a trustee de son tort is better described as a de facto trustee and subject to the same fiduciary obligations as if duly appointed.16 There may be no breach of trust committed by anyone other than the trustee de son tort. Liability is not parasitic upon a wrong committed by another. As a result, liability as a trustee de son tort is unrelated to accessory liability.

B.  Receipt-based Liability In Barnes v Addy, Lord Selborne recognised that a third party to a trust might be liable if he or she received trust property. Such property must have been received in breach of trust or fiduciary duty, and the defendant must know of that primary breach of duty in order to be liable for ‘knowing receipt’, which has recently been re-cast as ‘unconscionable receipt’.17 It is important that the property in question be received by the defendant beneficially.18 There are thus important similarities with assistance liability: both are dependent upon a primary wrong and require the defendant to be at fault. Indeed, there are judges who have sought, to some degree, to assimilate ‘knowing receipt’ and ‘knowing assistance’. For example, in Karak Rubber Co Ltd v Burden (No 2),19 Brightman J did not see ‘any particular logic’ in having different fault requirements for the two.20 It has sometimes been argued that receipt-based claims should be considered together with assistance liability because both are premised upon participation in a primary wrong.21 Dietrich and Ridge have argued that knowing receipt is best viewed as a ‘subset’ of knowing assistance.22 However, it is suggested that the better view is that liability in knowing receipt is not participatory at all. Simply receiving misapplied property is inherently passive.23 It does not necessarily contribute to the primary wrong,24 and may occur long after the primary breach of duty, once the property has passed through many hands. As Sheehan has put it, 15   Taylor v Davies [1920] AC 636 (PC), 651 (Viscount Cave); Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366, [138] (Lord Millett). 16   Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366, [138]. 17   See notably BCCI (Overseas) Ltd v Akindele [2001] Ch 437 (CA). 18   Agip (Africa) Ltd v Jackson [1990] Ch 265, 292 (Millett J). 19   [1972] 1 WLR 602 (Ch D). 20   ibid 639. 21  In Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355, [9] Lord Sumption called both cases of ‘ancillary liability’. See too eg Finn, ‘The Liability of Third Parties’, above n 9. 22   J Dietrich and P Ridge, ‘“The Receipt of What?”: Questions Concerning Third Party Recipient Liability in Equity and Unjust Enrichment’ (2007) 31 Melbourne University Law Review 47, 60. 23   Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2006] FSR 17, [1509] (Lewison J), citing Morritt LJ in Brown v Bennett [1999] BCC 525, 533. See too Lictor Anstalt v Mir Steel UK Ltd [2011] EWHC 3310 (Ch), [2012] 1 All ER (Comm) 592, [51] (David Richards J), discussed further in ch 5. IV.B (the primary wrong at issue was a breach of contract). cf Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355, [13] (Lord Sumption). 24   Thereby failing to satisfy the causative participation required of an accessory: see section IV.D below.

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‘[k]nowing’ receipt, however, is a different type of wrong from dishonest assistance. It appears to be a hybrid, possibly unique in being parasitic, but non-participatory in any sense.’25 There are further dissimilarities with assistance-based claims. For instance, the source of a receipt-based claim lies in the realm of property, which is different from participatory accessory liability.26 In Arthur v Attorney General of the Turks and Caicos Islands,27 the Privy Council recently held that although knowing receipt is a parasitic form of liability, it is parasitic on the claimant’s property rights, rather than a primary wrongdoer’s breach of duty.28 The normative basis of receipt-liability is therefore different from assistance liability,29 and it is preferable to disentangle and differentiate the two. In Tan, Lord Nicholls paved the way for such developments by insisting that ‘[d]ifferent considerations apply to the two heads of liability. Recipient liability is restitutionbased; accessory liability is not.’30 Recipient liability is based upon a defendant accounting for a benefit actually received, and considerations regarding the vindication of equitable property rights must be balanced against the importance of protecting the defendant’s ability to rely upon property received. This principle of security of receipt is irrelevant to the general principles of accessory liability, since such liability is not premised upon the defendant’s receipt of anything.31 Any amalgamation of assistance and receipt-based liability is unhelpful and could potentially have a distorting effect on each area.32 However, the two types of claim may both arise from the same set of facts.33 For example, if a defendant offered to receive misapplied property in order to facilitate a fraudulent scheme, 25   D Sheehan, ‘Disentangling Equitable Personal Remedies for Receipt and Assistance’ (2008) 16 Restitution Law Review 41, 58. 26  In Agip (Africa) Ltd v Jackson, Millett J observed that knowing receipt is ‘concerned with rights of priority in relation to property’: [1990] Ch 265, 292. See too M Conaglen and A Goymour, ‘Knowing Receipt and Registered Land’ in C Mitchell (ed), Constructive and Resulting Trusts (Oxford, Hart Publishing, 2010) 172. 27   Arthur v Attorney General of the Turks and Caicos Islands [2012] UKPC 30. 28   ibid [38] (Sir Terence Etherton). 29   Indeed, whilst strict liability is clearly inappropriate in the context of assistance liability, it may be that the liability of a recipient should be strict: see eg Lord Nicholls, ‘Knowing Receipt: The Need for a New Landmark’ in W Cornish, R Nolan, J O’Sullivan and G Virgo (eds), Restitution: Past, Present and Future (Oxford, Hart Publishing, 1998) ch 15; P Birks, ‘Receipt’ in P Birks and A Pretto (eds), Breach of Trust (Oxford, Hart Publishing, 2002) ch 7. cf L Smith, ‘Unjust Enrichment, Property, and the Structure of Trusts’ (2000) 116 LQR 412, 430–434. 30   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 386. 31  In Goose v Wilson Sandford & Co, Morritt LJ said: ‘In the case of the first, “knowing receipt” there must, by definition, be or have been trust property or its traceable proceeds of sale. But it is not a prerequisite of liability that it is still in existence at the time the claim form is issued. In the case of the second, “knowing assistance”, it is not a requirement of liability that any property should have been received or handled by the defendant’: [2001] Lloyd’s Rep PN 189, [88]. 32   See generally Harpum, ‘The Stranger as Constructive Trustee’, above n 9 and C Harpum, ‘The Stranger as Constructive Trustee: Part 2’ (1986) 102 LQR 267. 33  eg Abou-Rahmah v Abacha [2006] EWCA Civ 1492, [2007] 1 Lloyd’s Rep 115; Dubai Aluminium Co Ltd v Salaam [2003] UKHL 48, [2003] 2 AC 366, [87] (Lord Millett); Crown Dilmun v Sutton [2004] EWHC 52 (Ch), [2004] 1 BCLC 468, [204] (Peter Smith J); Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2006] FSR 17, [1476] (Lewison J); Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355.



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such as money laundering, then the defendant might be liable not only for any subsequent receipt of trust property, but also as an accessory for participating in the primary breach of trust: the communication of a willingness to accept misapplied trust property may have encouraged or induced the primary wrong. But even though these two claims may be brought concurrently, it is important to remember that they do not rest upon the same basis.

C.  Accessory Liability: Knowingly Assisting a Dishonest and Fraudulent Design In Barnes v Addy, Lord Selborne said that a person must ‘assist with knowledge in a dishonest and fraudulent design on the part of the trustees’34 in order to be liable as an accessory. The requirement that the primary breach of trust be dishonest greatly restricted the scope of accessory liability. It meant that even if a person dishonestly assisted a breach of trust in order to harm a beneficiary, the defendant would not be liable if the primary breach of trust committed by the trustee was not itself dishonest. This constraint upon the scope of assistance liability was both arbitrary and inappropriate. Indeed, it seems contrary to earlier authority. In Fyler v Fyler, Lord Langdale MR said that a person could be liable for knowingly procuring a breach of trust, even if that breach of trust was committed in good faith rather than dishonestly.35 This decision was then relied upon in Attorney-General v The Corporation of Leicester.36 The municipal corporation was the trustee of a charity, but allowed disbursements to be made in breach of trust. Such misappropriation was aided by the actions of the town clerk, who also received some of the trust money. Lord Langdale MR, relying upon his own judgment in Fyler v Fyler, said:37 [I]t cannot be disputed, that if the agent of a trustee, whether a corporate body or not, knowing that a breach of trust is being committed, interferes and assists in that breach of trust, he is personally answerable, although he may be employed as the agent of the person who directs him to commit that breach of trust.

The Court clearly did not consider that the primary breach of trust needed to be dishonest; nor did subsequent decisions insist upon such a requirement.38 The foundations for the requirement in Barnes v Addy that the breach of trust itself be part of a dishonest or fraudulent design were therefore always shaky.39 Nevertheless, the need for the primary wrong to be fraudulent became well established in English law, and it was the defendant’s implication in the fraud of the   (1874) LR 9 Ch App 244, 252.   Fyler v Fyler (1841) 3 Beav 550, 568.   Attorney-General v The Corporation of Leicester (1844) 7 Beav 176. 37   ibid 179. 38  eg Alleyne v Darcy (1854) 4 Ir Ch Rep 199. 39   cf Soar v Ashwell [1893] 2 QB 390 (CA). 34 35 36

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trustee which was often invoked to justify liability.40 But this was too limited: why should defendants be allowed to act as reprehensibly as they wish in participating in a primary breach of trust, no matter the import of their actions, provided that the trustee does not act dishonestly? Moreover, the restrictive approach in Barnes v Addy created an uncomfortable divide between instances of inducement and assistance: only the latter required the primary wrong to be dishonest.41 So why did the requirement for a dishonest design appear in Barnes v Addy? This is a difficult question to answer satisfactorily. Charitably, it might be suggested that the nature of the case necessitated hasty judgment; this was an unreserved judgment without discussion of earlier authorities. Less indulgently, Rubin has written of Lord Selborne that ‘precedent was secondary to his pursuit of principle’.42 Harpum has since tellingly asked the question: ‘Is it perhaps impertinent to suggest that he abandoned both in Barnes v Addy?’43 It may simply be that Barnes v Addy was a product of its time,44 when trustees could be liable for innocent incompetence.45 The Court’s fear that liability might expand too far was perhaps exacerbated by the fact that a trustee acting as a reasonable businessman might still be liable for breach of trust. Lord Selborne expressed the view that those who create trusts do intend to ‘exonerate’ the agents of trustees, in the absence of fraud and dishonesty, from the responsibilities placed upon trustees.46 But it is clearly unlikely that any person creating a trust would intend to ‘exonerate’ those who act dishonestly. Moreover, any concerns about the law’s being too ready to impose liability for breach of trust were alleviated only some ten years after Barnes v Addy, when the Court of Appeal, in Speight v Gaunt, held that ‘a trustee is not bound because he is a trustee to conduct business in other than the ordinary and usual way in which similar business is conducted by mankind in transactions of their own’.47 That appropriately confined the scope   Re Barney [1892] 2 Ch 265 (Kekewich J).   See eg Fyler v Fyler (1841) 3 Beav 550, and Harpum, ‘The Stranger as Constructive Trustee’, above n 9. This divide was particularly unfortunate given how difficult it can be to distinguish the two conduct elements; both are elements of participation and the difference is only one of degree: P Sales, ‘The Tort of Conspiracy and Civil Secondary Liability’ (1990) 49 CLJ 491, 507–508. cf Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 222, (2007) 230 CLR 89, [161]–[163] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). 42  G Rubin in AWB Simpson (ed), Biographical Dictionary of the Common Law (London, Butterworths, 1984) 400. 43   C Harpum, ‘The Basis of Equitable Liability’ in P Birks (ed), The Frontiers of Liability, vol 1 (Oxford, Oxford University Press, 1994) 12, fn 33. 44   Sir Leonard Hoffmann, (as he then was) extra-judicially, once suggested that constructive trusteeship developed in relation to third parties to a trust primarily because it was so difficult otherwise to obtain compensation from a defendant outside the realm of contract: L Hoffmann, ‘The Redundancy of Knowing Assistance’ in P Birks (ed), The Frontiers of Liability, vol 1 (Oxford, Oxford University Press, 1994) 28. 45   See S Gardner, ‘Knowing Assistance and Knowing Receipt: Taking Stock’ (1996) 112 LQR 56, 76–77. 46   (1874) LR 9 Ch App 244, 252. 47   Speight v Gaunt (1883) 22 Ch D 727, 739–740 (Jessel MR). Interestingly, Lord Selborne LC presided over the House of Lords’ affirmation of the Court of Appeal’s decision: Speight v Gaunt (1883) 9 App Cas 1. For general discussion, see J Getzler, ‘Duty of Care’ in P Birks and A Pretto (eds), Breach of Trust (Oxford, Hart Publishing, 2002). 40 41



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of the primary wrong. There is no need artificially to constrict the ambit of accessory liability by insisting that it can only be parasitic to fraudulent breaches of trust. Barnes v Addy left the law of accessory liability in Equity in a somewhat unsatisfactory state. In 1986, over 100 years after Barnes v Addy and nearly ten years before the clarity brought by the Privy Council in Tan, Harpum accurately concluded that:48 The authorities on knowing assistance are therefore in a state of considerable disarray. There are a number of reasons for this confusion. First, it is not always appreciated that liability for knowing assistance as it emerges from Barnes v Addy is intended to apply to situations where the stranger never receives trust property or where its receipt is irrelevant. He is only liable therefore if he makes himself a party to the trustees’ fraud, and this he can do only if he knows of or wilfully shuts his eyes to, that fraud. Secondly, there is a tendency to assume that knowing assistance covers all situations of acting inconsistently with the terms of the trust. This has led to a distortion of the elements that have to be proved to establish knowing assistance, in particular the element of participation in an act of fraud by the trustee. Thirdly, principles borrowed from cases of knowing receipt have been indiscriminately applied to cases of knowing assistance without regard to the different policy considerations that underlie the two types of liability.

II.  A New Start: Royal Brunei Airlines Sdn Bhd v Tan The law regarding accessories under Barnes v Addy was the subject of strong and persuasive criticism. This influenced the decision of the Privy Council in Tan, which rejected the requirement that the primary wrong be dishonest. As Lord Nicholls noted, ‘if anything, the case for liability of the dishonest third party seems stronger where the trustee is innocent, because in such a case the third party alone was dishonest’.49 This was definitively adopted as a matter of English law by the House of Lords in Twinsectra Ltd v Yardley.50 In Tan, the claimant airline appointed Borneo Leisure Travel (BLT) to act as its general travel agent. BLT was required to account to the claimant for the proceeds of ticket sales, after deducting commission. The terms of the agreement constituted BLT a trustee of the money for the claimant. However, the money was not paid into a separate bank account but was used in the business of BLT; this was conceded to be a breach of trust. BLT fell into arrears in accounting to the claimant and the agreement was terminated. As BLT was insolvent, the claimant sought   Harpum, ‘The Stranger as Constructive Trustee’, above n 9 at 162.   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 384. 50   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164. Compare the situation in Australia: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 222, (2007) 230 CLR 89; see too P Ridge, ‘Equitable Accessorial Liability: Moving Beyond Barnes v Addy’ (2014) 8 Journal of Equity 28. 48 49

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a remedy against Mr Tan, who was the principal shareholder and director of BLT. It was conceded that Tan had knowingly assisted the breach of trust. Nevertheless, the Court of Appeal of Brunei Darussalam held that Tan was not liable since it had not been established that BLT had a dishonest and fraudulent design, which was considered essential in Barnes v Addy. The Privy Council allowed the claimant’s appeal and held that Tan was personally liable for dishonestly assisting51 BLT’s breach of trust. There was no further requirement of dishonesty on the part of BLT. Lord Nicholls, giving the advice of the Board, explicitly distinguished the third limb of Barnes v Addy, and considered that only this limb truly represented the ‘accessory liability principle’. Tan is a landmark decision which influences all areas of accessory liability. The necessary primary wrong, conduct element and mental element will now be examined in turn.

III.  Primary Wrong A.  Breach of Trust A defendant might be liable as an accessory to a breach of trust. In Tan, Lord Nicholls emphasised that there should be no need for this breach of trust to be dishonest. His Lordship gave the example of a trustee who honestly believed that he or she was able to make a particular payment out of the trust fund, but the solicitor advising the trustee knew both that such a payment was prohibited by the trust instrument and that the trustee had mistakenly failed to appreciate this. Lord Nicholls thought that if the solicitor dishonestly left the trustee under such a mistaken apprehension and continued to take steps to assist the payment, the solicitor should be liable as an accessory to the breach of trust. The fact that the primary breach of trust was not dishonest was immaterial. Any other approach would leave the accessory principle ‘artificially constricted’.52

51   It might be noted that, on the facts of Tan, it was perhaps unnecessary to use the language of assistance. Mr Tan was the controlling director and shareholder of the company which committed the primary breach of trust. As such, Mr Tan induced that wrong. But in any event, subsequent cases have clearly established that a defendant can be liable for assistance which could not possibly be construed as inducement. For example, in Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, accessory liability was imposed upon a solicitor who received money in breach of trust and then paid it out on the principal’s instruction without first verifying that it would be properly spent according to the terms of the trust, of which he had knowledge. Such acts cannot be described as ‘inducement’. 52   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 385. cf P Ridge, ‘Participatory Liability for Breach of Trust or Fiduciary Duty’ in J Glister and P Ridge (eds), Fault Lines in Equity (Oxford, Hart Publishing, 2012) 138: a defendant who makes no profit from the wrong ‘should only be liable for participation in egregious breaches by [the primary wrongdoer] that could be detected and, possibly, prevented’. See further section VII below.



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Contrary to the finding of the lower court, Lord Nicholls suggested that BLT had acted dishonestly,53 so the rejection in Tan of the requirement for a dishonest and fraudulent design on the part of the trustees may strictly have been obiter. Nevertheless, the thrust of Lord Nicholls’ reasoning in rejecting the need for a dishonest primary wrong54 has unsurprisingly been adopted by the English courts. In Twinsectra Ltd v Yardley, Lord Millett said that it is ‘sufficient that the defendant was accessory to any breach of trust whether fraudulent or not’.55 This aspect of Tan has been accepted without demur.56 In Tan, Lord Nicholls suggested that the liability of an accessory ‘is not property-based. His only sin is that he interfered with the due performance by the trustee of the fiduciary obligations undertaken by the trustee’.57 That the primary wrong need not relate to property is significant.58 However, the suggestion that the duty breached must be a fiduciary duty is more difficult. After all, not every duty owed by a trustee is a fiduciary duty. As Millett LJ observed in Bristol & West Building Society v Mothew:59 The expression ‘fiduciary duty’ is properly confined to those duties which are peculiar to fiduciaries and the breach of which attracts legal consequences differing from those consequent upon the breach of other duties. Unless the expression is so limited it is lacking in practical utility. In this sense it is obvious that not every breach of duty by a fiduciary is a breach of fiduciary duty.

Fiduciary duties include the duty not to profit from a position as a fiduciary, and the duty not to be in a position where the fiduciary’s own interest conflicts with that of the principal. Many other duties owed by trustees to beneficiaries are not fiduciary duties. For example, it is not a fiduciary duty to exercise reasonable care when making investments: this is not particular to fiduciaries. But if a trustee negligently commits a breach of trust by making an unauthorised investment, it would be odd for a beneficiary who has suffered loss not to be able to sue the third party who dishonestly induced or assisted that wrong.60 It is suggested that in Tan Lord Nicholls sought to move away from the view that the breach had to relate to property, but did not intend to demand a breach of fiduciary duty in the strict sense; any breach of an equitable duty would appear to suffice.61 53   Since Mr Tan’s dishonest state of mind was to be imputed to the company: Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 393. 54   Compare eg Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] Ch 250 (CA). 55   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [109]. All the judges agreed on this point: see eg [26] (Lord Hutton) and [11] (Lord Hoffmann) (and also [6] (Lord Slynn agreed with Lord Hutton) and [7] (Lord Steyn agreed with both Lord Hutton and Lord Hoffmann)). 56  eg Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355, [35] (Lord Sumption): ‘the ancillary liability of a stranger to the trust arises independently of any fraud on the part of the trustee’. 57   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 387. 58   But remains controversial: see section III.B below. 59   Bristol and West Building Society v Mothew [1998] Ch 1 (CA), 16. 60   Indeed, this corresponds to the example provided by Lord Nicholls discussed above: text to n 52. 61  See eg C Mitchell, ‘Assistance’ in P Birks and A Pretto (eds), Breach of Trust (Oxford, Hart Publishing, 2002) 160–171; J McGhee (ed), Snell’s Equity, 32nd edn (London, Sweet & Maxwell, 2010)

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In Aroso v Coutts & Co, Lawrence Collins J was content to contemplate the possibility of liability for dishonestly assisting the breach of a presumed resulting trust,62 and it seems to have been generally accepted that a defendant may be liable for dishonestly assisting a breach of resulting trust or constructive trust.63 Such trusts do not invariably involve any fiduciary duties at all.64 Any breach of trust seems sufficient to ground a claim against an accessory. It has sometimes been suggested that there should be no need to establish a breach of trust. For instance, a trustee may decide to make an investment which causes the trust fund great loss. If that trustee acted within the scope of his or her powers and with reasonable care, then there will not have been a breach of trust.65 But the trustee may only have made that investment as a result of the dishonest encouragement of a third party. Gardner has argued that in such circumstances, the third party ‘has just as much harmed the jural rights comprising the trust as if there were a breach’.66 Gardner bolstered this argument by making an analogy with liability for ‘interference with contractual relations’, which at the time did not seem to require a primary breach of contract.67 It is sensible and helpful to draw links between contractual and equitable obligations as regards accessory liability, but such reasoning has since been undermined by the House of Lords’ insistence that a primary breach of contract is in fact necessary.68 The preferable view is that the beneficiaries should not be able to sue dishonest third parties as accessories where there is no primary breach of duty: accessory liability only arises because of the defendant’s participation in a wrong committed by another. Where there is no such primary wrong, liability cannot be considered to be accessorial at all. In the situation envisaged by Gardner, the trustees should simply sue, on behalf of the trust, the dishonest advisers for breach of contract or in tort; if the trustees refuse to do so, the beneficiaries may sue the trustees and join the advisers as third parties.69

30-077. It is not uncommon for all breaches of trust to be considered to be a breach of ‘fiduciary duty’ more broadly defined: see eg Pitt v Holt [2011] EWCA Civ 197, [2012] Ch 132 (Lloyd LJ) and [2013] UKSC 26, [2013] 2 AC 108 (Lord Walker). 62   Aroso v Coutts & Co [2002] 1 All ER (Comm) 241. On the facts of Aroso, no accessory liability arose because the judge held that no resulting trust had ever arisen and dishonesty was not established. 63   Bank Tejarat v Hong Kong and Shanghai Banking Corpn (CI) Ltd [1995] 1 Lloyd’s Rep 239 (Cmml Ct); Heinl v Jyske Bank (Gibraltar) Ltd [1999] Lloyd’s Rep Bank 511 (CA). 64  This is because fiduciary relationships are generally best considered to be voluntary: see eg Galambos v Perez [2009] SCC 48, [2009] 3 SCR 247; J Edelman, ‘When do Fiduciary Duties Arise?’ (2010) 126 LQR 302. For further discussion regarding whether or not resulting trustees owe fiduciary duties, see R Chambers, Resulting Trusts (Oxford, Clarendon Press, 1997) 196–200. 65   Trustee Act 2000, s 1; Speight v Gaunt (1883) 9 App Cas 1. 66   Gardner, ‘Knowing Assistance’, above n 45 at 68. 67  eg Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 (CA) (Lord Denning MR). 68   See eg OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1. See ch 5.II. 69   Under the ‘Vandepitte procedure’: Vandepitte v Preferred Accident Insurance Corp of New York [1933] AC 70 (CA).



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B.  Breach of Fiduciary Duty The primary wrong upon which liability is parasitic need not necessarily be a breach of trust. Lord Nicholls’ reasoning in Tan applies equally to those who dishonestly assist fiduciaries who are not trustees. Thus defendants who participate in a breach of fiduciary duty by a company director, for example, may incur accessory liability even though such directors do not hold the company property on trust.70 There should be no need for the primary breach of duty to relate to the claimant’s property.71 As Lord Nicholls said in Tan, accessory liability ‘is not propertybased’.72 Nevertheless, in Satnam Investments Ltd v Dunlop Heywood & Co Ltd, Nourse LJ said that for assistance liability ‘there must be trust property’.73 This decision should be treated with suspicion.74 In Brown v Bennett, Morritt LJ was ‘minded’ not to find a requirement for property,75 and the comments of Nourse LJ in Satnam have not been affirmed in the Court of Appeal. Rather, subsequent decisions have been wary of any property requirement; in Goose v Wilson Sandford & Co, Morritt LJ appeared to accept that the remarks of Nourse LJ were ‘no more than a passing reference’ and not binding.76 Morritt LJ explicitly pointed out that ‘[t]he formulation of the principle [of dishonest assistance] by Lord Nicholls . . . does not embrace such a requirement’.77 In JD Wetherspoon plc v Van de Berg & Co Ltd, Peter Smith J reviewed the authorities and concluded:78 In my view in a case for accessory liability there is no requirement for there to be trust property. Such a requirement wrongly associates accessory liability with trust concepts. . . . Accessory liability does not involve a trust. It involves providing dishonest assistance to somebody else who is in a fiduciary capacity [and] has committed a breach of his fiduciary duties.

Thus a third party who offers a bribe to a fiduciary in order to induce the latter to breach his or her fiduciary duties can still be liable for dishonest assistance, even 70   Heinl v Jyske Bank (Gibraltar) Ltd [1999] Lloyd’s Rep Bank 511 (CA), 516 (Nourse LJ); JD Wetherspoon plc v Van de Berg & Co Ltd [2009] EWHC 639 (Ch), [518] (Peter Smith J). 71   Compare knowing receipt, considered at section I.B above. It may be that the suggestion that the primary wrong relate to the claimant’s property rights is another unfortunate side-effect of assistancebased claims being considered together with receipt-based claims. 72   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 387. 73   Satnam Investments Ltd v Dunlop Heywood & Co Ltd [1999] 3 All ER 652 (CA), 671. See too Dyson Technology Ltd v Curtis [2010] EWHC 3289 (Ch), [210] (HHJ David Grant). 74   Novoship (UK) Ltd v Nikitin [2014] EWCA Civ 908 (Longmore LJ), [88]–[90]. 75   Brown v Bennett [1999] BCC 525 (CA), 533. However, the point did not need to be decided. 76   Goose v Wilson Sandford & Co [2001] Lloyd’s Rep PN 189 (CA), [87]. 77   ibid [88] (admittedly the case was concerned with trust property). Rimer J in Gencor ACP Ltd v Dalby [2000] 2 BCLC 734 (Ch D), [87] also concluded that the point concerning a requirement for property remains open. 78  [2009] EWHC 639 (Ch), [518]. See too eg Brown v InnovatorOne plc [2012] EWHC 1321 (Comm), [1044]–[1045] (Hamblen J); Goldtrail Travel Ltd v Aydin [2014] EWHC 1587 (Ch), [126]– [129] (Rose J); Fiona Trust & Holding Corporation v Privalov [2010] EWHC 3199 (Comm), [61] (Andrew Smith J).

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though the bribe derives from the briber’s property rather than the claimant’s property.79 This approach has recently been supported by the Court of Appeal in Novoship (UK) Ltd v Nikitin.80 What if a company director breaches a non-equitable duty owed to the company?81 Allowing an equitable claim to be brought against a defendant who dishonestly assists that breach might strengthen the protection afforded to the fiduciary–principal relationship. Yet since the primary wrong at issue is more likely to be a breach of contract or a tort, it seems preferable to apply the rules relating to such common law wrongs instead.82 This highlights that the different approaches presently taken to accessory liability across the private law exacerbate the significance of choosing how the claim should be framed. The desirability of such an approach may be doubted.83

C.  Breach of Confidence In Tan, Lord Nicholls was only dealing with breach of trust or fiduciary obligations. But accessory liability in equity is not necessarily confined to such primary wrongs, and appears to extend to situations where the defendant participates in another person’s primary wrong of breach of confidence, for example. This was demonstrated by the decision of the Court of Appeal in Thomas v Pearce.84 Mrs Thomas, the claimant, ran an employment agency. She employed Mrs Pearce to work for her. Mrs Pearce agreed to leave the claimant’s business and instead work for Darlows Ltd, another employment agency. Before leaving her former employment, Mrs Pearce made a list of the claimant’s clients, and used this list while at Darlows. The judge at first instance found that Mrs Pearce had acted in breach of contract and in breach of an equitable duty of confidence: the list of the claimant’s clients was confidential. However, the judge made no finding against Darlows, and this was the subject of the appeal. The Court of Appeal held that Darlows could be liable for dishonestly assisting the primary wrong of breach of confidence, and relied upon Lord Nicholls’ speech in Tan. On the facts, however, the Court found that dishonesty had not been proved. 79   Fyffes Group Ltd v Templeman [2000] 2 Lloyd’s Rep 643 (Cmml Ct), 668–670 (Toulson J). This was cited with approval by Peter Smith J in JD Wetherspoon plc v Van de Berg & Co Ltd [2009] EWHC 639 (Ch), [512]. See too Dyson Technology Ltd v Curtis [2010] EWHC 3289 (Ch). Contrast Petrotrade Inc v Smith [2000] 1 Lloyd’s Rep 486 (QBD), [25]–[28] (David Steel J), in which the judge’s approach may have been somewhat distorted by the unfortunate label of ‘constructive trusteeship’ used to describe the accessory’s liability. For further consideration of the nature of the accessory’s liability, see ch 8. 80   [2014] EWCA Civ 908, [87]–[93] (Longmore LJ). 81   For further support for the contention that accessory liability can attach to non-fiduciary equitable duties see eg M Conaglen, ‘The Nature and Function of Fiduciary Loyalty’ (2005) 121 LQR 452, 479; JD Heydon, ‘Are the Duties of Company Directors to Exercise Care and Skill Fiduciary?’ in S Degeling and J Edelman (eds), Equity in Commercial Law (Sydney, Lawbook Co, 2005) 235. 82   J Mowbray, Lewin on Trusts, 18th edn (London, Sweet & Maxwell, 2008) para 40-19. 83   See eg ch 9. 84   Thomas v Pearce [2000] FSR 718 (CA).



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This is a significant decision. It shows the breadth of accessory liability. Buxton LJ cited Toulson and Phipps’ book on Confidentiality for the proposition that ‘it is equitable fraud in a third party knowingly to assist in a breach of trust, confidence or contract by another’.85 Buxton LJ was clear that ‘the same broad principles apply whether the question is wrongful knowledge on the part of a third party in respect of a breach of confidence, as with this case, or, on the other hand, knowing assistance in a breach of trust’.86 Admittedly, this approach has not met with unanimous approval.87 For example, in Campbell v MGN Ltd,88 the Court of Appeal again cited the same passage from Toulson and Phipps’ work, but opted not to apply Lord Nicholls’ reasoning in Tan where the primary wrong was a breach of confidence. This was essentially because the Court did not consider it appropriate to engage in ‘complex tests of the mental state’ of a defendant,89 and therefore sought not to apply a test of dishonesty.90 This is understandable: the concept of ‘dishonesty’ is both difficult and controversial.91 Yet if the mental element were to be less troublesome, the court in Campbell may well have been less reluctant to apply the general principles of accessory liability which operate throughout equity. In any event, current orthodoxy still appears to favour a test of dishonesty based upon knowledge where a defendant assists a breach of confidence; in Vestergaard Frandsen A/S v Bestnet Europe Ltd, Lord Neuberger relied upon Tan and held that the principles needed to be applied ‘consistently with the approach of equity in this area’.92 Gurry on Breach of Confidence argues that: 93 for most practical purposes, we think the question of whether an obligation of confidence is equitable or contractual should make no difference. Thus, for example, we would say that . . . the conditions for ascribing accessorial liability should be the same (that is, knowledge based).

This highlights that different approaches to accessory liability across the law of obligations may have unfortunate consequences in making the law overly complicated and difficult clearly to state. This is well illustrated where the primary wrong 85   R Toulson and C Phipps, Confidentiality (London, Sweet & Maxwell, 1996) para 7-02 (see now 3rd edn (London, Sweet & Maxwell, 2012) paras 3-068–3-075) cited at [2000] FSR 718 (CA), [16]. 86   [2000] FSR 718 (CA), [17]. In Fyffes Group Ltd v Templeman [2000] 2 Lloyd’s Rep 643, 670, Toulson J said: ‘In Attorney General v Guardian Newspapers (No.2) [1990] 1 AC 109 (the Spycatcher case) the Sunday Times knowingly assisted Mr Peter Wright to breach his duty of confidentiality to the British Government by publishing extracts from his memoirs as an MI5 agent’. 87   Although it has, unsurprisingly, been supported by R Toulson and C Phipps, Confidentiality, 3rd edn (London, Sweet & Maxwell, 2012) paras 3-068–3-075. 88   Campbell v MGN Ltd [2002] EWCA Civ 1373, [2003] QB 633, [66]–[71] (Lord Phillips MR). See too Force India Formula One Team Ltd v 1 Malaysia Racing Team [2012] EWHC 616 (Ch), [2012] RPC 757, [243]–[252] (Arnold J). 89   [2002] EWCA Civ 1373, [2003] QB 633, [69] (Lord Worth Matravers MR). 90   See too T Aplin, L Bently, P Johnson and S Malynicz, Gurry on Breach of Confidence, 2nd edn (Oxford, Oxford University Press, 2012). 91   See section V.D below. 92   Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] UKSC 31, [2013] 1 WLR 1556, [26]. 93   Aplin, Bently, Johnson and Malynicz, Gurry, above n 90 at para 12.158. cf R Arnold, ‘Accessory Liability for Breach of Confidence’ (2014) 36 European Intellectual Property Review 554.

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is a breach of confidence, since claims might be based both upon an equitable right to confidence94 and a breach of contract.95 The way in which the claimant frames his or her claim is potentially important if the elements required for accessory liability differ across the common law/equity divide. In any event, it may be that the scope of accessory liability in the context of confidential information is actually very limited. This is because a defendant who is aware of the confidential nature of information received is under a primary, free-standing duty of confidence.96 As Stanley has put it:97 The question is not whether D should be liable for X’s wrong, but whether D ever fell under a duty of his own. It is not an essential part of the cause of action to show that D assisted, or procured, or induced X to breach a duty of confidence – or even to show that X acted in breach of duty at all. The duty owed by a person who acquires information from a wrongdoer is no more accessory than the duty of a person who acquires the information directly, or from the confidant herself.

Nevertheless, in some cases a defendant might never actually receive any confidential information him or herself, but could still induce or assist a person to misuse such information.98 In such circumstances, it is most natural to say that the defendant’s liability depends upon his or her participation in a breach of duty committed by a primary wrongdoer.99 Although the origins of confidence are different from those at the basis of a trust, for example,100 it is important to note that a person might be liable for inducing or assisting a breach of confidence, provided that a suitable mental element is satisfied. This is the same structure that applies throughout accessory liability in equity.

D.  Undue Influence A claimant might enter into a contract with a defendant as a result of the undue influence of a third party. In such circumstances, the claimant might be able to 94  eg Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (HL); Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457. 95  eg British Industrial Plastics Ltd v Ferguson [1938] 4 All ER 504 (CA), affirmed in [1940] 1 All ER 479 (HL); Exchange Telegraph Co Ltd v Gregory & Co [1896] 1 QB 147 (CA). It may also be possible to use the tortious rules of joint tortfeasance based upon participation in a ‘common design’ in this context: see eg Force India Formula One Team Ltd v 1 Malaysia Racing Team [2012] EWHC 616 (Ch), [2012] RPC 757, [245] (Arnold J) (affirmed, not dealing with this point: [2013] EWCA Civ 780; [2013] RPC 947); Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] UKSC 31, [2013] 1 WLR 1556 (Lord Neuberger). See further ch 6.III.A. 96  eg Saltman Engineering Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413 (CA), 414–415 (Lord Greene MR); Force India Formula One Team Ltd v 1 Malaysia Racing Team [2012] EWHC 616 (Ch), [2012] RPC 757, [248] (Arnold J). 97   P Stanley, The Law of Confidentiality: A Restatement (Oxford, Hart Publishing, 2008) 28. See similarly Aplin, Bently, Johnson and Malynicz, Gurry, above n 90 at para 7.110. 98   As Stanley also recognises: The Law of Confidentiality, above n 97 at 28. See too Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] UKSC 31, [2013] 1 WLR 1556, [26]; British Industrial Plastics Ltd v Ferguson [1938] 4 All ER 504 (CA), affirmed in [1940] 1 All ER 479 (HL). 99   See similarly Finn, ‘The Liability of Third Parties’, above n 9 at 200. 100   See similarly Aplin, Bently, Johnson and Malynicz, Gurry, above n 90 at para 7.110.



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rescind the contract with the defendant. It has been suggested that the liability of the defendant arises from his or her participation in another’s equitable wrong of exerting undue influence.101 However, undue influence is generally not considered to be a wrong which gives rise to a claim for damages. Indeed, it is not clear that it is a wrong at all, being focussed upon the claimant’s vitiated intention.102 If the claimant has actually transferred a benefit to another, then the recipient may have to give up that benefit, but this is based upon a free-standing cause of action in unjust enrichment, rather than parasitic liability.103 If there has not been any transfer of a benefit, but the claimant has entered into a contract with the defendant, the only remedy available is that of rescission. In such circumstances, there is no remedy against the ‘primary wrongdoer’ who actually exerted the undue influence if that person has not also entered into a contractual relationship with the claimant. The better view is that the defendant’s liability should not be considered to be accessorial because the defendant does not participate in another’s wrong. Indeed, the defendant merely receives the benefit of a contract, which is insufficient to fulfil the requirement of causative participation for accessory liability.104

E. Conclusions Accessory liability can be parasitic upon any equitable wrong. The most important wrongs are breach of trust, breach of fiduciary duty and breach of confidence. But a defendant could also feasibly incur liability for participating in the infringement of a claimant’s mere equity, such as that which arises through proprietary estoppel.105 So, if a dishonest solicitor deliberately tells a primary wrongdoer that he does not need to respect the rights acquired by a claimant through proprietary estoppel, it is appropriate for the solicitor to be liable for participating in that primary wrong. Similarly, the defendant in Tan would not have escaped liability had the company created an equitable fixed charge over the securities rather than a trust.106 It seems

  Finn, ‘The Liability of Third Parties’, above n 9 at 200, 204–205.   Allcard v Skinner (1887) 36 Ch D 145 (CA); P Birks and NY Chin, ‘On the Nature of Undue Influence’, in J Beatson and D Friedman (eds), Good Faith and Fault in Contract Law (Oxford, Oxford University Press, 1995). cf R v Attorney-General of England and Wales [2003] UKPC 22, [2003] EMLR 499, [21]–[22]; R Bigwood, ‘Undue Influence: “Impaired Consent” or “Wicked Exploitation” ’ (1996) 16 OJLS 503; M Chen-Wishart, ‘Undue Influence: Vindicating Relationships of Influence’ (2006) 59 Current Legal Problems 231. 103   See eg A Burrows, The Law of Restitution, 3rd edn (Oxford, Oxford University Press, 2011) ch 11; G Virgo, The Principles of the Law of Restitution, 2nd edn (Oxford, Oxford University Press, 2006) 247–267. 104   See section I.B above. See too NY Chin, ‘Undue Influence and Third Parties’ (1992) 5 Journal of Criminal Law 108; P Ridge, ‘Third Party Volunteers and Undue Influence’ (2014) 130 LQR 112. 105   See generally B McFarlane, The Law of Proprietary Estoppel (Oxford, Oxford University Press, 2014). 106   cf Re ILG Travel Ltd [1995] 2 BCLC 128; A Berg, ‘Accessory Liability for Breach of Trust’ (1996) 59 MLR 443, 450. 101 102

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appropriate that a coherent approach be taken regardless of the precise classification of the primary wrong.

IV.  Conduct Element The conduct element required for accessory liability in equity has not received as much attention as the mental element.107 However, since accessory liability in equity is recognised to encompass a broad range of conduct, this has largely proved to be unproblematic. ‘Assistance’ has been interpreted very widely; Lewin on Trusts even states that accessory liability arises ‘where the assistance takes the form of inducement’.108

A. Inducement It has long been the case that a person might be liable for inducing a breach of trust even if the primary wrong was not itself dishonest. In Midgley v Midgley,109 a solicitor managed to get an executor to pay out money in breach of trust. The Court of Appeal had no qualms about holding the solicitor liable for inducement. Lindley LJ stated that the solicitor ‘was the fons et origo of the whole of this mischief’,110 and Lopes LJ agreed that he was ‘the instigator of this matter from beginning to end’, insisting that the solicitor’s conduct ‘passed the bounds of legitimate zeal which are becoming and proper in a solicitor who has his client’s interests at heart’.111 This highlights that being at the origin of the primary wrong and bringing it about is sufficient for liability. In Eaves v Hickson,112 the trustees held property on trust for the legitimate children of William Knibb, and provision was made for what should happen to the property should there be no such children. Knibb showed the trustees a marriage certificate which suggested that he had married in 1826, and, on the strength of that marriage certificate, the trustees distributed the trust property amongst Knibb’s five adult children who were born after that date. However, it later transpired that the marriage certificate had been forged, probably by Knibb, and that all five children were illegitimate. Consequently, the appointments to the children 107   This point was also noted by Harpum: ‘The Basis of Equitable Liability’, above n 43 at 13. But little seems to have changed. For example, G Thomas and A Hudson, The Law of Trusts, 2nd edn (Oxford, Oxford University Press, 2010) contains no discussion of the conduct element required for accessory liability, and moves straight from the need for a breach of trust to the nature of dishonesty: see eg paras 30.18–30.19. 108  Mowbray, Lewin on Trusts, above n 82 at para 40-21. 109   Midgley v Midgley [1893] 3 Ch 282 (CA). See too section I.C above. 110   [1893] 3 Ch 282 (CA), 301. 111   ibid 304. 112   Eaves v Hickson (1861) 30 Beav 136.



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had been made in breach of trust. Clearly, the trustees were entirely innocent in committing this primary wrong of breach of trust, but Knibb was held liable for inducing the breach of trust. Such cases suggest that the motive for the accessory’s inducing the primary wrong is irrelevant.113 In Midgley, the solicitor appears simply to have aimed to help his clients, whereas in Eaves, Knibb fraudulently intended to deceive the trustees and benefit his illegitimate offspring. The same disregard for motive is apparent where the accessory is a beneficiary under a trust. A life tenant might persuade the trustees to invest the trust fund in an unauthorised security in order to provide him or her with a greater income than would an authorised investment.114 But a beneficiary may also be liable as an accessory where he or she does not act in order to benefit personally from the breach of duty.115 The beneficiary should not be in any better position than a stranger to a trust if he or she has participated in a breach of trust with the requisite mental element. 116 In 1994, Harpum lamented that ‘[t]here are no modern authorities on knowing inducement – indeed the very existence of this category of liability has been overlooked’.117 Although this might be explained in part by the breadth afforded to ‘assistance’, liability for inducement should nevertheless not be ignored. For example, where a dishonest third party bribes a fiduciary to commit a breach of fiduciary duty, the principal may obviously bring a claim against the fiduciary, and much attention has been given to the nature of such claims.118 But there may also be a claim against the briber for inducing the primary breach of fiduciary duty.119 Inducement liability is common throughout the private law. It is therefore unsurprising that analogies have sensibly been made between liability for inducing a breach of trust and inducing a breach of contract.120 However, it is clear that liability for inducing a breach of fiduciary obligation lies in equity, and not at common law; attempts to introduce a tort of inducing a breach of trust have been largely rebuffed.121

113   At least for establishing prima facie liability; motive may be relevant when considering defences: see ch 7. 114   Raby v Ridehalgh (1855) 7 De GM & G 104. 115  See eg Chillingworth v Chambers [1896] 1 Ch 685 (CA), 707 (AL Smith LJ); Re Pauling’s Settlement Trusts (No 2) [1963] Ch 576, 583 (Wilberforce J); Trustee Act 1925, s 62. 116   See similarly Harpum, ‘The Basis of Equitable Liability’, above n 43 at 11. 117   ibid 13. 118   The Supreme Court has recently held that a fiduciary holds a bribe or secret commission on constructive trust for his or her principal: FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45, [2014] 3 WLR 535. 119   Mayor of Salford v Lever [1891] 1 QB 168 (CA); Finn, ‘The Liability of Third Parties’, above n 9 at 204. 120   See eg OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [189] (Lord Nicholls). 121  eg Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 (CA), 481 (Slade LJ). However, in Abou-Rahmah v Abacha [2006] EWCA Civ 1492, [2007] 1 Lloyd’s Rep 115, [2] Rix LJ described dishonest assistance as an ‘equitable tort’.

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B. Assistance Assistance has been interpreted widely. It is difficult to define other than by example,122 and many examples could be given. As Peter Gibson J said in Baden v Société Générale, it is ‘a simple question of fact whether or not there has been assistance. . . . the assistance . . . must not be of minimal importance’.123 Common examples of assistance involve banks as defendants. The bank might lend money to a primary wrongdoer when the bank knows that the money is to be used in breach of trust.124 Or the bank might process a cheque and thereby assist a wrongful payment,125 or act as the conduit through which the proceeds of a breach of trust might pass.126 In such circumstances, the relevant breach of duty will be considered to be continuing until the point at which the beneficiaries are no longer able to find the money.127 This is important in order to combat money laundering effectively: if the breach of trust were considered only to occur at the precise moment the money was initially misappropriated, it could be much more difficult to sue third parties who assist at later stages of the laundering.128 Solicitors are also often defendants to assistance-based claims. In Barnes v Addy,129 the solicitors assisted the breach of trust by preparing the documents necessary to enable the appointment of a trustee who would commit a breach of trust. On the facts, the solicitors were not liable because of the now discarded requirement that the primary breach of trust be dishonest, but in principle the acts of assistance appeared to suffice for accessory liability.130 Such conduct might be better described as facilitation,131 and sits comfortably under the wider umbrella of assistance. Assistance liability is also considered to encompass acts of authorisation. In Barlow Clowes International Ltd v Eurotrust International Ltd,132 the Privy Council   DJ Cooper, Secondary Liability for Civil Wrongs (PhD thesis, University of Cambridge, 1996) 129.   Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509n (Ch D), 574. 124   M’Neillie v Acton (1853) 4 De G M & G 744; Collinson v Lister (1855) 7 De G M & G 634. 125   Rowlandson v National Westminster Bank Ltd [1978] 3 All ER 370 (Ch D). 126   Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509n (Ch D). 127   Agip (Africa) Ltd v Jackson [1991] Ch 547 (CA); Heinl v Jyske Bank (Gibraltar) [1999] Lloyd’s Bank Rep 511 (CA); Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [107] (Lord Millett); Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2006] FSR 17, [1497] (Lewison J); Independent Trustee Services Limited v GP Noble Trustees Limited [2010] EWHC 1653 (Ch) [242]– [244] (Peter Smith J; not disturbed on appeal: [2012] EWCA Civ 195, [2013] Ch 91); Twentieth Century Fox Film Corp v Harris [2014] EWHC 1568 (Ch), [159] (Barling J). See Mowbray, Lewin on Trusts, above n 82 at para 40-21. 128   A breach of trust does not ‘stop the clock’ and the trustee remains liable as a trustee: Target Holdings Ltd v Redferns [1996] AC 421 (HL), 437–441 (Lord Browne-Wilkinson). 129   See section I above. 130   Although the solicitors may also have had a defence of justification: see ch 8. 131  eg Attorney General of Zambia v Meer Care & Desai (A Firm) [2007] EWHC 952 (Ch) (partly overturned, but not on this point, in [2008] EWCA Civ 1007, [2008] Lloyd’s Rep FC 587); Statek Corp v Alford [2008] EWHC 32 (Ch), [2008] BCC 266. 132   Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37, [2006] 1 WLR 1476. 122 123



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held that defendants who authorised payments to be made in breach of trust could incur accessory liability. Similarly, beneficiaries who authorise their trustees to commit a breach of trust might have their beneficial interest impounded.133 By authorising the primary wrong, a defendant makes the occurrence of the primary wrong more likely. However, assistance might not encompass liability for omissions. Current orthodoxy suggests that a defendant will not be liable as an accessory simply for failing to act.134 In Fitzalan-Howard v Hibbert,135 Tomlinson J cited the importance Lord Nicholls placed upon ‘advertent conduct’ in Tan,136 and went on to say: ‘[f]urthermore, as Lord Nicholls emphasised in his speech . . . dishonest assistance normally involves positive assistance – “deliberate intervention”, “intentional intru[sion]” or “interfere[nce] with the due performance by the trustee”’.137 In Hibbert, the defendant was not liable for dishonest assistance when the company employing the defendant, in breach of trust, failed to repay a mistaken payment which it had received from the claimant. Tomlinson J was clear that the defendant138 gave no thought to a matter which was not his immediate responsibility and was of no relevance to the deal which he was seeking to achieve. In my judgment the facts of this case do not come within hailing distance of dishonest assistance.

It may be that, by failing to act, the defendant has not participated in the primary wrong in a sufficiently meaningful way.139 Nevertheless, a blanket refusal to impose accessory liability for omissions seems misplaced. Omissions can have a causal effect.140 For example, in the hypothetical scenario considered by Lord Nicholls in Tan, where a solicitor realised that the payment to be made by a trustee was in breach of trust but the trustee was unaware of this,141 the omission of the solicitor to disclose such information could be seen to contribute to the commission of the primary wrong. Indeed, the decision not to inform the trustee that the payment would be in breach of trust suggests that the solicitor’s conduct was advertent, as required by Tan. In these sorts of circumstances, an omission could legitimately ground accessory liability. In Hibbert, it may have been preferable to recognise that omissions can provide assistance to a primary wrong, but liability still requires the defendant to be culpable; in Hibbert, the defendant was clearly not dishonest. The courts have sometimes suggested that where the defendant has merely passively acquiesced in a primary wrong, assistance is not established. For example,   Trustee Act 1925, s 62.   K Low, ‘Nonfeasance in Equity’ (2012) 128 LQR 63, 64. 135   Fitzalan-Howard v Hibbert [2009] EWHC 2855 (QB), [47]–[48]. 136   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 389. 137   [2009] EWHC 2855 (QB), [47]. 138   ibid [48]. 139   See too the discussion of receipt-based liability at section I.B above. 140   See Mitchell, ‘Assistance’, above n 61 at 174–177. 141   Discussed at section III.A above. 133 134

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in Brinks Ltd v Abu-Saleh (No 3),142 Rimer J held that a wife accompanying her husband on long car journeys did not fulfil the requisite conduct element for accessory liability, even though such journeys were for the purpose of committing a breach of trust by laundering the proceeds of a robbery through a Swiss bank. This appears to have been because the judge thought that the wife simply acquiesced in her husband’s wrong. This is an unconvincing analysis: the wife had actively decided to travel with her spouse, and this facilitated the primary wrong since it gave credibility to her husband’s cover story that the pair were antique dealers travelling to Switzerland on business.143 Assistance liability ought to cover such circumstances.

C. Encouragement It is more difficult to discern the approach taken to encouragement in equity. This may be because acts of encouragement have often been considered to be tantamount to inducement.144 Before Tan, this would have had the advantage of avoiding the need to establish that the primary wrong itself was dishonest. However, now that there is no requirement that the primary breach of duty be dishonest for accessory liability, whether for assistance or inducement, there is no need to consider all instances of encouragement under the umbrella of inducement. Where the fiduciary had already decided to breach his or her duties, any subsequent encouragement from the defendant should not be characterised as inducement. But such encouragement could still form the basis of accessory liability, provided that it has a substantial impact upon the primary wrong that takes place. Given the wide scope afforded to assistance in equity, it seems likely that such acts are assumed to fall within the broad umbrella of assistance.145

D. Causation Where the conduct element is inducement, some causal link seems implicit; the accessory is sometimes described as the ‘instigator’ or the ‘fons et origo’ of the wrong.146 But it is difficult to determine the causal effect that is required, particularly in the context of assistance. That the primary breach of duty was likely to happen anyway is no defence to accessory liability,147 but the fact that the claimant’s rights must actually be infringed suggests that some link with the result is necessary.148   Brinks Ltd v Abu-Saleh (No 3) [1996] CLC 133 (HC).   See similarly Mitchell, ‘Assistance’, above n 61 at 176. 144  eg Midgley v Midgley [1893] 3 Ch 282 (CA), discussed at section IV.A above. 145   See too ch 2.II.A.ii. 146  See Midgley v Midgley [1893] 3 Ch 282 (CA), discussed at section IV.A above. 147   Balfron Trustees Ltd v Petersen [2001] IRLR 758 (Ch D), 761 (Laddie J). 148   SB Elliott and C Mitchell, ‘Remedies for Dishonest Assistance’ (2004) 67 MLR 16, 17–20. 142 143



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In Grupo Torras SA v Al-Sabah, Mance LJ commented that ‘it is inappropriate to become involved in attempts to assess the precise causative significance of the dishonest assistance in respect of either the breach of trust or fiduciary duty or the resulting loss . . . it is necessary to identify what breach of trust or duty was assisted and what loss may be said to have resulted from that breach of trust or duty’.149 Tuckey LJ has since relied upon this approach to conclude that ‘it is not necessary to show a precise causal link between the assistance and the loss’.150 Nevertheless, the acts of a defendant should have some causative impact upon the commission of the primary wrong and infringement of the claimant’s rights for accessory liability to arise. The assistance rendered must be of more than minimal importance,151 and there will be no accessory liability when the relevant acts of the defendant occurred after the primary breach of duty.152

V.  Mental Element The major factor which restricts accessory liability in equity is the mental element. Consequently, this requirement has garnered the greatest amount of attention. Yet it remains difficult to pin down satisfactorily. The label attached to accessory liability in equity has shifted from ‘knowing assistance’ to ‘dishonest assistance’, but the meaning of ‘dishonesty’ is far from clear. Before examining this concept, it is important to understand the principal mental elements which the law has rejected, namely knowledge, negligence and unconscionability.

A. Knowledge It must be established both what the defendant must know, and also the standard of the defendant’s knowledge. This bifurcation of approach was persuasively advocated in this equitable context by Austin:153 There are two central questions regarding knowledge. The first relates to the content of the third party’s knowledge: must he be shown to know or understand the legal consequences of the facts or merely the facts themselves, and are claims to be distinguished from facts? The second question relates to the quality of knowledge sufficient for liability and, especially whether constructive knowledge will suffice. 149   Grupo Torras SA v Al-Sabah [1999] CLC 1469 (QBD), 1667. Mance LJ heard the case at first instance, and no adverse comment was made regarding this point on appeal: [2001] CLC 221 (CA). 150   Casio Computer Co Ltd v Sayo [2001] EWCA Civ 661, [15]. 151   Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509n (Ch D), 574. 152   ‘If there is no causative effect and therefore no assistance given by the person . . . on whom is sought to establish the liability as a constructive trustee, for my part I cannot see that the requirements of conscience require any remedy at all’: Brown v Bennett [1999] BCC 525, 533 (Morritt LJ). 153   R Austin, ‘Constructive Trusts’ in P Finn (ed), Essays in Equity (Sydney, Lawbook Co, 1985) 235.

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i.  Content of Knowledge It is clear that the defendant will not be liable if he or she genuinely and legitimately had no knowledge that the primary wrongdoer was not free to act in the manner envisaged. In Baden, Peter Gibson J said that the trustee ‘must know that there was a trust though I do not think it necessary that he should know all the details of the trust’.154 However, this provides scant help in answering the question posed by Austin about whether the defendant needs to understand the legal consequences of known facts. The suggestion that such knowledge is required has sometimes been made. In Carl Zeiss Stiftung v Herbert Smith & Co (No 2), Sachs LJ said that ‘knowledge of the existence of a trust depends on knowledge first of the relevant facts and next of the law applicable to that set of facts’.155 This approach has received some academic support. For instance, Loughlan has written that the defendant must know of the primary breach of fiduciary duty, and that:156 this requirement as to the context of knowledge removes from the ambit of the principle of liability that third person who is unsophisticated or untutored in law or equity and who ought not, in the circumstances, reasonably to have obtained the services of someone who was in fact more tutored, namely, a solicitor.

Nevertheless, the better view is that knowledge of the legal consequences of a set of facts is not required. The law generally adheres to the principle that ignorance of the law is no excuse,157 and there is no compelling reason for accessory liability in equity to depart from this. If the defendant realises that another person, the claimant, has some sort of right to hinder or impede the actions of the primary wrongdoer, there should be no need for the defendant also to know the intricacies of the law of fiduciary obligations, for example, in order to be liable. In the context of claims brought in conspiracy and knowing receipt, Buckley LJ held that ‘[i]f all the facts which make the transaction unlawful were known to the parties . . . ignorance of the law will not excuse them’.158 The same should be true as regards accessory liability. In any event, it needs to be established to what degree of specificity facts must be known. In Brinks Ltd v Abu-Saleh (No 3), Rimer J expressed the view that a defendant must know of the existence of the fiduciary relationship, or the facts giving rise to it, before he could be made liable as an accessory.159 By contrast, Lord Millett in Twinsectra thought it sufficient that the defendant be aware that 154   Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509n (Ch D), 575, citing Foxton v Manchester and Liverpool District Banking Co (1881) 44 LT 406, 408. 155   Carl Zeiss Stiftung v Herbert Smith & Co (No 2) [1969] 2 Ch 276 (CA), 297. 156   PL Loughlan, ‘Liability for Assistance in a Breach of Fiduciary Duty’ (1989) 9 OJLS 260, 268. 157   From the Latin maxim, ignorantia juris non excusat. 158   Belmont Finance Corp Ltd v Williams Furniture Ltd (No 2) [1980] 1 All ER 393, 404 (Buckley LJ); see also at 405 (Buckley LJ) and 412 (Goff LJ). 159   [1996] CLC 133 (HC), 151.



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the subject-matter of the trust ‘is not at the free disposal of the principal’.160 The latter approach is preferable: the defendant should not need to know the precise nature of the relationship between the primary wrongdoer and claimant in order to incur liability as an accessory.161 Indeed, Twinsectra was preferred to Brinks in Barlow Clowes International Ltd v Eurotrust International Ltd.162 Lord Hoffmann, giving the advice of the Privy Council, said that:163 Someone can know, and can certainly suspect, that he is assisting in a misappropriation of money without knowing that the money is held on trust or what a trust means . . . it was not necessary to know the ‘precise involvement’ of [the primary wrongdoer] in the group’s affairs in order to suspect that neither he nor anyone else had the right to use [the claimant’s] money for speculative investments of their own.

This approach is particularly important in the context of money laundering: a defendant should not be able to escape liability by insisting that he or she was ‘only’ participating in a breach of exchange control or tax evasion.164 Accessory liability might be imposed upon a defendant even if he or she did not know the precise identity of the claimant. As Harpum has observed, ‘[i]t would be curious if a person could escape liability by saying, “Yes, I knew I was assisting the commission of a fraud, but I did not realise that it was this particular fraud and this particular victim”’.165 However, it seems sensible to require that both the primary wrongdoer and the claimant should fall within a class of persons which the defendant did know about. Austin asked whether claims should be distinguished from facts. The answer appears to be: Yes. In Baden, Peter Gibson J was clear that ‘the relevant knowledge must be of facts and not of mere claims or allegations’.166 In reaching this conclusion, his Lordship relied upon a similar distinction drawn in the context of knowing receipt in Carl Zeiss Stiftung v Herbert Smith & Co (No 2).167 In Carl Zeiss, the defendant solicitors received money from their client in payment of the solicitors’ legal fees. The claimants claimed that the client had been holding the money on trust for them. The Court of Appeal held that the solicitors were entitled to rely on their client’s denial of this claim, and therefore found that although the solicitors knew of the claim to the money, they did not know as a fact that there was a trust.   [2002] UKHL 12, [2002] 2 AC 164, [135].   See too J Ulph, Commercial Fraud: Civil Liability, Human Rights, and Money Laundering (Oxford, Oxford University Press, 2006) para 7.40; Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2006] FSR 17, [1506] (Lewison J). 162   [2005] UKPC 37, [2006] 1 WLR 1476, [19]–[28]. 163   ibid [28]. 164   Agip Africa Ltd v Jackson [1990] Ch 265, 295 (Millett J). However, accessory liability should also be possible in these situations, and a similar approach should be adopted: see ch 9. 165   Harpum, ‘The Basis of Equitable Liability’, above n 43 at 15. 166   Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509n (Ch D), 575. In the context of equitable duties of confidence, knowledge of a mere assertion of confidentiality is insufficient: the defendant must know that the information was confidential: see eg Fraser v Thames Television [1984] QB 44, 65, also relying upon Carl Zeiss Stiftung v Herbert Smith & Co (No 2) [1969] 2 Ch 276 (CA). 167   [1969] 2 Ch 276 (CA). 160 161

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However, this distinction between claims and facts should not be taken too far. Although it is true that knowing a claim about facts is not the same as knowing the facts themselves, the defendant will only be able to deny knowledge of facts where he or she genuinely does not believe the claim or allegation. This was surely the case in Carl Zeiss. But where the defendant does not believe the primary wrongdoer’s denial of the claim, accessory liability may well be appropriate. This will depend upon the standard of knowledge required.

ii.  Standard of Knowledge It was seen in chapter two that some guidance as to the meaning of knowledge was provided by Peter Gibson J in Baden, a case concerning accessory liability in equity. This became known as the ‘Baden scale of knowledge’, and is worth repeating here:168 (i) actual knowledge; (ii) wilfully shutting one’s eyes to the obvious; (iii) wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make; (iv) knowledge of circumstances which would indicate the facts to an honest and reasonable man; (v) knowledge of circumstances which would put an honest and reasonable man on inquiry.

Before Tan, when ‘knowledge’ was considered to be the relevant mental element, whether or not all five points on the Baden scale were sufficient for accessory liability was a controversial issue. The preponderance of decided cases held that only points (i) to (iii) would lead to liability, since this was thought to ensure want of probity tantamount to bad faith.169 Nevertheless, there was some support for the proposition that all five elements of the Baden scale could lead to accessory liability.170 This was perhaps easier to accept when the defendant’s assistance had to be part of a dishonest and fraudulent design: given the fraud involved in the primary wrong, a lower fault element on the part of the accessory might have been more justifiable. However, the better view is that subjective fault should always be required for accessory liability;171

168   Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509n (Ch D), 575–576. 169   Carl Zeiss Stiftung v Herbert Smith & Co (No 2) [1969] 2 Ch 276 (CA); Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] Ch 250 (CA); Agip (Africa) Ltd v Jackson [1991] Ch 547 (CA); Polly Peck International plc v Nadir (No 2) [1992] 4 All ER 769 (CA); Eagle Trust plc v SBC Securities Ltd [1993] 1 WLR 484 (Ch D). In BCCI (Overseas) Ltd v Akindele [2001] Ch 437 (CA), 454, Nourse LJ said: ‘In general, the first three categories have been taken to constitute actual knowledge (or its equivalent) and the last two constructive knowledge’. 170   Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 1 WLR 1555 (Ch D); Karak Rubber Co Ltd v Burden (No 2) [1972] 1 WLR 602 (Ch D); Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509n (Ch D). 171  eg Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2006] FSR 17, [1507] (Lewison J).



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points (iv) and (v) on the Baden scale should be insufficient.172 Indeed, it is artificial to equate an innocent failure to act as a reasonable man and make inquiries about the situation with knowledge of particular facts which would have been revealed as the result of such inquiries. An honest failure to act as a reasonable man is more readily equated with negligence. In Twinsectra, Lord Millett rightly insisted that ‘a person’s failure through negligence to make inquiry is insufficient to enable knowledge to be attributed to him’.173 But should knowledge be attributed to a defendant who falls within either point (ii) or (iii) of the Baden scale? Both (ii) and (iii) on the Baden scale are often considered to be examples of ‘wilful blindness’. However, the two are not the same, despite some tendency to consider them together.174 In the context of breach of confidence, Buxton LJ has said that:175 The important thing is that for a third party to be held liable in equity for a breach of confidence, more is required than merely careless, naive or stupid behaviour. There must be awareness that the information was confidential or willingness to turn a proverbial blind eye.

A person who knows all the relevant facts, but then wilfully shuts his or her eyes to the obvious, should be considered to have the requisite degree of knowledge for accessory liability: a deliberate failure to infer an obvious conclusion from known facts gives rise to the same level of culpability as would actual knowledge.176 Category (iii) of the Baden scale is more problematic. Recklessly failing to make such inquiries as a reasonable man would make appears to veer further away from knowledge towards negligence.177 Admittedly, distinguishing between points (ii) and (iii) on the Baden scale is very tricky,178 but in principle category (iii) of the Baden scale seems to be expressed too broadly for accessory liability. The narrower formulation of wilful blindness by Goff LJ in Belmont Finance Corp Ltd v Williams Furniture Ltd should be favoured: ‘wilfully shutting one’s eyes to the obvious, or wilfully refraining from inquiry because it may be embarrassing’.179 172   Although Australia has not followed Tan and recognises that points (i)–(iv) on the Baden scale can all lead to accessory liability: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 222, (2007) 230 CLR 89, [177]–[178]; Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6, (2012) 200 FCR 296, [262]. 173   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [112], citing Agip (Africa) Ltd v Jackson [1990] Ch 265, 293. 174   See ch 2.III.B.ii. 175   Thomas v Pearce [2000] FSR 718 (CA), [16], citing R Toulson and C Phipps, Confidentiality (London, Sweet & Maxwell, 1996) 193; see now 3rd edn (London, Sweet & Maxwell, 2012) para 3-071. See too Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] UKSC 31, [2013] 1 WLR 1556, [26] (Lord Neuberger). cf Arnold, ‘Accessory Liability for Breach of Confidence’, above n 93. 176   As a practical matter it is necessary to include (ii) within any knowledge requirement; otherwise, liability would be too easily avoided by the pleadings of defendants: see ch 2.III.B.ii. 177   This point is well made by Cooper, Secondary Liability, above n 122 at 151. 178   In two comments after Tan, Berg considered that only the first two elements should suffice for dishonesty (‘Accessory Liability’, above n 106) whereas Birks was inclined to include the first three elements of the Baden scale (P Birks, ‘Accessory Liability’ [1996] Lloyd’s Maritime and Commercial Law Quarterly 1). 179   [1979] Ch 250 (CA), 275.

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The boundaries between each category of the Baden scale are somewhat fluid and difficult to define. In Tan, Lord Nicholls bemoaned the ‘tortuous convolutions’ surrounding knowledge which persisted in the cases concerning accessory liability in equity, and ultimately held that the ‘Baden . . . scale of knowledge is best forgotten’.180 Whether this was the right approach, or whether further efforts could be made to ensure a coherent and stable approach to knowledge, will be examined further below; it is important to note that the Baden scale of knowledge is not necessarily comprehensive, and that any definition of knowledge does not inevitably need to be tied to that scale.181

B. Negligence Harpum has written that ‘[n]egligence is not and never has been a basis of secondary liability and rightly so. It is inappropriate that secondary liability should be imposed too readily’.182 Accessory liability should be based upon the defendant’s culpable participation in a wrong, and such culpability should be assessed subjectively. Negligence is insufficiently demanding as a mental element. Only requiring proof of negligence would make it easier to impose liability upon third parties and expand the range of defendants who might be liable. As a result, third parties might take further steps to ensure that they are not parties to primary wrongs. Particularly in the context of commercial transactions, this may become unduly cumbersome; third parties who have not voluntarily assumed any fiduciary obligations, and are not subject to a free-standing duty of care, should feel free to carry out lawful acts provided that they do not know that their acts will constitute participation in a primary wrong.183 It would place too great a burden upon third parties to decide, after the events in question, that it would have been reasonable for them to make further inquiries before acting.184 In Tan, Lord Nicholls was right to emphasise that185 ordinary, everyday business would become impossible if third parties were to be held liable for unknowingly interfering in the due performance of such personal obligations. Beneficiaries could not reasonably expect that third parties should deal with trustees at their peril, to the extent that they should become liable to the beneficiaries even when they received no trust property and even when they were unaware and had no reason to suppose that they were dealing with trustees.

On the other hand, since the claimant, such as a beneficiary under a trust, is particularly vulnerable,186 it might be thought that the protection afforded to such   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 392.   See section VII below. 182   Harpum, ‘The Basis of Equitable Liability’, above n 43 at 16. See similarly Elliott and Mitchell, ‘Remedies for Dishonest Assistance’, above n 148. 183   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 391–392. 184   Harpum, ‘The Stranger as Constructive Trustee’, above n 9 at 126. 185   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 387. 186   See eg Loughlan, ‘Liability for Assistance’, above n 156. 180 181



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claimants should be strengthened, and that this could be achieved through an attenuated mental element. This might encourage agents and advisers better to police the potential commission of primary wrongs. Gardner has written that:187 The advantage in turning trusts’ professional agents into policemen in this way, if it can appropriately be done, is that such agents are virtually uniquely placed to raise the alarm; there is no-one else so placed, so if trustees are to be effectively policed at all, it must be by their agents. The question remains, however, whether this course is blocked, in that such agents cannot in the nature of things be cast as policemen.

Although it might be possible for third parties to be policemen in this way,188 it is suggested that the law has been right to reject this approach.189 Accessory liability should not be too claimant-focussed, and must balance the interests of the defendant. Negligence should not suffice. Although this might offer protection to the ‘morally obtuse’ who fail to recognise an impropriety that would have been apparent to a reasonable person,190 given that the defendant’s acts are prima facie lawful, it is inappropriate to impose liability where the defendant in question did not actually realise that a primary wrong was at issue.191

C. Unconscionability In Tan, Lord Nicholls raised but dismissed unconscionability as a mental element. This word is commonly used throughout equity, and may therefore be of ‘immediate appeal to an equity lawyer’.192 The difficulty with unconscionability is that it is not clear what it means, and whose conscience has to be affected: that of the defendant, the reasonable person or the court? In any event, unconscionability appears largely to be based upon the defendant’s knowledge,193 and it is unclear precisely what the extra layer of unconscionability adds.194 ‘Unconscionability’ is not used by the courts as regards claims against accessories, and this should be welcomed. It is a peculiarly equitable concept, which would only hinder the development of coherent principles of accessory liability across the equity/ common law divide. Moreover, the mental element for receipt-based claims is now ‘unconscionability’.195 That the mental element necessary for receipt-based   Gardner, ‘Knowing Assistance’, above n 45 at 80.   To an extent, the money laundering regulations to which banks are subject impose duties to take steps to avoid participating in equitable wrongs: see generally R Booth, S Farrell, G Bastable and N Yeo, Money Laundering Law and Regulation: A Practical Guide (Oxford, Oxford University Press, 2011). 189   cf Finn, ‘Liability of Third Parties’, above n 9 at 216. 190   Consul Development Pty Ltd v DPC Estates Pty Ltd (1972) 132 CLR 373, 398 (Gibbs J); or apparent to an ‘ordinary’ person – see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 222, (2007) 230 CLR 89, [177]. 191   The same approach is taken in the law of contract: see OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1; see ch 5.II. 192   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 392. 193   BCCI (Overseas) Ltd v Akindele [2001] Ch 437 (CA). 194   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 392. 195   BCCI (Overseas) Ltd v Akindele [2001] Ch 437 (CA). 187 188

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liability differs from that required for accessory liability further helps to distinguish the two.196

D. Dishonesty In Tan, Lord Nicholls shifted the emphasis away from the dishonesty of the primary wrongdoer and on to that of the accessory. Lord Nicholls considered dishonesty to be a much easier concept to apply than knowledge.197 His Lordship insisted that ‘an honest person should have little difficulty in knowing whether a proposed transaction, or his participation in it, would offend the normally accepted standards of honest conduct’.198 Dishonesty has a strong subjective element: it can only be assessed in light of what the defendant actually knew at the time of his or her participation in the primary wrong.199 But Lord Nicholls was keen to stress that individuals are not free to establish their own standards of honesty, and explained that dishonesty ‘means simply not acting as an honest person would in the circumstances. This is an objective standard . . . [and] is to be equated with conscious impropriety’.200 Whether dishonesty is predominantly an objective or subjective test has been the subject of much controversy. This is largely because in Twinsectra Ltd v Yardley, the House of Lords adopted Tan as an accurate statement of English law,201 but the majority interpreted the advice of the Privy Council in an unconvincing fashion. Lord Hutton, with whom the majority of the Law Lords agreed on this issue,202 found that, in Tan, Lord Nicholls had simply disapproved of a purely subjective test of dishonesty, in which the defendant would be able to set and then be judged against his own standard of (dis)honesty. Lord Hutton went on to state that:203 dishonesty requires knowledge by the defendant that what he was doing would be regarded as dishonest by honest people, although he should not escape a finding of dishonesty because he sets his own standards of honesty and does not regard as dishonest what he knows would offend the normally accepted standards of honest conduct.

This test of Lord Hutton seems to allow an ‘escape route’ for a defendant: even if a reasonable person in the defendant’s position would have considered the defendant’s acts to be dishonest, the defendant might avoid a finding of dishon196   Prior to Tan, both were based upon ‘knowledge’, and this perhaps compounded the impression that receipt-based claims were an example of accessory liability: see section I.B above. 197  This approach had also previously been advocated in some earlier decisions: see eg In re Montagu’s Settlement Trusts [1987] Ch 264, 285 (Megarry VC); Agip (Africa) Ltd v Jackson [1990] Ch 265, 293 (Millett J). 198   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 391. 199   ibid 389. 200   ibid 389. 201   All the Law Lords appeared to accept this: [2002] UKHL 12, [2002] 2 AC 164, [3] (Lord Slynn), [7] (Lord Steyn), [11] (Lord Hoffmann), [26] (Lord Hutton), [113] (Lord Millett). 202   Compare Thomas and Hudson, The Law of Trusts, above n 107 at para 30.36. 203   [2002] UKHL 12, [2002] 2 AC 164, [36].



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esty if he or she can prove that he or she genuinely had a warped view of ordinary people’s morality and therefore did not think that reasonable people would consider that the defendant acted dishonestly. This mirrors the approach adopted by the criminal law in R v Ghosh.204 Lord Hutton decided that Tan did not support a different meaning of dishonesty from that adopted in Ghosh, despite the fact that Lord Nicholls sought to distance the civil law from this criminal concept of dishonesty.205 Lord Hutton thought that, in the context of Lord Nicholls’ speech as a whole, the Privy Council only rejected an entirely subjective test of dishonesty.206 Lord Hutton approved207 the approach adopted by Steel J in Abbey National plc v Solicitors’ Indemnity Fund Ltd, in which the judge relied on the meaning of dishonesty provided in Ghosh and concluded that ‘there is in my view a subjective element both in civil and in criminal cases’.208 The discord that exists between the decisions in Tan and Twinsectra is problematic. In Twinsectra, the House of Lords purported to accept Lord Nicholls’ speech in Tan, but in so doing appeared to modify significantly the test of dishonesty to be used. This is particularly unfortunate because it appears to be based upon a misunderstanding of what Lord Nicholls was actually saying in Tan. In Twinsectra itself, Lord Millett powerfully dissented on the issues surrounding dishonest assistance, and emphasised that Lord Nicholls did not seek to introduce the Ghosh test into this area.209 Given the dichotomy between the more objective test of dishonesty in Tan, and the additional subjective limb in Twinsectra, it was unsurprising to find that the issue of dishonesty again reached the highest level in Barlow Clowes International Ltd v Eurotrust International Ltd.210 Lord Hoffmann, giving the advice of the Privy Council, held that the defendant’s ‘knowledge of the transaction had to be such as to render his participation contrary to normally acceptable standards of honest conduct. It did not require that he should have had reflections about what those normally acceptable standards were.’211 This favours the objective approach set out in Tan. Remarkably, however, Lord Hoffmann said that this was consistent with the judgment of the majority in Twinsectra.212 This was especially unanticipated since Lord Hoffmann was a member of the majority in Twinsectra, and had clearly suggested in that case that the defendant did need to realise that he or she would be thought dishonest according to normally acceptable standards of 204   R v Ghosh [1982] QB 1053 (CA). It has been thought to lead to a ‘Robin Hood problem’: see ch 2.III.C. 205   eg Lord Nicholls prefaced his remarks about the nature of dishonesty with: ‘[w]hatever may be the position in some criminal or other contexts (see, for instance, Reg. v Ghosh [1982] QB 1053)’: Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 389. 206   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [31]. 207   ibid [37]. 208   Abbey National plc v Solicitors’ Indemnity Fund Ltd [1997] PNLR 306 (QBD), 310. 209   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [114]–[125]. 210   [2005] UKPC 37, [2006] 1 WLR 1476. 211   ibid [15]. 212   See too TM Yeo, ‘Dishonest Assistance: Restatement from the Privy Council’ (2006) LQR 171, 172–173.

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honesty.213 Nevertheless, the Privy Council in Barlow Clowes found no inconsistency between Tan and Twinsectra, and applied an objective test of dishonesty. As a matter of precedent, the House of Lords’ decision in Twinsectra still appears to be the leading decision in England and Wales. Barlow Clowes, like Tan, was a decision of the Privy Council; the Board was not in a position to overrule the House of Lords for the purposes of English law. This might explain Lord Hoffmann’s rather strained interpretation of the majority speeches in Twinsectra: it is now possible for English judges to acknowledge that they are bound by the decision of the House of Lords in Twinsectra, but interpret that decision in the same way as the Privy Council in Barlow Clowes. This preserves the rules of precedent, whilst allowing courts, in substance, to depart from Twinsectra and follow Tan. Had Lord Hoffmann sought to reach this outcome by criticising Twinsectra rather than interpreting it, further confusion may have been the result.214 This sleight of hand has been adopted by the courts. For example, in AbouRahmah v Abacha, Rix LJ referred to dishonesty ‘in the Twinsectra sense, . . . as clarified in Barlow Clowes’.215 Similarly, the objective approach to dishonesty was preferred by the Court of Appeal in Starglade Properties Ltd v Nash.216 Thus the objective test of Lord Nicholls in Tan now seems to be generally accepted as English law, even though this sits uncomfortably with Twinsectra. If dishonesty is to prove to be a satisfactory mental element for accessory liability, it must be right that it should be objectively assessed, taking into account what the defendant knew. But it is not yet clear whether dishonesty is an appropriate concept to use in the context of accessory liability in equity. This will be more fully considered below,217 but first some important issues regarding dishonesty should be highlighted.

i. Reception Dishonesty received a warm welcome from some commentators.218 Given the struggles that had been experienced with the Baden scale of knowledge, this was perhaps unsurprising. Many commentators and judges had called for a revision of the mental element required for accessory liability, and want of probity or dishonesty had gained much support.219 But it quickly became apparent that ‘dishonesty’  eg Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [20].   See similarly A Clarke, ‘Claims Against Professionals: Negligence, Dishonesty and Fraud’ (2006) 22 Professional Negligence 70, 84. 215   Abou-Rahmah v Abacha [2006] EWCA Civ 1492, [2007] 1 Lloyd’s Rep 115, [40]; also [68] (Arden LJ). 216   [2010] EWCA Civ 1314, [2011] Lloyd’s Rep FC 102, [32]. 217   See section VII below. 218   eg R Nolan, ‘From Knowing Assistance to Dishonest Facilitation’ (1995) CLJ 505, 505: ‘a very welcome development and clarification of the law’. See too C Harpum, ‘Accessory Liability for Procuring or Assisting a Breach of Trust’ (1995) 111 LQR 545. 219  eg Re Montagu’s Settlement Trusts [1987] Ch 264, 285 (Sir Robert Megarry VC); Agip (Africa) Ltd v Jackson [1990] Ch 265, 293 (Millett J); Eagle Trust Plc v SBC Securities Ltd [1993] 1 WLR 484 (Ch D), 495 (Vinelott J); P Birks, ‘Misdirected Funds: Restitution from the Recipient’ [1989] Lloyd’s Maritime and Commercial Law Quarterly 296; MJ Brindle and R Hooley, ‘Does Constructive Knowledge make a Constructive Trustee?’ (1987) 61 Australian Law Journal 281. 213 214



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in isolation was a difficult concept to handle, and that the guidance provided by Baden may have been more helpful than was often admitted.220

ii. Label The label of ‘dishonesty’ is more evocative than ‘knowledge’, for example. In Twinsectra, Lord Hutton said that a ‘finding by a judge that a defendant has been dishonest is a grave finding, and it is particularly grave against a professional man, such as a solicitor’.221 Some judges may be reluctant to brand a defendant dishonest, and therefore shy away from imposing liability in circumstances where ‘knowing assistance’ would be both appropriate and semantically less problematic. Such reticence can be criticised; in Attorney General of Zambia v Meer Care & Desai (A Firm), Peter Smith J said:222 In my view this reluctance [to find liability because of the severity of the label of ‘dishonesty’] is erroneous. First there is no justification in applying a more strict principle against a Defendant merely because he is a professional. It is no less grave for a non professional to be accused of dishonesty. The courts have always been reluctant wrongly in my view to adopt that stance. Second cases in the last decade have shown sadly that there are plenty of professional men who act dishonestly.

Nevertheless, Peter Smith J’s robust approach is not mirrored by all; Lord Hutton’s reservations, expressed at the highest level, give cause for some concern. Indeed, they were echoed by Lord Millett, dissenting on this point in Twinsectra.223 The label of ‘dishonesty’ may have an unfortunate distorting effect, and seem even odder in contexts beyond those of trusts and fiduciary obligations: in the realm of breach of confidence, ‘dishonesty’ has been criticised as ‘not a word most people would readily apply to dealing with information’.224

iii.  Misplaced Criminal Concept One of the reasons why dishonesty was favoured by Lord Nicholls in Tan was that it provides for differences in degree, and may be more nuanced than knowledge.225 But with such flexibility comes a certain degree of uncertainty. This is especially undesirable in the commercial context. It is suggested that problems arise because dishonesty is simply out of place in the private law. Dishonesty rightfully belongs to the criminal law. It is a question for the jury, based upon what ordinary people consider to be (dis)honest. Yet even in the 220   See eg Berg, ‘Accessory Liability’, above n 106; Birks, ‘Accessory Liability’, above n 178. See too BCCI (Overseas) Ltd v Akindele [2001] Ch 437 (CA), 455 (Nourse LJ). The Baden scale continues to be referred to by courts; see, in the context of rectification, Daventry District Council v Daventry & District Housing Ltd [2011] EWCA Civ 1153, [2012] 1 WLR 1333. 221   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [35]. 222   Attorney General of Zambia v Meer Care & Desai (A Firm) [2007] EWHC 952 (Ch), [347] (this point was not raised on appeal: [2008] EWCA Civ 754). 223   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [134], [125]. 224  Stanley, The Law of Confidentiality, above n 97 at 29. 225   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 390.

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criminal law, accessory liability does not turn upon the defendant’s dishonesty but rather his or her knowledge.226 It is not clear why the civil law has borrowed a concept from the criminal law which is not employed in the context of accessories.227 Instead of looking across to unrelated areas of the criminal law in order to pluck out a mental element, accessory liability in equity would have been better served by borrowing the mental element demanded of accessories: knowledge. Happily, this also corresponds with the mental element required for accessory liability in the contractual sphere228 and is a concept with which the private law is familiar.229

iv.  Actus Reus or Mens Rea? There is some debate about what must be the subject of the dishonesty: is it the defendant’s state of mind or the defendant’s conduct? It has generally been assumed that dishonesty is a mental element. After all, in Tan Lord Nicholls was explicit that the defendant must be at fault in order to be liable as an accessory and suggested that ‘dishonesty’ should replace ‘knowledge’. Thus in Balfron Trustees Ltd v Peterson, Laddie J relied upon Tan and clearly stated that when considering dishonesty ‘[w]hat matters is the accessory’s state of mind’.230 In a similar vein, Lord Hoffmann in Twinsectra insisted upon a ‘dishonest state of mind, that is to say, consciousness that one is transgressing ordinary standards of honest

  See ch 3.IV.  In Starglade Properties Ltd v Nash [2010] EWCA Civ 1314, [2011] Lloyd’s Rep FC 102, [42] Leveson LJ sought to ‘add a note of concern if the concept of dishonesty for the purposes of civil liability differed to any marked extent from the concept of dishonesty as understood in the criminal law’. 228   See ch 5.V; see too Otkritie International Investment Management Ltd v Urumov [2014] EWHC 191 (Comm) [80] (Eder J). 229   An analogy between accessory liability in equity and in contract is entirely appropriate: see eg Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [119] (Lord Millett); Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 387 (Lord Nicholls). See further ch 5.VIII.A. Nevertheless, this failed to convince Lord Hoffmann. When discussing the decision-making process in Twinsectra, Lord Millett has since said: ‘The problem was Lennie because . . . he has such influence that I knew that in order to persuade the majority I had to persuade him. If I could persuade him the rest would fall into line, or most of them. But he was absolutely adamant and I went in to see him several times. I went into his room and we discussed it and we circulated, but he never budged. I offered everything. I said “If you are sorry for the defendant I am quite prepared to write in a way which will let him off the hook on the facts so long as you give me the law”. “No”. Then I went away and eventually I came back and I said “I’m prepared to write dishonesty right out of the equation and go back to knowledge provided you define it as actual knowledge” and define it the way Donald Nicholls had. Because this dishonesty is going to be a trap and he said “I thought you’d come round to that view, Peter, but I’m not prepared to change my mind”. So that was a failure and I think the last thing I did after I’d circulated, I went and I saw him and I said “You know, Lennie that your view means that you are going to draw a distinction between procuring a breach of trust and procuring a breach of contract and that is nonsense, especially as in this case they could have pleaded it as procuring a breach of contract as the trust was contractual”, and his response to that? “Yes, Peter, that’s your best point”. Now it’s not a best point, actually it’s a devastating point’: recounted in A Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Oxford, Hart Publishing, 2013) 183. 230   [2001] IRLR 758 (Ch D), 761. 226 227



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behaviour’,231 and in Barlow Clowes the Privy Council emphasised that dishonesty is a fault element: ‘[a]lthough a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective’.232 However, in Twinsectra, Lord Millett adopted a contrary approach. He thought that dishonesty related to the defendant’s conduct. Lord Millett observed that ‘[c] ivil liability is usually predicated on the defendant’s conduct rather than his state of mind’,233 and emphasised parts of Lord Nicholls’ speech in Tan which referred to a need to ‘act honestly’.234 Yet immediately after suggesting that dishonesty related to the conduct of the defendant, Lord Millett proceeded to emphasise that there could be no accessory liability without the defendant’s being at fault.235 Tying dishonesty to the mental element rather than conduct element of accessory liability is much to be preferred. The conduct element of accessory liability is not, in isolation, dishonest: it is not in itself dishonest for a bank to deal with a client’s money. It is only if the defendant is at fault in some way that dishonesty might arise. Dishonesty hinges upon what the defendant knows, and therefore relates to the mental element.

v.  ‘An Unnecessary Distraction, and Conducive to Error’ In Twinsectra, Lord Millett ultimately concluded that dishonesty should not be employed in the context of accessory liability. His Lordship forcefully argued that ‘the introduction of dishonesty is an unnecessary distraction, and conducive to error’.236 For example, mistakes might occur because of the convoluted ways in which dishonesty has been employed, or a reluctance to employ the label of dishonesty. Such errors seem unnecessary. Dishonesty is a distraction from the essence of the inquiry into the defendant’s knowledge. After all, a defendant will not be liable unless he or she fulfils the necessary criteria of knowledge; a defendant who genuinely and legitimately knows nothing regarding the primary wrong will not be considered to be dishonest.237 Lord Millett had ‘no difficulty in equating the knowing mishandling of money with dishonest conduct’,238 and therefore   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [20].   Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37, [2006] 1 WLR 1476, [10]. 233   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [116]. 234  eg Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 390. 235   Lord Millett explicitly drew an analogy with the common law tort of intentionally inducing a breach of contract: Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [119]. Again, this highlights the need for the defendant to be at fault. 236  ibid [134]. See too Berg, ‘Accessory Liability’, above n 106 at 447. 237  eg Stevenson v Singh [2012] EWHC 2880 (QB), [24] (HHJ Richard Seymour QC); Secretary of State for Justice v Topland Group plc [2011] EWHC 983 (QB), [96] (King J); Adelaide Partnerships Ltd v Danison [2011] EWHC 4090 (Ch), [15] (HHJ Cooke); TCP Europe Ltd v Perry [2012] EWHC 1940 (QB), [30] (HHJ Richard Seymour QC). 238   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [134]. See too Heinl v Jyske Bank (Gibraltar) Ltd [1999] Lloyd’s Rep Bank 511 (CA), 523 (Nourse LJ). 231 232

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concluded that dishonesty added little to the accessory liability principle. The conduct element consists of participation. The mental element is satisfied by knowledge. Dishonesty is redundant. Moreover, dishonesty might be considered to be an unsatisfactory basis of liability since its definition seems somewhat circular. In Tan, Lord Nicholls said that dishonesty ‘means simply not acting as an honest person would in the circumstances’.239 But this simply begs the question: what would an honest person have done? The answer appears to be: he would not have acted dishonestly, but this is clearly circular and does not further our understanding of dishonesty. So much energy has been focussed on the issue of whether dishonesty is satisfied by a subjective or objective test that inadequate attention has been afforded to what constitutes sufficient knowledge to ground a finding of dishonesty. This is a difficult issue. Birks has written that:240 It was right [in Tan] to accept that the really important distinction lay between honesty and negligence, but it might on reflection have been better to keep the Baden Delvaux scale in play. It was not necessary to go further than to warn that its first three points provide no more than helpful indications of dishonesty and must not be read as an exclusive codification. Harpum writes that the Baden Delvaux scale will not be mourned.241 But judges cast adrift on the sea of an undefined and objective dishonesty may find themselves still grateful for the guideline which Peter Gibson J, as he then was, attempted to throw them.

vi.  Implicit Defences One final point about dishonesty should be mentioned. This is that dishonesty explicitly demands culpability. If the defendant’s actions were justified, he or she should not be found to be dishonest. In Tan, Lord Nicholls said that ‘[u]nless there is a very good and compelling reason, an honest person does not participate in a transaction if he knows it involves a misapplication of trust assets to the detriment of the beneficiaries’.242 Very good and compelling reasons should provide a defence to accessory liability. But this sort of defence does not need to be bound up within the mental element. It may be more transparent simply to recognise that knowledge is required to ensure fault, but that this only leads to presumptive culpability; there may be some circumstances in which the defendant ought not to be liable because his or her actions were justified.243

  Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 389.   Birks, ‘Accessory Liability’, above n 178 at 6. Berg thought that only the first two points on the Baden scale should suffice: ‘Accessory Liability’, above n 106. 241   Harpum, ‘Accessory Liability’, above n 218 at 547. 242   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 389. 243   See ch 8. 239 240



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VI.  Explaining Accessory Liability The model of accessory liability in equity now has a relatively clear shape. A wide conduct element is favoured, encompassing acts of both assistance and inducement. The scope of liability is primarily restricted by a requirement that the defendant be at fault. This is currently expressed through the requirement of ‘dishonesty’. But whether or not such an approach to accessory liability can be justified requires close identification of the rationales underpinning liability.

A. Responsibility If the defendant is the instigator of the primary breach of an equitable obligation, it is reasonable to consider that the defendant bears some responsibility for the claimant’s loss.244 The importance of this idea of responsibility may also be extracted from cases concerned with assistance liability. For instance, in JD Wetherspoon plc v Van de Berg & Co Ltd, Peter Smith J said:245 It must not be forgotten that in most cases the breach can only occur as a result of the activities of the assistor. See for example in AG of Zambia v Meer Care 246 the Zambian parties were only enabled to steal large amounts of money from the Government because of the actions of (in view of the Court of Appeal decision) the Defendants other than Meer Care. It seems to me that it is appropriate that a liability should attach to such assistors.

If the assistance of a bank has a causal effect of more than minimal importance upon the primary breach of trust, a beneficiary may legitimately view the bank as responsible, in part, for his or her loss. On the other hand, conduct which fails to surpass the de minimis threshold is insufficient for the defendant to be held responsible for the infringement of the claimant’s rights.

B. Culpability In Twinsectra, Lord Millett demanded the defendant be culpable and said: ‘[w]hile negligence is not a sufficient condition of liability, intentional wrongdoing is. Such conduct is culpable’.247 Equity is wary of imposing liability upon the innocent. In Barnes v Addy, for example, the Court of Appeal was very reluctant to impose liability upon a solicitor who had simply acted in accordance with his   See eg Eaves v Hickson (1861) 30 Beav 136, discussed at section IV.A above.   [2009] EWHC 639 (Ch), [518]. 246   Attorney General of Zambia v Meer Care & Desai (A Firm) [2008] EWCA Civ 1007, [2008] Lloyd’s Rep FC 587. 247   Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [127]. 244 245

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duties.248 Such reticence disappears if the defendant was culpable. Indeed, one of the reasons why Lord Nicholls in Tan favoured dishonesty over knowledge may be that it clearly highlights the need for culpability. He considered the test of dishonesty to be ‘meaningful’.249 Culpability has always been an important element of accessory liability, and this explains why strict liability has never been seriously countenanced.250 It may also help to explain why a defendant should not be liable if he or she had a good and compelling reason for participating in the primary wrong:251 such a defendant cannot fairly be said to be culpable.

C.  Protecting Rights Accessory liability bolsters the protection afforded to claimants. This might be particularly important if principals in a fiduciary relationship, for example, are not in a position to look after their own position, and simply trust their fiduciaries to look after their best interests.252 Strengthening the protection of such principals against the actions of third parties may be especially desirable. In Tan, Lord Nicholls said:253 Beneficiaries are entitled to expect that those who become trustees will fulfil their obligations. They are also entitled to expect, and this is only a short step further, that those who become trustees will be permitted to fulfil their obligations without deliberate intervention from third parties. They are entitled to expect that third parties will refrain from intentionally intruding in the trustee-beneficiary relationship and thereby hindering a beneficiary from receiving his entitlement in accordance with the terms of the trust instrument. There is here a close analogy with breach of contract. . . . The underlying rationale is the same.

But it is not only on the individual, particular plane that accessory liability helps to protect rights. For example, trust obligations and fiduciary relationships as general ‘facilitative institutions’ are more likely to be respected and maintained if third parties cannot participate in their breach without fear of liability.254 However, the rights being protected still need to be balanced against third parties’ freedom of action, and accessory liability must be based upon a primary wrong: the claimant’s rights must actually have been infringed.255

  (1874) LR 9 Ch App 244, 251–252 (Lord Selborne).   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 391. 250   ibid 387. 251  ibid 389. 252   Loughlan, ‘Liability for Assistance’, above n 156. 253   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 387. 254   IM Jackman, ‘Restitution for Wrongs’ (1989) 48 CLJ 302, esp 311–317. 255   cf Gardner, ‘Knowing Assistance’, above n 45 at 68. 248 249



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D. Deterrence In Tan, Lord Nicholls thought that an important purpose of accessory liability was realised by ‘imposing a liability which will discourage others from behaving in a similar fashion’.256 Similarly, Ridge has written that a pragmatic rationale for assistance liability in equity is ‘to deter third party participation in breach of trust or fiduciary duty, thereby restricting the opportunities for wrongdoing by trustees and fiduciaries’.257 That accessory liability in equity should be justified by reference to deterrence has perhaps been influenced by the prophylactic approach adopted for fiduciary obligations more generally.258 The threat of accessory liability might deter professional defendants such as banks and accountants from participating in wrongs. As a result, the protection of equitable rights may be further strengthened.

E. Loss-shifting The utility of accessory liability in shifting the claimant’s loss onto a defendant has been recognised. In Tan, Lord Nicholls observed that this is particularly significant when the primary wrongdoer is insolvent. In such situations, ‘[a]ffording the beneficiary a remedy against the third party serves the . . . purpose of making good the beneficiary’s loss should the trustee lack financial means’.259 The law may well be concerned to ensure that a loss is not borne by an innocent claimant but by a defendant who has culpably participated in a wrong and bears responsibility for the infringement of the claimant’s rights. But the provision of an alternative defendant is only a ‘pragmatic rationale’260 behind accessory liability in equity. ‘Loss-shifting’ is simply the result of, and subsidiary to, the more important rationales of responsibility, culpability and protecting rights.

F. Property The need to protect equitable property is an important concern for the law. But, in Tan, Lord Nicholls was concerned not to limit accessory liability to the protection of proprietary rights.261 The better view is that the claimant can bring a claim   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 387.   P Ridge, ‘Justifying the Remedies for Dishonest Assistance’ (2008) 124 LQR 445, 446. See too Zhu v The Treasurer of the State of New South Wales [2004] HCA 56, (2004) 218 CLR 530, [121] (Gleeson CJ, Gummow, Kirby, Callinan, Heydon JJ). 258   Cf L Smith, ‘Deterrence, prophylaxis and punishment in fiduciary obligations’ (2013) 7 Journal of Equity 87. 259   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 386–387. 260   P Ridge, ‘Justifying the Remedies’, above n 257 at 446. 261   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 387. 256 257

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against an accessory for participating in any equitable wrong, regardless of whether or not the claimant had a proprietary right at the outset.262

VII.  What Shape should Accessory Liability Take? The above rationales – in particular, responsibility, culpability and protecting rights – are sufficient to justify the existence of accessory liability in equity.263 This might explain why discussion tends to focus upon the question of when accessory liability is appropriate, rather than whether it should be recognised as available. In Tan, Lord Nicholls said that any suggestion that accessory liability should no longer exist in equity ‘can be dismissed summarily’.264 Nevertheless, prior to Tan, Sir Leonard Hoffmann (as he then was) asked, extra-judicially, ‘why should anyone else incur a liability which he would not otherwise incur because he helps the trustee to do something which he knows is a breach of trust?’265 After all, it is the trustee who is subject to fiduciary obligations, not the accessory. Too readily imposing accessory liability upon strangers to a trust may be unfair on defendants carrying out their ordinary business, and have deleterious effects on commerce more generally. However, it is important to place his Lordship’s comments in their proper context. Although he suggested that accessory liability in equity may be redundant, he did so because he thought that claims against defendants should be available at common law, whether for fraud, negligence, or under Lumley v Gye.266 As regards the latter, Lord Hoffmann considered that whether the primary wrong was a breach of an equitable or contractual obligation was irrelevant as they were ‘merely species of obligations’,267 so it ‘should be possible to assimilate or at least to reconcile the two forms of liability. Is it not extraordinary that the rules for inducing breach of contract are treated as having simply no relationship with the rules for inducing breach of trust, that the two principles exist in different textbooks and different divisions of the High Court?’268 Ultimately, Lord Hoffmann was critical of the discord between equity and the common law, rather than the existence of accessory liability in itself.

  See section III above.   cf Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 (HCA), 397 (Gibbs J); Zhu v Treasurer of New South Wales (2004) 218 CLR 530, [2004] HCA 56, [121] (Gleeson CJ, Gummow, Kirby, Callinan, Heydon JJ); Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) [2012] WASCA 157, (2012) 44 WAR 1, [2148] (Drummond AJA). 264   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 386. 265   Hoffmann, ‘The Redundancy of Knowing Assistance’, above n 44 at 28. 266   Lumley v Gye (1853) 2 E & B 216; see generally ch 5. See too G Andrews, ‘The Redundancy of Dishonest Assistance’ [2003] Conveyancer and Property Lawyer 398. 267   Hoffmann, ‘The Redundancy of Knowing Assistance’, above n 44 at 16. 268  ibid 16. 262 263



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The current, general model of accessory liability involves a wide conduct element limited by a restrictive mental element. The broad conduct element ensures that accessory liability is not under-inclusive. An assister can legitimately be said to bear some responsibility for the infringement of a claimant’s rights. Moreover, as Lord Nicholls made clear in Tan, assisters may be just as culpable as inducers, and a failure to recognise assistance liability would provide insufficient protection to equitable rights. The mental element plays the principal role in restricting the scope of accessory liability in equity. Banks process numerous transactions every day. Investors regularly finance new enterprises. It is very difficult for such parties to know whether or not they are thereby participating in an equitable wrong, and the law should be reluctant to restrict generally legitimate activities. As a result, a subjective fault element should be favoured. This provides defendants with a degree of certainty about whether or not they run the risk of liability – they will not if they do not know of any wrong – and thereby affords adequate protection to defendants’ freedom of action. A defendant who actually knows that he or she is participating in a wrong will not be surprised to incur liability.269 This gives due weight to the requirement of culpability. Negligence is too low a fault element to ensure an adequate level of culpability, and unduly restricts a third party’s freedom of action.270 Admittedly, it may be difficult for claimants to prove that the defendant possessed the requisite subjective fault element, but it is entirely proper that accessory liability should not be easy to establish. A wide conduct element that encompasses assistance, restricted by a mental element that requires subjective fault, is a satisfactory approach for the law to adopt across all equitable wrongs, whether fraudulent or not. However, apart from distinguishing between different primary wrongs, there are two principal ways in which this model might be divided. First, instances of inducement could be distinguished from those of assistance. Second, circumstances in which the defendant makes a gain might be differentiated from other situations. These will be examined in turn, but neither option is convincing. A broad, single approach should be preferred.

A.  Distinguishing Inducement and Assistance Inducement and assistance were effectively separated before Tan, since only the latter, and not the former, required the primary breach of trust to be dishonest.271 Once this requirement was abolished, the two conduct elements have tended to merge with one another. For example, Carnwath J has spoken of ‘dishonest

  Unless a defence is available: see ch 7.   Of course, third party defendants – such as banks – may owe a free-standing duty of care to the claimant in some circumstances under either contract or tort. 271   See section I.C above. 269 270

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inducement or assistance’.272 However, it is sometimes suggested that there may be a ‘sliding scale’ of mental elements that varies according to the particular conduct element at issue.273 So a ‘higher’ conduct element such as inducement might only demand a ‘lower’ mental element, perhaps even negligence, whereas a ‘lower’ conduct element such as facilitation would require a ‘higher’ mental element such as actual knowledge, or even intention. This would maintain some sort of equilibrium between the conduct element and mental element. This approach would render the law very complex, and require fine distinctions to be made about the type of conduct element involved. Both inducement and assistance appear to be different points on a spectrum of participation, rather than fundamentally different in nature. A distinction between the two would be difficult to draw. As Harpum has written,274 the point at which mere assistance becomes instigation cannot be defined precisely and in some cases cannot exist. If the trustee is a company able to act only through its agents, are those agents to be regarded as instigators or assisters of any breach of trust they bring about?

Drawing a fundamental distinction between inducement and assistance may be more trouble than it is worth. This is particularly the case if a ‘higher’ fault element should be required even of inducement. After all, ‘it is strongly arguable that the more stringent the knowledge required of fiduciary wrongdoing the less obvious the reason for differentiating between types of wrongdoing’.275 Demanding that the accessory possess a subjective fault element even in the context of inducement liability is appropriate both to ensure that the defendant is culpable and to strike a balance with the need to protect the defendant’s freedom of action. For example, if in Eaves v Hickson276 the marriage certificate had been forged by a third party and was, bizarrely, not known to be a forgery by the father,277 then the acts of the father would still have induced the primary breach of trust. But he would have been unaware that the trustees would be in breach of their trust obligations by appointing the property to the children. Perhaps the father could have known, and maybe even ought to have known, but it seems unduly harsh to impose liability upon a stranger to the trust who honestly and genuinely believed that what he was doing was entirely lawful. Inducement has consistently required a subjective 272   BCCI (Overseas) Ltd v Akindele [1999] BCC 669 (Ch D), 676 (this was not considered on appeal: [2001] Ch 437 (CA)). See too the New Zealand decision of Watson v Dolmark Industries Ltd, in which Cooke P held that inducement is ‘perhaps the clearest possible case of knowing assistance’: [1992] 3 NZLR 311 (NWCA), 316. 273   See eg Finn, ‘The Liability of Third Parties’, above n 9 at 215–217; Ridge, ‘Participatory Liability’, above n 52 at 139. See too the judgment of Finn J in Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6, (2012) 200 FCR 296, [242]–[248]. 274   Harpum, ‘The Stranger as Constructive Trustee’, above n 9 at 144. Compare Finn, ‘The Liability of Third Parties’, above n 9 at 212; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 222, (2007) 230 CLR 89. 275   Finn, ‘The Liability of Third Parties’, above n 9 at 206. 276   Eaves v Hickson (1861) 30 Beav 136, discussed at section IV.A above. 277   This may be just about envisageable: perhaps the father married in a ceremony which he thought was legally binding but had no such effect.



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fault element.278 This is equally appropriate in the context of assistance. There is no need for the law to introduce the complexities inherent in varying the mental element according the precise mode of participation in the primary wrong.279

B.  The Impact of a Defendant’s Gain Another way to differentiate the cases is by partitioning them according to whether or not the defendant makes a gain from the breach of duty in question.280 Ridge has argued that where the defendant makes a profit, liability is explained by the defendant’s exploitation for gain of the claimant’s vulnerability; equity will not allow the defendant to take unconscientious advantage of such situations.281 This rationale does not apply where the defendant does not actually make a gain but merely facilitates an equitable wrong. In such circumstances, Ridge suggests that liability is justified only where the defendant is ‘so implicated in the [primary wrongdoer’s] fraud that he or she should be treated as also committing an equitable wrong’.282 This is supplemented by the desire to have ‘pure agents’ act as ‘whistle-blowers’ on equitable misconduct and deterrence.283 Ridge appears to consider that the primary wrong for this latter category must be breach of trust or fiduciary duty; other equitable wrongs – such as breach of confidence – may ground a claim against a defendant who profits from the wrong, but not against a defendant who makes no gain. It is suggested that whether or not the defendant makes a gain should not affect the core approach to substantive liability.284 Even where the defendant does make a profit from his participation in a wrong, the defendant should only incur accessory liability if he or she was aware that he or she was participating in a primary wrong. It remains inappropriate to lower the mental element simply because the defendant happened to benefit from the situation; this severely curtails the defendant’s freedom of action and ability to profit from his prima facie lawful acts. Actual knowledge is equally required in situations where the defendant does not make a gain. Accessory liability should, potentially, always be available regardless of the nature of the primary wrong; a defendant who assists a breach of confidence purely out of spite and makes no profit at all should not be able to escape liability simply because the primary wrong was not a breach of trust, for example. There appears to be a desire to shelter from extensive liability professional defendants who do not personally profit from the wrong but provide services  eg Williams v Williams (1881) 17 Ch D 437.   Although it may be that acts of assistance will generally be easier to justify than acts of inducement: see ch 7.II. 280   Ridge, ‘Participatory Liability’, above n 52 at 131–141. 281   ibid 136. 282   ibid 137. 283   ibid 137. 284   Of course, if the defendant does make a gain, this might affect the remedies available: see ch 8. If the defendant receives property belonging to the claimant in equity, then a receipt-based claim may also be possible: see section I.B above. 278 279

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which facilitate it.285 It is suggested that this might be better achieved through a stringent requirement of culpability, rather than limiting the types of equitable wrongs which can ground accessory liability. A high level of fault should always be demanded. However, defendants who do not profit from the wrong might find it easier to justify their actions than defendants who act in order to make a profit.286

C.  One General Approach to Accessory Liability To draw a distinction as regards the requirements of liability between inducement and assistance, or between instances where the defendant makes a gain or not, would introduce unnecessary complexity into the law. In this respect, the broad approach of Tan is to be welcomed. Accessory liability can attach to any primary wrong, which does not itself need to be dishonest. But it is not so clear that Tan should be supported in so far as it demands that the defendant be ‘dishonest’. The mental element needs to be set at a sufficiently high level to ensure culpability. But too high, and the claimant’s rights are inadequately protected; too low, and the defendant’s freedom of action is unduly compromised. It is unclear whether ‘dishonesty’ is truly satisfactory. Given the difficulties that surround this notion, and the fact that it is an unusual concept in the civil law,287 it would be preferable for the law to focus on the defendant’s knowledge: if the defendant actually knew of the primary wrong, or consciously turned a blind eye to what he or she knew in order to avoid such knowledge, then accessory liability might lie. A defendant who possesses such a subjective level of fault can consciously decide whether or not to participate in the equitable wrong.288 A lower level of fault would be too broad, and an intention to harm the claimant too limited. Yet even ‘knowledge’ in isolation might be criticised for being over-inclusive: a defendant could become liable for knowingly participating in a wrong, even if the defendant had good reasons for so doing. This should be dealt with by allowing the defendant to rely upon a defence of justification. Admittedly, the defendant would bear the burden of proving a defence, but it does not seem unduly onerous or unreasonable to expect those who knowingly participate in a primary wrong to justify their actions. Moreover, the defence will only have limited scope: few defendants who knowingly participate in an equitable wrong beyond a minimal level will be justified in their actions. The mental element should not be distorted because of rare instances where the defendant can avail him or herself of a defence. The precise nature of this defence,289 and the   Ridge, ‘Participatory Liability’, above n 52 at 135–136.   See ch 7.II.   For further arguments based upon a ‘fused’ approach between the common law and equity, see ch 5.VIII.A and ch 9. 288   Harpum, ‘The Basis of Equitable Liability’, above n 43 at 15. 289   See ch 7. 285 286 287



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remedies available against a defendant,290 will be considered later. In principle, accessory liability in equity adheres to an intuitively appealing structure: knowingly assisting or inducing any equitable wrong can lead to liability.

  See ch 8.

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5 Contract Accessory liability in the contractual context is generally thought to be narrower than it is in equity: whereas in equity the primary factor restricting liability is the mental element, in contract both the mental element and the conduct element are commonly considered to impose serious limitations on the ambit of accessory liability. The conduct element is often thought to encompass inducement alone; accessory liability tends to be analysed under the ‘tort of inducing a breach of contract’. Such liability has a long pedigree; its modern form can easily be traced back to the decision of Lumley v Gye in 1853,1 and probably even earlier.2 In OBG Ltd v Allan, the House of Lords recently affirmed that the defendant’s liability is accessorial.3 This decision has done much to clarify the law, and facilitates a thorough examination of the elements of accessory liability. But first the crucial decision in Lumley must be examined, and the difficulties the law has encountered in establishing a recognisable principle of accessory liability outlined.

I.  The Leading Case: Lumley v Gye Johanna Wagner was a niece of the famous composer, Richard Wagner. She was also a famous opera singer in her own right, and was something of a ‘hot property’4 in operatic circles of the mid-nineteenth century. Benjamin Lumley, the manager of Her Majesty’s Theatre, Haymarket, was eager to hire Wagner to sing at his theatre. He initially offered her £800 for an exclusive three-month engagement. Wagner rejected this offer: she was aware of her commercial worth, and demanded £1,200 and the removal of the provision that she was not to perform elsewhere without Lumley’s permission. Lumley accepted the increased fee, but insisted

1   Lumley v Gye (1853) 2 E & B 216. Lord Nicholls called Lumley the ‘inception’ of the tort: OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [168]. 2   See eg JH Baker, An Introduction to English Legal History, 4th edn (Oxford, Butterworths, 2002) 457–458. 3   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, eg [8] (Lord Hoffmann), [172] (Lord Nicholls), [320] (Lord Brown). 4   S Waddams, ‘Johanna Wagner and the Rival Opera Houses’ (2001) 117 LQR 431, 453.



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upon the exclusivity clause. On these terms, a contract was concluded between Lumley and Wagner.5 Wagner was due to begin her performance of the contract in April 1852. But by February of that year, she began to regret the agreement, and thought that she could have received a higher sum elsewhere. Frederick Gye, the manager of the Royal Italian Opera in Covent Garden – a rival theatre to that run by Lumley – sensed that Wagner may have been a little uneasy with her contract with Lumley, and went to see her in Germany. Gye offered Wagner £2,000 to perform for two months at his theatre. Wagner ultimately accepted this offer, even though it meant that she would be unable to fulfil her contract to sing for Lumley. Lumley sued Gye for inducing or procuring a breach of Lumley’s contract with Wagner. The case was heard by the Court of King’s Bench on a demurrer: Gye argued that the facts as alleged did not constitute a cause of action. The majority of the Court disagreed.6 It is important to analyse the basis upon which this decision was reached.

A.  The Basis of Lumley There are two main explanations for the decision that Lumley could sue Gye for having ‘maliciously procured’7 the breach of Wagner’s contract with Lumley. The first rests on a narrow view of the relationship between Lumley and Wagner. The second, broader approach suggests that procuring the breach of any contract can lead to liability. The latter is to be preferred.

i.  The Narrow View: Status On one view, the fact that Wagner was an employee of Lumley was crucial. Breaches of contracts of employment were criminal until 1875; if Wagner committed a crime, then consideration of whether Gye was an accessory to Wagner’s offence would be understandable.8 Such reasoning perhaps resonates with an explanation of Lumley based upon the Ordinance and Statute of Labourers, 1349 and 1351, which imposed liability upon those who enticed away another’s employee by offering higher wages. Although the Ordinance and Statute were repealed in 1563, this may have affected only the statutory criminal liability, rather than the civil liability, of an accessory. Indeed, the contention that Lumley

5   This was decided in an earlier dispute between the parties in which Lumley sought to prevent Wagner from breaching the terms of the contract: Lumley v Wagner (1852) 5 De G & Sm 485. For further, fascinating discussion of the background of the dispute, see Waddams, ‘Johanna Wagner’, above n 4 at 434–435. 6   The majority consisted of Crompton, Erle and Wightman JJ; Coleridge J dissented. 7   Lumley v Gye (1853) 2 E & B 216, 223 (Crompton J). 8   D Howarth, ‘Against Lumley v Gye’ (2005) 68 MLR 195, 201.

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should be explained on the narrow basis of the seduction of servants soon appeared in some of the literature of the time.9 However, limiting the ambit of Lumley to acts which are also criminal, or to the luring away of servants, is unsatisfactory. It is inconsistent both with subsequent decisions and with the thrust of the reasoning in Lumley itself. Coleridge J, dissenting, powerfully argued that Wagner could not be considered to fall within the scope of the Statute of Labourers; his Lordship explained that the legislation covered ‘the compulsion of labourers, handicraftsmen, and people of low degree who had no means of their own to live upon, and who, if they did not live by wages earned by their labour, would be vagrants, mendicants or worse’.10 This clearly did not encompass Johanna Wagner, who was an undoubted star of the era.

ii.  The Broader View: Contract The better explanation of Lumley lies in the general premise that inducing a breach of contract can lead to accessory liability. Crompton J said that he could ‘see no reason for confining the case to services or engagements under contracts for services of any particular description’,11 and Wightman J held that ‘[i]t was undoubtedly prima facie an unlawful act on the part of Miss Wagner to break her contract, and, therefore, a tortious act of the defendant maliciously to procure her to do so’.12 His Lordship further emphasised that ‘[t]he right to maintain such an action is by the common law, and not by the Statute of Labourers’.13 Erle J appeared to adopt an even wider approach, and the following passage is perhaps the most oft-quoted from Lumley:14 It is clear that the procurement of the violation of a right is a cause of action in all instances where the violation is an actionable wrong, as in violations of a right to property, whether real or personal, or to personal security. He who procures the wrong is a joint wrongdoer, and may be sued, either alone or jointly with the agent, in the appropriate action for the wrong complained of.

Such comments suggest a more general acceptance of accessory liability in contract law. Holdsworth has suggested that the decision of Blake v Lanyon in 179515 ‘paved the way for the idea that the gist of the action was the causing of a breach of contract; and for the enormous extension which was given to that cause of action by the decision in Lumley v Gye, that a persuasion to break any contract 9   eg A Underhill, Summary of the Law of Torts (London, Butterworths, 1873) 107–108. See generally M Macnair, ‘Free Association versus Juridification’ (2011) 39 Critique 53, 69–71. 10   Lumley v Gye (1853) 2 E & B 216, 267. This was also accepted in Bowen v Hall (1881) LR 6 QBD 333 (CA). 11   Lumley v Gye (1853) 2 E & B 216, 227. 12   ibid 238. 13   ibid 240. See too GH Jones, ‘Per Quod Servitum Amisit’ (1958) 74 LQR 39, 41–42: ‘the balance of evidence in the fifteenth century leads to the conclusion that the action for procurement was regarded as an action at common law and pleaded as such’. 14   Lumley v Gye (1853) 2 E & B 216, 232. 15   Blake v Lanyon (1795) 6 Term Rep 221.



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gives a like cause of action’.16 Baker traces the origins of a common law claim back even further, writing that:17 The idea of an action for inducing a breach of contract, independently of the relationship of master and servant, had certainly occurred to the common-law mind by 1529, when an action was brought against a third-party purchaser of land which the plaintiff had previously contracted to buy from the same vendor. The essence of the complaint in that case was that the defendant had maliciously procured the vendor to break his contract with him.18 . . . Later decisions confirmed the law which had been anticipated in 1529, that the tort is not confined to contracts of employment.

It is inappropriate to limit the scope of liability to that imposed by statute. The principles applied in Lumley were general common law principles which underpin accessory liability in contract law.19 This was soon accepted by subsequent cases. In Bowen v Hall,20 Brett LJ favoured the broad formulation of Erle J in Lumley in the context of a dispute regarding a contract of services, and in Temperton v Russell,21 Lord Esher22 rejected the argument that inducement liability was restricted to contracts of employment and held that it could extend to all breaches of contract, including disputes concerning trade unions. Dicta in support of this approach can also be found in the decisions of the House of Lords in Allen v Flood 23 and Quinn v Leathem.24 Lumley provided further impetus towards a general approach to accessory liability in the contractual sphere. This was encouraged by many. For example, Schofield observed that:25 If it is a tort maliciously to procure the breach of a contract for exclusive personal service, why is it not a tort maliciously to procure the breach of any contract? All that the plaintiff is obliged to prove is a wrongful act, and damage. To procure the breach of a contract of sale is a damage in the same manner as to procure the breach of a contract of service. Why is it not equally a wrongful act?

B.  Dealing with Lumley: Signs of Confusion Clear recognition that Lumley applied generally throughout the law of contract, and was not confined to relationships of employment or servitude, should have   W Holdsworth, A History of English Law, vol IV (London, Methuen & Co, 1924) 384.  Baker, An Introduction, above n 2 at 457–458. 18   Palmer v Wryght (1529) 94 SS 254. 19   This is even less surprising when it is remembered that accessory liability is a creation of common law, the roots of which are shared across the civil and criminal law divide: DJ Ibbetson, A Historical Introduction to the Law of Obligations (Oxford, Oxford University Press, 1999) 180. 20   Bowen v Hall (1881) LR 6 QBD 333 (CA). 21   Temperton v Russell [1893] 1 QB 715 (CA). 22   Who, as Brett LJ, had given judgment in Bowen v Hall (1881) LR 6 QBD 333 (CA). 23   Allen v Flood [1898] AC 1 (HL), 67 (Lord Halsbury), 113 (Lord Ashbourne). 24   Quinn v Leathem [1901] AC 495 (HL), 510 (Lord Macnaghten). 25   W Schofield, ‘The Principle of Lumley v Gye, and its Application’ (1889) 2 Harvard Law Review 19, 23. 16 17

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enabled the development and refinement of accessory liability in this area. However, for some time after Lumley there were not many instances where accessory liability was pleaded. This may be because Lumley’s claim against Gye actually failed at trial: Gye honestly believed that Wagner was free to enter into a contract with Gye without being in breach of her agreement with Lumley, so Gye did not possess the requisite mental element for accessory liability.26 Waddams has written that27 Lumley’s failure goes a considerable way to explain why no similar case was litigated for nearly 30 years: a defendant, in order to escape liability, had only to say that he honestly believed that the contract-breaker had some excuse, for which purpose a mistake, even an unreasonable mistake, on a point of law would suffice.

Claimants may have baulked at the prospect of commencing proceedings which were perceived to have a low prospect of success and to be beset by difficulties surrounding the mental element. Moreover, a lack of familiarity with Lumley may have been compounded by its straddling the boundary between contract and tort: contract textbooks tend to focus on the parties to a contract, to the detriment of Lumley, whilst many tort textbooks consider Lumley within the ‘economic torts’, which are often excluded from undergraduate law courses on the basis of their complexity.28 Such lack of attention is unfortunate.29 Greater clarity might be attained though more sustained analysis of this area. Given the lack of helpful precedents, it was perhaps more difficult for the law to develop in a coherent manner. Even so, it was disconcerting to find liability under Lumley described as ‘a comparatively new tort of which the precise boundaries should be established from case to case’ by Ralph Gibson LJ in Millar v Bassey,30 decided almost 150 years after Lumley itself. That it was so poorly understood contributed to many difficulties. Three major areas of confusion will be considered here: the masking of the need for a breach of contract; confusing elements of liability with other so-called ‘economic torts’; and the emergence of an allembracing ‘genus tort’ which went beyond the proper ambit of Lumley. All three are inter-linked, and highlight the pressure exerted against the boundaries and nature of Lumley liability. Such problems should be understood in order better to appreciate the import of the decision of the House of Lords in OBG Ltd v Allan.31 It is to be hoped that many of these difficulties can now be resolved after the clarification of this area of the law in OBG, which explicitly recognised that liability under Lumley is a form of parasitic accessory liability. 26  See The Times, 23 February 1854, p 12 and The Times, 6 June 1854, p 10; Waddams has observed that ‘the verdict is not very conspicuously reported in the law reports’ (Waddams, ‘Johanna Wagner’, above n 4 at 456, citing 18 Jur 468, 23 LT 66, 157, 23 LJQB 116 (in a footnote)). 27   Waddams, ‘Johanna Wagner’, above n 4 at 456–457. 28   At least one popular student text does not cover Lumley v Gye for this reason: see eg A Mullis and K Oliphant, Torts, 4th edn (Basingstoke, Palgrave Macmillan, 2011). 29   eg M Arden, ‘Economic Torts in the Twenty‐First Century’ (2006) 40 Law Teacher 1, 20. 30   Millar v Bassey [1994] EMLR 44 (CA), 72. 31   See eg H Carty, ‘The Economic Torts in the 21st Century’ (2008) 124 LQR 641.



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i.  Requiring a Breach of Contract In Quinn v Leathem, Lord Macnaghten said that ‘it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference’.32 Requiring mere ‘interference’ put the law on a slippery path towards abandoning the requirement for an actual breach of contract.33 This culminated in Torquay Hotel Co Ltd v Cousins.34 The defendant was a trade union official who called for industrial action against the claimant. The defendant rang the supplier of the claimant’s oil and said that a picket of the claimant’s business would prevent any further deliveries of oil to the claimant. As a result, the supplier did not deliver any oil to the claimant. The claimant argued that the defendant should be liable under Lumley v Gye. The Court of Appeal agreed. What makes the decision remarkable is that the claimant would not have been able to sue the supplier for breach of contract: a force majeure clause specifically exempted the supplier in the event of industrial action.35 But this did not deter Lord Denning MR, who said:36 The interference is not confined to the procurement of a breach of contract. It extends to a case where a third person prevents or hinders one party from performing his contract, even though it be not a breach.

This approach received the imprimatur of the House of Lords in Merkur Island Shipping Corpn v Laughton.37 Such an approach was rightly criticised.38 It is axiomatic that accessory liability must be parasitic to a primary wrong; without such a primary wrong, there can be nothing to which accessory liability can attach. In Allen v Flood, Lord Davey said that ‘[i]t seems to me strange to say that the principal who does the act is under no liability, but the accessory who has advised him to do so without any otherwise wrongful act is under liability’.39 If the claimant’s rights have not actually been   [1901] AC 495 (HL), 510.   It also allowed the possibility of liability for preventing performance of a contractual obligation: see section IV.A.i below. 34   Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 (CA). See too eg DC Thomson & Co Ltd v Deakin [1952] Ch 646 (CA). 35  For discussion of the impact of a force majeure clause see R Bagshaw, ‘Inducing Breach of Contract’ in J Horder (ed), Oxford Essays in Jurisprudence, 4th edn (Oxford, Oxford University Press, 2000) 149 and see further section III.C below. However, on the facts of Torquay Hotel Co Ltd v Cousins, it may have been possible to view the force majeure clause as simply ‘an exception from liability for non-performance rather than an exception from obligation to perform’: [1969] 2 Ch 106 (CA), 143 (Russell LJ). 36   [1969] 2 Ch 106 (CA), 138. See too the comments of Stamp J, at first instance: ‘the question which falls to be answered is not, therefore, the simple question whether the defendants induced a breach of Esso’s contract but whether the contractual rights conferred on the plaintiffs by the Esso contract were interfered with’: [1969] 2 Ch 106 (CA), 116. 37   Merkur Island Shipping Corpn v Laughton [1983] AC 570 (HL), 608 (Lord Diplock). 38   See eg T Weir, Economic Torts (Oxford, Clarendon Press, 1997) 37–43. In OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [181], Lord Nicholls called it ‘a step too far’. 39   [1898] AC 1 (HL), 172. 32 33

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violated through a breach, then he or she cannot sue the primary wrongdoer, and any third party will not have participated in a primary wrong. Sayre rightly concluded that ‘[t]o extend the doctrine of Lumley v. Gye to cover cases where no breach of contract has taken place would be as preposterous as it would be unjust.’40 Where a defendant ‘poaches’ a worker employed by a claimant, accessory liability can only arise if the worker leaves his or her employment in breach of contract; if the worker gives proper notice under the terms of his or her employment, the claimant will be unable to sue the employee for breach of contract, so there is no primary wrong to which accessory liability might attach. A defendant cannot be liable for participating in an employee’s lawful termination of his or her employment.41 The abandonment of the requirement for a primary wrong concealed the true accessorial nature of liability under Lumley. Such obscurity has now been lifted by the decision in OBG, which demanded that a breach of contract ground parasitic accessorial liability; any contrary suggestion has been overruled.42 Previous confusion on this point may have stemmed in part from the pollution of the elements of accessory liability from other wrongs often considered alongside Lumley under the umbrella of the ‘economic torts’.

ii.  An ‘Economic Tort’? Lumley is generally considered to be one of the ‘economic torts’.43 Other economic torts include the tort of conspiracy to injure by unlawful44 or lawful45 means. The ‘economic tort’ which has been most closely intertwined with Lumley is the tort of intentionally causing loss by unlawful means.46 Liability under this unlawful means tort does not require a breach of contract, but does require an intention to injure the claimant. Such considerations patently influenced the development of a ‘hybrid tort of interference with contractual relations’,47 which lay between Lumley and the unlawful means tort. Analysing Lumley as a member of the economic torts might lead to a distortion of the fundamental basis of liability. This is a cause for concern. Indeed, it is not only Lumley liability which may have been mangled by grouping disparate claims together under the banner of the ‘economic torts’; Sales and Stilitz have commented that associating the unlawful means tort with the other economic torts,   FB Sayre, ‘Inducing Breach of Contract’ (1923) 36 Harvard Law Review 663, 700.   Nichol v Martyn (1799) 2 Esp 732, 734 (Lord Kenyon); McManus v Bowes [1938] 1 KB 98, 127 (Slesser LJ). 42   See eg OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [264] (Lord Walker). 43   See eg M Jones and A Dugdale (eds), Clerk & Lindsell on Torts, 20th edn (London, Sweet & Maxwell, 2010) ch 24; H Carty, An Analysis of the Economic Torts, 2nd edn (Oxford, Oxford University Press, 2010). 44   Mogul Steamship Co v McGregor, Gow & Co [1892] AC 25 (HL); Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19, [2008] 1 AC 1174. 45   Quinn v Leathem [1901] AC 495 (HL). 46   Allen v Flood [1898] AC 1 (HL). 47  Carty, An Analysis of the Economic Torts, above n 43 at 33. 40 41



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‘which are based on altogether different underlying principles, has been on the whole unhelpful in elucidating the intentional harm tort’.48 So why are they considered together? The answer may rest upon some sort of idea of unity of intention. For example, when considering the decision of the Court of Appeal in Douglas v Hello! Ltd,49 Dame Mary Arden has written that:50 the Court took what might be described as a holistic approach to intention in the economic torts of unlawful interferences with trade and inducing breach of contract and unlawful means conspiracy. The Court’s view was that the intention required in these cases is a specific intention to cause harm to the claimant. It was not enough that the harm resulted from the defendant’s act. In taking this holistic approach the Court has identified a common thread, a golden thread, running through all these torts.

But such analysis simply does not align with the leading cases.51 For example, in Lumley v Gye, liability did not depend upon whether or not Gye set out to injure Lumley: the key issue was whether Gye knew that a breach of contract would occur.52 Yet under the unlawful means tort it is necessary to target the claimant.53 The mental elements are different.54 Moreover, the contention that the economic torts all operate to protect economic interests is not entirely persuasive. As Arden has commented, ‘it would be an over-generalisation to say that economic torts are always concerned with the protection of economic interests or that all economic interests are protected. That could not be’.55 Lumley liability can arise in relation to any breach of contract, and is not limited to protecting economic, trade or business interests. Whilst Deakin and Randall have suggested that only a ‘purist’ would linger upon such distinctions,56 it is clear that there is no reason why Lumley should necessarily be considered as part of the economic torts. Given the distorting effects that one economic tort might have upon another, it seems best to consider them separately.57 The grouping of ‘economic torts’ lacks any inherent unity and serves to confuse.58 Lumley liability is different from the other economic torts, and this can be seen in its conduct element, mental element and the interests protected. If Lumley 48   D Stilitz and P Sales, ‘Intentional Infliction of Harm by Unlawful Means’ (1999) 115 LQR 411, 412. 49   [2005] EWCA Civ 595, [2006] QB 125. This was one of the conjoined appeals heard in OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1. 50   Arden, ‘Economic Torts’, above n 29 at 15. 51   N McBride, ‘Fatal Attraction: The Economic Torts in the Court of Appeal’ (2005) 64 CLJ 550. 52   This is more fully explained at section V.C below. 53   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [62]–[64]. 54   Sales and Stilitz distinguish between a ‘knowing inducement tort’ and an ‘intentional harm tort’: ‘Intentional Infliction’, above n 48 at 432. 55   Arden, ‘Economic Torts’, above n 29 at 4. 56   S Deakin and J Randall, ‘Rethinking the Economic Torts’ (2009) 72 MLR 519, 536. Compare N McBride and R Bagshaw, Tort Law, 4th edn (Harlow, Pearson, 2012) 656–657. 57   cf P Edmundson, ‘Conspiracy by Unlawful Means: Keeping the Tort Untangled’ (2008) 16 Torts Law Journal 189, 190. 58   R Stevens, Torts and Rights (Oxford, Oxford University Press, 2007) 297. See too Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19, [2008] 1 AC 1174, [224] (Lord Neuberger).

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is to be considered under an umbrella heading, it should be that of ‘accessory liability’. Lumley should not be crammed under the banner of the economic torts.

iii.  The ‘Genus Tort’ Weir wrote that ‘the tort of inducing breach of contract has now been absorbed into the general tort of causing harm by unlawful means’.59 This ‘genus tort’ sought to provide a coherent conception of the economic torts.60 For example, in DC Thomson & Co Ltd v Deakin, Jenkins LJ said that ‘[d]irect persuasion or procurement or inducement applied by the third party to the contract breaker, with knowledge of the contract and the intention of bringing about its breach, is clearly to be regarded as a wrongful act in itself’.61 This assimilation of Lumley within a larger species of liability was very awkward.62 It was not clear what constituted the unlawful means required. After all, acts of inducement cannot, without more, be considered to be wrongful. Gye’s act in offering Wagner a high fee to perform for him was not in itself unlawful: it is the very basis of a capitalist economy. The elements of the wrong were provided by the breach of contract, for which the defendant bore some responsibility, and the culpability of the defendant accessory. Under the ‘genus tort’, the inducement would constitute unlawful means simply because Lumley says so. But this argument is circular and does not obviously lead to the conclusion that the genus tort should be recognised. Weir recognised such difficulties, but suggested that the unlawful means is provided by the breach of contract itself. If this were the case, liability would flow not only where the defendant induced a breach of contract, but also where the defendant prevented the primary wrongdoer from performing his or her contract. Yet Weir sought to avoid this result by creating an ad hoc exception for instances of prevention. It is sensible for prevention cases to be treated differently, but the ‘genus tort’ does not adequately explain why this should be so as far as Lumley is concerned.63 Moreover, Lumley does not require the defendant to intend to injure the claimant. This again differentiates Lumley from the other economic torts. For all these reasons, the dismissal of the ‘genus tort’ in OBG Ltd v Allan should be welcomed. The ‘genus tort’ was an elegant idea to seek to instil simplicity into this area of the law, but it came at the expense of doctrinal accuracy and a coherent approach.

 Weir, Economic Torts, above n 38 at 28.   Quinn v Leathem [1901] AC 495 (HL), 510; GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 TLR 376 (KBD); DC Thomson & Co Ltd v Deakin [1952] Ch 646 (CA). 61   DC Thomson & Co Ltd v Deakin [1952] Ch 646 (CA), 694. 62  See eg R Bagshaw, ‘Can the Economic Torts be Unified?’ (1998) 18 OJLS 729, 733–738; AP Simester and W Chan, ‘Inducing a Breach of Contract: One Tort or Two?’ (2004) 63 CLJ 132, 147–148. 63   Simester and Chan, ‘Inducing a Breach of Contract’, above n 62 at 147–148. 59 60



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II.  Accessory Liability Recognised: OBG Ltd v Allan OBG Ltd v Allan is a landmark decision. The House of Lords clarified the nature of liability under Lumley, and swept away much of the confusion which had previously plagued the law. Their Lordships emphasised that accessory liability must be parasitic to a primary breach of contract. Just as Royal Brunei Airlines Sdn Bhd v Tan provided a springboard to examine accessory liability in equity without the excess baggage which the law had previously carried,64 so too does OBG represent a fresh opportunity rigorously to analyse the elements of accessory liability where the primary wrong is a breach of contract. It is important to note that OBG actually concerned three conjoined appeals: OBG Ltd v Allan, Mainstream Properties Ltd v Young and Douglas v Hello! Ltd (No 3).65 In OBG Ltd v Allan, the defendants were receivers purportedly appointed under a floating charge which was admitted to have been invalid. Acting in good faith, they took control of the claimant company’s assets. The claimant argued that the defendants were liable not only for trespass to its land and conversion of its chattels but also for the tort of causing loss by unlawful means. This was rejected because the receivers did not employ any unlawful means and did not intend to cause the claimant any loss. Nor could there be liability under Lumley since there was no breach of any contract: no primary wrong had been induced or procured by the defendant. The second appeal concerned Mainstream Properties Ltd v Young. Two employees of a property company, ‘Mainstream’, breached their contracts of employment by diverting a business opportunity open to Mainstream to a joint venture in which they were involved. They received financial assistance from a third party, Mr De Winter, without which they would not have been able to exploit the opportunity. Mainstream sued Mr De Winter under the Lumley tort. Mr De Winter knew of the employees’ contractual duties, but believed their assurances that the transaction would not amount to a breach of duty. The House of Lords held that Mr De Winter should not be liable as an accessory to the breach of contract because he lacked the necessary mental element. Nor could he be liable under the unlawful means tort since he did not intend to cause any loss and did not use any unlawful means. In Douglas v Hello! Ltd (No 3), the third of the conjoined appeals, the magazine OK! contracted for the exclusive right to publish photographs of a celebrity wedding at which all other photography would be forbidden. A rival magazine, Hello!, published photographs which it knew to have been surreptitiously taken by an unauthorised photographer pretending to be a waiter or guest. The House of Lords held that this was a breach of OK!’s equitable right to confidentiality in   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC); see ch 4.   In the text, ‘OBG’ will be used to refer to the case as a whole; individual cases will be referred to in full. 64 65

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photographic images of the wedding. As a result, OK!’s claim for redress under the ‘unlawful means tort’ added little, although the House of Lords thought it should succeed. What is especially significant about OBG is that there is a serious attempt to consider the various heads of liability and establish a coherent structure. This is particularly prominent in the leading speeches of Lord Hoffmann and Lord Nicholls. Lord Hoffmann lamented the ‘muddle’66 and ‘seeds of confusion’67 that had been sown regarding Lumley liability. Both judges were clear that Lumley was a form of civil accessory liability, and that this was important in distinguishing Lumley from the unlawful means tort.68 This bifurcation of Lumley liability and the unlawful means tort is entirely appropriate.69 It is therefore unfortunate that in OBG Baroness Hale said that ‘[t]he underlying rationale of both the Lumley v Gye . . . and the unlawful means torts is the same: the defendant is deliberately striking at his target through a third party’.70 There is no need for the defendant to strike at the claimant in order to be liable as an accessory to a breach of contract.71 Baroness Hale’s comments highlight that old habits may die hard. It is important that Lumley is carefully considered alongside other parallel instances of accessory liability in order to avoid such confusion.72

III.  The Primary Wrong: Breach of Contract A.  Type of Breach There is no limit to the type of contract that can lie at the basis of a claim against an accessory. In OBG, their Lordships emphasised the importance of protecting contracts generally. The term breached need not be an express term and may be an implied term.73

  OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [22].   ibid [15].   Lord Hoffmann gave four reasons for distinguishing the two heads of liability; 1) primary/accessory liability; 2) the requirement of independently unlawful means; 3) the need for a breach of contract; 4) different mental elements: OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [8]. 69   Indeed, it is consistent with the early decisions in this area such as Allen v Flood [1898] AC 1 (HL). 70   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [306]. 71   See eg ibid [192]; see too section V below. 72   See similarly Lord Nicholls in OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [189]. 73   Bents Brewery v Hogan [1945] 2 All ER 570 (Assizes), 576 (Lynskey J); Stratford & Sons Ltd v Lindley [1965] AC 269 (HL), 332 (Lord Pearce). Of course, the defendant must know of the term breached, and this may, depending on the circumstances, be more difficult to establish where the primary breach is of an implied term: DJ Cooper, Secondary Liability for Civil Wrongs (PhD thesis, University of Cambridge, 1996) 103. 66 67 68



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Even contracts affecting land might provide the basis of a claim under Lumley.74 This possibility has caused some disquiet since it might afford greater protection to contractual licences, for example, than real property principles would normally allow.75 But few problems have occurred in practice, and fears of uncertainty might legitimately be downplayed.76 Accessory liability should be possible wherever a primary wrongdoer has breached his or her contractual obligations. It is sometimes suggested that accessory liability should be limited to instances where the primary breach of contract would attract proprietary or specific relief,77 or that a ‘real economic interest’ should be affected.78 But both approaches would introduce difficult boundaries and unnecessary complexity. Such limitations upon the scope of Lumley liability are inappropriate and lack judicial support. Non-economic interests, such as pleasure, may be very important to claimants, and defendants may be considered to have acted especially badly in deliberately participating in their breach. Given the difficulties in assessing damages to compensate the violation of such rights, it might be argued that the law should be particularly sensitive to the discouragement of their breach.

B.  Void, Voidable and Unenforceable Contracts Although the breach of any type of contract can ground a claim for accessory liability, some care must be taken when the contract is impaired in some way. Matters are most straightforward if the contract is void: since a void contract is of no legal effect, it cannot be breached in a meaningful way, so there will be no primary wrong from which accessory liability may be derived.79 Voidable and unenforceable contracts are more complex. In practice, it will often be the case that a third party does not participate in a breach of a voidable contract, but rather induces the contracting party to rescind that contract. In such situations, accessory liability cannot arise: the contracting party commits no wrong in exercising a legitimate right of rescission.80 But if the contracting party does in fact breach a voidable contract rather than rescind it, then it would be consistent with the general principles of accessory liability to conclude that this might provide the primary wrong upon which accessory liability is parasitic.81 The breach of a voidable contract is a legal wrong.   Esso Petroleum Co Ltd v Kingswood Motors (Addlestone) Ltd [1974] QB 142.  R Smith, ‘The Economic Torts: Their Impact on Real Property’ (1977) 41 Conveyancer and Property Lawyer 318; S Gardner, ‘The Proprietary Effect of Contractual Obligations under Tulk v Moxhay and De Mattos v Gibson’ (1982) 98 LQR 279. 76   B McFarlane, The Structure of Property Law (Oxford, Hart Publishing, 2008) 438. 77   Waddams, ‘Johanna Wagner’, above n 4 at 454. 78   Deakin and Randall, ‘Rethinking’, above n 56 at 537. 79   De Francesco v Barnum (1890) 45 Ch D 430, 443; Joe Lee Ltd v Lord Dalmeny [1927] 1 Ch 300, 307. 80   Greig v Insole [1978] 1 WLR 302 (Ch D), 333; Proform Sports Management Ltd v Proactive Sports Management Ltd [2006] EWHC 2903 (Ch), [2007] 1 All ER 542, [36]–[41]. 81   Keane v Boycott (1795) 2 Hy Bl 511; American Law Institute, Restatement (Second) of the Law of Torts, vol 4 (St Paul, MN, ALI Publishers, 1979) para 766, comment f. 74 75

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However, this conclusion is inconsistent with the decision of HHJ Hodge QC in Proform Sports Management Ltd v Proactive Sports Management Ltd.82 The claimant entered into an agency contract with the footballer Wayne Rooney when Rooney was only 15 years old. The claimant sued the defendant for inducing Rooney to breach his agency contract with the claimant. The defendant relied upon the fact that, since Rooney was a minor, the contract was voidable at his instance. The judge held that liability under the Lumley tort could not be established, even though Rooney had not rescinded the agreement. His Lordship said that:83 if a contract is voidable, then there should be no liability for procuring the breach of it. It does not matter whether the contract has already been avoided, or whether the alleged tortfeasor merely induces the minor to breach the contract. If the contract is one which the minor is entitled to avoid, then it does not seem to me that liability for the tort of . . . inducing the breach of, the contract should arise. I can see no justification for holding a defendant liable for the tort in such circumstances, notwithstanding the fact that the contract remains valid until avoided. The fact that it can be avoided should be, in my judgment, in principle a defence to any claim for the tort of . . . wrongfully procuring a breach of, the contract.

This conclusion in Proform might be defended. After all, by acting in breach of contract, Rooney committed an unequivocal act which is inconsistent with the contract and could perhaps be considered effectively to rescind the contract,84 and in any event the claimant might struggle to establish loss because it would have suffered the same loss had the contract been rescinded.85 On the other hand, there was in fact a breach of contract and it would not have been unorthodox to view this is as sufficient to ground a claim against an accessory. Finally, can the breach of an unenforceable contract provide the basis of a claim against an accessory? In Smith v Morrison,86 it was assumed that this question should be answered in the affirmative. This is logical: an unenforceable contract is a valid contract which creates legal rights and duties. Those legal rights and duties are simply unenforceable against the contract breaker; this might be viewed as a procedural matter and therefore not detract from the existence of a primary wrong to which accessory liability can attach.87 On the other hand, Weir has argued that88   [2006] EWHC 2903 (Ch), [2007] 1 All ER 542.   Proform Sports Management Ltd v Proactive Sports Management Ltd [2006] EWHC 2903 (Ch), [2007] 1 All ER 542, [33]. 84   cf Car and Universal Finance Co Ltd v Caldwell [1965] 1 QB 525 (CA). 85   Deakin and Randall have supported Proform on the basis that Lumley liability should only arise where the claimant has a substantial legal interest at stake: Deakin and Randall, ‘Rethinking’, above n 56 at 538. 86   Smith v Morrison [1974] 1 WLR 659 (Ch D) (Plowman J). 87   American Law Institute, Restatement (Second) of the Law of Torts, above n 81 at para 766, comment f; J Danforth, ‘Tortious Interference with Contract: A Reassertion of Society’s Interest in Commercial Stability and Contractual Integrity’ (1981) 81 Columbia Law Review 1491, 1517–1519. 88  Weir, Economic Torts, above n 38 at 36, fn 44, citing A Schroeder Music Publishing Co Ltd v Macauley [1974] 3 All ER 616 (HL). 82 83



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it is right that the plaintiff’s tort claim lie only if the middleman could be sued for what the defendant got him to do. This should apply equally to contracts which are unenforceable inter partes as being in undue restraint of trade: it is absurd to hold that a songwriter is free to quit his contractual publisher without allowing others to persuade him to do so.

It is unclear which approach will win out, but the scant authority there is appears to favour the possibility of accessory liability for participating in the breach of an unenforceable contract.89

C.  Exclusion Clauses and Force Majeure Clauses It may be that a party to the contract will be able to rely upon a force majeure clause or exclusion clause in the contract in order to avoid having to compensate the claimant.90 Does this mean that there is no primary wrong to which accessory liability can attach? Not necessarily. It depends on the interpretation of the particular clause at issue. If the effect of the clause is that the promisee has not breached any contractual obligation, accessory liability cannot lie. However, if the clause is interpreted such that the promisee is in breach, but is subsequently relieved of any liability to pay damages,91 accessory liability should be possible. In OBG, Lord Nicholls said that ‘[a]n exemption clause can scarcely apply to a contracting party who chooses to default’92 and appeared to think that force majeure clauses and exclusion clauses would not pose serious problems in instances of accessory liability. Yet in some cases the primary wrongdoer will not have acted in a manner which disentitles him or her from relying upon an exclusion clause, and a claim against an accessory might still be available.93

IV.  Conduct Element A. Inducement Inducement is the conduct element most commonly associated with accessory liability in contract law. Indeed, liability is often considered under the label of ‘the 89  eg British Motor Trade Association v Salvadori [1949] Ch 556, which Weir dismisses as ‘simply wrong’: Weir, Economic Torts, above n 38 at 36, fn 44. For the possibility of a defendant’s relying upon a defence in this context, see ch 7. 90   cf Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 (CA). 91  eg Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 (HL), 851 (Lord Diplock). 92   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [190]. 93   This favours the view that exclusion clauses do not define the obligations of the parties but operate as a defence to liability: eg JN Adams and R Brownsword, ‘The Unfair Contract Terms Act: A Decade of Discretion’ (1988) 104 LQR 94; compare B Coote, Exception Clauses (London, Sweet & Maxwell, 1964). The defendant might be able to rely upon the exclusion clause as a defence: see further ch 8.II.D, where the similar role of exemption clauses in the equitable context is also discussed.

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tort of inducing a breach of contract’. Thus, in Lumley v Gye the conduct element was made out by Gye’s inducing Wagner to breach her contract by persuading her to sing for him. In OBG, both Lord Nicholls and Lord Hoffmann used the language of ‘induce’ and ‘procure’ to describe the conduct element of liability. The meaning and scope of ‘inducement’ have, however, long given rise to controversies in the context of the Lumley tort. This section will consider whether prevention should be distinguished from inducement, and whether there is a material difference between ‘direct’ and ‘indirect’ inducement.

i.  Prevention Distinguished In Quinn v Leathem, Lord Macnaghten referred to it being tortious to ‘interfere with contractual relations’,94 and the vagaries inherent in ‘interference’ provided scope to include ‘prevention’ within the conduct element of Lumley liability.95 In Thomson v Deakin, Evershed MR said that there would be liability under Lumley 96 if the intervener, instead of so acting upon the mind of the contracting party himself, by some other act, tortious in itself, prevents the contracting party from performing the bargain. A simple case is where the intervener, for example, physically detains the contracting party so that the contracting party is rendered unable by the detention to perform the contract.

The broadening of Lumley to prevention cases was not infrequent.97 Yet this also posed problems, given the wide ambit of the term ‘prevention’. In Thomson v Deakin itself, Evershed MR thought that acts of prevention should not lead to liability in the following scenario:98 Let it be supposed that A had made a contract to supply certain goods to B and that the intervener, knowing of the contract and intending to deprive B of its benefit, had proceeded to go into the market and buy up all the goods that he could find of that character, so as to render it impossible for A in fact to perform the contract. Again, I think it is impossible to say, according to the principles of our law, that the intervener in such a case was acting tortiously.

The better view is that mere prevention is insufficient for Lumley liability and very different from inducement. Acts of inducement influence the choice of the contract-breaker to breach his or her obligations. Whereas in instances of preven-

  [1901] AC 495 (HL), 510.  eg OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [175] (Lord Nicholls).   DC Thomson & Co Ltd v Deakin [1952] Ch 646 (CA), 678; see too Morris LJ at 702. 97   See too eg Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 (CA); GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 TLR 376 (KBD). 98   DC Thomson & Co Ltd v Deakin [1952] Ch 646 (CA), 680. Many other examples could be given in which one party is prevented from performing a contract due to the acts of another. eg a traffic warden may lawfully clamp a person’s car, even though the warden knows that the owner of the car will be unable to get to work and thereby be in breach of contract: Simester and Chan, ‘Inducing a Breach of Contract’, above n 62 at 163. 94 95 96



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tion, it is the ability of the contract-breaker to perform which is impaired.99 If the primary wrongdoer had no choice regarding his or her acts, then it might be thought that the defendant’s acts are not parasitic upon the acts of the primary wrongdoer, but rather that the contrary is true: the contract-breaker’s acts are parasitic upon those of the ‘accessory’.100 In OBG, the House of Lords correctly separated prevention from inducement.101 As Lord Nicholls observed:102 [I]t is confusing and misleading to treat prevention cases as part and parcel of the same tort as inducement cases. The rationale is not the same, nor are the ingredients. But the rationale and ingredients of liability in prevention cases are the same as those of the tort of interference with a business by unlawful means. Prevention cases should be recognised for what they are: straightforward examples of the latter tort, rather than as exemplifying a wider version of Lumley v Gye labelled ‘interference with contractual relations’.

Lord Nicholls described liability based upon prevention as ‘stand-alone’.103 In Allen v Flood,104 the House of Lords insisted that acting in order to harm another will not make a defendant liable unless he or she used unlawful means, so it seems sensible for acts of prevention only to lead to liability if they are unlawful in themselves. This is clearly very different from Lumley liability.

ii. Direct/Indirect The exclusion of prevention from accessory liability might be thought to introduce some sort of paradox into the law: a defendant will be in a better position if he or she prevents performance rather than induces a breach of contract, despite the act of prevention having a much more ‘direct’ effect upon the infringement of the victim’s rights.105 But the use of ‘direct’ and ‘indirect’ participation is fraught with difficulties. Perhaps the best attempt to explain it can be found in the judgment of Slade J, relying in part on the approach of Evershed MR in Thomson v Deakin,106 in Greig v Insole:107 [T]he phrase ‘direct interference’ covers the case where the intervener, either by himself or his agents, speaks, writes or publishes words or does other acts which communicate 99   Another way of putting this would be that in inducement cases, the pressure exerted upon the primary wrongdoer is internal, since the primary wrongdoer still makes a mindful decision to breach, whereas in prevention cases the pressure is external, since regardless of what the primary wrongdoer wishes to do he or she will be forced to breach his or her contract. See G Dare, ‘Tort – Interference with Contractual Relations – Violation Committed Knowingly and Without Justification’ (1927) 3 CLJ 105, 107–110; Cooper, Secondary Liability, above n 73 at 81. cf Bagshaw, ‘Inducing Breach’, above n 35 at 145–148. 100   cf OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [178] (Lord Nicholls). 101   And this has been followed: see eg Meretz Investments NV v ACP Ltd [2007] EWCA Civ 1303, [2008] Ch 244, [131]–[140] (Arden LJ). 102   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [180]. 103  ibid [178]. 104   [1898] AC 1 (HL). 105   See eg Beldam LJ in Millar v Bassey [1994] EMLR 44 (CA), 49–50. 106   [1952] Ch 646, 678. 107   Greig v Insole [1978] 1 WLR 302 (Ch D), 334.

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pressure or persuasion to the mind or person of one of the contracting parties themselves, while ‘indirect interference’ refers to the case where, without actually doing any of these things, the intervener nevertheless procures or attempts to procure a situation which will result or may result in a breach of the contract.

Where a defendant buys up all the goods in a market in order to force another to breach a contract with a claimant,108 the reason why there is no liability under Lumley has sometimes been explained on the basis that the defendant’s inducement of the breach is only ‘indirect’, rather than ‘direct’. However, there is no obvious reason why the communication to the primary wrongdoer has to be direct. Acting through one’s agents or underlings might be thought to be indirect, but, as Slade J rightly recognised in Greig v Insole, can lead to accessory liability.109 The approach of Slade J really tracks the inducement/ prevention distinction considered above; what Slade J terms ‘indirect interference’ requires unlawful means to have been employed.110 The distinction between direct and indirect interference in contractual relationships has long been difficult to explain.111 It leads to unclear and unnecessary complexities. Whilst the defendant who buys up all the goods in a particular market might have a direct effect upon a breach of contract, a trade union official who persuades a worker to strike in breach of contract might be thought to operate indirectly since the official needs to act through the worker. Such results have been criticised as problematic and lacking a normative rationale.112 In OBG, the direct/indirect distinction was rightly jettisoned. Lord Nicholls said:113 Nor is the basis of the distinction between direct and indirect interference apparent. One would suppose the outcome on liability would be the same whether a person sought to achieve his end by direct or indirect means. It would be remarkable if this were not so.

Similarly, Lord Hoffmann thought it irrelevant whether the acts of inducement were ‘direct’, or communicated through another and therefore indirect. His Lordship lamented the fact that focussing on this distinction114 conceals the real question which has to be asked in relation to Lumley v Gye . . . : did the defendant’s acts of encouragement, threat, persuasion and so forth have a sufficient causal connection with the breach by the contracting party to attract accessory liability?

  DC Thomson & Co Ltd v Deakin [1952] Ch 646 (CA), 680 (Evershed MR).   cf Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762. 110   See section IV.A.i above. 111   eg Bagshaw, ‘Inducing Breach’, above n 35 at 148. 112   Simester and Chan, ‘Inducing a Breach of Contract’, above n 62 at 164. 113   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [186]. 114   ibid [36]. 108 109



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iii.  Scope of Inducement In OBG, the House of Lords shifted attention away from ‘interference’ towards ‘inducement’.115 But does OBG limit the conduct element for accessory liability to inducement? Baughen has written that ‘[i]t is now quite clear that, under Lumley v. Gye, inducement, and inducement alone, is required’,116 whilst Carty has asserted that ‘[a]ll members of the House of Lords agreed that the Lumley tort only applied where there was an intentional inducement to contract breach’.117 However, it is not so clear that acts other than inducement will invariably fail to ground a claim against an accessory. Their Lordships recognised that they had found assistance in the work of Carty,118 who has consistently argued that liability under Lumley should mirror the approach taken by the common law in the tortious context of joint tort­ feasance, which does demand inducement.119 This would sit well with Lord Hoffmann’s citation of CBS Songs Ltd v Amstrad Consumer Electronics plc 120 when seeking to identify the ‘relevant principles’ for the ‘general requirements of accessory liability for the wrongful act of another person’.121 Nevertheless, Lord Hoffmann clearly recognised that ‘encouragement’ may be sufficient for accessory liability, and rightly found that the real issue is whether the acts of the accessory have a sufficient ‘causal connection’ with the primary wrong.122 In discussing the required conduct element for accessory liability, Lord Hoffmann emphasised that ‘encouraging or assisting’ should be distinguished from ‘simply advising’; the former appears to be, in the view of Lord Hoffmann, sufficient for liability, but not the latter.123 In Global Resources Group Ltd v Mackay,124 a Scottish case decided after OBG, Lord Hodge reviewed the cases dealing with accessory liability in contract law and concluded that ‘A must induce B to break his contract with C by persuading, encouraging or assisting him to do so’. It is entirely appropriate to consider encouragement and assistance to be potential conduct elements of accessory liability, but slightly unfortunate to cram them both under the umbrella of inducement. Assistance, at least, is distinct from inducement, even if the boundary between the two is sometimes difficult to draw.125 Instead of artificially expanding 115   Or ‘procurement’; these terms, understandably, appear to have been used synonymously: OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [191] (Lord Hoffmann), [168]–[174] (Lord Nicholls). 116   S Baughen, ‘Accessory Liability at Common Law and in Equity – “The Redundancy of Knowing Assistance” Revisited’ [2007] Lloyd’s Maritime and Commercial Law Quarterly 545, 552. 117   Carty, ‘The Economic Torts’, above n 31 at 651. 118   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [65] (Lord Hoffmann), [195] (Lord Nicholls). 119   Or ‘combination’ or ‘authorisation’: see ch 6.III. 120   CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL); see further ch 6.III.D.i. 121   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [8]. Whether it would have been preferable to look across to equity rather than tort in seeking to formulate general principles in this area will be considered further at section VIII.A below. 122   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [36], quoted at n 114 above. 123   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [39]. 124   Global Resources Group Ltd v Mackay [2008] CSOH 148, [2009] SLT 104, [13]. 125   P Sales, ‘The Tort of Conspiracy and Civil Secondary Liability’ (1990) 49 CLJ 491, 507.

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inducement to include assistance, it would be better to recognise that inducement is not the only conduct element that can lead to accessory liability.

B. Assistance That assistance liability exists in English law might be considered to have received the tacit support of the House of Lords as a result of its approach to Mainstream Properties Ltd v Young.126 Their Lordships decided that Mr De Winter should not be liable as an accessory because he lacked the necessary mental element, yet none of the judges at any stage in the case were uncomfortable with finding that Mr De Winter’s assistance fulfilled the conduct requirement of accessory liability. Having been approached with the proposition by the employees, Mr De Winter did not induce their breach of contract. Lord Hoffmann explained that Mr De Winter’s actions ‘facilitated’ the breach.127 His Lordship accepted that any assistance must be with a view to causing a breach,128 but this is far from saying that the breach must be induced. The judgment in Mainstream may have resulted from how the case was pleaded, but it would have been more straightforward to reject the claim by saying that there was no inducement, rather than embarking upon a difficult analysis of the mental element. It is very possible that all involved simply accepted that the conduct of Mr De Winter was sufficient to lead to accessory liability. This would not be surprising: recognition that acts of assistance might lead to accessory liability for breach of contract is far from novel.129 In British Motor Trade Association v Salvadori,130 the claimant association sought to prevent the inflation of the price of new cars by insisting that all its members promise that they would not re-sell new cars purchased from the claimant within 12 months. In breach of contract, some members immediately sold new cars to the defendants, who were not members of the claimant association. The defendants then re-sold the cars for a large profit. The court had to decide whether the defendants could be liable for purchasing the cars with knowledge that the vendors were breaching their contracts. Roxburgh J was clear that liability was possible, since ‘[a]ny active step taken by a defendant having knowledge of the covenant by which he facilitates a breach of that covenant is enough’.131 Facilitation is obviously broader than inducement. Indeed, Roxburgh J noted that although the tort ‘is often spoken of as inducing or procuring breach of contract’,132 the confines of ‘inducement’ or ‘procurement’ were inappropriate.133   The facts of Mainstream are considered at section II above.   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [1]. 128  ibid [70]. 129   Holdsworth wrote of liability for facilitation of a breach of contract: A History, above n 16 at 384. 130   British Motor Trade Association v Salvadori [1949] Ch 556. 131   ibid 565. 132   ibid 564. 133   Admittedly, Roxburgh J preferred the unfortunate language of ‘interference’, but Roxburgh J was clear that liability was parasitic upon an actual breach of contract: ibid 564–565. 126 127



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The judge thought that it was necessary for the conduct element ‘to predicate active association of some kind with the breach’.134 On the facts of Salvadori, Roxburgh J went on to say that even if his interpretation of the conduct element was too broad, the defendants would still be liable. His Lordship was prepared to find a further element of inducement, since the members of the claimant association who sold the cars in breach of contract would not have done so had the defendants not agreed to pay an appropriate price. As a result, Roxburgh J felt able to state that ‘a defendant who offers such a price induces the seller to take the final step towards breaking his covenant by making his willingness to sell unconditional’.135 This comment has been seized upon by some who contend that Salvadori is therefore simply an instance of inducement liability.136 But, as Cooper has observed, that seems ‘more than a little unreal’.137 In Salvadori, the members of the association who sold the cars in breach of contract were willing sellers. The defendants did not instigate the breach or bring about the primary wrong. The members had already decided to breach their agreements, so to squeeze the acts of the defendants within the narrow confines of inducement is both artificial and unsatisfactory. The defendants were really liable because they assisted, or facilitated, the primary wrong. As Roxburgh J said, ‘a defendant by agreeing to buy, paying for and taking delivery of a motor-car known by him to be on offer in breach of covenant, takes active steps by which he facilitates a breach of covenant’.138 This approach, favoured by Roxburgh J in Salvadori, has been been referred to without disapproval by Jenkins LJ in DC Thomson & Co Ltd v Deakin,139 and in Rickless v United Artists Corporation Bingham LJ similarly expressed the view that the principle enunciated by Roxburgh J was ‘good law’.140 In Twinsectra v Yardley, Lord Millett remarked that ‘it is no defence that the contract-breaker was a willing party to the breach and needed no inducement to do so’.141 It may help to explain why all judges at all levels in Mainstream Properties v Young were prepared to skip straight to the difficult issues surrounding the mental element of accessory liability. Some reluctance overtly to recognise assistance liability might explain why the language of ‘inducement’ has been stretched to cover acts of assistance.142 But mangling the language of inducement merely serves to obscure the true nature of the conduct element of accessory liability.143 Assistance liability should be openly accepted.   ibid 565.   ibid 566. 136   eg H Carty, ‘Joint Tortfeasance and Assistance Liability’ (1999) 19 Legal Studies 489, 510. 137  Cooper, Secondary Liability, above n 73 at 92. 138   [1949] Ch 556, 565. 139   [1952] Ch 646 (CA), 694. 140   Rickless v United Artists Corporation [1988] QB 40 (CA), 59. 141   Twinsectra v Yardley [2002] UKHL 12, [2002] 2 AC 164, [131] (Roxburgh J). 142  eg. British Motor Trade Association v Salvadori [2002] UKHL 12, [2002] 2 AC 164, [131] (Roxburgh J). Weir has observed that ‘inducement’ may perhaps fall short of ‘persuasion’: T Weir, A Casebook on Tort, 10th edn (London, Sweet & Maxwell, 2004) 592. 143   cf Global Resources Group Ltd v Mackay [2008] CSOH 148, [2009] SLT 104, [13] (Lord Hodge). 134 135

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OBG may provide the impetus for further developments in this direction. This has been seen in both Scottish144 and English decisions. For instance, in Lictor Anstalt v Mir Steel UK Ltd,145 David Richards J explicitly rejected the notion that inducement was limited to persuasion or enticement. In that case, Lictor Anstalt made a contract with Alphasteel Ltd to provide a ‘hot strip mill’ used for the production of steel products. The contract provided that Alphasteel would not sell or purport to sell the equipment. Alphasteel later went into administration, and its administrators negotiated a sale of Alphasteel’s assets, including the hot strip mill, to Libala Ltd. The sale was effected by means of a hive-down of the assets to a company formed by the administrators called Mir Steel UK Ltd, followed by the sale of Mir Steel to Libala. Lictor Anstalt sued Mir Steel for intentionally inducing a breach of Alphasteel’s contract with Lictor Anstalt. The case raises important issues relating to the defence of justification,146 but the judge first considered whether the actions of Mir Steel were sufficient to ground a claim for accessory liability. Mir Steel argued that it could not be liable since it had not enticed or persuaded Alphasteel or its administrators to breach their contract: Alphasteel was keen to sell the equipment in the course of its administration. Given that Alphasteel’s willingness to commit the primary wrong of breach of contract existed prior to Mir Steel’s very existence, Mir Steel thought it could not be said to have ‘induced’ the breach of contract. But David Richards J was prepared to impose accessory liability nonetheless. His Lordship cited with approval passages from Salvadori, for example,147 and held that the fact that the primary wrongdoer had already decided to commit a breach of contract did not mean that there could not be accessory liability. David Richards J explicitly stated that OBG did not contradict such an analysis. However, the acts of assistance or facilitation cannot be merely passive.148 The judge held that ‘causative participation’ was required.149 Since Mir Steel agreed to pay a substantial price for the equipment and undertook obligations under the contract, David Richards J held that these acts were ‘at least arguably sufficient to constitute acts required for liability in tort for inducing a breach of contract’.150 Mere receipt of property transferred in breach of contract is too passive to engender accessory liability.151 In Batts Combe Quarry Ltd v Ford,152 a father sold   Global Resources Group Ltd v Mackay [2008] CSOH 148, [2009] SLT 104 (Lord Hodge).   Lictor Anstalt v Mir Steel UK Ltd [2011] EWCH 3310 (Ch), [2012] 1 All ER (Comm) 592. This issue was not considered on appeal: [2012] EWCA Civ 1397, [2013] 2 All ER (Comm) 54. 146   See further ch 7.II.B. 147   [2011] EWCH 3310 (Ch), [2012] 1 All ER (Comm) 592, [49]–[50]. 148  In British Motor Trade Association v Salvadori, Roxburgh J insisted that an ‘active step’ was needed: [1949] Ch 556, 565. Weir noted that accessory liability requires ‘more than ready acquiescence in X’s breach of contract with the claimant’: Weir, A Casebook, above n 142 at 592. cf Premier Model Management Ltd v Bruce [2012] EWHC 3509 (QB), [57] (Simon Crookenden QC); Lonmar Global Risks Ltd v West [2010] EWHC 2878, [2011] IRLR 138, [220] (Hickinbottom J). 149   See similarly OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [191] (Lord Nicholls). 150   [2011] EWCH 3310 (Ch), [2012] 1 All ER (Comm) 592, [52]; the case actually concerned an application for summary judgment. 151   This mirrors the distinction drawn in equity between accessory liability and knowing receipt: see ch 4.I.B. 152   Batts Combe Quarry Ltd v Ford [1942] 2 All ER 639 (CA). 144 145



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his quarry business with a covenant not to be engaged or concerned in the business of a quarry within a certain area for a stipulated period of time. In breach of contract, the father transferred a large sum of money to his sons to purchase and operate a quarry within the prohibited area. The Court of Appeal upheld the trial judge’s decision that the sons could not be liable as accessories to the father’s breach of contract. Lord Greene MR was adamant that ‘[m]ere acceptance of a proffered bounty given in breach of covenant cannot, it seems to me, be said to be in any sense a procuring of a breach of contract’.153 The sons provided nothing in return, and seemingly had little contact with their father regarding the transfer of money. Given their lack of positive action, accessory liability could not lie. Instances of assistance liability are easier to find when the primary wrong involves the breach of a restrictive covenant. This is because it is more natural to participate in positive action than in an omission to perform a positive covenant. However, assisting the breach of a positive covenant is not inconceivable;154 for example, trade unions have been found liable for giving strike pay to a claimant’s employees who were striking in breach of their contracts of employment.155 Admittedly, the cases have tended to cram the actions of such unions within the language of ‘inducement’, but it may be more linguistically honest to refer to their actions as constituting ‘assistance’.

C. Encouragement In OBG, Lord Hoffmann recognised that acts of encouragement can lead to accessory liability.156 This is unsurprising: encouragement may often be tantamount to inducement.157 When Gye encouraged Wagner to sing at his opera house, Gye was encouraging Wagner to do something she might not otherwise have done.158 In this sense, Gye brought about, or induced, the primary wrong of breach of contract. In the context of defendants’ seeking to ‘poach’ a worker from another company, it has been explicitly recognised that where a ‘recruit’s contract with his employer requires him to report an approach, encouraging the employee not to do so in knowledge of the term, will be inducing a breach of contract’.159   ibid 640.  Cooper, Secondary Liability, above n 73 at 93–94. 155  eg Denaby and Cadeby Main Colleries Ltd v Yorkshire Miners’ Association [1906] AC 384 (HL); Smithies v National Association of Operative Plasterers [1909] 1 KB 310 (CA). Such liability has arisen where the employee has gone on strike prior to the trade unions learning about the strike or supporting the employee with strike pay, so the acts of the trade unions appear to assist and support the employees, rather than induce their actions. 156   ‘[T]he real question which has to be asked in relation to Lumley [is]: did the defendant’s acts of encouragement . . . have a sufficient causal connection with the breach by the contracting party to attract accessory liability?’: OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [36]. 157   This might explain why encouragement is often accepted under the umbrella of inducement: see eg Global Resources Group Ltd v Mackay [2008] CSOH 148, [2009] SLT 104, [13]. 158   Lumley v Gye (1853) 2 E & B 216. 159   Tullett Prebon plc v BGC Brokers LP [2010] EWHC 484 (QB), [2010] IRLR 648, [142] (Jack J), cited with approval in the Court of Appeal: [2011] EWCA Civ 131, [2011] IRLR 420, [60] (Hooper LJ). 153 154

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However, it is evident that not all acts of encouragement can be equiparated with inducement. What if a defendant simply said ‘Good idea – you should absolutely go on and do that!’ to another who had told the defendant that he or she was definitely going to breach an agreement with the claimant:160 could the claimant sue the defendant as an accessory to the breach of contract? In principle, if the encouragement did have a sufficient ‘causative effect’ then liability might lie, but this will be very difficult to establish; merely offering words of encouragement is unlikely to have much causative impact upon a person committed to breaching his or her contract.161 But where the primary wrongdoer was unsure whether or not to commit the breach of contract, the encouragement of the defendant might have a decisive impact upon the commission of the primary wrong. In practice, however, this will invariably be difficult to prove.

D. Advice The general approach of English law seems to be that mere advice will not lead to liability under Lumley. In Thomson v Deakin, Evershed MR held that ‘a mere statement of, or drawing of the attention of the party addressed to, the state of facts as they were’162 could describe ‘advice’ and would not lead to liability. Similarly, in Lewis v Yeeles, the Court of Appeal recognised ‘the allowable area of arranging for advice to be given about the contract’163 which would not lead to accessory liability. Protecting those who give disinterested, impartial advice about a state of affairs is sensible: it helps to protect freedom of speech,164 and ensures that the primary wrongdoer is better informed before committing any breach of contract.165 Advice about a situation might not be thought to cause the primary wrongdoer to breach a contract: the state of affairs which already existed provides the reasons for the primary wrongdoer’s actions. However, it would clearly be inappropriate for advisers always to be able to hide behind the safety of ‘advice’ where they have crossed the boundary between advising about a situation and advising a party to pursue a particular course of action. Thus, in Lewis v Yeeles, it was held that a solicitor should be liable as an accessory for a breach of contract committed by a client he was advising since the solicitor ‘entered the prohibited pastures of persuasion and procurement’166 by persuading the client to commit a breach of con160   In some instances, such as British Motor Trade Association v Salvadori, the defendant might be thought to have encouraged a breach of contract by offering a financial incentive to the primary wrongdoer, but the defendant’s actions may also fall within ‘facilitation’ or ‘assistance’ and so do not depend exclusively upon ‘encouragement’. 161   Indeed, it may be that the defendant’s words could be considered to constitute ‘advice’ rather than ‘encouragement’: see section IV.D below. 162   DC Thomson & Co Ltd v Deakin [1952] Ch 646 (CA), 686. 163   [2010] EWCA Civ 326, [24]. 164  eg Middlebrook Mushrooms Ltd v TGWU [1993] ICR 612 (CA), 620 (Neill LJ). 165   Bagshaw, ‘Inducing Breach’, above n 35 at 144. 166   Lewis v Yeeles [2010] EWCA Civ 326, [24].



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tract. This result is consistent with the observation of Simonds J in Camden Nominees Ltd v Forcey that ‘[a]dvice which is intended to have persuasive effects is not distinguishable from inducement’.167 The boundary between permissible and impermissible advice is difficult to establish. As Coleridge J famously pointed out in his dissent in Lumley v Gye, ‘[t]o draw a line between advice, persuasion, enticement and procurement is practically impossible in a court of justice’.168 Nevertheless, courts seem to have been able to differentiate between impartial, disinterested, neutral advice, and advice which encourages or induces another to commit a breach of contract.169 Admittedly, though, this has often been achieved by reference to the mental element of the defendant. For example, in Square Grip Reinforcement Co Ltd v MacDonald (No 2), Lord Milligan suggested that where a defendant was ‘desperately anxious that something should happen then it is not unlikely that he will try to bring pressure on the other person, whereas if it appears that he is not really interested in whether any action is taken or not a remark which might in the former case have been construed as an inducement would fall to be treated as of relatively minor importance’.170 There is also a distinction between advice about an existent threat and a threat to do something. Where the defendant has merely communicated a threat of conduct by an independent third party, then that communication generally constitutes mere advice and should not lead to accessory liability.171 On the other hand, a threat to ban cricket players from test and county cricket was found to satisfy the conduct element of Lumley liability in Greig v Insole.172 The distinction between advice and inducement is sometimes blurred. For instance, in Stratford & Son Ltd v Lindley,173 Lord Pearce found that a defendant who informs another that the claimant has been boycotted by the defendant, leading the informed party to breach his or her contract with the claimant, can be liable as an accessory. This decision is difficult; the better view is that the defendant merely informed the primary wrongdoer of a state of affairs, and that as a result no accessory liability should lie.174 A defendant must venture beyond simple advice in order to be liable as an accessory.

  Camden Nominees Ltd v Forcey [1940] Ch 352, 366.   (1853) 2 E & B 216, 252. See too Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 (CA), 147 (Winn LJ). 169   However, Bagshaw has suggested that it might be difficult satisfactorily to define the scope of advice, and that it might be best to include advice within the conduct element of accessory liability, but allow independent advisers to prove a defence of justification (considered in ch 7): Bagshaw, ‘Inducing Breach’, above n 35 at 144. 170   Square Grip Reinforcement Co Ltd v MacDonald (No 2) [1968] SLT 65, 73. 171  eg DC Thomson & Co Ltd v Deakin [1952] Ch 646 (CA), 685–686 (Evershed MR). 172   [1978] 1 WLR 302 (Ch D). See too eg OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [21] (Lord Hoffmann). 173   Stratford & Son Ltd v Lindley [1965] AC 269 (HL). 174   cf DC Thomson & Co Ltd v Deakin [1952] Ch 646 (CA), 685–686 (Evershed MR). See too A Hughes, ‘Liability for Loss Caused by Industrial Action’ (1970) 86 LQR 181, 184–185. 167 168

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E.  Preliminary Conclusions The traditional approach to Lumley has been to limit the conduct element to inducement. But this is misleading, and subsequent cases have not interpreted inducement at all restrictively. Extra-judicially, Dame Mary Arden has pertinently observed that ‘[l]ooking at the various authorities, it does not seem to me that the courts have always given clear guidance on what constitutes inducement’.175 Such lack of clear guidance may have allowed judges the freedom to extend Lumley liability beyond the confines of inducement. However, it would be clearer and more transparent to recognise explicitly that other acts ‘beyond’ that of inducement can lead to accessory liability for breach of contract. Despite the existence of cases supporting liability for assisting, encouraging or inducing a breach of contract, a reluctance to recognise a broader conduct element for accessory liability is apparent. Carty, in particular, has placed great importance upon the role that a narrow conduct element of inducement can have in confining the ambit of accessory liability.176 But any act of the defendant which has a more than minimal causal impact upon the breach of contract should be a sufficient conduct element for accessory liability, since the defendant will bear some responsibility for the claimant’s loss. Whether or not the defendant will actually be liable depends upon both the availability of any defences,177 and, more importantly, the defendant’s mental element.

V.  Mental Element A. Malice References to malice can be found in the judgments in Lumley v Gye. For example, Erle J thought that ‘[h]e who maliciously procures a damage to another by violation of his right ought to be made to indemnify’178 and Wightman J also spoke of the defendant’s acting ‘maliciously’.179 But what does ‘maliciously’ mean? Crompton J discussed ‘a person who [acts] wrongfully and maliciously, or, which is the same thing, with notice’.180 This seems to equate ‘malice’ with ‘acting with notice’: liability depended upon Gye’s being aware of the contract between Wagner and Lumley. It did not need to be proved that Gye set out to act spitefully,   Arden, ‘Economic Torts’, above n 29 at 21.  Carty, An Analysis of the Economic Torts, above n 43 at ch 3. 177   See ch 7. 178   Lumley v Gye (1853) 2 E & B 216, 233. 179   ibid 238. In dissent, Coleridge J thought that whether the inducement was ‘done maliciously or not’ no liability should lie: Lumley v Gye (1853) 2 E & B 216, 268. 180   Lumley v Gye (1853) 2 E & B 216, 224. 175 176



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or in order to harm Lumley. As Beldam LJ rightly pointed out in Millar v Bassey, ‘[i]t was not alleged . . . in Lumley v Gye that the defendant Gye had any intention to cause harm to the plaintiff beyond an intention that Miss Wagner should break her contract with him’.181 It became increasingly clear that ‘malice’ did not require a desire to injure but simply awareness that a contract would be breached;182 soon after Lumley, the very term ‘malice’ appeared inapposite and was largely jettisoned. In Allen v Flood, Lord Herschell said that ‘I do not think the learned judges regarded the allegation as involving the necessity of proving an evil motive on the part of the defendant, but merely as implying that the defendant had wilfully and knowingly procured a breach of contract’.183 And in Quinn v Leathem,184 Lord Macnaghten was clear that malicious intention was not the gist of the action in Lumley. Malice is an inappropriate mental element for accessory liability. After all, a defendant might be liable under Lumley despite believing that the claimant would be benefited by the defendant’s actions.185 In South Wales Miners’ Federation v Glamorgan Coal Co Ltd,186 the defendant union called a strike in order to restrict the production of coal. The defendant’s intention was to raise the price of coal to the mutual benefit of miners and their employers. Nevertheless, the House of Lords held that the claimant employers were still able to sue the defendant for inducing a breach of the miners’ contracts of employment. The fact that the defendant did not wish to harm the claimant did not absolve it from liability.

B. Intention Lumley is habitually grouped within the ‘intentional economic torts’,187 and intention is often considered to be the proper mental element for accessory liability. In OBG, when considering the tort of causing loss by unlawful means and Lumley liability, Lord Hoffmann said that ‘the concept of intention is in both cases the same’.188 However, caution should be exercised before equating intention in these two very different contexts. In the unlawful means tort, the necessary nexus between the claimant and defendant is provided by the defendant’s intention to harm the claimant. But under Lumley, the link between the defendant and the claimant is provided by the former’s participation in the breach of the latter’s contract committed by the primary wrongdoer; the defendant’s intention only concerns the breach of contract. As Lord Hoffmann recognised,189   [1994] EMLR 44 (CA), 51.   See eg Temperton v Russell [1893] 1 QB 715 (CA). 183   [1898] AC 1 (HL), 121. 184   [1901] AC 495 (HL), 510. 185   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [8] (Lord Hoffmann). 186   South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 (HL). 187   eg J O’Sullivan, ‘Intentional Economic Torts in the House of Lords’ (2007) 66 CLJ 503. 188   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [62]. 189   ibid [8]. 181 182

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An intention to cause a breach of contract is both necessary and sufficient. Necessary, because this is essential for liability as accessory to the breach. Sufficient, because the fact that the defendant did not intend to cause damage, or even thought that the breach of contract would make the claimant better off, is irrelevant.

Lumley does not require the defendant to intend to harm the claimant.190 This is an important difference from the unlawful means tort. Whilst it is possible to maintain this distinction whilst using the label of ‘intention’ in both contexts, such an approach carries the concomitant danger of producing unnecessary confusion. For example, in OBG, Baroness Hale said that ‘[t]he underlying rationale of both the Lumley v Gye . . . and the unlawful means torts is the same: the defendant is deliberately striking at his target through a third party’.191 Yet in Lumley itself, Gye could have been liable as an accessory despite not seeking to strike at Lumley at all.192 Baroness Hale’s view was not shared by other members of the House of Lords;193 the economic torts do not all rest upon the same basis. The conduct of the defendant must be ‘intentional’ in so far as inadvertent conduct will be insufficient to ground accessory liability. Beyond this, ‘intention’ is unhelpful as a mental element. In order to encompass Lumley, the ‘oblique’ form of intention would be necessary; this is inherently problematic.194 Lord Hoffmann has suggested that liability will flow where the defendant intended the breach of contract as a means to an end,195 but it would be preferable to jettison intention as the mental element of liability, and instead focus upon knowledge. ‘Intentional interference presupposes knowledge of the contract.’196

C. Knowledge i.  Content of Knowledge The defendant must know more than the mere fact that the primary wrongdoer and the claimant were in a contractual relationship: the defendant must also know that the acts of the primary wrongdoer will constitute a breach of contract. Thus Gye did not have the necessary mental element for accessory liability, even though 190   See too eg East England Schools CIC v Palmer [2013] EWHC 4138 (QB), [2014] IRLR 191, [114] (Richard Salter QC). 191   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [306]. Similarly, in Douglas v Hello! Ltd, Arden LJ held that ‘the gist of all the economic torts is the intentional infliction of economic harm’: [2005] EWCA Civ 595, [2006] QB 125, [221]. This has been criticised: McBride, ‘Fatal Attraction’, above n 51. 192   Compare Carty, who has described it as ‘unsettling’ that the House of Lords in OBG rejected targeting or aiming as inherent in the definition of intention, since it departs from the ‘orthodox view’: Carty, An Analysis of the Economic Torts, above n 43 at 42–43. 193   eg Lord Nicholls stated that a ‘desire to injure the claimant is not an essential ingredient of this tort’: OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [192]. For an argument that an intention to harm should be required, see Deakin and Randall, ‘Rethinking’, above n 56. 194   See ch 2.III.A. McBride has rightly noted that it would be ‘depressing’ if the criminal law problems were replicated in the civil law: McBride, ‘Fatal Attraction’, above n 51 at 553. 195   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [43]. 196   ibid [192] (Lord Nicholls).



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he knew that Wagner and Lumley were bound by a contract, because he thought that Wagner was free still to sing at Gye’s opera house and would not need to breach her contract with Lumley.197 Gye did not have sufficient knowledge of the terms of the contract. In Stratford & Sons v Lindley, Lord Pearce held that ‘[t]he relevant question is whether [the defendants] had sufficient knowledge of the terms to know that they were inducing a breach of contract’.198 This requirement is sensible: defendants will often realise that the primary wrongdoer will be party to numerous contracts, but this alone should not restrict the defendant’s freedom of action. A defendant must only refrain from participating in a wrongful act when he knows of the facts which constitute breach of contract.199

ii.  Standard of Knowledge In OBG, both Lord Nicholls200 and Lord Hoffmann201 asserted that knowledge of the contract and its breach must actually be held by the accessory.202 If the accessory does not have such knowledge – even if this is due to being ‘muddle-headed and illogical’203 – no accessory liability can arise. In Mainstream Properties Ltd v Young, one of the appeals heard in the OBG case, their Lordships insisted that, because the defendant genuinely believed there to be no breach of contract, it inevitably followed that there could be no accessory liability.204 This is consistent with the earlier decision of the House of Lords in British Industrial Plastics Ltd v Ferguson.205 A former employee of the claimant offered to the defendant information about one of the claimant’s secret processes which the former employee had invented. The defendant did know that the former employee had a contractual obligation not to disclose such information, but held the ‘eccentric’206 but honest view that if the process was patentable, then it would be the exclusive property of the former employee. The defendant therefore concluded that the former employee would not be in breach of contract by disclosing such information.   Lumley v Gye (1853) 2 E & B 216.   [1965] AC 269 (HL), 332. This can include implied terms (see above n 73), and in some circumstances terms might be known simply from the nature of a particular contractual relationship; for example, knowledge of an agency contract will readily provide knowledge that the agent will be contractually obliged to act in the principal’s best interests: Jasperson v Dominion Tobacco Co [1923] AC 709 (PC). 199   See further section V.C.ii below. 200   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [202]. 201  ibid [39]. 202  In Aerostar Maintenance International Ltd v Wilson [2010] EWHC 2032 (Ch), [163] Morgan J said that ‘the relevant Defendant must have known of the existence of the relevant term in the contract or turned a blind eye to the existence of such a term and . . . must have actually realised that the conduct . . . would result in a breach of the term’. See too eg TCP Europe Ltd v Perry [2012] EWHC 1940 (QB), [2012] NLJR 1079, [32] (HHJ Richard Seymour QC). 203   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [202]. 204   The first instance judge’s conclusion on this point was not entirely satisfactory to Sedley LJ in the Court of Appeal ([2005] EWCA Civ 861, [90]–[91]), but was accepted by the Court of Appeal and House of Lords. 205   British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479 (HL). 206   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [39] (Lord Hoffmann). 197 198

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Clearly, the defendant made a very odd mistake, but the court held that he could not be liable for knowingly inducing a breach of contract, even though the mistake was foolish and unreasonable. Lord Romer tellingly approved the conclusion of Mackinnon LJ in the Court of Appeal that the ‘honesty of [the defendant] was vindicated at the expense of his intelligence’.207 The requirement for actual knowledge of the breach of contract has been consistently maintained at the highest level. Contrary references to the courts’ deeming a party to have knowledge of the relevant contracts must therefore be treated with great caution.208 The only exception to actual awareness of the breach of contract appears to be where a defendant has deliberately shut his or her eyes to the primary wrongdoer’s obligations under a contract. In Emerald Construction Co Ltd v Lowthian, Lord Denning MR found that:209 Even if [the defendants] did not know the actual terms of the contract, but had the means of knowledge – which they deliberately disregarded – that would be enough. Like the man who turns a blind eye. . . . For it is unlawful for a third person to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not.

Although Lord Denning MR used the term ‘recklessly’, it is only in a very narrow sense that recklessness will suffice: the accessory must have consciously disregarded something he actually knew.210 This passage from Emerald Construction was cited with approval by Lord Hoffmann in OBG.211 It further suggests that the more appropriate focus for the mental element of accessory liability is knowledge rather than intention. ‘Blind eye knowledge’ satisfies the required mental element under Emerald Construction, yet has nothing to do with intention.212

D. Negligence The suggestion that liability should be imposed for negligent behaviour is sometimes raised. For example, Carpenter has written that213 While negligent interference with contract interests may impose a heavy penalty, it may nevertheless be said in extenuation that before liability can be established, some faultless person must have suffered the damages and there must exist all the restrictions on liability that exist in cases of negligent invasions of more tangible interests. 207   [1940] 1 All ER 479 (HL), 483. cf Pritchard v Briggs [1980] Ch 338, 410–415 (Goff LJ); Greig v Insole [1978] 1 WLR 302 (Ch D), 338 (Slade J); Metropolitan Borough of Solihull v National Union of Teachers [1985] IRLR 211 (Ch D), 213 (Warner J). 208   cf Merkur Island Shipping Corpn v Laughton [1983] 2 AC 570 (HL), 608–609 (Lord Diplock). 209   Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 (CA), 700–701. 210   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [69] (Lord Hoffmann). Carty has called this ‘subjective reckless indifference’: Carty, ‘The Economic Torts’, above n 31 at 652. 211   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [40]. 212   Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd (The Star Sea) [2001] UKHL 1, [2003] 1 AC 469, [112] (Lord Scott). 213   CE Carpenter, ‘Interference with Contract Relations’ (1928) 41 Harvard Law Review 728, 742.



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Such an approach appears to rely upon the source of liability being an interference with a type of property. A ‘softening’ of the mental element might be understandable on this basis; indeed, it is sometimes suggested that it should be possible to convert contractual rights, and conversion is a tort of strict liability.214 However, it is not enough that the defendant merely ought to have known that a breach of contract was involved. If it were, leading authorities such as Lumley v Gye and Mainstream Properties v Young may well have been decided differently. A mental element of negligence would be unduly burdensome on defendants as it would impose a duty not unreasonably to participate in the breach of a contract when there is no real limit to the possible activities to which the duty relates, and no obvious means for defendants to discover the content of the particular contractual promise.215

E.  Preliminary Conclusions The mental element bears much of the weight in restricting the ambit of accessory liability in the contractual context. However, this mental element has sometimes been confused by the relationship of Lumley with other ‘economic torts’. This has produced the tortured development of ‘intention’ in the context of accessory liability; intention has expanded and been attenuated to such an extent that its use may now be misleading, particularly given the different meaning of intention in the other economic torts. The focus is more properly placed upon knowledge;216 this helps to demarcate Lumley from the economic torts and highlight the accessorial nature of liability. Indeed, it may be something of a misnomer to describe liability under Lumley as a tort of ‘intentionally inducing a breach of contract’. The decided cases might be better encapsulated by a label of ‘knowingly inducing or assisting a breach of contract’. 

214   See Lord Nicholls ([220]–[240]) and Lady Hale ([204]–[318]), dissenting on this point, in OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1; see too Your Response Ltd v Datateam Business Media Ltd [2014] EWCA Civ 281, [27] (Moore-Bick LJ); S Green and J Randall, The Tort of Conversion (Oxford, Hart Publishing, 2009) 128–139. 215  S Douglas and B McFarlane, ‘Defining Property Rights’ in JE Penner and HE Smith (eds), Philosophical Foundations of Property Law (Oxford, Oxford University Press, 2013) 239. 216   eg in Quinn v Leathem [1901] AC 495 (HL), 510, Lord Macnaghten said that Lumley ‘was right, not on the ground of malicious intention – that was not, I think, the gist of the action – but on the ground that a violation of legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference’. This requirement of knowledge had also been emphasised by some commentators even prior to OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1: see eg Bagshaw, ‘Inducing Breach’, above n 35 at 142: ‘Thus it seems that the required mental state for the tort of procuring breach of contract is a sufficient degree of knowledge of the likelihood that conduct may bring about a breach of contract, and a choice to persist with that conduct despite the knowledge’; Simester and Chan, ‘Inducing a Breach of Contract’, above n 62 at 154–160; Sales and Stilitz, ‘Intentional Infliction’, above n 48 at 433–434.

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VI.  Explaining Accessory Liability The rationales of Lumley may have been partly obscured as a result of a degree of assimilation with the other ‘economic torts’ which rest upon different foundations. The demarcation of Lumley as an instance of accessory liability in OBG now clears the path for the reasons for liability to be more sensibly explored. However, although much of the reasoning of Lord Hoffmann and Lord Nicholls in particular is convincing as regards the nature of Lumley liability, Simpson has criticised a perceived tendency of the House of Lords to realign some of the economic torts by reference to their historical development.217 Simpson has highlighted that some of the precedents relied upon are old and inadequately reported, and is undoubtedly right to emphasise that ‘[t]he state of the law needs to be justified by reference to the contemporary environment in which it is to operate’.218 This section aims to fulfil that need, and explain how accessory liability can be justified by reference to fundamental principles.

A. Responsibility In Allen v Flood, Lord Watson said that a person who procures a wrong may be ‘legally responsible for its consequences . . . if he knowingly and for his own ends induces that other person to commit an actionable wrong’.219 Similarly, in OBG Lord Nicholls expressed the need for ‘causative participation’,220 and Lord Hoffmann demanded a ‘sufficient causal connection . . . to attract accessory liability’.221 This has since been applied by the English courts.222 It is apparent that not only inducement but also assistance can be crucial for the primary breach of contract to occur.223 In Mainstream, it is unlikely that the primary wrongdoers would have breached their employment contracts without the assistance of Mr De Winter, which provided the finance necessary to pursue their plans.224 Similarly, the assistance of the defendants in Salvadori 225 was of the utmost importance: without the defendants’ willingness to purchase the cars, the primary wrongdoers would not have been able to sell those cars and so would 217   B Simpson, ‘Economic Tort Liability in Labour Disputes: The Potential Impact of the House of Lords’ Decision in OBG v Allan’ (2007) 36 Industrial Law Journal 468, 474. 218   ibid 474. 219   [1898] AC 1 (HL), 96. However, whether or not the defendant needs to act ‘for his own ends’ is doubtful: South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 (HL). 220   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [191]. 221   ibid [36]. 222  eg Lictor Anstalt v Mir Steel UK Ltd [2011] EWCH 3310 (Ch), [2012] 1 All ER (Comm) 592: see section IV.B above. 223   cf Weir, Economic Torts, above n 38 at 35: ‘[t]he serpent was worse than Eve’. 224   See section II above. 225   British Motor Trade Association v Salvadori [1949] Ch 556.



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not have breached their contracts with the claimants. Given the significance of such acts to the losses suffered by claimants, the defendant might reasonably be said to bear some responsibility for those losses.

B. Culpability As Lord Nicholls said in OBG, ‘[c]ausative participation is not enough’.226 The defendant must also know that he or she is participating in a breach of contract. This requirement of culpability may lie latent in the choice of the judges in Lumley v Gye to employ the evocative language of ‘malice’.227 The need for the defendant to be at fault is significant in order to ensure that liability is only imposed upon the blameworthy, and that the defendant’s freedom of action is not unduly curtailed. The desire to ensure that the defendant be culpable before liability is imposed may have been influenced by the stringent mental element required for the other economic torts, particularly the tort of intentionally causing loss by unlawful means. Carpenter has written that ‘[t]he tort of inducing breach of contract rests upon, and is but a specific application of, the broad general principle that to damage another intentionally without justification or privilege is a tort’.228 This raises the important point that the mental element will only lead to presumptive culpability: the defendant may be justified in his actions, in which case the suggestion of culpability will be negated.

C.  Protecting Rights The availability of a claim against an accessory provides the claimant with somebody else to sue and hence increases the chances of obtaining redress. On this micro-level, accessory liability increases the protection afforded to the claimant’s contractual rights, and might even be considered to strengthen a bond of trust that exists between the contracting parties.229 Accessory liability also protects claimants’ rights on a macro-level. Accessory liability enhances the security of contractual rights more generally; this allows people to rely upon their contractual relationships with greater peace of mind, which in turn facilitates the ability to plan ahead with the aid of secure contracts.230   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [192].   The early development of Lumley may be attributable, in part, to a desire to set the law of tort on a broad moral basis: M Lobban, ‘Intentional and Economic Torts’ in WR Cornish (ed), Oxford History of the Laws of England, vol XII: 1820–1914 Private Law (Oxford, Oxford University Press, 2010) 1046. See too T Honoré, ‘The Morality of Tort Law’ in D Owen (ed), Philosophical Foundations of Tort Law (Oxford, Oxford University Press, 1995). 228   Carpenter, ‘Interference with Contract Relations’, above n 213 at 735. 229  Stevens, Torts and Rights, above n 58 at 280. 230   cf R Epstein, ‘A Common Law for Labor Relations: A Critique of New Deal Labor Legislation’ (1983) 92 Yale Law Journal 1357, 1369. 226 227

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Raz has written that ‘“[h]arm” includes institutional harm. Preventing the erosion or debasement of the practice of undertaking voluntary obligations is therefore a fit object for the law to pursue’.231 Strengthening the stability of contracts encourages their formation and allows third parties to rely upon agreements which have been made.232 It also furthers the public function of making people secure in their rights against everyone else, which would be absent if strangers to the contract could procure violations of those contractual rights at will.233

D. Property Anson insisted that contracts can create rights in rem as well as rights in personam,234 and Lord Hoffmann in OBG stated that Lumley treats ‘contractual rights as a species of property which deserve special protection’.235 It is unclear precisely what is meant by the language of ‘property’ in this context. As Carpenter has observed, it is important to determine ‘how far or against what sort of invasions the [right] shall be protected, because the protection given to property rights varies with the nature of the right’.236 Lee has argued that the term ‘property’ in this context should be confined to the status of the promise.237 This is very restrictive. It is uncertain how helpful such a weak meaning of ‘property’ can be.238 It has even been suggested that accessory liability in contract law might be justified on the basis that it protects a ‘quasi-proprietary right’. Benson has mounted a sophisticated defence of this idea,239 but the difference between ‘proprietary’ and ‘quasiproprietary’ rights is unclear, and ultimately it seems that this label is only given in order to justify the existence of accessory liability. There is therefore an element 231   J Raz, ‘Promises in Morality and Law’ (1982) 95 Harvard Law Review 916, 937. See too Simester and Chan, ‘Inducing a Breach of Contract’, above n 62 at 144; Sayre, ‘Inducing Breach’, above n 40 at 700; E Weinrib, ‘Private Law and Public Right’ (2011) 61 University of Toronto Law Journal 191, 204– 206. 232   Danforth, ‘Tortious Interference with Contract’, above n 87 at 1513. 233   See Weinrib, ‘Private Law and Public Right’, above n 231 at 204, relying largely upon Kant’s notion of a ‘public right’ which refers to the condition in which public institutions guarantee rights. 234   W Anson, Principles of the English Law of Contract, 2nd edn (Oxford, Clarendon Press, 1882) 208. 235   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [32]. See too eg Bagshaw, ‘Inducing Breach’, above n 35; H Lauterpact, ‘Contracts to Break a Contract’ (1936) 52 LQR 494, 522–523. 236   Carpenter, ‘Interference with Contract Relations’, above n 213 at 733. 237   PW Lee, ‘Inducing Breach of Contract, Conversion and Contract as Property’ (2009) 29 OJLS 511, 525. Compare the suggestion that there is a property interest in the promisor’s promised performance: R Epstein, ‘Inducement of Breach of Contract as a Problem of Ostensible Ownership’ (1987) 16 Journal of Legal Studies 1; BL Fine, ‘An Analysis of the Formation of Property Rights Underlying Tortious Interference with Contracts and Other Economic Relations’ (1983) 50 University of Chicago Law Review 1116. 238   cf Cooper, Secondary Liability, above n 73 at 75; Simester and Chan, ‘Inducing a Breach of Contract’, above n 62 at 148–153; ch 2.I.F. 239   eg P Benson, ‘The Basis for Excluding Liability for Economic Loss in Tort Law’ in DG Owen (ed), Philosophical Foundations of Tort Law (Oxford, Clarendon Press, 1995); see too J Neyers, ‘The Economic Torts as Corrective Justice’ (2009) 17 Torts Law Journal 162, 174–177; Attorney-General for New South Wales v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237, 294 (Kitto J).



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of circularity, which is unnecessarily complicated given the ease with which the language of property could be jettisoned.240 The fact that a contract ‘not only binds together the parties by an obligation, but it imposes upon all the world a duty to respect the contractual tie’241 need not be analysed as proprietary, but simply as an incident of contracts being worthy of protection. Indeed, it might be surprising if accessory liability in the contractual sphere were to be based upon the protection of property, when this rationale does not underpin accessory liability in equity, even though equitable rights are commonly considered to have a stronger ‘property flavour’.242

E. Deterrence When explaining Lumley liability, Carty has suggested that ‘the role of tort law in this area . . . is to act as a deterrent’,243 and Cane has observed that ‘as a generalization it is probably true to say that the deterrent theory of tort liability is most likely to be relevant to torts involving liability for calculated conduct, and to businesses as defendants’.244 This accords with the most common examples of accessory liability in the contractual sphere. However, deterrence clearly does not operate in the abstract. It is closely related to the desire to protect and strengthen contractual rights.

F. Loss-shifting Accessory liability is consistent with the ‘constant attempts by plaintiffs to widen liability in the search for the deepest pockets’.245 Whilst it may often be desirable in practice for the loss to be borne by a culpable defendant who bears responsibility for the infringement of the claimant’s contractual rights, rather than the entirely innocent claimant, a principle of ‘loss-shifting’ in itself does not seem very helpful as a justification for liability. It gives little guidance as to the scope of accessory liability. As Coleridge J, dissenting, observed in Lumley,246

240   See eg Zhu v The Treasurer of the State of New South Wales [2004] HCA 56, (2004) 218 CLR 530, [125] (Gleeson CJ, Gummow, Kirby, Callinan, Heydon JJ): ‘The thesis may also have an element of circuity. It seeks to answer the question: “Why is a plaintiff ’s right to performance of a contract protected against third party interference?” It gives the answer: “Because it is quasi-proprietary.” But that raises the question: “Why is it quasi-proprietary?” The answer is: “Because it is protected against third party interference”.’ 241  Anson, Principles, above n 234 at 208. 242  Weir, Economic Torts, above n 38 at 31, fn 31. See ch 4.III.B. 243  Carty, An Analysis of the Economic Torts, above n 43 at 312–313. The contrary argument that breach of contract should not be deterred rests upon the idea of efficient breach: see section VII.B below. 244   P Cane, Tort Law and Economic Interests, 2nd edn (Oxford, Oxford University Press, 1996) 470. 245   Carty, ‘Joint Tortfeasance’, above n 136 at 489. 246   Lumley v Gye (1853) 2 E & B 216, 253. See too Howarth, ‘Against Lumley’, above n 8 at 206.

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if, instead of limiting our recourse to the agent, actual or constructive, we will go back to the person who immediately persuades or procures him one step, why are we [to] stop there? The first mover, and the malicious mover too, may be removed several steps backward from the party actually induced to breach the contract: why are we not to trace him out?

G.  Positive Rationales for Accessory Liability: Preliminary Conclusions Accessory liability in contract is justified by reference to both the harm suffered by the victim and the wrong committed by the accessory. There is a desire to protect contractual rights and ensure that culpable parties bear some responsibility for the consequences of their conduct, but the victim of a breach of contract cannot just ‘shop around’ in order to sue any third party who has somehow participated in the breach. The accessory must also be culpable. A theoretical justification of accessory liability is therefore possible; the suggestion that it has simply developed as a thoughtless aberration need not be accepted. A crucial element of this reasoning depends upon breaches of contract being considered to be wrongs which the law should be keen to prevent and to provide effective remedies against. Some commentators do not share such a view of contract law, and this stance needs to be considered next.

VII.  Against Accessory Liability: Defending Breach of Contract Holmes famously argued that there is no duty to perform a contract, but simply an obligation to pay damages for failure to adhere to the contract.247 In a similar vein, Markovitz and Schwartz have contended that promises made in commercial contracts, at least, should be interpreted ‘disjunctively’, such that the only promise made is either to perform, or to pay damages.248 On this basis, a failure of performance would not be a breach of contract provided that damages are paid. This approach runs counter to the idea that the performance of contracts should be protected, and hence undermines accessory liability in this area. Such reasoning is not reflected in English law.249 A breach of contract is an unlawful act,250 and should therefore be able to ground claims against accessories.   OW Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457.   D Markovits and A Schwartz, ‘The Myth of Efficient Breach: New Defenses of the Expectation Interest’ (2011) 97 Virginia Law Review 1939. 249   See eg F Pollock, Principles of Contract at Law and in Equity, 3rd edn (London, Stevens & Son, 1881) xix. 250   See eg Rookes v Barnard [1964] AC 1129 (HL); Attorney General v Blake [2001] 1 AC 268 (HL). See generally C Fried, Contract as Promise (Cambridge MA, Harvard University Press, 1981). 247 248



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Ultimately, it will be concluded that the arguments against accessory liability raised in this section are unconvincing, although it is always necessary to bear in mind the significance of defendants’ freedom of action; given that third parties are not privy to the contract itself, it is important that accessory liability not be too intrusive nor imposed too readily.

A.  Privity of Contract Privity of contract demands that a contract bind only those who are party to the agreement.251 In his dissent in Lumley v Gye, Coleridge J emphasised that ‘in respect of breach of contract the general rule of our law is to confine its remedies by action to the contracting parties’.252 A contract comes about because the offeror creates a power in the offeree to change the duties of the parties with regard to each other. This can be justified by the consent of the parties, but why should that affect third parties to the contract? Howarth has written that ‘[w]hen I make a contract with someone to do something, I do not expect that, by making the contract, the whole world comes under an obligation to ensure that it is performed’.253 Although it would be inappropriate for third parties to come under positive duties to ensure that a contract is performed, accessory liability only imposes a negative duty not culpably to participate in the primary breach of contract. This negative duty is obviously not as burdensome or intrusive as a positive duty. So, if a person is under a contractual duty to sing at another’s opera house, only that person can be under a positive duty to sing at the opera house. No third parties to the contract are under any obligation to ensure that the promisor does indeed sing at the opera house. Third parties should simply not culpably participate in the promisor’s breach of contract. This distinction between positive and negative duties might have been used in the controversial decision of Millar v Bassey.254 The famous singer, Shirley Bassey, breached her contract to perform for a recording company. This meant that the recording company in turn breached its contracts with the claimants, who had been employed by the company to provide electronic and musical backup to the planned recording. The claimants then sued Bassey for inducing the recording company to breach its contract with the claimants. The majority of the Court of Appeal refused to strike out the claim, holding that it was arguable that Bassey could be liable as an accessory.

251  As Stephen Smith has put it, promissory obligations are ‘undertaken to particular persons, extending to and only to those persons’: SA Smith, ‘Contracts for the Benefit of Third Parties: In Defence of the Third-Party Rule’ (1997) 17 OJLS 643, 645. 252   Lumley v Gye (1853) 2 E & B 216, 246. See too Millar v Bassey [1994] EMLR 44 (CA), 63–64 (Peter Gibson LJ). 253   Howarth, ‘Against Lumley’, above n 8 at 209. See too DB Dobbs, ‘Tortious Interference with Contractual Relations’ (1980) 34 Arkansas Law Review 335. 254   [1994] EMLR 44 (CA).

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In OBG, the House of Lords was clear that Millar v Bassey should no longer be followed.255 The result had been the subject of particularly vivid criticism by Weir, who wrote: ‘Must I perform my contract with you just because a third party may, to my knowledge, suffer if I don’t? . . . Dear me! Privity come back! – almost all is forgiven’.256 It might be that the mistake in Millar v Bassey was to think it possible that accessory liability could impose positive duties upon a third party to a contract: the contract between the claimants and the record company could not make Bassey sing. Moreover, Bassey’s conduct seemed simply to place the recording company in breach of contract, preventing the recording from taking place; it has already been seen that prevention should be distinguished from procurement.257 Cooper has provocatively argued that the suggestion that accessory liability is inconsistent with the notion of privity of contract merely serves to perpetuate a ‘privity fallacy’.258 However, it is perhaps too hasty simply to dismiss the idea of privity. Consent can justify the obligations created by a contract only as regards the contracting parties themselves. Consent does not explain why third parties to a contract become subject to any duty at all, even if that duty is of very restrictive scope.259 The rationale of consent is ‘privy’ to the contracting parties; other rationales must operate to explain the liability of accessories. This is consistent with the observation that the rights and duties of contracting parties and strangers to the contract are very different.

B.  Efficient Breach It is sometimes suggested that breach of contract should be tolerated, and sometimes welcomed, as a socially desirable event.260 This argument is most forcefully expressed in the context of an economic analysis of the law. For example, some believe that breaches of contract may be desirable if the claimant can be adequately compensated by damages, and the contract-breaker can make more money – even after paying damages to the claimant – by contracting with a third party. Such breaches of contract are seen to be ‘efficient’.261

255   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [43] (Lord Hoffmann), [166] (Lord Nicholls), [264] (Lord Walker). 256  Weir, Economic Torts, above n 38 at 19. 257   Thus it might be concluded that Bassey did not participate in the breach: see Stevens, Torts and Rights, above n 58 at 180. For a different reason why Millar is unsatisfactory, focussing on the mental element required for liability, see OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [43] (Lord Hoffmann), [166] (Lord Nicholls). 258  Cooper, Secondary Liability, above n 73 at 16. 259   This is especially pertinent as regards trade unions, who generally prefer to avoid recourse to contract law: see generally S Deakin and G Morris, Labour Law, 6th edn (Oxford, Hart Publishing, 2012) ch 10. 260   See eg D Campbell and D Harris, ‘In Defence of Breach: A Critique of Restitution and the Performance Interest’ (2002) 22 Legal Studies 208. 261   eg R Posner, Economic Analysis of Law, 8th edn (New York, Aspen Publishers, 2011) ch 4.10. However, it is not clear how a breach of an obligation to pay money, for example, can ever be efficient.



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Accessory liability might distort this ‘efficiency equation’ by introducing the complexities and costs associated with ‘extra’ third parties.262 Accessory liability might discourage ‘efficient’ outcomes by deterring breach and making breaches of contract less likely, which is inconsistent with the view that breaches of contract are, or can be, a ‘good thing’. Waddams has argued that accessory liability might be harmful in situations where the cost of the performance of the contract greatly exceeds the benefit of it, such as where the contract is for the restoration of a mining site, but the cost of restoration greatly exceeds the enhancement in the value of the land.263 If the primary breach of contract would be socially desirable,264 it might seem odd for the claimant to be able to sue an accessory. It is in such situations that arguments of efficiency have greatest force.265 But they should still be treated with a large degree of scepticism; it is far from clear that ‘efficiency’ is a major goal of the common law of contract. Economic analyses of the law are notoriously ambiguous, and can seemingly be used both to support and reject the same proposition. As Macneil has pointed out, there is a lack of empirical data which would allow persuasive conclusions to be drawn,266 and obtaining such information is incredibly difficult. Absent such primary findings, arguments are inevitably based partly upon conjecture. Sedley LJ has observed, in the context of a claim brought against an accessory, that ‘economic theories are not neutral: they are not infrequently ideologically charged, and they are heavily divergent’.267 Even if an economic analysis of contract law were to be favoured, it can sensibly be argued that accessory liability is actually efficient, since making a person liable as an accessory ‘gives him an incentive to go to the promisee and bargain with him rather than seducing or browbeating the promisor’.268 Admittedly, such negotiations add to the costs involved, risking inefficiency,269 but these costs may well be less than the costs which arise after a breach of contract. After all, ‘ “talking after a breach” may be one of the most expensive forms of conversation to be found, involving, as it so often does, engaging high-priced lawyers’.270 Such considerations led McChesney to conclude that the tort of inducing a breach of contract was a ‘first-best’ solution, since:271 262   eg HS Perlman, ‘Interference with Contract and other Economic Expectancies: A Clash of Tort and Contract Doctrine’ (1982) 49 University of Chicago Law Review 61. See too Howarth, ‘Against Lumley ’, above n 8. 263   Waddams, ‘Johanna Wagner’, above n 4 at 454. 264   RL Birmingham, ‘Breach of Contract, Damage Measures and Economic Efficiency’ (1970) 24 Rutgers Law Review 273, 292. 265   Although in the example given by Waddams, it may be that the claimant suffers very little loss anyway, and his or her claim will therefore be worth little. 266   IR Macneil, ‘Efficient Breach of Contract: Circles in the Sky’ (1982) 68 Virginia Law Review 947. 267   Mainstream Properties Ltd v Young [2005] EWCA Civ 861, [2005] IRLR 964, [92]. 268  Weir, Economic Torts, above n 38 at 5. See too L BeVier, ‘Reconsidering Inducement (1990) 76 Virginia Law Review 877. 269   Howarth, ‘Against Lumley ’, above n 8 at 210–211. 270   Macneil, ‘Efficient Breach’, above n 266 at 968–969. 271  FS McChesney, ‘Tortious Interference with Contract Versus “Efficient” Breach: Theory and Empirical Evidence’ (1999) 28 Journal of Legal Studies 131, 151. See too D Friedmann, ‘The Efficient Breach Fallacy’ (1989) 18 Journal of Legal Studies 1.

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Under either rule [of accessory liability or no accessory liability], there will be negotiation before the breach, either between Inducer and Promisee (tortious interference) or between Inducer and Promisor (‘efficient’ breach); there is no reason to think that the costs of the former bilateral negotiation exceed those of the latter – or vice versa. But in a regime of tortious interference, the Inducer–Promisee negotiation before the fact is the only transaction cost. With a rule of ‘efficient’ breach, there is still the subsequent problem of Inducer or Promisor compensating Promisee, resolution of which will require a second round of transaction costs (either litigation or negotiation). A rule of ‘breach now, pay later’ by its very terms entails two stages of transaction costs, (a) negotiation before the fact with Promisor over the breach and (b) litigation or negotiation with Promisee over compensation after the fact. A rule of ‘negotiate now’ commanded by tortious interference entails only transaction costs before breach.

The ‘inducer’ will often be in a better position than the promisor to know whether or not a result would be ‘efficient’, so it might be preferable to seek to encourage that ‘inducer’ to negotiate directly with the promisee at the outset.272 This might be promoted through the imposition of accessory liability.

C.  Commercial Morality Related to the idea of efficient breach is the contention that accessory liability should not be accepted because it may deter some breaches which chime with an idea of commercial morality. For example, Howarth gives the example of a third party offering the promisor a better deal, in a similar scenario to Lumley v Gye:273 What if, for example, the better offer was in existence at the time of the original contract and was known to the claimant but not to the contract-breaker, and also known not to be available to the claimant but only to the contract-breaker. . . . In those circumstances it is arguably unjust for the claimant to insist on performance.

Others appear to have adopted a similar approach.274 But it is not clear that insisting upon performance is really ‘unjust’ or ‘immoral’. Contract law is rightly reluctant to allow a person to escape a bad bargain. Insisting that a person keep his or her promises may sometimes be a hard approach, but it is not obviously immoral. Even if only the claimant knew of the better offer, and not the defendant, this analysis should not change.275 The more consistently ‘moral’ approach may be to hold people to the promises they make.276 It is not clear that parties willingly take the risk that strangers will deliberately participate in the infringement of their contractual relationships 272   Bagshaw has written: ‘If non-performance of the contract between Lumley and Wagner really would be efficient . . . then Gye should be capable of persuading Lumley, if Lumley is economically rational to trade his contractual rights’: ‘Inducing Breach’, above n 35 at 136. 273   Howarth, ‘Against Lumley ’, above n 8 at 221. 274   eg Waddams, ‘Johanna Wagner’, above n 4 at 454. 275   Unless the agreement were to be vitiated by misrepresentation or undue influence, for example. 276  Fried, Contract as Promise, above n 250. See too W Woodward, ‘Contractarians, Community, and the Tort of Interference with Contract’ (1996) 80 Minnesota Law Review 1103.



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without redress.277 In Stocznia Gdanska SA v Latvian Shipping Co (No 3), Rix LJ said that Lumley liability is ‘designed to place limits on the self-interested rough and tumble of the business world. Its philosophical basis appears to be that contracts should be kept rather than broken’.278

D.  Trade Unions Accessory liability in the contractual sphere has been criticised because of the impact it has had upon trade unions, who may incur liability for knowingly participating in a strike. Howarth has identified this to be the primary reason why Lumley liability ‘touches a nerve’,279 since employers seeking to sue unions constitute the ‘most enthusiastic audience’ for the Lumley tort.280 One of the difficulties inherent in assessing this area is that the debate is so politically charged. In a strong critique of the current law, Macnair has claimed that the law has been entirely skewed by an institutional bias towards ‘finding a stick to beat unions and strikers’,281 and that accessory liability only evolved in order to protect wealthy employers against unions.282 However, accessory liability does not need to be jettisoned throughout the law of contract just because of a desire to protect unions. There are good reasons for some form of accessory liability in the contractual sphere. The issue raised here really concerns whether or not unions should be subject to the same general law. It could be argued that trade unions should be treated differently because of the importance of collective bargaining and right to strike, or because trade unions tend to operate outside the sphere of contract law: unions’ collective bargaining agreements with employers are presumed not to be legally enforceable.283 The present law acknowledges the importance and unique position of trade unions by affording them suitable defences.284 These can provide adequate protection in the context of Lumley liability.285 Indeed, Howarth has recognised that a flexible defence of justification would allow courts to evaluate strikes on their   Bagshaw, ‘Inducing Breach’, above n 35 at 132.   Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889, [2002] 2 All ER (Comm) 768, [130]. 279   Howarth, ‘Against Lumley ’, above n 8 at 196. 280   ibid 200. 281   Macnair, ‘Free Association’, above n 9 at 76. 282   In the context of unions, it is impossible for the law to be politically neutral: it remains unlawful at common law for unions to organise strikes. cf Metrobus Ltd v UNITE [2009] EWCA Civ 829, [2010] ICR 173. 283   Trade Union and Labour Relations (Consolidation) Act 1992, s 179; Ford Motor Co Ltd v AEU [1969] 2 QB 303. As a result, unions might not have the same general interest in the stability and integrity of the institution of contract as may sometimes be portrayed. See generally Howarth, ‘Against Lumley’, above n 8 at 196–202; H Glasbeek, ‘Lumley v. Gye. The Aftermath: An Inducement to Judicial Reform?’ (1975) 1 Monash University Law Review 187. 284   eg Trade Union and Labour Relations (Consolidation) Act 1992, s 219. See further ch 7.II.E. 285   The debate surrounding the scope of the defences afforded by statute is more controversial as regards the other economic torts: see eg Simpson, ‘Economic Tort Liability’, above n 217 at 476–479. This perhaps offers further support for distinguishing Lumley from the ‘general economic torts’. 277 278

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merits, and might offer better protection to trade unions, even if this forces unions to rely upon the discretion of judges.286 This approach seems preferable to one which presumes that the knowing participation of a union in a breach of contract is not unlawful, which would depart from the general principles of accessory liability which operate throughout the common law. In any event, the protection afforded to trade unions is a policy decision which the courts are not best-placed to make. If trade unions warrant special treatment, this is most appropriately a matter for Parliament to consider. As Baroness Hale said in OBG: 287 In the modern age, Parliament has shown itself more than ready to legislate to draw the line between fair and unfair trade competition or between fair and unfair trade union activity. This can involve major economic and social questions which are often politically sensitive and require more complicated answers than the courts can devise. Such things are better left to Parliament.

VIII.  What Shape should Accessory Liability Take? Contractual rights are highly valued. They deserve adequate protection through a broad conduct element of accessory liability that encompasses all acts which have a more than minimal causal impact upon the infringement of contractual rights. A defendant should only be liable for losses for which he or she can reasonably be said to bear responsibility; acts of inducement, encouragement or assistance should all be capable of leading to accessory liability. Recognising that both assistance and inducement can ground accessory liability circumvents the practical difficulties that plague attempts to differentiate the two elements and avoids arbitrary results. This might be highlighted by tweaking the facts of Lumley v Gye. If Miss Wagner approached Mr Gye and offered to sing for him in breach of her contract with Mr Lumley, it could not be said that Mr Gye procured Miss Wagner to breach her contract. Miss Wagner had already decided to breach. But if Mr Gye accepted Miss Wagner’s offer, then he would assist the breach by increasing the likelihood of her committing that breach. It is suggested that Mr Gye should still compensate Mr Lumley if he acted culpably. It is unsatisfactory for liability to turn upon who approached whom with the original proposition when the culpability of the accessory, the rights infringed and loss suffered remain constant. This approach clearly places great weight upon the mental element of accessory liability.288 It is important that parties – particularly commercial parties – do not   Howarth, ‘Against Lumley’, above n 8 at 220.   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [306]. Similarly, in the Court of Appeal in Mainstream, Sedley LJ recognised that this area of debate is ‘ideologically charged’ and said that he ‘would not think it the common law’s business to favour one of these over the other. The common law’s business is the maintenance of fair dealing within whatever framework legislation has created’: Mainstream Properties Ltd v Young [2005] EWCA Civ 861, [92]–[93]. 288   Something which seems acceptable to this writer, but troubled Sayre: ‘Inducing Breach’, above n 40. See too Deakin and Randall, ‘Rethinking’, above n 56 at 538–540. 286 287



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feel inhibited by vague fears that they might potentially be participating in a breach of contract of which they are unaware. More specific knowledge is required. A defendant should subjectively know that he or she is participating in a particular breach of contract, or at least deliberately turn a blind eye to facts actually known. This is sufficient to ensure that the important rationale of culpability is satisfied; even if the defendant does not ‘target’ the claimant, accessory liability can be appropriate. The defendant’s conduct must be advertent, but accessory liability should not concentrate upon whether or not the defendant ‘intended’ to participate in a breach of contract: a defendant’s primary intention will often be simply to improve his or her position, and the difficulties surrounding the concept of intention can be satisfactorily sidestepped by focussing upon the defendant’s knowledge. Although preferring a mental element of knowledge over intention may seem to flirt with a broader scope for accessory liability, the demand for actual, subjective knowledge presents a very high barrier to establishing liability. This might be criticised as presenting an ‘undesirable evidential difficulty in the path of claimants with an otherwise strong claim’,289 but such a hurdle is not obviously inappropriate: it should not be easy for claimants to sue third parties to a contract. Nor will it necessarily unduly restrict claims: judges are not likely readily to accept that a defendant did not know obvious facts, and may therefore find the requisite element of ‘blind-eye knowledge’ where actual knowledge cannot be conclusively established.290 Moreover, knowledge only ensures presumptive culpability; defendants who know that they are participating in a primary breach of contract may be able to rely upon a defence and justify their actions. This defence is well recognised in the contractual context.291 It therefore seems appropriate for a defendant to be liable as an accessory if he or she ‘knowingly assists or induces’ a breach of contract. Although the orthodox language currently used is of ‘intentional inducement’, much of the case law is consistent with ‘knowing assistance’, and it would not be a great stretch for this to be overtly acknowledged. Acts of assistance already appear to be tacitly included within the scope of Lumley liability, and any fear of accessory liability unduly interfering with the freedom of defendants’ business dealings should be curtailed by the narrow mental element and broad defence of justification.292 Such an approach is preferable to placing artificial limitations upon the conduct element. In fact, those who oppose Lumley liability in its entirety might be considered to propose a more coherent argument than those who seek to include inducement but not assistance. The latter represents an awkward compromise. If inducement grounds liability, so should assistance. The two should come together or not at all.   Deakin and Randall, ‘Rethinking’, above n 56 at 539.   Since mental states generally rely upon inference, it seems more justifiable to infer knowledge rather than to infer intention: Bagshaw, ‘Inducing Breach’, above n 35 at 143. 291  eg Brimelow v Casson [1924] 1 Ch 302; Edwin Hill & Partners v First National Finance Corp plc [1989] 1 WLR 225 (CA). 292   See ch 7.II. 289 290

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‘Knowing assistance’ in the contractual context closely mirrors the approach adopted in the equitable sphere. This is unsurprising, given the coherence of principles underpinning accessory liability across the common law. This area seems ripe for ‘fusion’.293 It is useful here to provide an initial consideration of some of the factors favouring a common approach to accessory liability in relation to voluntarily assumed obligations across the common law/equity divide.

A. Fusion In OBG, Lord Hoffmann referred to the ‘general requirements of accessory liability’,294 but did so with regard to joint tortfeasance rather than equitable liability. The relationship with joint tortfeasance has been strongly put forward by Carty, who has long contended that the Lumley tort ‘follows the same pattern as the established doctrine of joint tortfeasance. To procure another’s tort will render the procurer jointly liable in tort’.295 Significantly, Carty employs this approach to exclude assistance liability. It has already been suggested that this is inappropriate, and the utility and understanding of joint tortfeasance will be further examined in chapter six. It is suggested that Lord Hoffmann may have been better served by looking across to the equitable case law for guidance;296 linking together accessory liability in equity and contract is both sensible and appropriate. The primary wrong in both areas concerns a voluntary relationship between two parties,297 and the accessory does not need to intend to harm the claimant. Across the common law/ equity divide, the defendant becomes involved in the breach of personal obligations which the primary wrongdoer has undertaken with regard to the claimant.298 It is therefore unsurprising that the possibility of ‘fusion’299 in this context has been raised by judges at the highest level, most notably by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan,300 Lord Millett in Twinsectra v Yardley,301 and again   A Burrows, ‘We do this at Common Law but that in Equity’ (2002) 22 OJLS 1.   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [8]. 295  Carty, An Analysis of the Economic Torts, above n 43 at 60; see too Carty, ‘Joint Tortfeasance’, above n 136; and Carty, ‘The Economic Torts’, above n 31. In Lumley, Erle J commented that a person ‘who procures the wrong is a joint wrongdoer, and may be sued, either alone or jointly with the agent, in the appropriate action for the wrong complained of ’: Lumley v Gye (1853) 2 E & B 216, 232. 296   As he previously intimated: L Hoffmann, ‘The Redundancy of Knowing Assistance’ in P Birks (ed), The Frontiers of Liability, vol 1 (Oxford, Oxford University Press, 1994); see too W Swadling, ‘Knowing Assistance and Receipt – Lessons from The Law of Tort’ in P Birks (ed), The Frontiers of Liability, vol 1 (Oxford, Oxford University Press, 1994). 297  For the proposition that a fiduciary relationship is voluntary see eg J Edelman, ‘When do Fiduciary Duties Arise?’ (2010) 126 LQR 302; Galambos v Perez [2009] SCC 48, [2009] 3 SCR 247. 298   Stevens has argued that accessory liability in contract and equity is conceptually distinct from joint tortfeasance because the action of the ‘primary’ wrongdoer cannot be attributed to the ‘accessory’, whereas this is not a problem in tort: Stevens, Torts and Rights, above n 58 at ch 12. cf Carty, ‘Joint Tortfeasance’, above n 136; see further ch 2.IV. 299   See generally Burrows, ‘We do this at Common Law’, above n 293. 300   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 387. 301   Twinsectra v Yardley [2002] UKHL 12, [2002] 2 AC 164, [127]–[132]. 293 294



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by Lord Nicholls in OBG v Allan.302 In Revenue and Customs Commissioners v Total Network SL, Lord Walker observed that Mainstream Properties Ltd v Young ‘might have been run as a claim for dishonest assistance in breach of fiduciary duty’ rather than as a claim for inducing a breach of contract.303 Often a fiduciary relationship only arises because of a contractual relationship; Lord Millett observed in Twinsectra that ‘[i]t would be most undesirable if we were to introduce a distinction between the equitable claim and the [Lumley] tort’.304 This suggests that a closer synergy between the two areas is worth exploring,305 particularly after OBG’s uncoupling of accessory liability under Lumley from non-accessory liability under the general economic torts, which appears to mirror the process which has occurred in the equitable sphere after Royal Brunei Airlines Sdn Bhd v Tan.306 However, it is often suggested that the interests protected – contractual and fiduciary relationships – are so fundamentally different that accessory liability in the two areas should be kept entirely separate.307 Three main reasons might be given for this. First, only equitable liability is based upon property. This contention can be readily dismissed: there is no need, even in equity, for the primary wrong to relate to property.308 Any difference between the two areas cannot be justified simply through making vague references to a ‘property flavour’309 which does not truly underpin liability in either. Secondly, breach of contract may sometimes be economically ‘efficient’, whereas this is irrelevant in the fiduciary context. Again, this is unpersuasive; the malleable arguments surrounding efficiency do not provide a satisfactory basis for differentiating between accessory liability in contract and equity. The third and best argument for distinguishing between contract and equity in this context is that presented by Loughlan. She has argued that principals in a fiduciary relationship are more vulnerable than promisees in a contractual relationship, and that such vulnerability calls for the protection of equity to a greater extent than that provided by the common law.310 However, it is not clear that such   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [189].   [2008] UKHL 19, [2008] 1 AC 1174, [97]. See too Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 (HCA), 97 (Mason J), cited in Bieber v Teathers Limited [2012] EWCA Civ 1466, [15]. 304   Twinsectra v Yardley [2002] UKHL 12, [2002] 2 AC 164, [132]. 305   cf Lee, ‘Inducing Breach’, above n 237 at 522: ‘even though analogies have been drawn between inducing breach of contract and knowing assistance with a breach of trust, any suggestion to homogenize their constituent elements has not been seriously pursued’. 306   [1995] 2 AC 378 (PC). 307   eg Carty, ‘Joint Tortfeasance’, above n 136 at 505–513; Baughen, ‘Accessory Liability’, above n 116 at 563. 308   See eg M Conaglen, ‘The Nature and Function of Fiduciary Loyalty’ (2005) 121 LQR 452, 478– 479; see ch 4.III.B. 309  Weir, Economic Torts, above n 38 at 31, fn 31. 310   P Loughlan, ‘Liability for Assistance in a Breach of Fiduciary Duty’ (1989) 9 OJLS 260. It is possible that such principals do not protect themselves to the same extent as contracting parties: see eg Norberg v Wynrib (1992) 92 DLR (4th) 449 (SCC), 487; Pilmer v Duke Group Ltd [2001] HCA 31, (2001) 207 CLR 165, [71]. However, for the argument that a contractual promisee can also be considered to be a vulnerable party, see eg Danforth, ‘Tortious Interference with Contract’, above n 87 at 1519. 302 303

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a distinction is warranted. The accessory’s liability depends upon his or her ‘involvement’ with the primary wrongdoer – who is presumed to be autonomous and not vulnerable – rather than any direct impact upon the victim of the primary wrong.311 There is no reason why the necessary ‘involvement’ would be more likely to be ‘successful’ regarding a fiduciary relationship than a contract, since in both cases the accessory would need to persuade an autonomous party to breach his or her duty – whether that be contractual or fiduciary. The potential victim is therefore no more vulnerable to the actions of an accessory if he is a principal in a fiduciary relationship than if he were a promisee in a contractual relationship. Any increased vulnerability a principal in a fiduciary relationship might experience is adequately protected by the more stringent remedies provided against the primary wrongdoer.312 It might even be argued that the existence of such remedies means that a fiduciary would be less likely than a contracting party to commit a primary wrong to which accessory liability might attach. This is because there is already a greater deterrence factor in a principal–fiduciary relationship than in a promisor–promisee relationship; a primary wrongdoer might be more wary of committing a breach if in a fiduciary relationship, and therefore be less susceptible to ‘corruption’ by the accessory. If the primary wrong is less likely to occur, the likelihood of accessory liability is accordingly reduced. The (perceived) greater need to protect fiduciary relationships does not require that an accessory to a breach of fiduciary duty be treated any differently to an accessory to a breach of contract; protection of principals in fiduciary relationships is achieved through the duties placed upon the fiduciary and the remedies to which the fiduciary is subjected. The above assumes that the parties are aware of the applicable legal regime, and therefore of its deterrent effect, but if the parties are unaware of the effect of the law then it seems difficult to argue that a person is more likely to breach an obligation that is characterised by the law as fiduciary rather than contractual.313

311   ‘[I]t is not clear that it should matter whether the defendant knows the type of obligation he is interfering with . . . The rules of equity focus on the interference with the trustee’s duty (‘assistance in a breach of trust’), and not on interference with the beneficiary’s rights’: M Tugendhat, ‘Assisting a Breach of Duty by a Fiduciary, the Common Law and Money-Laundering’ in FD Rose (ed), Restitution and Banking Law (Oxford, Mansfield Press, 1998) 145. 312   eg an account of profits is more readily awarded for breach of fiduciary duty than a breach of contract: compare Boardman v Phipps [1967] 2 AC 46 (HL) and Attorney-General v Blake [2001] 1 AC 268 (HL). 313  Indeed, fiduciary duties may simply be a type of contractual term in any event: see eg F Easterbrook and DR Fischel, ‘Contract and Fiduciary Duty’ (1993) 36 Journal of Law and Economics 425, 427, 431; H Butler and L Ribstein, ‘Opting Out of Fiduciary Duties: A Response to the AntiContractarians’ (1990) 65 Washington Law Review 1, 19, 30–32.

6 Tort Whereas it is clear that a defendant who induces a breach of contract or trust does not commit a breach of contract or trust him or herself, matters are perhaps not so straightforward in tort law. For example, it might be possible to say that there are (at least) two different ways of committing the tort of battery: either punching somebody on the nose, or inducing another to punch somebody on the nose. But even on this approach, the inducer’s liability can be characterised as accessorial. What the inducer does is clearly very different from the conduct of the primary wrongdoer. Consistent with general principles of accessory liability, the inducer’s liability depends upon his or her culpable participation in a primary tort.1 The wide umbrella of ‘joint tortfeasance’ has engulfed accessory liability in tort and obscured its constituent elements. This chapter will seek to highlight the accessorial nature of some instances of liability; this should facilitate a clearer consideration of the present state of the law, the suitability of which can then be assessed. Current orthodoxy suggests that the conduct element is perhaps even more restrictive than in the contractual sphere; little attention has been paid to the mental element of accessory liability.

I.  Mapping Accessory Liability in Tort Law A.  Early Orthodoxy: ‘Aid, Abet, Counsel or Procure’ Accessory liability has not always been concealed or difficult to place on the map of tort law. There are numerous examples of courts recognising a wide conduct element of accessory liability in a similar vein to the criminal law. For instance, in Petrie v Lamont, Tindal CJ found that ‘[a]ll persons in trespass who aid or counsel, direct, or join, are joint trespassers’,2 and in M’Laughlin v Pryor, Erskine J stated that ‘encouragement’ would suffice to make a person a joint trespasser.3 1   See generally ch 2.IV, and for further consideration of whether the accessory’s liability is ‘secondary’ or ‘primary’, see section VI below. 2   Petrie v Lamont (1841) Car & M 93, 96. 3   M’Laughlin v Pryor (1842) 4 Man & G 48, 60; see too the speech of Tindal CJ in the same case, as well as Barker v Braham (1773) 2 Wm Bl 866, 888 (Grey CJ). Similar opinions can be found in the judgments of McCardie J in Pratt v British Medical Association [1919] 1 KB 244, 254; Performing Right

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Atiyah was explicit in writing that ‘[j]ust as in the criminal law relating to misdemeanours any person who “aids or abets” the commission of the offence is guilty as a secondary party, so it is clear that in the law of torts any one who assists the commission of a tort is liable as a secondary party’.4 Although this approach may once have represented English law, it no longer seems to be generally favoured.5 Accessory liability has been obscured, and, perhaps, diluted, by being subsumed within the heading of ‘joint tortfeasance’.

B.  The Obscurity of Joint Tortfeasance ‘Joint tortfeasance’ covers a wide range of cases.6 Joint tortfeasorship may arise where both defendants act in breach of duty in a single tort, where one defendant authorises or induces the commission of a tort by another, or where the tort has been committed pursuant to a common design of the defendants. ‘Joint responsibility for the same action’ can result from a ‘relationship link’ or a ‘participation link’;7 examples of the former include vicarious liability8 and the liability of principal and agent.9 The amalgamation of many different types of liability under the umbrella of joint torfeasance makes it harder to bring out the key principles underpinning accessory liability.10 Analysing true cases of accessory liability as part of a broad doctrine of ‘joint tortfeasance’ seems unhelpful and potentially confusing; it would be preferable for accessory liability in tort to draw parallels with accessory Society Ltd v Mitchell and Booker (Palais de Danse) Ltd [1924] 1 KB 762; Falcon v The Famous Players Film Company Ltd [1926] 1 KB 393, 413 (affirmed by the CA: [1926] 2 KB 474). 4   P Atiyah, Vicarious Liability in the Law of Torts (London, Butterworths, 1967) 295. Fleming also consistently expressed the same view: eg JG Fleming, The Law of Torts, 9th edn (Sydney, LBC Information Services, 1998) 256; see now C Sappideen and P Vines (eds), Fleming’s The Law of Torts, 10th edn (Sydney, Lawbook Co, 2011) 302. See too GL Williams, Joint Torts and Contributory Negligence (London, Stevens & Sons Ltd, 1951) 11–13; R Sutton and B Sheen, A Summary of the Law of Torts or Wrongs Independent of Contract by Sir Arthur Underhill, 16th edn (London, Butterworth & Co, 1949) 42. 5   However, the leading practitioner work continues to cite Petrie v Lamont for the principle that those who aid or abet a tort may incur liability: M Jones and A Dugdale (eds), Clerk & Lindsell on Torts, 20th edn (London, Sweet & Maxwell, 2010) para 4-04 and the broad approach in Petrie was also adopted by the Court of Appeal in White v Withers LLP [2009] EWCA Civ 1122, [2010] 1 FLR 859. 6   See generally Williams, Joint Torts, above n 4. 7   H Carty, ‘Joint Tortfeasance and Assistance Liability’ (1999) 19 Legal Studies 489. 8   And the liability of an employer and an independent contractor: Clark v Hosier & Dickson Ltd [2003] EWCA Civ 1467. 9   This also provides the better explanation for why ratification can lead to joint tortfeasorship: such acts do not contribute to the commission of the tort so fall beyond the scope of accessory liability and are better explained on principles of vicarious liability or agency: see too J Dietrich, ‘Accessorial Liability in the Law of Torts’ (2011) 31 Legal Studies 231, 248; cf R Stevens, Torts and Rights (Oxford, Oxford University Press, 2007) ch 11. 10   ‘Buried in discussions of joint liability, [the law of accessories in tort] remains to this day obscure and under-theorised’: P Birks, ‘Civil Wrongs: A New World’ in Butterworth Lectures 1990–91 (London, Butterworths, 1992) 100. See too Amstrad Consumer Electronics plc v British Phonograph Industry Ltd [1986] FSR 159 (Ch D), 212 (Slade LJ).



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liability in other areas of the law,11 rather than other concepts in tort law which are built upon different foundations. The broad approach to the conduct element of accessory liability which can be found in early tort cases may have since been restricted partly as a consequence of the influence of ideas of ‘combination’ and ‘conspiracy’ within the ambit of ‘joint tortfeasance’. But accessory liability should operate independently from notions of conspiracy. This distinction has been well-expressed by the American court in Halberstam v Welch:12 Most commonly, courts have relied on evidence of assistance to the main tortfeasor to infer an agreement, and then attached the label ‘civil conspiracy’ to the resultant amalgam. Sometimes, although not always, the inference has been factually justified; many tort defendants have both conspired with and substantially assisted each other. But we find it important to keep the distinctions clearly in mind as we review the facts in this novel case to see if tort liability is warranted on either or both concerted action theories. For the distinctions can make a difference. There is a qualitative difference between proving an agreement to participate in a tortious line of conduct, and proving knowing action that substantially aids tortious conduct. In some situations, the trier of fact cannot reasonably infer an agreement from substantial assistance or encouragement. A court must then ensure that all the elements of the separate basis of aiding–abetting have been satisfied. . . . The theory of liability also affects who is liable for what. An aider–abettor is liable for damages caused by the main perpetrator, but that perpetrator, absent a finding of conspiracy, is not liable for the damages caused by the aider– abettor.

Another potential difficulty that arises from the characterisation of accessory liability as an instance of joint tortfeasance is that it might prejudice discussion of the nature of liability. In The Koursk, Sargant LJ said that for joint tortfeasance ‘there must be responsibility for the same action, the imputation by the law of the same wrongful act to two or more persons at once’.13 This suggests that only one wrong is involved. Yet it may well be preferable to consider an accessory to be liable for his or her own, distinct wrong, albeit parasitic upon the tort of the primary tortfeasor.14 In Belegging-en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd, Buckley LJ was inclined to consider ‘a distinct, suggested tort of procuring infringement by others (based upon the principle enunciated by Erle J in Lumley v Gye)’.15 It is, after all, possible to consider the defendant to be liable other than as a joint tortfeasor; as Williams explained, ‘several concurrent 11   See eg Grimme Maschinenfabrik GmbH & Co KG v Derek Scott [2010] EWCA Civ 1110, [2011] FSR 193. 12   Halberstam v Welch 705 F 2d 472 (Col 1983), 478. 13   The Koursk [1924] P 140 (CA), 159. However, the result in The Koursk was perhaps greatly influenced by the fact that if the defendant was liable as a joint tortfeasor, then judgment against that defendant precluded a new claim against another joint tortfeasor. This is no longer the case. It is also important to note that the judges in The Koursk were careful to reject the notion that ‘joint tortfeasance’ was at issue in every case where two torts result in one instance of damage. 14   This would mirror accessory liability in the contractual and equitable contexts. 15   Belegging-en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd [1979] FSR 59 (CA), 66. Compare CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL).

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tortfeasors are independent tortfeasors whose acts concur to produce a single damage. The damnum is single, but each commits a separate injuria’.16 The nature of liability will also be explored more fully in the context of defences17 and remedies,18 but it is important to caution against too ready acceptance of all the baggage inherent in the language of ‘joint tortfeasance’ when considering accessory liability; the nature of an accessory’s liability should not be determined simply by grouping accessory liability with other examples of ‘joint tortfeasance’.

C.  Distinguishing Accessory Liability Accessory liability should be separated from other concepts commonly dealt with under the broad banner of ‘joint tortfeasance’. This section will outline some distinct doctrines which have the potential to be muddled with accessory liability.

i.  Vicarious Liability Vicarious liability is based upon the employer’s status. It does not arise because of the defendant’s participation in the primary tort, nor does it require any mental element: vicarious liability is strict. In JGE v Portsmouth Roman Catholic Diocesan Trust, Ward LJ said:19 [Vicarious liability] imposes liability on D (the Defendant) to compensate C (the Claimant) for the damage suffered by C caused by the negligent or other tortious act of A (the Actor) even though D is not personally at fault at all. It is thus a form of strict liability. That may seem harsh on D. As O W Holmes observed in ‘Agency’ (1891) 5 Harv L Rev 1, 14: ‘I assume that common sense is opposed to making one man pay for another man’s wrong, unless he actually has brought the wrong to pass according to the ordinary canons of legal responsibility.’

Accessory liability is concerned with the latter type of liability envisaged by Holmes: the accessory must contribute to the primary tort in order to incur liability. The same is not true for vicarious liability. Accessory liability and vicarious liability are conceptually distinct. If the primary tortfeasor commits the tort of negligence in the course of his or her employment, the employer may be vicariously liable for that tort because the employer authorised the performance of the act which caused the claimant’s loss. That employer is not liable as an accessory unless the employer authorised, assisted or encouraged the employee to perform the relevant act in a negligent manner.20 If the employer did encourage negligent performance, the employer’s liability may  Williams, Joint Torts, above n 4 at 16. See too The Koursk [1924] P 140 (CA).   See ch 7.   See ch 8. 19   JGE v Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938, [2013] QB 722, [19]. See too Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1. 20  See Kooragang Investments Pty Ltd v Richardson & Wrench Ltd [1982] AC 462 (PC), 472. 16 17 18



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be explained on the basis of either accessory liability or vicarious liability.21 Nevertheless, such an overlap should not mask the fact that the two areas rest upon different foundations; ideas from one context should not distort the law in another. In particular, accessory liability requires the defendant to be at fault as regards a particular primary tort, which is irrelevant to the determination of vicarious liability.

ii. Conspiracy The boundary between conspiracy and accessory liability is particularly blurry in tort law, principally because ‘combination’ has come to be recognised as an important ‘participation link’ that may lead to liability as ‘joint tortfeasors’.22 It nonetheless appears that the two should be separated.23 For example, an intention to injure the claimant seems necessary for conspiracy, but not under the general principles of accessory liability.24 In Revenue and Customs Commissioners v Total Network SL,25 the tort of conspiracy to injure by unlawful means was established despite there being no primary tort at all: the conspiracy was to injure through the common law offence of cheating the revenue. This was not actionable in tort by the claimants. As a result, there was no primary tort upon which accessory liability could attach. The House of Lords was clear that the view that unlawful means conspiracy is a form of accessory liability is ‘unsustainable’26 since ‘the two . . . are different in their nature’.27 However, concurrent liability as conspirators and accessories remains possible, at least where the unlawful means used by the ‘direct’ tortfeasor are tortious. The act of conspiring may simultaneously encourage, assist or induce the commission of the primary tort, for instance.

iii.  Innocent Agency If the ‘direct’ tortfeasor is an innocent agent, the liability of the defendant is primary rather than accessorial in nature. The scope of innocent agency in tort law is much more limited than in the criminal law.28 Where a defendant throws a person 21   Other instances can be envisaged: eg the owner of a car may be a passenger and the car is driven by another in a dangerous manner such that a pedestrian is hit; the owner of the car might be liable as an accessory for encouraging the primary tort, but also vicariously given the degree of control he was able to exercise: see eg Samson v Aitchison [1912] AC 844 (PC); Morgans v Launchbury [1973] AC 127 (HL). Such overlap might also explain the various reasons for the defendant’s liability in Brooke v Bool [1928] 2 KB 578 (DC), although the case is better explained on the basis of vicarious liability: see ch 2.V.C. 22   See section III.A below. 23   See eg Halberstam v Welch 705 F 2d 472 (Col 1983), quoted at n 12 above. 24   See section IV below. 25   Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19, [2008] 1 AC 1174. 26   ibid [103] (Lord Walker). 27   ibid [123] (Lord Mance). See too the same case at [225] (Lord Neuberger). See further P Sales, ‘The Tort of Conspiracy and Civil Secondary Liability’ (1990) 49 CLJ 491, 511; Dietrich, ‘Accessorial Liability’, above n 9 at 237. 28   See ch 3.I.C.

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onto the claimant’s land, only the defendant and not the person thrown will be liable.29 The same result flows where the defendant uses force to take another’s hand and uses that hand to hit the claimant.30 It is understandable why such instances may be grouped under the heading of ‘innocent agent’ if there is no primary tortfeasor.31 But where the person who ‘directly’ commits the primary tort has a defence, it seems unnecessary to use the language of ‘innocent agency’.32 The liability of an inducer could well be accessorial, it being sufficient for the defendant to participate in the conduct element of the primary tort.33

iv. Negligence It may be that a defendant who has participated in a primary tort committed by another could be liable not only as an accessory but also in negligence for breaching a ‘free-standing’ duty of care.34 However, the overlap between these two types of liability should not be exaggerated: the proximity required to establish a duty of care owed by the defendant to the claimant is generally absent in these three-party cases.35 Accessories are not negligent, but act knowingly and deliberately; if there is no liability under general principles of accessory liability, then the law of negligence should be wary about expanding to impose liability. Imposing duties of care more readily may place an ‘impossible burden’ upon defendants.36 Accessory liability and negligence are conceptually distinct, and it is important that the elements of one do not twist the requirements of the other. Although negligence has already expanded such that it encompasses a huge area of tort law,37 it should not cover accessory liability.

D.  Bringing Out Accessory Liability Whereas Tan in the equitable context, and OBG in the contractual domain, have given impetus to further consideration of the accessorial nature of liability in   Smith v Stone (1647) Sty 65.   Waver v Ward (1616) Hob 134. 31   eg DJ Cooper, Secondary Liability for Civil Wrongs (PhD thesis, University of Cambridge, 1996) 59. 32  Admittedly, it is sometimes unclear whether the potential primary wrongdoer is not liable because there is a defence of involuntariness (eg Public Transport Commission (NSW) v Perry (1977) 137 CLR 107 (HCA), 126 (Barwick CJ)) or because he or she can deny an element of the tort since his or her act was involuntary (eg American Law Institute, Restatement (Second) of the Law of Torts (St Paul, MN, ALI Publishers, 1979) para 2, comment a. 33   The position is similar in the criminal law: see ch 3.II. 34   See eg Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL), considered at ch 2.V.A. 35   CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1059. 36   Paterson Zochonis & Co Ltd v Merfarken Packaging Ltd [1986] 3 All ER 522 (CA), 534. The lower mental element required in a claim for negligence would mean that defendants would have to be especially careful about their actions. 37   See eg T Weir, ‘The Staggering March of Negligence’, in P Cane and J Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming (Oxford, Clarendon Press, 1998). 29 30



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those areas, the most recent House of Lords decision relating to this topic in tort law somewhat dampened calls for broad participatory liability.38 Nevertheless, developments in other areas of private law should prompt reflection upon whether tort law is simply lagging a little behind in its development as regards accessory liability. Given the overt recognition of accessory liability in crime, equity and contract, it is sensible to analyse this possibility in the tortious sphere as well. The case law suggests an outline consistent with the main elements of accessory liability: primary tort, conduct element, mental element. Each will be considered in turn.

II.  Primary Wrong A.  Necessity of Primary Tort Accessory liability must be parasitic upon a primary tort; if a primary tort has not been committed, then there is nothing to which accessory liability can attach. In Associated British Ports v TGWU, Butler-Sloss LJ recognised that ‘[t]here is no decision where the tort of inducing a breach of statutory duty has been recognised without there being the basis for a cause of action between the obligee and obligor’.39 Similarly, in Southwark London Borough Council v Mills, Lord Hoffmann said that ‘[i]f the neighbours are not committing a nuisance, the councils cannot be liable for authorising them to commit one’.40 There is no liability for trying to participate in another’s tort if the wrong does not actually occur. A claimant’s rights must actually have been infringed before he or she will have a cause of action. However, even if a claimant is unable to recover against the primary tortfeasor due to the latter’s having a defence, accessory liability might nonetheless attach to the primary tortious act. The defence of the primary wrongdoer could be personal only to the primary tortfeasor, and not extend to the accessory.41 So, for example, in a defamation case, the primary tortfeasor may have a defence of qualified privilege, but a defendant could still be liable as an accessory if the requisite conduct and mental elements are satisfied.42

38   Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [2000] 1 AC 486 (HL). See too CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL). 39   Associated British Ports v TGWU [1989] 1 WLR 939 (CA), 959. 40   Southwark London Borough Council v Mills [2001] 1 AC 1 (HL), 16. 41   See further ch 7.I. 42  eg Egger v Viscount Chelmsford [1965] 1 QB 248 (CA).

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B.  Can Accessory Liability Attach to All Primary Torts? Although tort law protects a vast array of rights,43 it appears to be accepted that, using the language of joint tortfeasance, ‘torts of all kinds may be joint’.44 Accessory liability can attach to any primary tort. This approach has the significant advantage of simplicity and consistency with the approach taken in both the criminal law45 and other areas of the private law.46 If tort law has decided that a right deserves protection against a primary wrongdoer, then it might invariably be worth protecting through accessory liability. The very existence of the right could reasonably engender an expectation that nobody will culpably participate in the infringement of that right. It is clear that accessory liability can attach to so-called ‘intentional torts’. If a defendant deliberately persuades another to beat up the claimant, imposing accessory liability upon the defendant is uncontroversial. The same approach seems to be adopted where the primary tort is trespass47 or deceit.48 This section will consider some examples of accessory liability in tort which are perhaps less obvious.

i.  Breach of Statutory Duty In Meade v Haringey London Borough Council,49 the Court of Appeal recognised that a defendant could incur liability for ordering or soliciting a breach of statutory duty. However, it must be established that that breach is civilly actionable by the claimant.50 The liability of an accessory must derive from and be ancillary to a primary tort.51 Liability is based upon general common law principles. In OBG, Lord Nicholls expressly sought to ‘leave open the question of how far the Lumley v Gye principle applies equally to inducing a breach of other actionable obligations such as statutory duties or equitable or fiduciary obligations’.52 This suggests a natural affinity between this area of accessory liability and other areas of the private law where accessory liability is better recognised. 43   Indeed, it may be that we should speak of a law of torts (plural): see eg Stevens, Torts and Rights, above n 9. 44   Jones and Dugdale, Clerk & Lindsell, above n 5 at para 4-04. 45   See ch 3. 46   See chs 4 and 5. 47   See section I.A above. 48   Dadourian Group International Inc v Simms [2009] EWCA Civ 169, [2009] 1 Lloyd’s Rep 601. 49   Meade v Haringey London Borough Council [1979] 1 WLR 637 (CA), 651 (Eveleigh LJ). 50   Associated British Ports v TGWU [1989] 1 WLR 939 (CA) (overruled, but not on this point, in the House of Lords: [1989] 1 WLR 939, 970). 51   The requirement that the claimant be able to sue in tort for breach of statutory duty itself restricts the availability of a remedy against third parties: many breaches of statutory duty do not lead to civil liability. On breach of statutory duty generally, see Jones and Dugdale, Clerk & Lindsell, above n 5 at ch 9. 52   OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [189].



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ii. Nuisance It is well recognised that a defendant who ‘authorises’ a nuisance might incur liability. Thus in Tetley v Chitty53 a local authority was liable when it let land for gokarting and a nuisance was a natural and necessary consequence of that activity. Similarly, in Harris v James54 a landlord was liable for a nuisance committed by his tenant when the land had been let in order to be used as a lime quarry, and the nuisance was the inevitable consequence of such activity. A leading textbook account has stated that ‘the liability of the landlord is not different from that of any principal who authorises his agent to commit a tort’;55 the recognition of general principles is significant, but it is important to appreciate that vicarious liability is not the focus of attention here. In Pwllback Colliery Co Ltd v Woodman, Lord Loreburn highlighted that ‘permission to carry on a business is quite a different thing from permission to carry it on in such a manner as to create a nuisance’.56 ‘Active participation’ in a nuisance will also lead to liability.57 This was recently highlighted by the Supreme Court in Coventry v Lawrence (No 2).58 That case concerned a nuisance from a stadium used for racing, and one issue was whether the landlords of the stadium should be liable alongside their tenants. The landlords had coordinated all dealings with the local authority on noise issues, appealed against a noise abatement notice and often responded to the claimant’s complaints about the noise.59 All members of the Supreme Court agreed that the key issue was whether such acts were sufficient to constitute active participation. By a bare majority, the Supreme Court held that the landlords’ conduct was insufficient to amount to active participation in their tenants’ nuisance.60 The threshold of substantial causal participation was therefore not met on the facts. But the legal test was clear, and if the landlords had satisfied that test, it is suggested their liability would best be described as accessorial: the landlords’ acts assisted, encouraged or facilitated the commission of the primary tort of nuisance.

  Tetley v Chitty [1986] 1 All ER 663 (QBD).   Harris v James (1876) 45 LJQB 545 (QBD). 55   WVH Rogers, Winfield and Jolowicz on Tort, 18th edn (London, Sweet & Maxwell, 2010) para 14-25. 56   Pwllback Colliery Co Ltd v Woodman [1915] AC 634 (HL), 639. 57   Malzy v Eichholz [1916] 2 KB 308 (CA), 314–320 (Lord Cozens-Hardy MR); Southwark London Borough Council v Mills [2001] 1 AC 1 (HL), 22 (Lord Millett); Coventry v Lawrence (No 2) [2014] UKSC 46, [2014] 3 WLR 555, [11] (Lord Neuberger (with whom Lord Clarke and Lord Sumption agreed)), [51] (Lord Carnwath), 73 (Lord Mance). 58   Coventry v Lawrence (No 2) [2014] UKSC 46, [2014] 3 WLR 555. 59   ibid [21]. 60   The majority comprised Lord Neuberger, Lord Clarke and Lord Sumption; Lord Carnwath and Lord Mance dissented. 53 54

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iii.  Intellectual Property Torts A peer-to-peer website may incur liability when its users exploit the website to access videos and songs which infringe the claimant’s copyright.61 It was explicitly recognised by Arnold J in Dramatico Entertainment Ltd v British Sky Broadcasting Ltd that such defendants may be ‘liable as accessories’,62 albeit under the traditional umbrella of joint tortfeasance. Accessory liability in the context of intellectual property torts is generally accepted. Although it has been suggested that intellectual property rights should be treated as sui generis and that ‘special policy concerns’ might require a different approach to accessory liability,63 it is not immediately obvious what these ‘special policy concerns’ are. Perhaps the area of intellectual property could be differentiated because laws in this area often derive from international arrangements, and are thus not formulated with English common law principles of accessory liability in mind. Yet the common law operates alongside more particular statutory regimes.64 References to ‘joint tortfeasance’ are to be found in all areas of intellectual property.65 As Hobhouse LJ remarked in Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department, ‘the principles applied are drawn from the general law of tort. Infringement of a patent or copyright is a tort’.66 Intellectual property cases have greatly influenced the development of the common law principles of joint tortfeasance,67 and it would be unfortunate for intellectual property law now to abandon its ties to the common law at a time when the wealth of cases in this area could help to develop the applicable principles and, perhaps, place them on a more coherent footing.

61  eg Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), [2012] 3 CMLR 14; Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13. See too A Strowel (ed), Peer-to-Peer File Sharing and Secondary Liability in Copyright Law (Cheltenham, Edward Elgar, 2009). 62   [2012] EWHC 268 (Ch), [2012] 3 CMLR 14, [72]. In L’Oréal SA v eBay International AG [2009] EWHC 1094 (Ch), [2009] ETMR 53, [346], Arnold J said that ‘[i]n England and Wales accessory liability even for statutory torts such as trade mark infringement is governed by the common law, and in particular the law as to joint tortfeasorship’. See generally PS Davies, ‘Accessory Liability: Protecting Intellectual Property Rights’ [2011] Intellectual Property Quarterly 390. 63   Dietrich, ‘Accessorial Liability’, above n 9 at 253. 64   eg Copyright, Designs and Patents Act 1988, ss 16(2), 22–26; Trade Marks Act 1994, s 10(5); Patents Act 1977, s 60(2). 65   See eg Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13 in the context of copyright; L’Oréal SA v eBay International AG [2009] EWHC 1094 (Ch), [2009] ETMR 53 concerning trade marks; Grimme Maschinenfabrik GmbH & Co KG v Derek Scott [2010] EWCA Civ 1110, [2011] FSR 193 concerning patents. 66   Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [1998] 1 Lloyd’s Rep 19 (CA), 44. See too Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [40] (Beatson LJ). 67  eg Townsend v Haworth (1875) 48 LJ Ch 770n (CA); Sykes v Howorth (1879) 12 Ch D 826; Dunlop Pneumatic Tyre Co Ltd v David Moseley & Sons Ltd (1904) 21 RPC 274 (CA); Belegging-en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd [1979] FSR 59 (CA); CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL).



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The core reasons underpinning accessory liability in tort law generally – especially the need to protect rights and ensure that the culpable bear responsibility for their actions68 – are equally applicable in respect of intellectual property rights. There may be some concern that accessory liability could have a ‘chilling effect’69 on technological innovation, but this should not be the case if only the culpable, rather than the innocent, are subject to liability. Moreover, it may be that a defendant who participates in certain infringements of intellectual property rights could find it easier to rely upon a defence; for example, there may be a degree of tolerance of a product which helps others to infringe copyright if the development and marketing of the product can be justified for the sake of technological advancement.70

iv. Negligence It has been suggested that it is conceptually impossible to be liable as an accessory to the tort of negligence.71 Dietrich has given the example of a defendant who encourages another to drive at 80km/h through a school zone, and, as a consequence of the speeding, a child is hit by the car and injured. Dietrich argues that ‘[i]t is difficult to characterise the encouragement of the intentional act to drive at 80km/h as assisting in the commission of the tort, or entering into a common design to commit it’.72 Dietrich concludes that the liability of the defendant in such scenarios is in negligence for the breach of a free-standing duty of care owed to the injured claimant. Such an analysis is attractive but not necessarily convincing. It is unclear why the encouragement needs to be characterised as assistance in order to establish accessory liability: perhaps the encouragement induced the speeding and hence negligent conduct. Why should this not ground a claim in accessory liability? Even if the defendant is liable in negligence for the breach of a free-standing duty of care, that does not make accessory liability conceptually impossible; the two claims can simply be brought concurrently. Liability in negligence may flow from the deliberate conduct of the primary tortfeasor, in relation to which it is possible to establish participatory liability through assistance, encouragement or inducement, for example.73   See section V below.   This fear was expressed by Justice Breyer in his concurring opinion in Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913 (2005), 960. 70   See eg Sony Corp of America v Universal City Studios Inc 464 US 417 (1984); see ch 7.II.C. 71   Dietrich, ‘Accessorial Liability’, above n 9 at 256–258. 72   ibid 256 (emphasis in original). Other examples might be envisaged: a passenger in a car might deliberately distract the driver in order that the driver lose control and hit a pedestrian; see too Sales, ‘The Tort of Conspiracy’, above n 27 at 504. 73   Indeed, Dietrich recognises that such instances lend themselves to an analysis based upon accessorial liability: Dietrich, ‘Accessorial Liability’, above n 9 at 258, citing Rogers v RJ Reynolds Tobacco Co 761 SW 2d 788 (Tex 1988), which concluded that a conspiracy to commit negligence is actionable. cf Brooke v Bool [1928] 2 KB 578 (DC), (discussed by Dietrich, ‘Accessorial Liability’, above n 9 at 257). Of course, the accessory claim might be less attractive than framing the claim in negligence because of the more demanding mental element. 68 69

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III.  Conduct Element In a prominent exposition of the law of joint tortfeasance, Carty identified three principal ‘participation links’ for accessory liability: combination, authorisation and procurement.74 Each of these conduct elements will be examined in turn, before considering a broader possible conduct element of assistance.

A. Combination Combination requires a ‘common design’. In the leading case of The Koursk, Scrutton LJ influentially said:75 I am of the opinion that the definition in Clerk and Lindsell on Torts, 7th ed., p. 59, is much nearer the correct view: ‘Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design’ . . .. ‘but mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be concerted action to a common end.’

Since mere similarity of design is insufficient, the scope of combination appears quite restrictive. In Kalman v PCL Packaging (UK) Ltd,76 a claim was brought against a defendant who sold a filter to a purchaser, knowing that the filter infringed the claimant’s patent. Falconer J rejected the contention that the defendant and purchaser shared a ‘common design’ and refused to equate knowledge of the infringement with a common design. The interests of the purchaser and defendant were very different; the fact that both were involved in some way in the infringement of a patent did not suggest ‘concerted action to a common end’: after all, the defendant’s end was to make money from the sale, rather than infringe the claimant’s intellectual property rights. In a similar vein, in Vestergaard Frandsen A/S v Bestnet Europe Ltd, Lord Neuberger held that77 in order for a Defendant to be party to a common design, she must share with the other party, or parties, to the design, each of the features of the design which make it wrongful. If, and only if, all those features are shared, the fact that some parties to the common design did only some of the relevant acts, while others did only some other relevant acts, will not stop them all from being jointly liable.

A strict reading of The Koursk suggests that joint tortfeasance based upon a common design might parallel unlawful means conspiracy.78 As a result, it should be doubted whether ‘combination’ is a conduct element of accessory liability at all;   Carty, ‘Joint Tortfeasance’, above n 7.   [1924] P 140 (CA), 156. 76   Kalman v PCL Packaging (UK) Ltd [1982] FSR 406 (Patent Ct). 77   Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] UKSC 31, [2013] 1 WLR 1556, [34]. 78   eg Jones and Dugdale, Clerk & Lindsell, above n 5 at para 24-94. 74 75



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in Fish & Fish Ltd v Sea Shepherd UK, Beatson LJ noted that ‘[t]his requirement of a common design means that this form of joint liability is not accessory liability’.79 The focus of accessory liability should lie upon acts of participation – such as inducement and assistance – rather than an agreement between defendants. Yet many cases have assumed that participatory acts must be pursuant to a common design for liability to be imposed. This approach significantly restricts the potential ambit of accessory liability. This is highlighted by the following passage from Winfield and Jolowicz on Tort: 80 D1 is attacking C. D2, a malicious bystander, throws a knife to D1, with which D1 stabs C. It seems extraordinary to suggest that D2 is not civilly liable for C’s injury. Yet it is difficult to say that there is any procurement, common design or conspiracy.

D1 and D2 do not obviously share a common design: D2 may have acted in order to give D1 his knife back, for example, rather than with the purpose of harming C. The requirement of ‘concerted action for a common end’ does not seem to be fulfilled.81 In CBS Songs Ltd v Amstrad Consumer Electronics plc, Lord Templeman even explained liability in Lumley v Gye as arising from the ‘unlawful common design’ between the inducer and contract-breaker.82 This is not supported by a close analysis of the decision or subsequent case law.83 An accessory can be liable for knowingly, or perhaps intentionally, participating in a primary breach of contract. There is no requirement for concerted action in the furtherance of a common end. Reliance on cases such as Lumley to justify limiting the conduct elements of accessory liability to those pursuant to a ‘common design’ is both weak and inappropriate. In Mutua v Foreign and Commonwealth Office, McCombe J recognised that the ‘precise ambit of [‘common design’] is . . . far from clear’.84 The boundaries of ‘combination’ no longer seem to adhere so strictly to the requirements laid down in The Koursk, despite the frequent citation of the passage quoted above from the speech of Scrutton LJ.85 For example, in Unilever plc v Gillette (UK) Ltd, Mustill LJ found that ‘common design’ or ‘concerted action’ does not86 call for any finding that the secondary party has explicitly mapped out a plan with the primary offender. The tacit agreement will be sufficient. Nor, as it seems to me, is there any need for a common design to infringe. It is enough if the parties combine to secure the doing of acts which in the event prove to be infringements.   Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [45].  Rogers, Winfield and Jolowicz, above n 55 at para 21-3.   This example is discussed further in section VI below. 82   CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1058. 83   See ch 5.V. 84   Mutua v Foreign and Commonwealth Office [2012] EWHC 2678 (QB), [2012] NLJR 1291, [91]. 85   See n 75 above. Indeed, The Koursk primarily concerned whether the liability of the defendants was joint and several, and that case also contained dicta suggesting a wider scope for joint tortfeasance: see eg [1924] P 140 (CA), 159 (Sargant LJ). 86   Unilever plc v Gillette (UK) Ltd [1989] RPC 583 (CA), 594. 79 80 81

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Such tacit agreement may weaken the requirement of ‘concerted action for a common end’.87 In Shah v Gale,88 Leveson J was prepared to find a defendant liable as a joint tortfeasor on the basis of a ‘common design’ where the defendant merely pointed out the home of the claimant to people who the defendant knew intended to attack the victim. On the facts of the case, the defendant was liable in tort for being party to a ‘joint enterprise’ to commit an assault, but since she was unaware that the victim would be attacked with a knife or killed, she did not bear liability for the victim’s death. The judge said that:89 [u]nderstanding that the object of the exercise was to find [the victim] and ‘beat him up’ (as she put it), she agreed to assist by pointing out the address at which she believed he lived and, in so doing, expressly or by the clearest implication, became part of the common design.

But it seems as if the designs of the primary tortfeasors and defendant may be better characterised as ‘similar’ rather than ‘common’ or ‘concerted’. Essentially, it would appear that the defendant was liable for knowingly facilitating or assisting a primary tort. This more liberal approach to the finding of a common design may also be found in the context of intellectual property rights. For example, in Dramatico Entertainment Ltd v British Sky Broadcasting Ltd,90 Arnold J held that those behind ‘The Pirate Bay’ website could be liable as joint tortfeasors when it was used by individuals to commit infringements of copyright. The Pirate Bay was a torrent tracking website, which aided those who used the site to find torrents. It was clear that many of the torrents concerned films and music which were accessed in breach of copyright, but The Pirate Bay website itself did not store any of the infringing material. It did not, therefore, primarily infringe any intellectual property rights. But it did facilitate users’ infringement of copyright. Arnold J repeated the orthodox mantra that knowing facilitation was insufficient for liability under the doctrine of joint tortfeasance,91 but went on to find that because those behind The Pirate Bay knew of the infringing material, and seemed to rely upon such material in order to attract users, the requirements of a ‘common design’ were satisfied. Whilst the result is satisfactory, it is not at all clear that there was truly ‘concerted action to a common end’. The users’ purpose was to watch films or listen to music which infringed the claimants’ copyright. The Pirate Bay was unconcerned about whether or not the users watched particular films or downloaded songs which infringed the claimants’ intellectual property rights: it simply wished to attract users to its site in order to make money from advertising and

87   See too Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [47] (Beatson LJ); Dietrich, ‘Accessorial Liability’, above n 9 at 245. 88   Shah v Gale [2005] EWHC 1087 (QB). 89   ibid [42]. 90   [2012] EWHC 268 (Ch), [2012] 3 CMLR 14. See similarly Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13. 91   See section III.D below.



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subscriptions. The ends of The Pirate Bay and the users may have been similar, but it is not so clear that they were the same. A stricter interpretation of the judgment in The Koursk may not have led to the conclusion that there was ‘concerted action to a common end’ in Dramatico. Indeed, on analogous facts to Dramatico, in the leading decision of the House of Lords in CBS v Amstrad,92 Lord Templeman held that Amstrad did not share a common design with those who used Amstrad’s hi-fi systems to record music in breach of copyright. Amstrad simply supplied a product; the users chose to exploit it unlawfully. There was no concerted action to a common end. Dramatico and CBS might be distinguished on their particular facts: there were hardly any lawful uses of The Pirate Bay website, whereas there were substantial lawful uses that could be made of the hi-fis manufactured by Amstrad.93 Nevertheless, there appears to be a relaxation of the requirements that have long been thought to be inherent in the concept of ‘common design’. This has been highlighted by Beatson LJ in Fish & Fish Ltd v Sea Shepherd UK.94 His Lordship noted that ‘the fact that there can be a tacit agreement and that there need not be a common design to commit the tort but to do acts which in the event prove to be torts, shows the potential breadth of this form of joint responsibility’.95 Beatson LJ did, however, identify three limits to the scope of ‘common design’.96 First, a common design will not be inferred simply because a person sells a product to another which he knows is going to be used to commit a tort. Secondly, a common design requires more than the mere fact that two parties are closely related. Thirdly, approval of another person’s plan will not, without more, lead to the finding of a common design. A loosening of the requirements of ‘common design’ is understandable. If the defendant intended to participate in another’s tort, why should it be necessary for a claimant to surmount an artificial extra hurdle of proving that the defendant and primary tortfeasor acted together ‘in concert’ for a ‘common end’? This element of conspiracy is not demanded for accessory liability in other areas of the private or criminal law.

B. Authorisation Authorisation as a form of participatory liability should be distinguished from vicarious liability: authorisation of tortious conduct is required.97 Authorisation seems to require permission, or possibly an order, from a person having, or   [1988] AC 1013 (HL). This decision is discussed more fully at section III.D.i below.   On the importance of this, see ch 7.II.C. See too eg Football Association Premier League Ltd v QC Leisure [2008] EWHC 1411 (Ch), [2008] UKCLR 329, [376]–[379] (Kitchin J). 94   [2013] EWCA Civ 544, [2013] 3 All ER 867; the Supreme Court granted permission to appeal on 9 January 2014. 95   [2013] EWCA Civ 544, [2013] 3 All ER 867, [47]. 96   ibid [50]. 97   See section I.C.i above. 92 93

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purporting to have, authority over the ‘immediate’ wrongdoer. Whitford J in CBS Inc v Ames Records and Tapes Ltd observed that98 [a]ny ordinary person would, I think, assume that an authorisation can only come from somebody having or purporting to have authority and that an act is not authorised by somebody who merely enables or possibly assists or even encourages another to do that act, but does not purport to have any authority which he can grant to justify the doing of the act.

This passage has been cited with approval by Lord Templeman in CBS v Amstrad.99 Authorisation may appear consistent with the general conduct elements of accessory liability: a defendant who authorises a primary tort will thereby assist or encourage it, and perhaps even induce the wrong. But the fact that the defendant must have some authority over the primary tortfeasor means that the scope of this participatory link is narrow. The ambit of assistance and encouragement will be especially limited if authorisation and combination are both interpreted narrowly. In CBS v Amstrad, Lord Templeman forcefully rejected the contention that Amstrad authorised users of its hi-fi systems to exploit that technology to infringe the claimants’ copyright. His Lordship supported the suggestion that to authorise often equates to ‘sanction, approve, and countenance’.100 This test has since been employed in an apparent widening of the scope of authorisation.101 For instance, it was invoked by Kitchin J in Twentieth Century Fox Film Corp v Newzbin Ltd, who then said:102 The grant or purported grant to do the relevant act may be express or implied from all the relevant circumstances. In a case which involves an allegation of authorisation by supply, these circumstances may include the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material   CBS Inc v Ames Records and Tapes Ltd [1982] Ch 91, 106.   [1988] AC 1013 (HL), 1054. Even though Whitford J was concerned with liability in the context of a ‘statutory tort’ under the Copyright Act 1956, s 1(2), there is no reason why the meaning of ‘authorisation’ under the statute should be any different from the common law. Indeed, ‘authorisation’ was previously recognised by the common law as leading to liability as a joint tortfeasor (eg Harris v James (1876) 45 LJQB 545 (QBD), considered above n 54) and thus its inclusion in legislation may have been superfluous. See too Performing Right Society v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 (CA) (Scrutton LJ). 100   CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1054. This corresponds with the dictionary definition of the term to be found in the Oxford English Dictionary; see too Evans v E Hulton & Co Ltd [1924] All ER Rep 224 (Ch D), 225 (Tomlin J); Monckton v Pathé Frères Pathephone Ltd [1914] 1 KB 395 (CA), 403 (Buckley LJ); Falcon v Famous Players Film Co [1926] 2 KB 474 (CA), 491 (Bankes LJ). 101   Particularly as regards intellectual property rights: see eg Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), [2012] 3 CMLR 14, [81]. Australia has also adopted a broad notion of authorisation: see eg University of New South Wales v Moorhouse (1975) 133 CLR 1 (HCA) (library liable for authorising copyright infringement by providing photocopiers and failing adequately to supervise their use); compare Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16, (2012) 248 CLR 42 (internet service provider did not authorise customers’ infringing use). See eg RK GiblinChen and MJ Davison, ‘Kazaa Goes the Way of Grokster? Authorisation of Copyright Infringement via Peer-to-Peer Networks in Australia’ (2006) 17 Australian Intellectual Property Journal 53. 102   Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13, [90]. 98 99



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supplied constitutes the means used to infringe, whether it is inevitable it will be used to infringe, the degree of control which the supplier retains and whether he has taken any steps to prevent infringement. These are matters to be taken into account and may or may not be determinative depending upon all the other circumstances.

The factors identified in this passage were thought to be crucial by Arnold J in Dramatico.103 In both Dramatico and Newzbin, liability was imposed upon websites which facilitated the task of users who sought to access material which infringed others’ copyright. Although accessory liability may well be appropriate in such circumstances, it does not sit entirely comfortably with the approach of the House of Lords in CBS v Amstrad, in which Lord Templeman emphasised that ‘Amstrad conferred on the purchaser the power to copy but did not grant or purport to grant the right to copy’.104 Did the defendants in Dramatico and Newzbin really purport to grant the right to infringe copyright? It is unclear how easy it is for a defendant to circumvent ‘authorisation’. Is it enough for a website provider to put a notice on its site, warning that it does not authorise any unlawful conduct? The answer will depend upon the precise facts of the case, including perhaps the sincerity of the disclaimer,105 but there is some authority to suggest that authorisation cannot simply be sidestepped by superficial means. For example, in the context of defamation, authorisation tends to involve an express or implied request that a defamatory statement be repeated. But in Parkes v Prescott,106 the defendants did not make any explicit request, and simply expressed the hope that newspaper reporters in attendance would publish the remarks made. When the newspapers did publish the defamatory remarks, the claimant sued the defendants on the basis that they had authorised their publication. Montague Smith LJ stated that107 loose expressions of a mere wish or hope that proceedings should be published would not be sufficient to fix liability on the defendants in cases like the present. I think the words must be of such a kind, and used in such a manner, as to satisfy the jury that they amounted to, and were in fact, a request to publish.

This test allows the court to look behind the form of the words used and consider the substance of the defendant’s conduct. On the facts of Parkes, the Court of Appeal held that the ‘hope’ of the defendants did in fact authorise the publication of the defamatory remarks. There is usually no liability for failing to prevent the commission of a tort.108 In Coventry v Lawrence (No 2), Lord Neuberger said that ‘[a]s a matter of principle, even if a person has the power to prevent the nuisance, inaction or failure to act 103   Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), [2012] 3 CMLR 14, [73]–[81]. 104   [1988] AC 1013 (HL), 1054. See too Falcon v Famous Players Film Co [1926] 2 KB 474 (CA), 499 (Atkin LJ). 105   See section VI.D below for consideration of the disclaimer in CBS. 106   Parkes v Prescott (1869) LR 4 Exch 169. 107   ibid 177. 108  eg Barber v Pigden [1937] 1 KB 664 (CA).

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cannot, on its own, amount to authorising the nuisance’.109 But where the defendant enjoys some degree of control over the primary tortfeasor, then there is some support for the argument that a failure to prevent the tort may be tantamount to authorisation. In Performing Right Society v Ciryl Theatrical Syndicate Ltd, Bankes LJ said that110 the Court may infer an authorization or permission from acts which fall short of being direct and positive; I go so far as to say that indifference, exhibited by acts of commission or omission, may reach a degree from which authorization or permission may be inferred.

In Moore v Drinkwater,111 a landlord was liable for the wrongful distraint of his tenant’s fixtures by a broker, even though the landlord did not undertake any positive acts; his presence at the time of the tort suggested authorisation.

C. Inducement Despite some suggestion that inducement should only lead to liability if pursuant to a ‘common design’,112 the better view is that inducement does not require concerted action for a common end.113 Inducement covers a wide range of conduct, including acts of persuasion114 and encouragement.115 In CBS v Amstrad, Lord Templeman found that ‘[g]enerally speaking, inducement, incitement or persuasion to infringe must be by a defendant to an individual infringer and must identifiably procure a particular infringement in order to make the defendant liable as a joint infringer’.116 It has been said that what amounts to inducement for the purposes of the Lumley tort is a ‘matter of some obscurity’.117 A difficult recent example was provided by the Court of Appeal in Football Dataco Ltd v Stan James plc.118 The claimants produced a database of information concerning live football matches. Sportradar copied that database, thereby infringing the claimant’s copyright. Stan James were bookmakers, and customers who clicked on a box called ‘Live Scores’ 109   [2014] UKSC 46, [2014] 3 WLR 555, [22] (Lord Neuberger (with whom Lord Clarke and Lord Sumption agreed)). See too [57] (Lord Carnwath) and ch 4.I.B and ch 5.IV.B. 110   Performing Right Society v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 (CA), 9. 111   Moore v Drinkwater (1858) 1 F & F 134. 112   CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1056–1058; see section III.A above. 113   Although many decisions seem to rely upon The Koursk [1924] P 140 (CA) for the proposition that the conduct of the defendant must be pursuant to a common design, this is unsatisfactory; accessory liability is of much longer standing than The Koursk. For further consideration of the mental element of accessory liability, see section IV below. 114  eg Dow Chemical AG v Spence Bryson & Co Ltd [1982] FSR 397 (CA), 598. 115   News Group Newspapers Ltd v Society of Graphical and Allied Trades [1987] ICR 181 (QBD), 214. 116   CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1058. 117   James v Commonwealth (1939) 62 CLR 339 (HCA), 371. 118   Football Dataco Ltd v Stan James plc [2013] EWCA Civ 27, [2013] 2 CMLR 932. The Supreme Court granted permission to appeal on 4 July 2013.



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on its website automatically downloaded all the infringing information from Sportradar. It was held that Sportradar and the customers infringed the claimant’s copyright, but the question arose as to whether Stan James was a joint tortfeasor. Sir Robin Jacob, with whom the other members of the Court of Appeal agreed, insisted that:119 The provider of such a website is causing each and every UK user who accesses his site to infringe. His very purpose in providing the website is to cause or procure acts which will amount in law to infringement by any UK user of it. The case is not one of a mere facilitator, such as eBay or Amstrad where the choice to infringe or not ultimately lay with the consumer. Here Stan James is in reality responsible for the punter’s infringement.

Stan James was held to have brought about the customers’ infringement of the claimant’s copyright: the primary infringement would not have occurred but for Stan James’ inducement through persuading the customers to click on the box on its website.120 The fact that the primary tortfeasors did not realise they would be committing a tort in clicking on the box was irrelevant.

D. Assistance i.  CBS Songs Ltd v Amstrad Consumer Electronics plc The modern approach to joint tortfeasance does not appear to accept that assistance alone, absent a common design, can lead to liability. The decision of the House of Lords in CBS v Amstrad has been particularly influential in this regard. Amstrad manufactured hi-fi systems, which enabled high speed recording from pre-recorded cassettes on to blank tapes. CBS Songs (CBS), who brought the action on behalf of themselves and other copyright owners in the music trade, were concerned that many purchasers of the hi-fi systems would use the recording facility to make pirate or unlicensed copies of copyright works. CBS claimed that Amstrad should face liability as a joint infringer of copyrights. Amstrad sought to have the claim struck out; it failed at first instance, but succeeded both in the Court of Appeal (by a majority) and in the House of Lords. The case proceeded on the assumption that no crime had been committed.121 Lord Templeman, giving the only reasoned speech, found that Amstrad could not be liable since there was a) no authorisation: Amstrad was not in a position to control to what uses its machines were put; b) no common design: Amstrad did not share a goal with any user of infringing copyright; and c) no procurement,   ibid [97] (emphasis in original).   However, on the facts, it is perhaps not entirely clear that there was persuasion in any meaningful sense; since its website contained infringing material (Football Dataco Ltd v Stan James plc [2013] EWCA Civ 27, [2013] 2 CMLR 932, [97]), it may be that Stan James was a primary infringer of the claimant’s copyright: see section IV.A below. 121   CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1018. 119 120

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since Amstrad did not bring about infringing use by any of the users.122 Lord Templeman thought that mere facilitation was insufficient for joint liability. This clearly strikes a real blow against any wider theory of assistance liability. Nonetheless, the reasoning of Lord Templeman is not immune from criticism, particularly since he seems to have relied, at least in part, upon principles of causation to justify his conclusion that procurement, but not assistance, is sufficient for joint tortfeasance.123 Yet the voluntary actions of the primary tort­ feasor could potentially break the chain of causation regardless of whether the defendant induced or assisted the primary tort. Furthermore, it is unclear to what extent Lord Templeman was considering the general law of tort rather than the particular context of the case itself. He considered it to be ‘lamentable’124 that home copying was widespread, and nonetheless rendered illegal by the Copyright Act of 1956. He stated that a ‘law which is treated with such contempt should be amended or repealed’;125 it seems fairly clear from the tenor of his judgment that Lord Templeman felt that the Copyright Act 1956 did not warrant the strong intervention of the law against home copiers. As a result, it was, perhaps, always unlikely that Lord Templeman would impose liability upon any accessory to such a wrong under the Act; this statute explicitly imposed certain forms of accessory liability in defined circumstances, and Lord Templeman stated that the rights of the claimants ‘are to be found in the Act of 1956 and nowhere else’.126 However, the existence of the statute should not exclude general principles of the common law unless this is required on a true construction of the legislation.127 On the facts of CBS, the same result could have been reached without jettisoning assistance liability in its entirety. The claimants failed to identify any primary wrong. Such wrongs were presumed to be many in number, but without identifying the precise wrongs in question, imposing accessory liability may have smacked of inchoate liability, which is entirely unprincipled.128

ii.  Credit Lyonnais Bank Nederland NV (Now Generale Bank Nederland NV) v Export Credits Guarantee Department Even if CBS v Amstrad could be read narrowly in an attempt to preserve the scope of assistance liability in English law, this seems contrived given the subsequent   ibid 1053–1060.   CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1053: ‘the operator of an Amstrad tape recording facility, like all other operators, can alone decide whether to record or play and what material is to be recorded’ (emphasis added). 124   ibid 1060. 125  ibid. 126  ibid. 127   See section II.B.iii above. For some consideration of the common law of accessory liability and statute in the Australian context – eg under Trade Practices Act 1974 (Cth) – see J Dietrich, ‘The Liability Of Accessories Under Statute, In Equity, and In Criminal Law: Some Common Problems and (Perhaps) Common Solutions’ (2010) 34 Melbourne University Law Review 106. 128   Moreover, the mental element required for accessory liability does not appear to have been established either: see section IV below. 122 123



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decision of the House of Lords in Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department.129 A fraud was perpetrated on the bank, Credit Lyonnais. Mr Chong was the principal figure in the fraud; he fabricated contracts of sale, and supported these contracts with fraudulent bills of exchange which were signed by imaginary buyers. Mr Chong effectively sold these bills of exchange to Credit Lyonnais. The fraud was helped by the fact that these bills of exchange were guaranteed by the Export Credits Guarantee Department (ECGD). A senior employee of the ECGD, Mr Pillai, was corrupted by Mr Chong; in return for payment, Mr Pillai ensured that there were no problems with the underwriting of ECGD guarantees. Mr Chong made over £10 million from this fraudulent scheme, but then disappeared. The bank therefore sought to recover its losses from ECGD. The bank’s claim failed at every level up to and including the House of Lords.130 The actual ratio of the House of Lords decision is very narrow: ECGD could not be vicariously liable for the wrongs committed by its employee, Mr Pillai. Lord Woolf made it clear that this was the only question that their Lordships had to decide:131 As the action has proceeded through the courts, many of the issues between the parties have been resolved so that there is now only one issue which we have to determine. This issue was accurately and succinctly identified by Stuart-Smith L.J. in his judgment [1998] 1 Lloyd’s Rep. 19, 36 in these words: ‘Where A becomes liable to B as a joint tortfeasor with C in the tort of deceit practised by C on B on the basis that A and C have a common design to defraud B and A renders assistance to C pursuant to and in furtherance of the common design, does D, A’s employer, become vicariously liable to B, simply because the act of assistance, which is not itself the deceit, is in the course of A’s employment with D?’

Lord Woolf, giving the only reasoned speech, answered this question in the negative. As his Lordship stated, ‘before there can be vicarious liability, all the features of the wrong which are necessary to make the employee liable have to have occurred in the course of the employment’.132 For ECGD to be vicariously liable for Mr Pillai’s wrong, Credit Lyonnais would have had to prove that his mental element, conduct element and the primary fraud were within the scope of his employment.133 This is a salutary reminder that accessory liability is not freestanding and is not inchoate; the primary wrong itself must be established before accessory liability can be found.

  [2000] 1 AC 486 (HL).   There were various heads of claim, including breach of contract, but the only aspect of the case that is relevant to the present discussion is whether ECGD could be liable for the ultimate fraud. 131   [2000] 1 AC 486 (HL), 490. 132   ibid 495. 133  In Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366, [114] Lord Millett distinguished Credit Lyonnais since: ‘The claim failed because the employee’s conduct, taken by itself, was not sufficient to constitute a tort. An essential element in the cause of action, viz the representation, was not made by the employee in the course of his employment’. 129 130

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The result prevents liability being imposed upon a person too far removed from the primary wrong.134 It is significant that the reasoning of the House of Lords remains the same whether or not the assistance is part of a common design between the accessory and the primary wrongdoer. The ratio of Credit Lyonnais is narrow and only concerns vicarious liability. Nevertheless, the thrust of the reasoning of Lord Woolf clearly favoured excluding assistance liability in the absence of a common design, even if this was obiter. Yet it could still be argued that Lord Woolf’s assertion that accessory liability in the criminal law and civil law have different roots is inaccurate, and that his reluctance to consider assistance liability beyond the confines of it being a part of a common design unwarranted, such that a stronger case needs to be made if assistance liability is to be generally rejected. His Lordship’s suggestion that the bank was seeking compensation for a ‘separate tort’ of assistance must not obscure the parasitic nature of accessory liability. On the facts of Credit Lyonnais, it was not even clear that Mr Pillai had knowingly assisted the fraud at all relevant times. As Longmore J, at first instance, pithily remarked, ‘[i]t is very difficult to form any view of Mr Pillai’s state of mind now that he is dead’.135 Given the importance of the mental element, this was always a significant obstacle to the bank’s quest to establish accessory liability.

iii.  Potential for a Wider Approach? CBS v Amstrad and Credit Lyonnais together illustrate that English law is currently reticent about recognising accessory liability in tort for ‘pure’ assistance. This stance was not inevitable.136 It does not correspond with American jurisprudence, for example.137 In the 1980s, at a comparable time to CBS v Amstrad in England, the United States Supreme Court decided Sony Corp of America v Universal City Studios Inc.138 That case concerned Sony Betamax machines, which enabled individuals to record on to VCR. Some individuals used the devices to infringe the claimant’s copyright. The approach in CBS might have led to the rejection of all arguments that Sony could be liable, since Sony would simply have facilitated the primary infringement. The Supreme Court was not so restrictive.139 Instead, it recognised that a party that takes steps to assist the commission of a wrong, knowing that that primary wrong will be committed, runs the risk of ‘contributory liability’.140 This is a logical starting point: it accords with the criminal law141 and can ensure that those who bear responsibility for a wrong, and are culpable, can   See eg Lumley v Gye (1853) 2 E & B 216, 253 (Coleridge J).   [1996] 1 Lloyd’s Rep 200 (QBD), 228. 136   Indeed, it seems contrary to earlier orthodoxy: see section I.A above. 137  American Law Institute, Restatement (Second) of the Law of Torts, vol 4 (St Paul, MN, ALI Publishers, 1979) para 876(b), comment d; Halberstam v Welch 705 F 2d 472 (Col 1983), quoted at n 12 above. 138   Sony Corp of America v Universal City Studios Inc 464 US 417 (1984). 139   Interestingly, the decision in Sony Corp of America v Universal City Studios Inc 464 US 417 (1984) was not cited in CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL). 140   Essentially synonymous with accessory liability for present purposes. 141   Re Aimster Copyright Litigation 334 F 3d 643 (7th Circuit, 2003), 651 (Posner J); see ch 3.III. 134 135



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be made liable. However, the Supreme Court ultimately found that the product supplied by Sony was capable of ‘substantial non-infringing use’, and that the defendants should therefore have a defence to accessory liability.142 This defence ensures that only the culpable incur accessory liability, and prevents undue fetters being placed upon technological innovation.143 A wide conduct element of assistance might place greater emphasis upon defences generally. In Rich v Basterfield, Cresswell LJ warned that ‘[t]he principle of holding a man answerable for the natural consequences of his act might be pushed too far. A coal-merchant could scarcely be indicted for a nuisance, though he knew his customer had a gas-work the chimney of which was a nuisance’.144 It may be that even if the assistance of the coal-merchant was substantial,145 and even if he further satisfied the mental element for accessory liability, he should be able to rely upon a defence.146 The current unwillingness to recognise assistance liability, coupled with the continued acceptance of inducement liability, means that the difficult boundary between inducement and assistance must be confronted. For instance, in Innes v Short and Beal,147 it was considered to be lawful for the defendant to sell powdered zinc, even if he thought it was to be used by the purchasers in a manner which infringed the claimant’s patent. Yet inducement liability arose on the facts of the case since the defendant had asked the purchaser to use the product in that way ‘in order to induce them to buy his powdered zinc from him’.148 The distinction between these situations is very fine; even in the latter scenario, the purchaser might already have decided to infringe, and so the acts of the defendant could still be considered to constitute assistance of the infringement. It may be better to focus upon the mental element required of accessory liability: there should only be accessory liability if the defendant actually knew that the primary tort would occur. It is in the context of the sale of goods that assistance liability is often perceived as being most pernicious. In Townsend v Haworth, Mellish LJ said that ‘[s]elling materials for the purpose of infringing a patent to the man who is going to infringe it, even although the party who sells it knows that he is going to infringe it and indemnifies him, does not by itself make the person who so sells an infringer’.149 142   This defence is similar to the ‘staple article of commerce’ defence established in the context of patents, as was expressly recognised by the Supreme Court: eg Sony Corp of America v Universal City Studios Inc 464 US 417 (1984), 442. 143   For further consideration of this defence, see ch 7.II.C; see the concurring opinions of Justices Breyer and Ginsburg in Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913 (2005). 144   Rich v Basterfield (1847) 16 LJCP 273, 275. 145   Such that it had a causal effect upon the infringement of the claimant’s right sufficient to make the defendant responsible for the claimant’s loss: see ch 2.II.B.iii. 146   See ch 7.II.B. 147   Innes v Short and Beal (1898) 15 RPC 449 (QBD). 148   (1898) 15 RPC 449 (QBD), 452 (Bigham J). See too Sandman v Panasonic UK Ltd [1998] FSR 651 (Ch D), 664 (Pumfrey J); cf Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [51]–[52]. 149   Townsend v Haworth (1875) 48 LJ Ch 770n (CA), 773.

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Similar sentiments have been expressed in subsequent cases;150 the Court of Appeal in Fish & Fish recently emphasised that joint tortfeasance should not arise merely because a person sells a product to another which he knows is going to be used to commit a tort, since this is insufficient to infer a common design.151 Nevertheless, the proposition that knowingly assisting a tort should lead to liability is not entirely alien within this jurisdiction.152 In Bird v O’Neal,153 the Privy Council held that the defendant union officials should be held liable in nuisance for ‘actively assisting’ the picketing of the claimant’s business without it being necessary to establish whether or not a conspiracy was at issue. Similarly, in Marchant v Ford, the Court of Appeal insisted that ‘[t]he allegation of assisting in the publication is exactly the same as an allegation of publication’,154 and held that a defendant could be liable for assisting the publication of a defamatory book if the defendant printed the advertising wrapper to the book, even though the wrapper itself was not defamatory. The Court explicitly rejected the argument that ‘assistance’ only gave rise to criminal, and not civil, liability.155 Assistance liability might also be countenanced in the context of the provision of goods used to commit a tort. In Paterson Zochonis & Co Ltd v Merfarken Packaging Ltd, Oliver LJ was ‘not convinced that [these cases]156 are necessarily also authority for the further proposition that knowingly to supply goods for the purpose of enabling a tort to be committed can never involve any liability on the part of the supplier short of inducement or common design’.157 More recently, in Virgin Atlantic Airways Ltd v Delta Air Lines Inc,158 Jacob LJ discussed the potential liability of a defendant who supplies instructions regarding how to assemble a kit of parts such that the claim150  eg Dunlop Pneumatic Tyre Co Ltd v David Moseley & Sons Ltd (1904) 21 RPC 274 (CA); Belegging-en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd [1979] FSR 59 (CA). 151   Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [50]. 152   In addition to the cases discussed here, see section I.A above. In Scotland, a broader conduct element of assistance or facilitation appears to be more readily accepted: see eg Frank Houlgate Investment Co Ltd v Biggart Baillie LLP [2013] CSOH 80, 2014 SLT 993; E Reid, ‘Accession to Delinquence: Frank Houlgate Investment Co Ltd (FHI) v Biggart Baillie LLP’ (2013) 17 Edinburgh Law Review 388. 153   Bird v O’Neal [1960] AC 907 (PC), 921-922. 154   Marchant v Ford [1936] 2 All ER 1510 (CA), 1512 (Greer LJ). 155   It is suggested that in defamation generally the liability of printers of defamatory material is best explained on the basis of accessory liability. In the famous American case of Russell v Marboro Books183 NYS 2d 8 (1959), liability was imposed upon a defendant who knowingly assisted the tort of defamation by supplying the means to commit that tort. The defendant had photographs of Mary Jane Russell, a famous model, and sold those photographs to Springs, knowing that Springs would alter the photographs and publish them in a manner which was defamatory. The court thought that the ‘substantial assistance’ rendered by the defendant was sufficient for liability. See too R v Paine (1696) 5 Mod Rep 163, 167; Webb v Bloch (1928) 41 CLR 331 (HCA), 364 (Isaacs J). 156  eg Townsend v Haworth (1875) 48 LJ Ch 770n (CA); Dunlop Pneumatic Tyre Co Ltd v David Moseley & Sons Ltd (1904) 21 RPC 274 (CA); Belegging-en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd [1979] FSR 59 (CA). 157   Paterson Zochonis & Co Ltd v Merfarken Packaging Ltd [1986] 3 All ER 522 (CA), 530. See too Fox LJ at 534–535. 158   Virgin Atlantic Airways Ltd v Delta Air Lines Inc [2011] EWCA Civ 162, [2011] Bus LR 1071.



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ant’s patent would be infringed. The orthodox approach insists that facilitation alone does not suffice.159 However, Jacob LJ explicitly stated that160 There is room for development of the law. The question could be highly fact sensitive (eg in the case of an incomplete kit, how incomplete? Would ‘batteries not supplied’ be enough to avoid a claim which required fitted batteries?). It is better to decide the matter on the basis of concrete facts.

It is suggested that liability may well be appropriate in this sort of scenario, but that there is no need to stretch the meaning of ‘procurement’ and ‘common design’ too far; the essence of liability in such scenarios is that knowingly assisting an infringement of a patent represents culpable conduct which should be sanctioned. The law could develop towards an acceptance of liability for assisting a tort.161 One potential catalyst could be the influence of European law, in particular in the context of intellectual property rights.162 For example, the Court of Justice of the European Union has recognised that operators of online marketplaces, such as eBay, can incur liability by providing assistance which optimises the presentation of the offers for sale of counterfeit goods, and thereby constitutes an active role in customers’ purchase of such goods.163 In L’Oréal SA v eBay International AG,164 L’Oréal argued that eBay was responsible for helping vendors to sell counterfeit products which infringed L’Oréal’s trade mark.165 The claim for joint, or accessory, liability was not affected by any European provisions. Arnold J explicitly noted that accessory liability represents one area which has not been the subject of European harmonisation.166 The judge stated that there was no real dispute between the parties regarding the law which was to be applied regarding joint tortfeasorship.167 This is unsur159   Rotocrop International Ltd v Genbourne Ltd [1982] FSR 241 (Patent Ct); Lacroix Duarib SA v Kwikform (UK) Ltd [1998] FSR 493 (Patent Ct). 160   [2011] EWCA Civ 162, [2011] Bus LR 1071, [12]. 161   See eg Dietrich, ‘Accessorial Liability’, above n 9. 162   For example, creating hyperlinks to material on the internet without the permission of the copyright holder in that material might lead to accessory liability in a number of jurisdictions, seemingly based upon the knowing facilitation of the infringement of copyright: see eg LAF Bently et al, ‘The Reference to the CJEU in Case C-466/12 Svensson’ (SSRN, 15 February 2013) at www.papers.ssrn. com/sol3/papers.cfm?abstract_id=2220326, accessed 22 July 2014, para 7, citing as examples Brein v Techno Design [2006] ECDR 21 (Netherlands); Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 (Australia); Napster.no [2005] IIC 120 (Norway). See too eg Crookes v Wikimedia Foundation Inc [2011] SCC 47, [2011] 3 SCR 269; GKY Chan, ‘Defamation via Hyperlinks – More than Meets the Eye’ (2012) 128 LQR 346. 163   L’Oréal SA v eBay International AG Case C-324/09,  [2012] All ER (EC) 501, [123]. 164   L’Oréal SA v eBay International AG [2009] EWHC 1094 (Ch), [2009] ETMR 53 (Arnold J). 165   L’Oréal also argued that eBay was primarily liable for the infringement; such primary liability is largely governed by European directives: Trade Marks Directive (First Council Directive 89/104/EEC of 21 December 1988 codified as 2008/95); see too the immunities provided to ‘information society service providers’ by the E-Commerce Directive (European Parliament and Council Directive 2000/31/ EC of 9 June 2000). 166   [2009] EWHC 1094 (Ch), [2009] ETMR 53, [1], [344]. This was confirmed by AG Jääskinen: L’Oréal SA v eBay International AG Case C-324/09, [2012] All ER (EC) 501, [55]. 167   [2009] EWHC 1094 (Ch), [2009] ETMR 53, [346].

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prising; it is unlikely that a first instance judge would feel able to extend the participation links beyond those established by the House of Lords in CBS v Amstrad,168 but this left the claimants with an uphill struggle to show that eBay either procured the primary wrong or participated in a common design. After all, eBay did not intend to infringe L’Oréal’s trade mark, nor did it induce the primary wrongdoers to sell counterfeit goods: this would have been done anyway. The claim might therefore have been considered to be hopeless at the outset. However, Arnold J did recognise that the case involved ‘the application of wellestablished principles to a new and rather different scenario to those to which they have previously been applied’.169 He clearly felt uncomfortable about rejecting the claim of joint tortfeasorship; the judge expressed ‘considerable sympathy’170 with the contention that, since eBay knew that the infringements occurred, facilitated those infringements, and, indeed, profited from such infringements, it should run the risk of accessory liability. The judge nevertheless concluded that the authorities meant that ‘even in these circumstances’171 there could be no liability. Significantly, Arnold J was attracted by the argument that, having knowingly increased the risk of infringement and profited from it, the consequences of that increased risk should be visited upon eBay rather than L’Oréal.172 A refusal to recognise assistance puts the law of England at odds with elsewhere in Europe,173 and does little to discourage the continuance of infringing activity.174 In a different decision, Arnold J observed that England is seen as something of a ‘light touch’ when it comes to protecting trade marks.175 Such comments might prompt further reflection about the role of knowing assistance, particularly since it is well recognised in other areas of the law. Overt recognition of assistance liability, coupled with appropriate defences, may appear more transparent than stretching the boundaries of ‘common design’, ‘authorisation’ and ‘inducement’ in order to accommodate assistance liability.176

168   [1988] AC 1013 (HL); see also Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [2000] 1 AC 486 (HL). 169   [2009] EWHC 1094 (Ch), [2009] ETMR 53, [369]. 170   ibid [370]. 171   ibid [382]. 172   ibid [370]. 173   cf G Spindler and M Leistner, ‘Secondary Copyright Infringement – New Perspectives in Germany and Europe’ (2006) 37 International Review of Intellectual Property and Competition Law 788; L’Oréal SA v eBay International AG Case C-324/09, [2012] All ER (EC) 501, esp [106]–[117]. 174   It should be noted that in L’Oréal there was ‘no real dispute between the parties’ regarding the common law principles governing accessory liability in this area: [2009] EWHC 1094 (Ch), [2009] ETMR 53, [346]. 175   Interflora Inc v Marks and Spencer plc [2009] EWHC 1095 (Ch), [2009] ETMR 54, [22]. 176   For example, in Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13, [126], Kitchin J was fortunate to be able to find that the defendants had ‘authorised’ the primary infringements in question, but it is clear that this route will not always be available. See too eg Twentieth Century Fox Film Corp v Harris [2014] EWHC 1568 (Ch), [137]–[138] (Barling J).



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IV.  Mental Element As Cane has remarked, ‘the “secondary party” must have acted with deliberation in furthering the tortious conduct’.177 But although the defendant’s conduct must be advertent, it is unclear what mental element the defendant must possess as regards the primary tort. This issue has been obscured by consideration within the umbrella heading of ‘joint tortfeasance’. Originally, it may simply have been presumed that the mental element paralleled that demanded in the criminal context, namely knowledge of the ‘essential matters’ of the primary wrong.178 This seems generally appropriate, and will be considered after the two principal alternatives have been considered. The first is that the mental element of the accessory should mirror that demanded of the primary tortfeasor. The second demands the more restrictive notion of ‘intention’. It is suggested that strict liability is too intrusive into a defendant’s freedom of action, and negligence is perhaps too readily conflated with a primary, freestanding duty of care.

A.  Mirroring the Mental Element of the Primary Tort Carty has written that ‘[t]he courts have refused to create a tort of procuring or authorising another’s tort. Thus, those jointly liable require the same fault and/or knowledge requirements of the main tort’.179 In order to justify such a conclusion, Carty cites the following passage from the judgment of Slade LJ in C Evans & Sons Ltd v Spritebrand Ltd:180 I would accept that, if the plaintiff has to prove a particular state of mind or knowledge on the part of the defendant as a necessary element of the particular tort alleged, the state of mind or knowledge of the director who authorised or directed it must be relevant if it is sought to impose personal liability on the director merely on account of such authorisation or procurement; the personal liability of the director in such circumstances cannot be more extensive than that of the individual who personally did the tortious act.

However, it is not clear that this passage fully supports the conclusion that the mental element of the accessory should mirror that of the primary tortfeasor. Rather, Slade LJ appears to insist that accessory liability cannot be strict, but must be fault-based. The requirement of a mental element of some sort is sensible, but does not inevitably mean that it should be the same for both the accessory and the primary tortfeasor. Slade LJ’s assertion that the liability of the accessory should   P Cane, ‘Mens Rea in Tort Law’ (2000) 20 OJLS 533, 538.   Johnson v Youden [1950] 1 KB 544, 546 (Lord Goddard CJ); see ch 3.IV.B. 179   Carty, ‘Joint Tortfeasance’, above n 7 at 501. 180   Evans & Sons Ltd v Spritebrand Ltd [1985] 1 WLR 317 (CA), 329. 177 178

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not extend beyond that of the primary tortfeasor has little to do with the requisite mental element.181 Dietrich has also raised the prospect of equating the mental element of the accessory with that of the primary tortfeasor in some circumstances:182 It appears to have been accepted by the courts that accessorial liability for the commission of a tort that has a mens rea element (such as malice, as is required in some economic torts) can only be imposed on accessories who procure such conduct with the requisite mental element.

In support of this contention, Dietrich relies upon the Australian case of Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd, in which the court found that where a particular mental element is required of the primary tortfeasor, the defendant can only be liable as an accessory if he or she also has the same state of mind.183 It is not clear whether the English courts would follow the same approach. It would mean that even if the defendant knows that the primary wrongdoer will commit a tort of malice, the defendant will not be liable unless he or she was also acting with malice. It seems preferable for actual knowledge that the primary tortfeasor will commit the relevant tort with malice to suffice: the malice of the primary wrongdoer should simply be relevant to what the defendant must know.184 Indeed, Dietrich does not argue that the mental element of the accessory should always mirror that of the primary wrongdoer. Dietrich recognises that actual knowledge of the primary tort will generally suffice, and that it would be inappropriate to make a defendant liable as an accessory to a primary tort of strict liability if the defendant were not at fault.185 So, where a nurse passes a scalpel to a surgeon who operates upon the claimant without the claimant’s consent, the nurse will not be liable as an accessory unless he or she knows of the lack of consent and that the surgeon’s acts will constitute a trespass;186 the nurse simply performed a lawful   For the validity of this contention, see the discussion of remedies in ch 8.   Dietrich, ‘Accessorial Liability’, above n 9 at 254. 183   Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171, [150] (Redlich J), relying upon the comments of Slade LJ in C Evans & Sons Ltd v Spritebrand Ltd [1985] 1 WLR 317 (CA), the case concerned the tort of conversion. 184   For example in the Scottish case of Frank Houlgate Investment Co Ltd v Biggart Baillie LLP [2013] CSOH 80, 2014 SLT 993, [40], Lord Hodge said: ‘I am satisfied that in our law a person can make himself an accessory to a delict without having the mental element necessary for commission of the delict itself. In Cairns v Henry Walker Ltd 1914 SC 51, the owners of a British ship had been fined when the ship was in Argentina because members of the crew had smuggled goods which a merchant had provided the steward of the ship on credit. The owners successfully sued the merchant to recover the amount of the fine as damages. Lord Skerrington at first instance held that the liability arose from the merchant’s knowledge that the crew intended to sell in a foreign port the goods which he provided on credit. The merchant was aware of their intention to engage in the illegal activity of smuggling. He thus knew of and was an accessory to the wrongful and illegal use of the ship. Lord Skerrington suggested that it would have been sufficient that the merchant did not believe that the steward intended to pay the duty on the goods when he sold them in the foreign port. He referred to the discussion of accession to a criminal act in MacDonald’s Criminal Law (3rd ed.) p.6f and stated that a similar rule should apply in delict. The Inner House upheld his decision.’ 185   Dietrich, ‘Accessorial Liability’, above n 9 at 253–255. 186   ibid 254. 181 182



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act, and the surgeon could equally have performed similarly lawful acts pursuant to the assistance. Accessory liability should not be strict. However, in Football Dataco, the Court of Appeal said:187 Once a party has procured an act which amounts to infringement by another he has effectively made it his own act. Here the acts of infringement by the punters do not require knowledge. I see no reason why Stan James which causes those acts to happen by providing a link which makes infringement inevitable should have a defence [of innocence] not available to those whose acts it procures. This is not a case of secondary liability but one of primary liability along with another.

This might be understood to suggest that because the liability of the customers was strict, the liability of the inducer should also be strict.188 But this seems to be inconsistent with accessory liability in every other area of the law.189 Strict liability unduly limits the freedom of parties to act without fear of liability resulting from the acts of another. The result in Football Dataco is perhaps better explained on the basis that Stan James ‘primarily’ infringed the claimant’s copyright by having the (link to) infringing material on its website. Moreover, it appears that the defendant was not entirely innocent: at the very least, the defendant turned a blind eye to the infringement.190

B. Intention Many instances of joint tortfeasance might be thought to be consistent with a mental element of intention. This is because ‘combination’ requires concerted action to a common end, meaning that the defendant should intend the end pursued.191 In such circumstances, there will often be liability under the tort of conspiracy to injure by unlawful means, or the unlawful means tort, such that accessory liability would be redundant. It is important to focus upon the scope of accessory liability beyond the confines of ‘combination’.

187   Football Dataco Ltd v Stan James plc [2013] EWCA Civ 27, [2013] 2 CMLR 932, [100]. For the facts of the case, see section III.C above. 188   Yet had Stan James carried out checks on Sportradar and believed – albeit mistakenly – that there was no possible issue regarding copyright infringement, then arguably no liability would have arisen: see section IV.C.ii below. 189   For example, when Mr Gye induced Miss Wagner to sign a contract with him, it was clear that no liability should lie unless Mr Gye knew that in so doing Miss Lumley would be committing a civil wrong against Mr Lumley: Lumley v Gye (1853) 2 E & B 216. See also ch 5.I. Admittedly, in Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] UKSC 31, [2013] 1 WLR 1556, [37] Lord Neuberger thought that ‘it is entirely logical that a person who, while wholly innocent of the existence, contents or effect of the patent, is nonetheless secondarily liable if she assists the primary infringer in her patent-infringing acts’. But such remarks should be read in the context of liability for participating in a common design, where concerted action for a common end is required; see further section IV.C.i below and British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479 (HL). 190   Football Dataco Ltd v Stan James plc [2013] EWCA Civ 27, [2013] 2 CMLR 932, [101]. See further section IV.C.ii below. 191   The Koursk [1924] P 140 (CA); see section III.A above.

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The suggestion that the focus should be on ‘intention’ was raised in Grimme Maschinenfabrik GmbH & Co KG v Derek Scott.192 The Court of Appeal had to decide what mental element was required for a defendant to be liable as an accessory to the infringement of the claimant’s patent. This involved consideration of section 60(2) of the Patents Act 1977, but the Court looked beyond the statute and relied upon common law principles, observing that ‘[a]lthough the common law is not applicable to resolve the meaning of section 60(2), the experience of the common law highlights the issues that must be addressed in relation to knowledge and intent.’193 This is a helpful approach: it suggests that the various pockets of English law which have considered accessory liability can learn from one another. That the Court of Appeal drew upon recent guidance from the House of Lords in OBG, in the context of the ‘economic torts’,194 is therefore welcome. Etherton and Jacob LJJ said:195 So far as concerns intention, the cases have shown the need to distinguish between something which has been ‘targeted’ or ‘aimed at’, in the sense of a specific subjective intention, and recklessness or merely a foreseeable consequence. It is established that nothing other than a specific subjective intention is sufficient for liability: OBG at [43] and [46], Mainstream Properties v Young [2005] EWCA Civ 861 at [79].

But this sort of ‘specific subjective intention’ is not required for accessory liability in the contractual context: Gye did not target Lumley, for example.196 Such intention may be sufficient for liability, but it is not necessary.197 Subjective knowledge will also suffice. Grimme might be criticised for conflating the mental element of inducing a breach of contract and that of intentionally causing loss by unlawful means. It would have been preferable for the Court to focus exclusively on the former; the latter has nothing to do with accessory liability.

C. Knowledge The best parallel drawn in Grimme Maschinenfabrik GmbH & Co KG v Derek Scott 198 is with accessory liability in the contractual context, which emphasises the role of actual, subjective knowledge.199 This approach has been echoed in Australia: in Roadshow Films Pty Ltd v iiNet Ltd,200 the High Court of Australia drew analogies with both ‘inducing breach of contract’ and ‘knowing assistance’ in enunciating a mental element of knowledge in the tortious context of being an   [2010] EWCA Civ 1110, [2011] FSR 193.   ibid [106].   See ch 5.II. 195   [2010] EWCA Civ 1110, [2011] FSR 193, [106]. 196   See ch 5.V.A. 197  In Coventry v Lawrence (No 2) [2014] UKSC 46, [2014] 3 WLR 555, [64] Lord Carnwath insisted that motive is irrelevant to deciding whether or not participatory liability prima facie arises. 198   [2010] EWCA Civ 1110, [2011] FSR 193. 199   See ch 5.V.C. 200   [2012] HCA 16, (2012) 248 CLR 42, [110] (Gummow and Hayne JJ). 192 193 194



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accessory to a copyright infringement. Knowledge is a sensible element which can appropriately limit the scope of accessory liability.201

i.  Content of Knowledge The defendant should be aware of the particular tort committed by the primary tortfeasor. If a defendant encourages another to beat up a victim, the defendant must have knowledge of the primary tort of battery in order to incur accessory liability. In Tamiz v Google Inc, the Court of Appeal insisted that particular knowledge was required in respect of a claim in defamation:202 Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process.

In CBS v Amstrad, Lord Templeman said that: ‘Generally speaking, inducement, incitement or persuasion to infringe must be by a defendant to an individual infringer and must identifiably procure a particular infringement in order to make the defendant liable as a joint infringer’.203 This suggests that, sometimes, what the defendant must know need not be quite so specific.204 For example, it may be sufficient that the defendant knows the type of primary tort committed. In University of New South Wales v Moorhouse,205 a university provided a photocopier in its library, and the High Court of Australia held that the library consequently authorised the infringements of copyright which were committed by users who photocopied works which were protected by copyright.206 This result flowed even though the university was not aware of each individual, specific infringement: it was sufficient that the university knew of the specific type of infringement which was committed. Jacob J held that ‘[w]here a general permission or invitation may be implied it is clearly unnecessary that the authorizing party have knowledge that a particular act comprised in the copyright will be done’.207 Since the accessory is further removed from the direct commission of the tort than the primary tortfeasor, it seems only right that the primary tort be identified – at least by type – and that this be known by the defendant. However, some cases 201  eg Frank Houlgate Investment Co Ltd v Biggart Baillie LLP [2013] CSOH 80, 2014 SLT 993, [40] (Lord Hodge). 202   Tamiz v Google Inc [2013] EWCA Civ 68, [2013] EMLR 14, [18] (Richards LJ; emphasis in original), citing Bunt v Tilley [2006] EWHC 407 (QB), [2007] 1 WLR 1243, [23] (Eady J). See too Emmens v Pottle (1885) 16 QBD 354 (CA), 357 (Lord Esher MR). 203   CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1058 (emphasis added). 204   The issue of the exact content of a knowledge requirement has received inadequate judicial attention: Dietrich, ‘Accessorial Liability’, above n 9 at 244–247. 205   University of New South Wales v Moorhouse (1975) 133 CLR 1 (HCA). 206   Significantly, the library failed adequately to supervise the use of the photocopier. 207   (1975) 133 CLR 1 (HCA), 21. This parallels the approach in the criminal law: see ch 2.III.B.i.

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appear to have favoured a broader approach. In Newzbin, the judge held it sufficient for joint tortfeasance that the defendants were ‘content agnostic’;208 that the claimants did not identify particular primary wrongs did not preclude liability.209 This broader approach is perhaps justified in situations where it is virtually inevitable that anyone who uses the defendant’s product will commit an unlawful act. Thus in Newzbin, where virtually all the content on the defendant’s website facilitated the infringement of copyright, the fact that the defendant did not know that any one individual was going to commit a tort was irrelevant: the defendant did not have any substantial doubt that any given user would use the site to commit a tortious act.210 There is no need for the defendant to be aware that the acts of the primary wrongdoer are unlawful in the law of tort. As Mustill LJ said in Unilever plc v Gillette (UK) Ltd, in the context of a patent dispute, ‘[i]t is enough if the parties combine to secure the doing of acts which in the event prove to be infringements’.211 This is sensible: it should not be necessary to show that the defendant understood the intricacies of tort law for liability to arise.

ii.  Standard of Knowledge In Grimme, the Court of Appeal found that knowledge encompasses actual knowledge or a conscious decision not to enquire into facts one is aware of, but does not include negligence, or even gross negligence.212 This is consistent with the general approach adopted in other areas of private law.213 A requirement of actual knowledge is supported by cases concerning the infringement of intellectual property rights.214 For instance, section 97 of the Copyright, Designs and Patents Act 1988 empowers the High Court ‘to grant an injunction against a ser  Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13, [2].   ibid [110], although Kitchin J did say that ‘absent the identification of such specific acts a finding of procurement would not in general be appropriate’. For the relevance of this point to defences, see ch 7.II.C. 210   See similarly Grimme Maschinenfabrik GmbH & Co KG v Derek Scott [2010] EWCA Civ 1110, [2011] FSR 193, [105]–[131], albeit influenced by the inchoate nature of the Patents Act 1977, s 60(2). 211   [1989] RPC 583 (CA), 594. The same approach has been taken in the context of being ‘knowingly concerned’ in the contravention of financial services regulations under Financial Services Act 1986 s 6 (now repealed) and Financial Services and Markets Act 2000 s 380: see eg Securities and Investments Board v Pantell SA (No 2) [1993] Ch 256 (CA), 283 (Goff LJ); Securities and Investments Board v Scandex Capital Management A/S [1998] 1 WLR 712 (CA), 720 (Millett LJ); Financial Services Authority v Fradley [2004] EWHC 3008 (Ch), [2005] 1 BCLC 479, [36]–[41] (John Martin QC; this point was not considered on appeal: [2005] EWCA Civ 1183; [2006] 2 BCLC 616, [26]); Financial Services Authority v Asset LI Inc [2013] EWHC 178 (Ch), [2013] 2 BCLC 480 [177] (Andrew Smith J). 212   Grimme Maschinenfabrik GmbH & Co KG v Derek Scott [2010] EWCA Civ 1110, [106]. 213   See eg ch 4.V.A and ch 5.V.C. 214   See eg L’Oréal SA v eBay International AG Case C-324/09, [2012] All ER (EC) 501. This issue concerned Article 14 of the E-Commerce Directive (European Parliament and Council Directive 2000/31/EC of 9 June 2000), which requires ‘actual knowledge’. The Court of Justice of the European Union noted that liability might ensue where a defendant ‘plays an active role of such a kind as to give it knowledge of, or control over’ infringing material ([113]) and explicitly stated that such knowledge may arise from acts of ‘assistance’ ([120]). 208 209



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vice provider, where that service provider has actual knowledge of another person using their service to infringe copyright’. This requirement of actual knowledge is rigorously employed by the courts. In EMI Records Ltd v British Sky Broadcasting Ltd,215 Arnold J was careful to establish that the defendants had been made aware of the infringement before granting an injunction against them for facilitating the copyright infringement. In Football Dramatico, Sir Robin Jacob observed that Stan James was far from an innocent party since it consciously turned a blind eye to the primary tort:216 Stan James knew that it was getting Live Scores from Sportradar. It did so to enhance the attractiveness of its own website. If, as it did, it chose not to inquire into the details of where Sportradar got its data from and how it was sent to the users, that was a matter for it. But it was a kind of Nelsonian blindness for there were obvious risks. I do not know whether it can look to Sportradar to indemnify it. But again it surely could have expressly sought such indemnification in its contract with Sportradar. If it chose not to do so it was at least taking a risk if all was not well with what Sportradar was providing.

This suggests that a defendant should not consciously disregard particular suspicions that he or she is participating in a primary tort. But it is not clear whether the mental element will be satisfied where a defendant, having made inquiries, mistakenly believes no primary tort is at issue. For example, in Hulton (E) & Co v Jones,217 a publisher was liable for defamation when it published a defamatory piece by an author, even though it did not realise the piece was defamatory and was mistaken as to the existence of the real person whose name had been used in the piece. Yet in this example both the publisher and the author were independently liable for the defamation, so there was no need to resort to accessory liability. Similarly, where a doctor orders an operation to be carried out in the mistaken belief that the patient has consented to the surgery,218 liability would preferably arise due to the attribution of the surgeon’s act to the ordering doctor such that vicarious liability arises. It is suggested that the mistake should generally be sufficient to eliminate the possibility of accessory liability. Of course, if the mistake was deliberately made in bad faith, this would be tantamount to ‘wilful blindness’ and accessory liability might still result.

V.  Explaining Liability It is difficult to discern the core reasons underpinning participatory liability in tort from the case law. Unsurprisingly, however, what discussion there is tends to   EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch), [2013] Bus LR 884.   Football Dataco Ltd v Stan James plc [2013] EWCA Civ 27, [2013] 2 CMLR 932, [101]. 217   Hulton (E) & Co v Jones [1910] AC 20 (HL), see Dietrich, ‘Accessorial Liability’, above n 9 at 255. 218   Dietrich, ‘Accessorial Liability’, above n 9 at 254–255. 215 216

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be consistent with the general principles of accessory liability. These must be considered before assessing their relevance in shaping accessory liability in tort.

A. Responsibility The requirement that the defendant bear some responsibility for the infringement of the claimant’s loss has been explicitly recognised. In Football Dataco, the Court of Appeal were willing to make a defendant liable for the inducement of its customers’ tortious behaviour since this was caused by the defendants, and the customers had little choice regarding the torts committed; Sir Robin Jacob concluded that the defendant ‘is in reality responsible for the punter’s infringement’.219 It has even been suggested that the defendant must have ‘made the infringing act his own’,220 although it is not entirely clear whether only one tort is at issue, or whether the defendant is liable for a distinct, personal tort.221 Responsibility requires a causal link between the acts of the defendant and the commission of the primary tort.222 If the actions of the defendant have no impact upon the tortious infringement of the claimant’s rights, then there is no reason for the defendant to be liable.223 The causal link must be of more than minimal importance.224 This is perhaps particularly significant in the tortious context, since there is a vast array of tortious conduct and a multitude of ways by which a defendant might participate in another’s tort. Not only acts of inducement but also acts of assistance might play a substantial causal role; if A wishes to shoot C, and the only person who can supply a gun is B, then the assistance of B plays an important role in the battery’s being committed. This requirement of causation is also to be found in the recent decision of the Supreme Court in Coventry v Lawrence (No 2):225 Lord Neuberger recognised that the defendants may have ‘indirectly caused’ a degree of nuisance through acts which may be described as

219   Football Dataco Ltd v Stan James plc [2013] EWCA Civ 27, [2013] 2 CMLR 932, [97] (emphasis in original). 220  eg Sabaf SpA v MFI Furniture Centres Ltd [2002] EWCA Civ 976, [2003] RPC 264, [59] (Peter Gibson LJ; reversed, but not on this point, in [2004] UKHL 45, [2005] RPC 10); Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13, [108]. Beatson LJ has pointed out that the statement of Peter Gibson LJ that the defendant must make the tortious act ‘his own’ must be read in context; Peter Gibson LJ was considering only whether there was a common design in the case, and not ‘the quality of the act that will qualify as furthering a common design which has been established’: Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [56]. 221   See ch 2.IV and ch 9. 222   eg Carty, ‘Joint Tortfeasance’, above n 7 at 493: ‘there has to be a causal connection between the procurement and the tort’. See too Frank Houlgate Investment Co Ltd v Biggart Baillie LLP [2013] CSOH 80; 2014 SLT 993, [49]. 223  In CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1058, Lord Templeman voiced his concern that: ‘The purchaser will make unlawful copies for his own use because he chooses to do so. Amstrad’s advertisements may persuade the purchaser to buy an Amstrad machine but will not influence the purchaser’s later decision to infringe copyright’. 224  eg Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [58]. 225   [2014] UKSC 46, [2014] 3 WLR 555.



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assistance or encouragement,226 but thought that this was insufficient for the defendant to bear responsibility for the nuisance.227 Lord Carnwath spoke of ‘a broad, common-sense judgment, based on the facts as a whole, as to whether there was such active involvement by the landlord in the offending activities as to make him jointly responsible in law for their consequences’.228

B. Culpability The requirement of culpability has perhaps been obscured by consideration of accessory liability within joint tortfeasance. A broader perspective – which looks beyond the confines of tort towards analogous instances of accessory liability in other areas of the law – may be helpful. Strict liability might suffice for the primary tort but should not be sufficient for accessory liability.229 The need for the defendant to be blameworthy has been explicitly recognised by the Supreme Court of the United States in Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd.230 In that case, a website facilitated peer-to-peer file sharing in a comparable manner to The Pirate Bay231 and Newzbin.232 The Supreme Court imposed liability upon the defendants, who were behind the website, since they had taken ‘active steps to encourage infringement’;233 the website promoted unlawful uses of the website and relied upon them to generate profit. The Court said that ‘[t]he inducement rule . . . premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise’.234 This statement is important: it clearly highlights the importance of culpability to accessory liability. Innocent defendants will not be discouraged. Liability will only be imposed upon the culpable.  

C.  Protecting Rights Accessory liability further strengthens the rights of claimants which are protected by the law of tort.235 It provides a claimant with a further means of obtaining   See section II.B.ii above.   See eg [2014] UKSC 46, [2014] 3 WLR 555, [29].   [2014] UKSC 46, [2014] 3 WLR 555, [59]. Lord Carnwath dissented on the application of this test but apparently not on the test itself. 229   This is also true regarding intellectual property rights, where primary civil liability is not usually conditioned upon scienter: see eg Patents Act 1977, s 60. 230   Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913 (2005). 231   Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), [2012] 3 CMLR 14, see section III.A above. 232   Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13. 233   Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913 (2005), 924. 234   ibid 937. 235   This is overtly recognised in the intellectual property context. For example the World Intellectual Property Organisation Copyright Treaty, Article 11 obliges member states to provide ‘adequate legal 226 227 228

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adequate redress for the infringement of his or her rights, and might discourage potential accessories from culpably participating in the primary tort. However, accessory liability at common law is only available where there has been an actual infringement of the claimant’s rights; a mere threatened infringement which failed to materialise is not enough. It may be that a hierarchy of rights is already inherent within the law of tort. It is much more difficult to recover for pure economic loss rather than property damage.236 This means that any ‘lesser’ right to economic prosperity might not ground a cause of action against the primary wrongdoer, in which case there would be no primary liability to which accessory liability could attach. But where the claimant can sue the primary tortfeasor, then that right might be bolstered by accessory liability. In some instances, the right protected will be proprietary, but this need not be the case; for example, it seems clear that accessory liability should be able to operate to protect a claimant’s right to bodily integrity and freedom.

D. Deterrence The role of deterrence in tort law is controversial. On balance, it seems as if tort law does have some deterrent effect even in the sphere of negligence, and thus could be even more relevant when the defendant’s conduct needs to satisfy a higher level of culpability, as is the case in accessory liability.237 A balance needs to be struck regarding precisely what sort of conduct ought to be deterred; the claimant’s rights need to be weighed against the defendant’s freedom of action. The deterrence of culpable participation in another’s wrong might be welcomed. As Honoré has remarked, ‘[t]he tort system is one means by which the state, on behalf of the community, seeks to reduce conduct that it sees as undesirable’.238 Stapleton has argued that the law is rightly concerned to ensure that causally important parties, rather than less (causally) important ‘peripheral parties’, compensate the victims of torts: peripheral parties should not owe a duty to the ultimate victim of the tort.239 It is important to note that this argument does not undermine participatory liability. Accessories do not owe a free-standing duty of care to the protection and effective legal remedies’ against ‘the circumvention’ of technological measures used by authors to protect their rights. See too the Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention; JC Ginsburg and S Ricketson, ‘Inducers and Authorisers: A Comparison of the US Supreme Court’s Grokster Decision and the Australian Federal Court’s KaZaa Ruling’ (2006) 11 Media & Arts Law Review 1. 236   Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 (CA). 237   See eg WM Landes and RA Posner, The Economic Structure of Tort Law (Cambridge MA, Harvard University Press, 1987) 9–13; P Cane, Tort Law and Economic Interests, 2nd edn (Oxford, Clarendon Press, 1996) 469–473; GT Schwartz, ‘Reality in the Economic Analysis of Tort Law: Does Tort Law Really Deter?’ (1994) 42 UCLA Law Review 377. cf SD Sugarman, ‘Doing Away with Tort Law’ (1985) 73 California Law Review 555. 238   T Honoré, ‘The Morality of Tort Law’ in DG Owen (ed), Philosophical Foundations of Tort Law (Oxford, Clarendon Press, 1995) 76. 239  J Stapleton, ‘Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence’ (1995) 111 LQR 301.



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victims of the primary tort. Liability is parasitic upon the primary wrong of another, and the causal effect of the accessory should be more than minimal. Stapleton justifies shielding peripheral parties from liability on the basis that both the expansion of liability for omissions and the dilution of the deterrent function of tort law should be avoided.240 However, both rationales are of reduced importance as regards accessories. An accessory will, in the vast majority of cases, have positively done something to participate in the primary tort, so the scope of liability for omissions is unlikely to be greatly expanded. It is strongly arguable that imposing accessorial liability might actually further the goal of deterrence if only knowing, as opposed to merely negligent, participation leads to liability. This stringent requirement should placate fears of an unreasonable burden being imposed upon third parties.241

E.  Economic Efficiency It may be that accessory liability encourages the most economically efficient solution. In the decision of the High Court of Australia in Roadshow Films Pty Ltd v iiNet Ltd, Gummow and Hayne JJ said that ‘[l]iability as a secondary infringer of copyright has been said to have an economic rationale similar to that of the tort of inducing breach of contract, namely a lower cost of prevention of breach of the primary obligation’.242 The defendant accessory may be best placed to ensure that the claimant’s loss not occur, and therefore the ‘least cost avoider’; the defendant has a choice whether or not to risk accessory liability. However, arguments based upon economic efficiency are open to criticism, inconclusive, and may not reflect the goals of tort law.243 They downplay non-economic considerations which justify accessory liability.

VI.  What Shape should Accessory Liability Take? The positive rationales for liability examined above are similar to those already considered in the context of a primary breach of contract or breach of an equitable obligation. A broad conduct element of liability which encompasses assistance should be endorsed; liability should be restricted principally by demanding that the defendant actually know of the elements constituting the primary tort, with a narrow extension made to include the conscious disregarding of known facts. This is consistent with the key concerns of responsibility, culpability and the desire to protect the claimant’s rights. A defence of justification should   ibid 302.   cf the speech of Lord Goff in Smith v Littlewoods Organisation Ltd [1987] AC 241 (HL). 242   [2012] HCA 16, (2012) 248 CLR 42, [110], citing Landes and Posner, The Economic Structure of intellectual Property Law (Cambridge MA, Harvard University Press, 2003) 118–119. 243   See ch 2.I.G. 240 241

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also be available; in some circumstances a defendant might know that he or she is participating in a tort, but be justified in doing so.244 ‘Knowing assistance’ in tort would be consistent with the shape of accessory liability supported in previous chapters, but does not reflect the current law. Although a strong case could be made that the mental element of liability is knowledge, orthodoxy clearly favours the exclusion of assistance from participatory liability in the absence of authorisation or combination.245 It is not clear why rights protected by the law of tort are worthy of less extensive protection than other private law rights. Are intellectual property rights invariably ‘weaker’ than contracts? Is the right to bodily integrity not ‘stronger’ than the right of a principal in a fiduciary relationship? The key concern in the law of tort appears to be that recognition of assistance liability would expand the scope of accessory liability and render it too extensive.246 This will be considered first. It will then be possible to offer some preliminary thoughts on the relationship between the approach to participatory liability in tort law and other areas of the law.

A.  Concerns Surrounding Certainty Assistance liability is sometimes feared because it could inhibit legitimate activities.247 McBride and Bagshaw give the example of a company such as Twitter, which, by maintaining a user’s Twitter account, assists that user to publish information that violates a claimant’s right to privacy.248 It would be unfortunate if Twitter could be liable simply for hosting an account: Twitter can be a useful thing. However, accessory liability would not invariably be imposed in such circumstances. It is unlikely that Twitter possesses the necessary mental element for liability. It is not good enough to show a vague suspicion that some users might sometimes exploit the technology to commit a tort; more particular knowledge is required. If this is satisfied, and Twitter is made aware of the unlawful conduct, then liability may well be appropriate: after all, why should Twitter be allowed knowingly to facilitate the tortious publication of information? If Twitter is to escape liability, it might need to show that it can rely upon a defence of justification. Recourse to such a defence clearly places an onus on Twitter to prove that the requirements of the defence are satisfied. It does not seem unreasonable to expect a defendant who knowingly assists a tort to bear the burden of explaining his or   See ch 7.II.  In Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [1998] 1 Lloyd’s Rep 19 (CA), 36 Stuart-Smith LJ said: ‘In civil law the aider and abettor will be liable if what he had done is pursuant to and in furtherance of the common design to commit the tort’. 246   Beatson LJ has warned against ‘indeterminate and uncertain liability’: Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [45], [58]. 247   eg ibid [44] (Beatson LJ). 248   N McBride and R Bagshaw, Tort Law, 4th edn (Harlow, Pearson, 2012) 869, 863. 244 245



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her actions. The general principle should be that a defendant ought not knowingly participate in a tort. Any uncertainty that arises from a flexible defence should be reduced through further consideration of the role and ambit of the available defences. Given the stringent mental element demanded of an accessory, only rarely will a defendant who possesses the requisite mental element be able successfully to make out a relevant defence.249 McBride and Bagshaw suggest that the law should not impose accessory liability upon a person who assists a stabbing by throwing the primary tortfeasor a knife because this would require the recognition of ‘assistance’ liability which could lead to unpredictable results and be inimical to legal certainty.250 It may well be difficult to strike a balance between a desire to achieve just outcomes on particular facts, and a need for certain rules that may be more restrictive in order to be sure that liability does not expand too far. But it seems preferable for the law to be sufficiently wide to encompass cases such as that involving the knife, and the flexibility introduced by a justificatory defence does not seem unduly troublesome.251 Moreover, any uncertainty that could arise from explicitly recognising assistance liability might be outweighed by the removal of the uncertainty that presently plagues the law concerning the scope of ‘inducement’, ‘combination’ and ‘authorisation’. None of these ‘participatory links’ is so restrictively defined that the ambit of liability is kept within narrow confines, and courts seem willing to expand their boundaries in suitable cases such that liability for knowing assistance is sometimes, in effect, recognised. But this approach is opaque, confusing and unpredictable. Instead of distorting the language of ‘inducement’, for example, it would be preferable overtly to recognise assistance liability.252 In any event, ‘assistance liability’ is unlikely to lead to a great expansion in the ambit of accessory liability in tort. Liability is restricted by a stringent mental element, and many acts of assistance play an insufficient causal role in the tortious infringement of the claimant’s rights for the defendant to bear responsibility for the loss suffered. For example, a nuisance could be committed by the crowd in a stadium making too much noise. But the person who worked on the turnstiles and simply admitted people into the stadium, thereby facilitating the nuisance, should not incur any liability. This might be explained on the basis that the admission into the ground played an insufficiently significant, or too remote, role in the commission of the primary tort.253

  For further discussion of available defences, see ch 7.   McBride and Bagshaw, Tort Law, above n 248 at 864. 251   See ch 7.II. 252   As a practical matter, this would avoid the difficulties inherent in distinguishing between inducement and assistance. 253   Alternatively, the turnstile worker may lack the requisite mental element, or have a defence of acting reasonably in the course of his or her employment: see ch 7.II.B. 249 250

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B.  Consistency with the Criminal Law Adopting ‘knowing assistance’ in the law of tort would accord with the approach taken in the criminal context. This might seem particularly appropriate where the primary tort is also a criminal offence. It appears odd that, although the criminal law may find that an assister bears responsibility for the offence, the civil law might not.254 This smacks of inconsistency, something which the law should try to avoid.255 In the absence of any persuasive authority to the contrary, one would expect the civil and criminal law to be in harmony.256 Accessory liability finds its roots in the common law, and the same principles were originally applied to both criminal and civil cases.257 Where a criminal court has established that the defendant bears some responsibility as an accessory for the infringement of the claimant’s rights, it seems entirely justifiable for the victim to expect to recover damages from that defendant. Once the hurdle of criminal liability has been cleared, it should be natural for civil liability to follow; after all, a crime has to be proved beyond reasonable doubt, whereas a tort only needs to be proved on the balance of probabilities. Criminal liability engenders a stigma of much greater degree than that related to civil liability; criminal punishments are generally more severe than civil liability, which is not (normally) concerned with punishment but simply compensating a wronged victim. The reluctance of the courts to embrace assistance liability may be explained by the fact that the accessory could be jointly and severally liable with the primary wrongdoer.258 In a situation where the primary wrongdoer has no money, but the accessory is extremely rich, the victim would be able to sue the accessory for the full extent of his or her injuries, rather than just the proportionate amount which 254   A private prosecution may be brought against an accessory who has participated in an offence, and it may seem odd if the chances of a successful action are higher in the criminal law than in the private law. 255   See eg Hall v Hebert [1993] 2 SCR 159 (SCC); Gray v Thames Trains Ltd [2009] UKHL 33, [2009] AC 1339 (in the context of the illegality defence). 256   See eg CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] Ch 61 (CA), 83 (Sir Denys Buckley, dissenting). See too Yullie v B&B Fisheries (Leigh) Ltd (The Radiant) [1958] 2 Lloyd’s Rep 596 (P, D and Admlty), 618–619 (Willmer LJ); Rafael v Verelst (1776) 2 Wn Bl 1055, 1058 (De Grey CJ). The Swedish court, in the context of the recent The Pirate Bay litigation has stated that: ‘Anyone who has caused solely a loss of wealth – a financial injury which arises without associated injury to person or property – through the perpetration of a crime must pay compensation for the loss. Under the general principles governing the law of torts, there is no obstacle to ordering each and every one complicit in the infringement of a copyright to pay compensation’ (Stockholm District Court of 17 April 2009 in Case No. B 13301-06, 62). 257   R v Manley (1844) 1 Cox CC 104; R v Mazeau (1840) 9 C&P 676; DJ Ibbetson, A Historical Introduction to the Law of Obligations (Oxford, Oxford University Press, 1999) 180; Sales, ‘The Tort of Conspiracy’, above n 27 at 509–510. cf Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [2000] 1 AC 486 (HL), 500 (Lord Woolf). See ch 2.II. 258   Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [44] (Beatson LJ). However, it is feasible that an accessory should only be liable as a concurrent and several tortfeasor, as occurred in The Koursk [1924] P 140 (CA): see section III.A above. This is related to the question of whether accessory liability is primary or secondary, and what the appropriate remedy should be; see further ch 8.



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could be attributed to the wrong of the accessory. This might seem somewhat unfair, particularly since the responsibility of the assister may be much less than that of the primary tortfeasor. To combat such perceived unfairness, some jurisdictions are moving away from joint and several liability towards a system of proportionate liability.259 However, English law strongly favours joint and several liability.260 Given that an accessory who compensates a victim is able to claim contribution from the primary wrongdoer, the distinction between proportionate liability and joint and several liability is most pronounced when the primary party is insolvent and a claim in contribution would be worthless. Yet there are good reasons why the law might put the risk of an insolvent primary party upon the accessory rather than the victim: after all, the victim has done nothing wrong, whereas the accessory has knowingly assisted the primary wrong.261 The Court of Appeal considered the criminal/civil law divide in Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department.262 After a long exposition of the authorities, Hobhouse LJ said:263 The criminal law for obvious policy reasons goes further than the civil law. Acts which knowingly facilitate the commission of a crime amount to the crime of aiding and abetting but they do not amount to a tort or make the aider liable as a joint tortfeasor.

This significant statement was strictly obiter and should not be endorsed. It is unsatisfactory simply to assert that there are ‘obvious policy reasons’ for a difference between the civil and criminal law without stating what they are. Such defective reasoning was replicated in the House of Lords by Lord Woolf.264 It is readily accepted that the paradigm cases of criminal and civil law differ, as do some of their underlying rationales, but when considering whether someone should bear responsibility for a wrong which is both a criminal and civil wrong, what are the ‘obvious policy reasons’ for the criminal law going further than the civil law? It would be easier to comprehend why the criminal law should be more restrictive than the civil law, given the severe nature of a criminal sanction, but Hobhouse LJ suggests that the exact opposite is true. Carty has rightly observed that the conclusion to be drawn is that ‘the vendor of a knife who knows of the murderous use to which the purchaser wishes to put it 259  See eg American Law Institute Restatement of the Law: Torts – Apportionment of Liability (San Francisco,California, 1999) §17; K Barker, P Cane, M Lunney and F Trindade, The Law of Torts in Australia, 5th edn (Victoria, Oxford University Press, 2012) 799–804; N Shaw, ‘Joint and Several Liability Shunned Overseas’ (2005) 16 Construction Law 29. 260   See too the recent report of the New Zealand Law Commission, Liability of Multiple Defendants (NZLC Report No 132, 2014). 261   See further ch 8. The Law Commission has decided not to recommend any change to a general principle of joint and several liability, and it seems inappropriate to gnaw away at this long-standing principle in a piecemeal manner: Department of Trade and Industry Consultation Document, Feasibility Investigation of Joint and Several Liability by the Common Law Team of the Law Commission (London, HMSO, 1996). 262   [1998] 1 Lloyd’s Rep 19 (CA). 263   ibid 46. 264   [2001] AC 486 (HL), 500.

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would not be liable to the victim in the civil law’.265 That she does so untroubled is surprising.266 Nevertheless, Stevens has sought to provide five reasons why the criminal and civil law should remain distinct.267 First, Stevens points out that there are no inchoate torts whereas there are inchoate crimes.268 This is irrelevant to the present discussion: the issue is whether an accessory should bear responsibility for a primary wrong which has actually been committed.269 The common law does not impose either criminal or civil liability upon an accessory if the envisaged primary wrong fails to materialise.270 Secondly, Stevens argues that only the act of the primary party, not the liability or wrong of the primary party, is attributed to the accessory in the civil law, in contrast to what occurs under the criminal law. However, even if this difference does represent the law,271 it is unclear why there should be a difference between the criminal and civil law when considering the method by which an accessory is made liable. Stevens’ assertion that the civil law is different because liability may be imposed despite the absence of any ‘primary’ wrongdoer is unconvincing; the criminal law may also impose liability upon an accessory where the ‘primary’ offender has a special defence.272 Thirdly, Stevens highlights the fact that case law suggests that the modes of participation necessary to establish accessory liability differ across the criminal/ civil divide. For example, Stevens argues that while authorisation suffices to make an accessory liable for the primary wrong, this is insufficient for criminal liability. This may be doubted: acts of authorisation, at least, would probably be considered to assist or encourage the principal offence. In any event, this argument only serves to show that the requirements necessary to establish accessory liability under the criminal law are, if anything, more stringent than those in civil law. This strengthens the point that wherever there is criminal accessory liability for an offence which is also a tort, there should be tortious liability.273 Fourthly, Stevens places weight on the fact that in tort law a joint tortfeasor is liable as a principal for the tort, and assumes that if an assister were to be liable for the primary tort he would be so as a joint tortfeasor, whereas in the criminal law   Carty, ‘Joint Tortfeasance’, above n 7 at 498.   cf Rogers, Winfield and Jolowicz, above n 55 at para 21-3, quoted above at section III.A. 267  Stevens, Torts and Rights, above n 9 at 256–257. 268   cf [1998] 1 Lloyd’s Rep 19 (CA), 46 (Hobhouse LJ). 269   See similarly Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [43] (Beatson LJ). 270   At least, not as an accessory rather than a primary party: see the old common law crime of incitement and the Serious Crime Act 2007, pt 2. 271   Which is not totally clear. For instance, Hobhouse LJ in Credit Lyonnais Bank Nederland NV (now known as Generale Bank Nederland NV) v Export Credits Guarantee Department [1998] 1 Lloyd’s Rep 19, (CA) 42 remarked that ‘persons who participate in a criminal joint enterprise are, through the attribution to them of the actus reus, in reality joint principals with the primary actor’. 272   See ch 3.V.A. 273   Although Stevens gives the converse example of the shopkeeper who sells a firearm perhaps being liable in the criminal law but not the civil law, he does not discuss this difference in any detail. It is suggested that such a difference is not justified. 265 266



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liability is secondary.274 The nature of the liability of the accessory is a difficult issue, but arguments about the precise nature of tortious liability should not distract from the essential argument that liability for assisting a crime which is also a tort should give rise to a civil claim in damages. Fifthly, Stevens observes that the terminology used differs across the criminal/ civil law divide: the criminal law tends to use the term ‘principal’ whereas the civil law prefers ‘agent’. Whilst true, this is clearly not a solid basis for a radical distinction between civil and criminal liability for the same wrong. Terminology is flexible and can evolve alongside the development of a coherent doctrine of accessory liability. Further justification for the criminal/civil law divide in this area is required. Indeed, the lack of well-reasoned policy decisions to support a divide between criminal and civil law has been highlighted by Beatson LJ in Fish & Fish.275 His Lordship suggested that ‘[a] number of possible reasons of varying force might be deployed to justify the difference’,276 but did not fully endorse any. Beatson LJ raised differences as regards the variable weight placed upon deterrence and the available remedies. The latter may be the most telling as a practical issue,277 but, fundamentally, the core issues remain the same across the civil/criminal law divide: does the defendant’s culpable participation in a wrong make the defendant responsible for the infringement of the claimant’s right?278

C.  Consistency with the Private Law ‘Knowing assistance’ in tort would be consistent with the thrust of accessory liability in the contractual and equitable spheres. Given the difficulties inherent in distinguishing between inducement and assistance, it would be unsurprising for the law effectively to recognise assistance liability. Stevens has argued that the principles of attribution mean that any analogy between assisting breaches of contract or fiduciary duties and the commission of a tort is inherently flawed. This is because, although both Lumley liability and dishonest assistance are accessorial in nature, they are distinct from the primary wrong, which cannot be attributed to the accessory: neither the contractual nor fiduciary obligations can legitimately be attributed to the accessory.279 A breach of contract can only be committed by a 274   Although Accessories and Abettors Act 1861, s 8 deems that an accessory ‘shall be liable to be tried, indicted, and punished as a principal offender’ in English law (emphasis added). 275   Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [43]. 276   ibid [44]. 277   See ch 8; CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1059 (Lord Templeman). 278   This question seems to be crucial even if the goals of the criminal law and tort law do not precisely overlap, and the criminal law seems more focussed on agents whereas tort law focusses on victims: Cane, ‘Mens Rea in Tort Law’, above n 177. 279  Stevens, Torts and Rights, above n 9 at 257. cf Dietrich, ‘Accessorial Liability’, above n 9 at 233– 234; SJ Baughen, ‘Accessory Liability at Common Law and in Equity – “The Redundancy of Knowing Assistance” Revisited’ [2007] Lloyd’s Maritime and Commercial Law Quarterly 545, 551.

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contracting party, and a breach of fiduciary duty can only be committed by a fiduciary. By contrast, a tort can be committed by anybody. Stevens concludes that this makes tort different; the act of the primary tort can be attributed to the assister, and the assister can then be liable in tort for that tort. On the other hand, someone who assists a breach of contract is not liable in breach of contract. Such reasoning might reveal something about the remedies or defences available.280 But even if this were to be accepted, it does not necessarily mean that assistance liability should not be recognised, regardless of how it is to be classified. After all, the accessory would not incur any liability without the existence of a primary tort ‘directly’ committed by another. Parasitic, participatory liability is therefore at issue. Since a person can be liable as an accessory to a crime, a breach of contract, and a breach of fiduciary duty, it is logical and consistent to consider that a person might be liable as an accessory to a tort, and that assistance might be sufficient for accessoryship. In Fish & Fish, Beatson LJ suggested two possible reasons why tort law might not follow equity’s lead in welcoming assistance liability. First, ‘the traditional role of equity in protecting trusts and the beneficiaries of other fiduciary relationships’281 is not present in tort law. But surely the right to bodily integrity and freedom, for example, should be ranked ‘higher’ than a principal’s expectation of fiduciary loyalty? Accessory liability might be just as important in the context of battery or false imprisonment282 as in breach of fiduciary duty. The second factor identified by Beatson LJ is ‘the difficulty of holding the line that only actual knowledge of the intent to commit the specific tort will suffice to establish liability against arguments that lesser forms of knowledge should suffice’.283 As Weir put it, ‘accessory liability in the criminal law has not been joyous, nor has it in equity’.284 The difficulties inherent in establishing a stable mental element have caused concern that accepting assistance liability in tort will lead to similar problems. But this need not be so. The solution would seem to be a stricter approach to what the mental element entails; after all, inducement also requires a mental element. Jettisoning assistance liability may insufficiently protect the claimant’s rights, allow culpable defendants who bear some responsibility for the wrong to evade liability, and leave tort law standing in isolation.

D. Conclusions There is no reason for tort law to be stranded from the principles of accessory liability which underpin private law generally. ‘Combination’, ‘authorisation’ and ‘inducement’ are all now sufficiently malleable for judges, in effect, to recognise   See chs 7 and 8.   Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [44]. 282   See eg Boyce v Douglass (1807) 1 Camp 58. 283   Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [44]. 284   T Weir, Economic Torts (Oxford, Clarendon Press, 1997) 32. 280 281



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assistance liability where they see fit. Acts of assistance can establish a nexus of responsibility, and it would be preferable for this to be recognised openly. It is important to buttress ‘knowing assistance’ with robust defences and further consideration of the remedies available,285 but such issues should be confronted headon, and not side-stepped by artificially narrowing the scope of liability. In most situations, a defendant who culpably assists a primary tort should incur liability. This approach may have provided a better focus for inquiry in the seminal case which restricts assistance liability, CBS v Amstrad. If it had been found that Amstrad assisted the primary infringement of the claimant’s copyright in a more than minimal way, attention would have shifted to Amstrad’s mental element. The requirement of subjective fault means that the claim would have been very difficult to prove. This is appropriate, and represents a high hurdle and thus real bar to claims brought against accessories. However, Amstrad deliberately put the following bold warning on the machines: ‘It is illegal to copy copyrighted material. This machine should only be used to copy material you have generated yourself’. The Chairman of Amstrad, Alan Sugar, later revealed in his autobiography that:286 This was a cheeky tactic. People would read it and think to themselves, ‘hey, that’s a good idea! I can use this machine to copy my mate’s Abba cassette.’ That was the effect the warning had, yet there was I, keeping within the law, whiter than white, telling people that the product should not be used for that purpose. Is that called reverse psychology?

Such a revelation is unsurprising. But even had it been known at the time, it may not have affected that outcome of the case. Amstrad might have consciously turned a blind eye to facts it knew, but it was surely justified in selling a lawful product which had substantial lawful uses in circumstances where it did not know whether any particular customer would use the product to commit a particular tort.287 The fact that Amstrad’s actual mental state was not known to the claimants is telling in itself: the difficulties inherent in proving actual knowledge ensure that the ambit of liability does not extend too far.

285   Since there is only one ‘pie’ of liability, primary tortfeasors may also join accessories as defendants in an attempt to pass on at least some of the liability to the accessory: see ch 8.V. 286   A Sugar, What You See Is What You Get: My Autobiography (London, Macmillan, 2010) 230. Thanks to Amy Goymour for keeping me up-to-date with all things Apprentice-related. 287   cf Sony Corp of America v Universal City Studios Inc 464 US 417 (1984). See ch 7.II.C.

7 Defences The defences to accessory liability have not received the attention they deserve. Yet ‘[n]o account of criteria of legal liability . . . is complete without reference to answers. Answers are an integral part of judgments of responsibility’.1 The most significant defence to accessory liability is that of justification. A broad defence of justification is of great importance to a coherent scheme of accessory liability. It helps to protect defendants’ freedom of action; defendants who knowingly participate in a primary wrong may not deserve to incur civil liability if they acted entirely reasonably and properly. It is not unduly onerous for such defendants to bear the burden of justifying their actions: it should be recognised that it is prima facie wrong knowingly to participate in wrongdoing, and therefore legitimate to require a defendant to justify such conduct.2   Whether the claimant is the victim of a tort, equitable wrong or breach of contract, the defendant might be able to justify his or her participation in that wrong. It is therefore helpful to analyse the factors to be considered across the law of obligations in this chapter. This methodology is particularly useful given the paucity of judicial discussion of defences; each area of the law of obligations would do well to consider the approach in neighbouring domains. The defence of justification is most clearly recognised in the contractual context,3 whilst in the equitable sphere, Lord Nicholls astutely observed in Tan that ‘[u]nless there is a very good and compelling reason, an honest person does not participate in a transaction if he knows it involves a misapplication of trust assets to the detriment of the beneficiaries’.4 Such a ‘very good and compelling reason’ provides a justification for the accessory’s participation in a wrong. It would be consistent for a similar defence to be recognised as regards accessory liability in tort.5 Whether or not such a defence exists in tort law has, however, been largely obscured under the umbrella of ‘joint tortfeasance’.6   P Cane, Responsibility in Law and Morality (Oxford, Hart Publishing, 2002) 90–91.   See R Bagshaw, ‘Inducing Breach of Contract’ in J Horder (ed), Oxford Essays in Jurisprudence, 4th edn (Oxford, Oxford University Press, 2000) 144; K Campbell, ‘Offence and Defence’ in IH Dennis (ed), Criminal Law and Justice: Essays for the WG Hart Workshop, 1986 (London, Sweet & Maxwell, 1987) 73. 3   See eg OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [193]. 4   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 389. 5   An outline of a justificatory defence has received statutory recognition in, for example, Patents Act 1977, s 60; see further section II.C below. 6   This is symptomatic of the treatment of defences in tort law more generally: see J Goudkamp, Tort Law Defences (Oxford, Hart Publishing, 2013). 1 2



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That the accessory might rely upon defences not available to the primary wrongdoer, and vice versa, gives further support to the argument that the wrong of the accessory is distinct from – albeit parasitic to – the wrong of the primary wrongdoer. However, in Football Dataco Ltd v Stan James plc,7 Sir Robin Jacob said: ‘I see no reason why [the defendant] which causes those acts to happen by providing a link which makes infringement inevitable should have a defence not available to those whose acts it procures’. This might suggest a contrary approach. But, as seen in chapter six, the analysis of the Court of Appeal is somewhat difficult.8 The better view is that a defendant could feasibly be justified in procuring a tort in order to protect superior rights,9 even if the ‘direct’ tortfeasor could not rely upon a similar defence. The defences available to the accessory and primary wrongdoer should be analysed separately.

I.  Defences Available to the Primary Wrongdoer Cooper has written that ‘[w]ithout primary liability there can be no secondary liability, and so any defence to the liability of the primary wrongdoer will also be a defence to the liability of the secondary party’.10 At first blush, this statement seems entirely sensible: if there is no primary liability, then there is nothing to which parasitic accessory liability can attach. However, even though it will generally be the case that a claim against an accessory will fail if the claim against the primary wrongdoer is thwarted by a defence, some claims against accessories may nevertheless succeed. The claimant may have suffered a wrong, even if the primary wrongdoer is not made to pay for that wrong, and it is to that wrong that accessory liability can attach. The defence a primary wrongdoer has may be personal to him or herself, and not avail an accessory. For example, a trustee who has acted in breach of trust may have a defence under section 61 of the Trustee Act 1925 if he or she acted honestly and reasonably and ought fairly to be excused for the breach of trust. Such a defence is personal to the trustee,11 and of little help to an accessory. In Re Smith,12 the trustee was a widow who lived in the country and employed a firm of solicitors to act as her agents. The solicitor’s clerk fraudulently obtained the trustee’s signature on certain cheques and induced her to initial alterations to the cheques. He then absconded with the money. The trustee was held to have committed a breach of trust, but her liability was excused. If the clerk had been sued as an accessory to   Football Dataco Ltd v Stan James plc [2013] EWCA Civ 27, [2013] 2 CMLR 36, [100].   See ch 6.IV.A; Sir Robin Jacob explained that he viewed the case as an instance of ‘primary’ and not ‘secondary’ liability. 9   See section II below. 10   D Cooper, Secondary Liability for Civil Wrongs (PhD thesis, University of Cambridge, 1996) 160. 11   Trustee Act 1925, s 61: ‘the court may relieve [the trustee] either wholly or partly from personal liability’. 12   Re Smith (1902) 86 LT 401 (Ch D). cf Re Stuart [1897] 2 Ch 583, 590. 7 8

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the breach of trust, the morally innocent quality of the trustee’s breach of trust should clearly not afford him a defence. Similarly, defences in tort law might be personal to the primary wrongdoer. Although it has been argued that ‘justifications deny wrongdoing’,13 the better view seems to be that a wrong might nevertheless have been committed,14 and that an accessory will not invariably escape liability even where a primary wrongdoer has a justificatory defence.15 For instance, a ‘primary wrongdoer’ may escape liability on the basis of self-defence in assaulting an aggressor threatening to attack him or her. Whether or not a defendant who encourages such force can also benefit from the defence of justification might depend upon whether or not that defendant realised that defensive force was justified.16 In the rare situation where the defendant knew that the aggressor did not in fact represent any real threat – despite objective appearances to the contrary – and nevertheless encouraged the use of force in order to harm the aggressor, accessory liability may still be appropriate. If the defendant knew that the gun the aggressor was brandishing was unloaded, it may be reasonable for the ‘primary wrongdoer’ to use force to protect himself against an apparent threat, but the defendant would not be similarly justified in throwing a weapon to the ‘primary wrongdoer’ to be used upon the aggressor. In contract law, there are few defences available to a party who breaches his or her contractual obligations. If the claimant ought not be able to enforce the contract, then the contract is likely to be vitiated in some way; the contract could be void, voidable or unenforceable. These issues were discussed in chapter five;17 the focus rests upon the contract itself rather than a party’s personal defence to liability. Of more immediate relevance is the impact of an exclusion clause. ‘Exclusion clauses’ cover a wide variety of terms, and may be found both in contracts and trust instruments, for example. If a clause excludes a duty that would ordinarily be owed, then the contracting party or fiduciary will not owe that particular duty to the claimant; acting inconsistently with that ‘usual’ obligation will therefore not constitute a primary wrong and no accessory liability can arise. In this sense, exemption clauses may provide a defence which can be relied upon by the accessory. On the other hand, where the clause merely excludes or limits liability (rather than the duty) then a primary wrong will still have occurred, even though the primary wrongdoer may not have to compensate (fully) the claimant as a result of the exclusion clause, and accessory liability can arise.18 13  Cane, Responsibility, above n 1 at 90; see too A Ripstein, Equality, Responsibility and the Law (Cambridge, Cambridge University Press, 1999) 138: ‘[j]ustifications exculpate by showing that an apparently wrongful act was not wrongful’. 14  Goudkamp, Tort Law Defences, above n 6 at ch 4; J Gardner, Offences and Defences: Selected Essays in Philosophy of Criminal Law (Oxford, Oxford University Press, 1007) ch 4. 15   Current orthodoxy seems to be that tort law does not recognise excuses: see Goudkamp, Tort Law Defences, above n 6 at 82–101. 16   See eg ibid 143. See too the discussion of R v Luffman [2008] EWCA Crim 1379 at ch 3.V.A. 17   See ch 5.III.B. 18   On the difference between these two principal types of exclusion clause, see generally B Coote, Exception Clauses (London, Sweet & Maxwell, 1964); P Matthews, ‘The Efficacy of Trustee Exemption



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It is too quick generally to assume that a defence available to a primary wrongdoer will necessarily also benefit the accessory. Such a defence will not invariably eliminate the primary wrong, and accessory liability can be parasitic to that wrong.19 This is also true where the ‘primary wrongdoer’ has an absolute privilege or immunity from liability;20 for instance, if the primary wrongdoer has a defence of diplomatic immunity, there is no reason why an accessory should automatically also be able to benefit from that defence.21 The same logic underpins the imposition of accessory liability in circumstances where the ‘primary wrongdoer’ avoids liability because he or she can deny a subjective element of the wrong.22 If a defendant encourages a person to lock a door, thereby falsely imprisoning the claimant, the defendant might be liable as an accessory even though the person who locked the door may not have known that somebody was inside and therefore lacked the fault element of the tort; a wrong of false imprisonment was nevertheless committed, and the accessory may be liable for that infringement of the claimant’s right to freedom. Defences which focus upon a defendant’s conduct are often personal to the particular defendant; a defence available to one defendant will not always be open to another. However, where the focus is upon the claimant’s conduct, any claim is likely to fail against both the primary wrongdoer and accessory. For example, if the claimant has provided fully informed consent to the primary wrong and violation of his or her rights,23 then that consent should ordinarily prevent the claimant from suing either the primary wrongdoer or any accessory.24

Clauses in English Law’ [1989] Conveyancer and Property Lawyer 42, 43. Assessing whether or not a defendant should be able to rely upon an exclusion clause which could assist the primary wrongdoer is closely related to the question of whether the remedy available against an accessory should ever exceed that available against the primary wrongdoer, and will be considered further in ch 8. 19   This analysis mirrors liability in the criminal law: see ch 3.V.A. 20   ‘If two persons would otherwise be liable for a harm, one of them is not relieved from liability by the fact that the other has an absolute privilege to act or an immunity from liability to the person harmed’: American Law Institute, Restatement (Second) of the Law of Torts, vol 4 (St Paul, MN, ALI Publishers, 1979) para 880. See too eg Collett v Foster (1857) 2 H & N 356; Barker v Braham (1773) 2 Wm Bl 869. 21   Although, of course, the defendant might also be personally covered by a similar defence. 22  Goudkamp, Tort Law Defences, above n 6 at 143. However, if an objective element of the wrong is denied by the ‘primary wrongdoer’ then no claim will succeed against either the primary wrongdoer or the accessory. For example, if defamatory remarks cause no damage to the claimant, then the objective element of damage can be denied by all defendants: Goudkamp, Tort Law Defences, above n 6 at 143. 23   Indeed, it is unclear whether any wrong is committed if the claimant consents: see eg WVH Rogers, Winfield and Jolowicz on Tort, 18th edn (London, Sweet & Maxwell, 2010) 108. 24   Similarly, if the claimant’s loss arises as a result of his or her own illegal conduct, then his or her claim may not be allowed to succeed against any defendant: see eg Gray v Thames Trains Ltd [2009] UKHL 33, [2009] AC 1339.

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II. Justification The defence of justification has been best recognised in the contractual context.25 Participation in a breach of contract may be easier to justify than participation in other private law wrongs: contractual rights may often appear to be of ‘lesser’ importance than the rights of a beneficiary in a fiduciary relationship, or rights protected by the law of tort, such as freedom and bodily integrity.26 But this does not mean that an entirely different approach should be taken as regards justification in each area of the law: fundamentally, it must be established that the defendant was acting reasonably, and only to the extent necessary, to protect something that trumps the claimant’s rights. Various factors will be important in this balancing exercise; the nature of the claimant’s rights might affect the weight to be given to particular factors, but different rights do not necessitate different tests of justification.27 However, the contours of the defence of justification have not been clearly defined, even in the contractual sphere. Carty has observed that ‘clarity – obviously important in the commercial world – demands that liability be imposed on grounds that are certain and that the defence of justification should be residual’.28 Perhaps due in part to its characterisation as ‘residual’, justification has not received the attention it deserves.29 This is regrettable, since appropriate defences remain important to defendants; as Cane has pointed out, ‘[a] person can act intentionally or recklessly for good reasons’.30 The difficulty lies in identifying what constitutes ‘good reasons’ for the purposes of providing a defence to someone sued as an accessory.31 25   For example, in OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [174] Lord Nicholls said: ‘In Quinn v Leathem [1901] AC 495 the House upheld the decision in Lumley v Gye. In doing so their Lordships expressed the principle underlying that decision in broad terms. Lord Macnaghten, at p510, said that Lumley v Gye was rightly decided, not on the ground of malicious intention, but: “. . . on the ground that a violation of legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference.” (emphasis added)’ 26   Southport Corporation v Esso Petroleum Co Ltd [1953] 2 All ER 1204 (QBD), 1209 (Devlin J): ‘The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison’. See generally N McBride, ‘Tort Law and Human Flourishing’ in SGA Pitel, JW Neyers and E Chamberlain (eds), Challenging Orthodoxy in Tort Law (Oxford, Hart Publishing, 2013); P Cane, The Anatomy of Tort Law (Oxford, Hart Publishing, 1997) ch 3. 27  Any contrary approach would introduce unnecessary complexity and unclear distinctions; Howarth has noted that defences to accessory liability might ‘provide a bulwark against the possibility of divergence between contractual and non-contractual confidentiality doctrines’ by operating in a similar manner in both: D Howarth, ‘Against Lumley v Gye’ (2005) 68 MLR 195, 230. 28   H Carty, An Analysis of the Economic Torts, 2nd edn (Oxford, Oxford University Press, 2010) 71. 29   See similarly, S Deakin and J Randall, ‘Rethinking the Economic Torts’ (2009) 72 MLR 519, 550. 30   P Cane, ‘Mens Rea in Tort Law’ (2000) 20 OJLS 533, 539. 31  In Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889, [2002] 2 All ER (Comm) 768, [130], Rix LJ noted ‘that there may be moral or perhaps economic factors which may mitigate even to the point of justifying conduct otherwise incurring a prima facie liability’, without further identifying those factors (entirely understandably, since no claim to justification was raised in the case).

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It is perhaps easiest to begin by considering what is not sufficient for the defence of justification.32 It is clearly inadequate for the defendant simply to assert an absence of malice; indeed, the defendant will not be able to exploit this defence just because ‘he acted as an altruist, seeking only the good of another and careless of his own advantage’.33 Nor can a defendant escape liability by explaining that he or she was motivated by a similar wrong committed by the claimant;34 revenge does not justify participation in a wrong when recourse to the courts for the original wrong should be sought.35 Significantly, the fact that the defendant was motivated by ‘the mere protection of the defendants’ own interests’ is insufficient for justification, even where the defendant acted in order to stave off its own insolvency.36 The fact that the defendant acted to further his or her own best interests does not, without more, justify accessoryship.37 Thus a bank which assists the commission of fraud cannot escape liability by asserting that the assistance provided was very profitable for the bank. Nor was a defendant justified in encouraging fellow tenants to withhold rent in order to prompt the landlord to improve the conditions of the tenanted flats; a common interest alone cannot justify participation in a breach of contract.38 Although one reason motivating the defendant’s conduct may well be self-interest, the defence of justification requires further factors to counterbalance the infringement of the claimant’s rights, and will only cover acts which were reasonably necessary for the justifying purpose.39 It is therefore possible to identify some common factors which will be insufficient to establish a defence of justification. However, a positive formulation of what does constitute justification is more difficult. Broad formulations of the defence are often relied upon. For instance, in Glamorgan Coal Co Ltd v South Wales Miners’ Federation Romer LJ said:40

  Edwin Hill & Partners v First National Finance Corp plc [1989] 1 WLR 225 (CA), 230.   Read v Friendly Society of Operative Stonemasons of England, Ireland and Wales [1902] 2 KB 88 (DC), 97 (Darling J); see too the decision of the Court of Appeal: [1902] 2 KB 732, 737 (Collins MR); Smithies v National Association of Operative Plasterers [1909] 1 KB 310 (CA); South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 (HL); Pratt v British Medical Association [1919] 1 KB 244, 266 (McCardie J). 34   Smithies v National Association of Operative Plasterers [1909] 1 KB 310 (CA), 337 (Buckley LJ). 35   This is a feature of all justificatory defences: see eg Goudkamp, Tort Law Defences, above n 6 at 107. See too Camden Nominees Ltd v Forcey [1940] Ch 352, 366 (Simonds J): ‘It is a dangerous proposition that inequality in wealth or position justifies a course otherwise actionable’. 36   De Jetley Marks v Lord Greenwood [1936] 1 All ER 863 (KBD), 873 (Porter J). 37   Read v Friendly Society of Operative Stonemasons of England, Ireland and Wales [1902] 2 KB 88 (DC), 97 (Darling J) and [1902] 2 KB 732 (CA), 737 (Collins MR); South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 (HL), 252 (Lord James); Pratt v British Medical Association [1919] 1 KB 244, 266 (McCardie J); De Jetley Marks v Lord Greenwood [1936] 1 All ER 863 (KBD), 873 (Porter J). See too Zhu v Treasurer of New South Wales [2004] HCA 56, (2004) 218 CLR 530, [118] (Gleeson CJ, and Gummow, Kirby, Callinan and Heydon JJ). 38   Camden Nominees Ltd v Forcey [1940] Ch 352, 365 (Simonds J). This reasoning is often problematic for trade unions, but statute has now intervened in that area: see section II.E below. 39   Zhu v Treasurer of New South Wales [2004] HCA 56, (2004) 218 CLR 530, [170]–[171] (Gleeson CJ, and Gummow, Kirby, Callinan, and Heydon JJ). 40   Glamorgan Coal Co Ltd v South Wales Miners’ Federation [1903] 2 KB 545 (CA), 573–574. 32 33

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I think it would be extremely difficult, even if it were possible, to give a complete and satisfactory definition of what is ‘sufficient justification,’ and most attempts to do so would probably be mischievous. . . . I respectfully agree with what Bowen L.J. said in the Mogul Case 41, when considering the difficulty that might arise whether there was sufficient justification or not: ‘The good sense of the tribunal which had to decide would have to analyze the circumstances and to discover on which side of the line each case fell.’ I will only add that, in analyzing or considering the circumstances, I think that regard might be had to the nature of the contract broken; the position of the parties to the contract; the grounds for the breach; the means employed to procure the breach; the relation of the person procuring the breach to the person who breaks the contract; and I think also to the object of the person in procuring the breach. But, though I deprecate the attempt to define justification, I think it right to express my opinion on certain points in connection with breaches of contract procured where the contract is one of master and servant. In my opinion, a defendant sued for knowingly procuring such a breach is not justified of necessity merely by his shewing that he had no personal animus against the employer, or that it was to the advantage or interest of both the defendant and the workman that the contract should be broken.

This was described as a ‘broad brush’ approach by counsel in Edwin Hill & Partners v First National Finance Corp plc.42 It requires the courts to consider all the circumstances, providing little guidance concerning the principles or application of justification. A broad defence of justification maintains the flexibility to deal with novel situations and the myriad of ways by which a defendant might participate in a primary wrong. Justification could be defined widely. A defence of ‘acting reasonably’ has been adopted in the criminal sphere for the inchoate statutory offence of assisting or encouraging crime,43 and Howarth has strongly argued that a justificatory defence based upon the criteria of ‘fair, just and reasonable’ is not too uncertain, particularly given the familiarity of these terms in the context of negligence claims.44 Howarth labelled this a ‘maximalist’ approach, and preferred it to a ‘minimalist’ approach whereby justification would only provide a defence in situations where it has been decided that a defence should be available; although the latter might seem to lead to greater certainty for litigants, ‘that certainty might turn out to be illusory if the process of establishing a new extension of the justification defence merely suggested other extensions’.45 A wide formulation of the defence is consistent with section 61 of the Trustee Act 1925;46 in Baden Delvaux, Peter Gibson J left open the possibility of an accessory to a breach of trust being able to rely upon this defence.47 Such an approach   Mogul Steamship Co Ltd v McGregor, Gow & Co (1889) 23 QBD 598 (CA), 618.   Edwin Hill & Partners v First National Finance Corp plc [1989] 1 WLR 225 (CA), 229. 43   Serious Crimes Act 2007, s 50; see ch 3.V.E. See too the US Model Penal Code, §3.02. 44   Howarth, ‘Against Lumley’, above n 27 at 225–231. 45   ibid 225. 46   See section I above. 47   Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509n (CA), 609. 41 42

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might be partly based upon the fiction that an accessory is liable as a ‘constructive trustee’,48 but is nonetheless consistent with a general, broad defence of justification. Some commentators have argued that dishonest defendants will not have been acting ‘honestly and reasonably’ and therefore cannot benefit from section 61.49 However, a refusal to recognise a justificatory defence may be entwined with the loaded terminology of ‘dishonesty’; the more neutral ‘knowledge’ would more clearly allow room for a justification defence to operate.50 After all, in Tan, Lord Nicholls recognised that a defence may be available.51 A wide defence might be criticised as leading to an unacceptable degree of uncertainty, but some lack of precision in the context of defences may be tolerated in this area.52 Heydon has even argued that ‘[i]t seems better to accept the risk of greater uncertainty in the hope of greater justice when the court comes to balance the interests, values, and aspirations underlying each party’s conduct’.53 Howarth has claimed that the defence of justification ‘allow[s] in substantive normative judgments . . . [and] makes the court announce its assessment openly, rather than rely silently on an assumption that all persuasion to breach a contract is immoral’.54 But predicting the content of the factors to be assessed remains unclear. In Edwin Hill & Partners v First National Finance Corp plc,55 Stuart-Smith LJ expressed the view that the courts ‘have over the years worked on this principle’, but in Stocznia Gdanska SA v Latvian Shipping Co (No 3), Rix LJ noted the ‘significance of [justification], an area which has not been clearly worked out in the cases’.56 Any work undertaken by the courts to develop this defence is little appreciated and the outline of justification remains largely murky. Nevertheless, the suggestion in Clerk & Lindsell that ‘it is impossible to lay down any general rule about the nature of this defence’57 seems overly pessimistic and defeatist. The law in this area is not easy,58 but some further guidance is both possible and   See ch 8.   eg C Harpum, ‘The Stranger as Constructive Trustee: Part 2’ (1986) 102 LQR 267, 290; Cooper, Secondary Liability, above n 10 at 173–174. 50   See ch 4.V.D.vi. 51   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 389, quoted above at n 5. 52  Goudkamp, Tort Law Defences, above n 6 at 139 has written that ‘Because justifications are not supposed to guide people in their behaviour in the same way as the duties created by the causes of action in tort, it might be less objectionable, for the purposes of the rule of law, if their ambits are uncertain’. For further consideration of the tension between goals of ‘certainty’ and ‘justice’ see ch 9. 53   JD Heydon, ‘The Defence of Justification in Cases of Intentionally Caused Economic Loss’ (1970) 20 University of Toronto Law Journal 139, 180. For instance, any uncertainty introduced by a justificatory defence to participation in the infringement of intellectual property rights could be ‘justified by the potential decrease in mass copyright infringement’: R Giblin-Chen, ‘Rewinding Sony: An Inducement Theory of Secondary Liability” (2005) 27 European Intellectual Property Review 428, 435. 54   Howarth, ‘Against Lumley’, above n 27 at 225. 55   Edwin Hill & Partners v First National Finance Corp plc [1989] 1 WLR 225 (CA), 230. 56   Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889, [2002] 2 All ER (Comm) 768, [130]. 57   M Jones and A Dugdale (eds), Clerk & Lindsell on Torts, 20th edn (London, Sweet & Maxwell, 2010) para 24-55. 58  eg Glamorgan Coal Co Ltd v South Wales Miners’ Federation [1903] 2 KB 545 (CA), 573 (Romer LJ): ‘But although, in my judgment, there is no doubt as to the law, yet I fully recognise that considerable difficulties may arise in applying it to the circumstances of any particular case. When a person has 48 49

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helpful, even if the broad shape of justification remains flexible and any list of factors to be considered cannot purport to be exhaustive. The following discussion will focus on some of the key considerations.

A.  Equal or Superior Right A defendant might be able to escape liability if he or she was acting in order to protect a superior right to that enjoyed by the claimant. This principle has been best developed in the contractual context, but the same logic might apply regardless of the nature of the primary wrong; for example, the defendant might rely upon human rights – such as freedom of expression – in order to justify participating in the tortious infringement of a claimant’s rights. This will be considered after the operation of this defence in the contractual sphere has been analysed. In Read, Darling J said that ‘sufficient justification for interference with plaintiff’s right must be an equal or superior right’.59 It is commonly thought that property rights are superior to personal, contractual rights.60 However, such superior rights can only ground a defence of justification if they were acquired without knowledge of any inconsistent contract.61 In Edwin Hill & Partners v First National Finance Corp plc,62 the defendant lent money to Leakcliff Properties Ltd, a property development company. The loan was secured by a legal charge over the property planned for development. Unfortunately, there were significant delays and a collapse in the property market, and Leakcliff was unable to afford the repayments of the mortgage. The defendant was owed £9 million, and had the right to exercise its power of sale under the charge. However, it instead reached a settlement with Leakcliff under which the defendant would finance the redevelopment of the property itself. By so doing, the defendant hoped to stave off greater losses and eventually recover the money it was owed. As part of the agreement, the defendant insisted that Leakcliff replace the architects it had been using with a more established firm, in the belief that this would make the development more attractive. Leakcliff reluctantly agreed and terminated the architects’ contract. The architects then sued the defendants for inducing a breach of contract. This claim failed. Stuart-Smith LJ said: 63 knowingly procured another to break his contract, it may be difficult under the circumstances to say whether or not there was “sufficient justification or just cause” for his act’. 59   Read v Friendly Society of Operative Stonemasons of England, Ireland and Wales [1902] 2 KB 88 (DC), 96. 60   CE Carpenter, ‘Interference with Contract Relations’ (1928) 41 Harvard Law Review 728, 747– 748. See too JD Heydon, Economic Torts, 2nd edn (London, Sweet & Maxwell, 1978) 40. It may be that reliance on property rights such as a landlord’s reversionary interest could even justify participation in a tort of nuisance: cf Coventry v Lawrence [2014] UKSC 46, [2014] 3 WLR 555, [24]–[27] (Lord Neuberger (with whom Lord Clarke and Lord Sumption agreed)). 61   De Mattos v Gibson (1858) 4 De G & J 276; Swiss Bank Corp v Lloyds Bank Ltd [1979] Ch 548. 62   [1989] 1 WLR 225 (CA). See too eg Granby Marketing Services Ltd v Interlego [1984] RPC 209 (Ch D), 215; James v Commonwealth of Australia [1936] AC 578 (PC). 63   Edwin Hill & Partners v First National Finance Corp plc [1989] 1 WLR 225 (CA), 232–233.

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Why, it may be asked, should the defendants be justified in interfering with the plaintiffs’ contract if they exercise their power of sale as mortgagee in possession, but not if by agreement they permit the mortgagor to conduct the sale in the hope of achieving a better deal for both? Why should they be justified if they appoint a receiver, who has power to build-out the development and appoint architects, but not if they agree to finance the mortgagor to perform this task? I cannot find any logical answer to these questions. Moreover, I think it would be undesirable if the law were to insist that a mortgagee in such a position should exercise his strict legal rights if he is to be justified in interference with contracts between the mortgagor and third parties, and could not be justified if he reached some sensible and reasonable accommodation which may be to the benefit of both himself and the mortgagor, but which has the same effect on the third parties’ contract. The accommodation is designed to protect or defend the mortgagee’s equal or superior right as a secured creditor, who had in this case financed the entire purchase and development of the site so far. And the accommodation was reached against the background of the remedy of sale or the appointment of a receiver. There can be no doubt that these rights existed once a formal demand for payment was made, a demand which could not have been met.

This result must be right: the claimants could not have complained if the defendant had exercised its power of sale, and thereby deprived the claimants of their job, so it would be very odd if the defendant were to be liable for producing the same result through a more sensible commercial arrangement with Leakcliff.64 In Edwin Hill, the right under the legal charge was a proprietary right. Yet the thrust of the reasoning in the Court of Appeal seems to focus on the contractual nature of the rights at issue. Stuart-Smith LJ said that:65 Justification for interference with the plaintiff’s contractual right based on an equal or superior right in the defendant must clearly be a legal right. Such right may derive from property real or personal or from contractual rights.

It may not be unreasonable for a defendant to seek to defend his or her agreed contractual rights; why should the defendant allow his or her contract to be breached, rather than act in a way which would protect that contract but lead to the claimant’s inconsistent contract being breached? One relevant consideration concerns which contract was concluded first; in Smithies v National Association of Operative Plasterers, Buckley LJ said that66 if the contract between B. and C. is one which B. could not make consistently with his preceding contractual obligations towards A., A. may not only induce him to break it, but may invoke the assistance of a Court of Justice to make him break it. 64   See similarly the reasoning of Lewison J in Meretz Investments NV v ACP Ltd [2006] EWHC 74 (Ch), [2007] Ch 197, [393]–[396] (the Court of Appeal overruled the judge, but not on this point; Arden LJ expressly agreed with Lewison J on the issue of justification: [2007] EWCA Civ 1303, [2008] Ch 244, [142]). For critical discussion of Edwin Hill, see R O’Dair, ‘Justifying an Interference with Contractual Rights’ (1991) 11 OJLS 227, (although this obviously pre-dates the ‘clarification’ of the ‘economic torts’ in OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1). 65   Edwin Hill & Partners v First National Finance Corp plc [1989] 1 WLR 225 (CA), 233. 66   Smithies v National Association of Operative Plasterers [1909] 1 KB 310 (CA), 337. cf Pritchard v Briggs [1980] Ch 338, 415 (Goff LJ).

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This approach to competing contracts is similar to that of competing equitable rights:67 as a general rule, the right created first in time has priority.68 However, there is some suggestion that even if a defendant enters into a contract with the primary wrongdoer after the latter had already concluded a contract with the claimant, the defendant may be justified in acting to protect his or her contractual rights, provided the defendant had no knowledge of the claimant’s agreement when he or she contracted.69 This can be explained on the basis that the defendant’s contractual right is equal to the claimant’s similar right, and there is no reason for the defendant not to defend such a right acquired in good faith. The situation is different where the defendant knew of the claimant’s contract when he or she concluded an agreement with the primary wrongdoer; in such situations, the defendant will not be able to justify participation in the primary breach of contract by relying upon his or her subsequently acquired rights.70 This appears to represent the law in England. Yet in Australia it seems that only a superior, and not merely an equal, right may be relied upon as a justification for participating in a primary breach of contract. For example, in Independent Oil Industries Ltd v Shell Co of Australia Ltd, Jordan CJ said that ‘it does not appear to have yet been authoritatively decided that anything short of the protection of an actually existing superior legal right will justify the wilful procuring of a breach of contract’.71 This was approved by the High Court of Australia in Zhu v Treasurer of New South Wales, which explained that:72 67  See similarly Zhu v The Treasurer of the State of New South Wales [2004] HCA 56, (2004) 218 CLR 530, [131] (Gleeson CJ, and Gummow, Kirby, Callinan and Heydon JJ); RA Epstein, ‘Inducement of Breach of Contract as a Problem of Ostensible Ownership’ (1987) 16 Journal of Legal Studies 1, 2–3. 68   See eg Hendler v Cuneo Eastern Press, Inc 279 F 2d 181 (CA 1960), 185 (Learned Hand J): ‘If A has promised one performance to B and has later promised the same performance to C, A cannot satisfy both promises. If he chooses to perform his contract with C he remains liable to B and that liability is measured by the value of what B has lost, though, as we have said, the remedy is not the same thing as performance. There is no justification for allowing A the liberty to choose which of the two obligees he will grant the advantage: he is the wrongdoer. While it is true that B and C are equally innocent, there must be a choice between them, and if A is eliminated as chooser the basis for choice can only be he who has the earlier claim. He may justly insist on preference; it cannot be a wrong against A that he seeks to induce C not to enforce that performance to which as between them B himself has the preferred claim.’ 69   Read v Friendly Society of Operative Stonemasons of England, Ireland and Wales [1902] 2 KB 88 (DC), 95; Smithies v National Association of Operative Plasterers [1909] 1 KB 310 (CA), 737; Pratt v British Medical Association [1919] 1 KB 244, 265. It would seem to be the case that a defendant who later acquires knowledge of a prior inconsistent contract can justify inducing a breach of that contract in order to protect his or her proprietary interests provided that the defendant had no such knowledge at the time the proprietary right was acquired: see eg Swiss Bank Corp v Lloyds Bank Ltd [1979] Ch 548, 572 (Browne-Wilkinson J ; this was not departed from in the higher courts: [1982] AC 584 (HL)) and Edwin Hill & Partners v First National Finance Corp plc [1989] 1 WLR 225 (CA), 226, in which StuartSmith LJ was quite relaxed about the timescale of events, provided the right was acquired without knowledge of the inconsistent contract. cf S Gardner, ‘The Proprietary Effect of Contractual Obligations under Tulk v Moxhay and De Mattos v Gibson’ (1982) 98 LQR 279, 290–291. 70   British Homophone Ltd v Kunz and Crystallate Gramophone Record Manufacturing Co Ltd [1935] All ER Rep 627 (KBD), 633-634 (Du Parcq J). 71   Independent Oil Industries Ltd v Shell Co of Australia Ltd (1937) 37 SR (NSW) 394, 416. 72   [2004] HCA 56, (2004) 218 CLR 530,  [139] (Gleeson CJ, and Gummow, Kirby, Callinan and Heydon JJ); see generally [108]–[171].

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Jordan CJ meant a right in real or personal property, not merely a right to contractual performance. The former type of right may be seen as superior to the latter because the former is proprietary, while the latter is at most quasi-proprietary . . . Two competing rights to contractual performance involving no proprietary interest would be equal rights, neither being superior to the other; but Jordan CJ did not mention the protection of an equal right as a form of justification. The conclusion that by “superior legal right” Jordan CJ meant a right to real or personal property is also indicated by the fact that he limited his examples of persons justified in interfering with contracts to the owners of rights in real or personal property that were inconsistent with rights created by contracts between other persons.

This approach greatly limits the protection and freedom afforded to defendants who do not ‘directly’ breach the claimant’s contract. It is suggested that the English approach is preferable; defendants should be able to defend their contractual rights acquired in good faith by participating in breaches of inconsistent contracts, unless the claimant enjoys a superior right. Simple contractual rights enjoyed by the claimant should not, without more, prevail over the defendant’s contractual rights and require the defendant to forego attempts to protect his or her legal interests. The situation is different where the claimant’s contract creates a fiduciary relationship with the primary wrongdoer. In such circumstances, the beneficiary’s equitable interest does trump the defendant’s contractual rights and the defence of justification will not be available. It will clearly be more difficult to justify participating in a breach of fiduciary duty or a tort on the basis of a ‘superior right’. But there does seem to be a hierarchy of interests which the private law protects,73 such that participating in some torts might be justifiable on the basis of furthering a higher, inconsistent right. For instance, participating in a nuisance committed by a primary wrongdoer might be justified if the defendant was threatened with physical harm if he refused to do so and therefore only acted in order to protect his right to bodily integrity.74 And if the defendant reasonably acts in self-defence in encouraging a primary tortfeasor to attack a perceived aggressor, the defendant may be justified in participating in the primary tort of battery, even if the primary tortfeasor was not similarly justified and attacked the claimant unaware that a threat had been posed. A defendant may also seek to rely upon rights protected by the European Convention on Human Rights (ECHR) in order to justify knowing participation in a primary wrong. However, such rights are often subject to qualifications, and will not inevitably outweigh the primary right violated: a balancing exercise is required. Nevertheless, some illustrative instances where fundamental rights have come to the aid of a defendant are instructive. For example, the disclosure of confidential information concerning the perpetration of fraud or a crime is generally   See n 26 above.   However, the defence of duress in tort law is, in itself, controversial; for recent consideration, see J Edelman and E Dyer, ‘A Defence of Duress in the Law of Torts’ in A Dyson, J Goudkamp and F Wilmot-Smith (eds), The Limits of Liability: Defences in Tort Law (Oxford, Hart Publishing, 2015). 73 74

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justified, and this conclusion is supported by the right to free speech protected in Article 10 of the ECHR.75 Freedom of expression is particularly significant in the context of intellectual property rights,76 and supports other justificatory defences such as innocent dissemination in the context of defamation.77 Freedom of assembly might be relied upon by protestors who trespass and members of unions who picket. Such rights could be important when assessing justification in the context of accessory liability.

B.  Performance of a Duty A defendant’s duty to a third party might trump the obligation not knowingly to participate in a primary wrong. This depends upon the nature of the primary wrong and competing duty, and again, requires a balancing exercise. For example, a doctor who, in the performance of his or her duty as a doctor, orders a patient to go home and thereby breach a contract with a claimant, should not be liable as an accessory for participating in a breach of contract: the fact that the doctor was performing his or her professional duty in good faith is sufficient to justify his or her actions.78 The same reasoning might enable police officers to escape liability in situations where they encourage a primary wrongdoer to breach obligations of confidence, for example, in order to prevent the commission of crime.79 It is sometimes said that justification may also be grounded in a duty ‘to offer advice to one who needs to be guided or protected’.80 Yet this will generally not be needed: disinterested advice about a claimant’s predicament is unlikely to constitute sufficient participation in a primary wrong for accessory liability.81 The most important aspect of this element of the defence of justification concerns the performance of a duty in the course of employment. It has posed particular problems as regards the relationship between a company and company director. In Said v Butt,82 a theatre critic bought a ticket, through a friend, for the first night of a theatre performance. He was then denied entry to the theatre, and consequently sued the managing director of the theatre company for inducing a breach of contract between him and the theatre company. On the facts, it was held 75   Initial Services v Putterill [1968] 1 QB 396 (CA); Cream Holdings Ltd v Banerjee [2004] UKHL 44, [2005] 1 AC 253; J Ulph, Commercial Fraud: Civil Liability, Human Rights, and Money Laundering (Oxford, Oxford University Press, 2006) para 7.28. 76   See, in the criminal context, R v Rock and Overton T20097013 (Gloucester Crown Court, 2010), [10]. 77   See Defamation Act 1996, s 1. 78   cf Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL), adopting the decision of Woolf J on the criminal law: [1984] QB 581, discussed in ch 3.IV.A. 79   Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 (QBD); Malone v Metropolitan Police Commissioner [1979] Ch 344 (DC); R v Chief Constable of the North Wales Police, ex parte AB [1998] 3 WLR 57 (CA). 80   South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 (HL), 249 (Lord James). See too Carpenter, ‘Interference’, above n 60 at 749–751; Heydon, Economic Torts, above n 60 at 44. 81   See ch 2.II.A.iii. 82   Said v Butt [1920] 3 KB 497.

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that there was no contract and therefore the issue of accessory liability was moot, but McCardie J nevertheless expressed the view that even if there had been a breach, the agent should not be liable for the wrong of his principal. His Lordship said:83 But the servant who causes a breach of his master’s contract with a third person seems to stand in a wholly different position. He is not a stranger. He is the alter ego of his master. His acts are in law the acts of his employer. In such a case it is the master himself, by his agent, breaking the contract he has made, and in my view an action against the agent under the Lumley v. Gye principle must therefore fail, just as it would fail if brought against the master himself for wrongfully procuring a breach of his own contract.

McCardie J was concerned to ensure both that directors of a company not be liable every time a company breached a contract, and that the doctrine of corporate limited liability be maintained. This approach of McCardie J, based upon the agent’s being the alter ego of the principal, has often been followed,84 and even applied to a situation where council committee members induced the council to breach a contract.85 But despite apparent acceptance of this rule, it has also been criticised. In Welsh Development Agency v Export Finance Co Ltd,86 the defendants were receivers of a company, and procured the breach of the company’s contract with the claimant by encouraging the company’s customers to pay debts directly to the company, rather than – as was required by a contract between the company and the claimant – to an account controlled by the claimant. The Court of Appeal held that the principle enunciated in Said v Butt applied, since the receivers were effectively agents for the company and therefore could be regarded as the alter ego of the company. However, the Court of Appeal also expressed some dissatisfaction with this reasoning. Dillon LJ said:87 Personally, I have grave reservations over the reasoning of McCardie J in Said v Butt. Since the agent or employee is normally personally liable for any tortious acts he does to third parties in the course of his agency or employment, I would not find any conceptual difficulty in holding that an employee or agent who, in the course of his employment or agency, wrongfully causes a breach of a contract between his employer or principal and a third party is liable in tort to the third party for his tortious act of wrongfully causing a breach of contract, notwithstanding that the liability of his employer or principal for the agent’s wrongful acts lies in breach of contract rather than in tort.

Nevertheless, his Lordship thought that because the law had ‘stood for so long and been so widely accepted’88 it was inappropriate for the Court to depart from   ibid 505–506.   See eg Ridgeway Maritime Inc v Beulah Wings Ltd (The Leon) [1991] 2 Lloyd’s Rep 611 (Comml Ct), 624; Crystalens Ltd v White [2006] EWHC 3357 (Comm) (Gloster J). 85   G Scammell and Nephew, Ltd v Hurley [1929] 1 KB 419 (CA). 86   Welsh Development Agency v Export Finance Co Ltd [1992] BCC 270 (CA). 87  ibid 289. 88   ibid 290. 83 84

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Said v Butt. In a similar vein, Staughton LJ opined that ‘[t]he rule, if such it be, seems anomalous to me and must be justified on policy grounds’.89 It is suggested that the ‘alter ego’ aspect of the reasoning of McCardie J is flawed.90 If it were in fact correct, it might be expected to apply equally to other torts as well, but it does not.91 Indeed, the alter ego principle is generally invoked to impose liability upon companies, and it seems odd that it be used to relieve company directors of accessory liability. In Said v Butt, McCardie J also said:92 Nothing that I have said to-day is, I hope, inconsistent with the rule that a director or a servant who actually takes part in or actually authorizes such torts as assault, trespass to property, nuisance, or the like may be liable in damages as a joint participant in one of such recognized heads of tortious wrong.

But the alter ego rule would necessarily preclude accessory liability to torts and equitable wrongs just as to breaches of contract.93 As McCardie J recognised, this is inappropriate. The reasoning in Said v Butt should be jettisoned.94 The result in Said v Butt is best explained on the basis of justification. Company directors owe a fiduciary duty to act in the company’s best interests. This duty trumps the contractual rights of the victim of the breach of contract. Heydon has expressed this as ‘the agent . . . performing an independent and prior contractual duty to his principal which prevails over the plaintiff’s rights’.95 It should be recognised that the agent is still prima facie liable for knowingly participating in a breach of contract, but this can be justified because it is reasonable for the agent not to breach the ‘more important’ fiduciary duties owed to the company.96 However, sometimes a director should be liable for knowingly participating in the company’s breach of contract. This will be the case where the director acted beyond his or her powers, for example;97 yet under the alter ego analysis favoured in Said v Butt, this result might not be achieved. Stevens has written that98

 ibid 305.   See too Cooper, Secondary Liability, above n 10 at 169–172. 91   R Stevens, ‘Why do Agents “Drop Out”?’ [2005] Lloyd’s Maritime and Commercial Law Quarterly 101, 107. 92   [1920] 3 KB 497, 506. 93   See eg Welsh Development Agency v Export Finance Co Ltd [1992] BCC 270 (CA), 289 (Dillon LJ). 94   It cannot be saved by reference to other justifications raised in the case either. For example, although it is sometimes said that any contrary approach might lead to the company being liable twice over – once for the breach of contract, and again vicariously for a director’s participation in that breach of contract (see Said v Butt [1920] 3 KB 497, 506) – this is patently unsatisfactory since a primary wrongdoer cannot be an accessory to its own wrong. 95   Heydon, ‘The Defence of Justification’, above n 53 at 164–165. See too Imperial Oil Ltd v C & G Holdings Ltd: ‘A company’s directors are agents of it and, consequently, owe to it certain duties flowing from that fiduciary relationship. The general duty to abstain from knowingly violating the legal rights of others must be weighed against the concomitant obligations of a director to the company and his or her functions relative to its operations’: (1989) 62 DLR (4th) 261, 264. 96   cf Phillips v Montana Education Association 610 P 2d 154 (Mont 1980). 97   DC Thomson & Co Ltd v Deakin [1952] 1 Ch 646 (CA), 681 (Evershed MR); Ridgeway Maritime Inc v Beulah Wings Ltd (The Leon) [1991] 2 Lloyd’s Rep 611 (Comml Ct), 623–625. 98   Stevens, ‘Why do Agents “Drop Out”?’, above n 91 at 108. 89 90

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[p]erhaps the rule in Said v. Butt should today be seen as an example of the defence of justification which applies generally to claims for inducing breach of contract. . . . Perhaps it is significant that at the time of Said v. Butt the defence of justification was underdeveloped.

It is suggested that the existence of a defence of justification does indeed help to explain the result in Said v Butt. It is important to appreciate that this defence rests upon a duty owed by the defendant to a third party. Directors of a company have a positive duty to act in the best interests of that company, and are not merely acting in their own interests. It is therefore surprising that in De Jetley Marks v Lord Greenwood, Porter J expressed the view that the defendants would not be justified in participating in the company’s wrong on the basis that they were acting to protect the company’s interests since ‘[t]he justification must, I think, involve an action taken as a duty, not the mere protection of the defendants’ own interests’.99 Such reasoning seems unsatisfactory. The defence of justification should have been available, since the defendants were acting in accordance with a duty owed to the company. This analysis is strengthened by the judgment of David Richards J in Lictor Anstalt v Mir Steel UK Ltd.100 On the application for summary judgment, the judge thought it arguable that administrators101 could claim that their acts were justified when, in pursuit of their statutory functions and purposes, they sold assets of the company in breach of contracts made by the company. This approach seems sensible; the duty to administer the company outweighs any competing duty to ensure the fulfilment of the company’s contracts, even if the contractual provision purports to restrict the company’s power of sale.102 It is important to appreciate that proprietary rights and restrictions are expressly respected by statute in the administration process, although administrators have the power to apply to the court to deal with the company assets free from such proprietary rights.103 But in Lictor Anstalt, only personal, contractual rights were at issue. These might be considered not to require such extensive protection, and as a result participation in their infringement might be more readily justifiable.104 Although the judge in Lictor Anstalt did not need to engage with the reasoning underpinning Said v Butt as regards the administrators themselves, he did need to   De Jetley Marks v Lord Greenwood [1935] 1 All ER 863 (KBD), 873.   Lictor Anstalt v Mir Steel UK Ltd [2011] EWHC 3310 (Ch), [2012] 1 All ER (Comm) 592. For the facts of this case, see ch 5.IV.B. 101   The judge thought that the principle of Said v Butt [1920] 3 KB 497 was equally applicable to administrators as it was to receivers, as decided in Welsh Development Agency v Export Finance Co Ltd [1992] BCC 270 (CA): Lictor Anstalt v Mir Steel UK Ltd [2011] EWHC 3310 (Ch), [2012] 1 All ER (Comm) 592, [52]. 102   Lictor Anstalt v Mir Steel UK Ltd [2011] EWHC 3310 (Ch), [2012] 1 All ER (Comm) 592, [57]. 103   Insolvency Act 1986, sch B1. 104   ‘Given the lesser status of such restrictions as against proprietary interests, it would seem altogether more likely that the legislative assumption was that the administrator had such entitlement without the need for court sanction rather than that such sales free of such restrictions should not be permissible without the consent of the relevant contracting party’: Lictor Anstalt v Mir Steel UK Ltd [2011] EWHC 3310 (Ch), [2012] 1 All ER (Comm) 592, [57]. 99

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consider the position of the company that purchased the assets sold by the administrators in breach of contract. David Richards J held that such purchasers would be entitled to a defence of justification.105 His Lordship drew an analogy with Edwin Hill and said:106 If an administrator is unable to sell assets without exposing purchasers to a liability in tort for inducing a breach of contract, it is likely to have a damaging effect on the ability of the administrator to obtain the best price for the assets. If the company were to go into liquidation, the liquidator would be able to disclaim the contract containing the third party restriction, a procedure not available to an administrator, and thereby be in a position to sell the relevant assets without any concern on the part of the purchasers that they may expose themselves to a liability in tort.

Since a purchaser would be able to acquire assets from a liquidator without fear of accessory liability, it seems sensible to allow a purchaser also to have a defence against accessory liability if it buys assets from an administrator. However, the judge recognised that this was ‘an entirely new point on which there is no authority’107 and he did not have to decide the issue conclusively as he was content that the argument based on justification could not be dismissed on the application for summary judgment. Significantly, David Richards J overtly recognised that a defence of justification in the context of accessory liability calls for a balancing exercise to be carried out:108 The proper balancing of competing interests involved in administration as an insolvency process may well be achieved by providing a defence of justification to a claim in tort in respect of a sale by an administrator in circumstances where there is a purely contractual restriction on sale.

This approach to a defence of justification is of more general import. The fact that a defendant owes a duty to a third party may be a crucial factor. The duty owed may justify participation not only in breaches of contract, but also in torts and even equitable wrongs. For example, the duty a police officer owes to prevent crime may justify his or her actions in inducing a trustee to act against a principal’s best interests by disclosing evidence of wrongdoing, or in committing a battery in making an arrest.109 The preferable view is that both torts and breaches of fiduciary duty might be justified.110 Stevens has criticised this approach, arguing that if the defendant’s actions were justified, then no wrong exists.111 On that 105   See too IM Fletcher, J Higham and W Trower, Corporate Administrations and Rescue Procedures, 2nd edn (London, LexisNexis, 2004) paras 5.29–5.30. 106   Lictor Anstalt v Mir Steel UK Ltd [2011] EWHC 3310 (Ch), [2012] 1 All ER (Comm) 592, [58]. 107   ibid [60]. 108   ibid [59]. 109   ‘Since arrest involves trespass to the person and any trespass to the person is prima facie tortious, the onus lies on the arrestor to justify the trespass by establishing reasonable and probable cause for the arrest’: Dallison v Caffery [1965] 1 QB 348 (CA), 370 (Diplock LJ). 110   In the criminal context, Gardner has argued that ‘wrongdoing . . . calls for justification if anything does’: Gardner, Offences and Defences, above n 14 at 77. 111   Stevens, ‘Why do Agents “Drop Out”?’, above n 91 at 108: ‘The different approach to procuring a breach of contract can, perhaps, be justified on the basis that, whilst a breach of contract may in certain circumstances be legitimate, the commission of a tort or breach of fiduciary duty never is’.

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basis, there is no battery where a police officer is justified in making an arrest,112 nor where a defendant shoots an apparent aggressor, who is attacking him with an unloaded gun, if acting reasonably in self-defence. But even though the defendant is justified in defending himself in this situation, ‘he hardly acted commendably’;113 that he is required to establish justifying factors indicates that there has in fact been wrongful conduct which needs to be justified.114 In any event, for the purposes of accessory liability it might make little difference whether there is a wrong which is justified, or whether the justification means that there is no wrong: accessory liability can be explained either on the basis of its being parasitic upon the primary wrong, or because it attaches to the wrongful conduct which infringed the claimant’s right.115 A duty owed to an employer might justify a defendant’s participation in a primary tort. In the criminal context, it has been suggested that a shopkeeper might have a defence if prosecuted as an accessory where the shopkeeper, in the ordinary course of business, sold an item later used to commit an offence.116 This defence has been rejected in the criminal sphere,117 but it may seem more acceptable in the civil law. For example, a checkout assistant at a supermarket might sell a primary tortfeasor a knife later used to commit an assault, or a can of spray paint used to graffiti on a neighbour’s wall. Should the defendant be able to point to a contractual duty owed to his or her employer in order to avoid accessory liability? One advantage of such a defence is that it would help to protect freedom to trade in situations where the defendant has, in practice, very little discretion about to whom lawful goods can be sold.118 However, although situations in which a claim against a shop assistant as an accessory are plausible, they are inevitably uncommon: only rarely will a claimant be able to prove that the defendant knew that the primary wrongdoer would commit an offence. The very strong presumption, when dealing with lawful goods, is that the purchaser will use those goods in a lawful manner; it will be very difficult to establish that the defendant knew the contrary to be the case. But where the defendant did actually know that a tort would be committed – for example, because the primary tortfeasor openly bragged about his or her plans – does the defendant really deserve a defence to his or her knowing participation in the   eg N McBride and R Bagshaw, Tort Law, 4th edn (Harlow, Pearson, 2012) 55.  Goudkamp, Tort Law Defences, above n 6 at 80.   ‘A person who commits the tort of battery by intentionally shooting another can justify the battery, and thereby escape liability, by proving that the shooting was in self-defense’: JCP Goldberg and BC Zipursky, The Oxford Introductions to US Law: Torts (Oxford, Oxford University Press, 2010) 110. 115   See similarly the position in the criminal law: ch 3.II. 116   See eg GL Williams, Criminal Law: The General Part, 2nd edn (London, Stevens & Sons, 1961) 373. 117   AP Simester and A von Hirsch, Crimes, Harms and Wrongs: On the Principles of Criminalisation (Oxford, Hart Publishing, 2011) 83–85. 118   Although such a defence might be restricted by the particular terms of employment: if a supermarket instructed its employees not to sell knives or spray paint to those whom they suspect will use such products to commit unlawful acts, the duty owed by the employees to the employer would be governed by the express contractual terms. 112 113 114

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primary wrong? It may well seem more reasonable for the defendant to refuse to serve that customer. The claimant’s rights might outweigh the duties owed by the defendant to his or her employer. Admittedly, this issue is finely balanced. Selling a knife used to commit an assault seems intuitively worse than selling spray paint used to commit a trespass to property. Whilst the former seems very difficult to justify, views might legitimately differ about whether or not a shop assistant acts reasonably in selling spray paint, especially given the ease with which spray paint may be acquired elsewhere. Yet even in these unusual situations where the defendant does possess the required mental element for accessory liability, it might not seem unduly onerous to rank the claimant’s rights higher than the contractual (or even fiduciary) duty owed by an employee to his or her employer. Other circumstances where a defence of performing a previously existing duty might be invoked can be envisaged. For example, a defendant might be employed to work on the turnstiles of a stadium, knowing that the crowd will inevitably shout and cause a nuisance. Can such defendants seek to rely upon the duty owed to their employer to justify their participation in the nuisance? It is unlikely that such a defence would be necessary; the participation of the defendants may well be too remote and insufficiently substantial to constitute the requisite causal link for accessory liability. But if a relevant conduct element is satisfied, then it might be reasonable for the defendants to rely upon the performance of a contractual duty owed to their employer as justifying their conduct; the claimants’ rights infringed may be of less importance than the defendant’s duty to his or her employer and the right to earn a living. This balancing exercise depends upon an objective assessment of all the facts of the case. It may be that the ‘fair, just and reasonable’ test proposed by Howarth is apposite.119

C.  Staple Article of Commerce In the context of intellectual property rights, there is some recognition that accessory liability will generally be inappropriate where the defendant has simply provided a staple article of commerce which is later used to infringe a claimant’s rights. This is essentially a justificatory defence: it is reasonable for the defendant to provide a lawful product which can be used for lawful purposes, even if there is a risk that the claimant’s rights be infringed. However, it should be noted at the outset that the ‘staple article of commerce’ doctrine may not, strictly, always operate as a defence: it often highlights a strong presumption that the necessary mental element for accessory liability is absent. But where the defendant does know of the primary wrong, it might operate as a substantive defence. The roots of this doctrine can be found in the law of patents. Section 60 of the Patents Act 1977 provides that:120   Howarth, ‘Against Lumley’, above n 27 at 225–231.   Section 60 is intended to give effect to Community Patent Convention 1975, arts 25 and 26.

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(2) Subject to the following provisions of this section, a person (other than the proprietor of the patent) also infringes a patent for an invention if, while the patent is in force and without the consent of the proprietor, he supplies or offers to supply in the United Kingdom a person other than a licensee or other person entitled to work the invention with any of the means, relating to an essential element of the invention, for putting the invention into effect when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom. (3) Subsection (2) above shall not apply to the supply or offer of a staple commercial product unless the supply or the offer is made for the purpose of inducing the person supplied or, as the case may be, the person to whom the offer is made to do an act which constitutes an infringement of the patent . . .

Section 60(2) enables liability to be imposed upon a person who supplies, or offers to supply, the primary wrongdoer with the means necessary to infringe the patent. This provision also covers inchoate liability, but where the primary infringement actually occurs this very closely resembles common law accessory liability for assistance or facilitation.121 Significantly, section 60(3) provides a defence where a defendant supplies a staple commercial product which might be used to commit an infringement and the defendant did not have an unlawful purpose. Such a structured approach might be mimicked in the common law. This has evolved in America in the context of copyright, inspired by the statutory example set in patent law.122 The leading decision is Sony Corp of America v Universal City Studios Inc.123 Sony produced the Betamax, which was a machine that enabled individuals to record on to VCR. This facilitated the unlawful copying of copyright materials, and the copyright holders consequently brought a claim against Sony. Although Sony’s knowing assistance of the primary wrong could potentially have led to ‘contributory liability’,124 the Supreme Court of the United States held that Sony was not liable, since the product it supplied was capable of ‘substantial non-infringing use’. Such use consisted largely of recording programmes in order to watch them at a later date – so-called ‘time-shifting’. Sony therefore had a defence to accessory liability. The Court explicitly drew upon the analogous statutory defence in the context of patents in saying:125 121  On the differences between the statutory provision and common law, see eg Grimme Maschinenfabrik GmbH & Co KG v Derek Scott [2010] EWCA Civ 1110, [2011] FSR 193, [88]. Despite the existence of s 60, the common law remains of crucial importance in the context of patent disputes. This is for two reasons. First, the statute adds to the common law, but does not alter the fact that the general principles of joint tortfeasance remain applicable in the context of patents. Secondly, and increasingly significantly, s 60(2) only applies if a ‘double territorial requirement’ is satisfied: the supply, or offer of supply, must take place in England, and the means supplied must be suitable for putting, and intended to put, the invention into effect in the UK: Virgin Atlantic Airways Ltd v Delta Airways Inc [2010] EWHC 3094 (Pat), [2011] RPC 242, [89] (not disturbed on appeal: [2011] EWCA Civ 162, [2011] RPC 551). 122  eg Sony Corp of America v Universal City Studios Inc 464 US 417 (1984). 123   ibid. See ch 6.III.D.iii. 124  Synonymous, for these purposes with secondary, or accessory, liability. See too Re Aimster Copyright Litigation 334 F 3d 643 (7th Circuit, 2003). 125   Sony Corp of America v Universal City Studios Inc 464 US 417 (1984), 441.

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We recognize there are substantial differences between the patent and copyright laws. But in both areas the contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible. The staple article of commerce doctrine must strike a balance between a copyright holder’s legitimate demand for effective – not merely symbolic – protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses. The question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether on the basis of the facts as found by the District Court a significant number of them would be noninfringing. Moreover, in order to resolve this case, we need not give precise content to the question of how much use is commercially significant. For one potential use of the Betamax plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. It does so both (A) because respondents have no right to prevent other copyright holders from authorizing it for their programs, and (B) because the District Court’s factual findings reveal that even the unauthorized home time-shifting of respondents’ programs is legitimate fair use.

This defence of ‘substantial non-infringing use’ is an important bulwark to prevent a ‘chilling effect’126 upon the advancement of new technologies. The defendant in Sony clearly provided a machine that was capable of being exploited to commit infringements of copyright. Yet although causal participation in such primary wrongs may feasibly have been established, it is worth emphasising that it is far from clear that the defendant possessed the requisite mental element for accessory liability;127 after all, the defendant did not know whether any particular individual would commit a tort. The defendant might therefore have been able to deny an element of accessory liability, so that the case did not need to consider the subsequent issue of defences. Admittedly, a broader approach to knowledge may be taken in situations where the defendant knows that the product will be used for unlawful purposes by a wide number of people without being aware of their precise identity, but generally the defendant should have no substantial doubt that it will be used in such a way.128 Where the product is ‘capable of substantial lawful use’, it would be entirely logical for the defendant to have substantial doubts about whether any particular person would use the product to commit a tort. On the other hand, it could be argued that such a defendant would know that some users would undoubtedly exploit the product to commit a tort, and the fact that it 126   See the concurring opinion of Justice Breyer in Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913 (2005), 960. 127   See ch 6.IV. 128   See ch 2.III.B.i.

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was not known which particular person would commit which individual infringement should not distract from the defendant’s knowing participation in the inevitable violation of the claimants’ rights. If this latter approach is preferred, then the defendant would be required to rely upon a justificatory defence: despite knowing that the product would be used to commit primary wrongs, it was reasonable for the defendant nevertheless to provide the product given the substantial lawful uses to which that product could be put. This obviously raises the difficult question of deciding upon the scope of ‘substantial lawful use’. In Sony, this requirement was fulfilled once it was accepted that time-shifting was itself a legitimate use of the recorders, and this conclusion was strengthened by the fact that not all copyright holders had any problem with the devices anyway.129 However, different views were expressed by members of the US Supreme Court in Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd.130 The defendant, Grokster,131 distributed software that allowed individual computer users to share electronic files through peer-to-peer networks. The vast majority of these files were shared in breach of the claimants’ copyright. Grokster did not directly infringe the claimants’ copyright; Grokster did not host the infringing material on any server, and the infringing material was passed directly between users’ computers. Grokster was nevertheless sued on the basis that ‘they knowingly and intentionally distributed their software to enable users to reproduce and distribute the copyrighted works’.132 On the facts of the case, the Supreme Court held that Grokster had actually taken ‘active steps to encourage infringement’,133 since it promoted unlawful uses of the website and relied upon them to generate profit; this was sufficient to constitute ‘active inducement’, to which the Sony defence could not apply. But absent such ‘active inducement, the ambit of the Sony defence would have been of paramount importance, and the discussion would have focussed upon the important question of when a defendant who knowingly assisted a wrong deserves to escape accessory liability. Although not 129  There was in fact evidence to suggest that the devices helped to improve viewer numbers. Although compare the dissent of Justice Blackmun at Sony Corp of America v Universal City Studios Inc 464 US 417 (1984), 498–499: ‘Such a definition essentially eviscerates the concept of contributory infringement. Only the most unimaginative manufacturer would be unable to demonstrate that an image-duplicating product is “capable” of substantial noninfringing uses. Surely Congress desired to prevent the sale of products that are used almost exclusively to infringe copyrights; the fact that noninfringing uses exist presumably would have little bearing on that desire.   More importantly, the rationale for the Court’s narrow standard of contributory infringement reveals that, once again, the Court has confused the issue of liability with that of remedy. The Court finds that a narrow definition of contributory infringement is necessary in order to protect “the rights of others freely to engage in substantially unrelated areas of commerce.” . . . But application of the contributory infringement doctrine implicates such rights only if the remedy attendant upon a finding of liability were an injunction against the manufacture of the product in question. The issue of an appropriate remedy is not before the Court at this time, but it seems likely that a broad injunction is not the remedy that would be ordered. It is unfortunate that the Court has allowed its concern over a remedy to infect its analysis of liability.’ 130   545 US 913 (2005). 131   Along with StreamCast. 132   Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913 (2005), 921. 133   ibid 924.

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required for the decision in Grokster, some members of the Supreme Court did consider the potential application of the Sony defence. The two concurring opinions of Justice Ginsburg and Justice Breyer each gained the support of two other Supreme Court Justices, but each provides a very different perspective.134 Justice Ginsburg thought that the defence would not assist the defendants, since the website was almost exclusively used for infringing purposes, and there was no ‘substantially non-infringing use’ at issue. She said135 there was evidence that Grokster’s and StreamCast’s products were . . . overwhelmingly used to infringe . . ., and that this infringement was the overwhelming source of revenue from the products. . . . Fairly appraised, the evidence was insufficient to demonstrate, beyond genuine debate, a reasonable prospect that substantial or commercially significant noninfringing uses were likely to develop over time.

Justice Ginsburg was keen to differentiate between the use of the software products at issue in the case and the use of peer-to-peer technology generally. She was able to distinguish Sony because, in Grokster, there was no finding of fair use, and little beyond anecdotal evidence of non-infringing uses.136 Moreover, Justice Ginsburg thought that even if the total number of non-infringing files shared over the Grokster software was large, that would not necessarily mean that the Sony defence would apply: the number of ‘legitimate’ files could still be dwarfed by the total volume of files shared, such that ‘substantial’ lawful use may not be established.137 The requirement of ‘substantiality’ involves a balancing exercise that must take into account the scale of lawful and unlawful uses on either side.138 By contrast, Justice Breyer considered that the restrictive approach to the Sony defence evinced by Justice Ginsburg would cast a long shadow over the development of technology generally.139 Justice Breyer insisted that the Sony defence should be interpreted in a broad manner, such that the court should be relatively generous in deciding whether or not the product could be used for non-infringing uses. He noted that ‘Sony’s word “capable” refers to a plausible, not simply a theoretical, likelihood that such uses will come to pass, and that fact anchors Sony in practical reality’.140 Future uses should be taken into account, and Justice Breyer accepted the evidence that around 10 per cent of the number of files available on Grokster were likely not to be infringing. In contrast to Justice Ginsburg, Justice 134   Justice Ginsburg was joined by Chief Justice Rehnquist and Justice Kennedy, whereas Justice Breyer was joined by Justices Stevens and Day O’Connor. 135   Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913 (2005), 948. 136   ibid 946. 137   ibid 948. 138  See too JC Ginsburg and S Ricketson, ‘Inducers and Authorisers: A Comparison of the US Supreme Court’s Grokster Decision and the Australian Federal Court’s KaZaa Ruling’ (2006) 11 Media & Arts Law Review 1, 7. 139   ‘Justice Ginsburg’s approach would require defendants to produce considerably more concrete evidence – more than was presented here – to earn Sony’s shelter. That heavier evidentiary demand, and especially the more dramatic (case-by-case balancing) modifications that MGM and the Government seek, would, I believe, undercut the protection that Sony now offers’: Metro-GoldwynMayer Studios Inc v Grokster Ltd 545 US 913 (2005), 959. 140  ibid 958; cf Re Aimster Copyright Litigation 334 F 3d 643 (7th Circuit, 2003).

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Breyer thought this sufficient to constitute substantial lawful use.141 Justice Breyer was concerned not to narrow the Sony defence and said:142 Sony’s rule is clear. That clarity allows those who develop new products that are capable of substantial noninfringing uses to know, ex ante, that distribution of their product will not yield massive monetary liability. At the same time, it helps deter them from distributing products that have no other real function than – or that are specifically intended for – copyright infringement

Justice Breyer emphasised the need to prevent any ‘additional chill of technological development’.143 But even though he was much more willing to offer protection to Grokster under the substantial lawful use doctrine, the approach of the two concurring opinions seems to be fundamentally similar: both require a difficult balancing exercise to be undertaken between the rights at issue on both sides. This was explicitly recognised by Breyer J:144 The third question – whether a positive copyright impact would outweigh any technology-related loss – I find the most difficult of the three. I do not doubt that a more intrusive Sony test would generally provide greater revenue security for copyright holders. But it is harder to conclude that the gains on the copyright swings would exceed the losses on the technology roundabouts.

This raises central issues concerning the balancing process required to establish a defence of justification. The problem is perhaps particularly acute in the context of intellectual property rights, given the very real concern not to impede the development of original technologies.145 This is a significant factor when weighing various considerations within a justificatory defence. Inevitably, difficult decisions will need to be made. On balance, the opinion of Justice Ginsburg seems preferable. Where there are only minimal non-infringing uses of a product, the inherent culpability in furthering unlawful activity on a large scale might outweigh any fears about hindering technological advancement. Yet the issue of scale may well be important; where the infringements will only be minor or rare, then a different conclusion might be reached.146

141   Justice Breyer thought a similar figure appeared to suffice in Sony Corp of America v Universal City Studios Inc 464 US 417 (1984); however, in Sony it was also held that time-shifting uses were legitimate: see above. 142   Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913 (2005), 957. 143   ibid 960. 144   ibid 960. 145   Lord Templeman’s concerns in CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL) not to stultify the legitimate business of Amstrad may have been best considered under a defence similar to that in Sony Corp of America v Universal City Studios Inc 464 US 417 (1984); yet Sony was, perhaps surprisingly, not cited in CBS. 146   Ginsburg and Ricketson, ‘Inducers and Authorisers’, above n 138 at 7: ‘Speculation is hazardous, but one might predict that, where a device facilitates infringement on a massive scale, its distributor will likely be found to have intended that result. Where the infringement the device enables is relatively modest in scale, inducement will not be found, but neither will the Sony threshold for liability be held to have been crossed, whatever its height.’

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This approach means that the defence of justification will depend upon the particular facts of a case. Relevant considerations can be further elucidated by decided cases, and the test of justification is assessed objectively. This should enable defendants to have a reasonable idea about whether or not they are able to rely upon a defence. Defendants who knowingly participate in primary wrongs should be required to question whether or not their conduct is reasonable, and should not be allowed to exploit their own particular, and perhaps idiosyncratic, moral compass to escape liability.147 It is important to factor in the social good that may come about from developing lawful new technologies, but weigh that against the harm caused by wrongful acts. If the potential for technological advancement is very high, and little harm inflicted by the primary wrongdoer, the court may sensibly be more inclined to apply a defence of justification than if the converse were true. A transparent recognition of the nature of this defence might at least force courts to explain their reasoning clearly.148 Are there any lessons that can be learned from the Sony defence outside the context of intellectual property rights? Some of the relevant factors might be applied more widely. For example, the scale of infringement and potential for future developments are important considerations more generally. The sale of a lawful, innocuous product by a shopkeeper which is used to commit criminal damage may be more readily justifiable than the sale of a gun used to commit murder. But the shopkeeper’s personal interest in making a profit is not enough, purely by itself, to constitute justification. It must be coupled with broader factors relating to the public interest in protecting the free trade of lawful goods. In any event, it is clear that this type of defence will not apply where the defendant acted for the purpose of contributing to primary wrongs.149 As Giblin-Chen has noted, ‘[t]here is no justification for giving a badacting business with a new technology a “get out of jail free card” simply because it can also be used for noninfringing uses’.150 This raises an issue of general importance: defendants will only be able to rely upon a defence of justification if their motives were also justified.151 As Collins MR said in Read, ‘justification to be of any avail must cover their whole conduct, the means they used as well as the end they had in view’.152 It seems similarly principled to suggest that specific knowledge should also be able to 147   This is in keeping with the fact that it is the courts that are the arbiters of what is reasonable, not the defendant or any group of private persons. 148   This seems preferable to the uncertainty that currently surrounds the conduct elements sufficient for accessory liability in English law: see eg ch 6.III. 149   Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913 (2005); see too Patents Act 1977, s 60(3): ‘unless the supply or the offer is made for the purpose of inducing the person supplied’: quoted above at text to n 120. 150   Giblin-Chen, ‘Rewinding Sony’, above n 53 at 436. 151   Goudkamp has written that ‘it is doubtful that the label of justification should be applied to defectively motivated defendants’: Tort Law Defences, above n 6 at 98. Where the defendant’s motives are mixed, the better view is that the defence is not necessarily lost: see similarly Heydon, Economic Torts, above n 60 at 45. See too National Phonograph Co Ltd v Edison-Bell Co Ltd [1908] 1 Ch 335 (CA), 369 (Kennedy LJ). 152   Read v Friendly Society of Operative Stonemasons of England, Ireland and Wales [1902] 2 KB 732 (CA), 737.

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trump the Sony defence. For example, if a particular customer were to email Grokster to ask how he or she could access infringing material, and Grokster were to assist the customer to do so, then it would seem inappropriate to allow Grokster to rely upon any justification-based defence. There is no danger of liability expanding too greatly and ‘chilling’ technological development if it is kept within bounds by a stringent requirement of culpability; no matter what lawful advantages the technology may have, they appear to be of subsidiary importance if actual knowledge of a specific wrong is possessed by a defendant.

D.  Public Morals A defendant may justify participation in a primary wrong on the basis that he or she was acting to protect public morals. This requires the court explicitly to balance the social evil which has been prevented against the violation of the claimant’s rights. The defendant does not seek to justify his or her actions by reference to his or her own private interests, but rather to the public good. As Carpenter has observed:153 Whether a privilege of invasion exists depends upon whether it is of greater moment to society to protect the defendant in the invading activities than it is to protect and guard the plaintiff’s interest from such invasions. An evaluation and balancing of the social import of the conflicting interests of the respective parties and of the social interests per se are involved.

This aspect of the defence of justification is well recognised in the contractual sphere. In Mir Steel, David Richards J said that:154 In many of the cases in which the defence has succeeded it has involved what may be described as a higher moral purpose, justifying as a matter of public policy what would otherwise be a tortious interference with contractual relations.

However, few cases have hinged upon justification due to moral rights. The leading example is Brimelow v Casson:155 defendants who induced theatre proprietors to break contracts with a theatre manager were justified in so doing, since the theatre manager was paying his chorus girls so little that the women had to turn to ‘immoral earnings’. As Russell J put it:156 They have found by experience that the payment of less than a living wage to chorus girls frequently drives them to supplement their insufficient earnings by indulging in   Carpenter, ‘Interference’, above n 60 at 745.   Lictor Anstalt v Mir Steel UK Ltd [2011] EWHC 3310 (Ch), [2012] 1 All ER (Comm) 592, [55]. Although Jones and Dugdale, Clerk & Lindsell, above n 57 at para 24-55 contend that ‘[t]he defence [of justification] appears to be limited to fulfilment of a “moral duty” which appeals to the “good sense of the tribunal” ’ this is too narrow; as David Richards J went on to say in Lictor Anstalt v Mir Steel UK Ltd [2011] EWHC 3310 (Ch), [2012] 1 All ER (Comm) 592, [55], ‘the defence, it is clear, is not restricted to such cases’. 155   Brimelow v Casson [1924] 1 Ch 302. 156   ibid 312. 153 154

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misconduct for the purpose of gain, thus ruining themselves in morals and bringing discredit on the theatrical calling.

The decision in Brimelow v Casson has not escaped criticism. It has been described as ‘isolated’,157 and Heydon has written that ‘the decision has been often attacked and never followed’.158 Scepticism surrounding the decision is perhaps founded upon a notion that courts ought not sanction private attempts at social reform.159 Nevertheless, such criticisms are ultimately unconvincing.160 The better view is that some moral evils are sufficiently grave to justify a person’s participating in a primary wrong in order to prevent more obnoxious outcomes. This seems apt since ‘[i]nducing a person to breach a contract may not be wrong if the contract is itself a vehicle of wrongdoing’.161 Although it has been argued that ‘[t]he facts of Brimelow v Casson were so striking and almost unique that the case has little value as a precedent’,162 it is suggested that, in principle, a defendant should be able to resort to public morality as a basis for justifying his or her participation in any primary wrong. The courts will need to be convinced that a real danger to a serious public interest is posed and can reasonably be deterred or prevented through participation in the primary wrong; in the balancing exercise that must be undertaken, the nature of the primary wrong itself will be relevant,163 as will the gravity of the concerns of public morality at issue.

E.  Statutory Justification Whereas justification based upon general concerns of public morality is sometimes questioned on the basis of judges and private parties not being capable of deciding complicated issues of public morals, the same fears do not apply where Parliament has declared certain actions justifiable. The most important example of statutory justification protects trade unions and the right to strike. At common law, it has been decided by the House of Lords that unions which induce industrial strike action by their members can be liable for inducing breaches of contract, since self-interest alone is insufficient to justify the infringement of a   Jones and Dugdale, Clerk & Lindsell, above n 57 at para 24-55.  Heydon, Economic Torts, above n 60 at 42, citing Independent Oil Industries Ltd v Shell Co of Australia Ltd (1937) 37 SR (NSW) 394, 416; Camden Nominees Ltd v Forcey [1940] Ch 352, 366; Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, 495–496. 159   ‘Liability of Occupiers of Land for Injury to Adjoining Premise’ (1925) 39 Harvard Law Review 115, 116. 160   See eg Lord Halsbury: ‘Some cases may be suggested when higher and deeper considerations may, in a moral point of view, justify the refusal to do [or interference with] what has been agreed to be done. Such cases may give rise to the consideration whether, in a moral or religious point of view, you are not bound to indemnify the person whom your refusal injures’: Glamorgan Coal Co Ltd v South Wales Miners’ Federation [1905] AC 239 (HL), 245 – described by Heydon as ‘cynical’: Economic Torts, above n 60 at 43. 161   Cane, ‘Mens Rea’, above n 30 at 554. 162  Heydon, Economic Torts, above n 60 at 43. 163   Thus it may be easier to justify a breach of contract – as in Brimelow v Casson [1924] 1 Ch 302 itself – rather than a tort, for example. 157 158

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claimant’s rights.164 This is one of the principal reasons why accessory liability in contract law ‘touches a nerve’.165 However, in 1906 Parliament passed the Trade Disputes Act to protect trade unions from liability. In effect, defendants who knowingly participate in primary breaches of contract can justify their actions through relying upon statute. This provides clear guidance as to whether or not a defendant’s conduct should be characterised as reasonable such that accessory liability is not warranted, and is now encapsulated in section 219(1)(a) of the Trade Union and Labour Relations (Consolidation) Act 1992, which provides that: (1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only – (a)  that it induces another person to break a contract

This legislation maintains the freedom of defendants to act in order to further socially important industrial objectives,166 although it should not be abused or used for political purposes.167 Statutory justifications can be found beyond the confines of the law on industrial relations. For example, in G Scammell and Nephew, Ltd v Hurley,168 the Court of Appeal held that the chairman of a council committee169 was not liable as an accessory to a breach of contract, despite knowingly participating in the deprivation of the claimant’s electricity supply: the committee was covered by a statutory immunity provided by section 1 of the Public Authorities Protection Act 1893 since the committee was acting in the execution of its public powers. In a similar vein, in Stott v Gamble,170 licensing magistrates were justified in banning a film, even though that induced a breach of the claimant’s contract, because they were acting under statutory authority.171 Such statutory authorisation would equally alleviate liability for other private law wrongs.172 164   South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 (HL), see section 11 above. 165   Howarth, ‘Against Lumley’, above n 27 at 196. 166   ‘The common law confers no right to strike in this country. Workers who take strike action will usually be acting in breach of their contracts of employment. Those who organise the strike will typically be liable for inducing a breach of contract, and sometimes other economic torts are committed during the course of a strike. Without some protection from these potential liabilities, virtually all industrial action would be unlawful. Accordingly, ever since the Trade Disputes Act 1906 legislation has been in place to confer immunities on the organisers of strikes from certain tort liabilities provided, to put it broadly, that the purpose of the action is to advance an industrial rather than a political objective. This is achieved by a requirement that the industrial action must be “in contemplation or furtherance of a trade dispute”, the current protection is afforded by s 219 of the 1992 Act. The legislation therefore secures a freedom rather than conferring a right as such.’: Serco Ltd v National Union of Rail, Maritime and Transport Workers [2011] EWCA Civ 226, [2011] 3 All ER 913, [2] (Elias LJ). 167   For some restrictions on the application of Trade Union and Labour Relations (Consolidation) Act 1992, s 219, see ss 222–225. 168   [1929] 1 KB 419 (CA). 169   The future Prime Minister, Clement Atlee. 170   Stott v Gamble [1916] 2 KB 504. 171   Cinematograph Act 1909, ss 5 and 6. 172  See eg Whittaker v Child Support Registrar [2010] FCA 43, (2010) 264 ALR 473: where the

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It is important to remember that many statutory defences will be lost if relied upon with an inappropriate motive. In the context of intellectual property rights, internet service providers, for instance, may benefit from a defence of ‘safe harbour’ and simply being a ‘conduit’ exploited for infringing acts; 173 but accessory liability may nevertheless lie if the defendant had specific knowledge of the primary wrong at issue. In L’Oréal SA v eBay International AG,174 L’Oréal argued that eBay was responsible for helping vendors sell counterfeit products which infringed L’Oréal’s trade mark. eBay relied upon Article 14 of the E-Commerce Directive, which provides that a defendant may be able to exploit a ‘safe harbour’ defence, but it was found that this would not be available to ‘hosters’ of infringing material who possessed ‘actual knowledge’ of the primary infringement.175

III. Withdrawal The scope of a defence of withdrawal in the private law is unclear. It has received some recognition in the neighbouring context of conspiracy, where the defendant is required to communicate his or her withdrawal to the primary wrongdoer.176 Withdrawal is also recognised as an appropriate defence in the criminal law.177 Just as in the criminal context, it is suggested that the withdrawal should be effective to negate the defendant’s participation in the primary wrong. The defendant must take serious steps in order to ensure that the primary wrong is not influenced by the defendant’s earlier conduct in any way. As regards assistance, this should require the defendant to withdraw the assistance already rendered and nullify its effect. In the context of inducement, it seems reasonable to demand that the defendant counter any previous persuasion to commit the primary wrong by (at least) just as strongly urging the primary wrongdoer not to do so. In some circumstances, the primary wrongdoer may maintain that he or she was influenced by the initial inducement of the defendant despite the latter’s later attempts to withdraw from the wrong. If the initial acts of the defendant did in fact play a substantial causal role in the infringement of the claimant’s rights, accessory liability may prima facie be established; the defendant’s withdrawal did defendant customs officers acted under statutory authority, this provided a ‘short answer’ to a claim of accessory liability in the context of false imprisonment and the Lumley tort. In the context of intellectual property, see eg E-Commerce Directive (European Parliament and Council Directive 2000/31/EC of 8 June 2000) arts 12–15. 173   See eg E-Commerce Directive (European Parliament and Council Directive 2000/31/EC of 8 June 2000) arts 12–15. 174   L’Oréal SA v eBay International AG Case C-324/09, [2012] All ER (EC) 501. 175   ibid [162]–[168] (Opinion of AG Jääskinen), [118]–[124] (decision of CJEU). See too Sony Corp of America v Universal City Studios Inc 464 US 417 (1984). 176   See eg Lemons v Kelly (1964) 397 P 2d 784 (Or 1964), 787; see Cooper, Secondary Liability, above n 10 at 173. 177   See ch 3.V.B.

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not negate the causative impact of his or her conduct. Nevertheless, it might seem reasonable to afford the defendant a defence, even though the attempts to discourage the commission of that wrong were ultimately unsuccessful. It is crucial that the court be satisfied that the defendant’s actions were sincere and reasonably counter-balanced the initial acts of inducement.178 It may be necessary to inform the police or intended victim of the wrong in some situations.

IV. Limitation A defendant might be able to rely upon the expiry of a limitation period in order to evade liability as an accessory. Importantly, a limitation period does not eliminate the wrong itself, but merely means that a claimant cannot sue upon that wrong.179 Thus if a claim is time-barred against a primary wrongdoer, a claim against an accessory may still be possible. This could be conceivable where the involvement of the accessory was concealed from the claimant,180 or where the claimant only knew the identity and participation of the accessory at a date subsequent to discovering the identity of the primary wrongdoer.181 In such circumstances, the limitation period against the accessory would only commence at a date after that from which time began to run against the primary wrongdoer. The limitation period upon which a primary wrongdoer and accessory can rely will not always be precisely the same. This is unsurprising given the different nature of their wrongs. Yet the language of ‘secondary liability’ has sometimes led to an assumption that the limitation period applicable against the primary wrongdoer will be mirrored as against the defendant.182 In equity, this is compounded by the unfortunate label of ‘constructive trustee’ often used to describe the liability of an accessory. This language is inappropriate; the defendant may never receive any property upon which trust obligations might bite.183 Nevertheless, such language has complicated consideration of section 21 of the Limitation Act 1980 in particular, which provides that: 178   Warnings that are ‘entirely cosmetic’ and ‘superficial’ will be insufficient: Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2011] Bus LR D49, [43]–[45]. See too Coventry v Lawrence [2014] UKSC 46, [2014] 3 WLR 555, [17] (Lord Neuberger (with whom Lord Clarke and Lord Sumption agreed)). Admittedly, this may be difficult to prove: see Lord Sugar’s comments on CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL) in his autobiography, discussed at ch 6.VI.D. 179   See eg Curwen v Milburn (1889) 42 Ch D 424 (CA), 434–435 (Cotton LJ), Royal Norwegian Government v Constant & Constant and Calcutta Marine Engineering Co [1960] 2 Lloyd’s Rep 431 (QBD), 442 (Diplock J). 180   Limitation Act 1980, s 32; Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355, [119] (Lord Neuberger). 181   See eg Limitation Act 1980, s 14 as regards personal injury. 182  Cooper, Secondary Liability, above n 10 at 174. 183   See eg Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355, [66] (Lord Neuberger); Paragon Finance plc v D B Thakerar & Co [1999] 1 All ER 400 (CA), 409 (Millett LJ); Harpum, ‘The Stranger’, above n 49 at 288.

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(1)  No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action – (a)  in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or (b)  to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use. ... (3)  Subject to the preceding provisions of this section, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued.

Section 21(1)(a) clearly covers situations where the trustee has committed a fraudulent breach of trust, but does this also mean that no limitation period is prescribed against an accessory? There was some authority to suggest that this question should be answered in the affirmative,184 but in Williams v Central Bank of Nigeria185 the Supreme Court has decisively rejected such an approach.186 In Williams, an English solicitor held money on trust for Dr Williams, a Nigerian national resident in England. The solicitor fraudulently paid, in breach of trust, some of the money into an English account of the Central Bank of Nigeria, and Dr Williams argued that the Central Bank of Nigeria had dishonestly assisted the solicitor’s fraudulent breach of trust.187 But all these events happened in 1986, and Dr Williams commenced proceedings in 2010. The majority of the Supreme Court overturned the decision of the Court of Appeal188 and held that Dr Williams’ claim was time-barred.189 Both Lord Sumption and Lord Neuberger were clear that dishonest assisters are not truly trustees.190 Lord Neuberger pointed out that ‘there is no reason why an accessory to a fraud should not be subject to a shorter limitation period than the principal fraudster’.191 Their Lordships cited with approval Lord Hoffmann’s insistence in Peconic Industrial Development Ltd v Lau Kwok Fai that ‘the limitation period is denied to fiduciaries. But dishonest assis eg Soar v Ashwell [1893] 2 QB 390 (CA), 393 (Lord Esher MR).   [2014] UKSC 10, [2014] 2 WLR 355.   See too Paragon Finance plc v D B Thakerar & Co [1999] 1 All ER 400 (CA); Cattley v Pollard [2006] EWHC 3130 (Ch), [2007] Ch 353; Peconic Industrial Development Ltd v Lau Kwok Fai [2009] HKCFA 17, [2009] HKLRD 537. 187   There was also a claim for knowing receipt, which need not be analysed here: see further PS Davies, ‘Limitation in Equity’ [2014] Lloyd’s Maritime and Commercial Law Quarterly 313. 188   [2012] EWCA Civ 415, [2013] QB 499. 189   Lord Sumption, Neuberger and Hughes constituted the majority; Lord Mance and Lord Clarke dissented. 190   Lord Hughes agreed with both Lord Neuberger and Lord Sumption, and Lord Clarke was also persuaded on this point: Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355, [165]. Only Lord Mance dissented on this issue. 191   Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355, [65]. 184 185 186

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ters are not fiduciaries’.192 The nature of the accessory’s liability is distinct from that of the primary wrongdoer. The decision of the Supreme Court in Williams is welcome and consistent with the true nature of accessory liability. A contrary approach could mean that the limitation period available against an accessory would depend upon whether the primary breach of trust was fraudulent or not; this seems inconsistent with the rejection of Barnes v Addy193 on this point in Royal Brunei Airlines Sdn Bhd v Tan.194 An accessory may not even know whether or not the primary breach of trust is fraudulent, and the limitation period upon which he or she can rely should not be subject to such vagaries. It also brings the limitation period for claims against accessories in equity into line with the limitation period which applies to accessories in the contractual context: claims must be brought within six years from the date of the accrual of the cause of action.195

V. Conclusion The defences available to a primary wrongdoer and accessory are not always the same. This bolsters the contention that the nature of liability imposed upon the primary wrongdoer and accessory are different. Of course, in many situations the reasons why a claim against a primary wrongdoer will fail are the same as the reasons why a claim against an accessory will fail, but the two claims need to be analysed differently and should not be assumed to be the same. Insufficient attention has been paid to the importance of defences in the context of accessory liability. Defences often appear to have been mixed up within the conduct and mental elements of accessory liability.196 Although it might be possible largely to obviate the need for defences by further restricting the conduct and mental elements of accessory liability,197 this could have the consequence of narrowing the net of accessory liability such that defendants who ought to be liable would escape sanction. It is more straightforward and understandable to recognise that knowing participation in a primary wrong is unlawful, unless the

192   [2009] HKCFA 17, [2009] HKLRD 537, [24], cited by Lord Sumption at Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355, [28]; see too Lord Neuberger at [118]. 193   Barnes v Addy (1874) LR 9 Ch App 244. 194   [1995] 2 AC 378 (PC); see ch 4.I.C and 4.III.A; cf Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355, [157] (Lord Mance, dissenting). 195  In Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355, it was accepted by counsel and all the Justices that s 21(3) of the Limitation Act applies to dishonest assisters. But compare W Swadling, ‘Limitation’ in P Birks and A Pretto (eds), Breach of Trust (Oxford, Hart Publishing, 2002) 341–342, who argues that, since s 21(3) was only ever designed to cover express trustees, no limitation period, and only laches, applies to dishonest assisters. 196   eg Carty has observed that ‘at times the [Lumley] tort and its justification are mixed together to provide an unsatisfactory analysis’: H Carty, An Analysis of the Economic Torts (Oxford, Oxford University Press, 2001) 73. 197   See generally Goudkamp, Tort Law Defences, above n 6 at ch 2.

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defendant can rely upon an available defence.198 This might help accessory liability to adopt a more coherent structure.199 The most important defences available to an accessory can be brought within the broad umbrella of justification. Provided that the conduct and mental elements are satisfied, it does not seem unreasonable for a defendant to have to justify his or her actions by relying upon significant factors which might countervail the claimant’s interests.

198   Some doctrines which may presently be termed ‘defences’ could perhaps be interpreted as ‘denials’ of one of the elements of a claim: see generally ibid ch 3. One example might be ‘innocent dissemination’ in the context of defamation (Defamation Act 1996, s 1); to the extent that this operates in the context of accessory liability, it may negate the mental element of liability, rather than operate as a substantive defence. 199   cf the impact of the change of position defence upon the elements of a claim in unjust enrichment after Lipkin Gorman v Karpnale Ltd [1990] 2 AC 548 (HL). See eg J Goudkamp and C Mitchell, ‘Denials and Defences in the Law of Unjust Enrichment’ in C Mitchell and W Swadling (eds), The Restatement Third, Restitution and Unjust Enrichment: Comparative and Critical Essays (Oxford, Hart Publishing, 2013).

8 Remedies The focus on when accessory liability should arise has often obscured the question of what remedies are appropriate. Yet a major reason why claims are brought against accessories is the possibility of effective redress for the infringement of a claimant’s rights. It is therefore important clearly to establish what remedies are available. The principles underpinning compensatory awards, gain-based awards and injunctions will be analysed in this chapter. Similar considerations appear to apply across the private law;1 regardless of the precise characterisation of the claim, both injunctions and damages should potentially be available.

I.  ‘Secondary’ Liability Exposed The language of ‘secondary liability’ has sometimes been thought to decide the question of remedies. For example, Cooper has written that ‘a secondary party is liable, albeit secondarily, for the same wrong as the primary wrongdoer, and so the liability of each should be joint and equal’.2 However, this conclusion seems too quick. It might rest partly upon the false premise that the criminal law adopts the same approach;3 the punishment imposed upon the principal and accessory in the criminal law may legitimately differ.4 The better view is that the language of ‘secondary’ liability offers little guidance about what remedies should be awarded.5 In the equitable sphere, Lord Nicholls has observed that accessory liability ‘is a form of secondary liability in the sense that it only arises where there has been a breach of trust’.6 This concerns when a defendant will be liable as an accessory; it does not suggest what remedies should be available against that defendant. 1   The issue of remedies has generally received most attention in the equitable sphere; this may be because claimants in equity tend to seek monetary awards, whereas claimants at common law often desire injunctive relief against an accessory. 2   D Cooper, Secondary Liability for Civil Wrongs (PhD thesis, University of Cambridge, 1996) 153. 3   SB Elliott and C Mitchell, ‘Remedies for Dishonest Assistance’ (2004) 67 MLR 16, 46: ‘duplicative secondary liability comparable to secondary criminal liability’. 4   R v Broadbridge (1983) 5 Cr App Rep (S) 269 (CA); PJ Richardson (ed), Archbold Criminal Pleading, Evidence and Practice (London, Sweet & Maxwell, 2013) paras 5-154–5-159. 5   See generally ch 2.IV. 6   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 382.

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The preferable view is that an accessory is liable for his or her own wrong. This can be seen to be a form of ‘primary’ liability,7 although it is clearly not freestanding: liability is parasitic upon the primary wrong.8 The accessory’s liability should be considered separately from that of the primary wrongdoer;9 the conceptual space for different remedies against each is best accommodated by distinguishing the liability of the primary wrongdoer from that of the accessory. This helps to explain, for instance, why an injunction may be awarded against an accessory, even though such relief would not be available against the primary wrongdoer.10

II. Compensation A. Equity In Royal Brunei Airlines Sdn Bhd v Tan, Lord Nicholls said that ‘[a] liability in equity to make good resulting loss attaches to a person who dishonestly procures or assists in a breach of trust or fiduciary obligation’.11 That an accessory is traditionally thought to be liable as a ‘constructive trustee’ has led to a general acceptance that an accessory can be liable to compensate the claimant.12 In Cowper v Stoneham,13 the court held that ‘[a]ll parties to a breach of trust are equally liable’, and more recently in Ultraframe (UK) Ltd v Fielding, Lewison J could ‘see that it makes sense for a dishonest assistant to be jointly and severally liable for any loss which the beneficiary suffers as a result of a breach of trust’.14 Labelling an accessory a ‘trustee’ is clearly fictional and should be jettisoned;15 it may have been invoked in order to comply with a traditional rule of trust law that beneficiaries can only sue their trustees.16 Because of the parasitic – but not neces  P Ridge, ‘Justifying the Remedies for Dishonest Assistance’ (2008) 124 LQR 445.   This has been called ‘mixed’ joint liability: GL Williams, Joint torts and Contributory Negligence (London, Stevens & Sons, 1951) 3. In Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355, [9] Lord Sumption spoke of ‘ancillary liability’. 9   See eg Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48, (2011) 244 CLR 427, [106]; Novoship (UK) Ltd v Nikitin [2014] EWCA Civ 908, [2014] NLJ 7615. 10   See section VII below. 11   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 392. 12  eg Casio Computer Co Ltd v Sayo (No 3) [2001] EWCA Civ 661. 13   Cowper v Stoneham (1893) 68 LT 18 (Ch D), 19. 14   Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2006] FSR 17, [1600] (emphasis in original). See too eg Arab Monetary Fund v Hashim (No 9) The Times, 11 October 1994 (Ch) (Chadwick J). 15   See recently Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355. Birks thought that the language of ‘constructive trust’ was ‘surplusage’: P Birks, ‘Trusts in the Recovery of Misapplied Assets: Tracing, Trusts and Restitution’ in E McKendrick (ed), Commercial Aspects of Trusts and Fiduciary Obligations (Oxford, Clarendon Press, 1992) 149. 16   L Smith, ‘Constructive Trusts and Constructive Trustees’ (1999) 58 CLJ 294, 300. cf Elliott and Mitchell, ‘Remedies’, above n 3 at 23. 7 8

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sarily duplicative – nature of accessory liability,17 the liability of the accessory and primary wrongdoer to compensate the claimant is often the same.18 But this will not always be the case; since ‘breach of trust and dishonest participation in a breach of trust are two species of equitable wrongs’,19 it might be expected that the accessory and primary wrongdoer will not always be liable to the same extent. An accessory should only be liable for losses suffered as a result of the accessory’s participation in the breach of trust or fiduciary duty.20 Instances where the liability of the accessory and primary wrongdoer will not replicate one another can be envisaged. For example, if the first defendant encourages a trustee to misappropriate £1,000 (and no more) from a trust fund, and the second defendant also encourages the same trustee to misappropriate the same sum, the combined encouragement might lead to the trustee’s misappropriating £2,000 from the trust fund. The beneficiary could sue the trustee for £2,000, but may only be able to sue the first defendant and second defendant for £1,000 each.21 On one view, in the realm of breach of trust, at least, ‘considerations of causation, foreseeability and remoteness do not readily enter into the matter’22 where the trustee is called on to place the trust in the position it would have been in had no breach of trust occurred. However, this seems to exaggerate the current position in England and Wales,23 and in any event it is inappropriate for an accessory to have a duty to account in the same manner as a trustee since the accessory is not a trustee. More generally, compensation in equity is a difficult area.24 Nevertheless, it might generally be said that the equitable rules tend to favour the claimant over a wrongdoer more than the common law would, given the relative vulnerability of the claimant. For example, if a fiduciary commits a breach of fiduciary duty, he or she seems unable to contend that the principal’s losses are too remote where they are caused by that primary wrong.25 But an accessory has not   Ridge, ‘Justifying the Remedies’, above n 7 at 458.   At least towards the claimant: for consideration of the issues of contribution, see section V below. In Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366, [141] Lord Millett said that an accessory ‘is not in fact a trustee at all, even though he may be liable to account as if he were’. 19  Lord Nicholls, ‘Knowing Receipt: The Need for a New Landmark’ in W Cornish, R Nolan, J O’Sullivan and G Virgo (eds), Restitution: Past, Present and Future (Oxford, Hart Publishing, 1998) 244. 20  eg Aerostar Maintenance International Ltd v Wilson [2010] EWHC 2032 (Ch), [209]–[216] (Morgan J); Goldtrail Travel Ltd v Aydin [2014] EWHC 1587 (Ch), [174]–[178] (Rose J). 21   This assumes that the encouragement of each defendant individually only had a causal impact upon the breach of trust to the value of £1,000. 22   In re Dawson (dec’d) [1966] 2 NSWR 211 (NSWSC), 215 (Street J). 23   See eg Target Holdings Ltd v Redferns [1996] AC 421 (HL); AIB Group (UK) Plc v Mark Redler & Co Solicitors [2013] EWCA Civ 415; the Supreme Court has heard the appeal in the latter case and judgment is pending. 24  See generally M Conaglen, ‘Equitable Compensation for Breach of Fiduciary Dealing Rules’ (2003) 119 LQR 246; JS Getzler, ‘Equitable Compensation and the Regulation of Fiduciary Relationships’ in PBH Birks and FD Rose (eds), Restitution and Equity Volume 1: Resulting Trusts and Equitable Compensation (London, Mansfield Press, 2000). 25   Although at some point the cause of the beneficiary’s loss may be something other than the breach of duty, including the beneficiary’s own conduct: see eg the speech of McLachlin J in Canson Enterprises Ltd v Boughton & Co (1991) 85 DLR (4th) 129 (SCC); see too Lipkin Gorman v Karpnale Ltd [1987] 1 WLR 987 (QBD), 1019 (Alliott J). 17 18

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voluntarily assumed any fiduciary obligations, so might argue that he or she should not be subject to such stringent rules of remoteness.26 It is suggested that such arguments should be rejected. The demanding mental element required for accessory liability, and the fact that the accessory must be aware of the facts giving rise to the fiduciary relationship and hence the vulnerability of the claimant, strongly suggest that it is appropriate for the culpable accessory to be liable for all losses that flow from the wrong, without recourse to limiting concepts such as ‘reasonable foreseeability’.27

B. Contract Whereas in equity the terminology of ‘constructive trustee’ has led to a tendency to merge the liability of the accessory with that of the primary wrongdoer, in the contractual sphere the different nature of an accessory’s liability is clearly recognised. The language of a ‘tort of inducing a breach of contract’ suggests that the liability of the accessory is tortious and not contractual.28 This indicates that the remedies against the accessory and primary wrongdoer may differ. In Lumley v Gye, Erle J expressly recognised that the remedies available against the accessory may go beyond those which might be awarded against the contractbreaker:29 He who procures the non-delivery of goods according to contract may inflict an injury, the same as he who procures the abstraction of goods after delivery, and both ought on the same ground to be made responsible. The remedy on the contract may be inadequate, as where the measures [sic] of damages is restricted; or in the case of nonpayment of a debt where the damage may be bankruptcy to the creditor who is disappointed, but the measure of damages against the debtor is interest only; or, in the case of the non-delivery of the goods, the disappointment may lead to a heavy forfeiture under a contract to complete a work within a time, but the measure of damages against the vendor of the goods for non-delivery may be only the difference between the contract price and the market value of the goods in question at the time of the breach. In such cases, he who procures the damage maliciously might justly be made responsible beyond the liability of the contractor.

A breach of contract is actionable per se, but the same is not true of the Lumley tort; orthodoxy requires that the claimant must prove actual loss.30 Damages 26   Rules of remoteness are based upon the idea that it could be unfair to make the defendant liable for all losses that flow from a wrong: see eg AS Burrows, Remedies for Torts and Breach of Contract, 3rd edn (Oxford, Oxford University Press, 2004) 76. 27   This mirrors the approach taken at common law regarding ‘intentional torts’: see section II.B below. 28   Although in CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL), 1058, Lord Templeman thought Gye and Wagner were ‘joint wrongdoers’, it is preferable to consider them to be concurrent wrongdoers since they were not jointly committing the same wrong: R Stevens, Torts and Rights (Oxford, Oxford University Press, 2007) 276. 29   Lumley v Gye (1853) 2 E & B 216, 233–234. 30   Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2009] UKPC 45, [2011] 1 WLR 2370, [60]

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awarded under Lumley are ‘at large’,31 meaning that it is not necessary to give proof of special damage;32 damages which would have been inflicted upon the claimant in the ordinary course of business will be inferred by the court.33 This may include loss of profit.34 Moreover, non-pecuniary loss may be recovered more readily against an accessory than a contract-breaker,35 although there is some suggestion that pecuniary loss must first be established.36 The rules of remoteness may apply differently to the accessory and primary wrongdoer. The claimant’s losses may not be recoverable in contract if the losses were ‘extraordinary’ and unknown at the time the contract was concluded,37 but could be recoverable against the accessory who was not in any contractual relationship with the claimant. One argument against this approach relies upon the contention that where a claim may be brought in contract and tort concurrently, it appears that the contractual principles of remoteness should ‘trump’ the tortious rules when tort liability only arises out of a contractual relationship;38 since contractual liability is essential for accessory liability, it might be argued, by analogy, that the accessory could benefit from the more restrictive contractual rules on remoteness. This argument should be rejected. The rules of remoteness for breach of contract are restricted because the contracting parties had the opportunity to make each other aware of any unusual risks, so that they could then choose whether or not to assume the responsibility for those risks.39 Such reasoning does not apply to accessories. But what remoteness principles do apply to those who culpably participate in a breach of contract? Stevens has suggested that such defendants will only be liable for losses which were ‘reasonably foreseeable’ at the time of the defendant’s conduct,40 since ‘at least where the defendant is not guilty of deliberate wrongdoing, the general rule is that only reasonably foreseeable (Lord Walker). 31   Said v Butt [1920] 3 KB 497, 504 (McCardie J). 32   This has led a Canadian court to suggest that ‘the amount to be awarded for the wrongful inducing of breach of contract must of necessity be inexact and even to a degree arbitrary’: Vale v International Longshoremen’s and Warehousemen’s Union, Local 508 (1979) 12 BCLR 249 (CA), 253 (McFarlane JA). 33   Exchange Telegraph Co Ltd v Gregory & Co [1896] 1 QB 147 (CA), 153 (Lord Esher MR); Goldsoll v Goldman [1914] 2 Ch 603, 605 (Neville J) (affirmed in [1915] 1 Ch 292 (CA)). 34  eg Exchange Telegraph Co Ltd v Gregory & Co [1896] 1 QB 147 (CA), 153 (Lord Esher MR); Goldsoll v Goldman [1914] 2 Ch 603; The Kaliningrad [1997] 2 Lloyd’s Rep 35 (Admlty Ct); Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040, (2001) 110 FCR 157, [151]. 35   Said v Butt [1920] 3 KB 497, 504–505. 36   Pratt v British Medical Association [1919] 1 KB 244, 281 (McCardie J). 37   Hadley v Baxendale (1854) 9 Exch 341. However, Weir has doubted whether Hadley v Baxendale would apply to a deliberate breach of contract inspired by a bribe, thus challenging the view that the tort action for inducing such a deliberate breach might afford a more generous remoteness rule: T Weir, ‘The Staggering March of Negligence’ in P Cane and J Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming (Oxford, Clarendon Press, 1998) 126. 38   J Morgan, ‘Liability for Lost Future Business in Contract’ (2005) 64 CLJ 285, 287. 39   Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2008] UKHL 48, [2009] AC 61. See too A Robertson, ‘The Basis of the Remoteness Rule in Contract’ (2008) 28 Legal Studies 172. 40  Stevens, Torts and Rights, above n 28 at 160, citing Boxfoldia Ltd v National Graphical Association [1988] IRLR 383 (QBD), 388 (Saville J), but in that case the losses were reasonably foreseeable so the point did not need to be tested.

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consequential losses are recoverable’.41 Yet an accessory is guilty of deliberate wrongdoing. Since the defendant should actually know of the primary wrong in order to incur liability as an accessory, unforgiving rules of remoteness seem appropriate; the consideration of Lumley under the heading of ‘intentional torts’42 highlights that negligent conduct is not at issue so a limiting test of ‘reasonable foreseeability’ in the context of remoteness seems inappropriate.43 This approach might further deter participation in a primary wrong,44 and ensure that losses are borne by the culpable accessory than innocent claimant.45 In some circumstances, a claimant may only be able to recover a lesser amount against the accessory than he or she could recover against the primary wrongdoer. For instance, it may be that an accessory ‘is not responsible for the continuation of the breach during which the pecuniary loss continues to arise from the breach of contract’.46 If the accessory induces another to commit a breach of contract by supplying goods of a lesser quality than that promised, the contract-breaker may be liable for the difference in market value of the goods, even though the claimant did not in fact suffer any loss.47 But the claimant may not be able to recover a similar amount from the accessory, since the claimant cannot prove the necessary damage. Although the losses recoverable against the contract-breaker and accessory may therefore feasibly differ, damages awarded under Lumley ‘will not generally exceed those recoverable for the breach’.48 In DC Thomson & Co Ltd v Deakin, Evershed MR commented that ‘the result [under Lumley] is, for practical purposes, as though in substance he, the intervener, is breaking the contract, although he is not a party to it.’49 The losses suffered by the claimant will usually be recoverable against both the primary wrongdoer and accessory where the accessory has contributed to the breach of contract. 41  Stevens, Torts and Rights, above n 28 at 160. See too Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 (PC). 42   In the sense that the consequences are known: P Cane, The Anatomy of Tort Law (Oxford, Hart Publishing, 1997) 32–33. 43   eg M Jones and A Dugdale (eds), Clerk & Lindsell on Torts, 20th edn (London, Sweet & Maxwell, 2010) para 2-139; H McGregor, McGregor on Damages, 18th edn (London, Sweet & Maxwell, 2009) para 6-014. Thus the test in Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158 (CA) should be preferred to Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 (PC) as regards accessories. 44   Smith New Court Securities Ltd v Citibank NA [1997] AC 254 (HL), 279 (Lord Steyn). 45   ibid 280 (Lord Steyn). See too HLA Hart and T Honoré, Causation in the Law, 2nd edn (Oxford, Oxford University Press, 1985) 304. 46   Garbutt Business College Ltd v Henderson [1939] 4 DLR 151 (Alta SC (App Div)) (Ford JA); Vale v International Longshoremen’s & Warehousemen’s Union, Local 508 (1979) 12 BCLR 249 (CA), 257–258 (Seaton JA). 47   Slater v Hoyle & Smith Ltd [1920] 2 KB 11 (CA); William Bros v Ed T Aguis Ltd [1914] AC 510 (HL). cf Bence Graphics International Ltd v Fasson UK Ltd [1998] QB 87 (CA). 48   Garbutt Business College Ltd v Henderson [1939] 4 DLR 151 (Alta SC (App Div)) (Ford JA); Vale v International Longshoremen’s & Warehousemen’s Union, Local 508 (1979) 12 BCLR 249 (CA), 257–258 (Seaton JA). 49   DC Thomson & Co Ltd v Deakin [1952] Ch 646, 677. See too AP Simester and W Chan, ‘Inducing a Breach of Contract: One Tort or Two?’ (2004) 63 CLJ 132, 135.

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C. Tort The language of ‘joint tortfeasance’ seems to have led to an assumption that an accessory is inevitably jointly and severally liable with the primary tortfeasor, and that the measure of compensatory damages is the same against both parties.50 But in some situations, the compensatory remedies available against the primary tortfeasor and accessory might nonetheless diverge. For example the remoteness rules that apply against a culpable accessory may be more stringent than those that apply against the primary tortfeasor; a defendant who dishonestly induces an innocent party to commit the tort of conversion will be subject to less forgiving rules of remoteness than the primary tortfeasor.51 Furthermore, aggravated damages may be awarded where the manner in which the defendant has committed the tort, or the defendant’s motives, or conduct subsequent to the tort, has upset or outraged the claimant.52 Such awards are closely tied to a particular defendant’s conduct, and may be appropriately awarded against one defendant and not another.53

D.  Clauses Expressly Agreed with the Primary Wrongdoer Clauses in a trust instrument or contract may explicitly limit the remedy available against the primary wrongdoer. Examples include time limiting clauses, liquidated damages clauses, and exclusion clauses. It is important to consider whether or not such clauses may also be relied upon by accessories. Contract law does not assess the manner of breach, but solely the reasonableness of the limitation clause; it does not matter if a contract-breaker acts reprehensibly in deliberately deciding to breach his or her contractual obligations and rely upon a limitation clause, as long as the clause was reasonable at the time the contract was made.54 It is unclear what effect these clauses have against accessories. On one view, such clauses might limit the scope of the contractual rights of the claimant, and effectively ‘cap’ the amount of damages the claimant can hope to recover from any defendant.55 Deakin and Randall have argued that:56

50   However, some dissatisfaction with joint and several liability has been expressed in the context of intellectual property rights: see eg D Lievens, ‘eBay’s Accessory Liability for Counterfeiting – Why Joint Tort Liability Just Doesn’t Cut the Mustard’ [2011] International Review of Intellectual Property and Competition Law 506. 51   See eg Kuwait Airways Corp v Iraqi Airways Co [2002] UKHL 19, [2002] 2 AC 883, [102]–[104] (Lord Nicholls). 52   See generally Law Commission, Aggravated, Exemplary and Restitutionary Damages (Law Com No 247, 1997) pt II. 53   See eg Coventry v Lawrence (No 2) [2014] UKSC 46, [2014] 3 WLR 555, [72] (Lord Mance). 54   See eg Unfair Contract Terms Act 1977, s 11. 55   See generally B Coote, Exception Clauses (London, Sweet & Maxwell, 1964). 56   S Deakin and J Randall, ‘Rethinking the Economic Torts’ (2009) 72 MLR 519, 538.

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Where an exemption or limitation clause severely limits, or cancels out, any claim they would have against the other contracting party, it is hard to see why they should be regarded as having an interest which is worthy of protection by the Lumley v Gye tort.

This approach suggests that the limitation clause operates upon the claimant as against all other parties, and might also be adopted as regards liquidated damages clauses and time limit clauses, for example.57 However, the better view is that limitation clauses do not extend to third parties, and simply provide a partial defence to a claim for full compensation which is personal to the contract-breaker; the claimant only agreed to limit his or her remedy as against the other contracting party.58 A culpable participant in a primary wrong should not be able to rely upon an exclusion clause that was bargained for exclusively for the benefit of the contract-breaker. The law is similarly unclear in the equitable context.59 The traditional language of ‘constructive trusteeship’ might have influenced the suggestion that an accessory is liable as if a trustee, such that the accessory’s liability should not exceed that which would have been incurred had he or she in fact been a trustee;60 thus, when considering the liability of the accessory, any limitation in the trust instrument itself should not be disregarded.61 However, the abandonment of the language of ‘constructive trusteeship’, and clearer recognition of the distinct nature of accessory liability, tends to favour the conclusion that an exclusion clause should have no effect against a dishonest assister. For instance, Ridge has written that ‘[t]here is no reason why a dishonest [defendant] should be able to avoid liability because he or she dealt with an honest trustee’ who is able to rely upon an exclusion clause.62 This emphasises the culpability of the defendant in participating in the breach of trust or fiduciary duty, and seems to draw support from the fact that, unlike in the contractual context, a trustee acting dishonestly cannot rely upon an exclusion clause; in equity, exclusion clauses can only be relied upon if the manner of the breach is not dishonest.63 It is unsatisfactory for the accessory’s   See D Yates, Exclusion Clauses in Contracts, 2nd edn (London, Sweet & Maxwell, 1982) 33–41.   Third parties have traditionally struggled, at common law, to obtain the benefit of an exclusion clause contained in a contract to which they were not party: see eg Scruttons Ltd v Midland Silicones Ltd [1962] AC 446 (HL); E Peel (ed), Treitel: The Law of Contract, 12th edn (London, Sweet & Mawell, 2007) 663–684. 59   Statutory reform in the area of trustee exemption clauses once looked likely, but that is no longer the case: compare Law Commission, Trustee Exemption Clauses (Law Com No 171, 2002) and Law Commission, Trustee Exemption Clauses (Law Com No 301, 2006). 60   See C Mitchell, ‘Assistance’ in P Birks and A Pretto (eds), Breach of Trust (Oxford, Hart Publishing, 2002) 209. 61  eg Re Lands Allotment Co [1894] 1 Ch 616 (CA), 625 (Wright J): ‘since their liability is only because of, or depends upon, their being assimilated to trustees, it seems to me it would be wrong to hold them entitled to less protection than the protection to which real trustees would be entitled’; see too 631 (Lindley LJ), 638 (Kay LJ). Admittedly, this case concerned limitation periods rather than limitation clauses: see ch 7.IV. 62   Ridge, ‘Justifying the Remedies’, above n 7 at 450. See too J Mowbray, Lewin on Trusts, 18th edn (London, Sweet & Maxwell, 2008) para 40.20. 63   Armitage v Nurse [1998] Ch 241 (CA); Spread Trustee Co Ltd v Hutcheson [2011] UKPC 13, [2012] 2 AC 194. 57 58

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liability to depend upon whether the primary wrongdoer acted in good or bad faith,64 and the fact that the fiduciary is able to rely upon an exclusion clause should not inevitably avail an accessory. A defendant who satisfies the stringent mental element required of liability, and has no otherwise available defence, should not be able to rely upon an exclusion clause which reduces a primary wrongdoer’s liability in the event of breach of duty.65 Another tricky issue arises where a claimant releases a primary wrongdoer from liability: does this also mean that the claimant cannot sue an accessory for losses suffered?66 In Yeshiva Properties No 1 Pty Ltd v Marshall, Bryson JA thought that ‘it is doubtful whether an equitable remedy against an alleged accessary [sic] should be granted to a plaintiff who has given the alleged defaulting trustee or fiduciary a release’.67 It is suggested that where the claimant effectively consents to the breach, this should be effective as against all parties to the wrong.68 However, if the release has been granted to the primary wrongdoer personally, the preferable approach is to treat this as a covenant from the beneficiary not to sue that primary wrongdoer, and to allow the beneficiary to sue the accessory;69 the accessory might seek contribution from the trustee regardless of the beneficiary’s release.70

E.  Contributory Negligence The remedy available against a primary wrongdoer might be reduced because of the claimant’s contributory negligence.71 Contributory negligence is applicable to most torts, but not to intentional torts such as deceit.72 Contributory negligence only applies to contract claims where the contractual duty of care breached gave

  Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 384.   The situation is different where the exemption clause operates to exclude a duty altogether, rather than to provide relief from personal liability: see eg P Matthews, ‘The Efficacy of Trustee Exemption Clauses in English Law’ [1989] Conveyancer and Property Lawyer 42, 43. 66  See generally, discussing Australian law in particular, A Gurr, ‘Accessory Liability and Contribution, Release and Apportionment’ (2010) 34 Melbourne University Law Review 481. 67   Yeshiva Properties No 1 Pty Ltd v Marshall [2005] NSWCA 23, (2005) 219 ALR 112, [80]. 68   Mitchell, ‘Assistance’, above n 60 at 208–209. 69   It is sensible for the beneficiary expressly to preserve his or her rights against the accessory: cf Gardiner v Moore [1969] 1 QB 55 (QBD). See too Rowland v Witherden (1851) 3 Mac & G 568, 573 (Lord Truro LC); Blyth v Fladgate [1891] 1 Ch 337, 353 (Stirling J); DJ Hayton, P Matthews, C Mitchell, Underhill and Hayton: Law of Trusts and Trustees, 18th edn (London, LexisNexis, 2010) para 98-70. 70   See, in the context of joint tortfeasance, Northland Bank v Willson (1999) 249 AR 201 (Alberta CQB), [22]–[39] (Wilkins J). See too Salford Corp v Lever [1891] 1 QB 168 (CA), 178 (Lord Esher MR), 180 (Lindley LJ), 181 (Lopes LJ). It is notable that the common law rule that the release of one joint tortfeasor releases all the others has been criticised since ‘[r]easons given for this rule are technical, and even fictitious’: GL Williams, Joint Torts and Contributory Negligence (London, Stevens & Sons, 1951) 44. See now Civil Liability (Contribution) Act 1978, ss 1, 3. 71   Law Reform (Contributory Negligence) Act 1945, s 1(1). 72   Standard Chartered Bank v Pakistan National Shipping Corp (Nos 2 and 4) [2002] UKHL 43, [2003] 1 AC 959; Law Reform (Contributory Negligence) Act 1945, s 4. 64 65

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rise to a concurrent liability in the tort of negligence.73 Matters are less clear in the equitable context; it appears that contributory negligence will not be a defence to breach of fiduciary duty.74 Whether or not the primary wrongdoer has a defence of contributory negligence, it is suggested that an accessory should not be able to lessen his or her liability by virtue of the claimant’s contributory negligence. The subjective mental element required for accessory liability means that it is inappropriate for the culpable accessory to be able to reduce his or her liability to compensate the claimant by relying upon the claimant’s conduct. The House of Lords has held that contributory negligence is no defence to the intentional tort of deceit,75 and this approach applies to intentional torts more generally, including the Lumley tort.76

III.  Gain-based Awards In Halifax Building Society v Thomas, Glidewell LJ said:77 The proposition that a wrongdoer should not be allowed to profit from his wrongs has an obvious attraction. The further proposition, that the victim or intended victim of the wrongdoing, who has in the event suffered no loss, is entitled to retain or recover the amount of the profit is less obviously persuasive.

Care must therefore be taken when considering the principles underpinning gainbased awards.78 It is helpful to analyse first the impact of the primary wrongdoer’s gain, and then whether the accessory may be liable to account for his or her own personal gain.

A.  Liability for the Primary Wrongdoer’s Gain The primary wrongdoer may have to disgorge any gains he or she makes as a result of the primary wrong. This is relatively common in the context of breach of 73   Forsikringsaktieselskapet Vesta v Butcher [1986] 2 All ER 488 (QBD) (Hobhouse J); (affirmed in [1989] AC 852 (CA); the House of Lords did not deal with this point: [1989] AC 852). This approach of English law is controversial: see eg Burrows, Remedies, above n 26 at 136–144. 74   At least where the breach is intentional: see eg Nationwide Building Society v Balmer Radmore [1999] PNLR 606 (Ch D), 672–677 (Blackburn J). Compare Day v Mead [1987] 2 NZLR 443 (NZCA). 75   The House of Lords has held that contributory negligence does not apply to claims in deceit: Standard Chartered Bank v Pakistan National Shipping Corp (No 2 and 4) [2002] UKHL 43, [2003] 1 AC 959; see Law Reform (Contributory Negligence) Act 1945, s 4. 76  See eg Alliance and Leicester Building Society v Edgestop Ltd [1993] 1 WLR 1462 (Ch D); Corporación Nacional del Cobre de Chile v Sogemin Metals Ltd [1997] 1 WLR 1396 (Ch D); Dellabarca v Northern Storemen and Packers Union [1989] 2 NZLR 734 (NZHC), 757 (Smellie J); Jones and Dugdale, Clerk & Lindsell, above n 43 at 24–56. 77   Halifax Building Society v Thomas [1996] Ch 217 (CA), 229. 78   See generally J Edelman, Gain-based Damages: Contract, Tort, Equity and Intellectual Property (Oxford, Hart Publishing, 2002).



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fiduciary duty, for example,79 and may also flow from some torts related to property,80 as well as, in ‘exceptional’ circumstances, breach of contract.81 Can the accessory also be liable to account for the gains made by the primary wrongdoer? An approach premised upon secondary, duplicative liability would suggest that this question should be answered in the affirmative: the liability of the accessory should simply replicate that of the primary wrongdoer.82 Thus the Canadian court in Canada Safeway Ltd v Thompson83 held that an accessory could be jointly and severally liable for the unauthorised profit made by a wrongdoing fiduciary. This result has been supported by Clapton, since ‘[e]ven if the assistant has not acquired a benefit from the breach, the need to safeguard the relationship of trust and confidence justifies this type of disgorgement award’.84 However, making the accessory account for profits which he or she never actually made seems very harsh.85 Elliott and Mitchell, despite generally favouring a model of accessory liability based upon secondary liability, have similarly recognised that ‘it is open to question whether [such disgorgement] is needed in addition to the compensatory liabilities which dishonest assistants also owe. If not, then it begins to look like a punitive measure’.86 It is suggested that it is correct to view as punitive an order that the accessory account for profits made by the primary wrongdoer. If this is ever appropriate, the general considerations underpinning punitive awards must be satisfied, and should not be obscured by hiding under the inappropriate banner of ‘account of profits’ rather than ‘punitive awards’.87 The remedy of account of profits should preferably be recognised to be personal to a defendant. In England, there is some support at first instance for the approach in Canada Safeway,88 but more recent decisions have clearly departed from that stance. In Ultraframe (UK) Ltd v Fielding,89 Lewison J thought that the argument that an accessory should account for the profits made by the wrongdoing fiduciary  eg Boardman v Phipps [1967] 2 AC 46 (HL).  eg Ministry of Defence v Ashman [1993] 2 EGLR 102 (CA). This includes intellectual property: Slazenger & Sons v Spalding & Bros [1910] 1 Ch 257. The Law Commission has recommended that restitutionary damages may be awarded for any tort if the defendant’s conduct shows a deliberate and outrageous disregard of the claimant’s rights: Law Commission, Aggravated, Exemplary and Restitutionary Damages, above n 52 at para 3.51. 81   Attorney-General v Blake [2001] 1 AC 268 (HL). 82   See eg Cooper, Secondary Liability, above n 2 at ch 5. 83   Canada Safeway Ltd v Thompson [1951] 3 DLR 295 (BCSC). 84   MS Clapton, ‘Gain-Based Remedies for Knowing Assistance: Ensuring Assistants do Not Profit from their Wrongs’ (2008) 45 Alberta Law Review 989, 1010. See too Mowbray, Lewin on Trusts, above n 62 at para 20.53. 85  In Air Canada v M & L Travel Ltd, McLachlin J raised the question whether it was truly appropriate to impose a disgorgement remedy upon an accessory who derives no personal benefit from the breach: [1993] 3 SCR 787 (SCC), 829–830. 86   Elliott and Mitchell, ‘Remedies’, above n 3 at 41. 87   See section VI below. 88   See eg Ostrich Farming Corp Ltd v Wallstreet LLC (8 October 1998, unreported); Comax Secure Business Services Ltd v Wilson (21 June 2001, unreported). 89   [2005] EWHC 1638 (Ch), [2006] FSR 17. 79 80

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was insufficiently supported by authority and misconceived. His Lordship concluded:90 I can see also that it makes sense for a dishonest assistant to be liable to disgorge any profit which he himself has made as a result of assisting in the breach. However, I cannot take the next step to the conclusion that a dishonest assistant is also liable to pay to the beneficiary an amount equal to a profit which he did not make and which has produced no corresponding loss to the beneficiary. As James LJ pointed out in Vyse v. Foster (1872) LR 8 Ch App 309: ‘This Court is not a Court of penal jurisdiction. It compels restitution of property unconscientiously withheld; it gives full compensation for any loss or damage through failure of some equitable duty; but it has no power of punishing any one. In fact, it is not by way of punishment that the Court ever charges a trustee with more than he actually received, or ought to have received, and the appropriate interest thereon. It is simply on the ground that the Court finds that he actually made more, constituting moneys in his hands “had and received to the use” of the cestui que trust.’ I was not referred to any authority binding me so to hold; and I decline to do so.

The reasoning in Ultraframe was again preferred to Canada Safeway by Christopher Clarke J in Novoship (UK) Ltd v Mikhaylyuk;91 his Lordship insisted that92 there is no equity to compel someone who has not made a profit from his breach, or dishonest assistance in that of another, to account for a profit which he has not made and which does not represent a loss which the principal has suffered.

If a gain-based award is to be made against an accessory, it should strip the accessory of profits he or she actually made, and not of profits made by another. Such reasoning is generally applicable throughout private law. In Attorney-General v Blake,93 Blake was a former spy who published his memoirs in breach of his contract with the state. Even though the state suffered no quantifiable loss, Blake was liable to disgorge his gains which flowed from the breach. If the publisher had been liable as an accessory to Blake’s breach of contract, the publisher’s liability should not simply have duplicated that of Blake. Blake had to disgorge gains he actually made; this is justified, at least in part, on the basis that a wrongdoer should not profit from his or her wrong. But the publisher did not receive the profit that Blake made; making the publisher liable for another’s gain does not really help to prevent a wrongdoer from profiting from his or her wrong.94 This

  ibid [1600].   Novoship (UK) Ltd v Mikhaylyuk [2012] EWHC 3586 (Comm).   ibid [99] (this point was not expressly dealt with by the Court of Appeal: [2014] EWCA Civ 908, 164 NLJ 7615, although see [77]). 93   Attorney-General v Blake [2001] 1 AC 268 (HL). 94   However, the publisher may be liable to disgorge its own profits: see section III.B below. 90 91 92



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reasoning has been accepted in the tortious context. For example, in Hotel Cipriani SRL v Cipriani (Grosvenor Street) Ltd Briggs J said: 95 By contrast with joint liability as tortfeasors for damages, including damages calculated on a royalty basis, an account of profits operates against each Defendant separately, requiring him or it to disgorge such profits as are shown to have been derived by that Defendant from the relevant infringements.

B.  Accounting for the Accessory’s Gain Can the claimant seek restitution of the accessory’s gains, even if no gains were made by the primary wrongdoer, and no, or only minimal, loss was suffered as a result of the primary wrong? In the equitable context, the answer is: Yes. In Consul Development Pty Ltd v DPC Estates Pty Ltd, a decision of the High Court of Australia, Gibbs J said:96 If the maintenance of a very high standard of conduct on the part of fiduciaries is the purpose of the rule [of preventing a fiduciary from profiting from his position] it would seem equally necessary to deter other persons from knowingly assisting those in a fiduciary position to violate their duty. If, on the other hand, the rule is to be explained simply because it would be contrary to equitable principles to allow a person to retain a benefit that he had gained from a breach of his fiduciary duty, it would appear equally inequitable that one who knowingly took part in the breach should retain a benefit that resulted therefrom. I therefore conclude, on principle, that a person who knowingly participates in a breach of fiduciary duty is liable to account to the person to whom the duty was owed for any benefit he has received as a result of such participation.

Such an approach has been adopted in English law. For example, in Fyffes Group Ltd v Templeman,97 Toulson J thought98 that there are cogent grounds, in principle and in practical justice, for following the approach of Gibbs J and holding that the briber of an agent may be required to account to the principal for benefits obtained from the corruption of the agent.

In Ultraframe, Lewison J found that such comments were not limited to the context of bribery;99 his Lordship expressed the view ‘that it makes sense for a 95   Hotel Cipriani SRL v Cipriani (Grosvenor Street) Ltd [2010] EWHC 628 (Ch), [7]. This was cited with approval in Woolley v UP Global Sourcing UK Ltd [2014] EWHC 493 (Ch), [12] (HHJ Pelling QC). 96   Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 (HCA), 397. 97   Fyffes Group Ltd v Templeman [2000] 2 Lloyd’s Law Rep 643 (Comml Ct). 98   ibid 672. See too Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2006] FSR 17, [1592]; Novoship (UK) Ltd v Nikitin [2014] EWCA Civ 908, [2014] NLJ 7615, [76]. In Australia a constructive trust over the gains may be awarded: see further P Ridge, ‘Constructive Trusts, Accessorial Liability and Judicial Discretion’ in E Bant and M Bryan (eds), Principles of Proprietary Remedies (Sydney, Thomson Reuters, 2013) 73. There is no similarly broad discretion in England to award proprietary remedies: see eg Mosley v Popley [2012] EWHC 3905 (Ch), [2013] WTLR 521; Novoship (UK) Ltd v Nikitin [2014] EWCA Civ 908, [2014] NLJ 7615, [66] (Longmore LJ). 99   Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2006] FSR 17, [1594].

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dishonest assistant to be liable to disgorge any profit which he himself  has made as a result of assisting in the breach’.100 The gains stripped from the accessory must be personal to that defendant, and attributable to the wrongful conduct. As the High Court of Australia observed in Michael Wilson & Partners Ltd v Nicholls, ‘if an account of profits were to be sought against both the defaulting fiduciary and a knowing assistant, the two accounts would very likely differ’.101 Some sort of ‘sufficiently direct’ causal link between the accessory’s participation in the primary wrong and resulting profits is required.102 This explains the result in Fyffes Group Ltd v Templeman. On the facts, Toulson J ultimately refused to order a defendant to account for the profits that he had made from the breach of fiduciary duty he had induced by bribing the claimant’s agent:103 the claimant would have entered into the transaction with the briber even if the agent had not been bribed, so the briber’s profit was not caused by the bribery of the agent.104 This approach was criticised in Murad v Al-Saraj,105 since equity does not generally demand a strict test of causation in the context of breach of fiduciary duty: if the conduct of the defendant falls within the scope of the fiduciary duty of loyalty, then no further inquiry into whether or not the profits would have been made anyway is appropriate.106 But such comments in Murad were obiter since the claim in that case was brought against a primary wrongdoer and not an accessory; they were rightly disapproved by the Court of Appeal in Novoship (UK) Ltd v Nikitin.107 The Court recognised that a dishonest assister might be liable to account for profits personally made,108 and that, since the accessory was not actually a fiduciary,109 and had not undertaken a duty of loyalty, general principles of causation and remoteness should be applied.110 In Novoship, the defendant had dishonestly assisted an agent’s breach of fiduciary duty by entering into contracts for the use of vessels, albeit at the market rate. The market then rose and the defendant made substantial profits. The Court of Appeal held that ‘there was an 100   Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2006] FSR 17, [1600]. See too eg Aerostar Maintenance International Ltd v Wilson [2010] EWHC 2032 (Ch), [206] (Morgan J): ‘The relevant profits are restricted to profits which [the defendant] personally made’.  101   Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48, (2011) 244 CLR 427, [106]. 102   Novoship (UK) Ltd v Nikitin [2014] EWCA Civ 908, [2014] NLJ 7615, [94]–[115] (Longmore LJ); see too Ridge, ‘Justifying the Remedies’, above n 7 at 450–456; J McGhee (ed), Snell’s Equity, 32nd edn (London, Sweet & Maxwell, 2010) para 30-081. 103   The remedy against the defendant was limited to compensation for the claimant’s losses. See too C Mitchell, ‘Civil Liability for Bribery’ (2001) 117 LQR 207. 104   The claim for compensatory damages was, however, successful. 105   Murad v Al-Saraj [2005] EWCA Civ 959, [2005] WTLR 1573. 106   See eg [2005] EWCA Civ 959, [2005] WTLR 1573, [69] (Arden LJ) and [2005] EWCA Civ 959, [2005] WTLR 1573, [120] (Jonathan Parker LJ). 107   [2014] EWCA Civ 908, [2014] NLJ 7615. 108   ibid [84]. 109   ibid [68]. 110   ibid [94]–[105]. It is therefore a little surprising for the Court of Appeal to have suggested that ‘[t]he nature of the liability, as it seems to us, is that the knowing recipient or dishonest assistant has, in principle, the responsibility of an express trustee’ [2014] EWCA Civ 908, [82] (although see too Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] 2 WLR 355, [90] (Lord Neuberger). This may risk reverting to the language of ‘constructive trusteeship’, which is unnecessary and inappropriate.



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insufficient direct causal connection between entry into the . . . charters and the resulting profits’.111 The cause of the defendant’s profits was the ‘unexpected change in the market’112 and not the dishonest assistance. The Court further held that an account of profits is not awarded automatically against a non-fiduciary, and that the court should exercise its discretion to withhold that remedy where it would be disproportionate – which was also the case in Novoship.113 This approach undermines an analysis of accessory liability as secondary and duplicative. Indeed, Elliott and Mitchell have recognised that making an accessory disgorge his or her personal gains suggests that there is ‘also an independent civil wrong which exposes [the accessory] to a primary liability to pay over the amount of his own separate profits’.114 The same may also be true at common law: the profits made by an accessory who induces the infringement of a patent, for example, may be very different from the profits made by the primary tortfeasor.115 However, at common law, the availability of gain-based relief is much more restricted than in equity. This is because gain-based awards are not thought to be available for all torts;116 it has been suggested that an account of profits will not be awarded under Lumley because it is not based upon any proprietary right of the claimant.117 However, such restrictions seem inappropriate. The Law Commission has recommended that restitutionary damages be available for any tort where the defendant’s conduct showed a ‘deliberate and outrageous disregard of the plaintiff’s rights’.118 On this test, some instances of accessory liability may well warrant a restitutionary response.

IV.  Hypothetical Bargain Measure of Damages Difficulties arise where the primary wrongdoer is liable to pay a ‘reasonable user fee’, or damages assessed on the basis of a ‘hypothetical bargain’.119 It is unclear   [2014] EWCA Civ 908, [2014] NLJ 7615, [115].   ibid [114].   ibid [116]–[120]. 114   Elliott and Mitchell, ‘Remedies’, above n 3 at 42. 115   Hotel Cipriani SRL v Cipriani (Grosvenor Street) Ltd [2010] EWHC 628 (Ch), [7]. Contrast the comments of Slade LJ in C Evans Ltd v Spritebrand Ltd [1985] 1 WLR 317 (CA), 329, quoted at ch 6. IV.A, that a director’s liability cannot be more extensive than that of a primary tortfeasor, which are perhaps misleading in this area. If the director made personal gains, why should his or her liability not exceed that of the primary tortfeasor? 116   See eg Forsyth-Grant v Allen [2008] EWCA Civ 505, [2008] 2 EGLR 16; Devenish Nutrition Ltd v Sanofi-Aventis SA [2008] EWCA Civ 1086, [2009] Bus LR 858. 117   Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040, (2001) 110 FCR 157, [162] (Hill and Finkelstein JJ); cf [172] (Emmett J). Moreover, it seems that the claimant must have suffered some loss in order for the claim against the accessory to succeed: Grimme Maschinenfabrik GmbH v Derek Scott [2010] EWCA Civ 1110, [2011] FSR 193, [88]; Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2009] UKPC 45, [2011] 1 WLR 2370, [60] (Lord Walker). 118   Law Commission, Aggravated, Exemplary and Restitutionary Damages, above n 52 at para 3.49. 119   Wrotham Park Estate Co v Parkside Homes Ltd [1974] 1 WLR 798. 111 112 113

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whether or not such awards should be analysed as restitutionary, compensatory, or a mixture of the two.120 If they are restitutionary and focussed upon the defendant’s gains,121 then the fact that such an award is made against a primary wrongdoer should not mean that a similar award would be made against the accessory who does not enjoy similar benefits. But if the hypothetical bargain measure of damages is compensatory, to reflect a lost opportunity to bargain with the defendant for the release of the claimant’s rights,122 or awarded as a substitute for the right infringed,123 or to compensate for the loss of a power to prevent the infringement,124 then it is arguable that the same remedy that is available against the primary wrongdoer could be available against an accessory. It is suggested that this latter approach is flawed. The hypothetical bargain which is constructed may take into account characteristics particular to the parties to that bargain, and is premised upon both parties’ being objectively reasonable and prepared to reach an agreement.125 This measure of damages places some focus on the position of the primary wrongdoer:126 the bargain constructed may take into account gains made by the primary wrongdoer. An accessory should not be liable for such gains, so it seems inappropriate for the hypothetical bargain measure of damages to apply against an accessory in the same way as it applies against the primary wrongdoer. In Wrotham Park Estate Co Ltd v Parkside Homes Ltd,127 the defendant built houses in breach of a restrictive covenant with the claimant, and was ultimately ordered to pay 5 per cent of its anticipated profits to the claimant. If an accessory had induced the defendant to breach its covenant with the claimant, the question arises as to what remedy, if any, should be available against the accessory. The accessory made no gain, so no restitutionary measure can be awarded. The accessory should not have to pay 5 per cent of the primary wrongdoer’s profits when the accessory did not personally make those profits. And since the claimant suffered no loss, no orthodox compensatory remedy exists. It may therefore be the 120   See eg A Burrows, ‘Are “Damages on the Wrotham Park Basis” Compensatory, Restitutionary or Neither?’ in R Cunnington and D Saidov (eds), Contract Damages: Domestic and International Perspectives (Oxford, Hart Publishing, 2008). 121   See eg A Burrows, The Law of Restitution, 3rd edn (Oxford, Oxford University Press, 2011) 647– 653, 672–675. 122   RJ Sharpe and SM Waddams, ‘Damages for Lost Opportunity to Bargain’ (1982) 2 OJLS 290. This remedy does not reflect the ‘financial loss’ suffered by the claimant: Experience Hendrix LLC v PPX Enterprises Inc [2003] EWCA Civ 323, [2003] 1 All ER (Comm) 830. 123  Stevens, Torts and Rights, above n 28 at ch 4. 124  See K Barker, ‘Damages Without Loss’: Can Hohfeld Help?’ (2014) OJLS (forthcoming: early access view available at www.ojls.oxfordjournals.org/content/early/by/section); N McBride, ‘Restitution for Wrongs’ in C Mitchell and W Swadling (eds), The Restatement Third: Restitution and Unjust Enrichment: Critical and Comparative Essays (Oxford, Hart Publishing, 2013) 272–274. For instance, injunctive relief is available against both parties: see section VII below. 125  eg Tamares (Vincent Square) v Fairpoint Properties (Vincent Square) Ltd [2007] EWHC 212 (Ch), [2007] 1 WLR 2167; Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2009] UKPC 45, [2011] 1 WLR 2370; Vercoe v Rutland Fund Management [2010] EWHC 424 (Ch). 126   Admittedly, the remedy awarded may exceed the actual gains made by the primary wrongdoer: Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2009] UKPC 45, [2011] 1 WLR 2370. 127   [1974] 1 WLR 798 (Ch D) (Brightman J).

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case that no remedy is available against the accessory. This could explain why Lord Walker in Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd 128 said that ‘actual loss (not merely compensation by way of Wrotham Park damages) would have had to be proved’ in order to sue an accessory to a breach of contract. Such an approach highlights that the nature of the claim against the accessory is different from the claim against the primary wrongdoer. But the issue is, admittedly, not totally clear. The accessory is culpable and bears responsibility for the infringement of the claimant’s rights; if those rights deserve protection through a substantial remedy against the primary wrongdoer, then a substantial remedy might also be appropriate against the accessory. However, even if this argument were to be accepted, the position of the primary wrongdoer and accessory are clearly different, not least as regards to the profits each might expect to make as a result of the infringement of the claimant’s rights, so the measure of damages awarded through a hypothetical bargain would invariably differ as against each party.

V. Contribution Parties to a primary wrong should be able to claim contribution from one another; the primary wrongdoer should be able to claim contribution from the accessory, and vice versa. This is because both parties are liable in respect of ‘the same damage’ suffered by the claimant.129 The courts have a wide degree of flexibility in apportioning damages between the parties: section 2(1) of the Civil Liability (Contribution) Act 1978 provides that ‘the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question’. Given the wide range of situations in which accessory liability might arise, it is unhelpful to seek to provide general rules which inform how the contribution regime might work. However, Harpum has suggested that decisions such as Eaves v Hickson130 show ‘that a stranger who induces an innocent breach of trust bears the primary responsibility for any loss that ensues’.131 This may often be the case: the inducer might bear a greater degree of responsibility than a primary wrongdoer since the inducer brings about the primary wrong. But in some situations, both the inducer and primary wrongdoer might decide to participate deliberately in intentional wrongdoing, and liability to compensate the claimant should either be borne equally between the two, or mainly by the primary wrongdoer who was the most ‘direct’ cause of the claimant’s loss. Importantly, accessory liability is not   [2009] UKPC 45, [2011] 1 WLR 2370, [60].   Civil Liability (Contribution) Act 1978, s 1(1). This requirement of ‘same damage’ is interpreted broadly: see eg Charter plc v City Index Ltd [2007] EWCA Civ 1382, [2008] Ch 313. 130   Eaves v Hickson (1861) 30 Beav 136; see ch 4.IV.A. 131   C Harpum, ‘The Stranger as Constructive Trustee: Part 1’ (1986) 102 LQR 114, 143. 128 129

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proportionate liability;132 the claimant is not affected by any degree of uncertainty regarding which party is liable to what extent. Moreover, such uncertainty is no more pronounced in this area than in other areas of the law where contribution claims are common; the general principles underpinning the law of contribution should apply.133 In many instances of accessory liability, contribution will not be an issue. Where the primary wrongdoer or accessory is insolvent, a contribution claim will be worthless. Injunctive relief does not lend itself to actions in contribution. And, generally, gain-based remedies will also be beyond the scope of contribution proceedings, since they do not concern a monetary remedy for the claimant’s ‘damage’. However, if a primary wrongdoer is liable for a gain-based award and the accessory is liable to pay compensation to the claimant, the accessory should be able to seek contribution from the primary wrongdoer, notwithstanding the claimant’s decision to seek a non-compensatory award from the latter; the primary wrongdoer shares responsibility for the damage, so the contributory regime should apply.134 The ability to seek contribution from another party who bears responsibility for the ‘same damage’ enables primary wrongdoers to join accessories as defendants to civil suits. This does not seem inappropriate where the accessory has culpably participated in a more than minimal way in the primary wrong. However, the courts should be astute not to allow primary wrongdoers to go shopping for alternative defendants on a flimsy basis; the stringent hurdles of substantial participation and a subjective mental element both need to be satisfied. It is likely that this discourages many primary wrongdoers from seeking contribution from accessories, particularly where the likelihood is that it would be ‘just and equitable’ for the primary wrongdoer to bear the brunt of liability in any event.

VI.  Punitive Damages Although only awarded in exceptional circumstances, exemplary or punitive damages can, in principle, be awarded for any tort.135 Punitive damages are therefore possible where the primary wrong is a tort, and may also be awarded against

  See ch 6.VI.B.  See generally C Mitchell, The Law of Contribution and Reimbursement (Oxford, Oxford University Press, 2003). 134   If the primary wrongdoer is made to pay contribution to the accessory, this may reduce any gainbased award available from the primary wrongdoer: see section VIII below. 135   Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29, [2002] 2 AC 122. The Law Commission has offered its support for punitive damages in order ‘to punish and to deter seriously wrongful behaviour’: Law Commission, Aggravated, Exemplary and Restitutionary Damages, above n 52 at para 1.15. Although well established, such damages remain controversial: see eg A Beever, ‘The Structure of Aggravated and Exemplary Damages’ (2003) 23 OJLS 87. 132 133



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a defendant liable under the Lumley tort.136 This is consistent with the view that damages under Lumley are ‘at large’.137 It is necessary to show more than a mere intention to participate in a breach of contract; outrageous conduct on the part of the defendant is required.138 If punitive damages are potentially available for inducing a breach of contract, then it would be odd if punitive damages were not equally available for inducing a tort or breach of trust, for example. However, equity has traditionally rejected any possibility of its being a penal jurisdiction.139 But if punitive damages are appropriate at common law, it is difficult to explain why they are not similarly appropriate – in exceptional cases – where the defendant’s liability is equitable.140 Remedial coherence suggests that punitive damages should be available for equitable wrongs.141 Punitive damages should be personal to particular defendants, so the imposition or not of a punitive award against the primary wrongdoer should not affect the question of whether a punitive remedy should be awarded against the accessory.142 This provides further support for the contention that an accessory’s liability is not simply secondary and duplicative.143 However, it has been suggested that in cases where there are multiple, joint defendants, then punitive damages should not exceed the lowest sum that any of the defendants ought to pay.144 This seems inappropriate where a primary tortfeasor may be merely misguided but an accessory a malicious wrongdoer. Joint and several liability for punitive damages should not be accepted. Any punitive award should be assessed separately for each wrong and each wrongdoer, taking into account a particular defendant’s conduct.145

136   This appears to have been assumed in East England Schools CIC v Palmer [2013] EWHC 4138 (QB), [2014] IRLR 191, [133]–[136] (Richard Salter QC); see too HL Weiss Forwarding Ltd v Omnus [1976] 1 SCR 776, (1976) 63 DLR (3d) 654 (SCC); Texaco Inc v Pennzoil 729 SW 2d 768 (Tex 1988). 137   See section II.B above. cf Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 (HCA). 138   Hospitality Group Pty Ltd v Australian Rugby [2001] FCA 1040, (2001) 110 FCR 157, [153]. 139   Vyse v Foster (1872) 8 Ch App 309, 333 (James LJ), quoted above, text to n 90. 140   See the discussion in Harris v Digital Pulse Pty Ltd [2003] NSWCA 10, (2003) 197 ALR 626, especially Mason P (dissenting). See generally AS Burrows, ‘Remedial Coherence and Punitive Damages in Equity’ in J Edelman and S Degeling (eds), Equity in Commercial Law (Sydney, Law Book Co, 2005). 141   As was favoured by the Law Commission: Aggravated, Exemplary and Restitutionary Damages, above n 52 at paras 5.54–5.56. 142   In England there is the odd position that although punitive damages may be available for the tort of inducing a breach of contract, punitive damages are not available for the breach of contract itself. This has been criticised: N McBride, ‘A Case for Awarding Punitive Damages in Response to Deliberate Breaches of Contract’ (1995) Anglo–American Law Review 369. In Canada, at least, punitive damages for breach of contract are possible: see eg Whiten v Pilot Insurance Co 2002 SCC 18, [2002] 1 SCR 595. 143   Elliott and Mitchell, ‘Remedies’, above n 3 at 44–45. See too 57134 Manitoba Ltd v Palmer (1985) 30 BLR 121 (BC SC) (affirmed in (1989) 44 BLR 94 (BC CA)). 144   Cassell & Co Ltd v Broome [1972] AC 1027 (HL), 1063 (Lord Hailsham LC), 1090 (Lord Reid); Francis v Brown (1997) 30 HLR 143 (CA); Rowlands v Chief Constable of Merseyside Police [2006] EWCA Civ 1773, [2007] 1 WLR 1065, [38]. 145   See Law Commission, Aggravated, Exemplary and Restitutionary Damages, above n 52 at paras 5.186–5.208.

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VII. Injunction A claimant might seek an injunction to restrain an accessory from participating in an equitable wrong, breach of contract or a tort. Such equitable relief should be available regardless of the primary wrong at issue, in accordance with the general principles underpinning the law on injunctions. Injunctions will only be granted where damages are an inadequate remedy.146 The injunction granted may be mandatory. For example, in Esso Petroleum Co Ltd v Kingswood Motors (Addlestone) Ltd,147 Esso had a solus agreement with Kingswood, which ran a service station. Kingswood was bound to obtain its fuel from Esso, and also covenanted that, before transferring or selling the service station or making any other arrangements for anyone else to take over, it would notify Esso and procure that party to enter into an agreement with Esso. Another company later acquired the shares in Kingswood, but then procured the transfer of legal title to the land on which the service station stood from Kingswood to a subsidiary of the company, and began selling petrol which was not from Esso. Esso sought interim relief, including a mandatory injunction requiring the subsidiary company to retransfer the service station to Kingswood, which would still be bound by the solus agreement. Bridge J granted the injunction, insisting:148 I am not asked to enforce an equitable doctrine which makes some party not privy to a contract nevertheless liable in certain circumstances to perform that contract. I am asked to enforce the personal liability incurred by a tortfeasor to undo the consequences of his tort which could have been restrained before it was committed. In a proper case, I ask myself: what reason can there be in principle why the tortfeasor should not be ordered to undo that which he has done?

Injunctions have been commonly sought against those who participate in breaches of contract, particularly trade unions,149 and are now especially important in the context of intellectual property torts: by restraining an accessory from participating in an infringement of the claimant’s rights, a large number of primary wrongs may be averted.150 As the Court of Justice of the European Union remarked in L’Oréal SA v eBay International AG, ‘EU law requires that injunctions are available against intermediaries whose services are used by a third party to infringe an intel-

  See generally McGhee, Snell’s Equity, above n 102 at ch 18.   Esso Petroleum Co Ltd v Kingswood Motors (Addlestone) Ltd [1974] QB 142.   ibid 156. 149  eg Emerald Construction Co v Lowthian [1966] 1 WLR 691 (CA). Trade unions will often have a statutory defence to claims brought against them as accessories: see ch 7.II.E. 150   Arnold J has recognised that ‘the evidence indicates that blocking orders are reasonably effective’: EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch), [106]. See too eg Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd [2014] EWHC 937 (Ch) (Henderson J); Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 1981 (Ch), [2012] 1 All ER 806 (Arnold J). 146 147 148



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lectual property right’.151 Given the difficulties inherent in establishing exactly how many primary wrongs are committed by individual users, it may be more effective for a claimant to obtain injunctive relief against the accessory which facilitates the infringement of the claimant’s intellectual property rights.152 Such orders will not be broader in scope than is necessary to protect the claimant’s rights.153 Injunctions may also be granted quia timet for anticipated or threatened infringements of the claimant’s rights; such orders will only be made where the court is satisfied that there is imminent danger of substantial harm such that an injunction is the most suitable form of relief.154 A willingness to award an injunction against an accessory when such relief would not be awarded against a primary wrongdoer has sometimes been criticised.155 However, there is no conceptual difficulty with the relief differing as between the primary wrongdoer and accessory given the different nature of their wrongs. The harm caused by an individual primary wrongdoer might be adequately compensated by damages, but the harm caused by a large number of primary wrongs – all facilitated by the same accessory – may not be satisfactorily dealt with by a monetary award, so an injunction against the accessory could be the most appropriate remedy.156 In any event, the usual reasons for refusing equitable relief naturally apply in this context. For instance, in Warren v Mendy,157 an injunction to restrain the defendant from inducing a breach of contract was refused because this would mean that the primary wrongdoer would effectively be forced to work for the claimant; this would be tantamount to an order of specific performance for a contract of personal services, which would only be countenanced in exceptional cases.158

VIII.  Combining Remedies It seems logical that the claimant can combine remedies provided that there is no issue of double recovery. Thus the claimant might seek compensation from a 151   L’Oréal SA v eBay International AG Case C-324/09, [2012] All ER (EC) 501, [55]. See too eg IP Enforcement Directive 2004/48/EC, art 11; Information Society Directive 2001/29/EC, art 8(3), recs (58) and (59); E-Commerce Directive 2000/31/EC, arts 12–15; Copyrights, Designs and Patents Act 1988, s 97A. 152   Dramatico Entertainment Ltd  v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), [2012] 3 CMLR 14; Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13. 153   Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13, [135]. 154   See eg Redland Bricks Ltd v Morris [1970] AC 652 (HL). 155  Cooper, Secondary Liability, above n 2 at 156–157. See too eg JD Heydon, Economic Torts, 2nd edn (London, Sweet & Maxwell, 1978) 37. 156   This might help to explain why injunctions are regularly sought against trade unions rather than individual workers, and against intermediaries on the internet which facilitate intellectual property torts rather than individual users. 157   Warren v Mendy [1989] 1 WLR 853 (CA). 158   See McGhee, Snell’s Equity, above n 102 at chs 17 and 18.

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primary wrongdoer, and an injunction against an accessory. Or, as was accepted by the High Court of Australia in Michael Wilson & Partners Ltd v Nicholls, ‘the claimant may seek compensation from the defaulting fiduciary (who made no profit from the default) and an account of profits from the knowing assistant (who profited from his or her own misconduct)’.159 This approach emphasises the distinct nature of liability of the primary wrongdoer and accessory, and is consistent with old English authority. In The Mayor, Alderman, and Burgesses of the Borough of Salford v Lever,160 the Court of Appeal held that a claimant could recover the amount of the bribe an agent received from that agent, and also sue the briber for losses sustained as a result of the agent’s disloyalty. However, in T Mahesan S/O Thambiah v Malaysia Government Officers’ Co-operative Housing Society Ltd,161 the Privy Council was critical of Lever to the extent that no regard was taken of the fact that, in Lever, the loss sustained by the claimant was reduced by the amount of the bribe recovered from the agent.162 Mahesan supports the view that a claimant must elect between a compensatory and restitutionary measure, because every penny of gain given up by the defendant reduces the claimant’s loss by a penny.163 Yet the notion that compensatory and restitutionary measures are inconsistent is controversial; the focus should really be on whether awarding both would lead to excessive recovery.164 Lever and Mahesan might be reconciled on the basis that distinct claims were brought against two separate defendants in Lever, whereas in Mahesan claims for two different remedies were brought against the same defendant,165 although the thrust of the objection in Mahesan remains. It is suggested that it is conceptually possible for a claimant to seek a restitutionary remedy against the primary wrongdoer or accessory, and a compensatory award from the other. If the goal of the restitutionary measure is to deprive a wrongdoer of the profits personally made, this does not seem to be inconsistent with seeking compensation from another defendant who did not make that gain but caused the claimant loss. The question is whether this leads to excessive recovery. Generally, it is suggested that it will not. But difficulties arise where the claims are not brought together; for example, 159   [2011] HCA 48, (2011) 244 CLR 427, [106]. The contrary scenario – compensation from a third party but an account of profits from the primary wrongdoer – is equally possible: The Mayor, Aldermen and Burgesses of the Borough of Salford v Lever [1891] 1 QB 168 (CA). 160   [1891] 1 QB 168 (CA). 161   T Mahesan S/O Thambiah v Malaysia Government Officers’ Co-operative Housing Society Ltd [1979] AC 374 (PC). 162   ibid 381. 163   See eg Tang Man Sit v Capacious Investments Ltd [1996] AC 514 (PC). 164   See eg P Birks, ‘Inconsistency Between Compensation and Restitution’ (1996) 112 LQR 375; Law Commission, Aggravated, Exemplary and Restitutionary Damages, above n 52 at para 3.71; S Watterson, ‘Alternative and Cumulative Remedies: What is the Difference?’ [2003] Restitution Law Review 7. 165  In Novoship (UK) Ltd v Mikhaylyuk [2012] EWHC 3586 (Comm), [93], Christopher Clarke J said that a principal can seek an account of profits from a dishonest assister ‘as an alternative to equitable compensation’; this is consistent with the judgment of the Court of Appeal: [2014] EWCA Civ 908, 164 NLJ 7615. See too eg Shell International Trading & Shipping Co Ltd v Tikhonov [2010] EWHC 1399 (QB), [29] (Jack J); Otkritie International Investment Management Ltd v Urumov [2014] EWHC 191 (Comm), [71] (Eder J).



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if the primary wrongdoer has already been made to disgorge his or her profits when a claim is brought against the accessory for compensation, is the accessory still able to seek contribution from the primary wrongdoer? The preferable approach may be to say that the remedy awarded against the primary wrongdoer in such instances was not exclusively restitutionary, and contained a compensatory element. As a result, the amount of compensation that can be claimed from the accessory should be reduced. Such instances will, however, be rare: if the claimant does not also sue the accessory at the same time as the primary wrongdoer, then the primary wrongdoer is likely to join the accessory so that all claims are heard at the same time. Whether or not this approach can be adopted throughout the law of tort is slightly more difficult. For example, section 61(2) of the Patents Act 1977 provides that: The court shall not, in respect of the same infringement, both award the proprietor of a patent damages and order that he shall be given an account of the profits.

If ‘the same infringement’ is interpreted narrowly to encompass the claim against both the primary wrongdoer and accessory, this might mean that the same award must be made against both. This appears to have been the approach of Pumfrey J in Spring Form Inc v Toy Brokers Ltd.166 In that case, Spring Form had a patent for children’s toy tents, and granted an exclusive licence to Ninja Corp to manufacture, distribute and sell the tents in the United Kingdom. Worlds Apart Ltd, in infringement of that patent, manufactured similar tents, and sold them to Toy Brokers Ltd, Argos Ltd and Woolworths plc. Spring Form sought an account of profits against Toy Brokers. Pumfrey J held that this election meant that Spring Form could not also sue for damages,167 and that a claim for an account of profits against one defendant could not be combined with a claim for damages against another defendant, since ‘an election extends to all defendants in respect of any particular infringing article, infringing process or product of the latter’.168 This approach seems unsatisfactory, and has been cogently criticised.169 It is inconsistent with earlier cases where different remedies have been combined. For example, in Penn v Bibby,170 Page Wood V-C held that a claimant was entitled to an account of profits against the defendant who manufactured articles that infringed the claimant’s patent, and damages against another defendant who was using those articles.171 The claims against the primary wrongdoer and accessory should be considered separately, even though the latter is parasitic upon a primary wrong. At the very least, any election made between available remedies   Spring Form Inc v Toy Brokers Ltd [2002] FSR 276 (Ch D).   ibid 287. 168   ibid 290. 169   L Bently and C Mitchell, ‘Combining Money Awards for Patent Infringement’ [2003] Restitution Law Review 79. 170   Penn v Bibby (1866) LR 3 Eq 308. 171   See too Catnic Components Ltd v C Evans & Co Ltd [1983] FSR 401 (Patent Ct). 166 167

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against one defendant should not affect another defendant.172 If section 61 of the Patents Act 1977 really is to be understood in the broad sense adopted by Pumfrey J, this might be explained on the basis that the legislation distinguishes patents as subject to a distinct regime; this should not distort accessory liability more generally. However, it would be preferable for the statutory provision to be read narrowly, such that it only aims to prevent a claimant from recovering both compensation and an account of profits against the one defendant in situations where that would lead to excessive recovery.173 Where there are two different defendants – a primary wrongdoer and accessory – then the provision only means that both a compensatory and restitutionary award cannot generally be made against either defendant in order to recover the same loss twice.

172   A claimant will only be found to have made an election when all relevant considerations against a defendant are known: Island Records Ltd v Tring International plc [1996] 1 WLR 1256 (Ch D); Tang Man Sit v Capacious Investments Ltd [1996] AC 514 (PC). 173   See generally Watterson, ‘Alternative and Cumulative Remedies’, above n 164.

9 Conclusions Every area of the private law has had to grapple with comparable problems concerning accessory liability. The conduct element, mental element, defences and remedies raise similar issues in equity, contract and tort. However, the pressure increasingly to specialise in one particular subject may have led to a tendency to focus upon cases that fall within one pocket of the law, without having regard to developments in neighbouring areas.1 This is unfortunate. Any differences of approach in different parts of the private law should be explained and justified.2 Preceding chapters have focussed upon the general principles of accessory liability.3 These are similar throughout the private law. The range of potential remedies and defences do not differ across the law of obligations, although their application may vary according to the nature of the primary wrong. Inducement liability is well established regardless of the nature of the primary wrong. It is, though, more difficult to trace a coherent principle of assistance liability throughout English private law. It is accepted in equity, but less so at common law. Assistance liability probably lies latent in the contractual context, in which case overt acknowledgement would not require much, if any, modification of contract law doctrine. But assistance liability is generally rejected in tort law, even though some contrary examples can be found. Recognition of assistance liability in tort law is desirable but requires a shift in approach.

I.  ‘Knowing Assistance’ All forms of participation that make a substantial contribution to the violation of the claimant’s right should lead to accessory liability. This can be through 1  See eg Lord Toulson, ‘Foreword’ in M Dyson (ed), Unravelling Tort and Crime (Cambridge, Cambridge University Press, 2014) x. 2   See W Gummow, ‘Knowing Assistance’ (2013) 87 Australian Law Journal 311. As has been pointed out elsewhere, ‘[i]t seems likely that this difficult area will continue to receive the attention of the courts and that academic writings will inform the approach of the practising Bar and of the Bench’: SF Deakin, AC Johnston, and B Markesinis, Markesinis and Deakin’s Tort Law, 7th edn (Oxford, Oxford University Press, 2012) 888. 3   These still need to be brought to the fore; Sir Anthony Clarke MR (as he then was) has said that ‘accessorial liability. . . is not an expression I care for’: A Clarke, ‘Claims Against Professionals: Negligence, Dishonesty and Fraud’ (2006) 22 Professional Negligence 70, 71.

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assistance, encouragement or inducement. In Tan, Lord Nicholls recognised that the ‘accessory principle’ would be ‘artificially constricted’ were it to be limited to inducement alone;4 such reasoning applies to the ‘accessory principle’ throughout the private law, and should not be restricted to the equitable domain. It can be very difficult to differentiate between assistance and inducement,5 and it is not worthwhile always putting in the effort to do so. Nevertheless, there is an obvious reluctance in certain quarters to embrace assistance liability. The main concern seems to focus upon demands of certainty. It is commonly recognised that in some situations assistance liability is appropriate; yet for some the desire to be able to reach a just solution on the facts of a given case is outweighed by a need to provide certainty in the law more generally.6 Although the concern for legal certainty is important, it should not trump the need for the law to be just. If the pursuit of certainty leads to the general exclusion of assistance liability, such that those who knowingly assist an assault escape sanction, then the law does not appear to reach just results.7 Assistance liability should not be discarded purely on the grounds of certainty. Indeed, it is not clear that the law is more certain by excluding assistance liability. Instances of assistance are squeezed within ‘accepted’ conduct elements such as inducement8 or authorisation,9 and the requirement of ‘common design’ is stretched to cover cases of knowing assistance where there is no real concerted action for a common end.10 There thus exists much uncertainty surrounding the boundaries of the conduct elements regularly recognised at common law. It is arguable that the law would in fact be rendered more certain if accessory liability were to be jettisoned in its entirety, or, alternatively, if all forms of participation that play a substantial role in the infringement of the claimant’s right were able to provide the basis of accessory liability. The latter alternative is preferable. The perceived mid-position of allowing some forms of participation but not others to ground a claim has made current doctrine very complex and unsatisfactory. Some desire to exclude assistance liability stems from a concern, raised particularly in the context of intellectual property disputes, that those who simply supply a staple article of commerce which is subsequently used to infringe a claimant’s rights should not incur liability. This appears to have motivated comments made in cases such as Belegging-en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd that ‘facilitating the doing of an act is obviously different from procuring the doing of an act’.11 If this approach was motivated by a desire   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 384–385.   P Sales, ‘The Tort of Conspiracy and Civil Secondary Liability’ (1990) 49 CLJ 491, 507. 6   N McBride and R Bagshaw, Tort Law, 4th edn (Harlow, Pearson, 2012) 863–864; see too Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [44] (Beatson LJ). 7   See ch 6.VI. 8  eg Global Resources Group Ltd v Mackay [2008] CSOH 148, [2009] SLT 104, [13] (Lord Hodge). 9  eg Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), [2012] 3 CMLR 328; Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13. 10  eg Shah v Gale [2005] EWHC 1087 (QB). 11   Belegging-en Exploitatiemaatschappij Lavender v Witten Industrial Diamonds Ltd [1979] FSR 59 (CA), 65 (Buckley LJ). 4 5



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to remain faithful to the statutory regimes regulating intellectual property,12 it may be that this fear of assistance liability could be isolated to the area of intellectual property rights.13 However, it is not obvious that the statutory regime should be considered to restrict the relief available at common law; indeed, in all areas of intellectual property, reference is made to the common law of ‘joint tortfeasance’.14 Moreover, the balance currently struck may not even be appropriate in the intellectual property context. Daniels and Haftke have observed that ‘it is valid to ask whether the digital age (and the power to clone) requires a rethink of the “facilitation versus authorisation” principle’,15 and in the global world of intellectual property rights it appears that assistance liability is recognised more widely in other jurisdictions.16 This should prompt further reflection as to whether the English approach is satisfactory. It may well be that those who supply legitimate products should generally avoid accessory liability, but this result could be better reached through a demanding mental element or clear recognition of appropriate defences.17 There is no reason to favour a blunt approach which excludes all instances of assistance. Concerns that accessory liability will more readily be established if assistance liability were to be generally recognised do not appear troublesome. For instance, there may be some concern about imposing liability upon ‘social hosts’ who supply their guests with alcohol in the knowledge that they will then drive afterwards and perhaps injure someone. Even if the acts of the ‘social host’ did make a sufficiently substantial contribution to the primary wrong, it will still remain difficult to establish the requisite, demanding mental element; but where this is possible, and the ‘social host’ has no defence, it is not inappropriate to impose accessory liability. Indeed, there is much debate about whether the ‘social host’ should owe a primary, free-standing duty of care in negligence, which demands a much lower mental element than accessory liability.18 In a similar vein, fears that company directors might be increasingly exposed to accessory liability should be downplayed. Directors might be liable as ‘joint tortfeasors’ under the law at present.19 Although it has been said that ‘a director will not be treated as liable with the company as a joint tortfeasor if he does no more 12   CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC 1013 (HL), 1060 (Lord Templeman). 13   J Dietrich, ‘Accessorial Liability in the Law of Torts’ (2011) 31 Legal Studies 231, 251–253. 14   See ch 6.II.B.iii. 15   M Haftke and P Daniels, ‘Napster in the UK’ (2001) 12 Entertainment Law Review 107, 111. 16  See eg AN Dixon, ‘Liability of Users and Third parties for Copyright Infringements on the Internet: Overview of International Developments’ in A Strowel (ed), Peer-to-peer File Sharing and Secondary Liability in Copyright Law (Cheltenham, Edward Elgar, 2009); C Angelopoulos, ‘Beyond The Safe Harbours: Harmonising Substantive Intermediary Liability For Copyright Infringement in Europe’ [2013] Intellectual Property Quarterly 253. 17   See eg ch 7.II.C. 18   See eg C McIvor, Third Party Liability in Tort (Oxford, Hart Publishing, 2006) ch 4. 19   Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 (CA); Twentieth Century Fox Film Corp v Harris [2014] EWHC 1568 (Ch), [135]–[140] (Barling J); SHC Lo, ‘Liability of Directors as Joint Tortfeasors’ [2009] Journal of Business Law 109.

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than carry out his constitutional role in the governance of the company’,20 liability can attach to a director who plays a sufficiently substantial causative role in the infringement of the claimant’s right.21 Here again, the conduct element and stringent mental element will not easily be satisfied, and in circumstances where defendants are prima facie liable as accessories, they may well be able to rely upon a defence of justification.22 Finn has observed that ‘it is strongly arguable that the more stringent the knowledge required of fiduciary wrongdoing the less obvious the reason for differentiating between types of wrongdoing’.23 The law is clearly much easier to state if the mental element does not vary according to the nature of the defendant’s participation in a primary wrong. Demanding a single mental element is not only appropriate but happily avoids the complexities inherent in the tremendously difficult exercise of managing fine distinctions between different conduct elements and mental elements. Actual knowledge should be required for accessory liability, with a narrow extension to encompass wilful blindness. This approach to the mental element might be criticised on a number of grounds. It might be condemned as too narrow. If negligence is appropriate for primary liability, why not for accessory liability also? If a defendant makes a mistake that unreasonably but honestly means that he or she does not know that a primary wrong will occur,24 why should that defendant escape liability? The answer to these questions lies in the nature of accessory liability itself: since the defendant is further removed from the commission of the primary wrong and infringement of the claimant’s rights, a high degree of culpability should be required. Negligence might be appropriate for the primary wrongdoer because of the proximate relationship that exists between the primary wrongdoer and claimant. But accessories do not enjoy such proximity, so a higher fault element should invariably be required.25 ‘Actual knowledge’ might also be criticised from the opposing flank as being too broad. However, ‘participatory liability is not premised upon there being a concert or conspiracy between the fiduciary and the third party’,26 so a requirement of a ‘common design’ seems too narrow. Defendants rarely act ‘in concert’   MCA Records Inc v Charly Records Ltd [2001] EWCA Civ 1441, [2002] FSR 401, [49] (Chadwick

20

LJ). 21   N Foster, ‘Personal Civil Liability of Company Officers for Company Workplace Torts’ (2008) 16 Torts Law Journal 20, 41. 22   See ch 7.II. Gummow has argued that, in the context of the legislative regime in Australia, equity should not fix criteria for accessorial liability for breach by directors of non-fiduciary duties that are more severe than those provided by statute: W Gummow, ‘The Equitable Duties of Company Directors’ (2013) 87 Australian Law Journal 753. 23   PD Finn, ‘The Liability of Third Parties for Knowing Receipt or Assistance’ in DWM Waters (ed), Equity, Fiduciaries and Trusts 1993 (Ontario, Carswell, 1993) 206. 24   The defendant needs to know the ‘essential matters’ of the primary wrong, but does not need to appreciate how the law characterises such matters: see eg ch 4.V.A.i. The ‘essential matters’ that need to be known obviously vary according to the primary wrong. 25   Gummow, ‘Knowing Assistance’, above n 2 at 317–319. 26   Finn, ‘The Liability of Third Parties’, above n 23 at 216; Halberstam v Welch 705 F 2d 472 (Col 1983).



A Standard Approach across All Obligations

283

with a primary wrongdoer. Similarly, a requirement of ‘intention’ is also too restrictive; if the defendant would rather the primary wrong did not occur, but knowingly contributes to the infringement of the claimant’s rights anyway, accessory liability should lie. ‘Knowledge’ manages to be sufficiently wide to encompass such defendants. It is buttressed by defences to ensure that those who are not culpable do not incur liability. Requiring actual knowledge ensures that the freedom of action of those who are not in a proximate relationship with the claimant is not unduly hampered. It has sometimes been contended that knowledge is too uncertain as a mental element; this partly explains why it was jettisoned in the equitable context by the Privy Council in Tan.27 Indeed, a failure of the equitable cases to ‘hold the line’ at a high level of knowledge has prompted some reluctance to recognise a general principle of ‘knowing assistance’ since the danger of liability expanding too far is greatly feared.28 It is suggested that confusion in the equitable sphere was compounded by the difficulties introduced by attempting to distinguish clearly each individual point on the scale of knowledge presented in Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA.29 Knowledge itself should be readily understood if a narrow approach is adhered to; only actual knowledge or consciously turning a blind eye to known facts should suffice for accessory liability. Knowledge already appears to be the basis of accessory liability across the private law, and overt recognition of the content of this mental element would have beneficial effects in making the law more transparent and easier to understand.

II.  A Standard Approach Across All Obligations A general principle of knowing assistance or inducement should apply regardless of the nature of the primary right of the claimant that has been infringed. This requires some important barriers that have traditionally been erected in the private law of obligations to be dismantled. For instance, the common law/equity divide should not prevent knowing assistance liability being recognised in each. This has been explicitly called for by both judges30 and academics.31 There is no   Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 387–392 (Lord Nicholls).   Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867, [44] (Beatson LJ). 29   Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509n (Ch D), 574 (Peter Gibson J). 30  eg Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC), 387 (Lord Nicholls); Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, [127] (Lord Millett); OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [190] (Lord Nicholls). 31   P Birks, ‘Civil Wrongs: A New World’ in Butterworth Lectures 1990–91 (London, Butterworths, 1992) 100; C Harpum, ‘The Basis of Equitable Liability’ in P Birks (ed), The Frontiers of Liability, vol 1 (Oxford, Oxford University Press, 1994); G Andrews, ‘The Redundancy of Dishonest Assistance’ [2003] Conveyancer and Property Lawyer 398. See too W Swadling, ‘Knowing Assistance and Receipt – Lessons from The Law of Tort’ in P Birks (ed), The Frontiers of Liability, vol 1 (Oxford, Oxford University Press, 27 28

284

Contract

reason why a beneficiary’s entitlement that his or her fiduciary act loyally should be protected more strongly than his or her right to bodily integrity; that the former is recognised in equity and the latter at common law is no reason to employ a different framework for accessory liability.32 Such a generalised approach might derive support from the contention of Erle J in Lumley v Gye that liability arises whether the defendant ‘procures an actionable wrong or a breach of contract’.33 Yet there seems to be some support for the idea that tort law should be treated differently and ‘different tort areas may warrant different treatment’.34 It is difficult to understand why rights protected by the law of tort should be subject to a weaker accessory principle than other areas. Even if it is right that in tort law the act of the primary wrongdoer is attributed to the accessory,35 it is unclear why this should mean that the conduct or mental elements required for accessory liability should differ. Indeed, ‘knowing assistance’ was previously recognised in the law of tort.36 Indiscriminate exclusion of knowing assistance unfairly and unnecessarily undermines the protection of claimants’ rights afforded by tort law. A general approach to knowing assistance in the private law would mirror that adopted in the criminal sphere.37 This helps the law to send out a clear message: knowingly assisting a wrong is prima facie wrong.

III.  The Nature of Accessory Liability An accessory is liable for his or her participation in a primary wrong. Whilst such liability is clearly parasitic upon the occurrence of a primary wrong, the nature of the accessory’s wrong is distinct from that of the primary wrongdoer. This best explains the different conduct elements, mental elements, defences and remedies which are available against the primary wrongdoer and accessory.38 A ‘secondary liability’ approach which insists that the liability of the accessory replicates that of 1994) 41: ‘Much of the difficulty inherent in the branch of the law concerning liability for assisting a breach of trust . . . derives from the fact that this pocket of the law seems to exist in equity without any reference to its common law counterparts’. 32   This approach would mean that the elements of accessory liability would not radically differ whether the primary wrong committed by a director was a breach of fiduciary or non-fiduciary duty (see ch 4.III.B), or whether a primary wrong of breach of confidence was contractual or equitable (see ch 4.III.C). 33   Lumley v Gye (1853) 2 E & B 216, 233. 34   N Foster, ‘Personal Civil Liability of Company Officers for Company Workplace Torts’ (2008) 16 Torts Law Journal 20, 37. 35   R Stevens, Torts and Rights (Oxford, Oxford University Press, 2007) 257. 36   See ch 6.I.A. 37   And an action for knowingly assisting the breach of an injunction should lead to accessory liability regardless of the nature of the underlying right which gave rise to the injunction: Seaward v Paterson [1897] 1 Ch 545 (CA), 551 (North J). 38   It also explains why the conflicts of law rules that apply to the primary wrongdoer and accessory can be different: see generally ch 2.IV.



A Narrow But Coherent Law of Accessory Liability

285

the primary wrongdoer distorts the law and is inconsistent with principle. Although an ‘independent tort’ of accessory liability has been generally rejected,39 such an independent tort seems redundant if general principles of accessory liability are recognised. The parasitic nature of liability does not mean that accessory liability loses its distinct character.

IV.  A Narrow But Coherent Law of Accessory Liability It is appropriate finally to reflect on the scope of accessory liability. It would be easy to push for an expansive law of accessories such that a large number of defendants could be enveloped within its scope. But that would mean that the spectre of accessory liability could loom large over those who do not directly commit primary wrongs, thereby inhibiting their freedom of action. This should not be encouraged. Accessory liability should remain relatively narrow. Only those who participate in a meaningful way in the violation of claimant’s rights should run the risk of accessory liability. This should present a real barrier to successful claims: defendants whose conduct has only a minimal impact upon the primary wrong should not incur accessory liability.40 Even if that hurdle of participation is overcome, only those who actually knew of – or deliberately turned a blind eye to – the fact that they were participating in a primary wrong should be susceptible to accessory liability. And such defendants may be able to avail themselves of a defence. As a result, accessory liability is, rightly, difficult to establish.41 But it should not be made even more difficult by fine distinctions and mangled doctrine. The law should be easy to state, even if, at times, difficult to prove: only a defendant who knowingly assists a primary wrong risks accessory liability.

39  eg Smith v Pywell [1959] CLY 3215 (Diplock J); Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 (CA), 474 (Slade LJ); but cf eg Belegging-en Exploitatiemaatschappij Lavender v Witten Industrial Diamonds Ltd [1979] FSR 59 (CA), 66–67 (Buckley LJ); Dow Chemical v Spence Bryson & Co Ltd [1982] FSR 397 (CA), 404 (Lawton LJ); Unilever plc v Gillette (UK) Ltd [1989] RPC 583 (CA), 608 (Mustill LJ); M Jones and A Dugdale (eds), Clerk & Lindsell on Torts, 20th edn (London, Sweet & Maxwell, 2010) para 24-31. 40   This explains why the claim against the landlord ultimately failed in Coventry v Lawrence (No 2) [2014] UKSC 46, [2014] 3 WLR 555, discussed at ch 6.V.A. Carty has argued that one reason why the conduct element of accessory liability should be restricted to ‘inducement’ is that it restricts the scope of liability before any consideration of the mental element is required (H Carty, An Analysis of the Economic Torts, 2nd edn (Oxford, Oxford University Press, 2010) 54–63). It is suggested that this approach is too blunt; it is preferable to recognise assistance liability, and that the requirement of substantial causal effect plays a significant role in limiting the scope of liability as regards all conduct elements. 41   cf S Deakin and J Randall, ‘Rethinking the Economic Torts’ (2009) 72 MLR 519, 540.

INDEX Abetting meaning and scope, 24–27 Actus reus see Conduct element Advice breaches of contract, 154–55 counsel, 27–29 Agency innocent agency criminal offences, 57–58, 68 general doctrines distinguished, 68 performance of duty, 235 ‘Aid, abet, counsel or procure’ general definitions abetting, 24–27 aiding, 22–24 counseling, 27–29 procuring, 29–31 torts, 177–78 Aiding see Assistance Assistance see also ‘knowing assistance’ breaches of contract, 150–53 equitable wrongs conduct element, 106–08 inducement distinguished, 127–29 meaning and scope, 22–24 torts modern approach, 195–96 potential for wider approach, 198–202 relationship between accessory and primary wrongdoer, 196–98 Authorisation torts, 7, 26–27, 178, 180, 183, 185, 188, 191–94 Baden scale of knowledge equitable wrongs, 113–14 standard of knowledge, 44–47 Breaches of confidence, 100–02 Breaches of contract see also Inducing a breach of contract advice, 154–55 arguments against accessory liability efficient breach argument, 168–70 overview, 166–67 privity of contract, 167–68 protection of commercial morality, 170–71 trade unions, 171–72 assistance, 150–53 best practice for future liability

avoidance of undesirable evidential difficulties, 172–74 fusion with equitable approach, 174–76 conduct element advice, 154–55 assistance, 150–53 encouragement, 153–54 inducement, 145–50 preliminary conclusions, 156 damages continuing losses, 260 differences between primary wrongdoer and accessory, 258 effect of exclusion clauses, 145, 261–63 inducing a breach of contract, 258–59, 260 remoteness, 259–60 defences primary wrongdoer, 224 protecting rights, 230–31 statutory immunity for trade unions, 248–49 doctrinal difficulties, 6–7 encouragement, 153–54 gain-based awards, 265 injunctions, 274 intention, 157–58 justification common factors required, 226 performance of duty, 234–35 statutory provisions, 248–50 knowledge content of knowledge, 158–60 standard of knowledge, 159–60 malice, 156–57 mental element intention, 157–58 knowledge, 158–60 malice, 156–57 negligence, 160–61 preliminary conclusions, 161 negligence, 160–61 overview, 132 primary wrongs any type of breach, 142–43 exclusion clauses, 145 force majeure clauses, 145 void and voidable contracts, 143–45 private law similarities and difficulties, 9 punitive damages, 272–73

288

Index

Breaches of contract cont. rationales underpinning accessory liability culpability, 163 deterrence, 165 loss-shifting, 165–66 overview, 162 preliminary conclusions, 166 property, 164–65 protecting rights, 163–64 responsibility, 162–63 recognition of accessorial liability, 141–42 Breaches of fiduciary duty see also Equitable wrongs benefits of establishing basis of ‘knowing assistance’, 282–83 best practice for future contract claims, 176 gain-based awards, 264–65, 268–69 justification, 233 limitation period, 252–53 primary wrongs, 99–100 Breaches of statutory duty, 184 Breaches of trust see also Equitable wrongs doctrinal difficulties, 5–6 importance of accessory liability, 3 primary wrongs, 96–98 ‘But for’ test, 36–37 Causation compensation for breaches of trust, 257–58 contractual wrongs, 148–49 criminal offences, 72–75 equitable wrongs, 108–09 fundamental concept attaching to conduct need for link, 31–33 novus actus interveniens, 33–36 participation in primary wrong, 39–40 substantial cause, 37–39 tests of causation, 36–37 gain-based awards against accessories, 268–69 torts, 210–11 Co-principals criminal offences, 65 ‘Common design’ conduct element, 188–91 modern approach, 195–96 Compensation and damages see also Gain-based awards breaches of contract continuing losses, 260 differences between primary wrongdoer and accessory, 258 effect of exclusion clauses, 261–63 inducing a breach of contract, 258–59, 260 remoteness, 259–60 combining remedies gain-based awards, 276–77 injunctions, 275–76

contribution, 271–72 contributory negligence, 263–64 effect of exclusion clauses, 261–63 equitable wrongs causation, 257–58 effect of exclusion clauses, 261–63 fictional labelling of ‘trustees’, 256–57 need for participation, 257 measure of damages based on hypothetical bargain, 269–71 punitive damages, 272–73 release of primary wrongdoer, 263 Conduct element breaches of contract advice, 154–55 assistance, 150–53 encouragement, 153–54 preliminary conclusions, 156 causation need for link, 31–33 novus actus interveniens, 33–36 participation in primary wrong, 39–40 substantial cause, 37–39 tests of causation, 36–37 criminal offences, 71–75 equitable wrongs assistance, 106–08 causation, 108–09 encouragement, 108 inducement, 104–05 fundamental concepts abetting, 24–27 aiding, 22–24 common law development, 21–22 counseling, 27–29 procuring, 29–31 statutory guidance, 21 inducing a breach of contract direct and indirect conduct distinguished, 147–48 inducement, 145–46 prevention distinguished, 146–47 scope, 149–50 part of universal ‘triangle’ of liability, 1–2 private law similarities and difficulties, 8–10 torts assistance, 195–202 authorisation, 191–94 ‘common design’, 188–91 inducement, 194–95 Consistency in the law contractual wrongs, 172–73 standard approach across all obligations, 283–84 torts and criminal law, 216–19 and private law, 219–20 underlying principle, 19



Index

Conspiracy accessory liability and other forms of liability distinguished negligence, 182 accessory liability distinguished, 61–62, 181–82 criminal offences, 69 Content of knowledge breaches of contract, 158–59 criminal offences, 76–77 equitable wrongs, 110–12 fundamental concept, 43–44 torts, 207–08 Contracts see Breaches of contract; Inducing a breach of contract Contribution, 271–72 Contributory negligence, 263–64 Convenience importance of accessory liability, 3–4 Corporate liability attribution, 60–1 benefits of establishing basis of ‘knowing assistance’, 281–82 performance of duty, 235 Counseling meaning and scope, 27–29 Criminal offences conclusions, 87 conduct element, 71–75 defences duress, 82 preventing the commission of an offence, 82 primary offences, 80–81 reasonableness, 83 withdrawal, 81–82 innocent agency importance, 57–58 scope of liability, 57–88 mental element intention, 75–76 knowledge, 76–78 negligence, 79 overview, 75 recklessness, 78–79 nature of accessory liability, 55–56, 83–85 overview, 64 primary offences only, 70–71 rationales underpinning accessory liability culpability, 85–86 evidential considerations, 86 public acceptability, 86 responsibility, 85 scope of liability co-principals, 65 conspiracy, 69 inchoate liability, 69 innocent agency, 68

289

joint enterprise, 66–68 vicarious liability, 69 Culpability breaches of contract, 163 criminal offences, 85–86 equitable wrongs, 123–24 general rationale, 13–14 torts, 211 Damages see Compensation and damages De minimis causation, 38–39 Defences conclusions, 253–54 criminal offences duress, 82 preventing the commission of an offence, 82 primary offences, 80–81 reasonableness, 83 withdrawal, 81–82 justification ‘broad brush’ approach, 228–29 common factors required, 226–28 performance of duty, 234–40 protecting rights, 230–34 protection of public morals, 247–48 staple article of commerce, 240–47 statutory provisions, 248–50 limitation periods differences between primary wrongdoer and accessory, 251–52 equitable liability, 252–53 overview, 222–23 primary wrongdoers availability to accessory, 225 breaches of contract, 224 equitable liability, 223–24 torts, 224 withdrawal, 250–51 Deterrence breaches of contract, 165 crime, 86 equitable wrongs, 125 general rationale, 15–16 torts, 212–13 Dishonesty equitable wrongs concerns over labelling, 119 implicit defences, 122 more nuanced approach, 119–20 objective or subjective test, 116–18 reception from commentators, 118–19 state of mind or conduct, 120–21 ‘unnecessary distraction’, 121–22 meaning and scope, 49–50 Duress criminal offences, 82 equitable wrongs, 102–03 torts, 233

290

Index

Duty of care free-standing duty attaching to accessory liability, 56–57, 182 Economic torts inducing a breach of contract distinguished, 138–40 private law similarities and difficulties, 8 Economic efficiency efficient breach argument, 168–70 justification based on commercial considerations balancing process of establishing defence, 245–47 intellectual property rights, 240–45 ‘law and economics’ approach, 17–18 rationale for tortious liability, 213 Encouragement breaches of contract, 153–54 crime, 72 equitable wrongs, 108 torts, 194 Equitable wrongs changes brought about by Tan, 95–96 compensation causation, 257–58 effect of exclusion clauses, 261–63 fictional labelling of ‘trustees’, 256–57 need for participation, 257 conduct element assistance, 106–08 causation, 108–09 encouragement, 108 inducement, 104–05 confusion arising from Barnes v Addy identification of three possible claims, 88–90 ‘knowingly assisting a dishonest fraudulent design’, 93–95 receipt-based liability, 91–93 trustees de son tort, 90–91 defences primary wrongdoer, 223–24 dishonesty, 116–22 doctrinal difficulties, 5–6 injunctions, 274 justification ‘broad brush’ approach, 228–29 performance of duty, 236 protecting rights, 232–33 knowledge, 109–14 limitation period, 252–53 mental element dishonesty, 116–22 knowledge, 109–14 negligence, 114–15 unconscionability, 115–16 nature of accessory liability, 103–04

negligence, 114–15 overview, 88 primary wrongs breaches of confidence, 100–02 breaches of fiduciary duty, 99–100 breaches of trust, 96–98 undue influence, 102–03 private law similarities and difficulties, 9 rationales underpinning accessory liability culpability, 123–24 deterrence, 125 loss-shifting, 125 property, 125–26 protecting rights, 124 responsibility, 123 recognition of liability gain-based awards, 129–30 general approach, 130–31 inducement and assistance distinguished, 127–29 judicial questioning of liability, 126–27 unconscionability, 115–16 Evidential considerations breaches of contract, 172–74 criminal offences, 86 forensic advantage of accessory liability, 18–19 Exclusion clauses breaches of contract, 145 effect on damages, 261–63 Fiduciaries see Breaches of fiduciary duties; Equitable wrongs Force majeure clauses, 145 Forgotten facts, 47–49 Freedom of action, general idea, 19–20 Freedom of assembly and association (Art 11), 233–34 Freedom of expression (Art 10), 233–34 Fundamental concepts conduct element abetting, 24–27 aiding, 22–24 causation, 31–39 common law development, 21–22 counseling, 27–29 procuring, 29–31 statutory guidance, 21 mental element dishonesty, 49–50 intention, 41–42 knowledge, 42–49 negligence, 52 overview, 40–41 preliminary conclusions, 52–54 recklessness, 51–52 unconscionability, 50–51 parasitic nature of accessory liability, 54–56



Index rationales underpinning accessory liability consistency in the law, 19 culpability, 13–14 deterrence, 15–16 evidential considerations, 18–19 freedom of action, 19–20 ‘law and economics’ approach, 17–18 loss-shifting, 16–17 preliminary conclusions, 20–21 property, 17 protecting rights, 14–15 responsibility, 12–13

Gain-based awards combined with compensation, 276–77 equitable wrongs, 91–93, 129–30 general principles accounting for accesories gain, 267–69 liability for primary wrongdoer’s gain, 264–67 measure of damages based on hypothetical bargain, 270 Human rights, 233–34 Inchoate liability criminal offences, 69 Inducement benefits of applying general principle across all obligations, 283–84 direct and indirect conduct distinguished, 147–48 equitable wrongs assistance distinguished, 127–29 conduct element, 104–05 torts, 194–95 Inducing a breach of contract see also Breaches of contract conduct element direct and indirect conduct distinguished, 147–48 prevention distinguished, 146–47 scope, 149–50 damages, 258–59, 260 development of the law after Lumley the ‘genus tort’ and its dismissal, 160 limited reliance on Lumley, 135–36 recognition as economic tort, 138–40 requirement for breach of contract, 137–38 doctrinal difficulties, 6–7 leading case basis of judgment, 133–35 facts of case, 132–33 punitive damages, 272–73 rationale underpinning accessory liability, 162 Injunctions combined with damages, 275–76 general principles, 274–75

291

Innocent agency criminal offences, 68 importance, 57–58 Insolvency importance of accessory liability, 3 Intellectual property rights combining remedies, 277–78 importance of accessory liability, 3–4 injunctions, 274–75 justification based on commercial considerations, 240–45 primary torts, 186–87 standard of knowledge, 208–09 Intention breaches of contract, 157–58 criminal offences, 75–76 meaning and scope, 41–42 torts, 205–06 Joint enterprise accessory liability distinguished, 62–63 criminal offences, 66–68 Joint tortfeasance benefits of establishing basis of ‘knowing assistance’, 281–82 doctrinal difficulties, 7–8 history and development of accessory liability, 178–80 Justification breaches of contract, 226 ‘broad brush’ approach, 228–29 common factors required, 226–28 performance of duty importance in employment law, 234–35 overview, 234 protecting rights broad approach adopted by English law, 233–34 justification based on equal or superior rights, 230–33 protection of public morals, 247–48 staple article of commerce balancing process of establishing defence, 245–47 intellectual property rights, 240–45 statutory provisions, 248–50 ‘Knowing assistance’ adoption in torts best practice for future liability, 214 consistency with criminal law, 216–19 consistency with private law, 219–20 benefits of applying general principle across all obligations, 283–84 benefits of establishing basis of liability, 281–83 recognition of principal in Tan, 279 reluctance to embrace concept, 280–81

292 Knowledge breaches of contract content of knowledge, 158–59 standard of knowledge, 159–60 criminal offences content of knowledge, 76–77 standard of knowledge, 77–78 equitable wrongs content of knowledge, 110–12 standard of knowledge, 112–14 importance, 53 meaning and scope content of knowledge, 43–44 forgotten facts, 47–49 general and specific knowledge distinguished, 48–49 mistaken beliefs, 47–49 standard of knowledge, 44–47 torts content of knowledge, 207–08 standard of knowledge, 208–09 ‘Law and economics’ approach, 17–18 Limitation periods differences between primary wrongdoer and accessory, 251–52 equitable liability, 252–53 Loss-shifting breaches of contract, 165–66 equitable wrongs, 125 general rationale, 16–17 torts, 213 Lumley tort see Inducing a breach of contract Malice breaches of contract, 156–57 Mens rea see mental element Mental element breaches of contract intention, 157–58 knowledge, 158–60 malice, 156–57 negligence, 160–61 preliminary conclusions, 161 criminal offences intention, 75–76 knowledge, 76–78 negligence, 79 overview, 75 recklessness, 78–79 equitable wrongs dishonesty, 116–22 knowledge, 109–14 negligence, 114–15 unconscionability, 115–16 fundamental concepts dishonesty, 49–50 intention, 41–42

Index knowledge, 42–49 negligence, 52 overview, 40–41 preliminary conclusions, 52–54 recklessness, 51–52 unconscionability, 50–51 part of universal ‘triangle’ of liability, 1–2 private law similarities and difficulties, 8–10 torts deliberate acts, 203 intention, 205–06 knowledge, 206–09 mirroring the primary wrong, 203–05 Mistaken beliefs, 47–49 Moral considerations arguments against accessory liability, 170–71 importance to accessory liability, 4 protection of public morals, 247–48 Nature of accessory liability conclusions, 284–85 criminal offences, 55–56, 83–85 equitable wrongs, 103–04 fundamental concepts, 54–56, 255–56 Negligence breaches of contract, 160–61 contributory negligence, 263–64 criminal offences, 79 equitable wrongs, 114–15 free standing duty of care, 182 meaning and scope, 52 as primary wrong, 187 NESS test, 37 Novus actus interveniens, 33–36 Nuisance, 185 Performance of duty agency approach, 235 alter ego rule, 235–37 importance in employment law, 234–35 justification for act, 234 reliance upon duty to third party, 237–40 Preserving relationships importance of accessory liability, 3 Prevention inducing distinguished, 146–47 preventing the commission of an offence, 82 Primary wrongs breaches of contract any type of breach, 142–43 exclusion clauses, 145 force majeure clauses, 145 void and voidable contracts, 143–45 criminal offences applicability, 70–71 defences, 80–81 defences availability to accessory, 225

breaches of contract, 224 equitable liability, 223–24 torts, 224 equitable wrongs breaches of confidence, 100–02 breaches of fiduciary duty, 99–100 breaches of trust, 96–98 undue influence, 102–03 part of universal ‘triangle’ of liability, 1–2 torts breaches of statutory duty, 184 intellectual property rights, 186–87 necessity, 183 negligence, 187 nuisance, 185 overview, 184 Privity of contract, 167–68 Procuring meaning and scope, 29–31 Property breaches of contract, 164–65 equitable wrongs, 125–26 justification for accessory liability, 17 Protecting rights general defence to accessory liability broad approach adopted by English law, 233–34 justification based on equal or superior rights, 230–33 general rationale, 14–15 rationale underpinning accessory liability breaches of contract, 163–64 equitable wrongs, 124 torts, 211–12 Public acceptability criminal offences, 86 Punitive damages, 272–73 Rationales underpinning accessory liability breaches of contract culpability, 163 deterrence, 165 loss-shifting, 165–66 overview, 162 preliminary conclusions, 166 property, 164–65 protecting rights, 163–64 responsibility, 162–63 criminal offences culpability, 85–86 evidential considerations, 86 public acceptability, 86 responsibility, 85 equitable wrongs culpability, 123–24 deterrence, 125 loss-shifting, 125

Index property, 125–26 protecting rights, 124 responsibility, 123 fundamental concepts consistency in the law, 19 culpability, 13–14 deterrence, 15–16 evidential considerations, 18–19 freedom of action, 19–20 ‘law and economics’ approach, 17–18 loss-shifting, 16–17 preliminary conclusions, 20–21 property, 17 protecting rights, 14–15 responsibility, 12–13 inducing a breach of contract contract, 134–35 status, 133–34 torts culpability, 211 deterrence, 212–13 economic efficiency, 213 protecting rights, 211–12 responsibility, 210–11 Recklessness criminal offences, 78–79 meaning and scope, 51–52 Remedies combining remedies, 275–78 compensation breaches of contract, 258–60 effect of exclusion clauses, 261–63 contribution, 271–72 contributory negligence, 263–64 injunctions, 274–75 punitive damages, 272–73 Responsibility breaches of contract, 162–63 criminal offences, 85 equitable wrongs, 123 general rationale, 12–13 torts, 210–11 Restitution see Gain-based awards Rights see Protecting rights Scope of liability abetting, 24–27 assistance, 22–24 counseling, 27–29 criminal offences co-principals, 65 conspiracy, 69 inchoate liability, 69 innocent agency, 57–58, 68 joint enterprise, 66–68 vicarious liability, 69 dishonesty, 49–50 intention, 41–42

293

294

Index

Scope of liability cont. knowledge content of knowledge, 43–44 forgotten facts, 47–49 general and specific knowledge distinguished, 48–49 mistaken beliefs, 47–49 standard of knowledge, 44–47 negligence, 52 procuring, 29–31 recklessness, 51–52 unconscionability, 50–51 Standard of knowledge breaches of contract, 159–60 criminal offences, 77–78 equitable wrongs, 112–14 fundamental concept, 44–47 torts, 208–10 Torts accessory liability and other forms of liability distinguished conspiracy, 181–82 vicarious liability, 180–81 best practice for future liability concerns over uncertainty, 214–15 conduct element, 213–14 consistency with criminal law, 216–19 consistency with private law, 219–20 key concerns, 214 ‘knowing assistance’, 214 combining remedies, 277–78 conclusions, 220–21 conduct element assistance, 195–202 authorisation, 191–94 ‘common design’, 188–91 inducement, 194–95 defences justification, 236 primary wrongdoer, 224 doctrinal difficulties, 7–8 history and development of accessory liability ‘aid, abet, counsel or procure’, 177–78 joint tortfeasance, 178–80 inducing a breach of contract the ‘genus tort’ and its dismissal, 160 recognition as economic tort, 138–40 intention, 205–06 judicial reluctance to develop accessory liability, 182–83

knowledge, 206–09 mental element deliberate acts, 203 intention, 205–06 knowledge, 206–09 mirroring the primary wrong, 203–05 nature of accessory liability, 55 overview, 177 primary wrongs breaches of statutory duty, 184 intellectual property rights, 186–87 necessity, 183 negligence, 187 nuisance, 185 overview, 184 punitive damages, 272–73 rationales underpinning accessory liability culpability, 211 deterrence, 212–13 economic efficiency, 213 protecting rights, 211–12 responsibility, 210–11 Trade unions importance of accessory liability, 3 injunctions, 274 statutory immunity, 248–49 Trustees de son tort confusion arising from Barnes v Addy, 88–90 unrelated to accessory liability, 90–91 Trusts see Breaches of fiduciary duty; Breaches of trust Unconscionability equitable wrongs, 115–16 meaning and scope, 50–51 Undue influence equitable wrongs, 102–03 Unjust enrichment see Gain-based awards Vicarious liability accessory liability distinguished, 58–60, 180–81 criminal offences, 69 importance, 3 Void and voidable contracts, 143–45 Withdrawal criminal offences, 81–82 scope of defence, 250–51