Accessory liability in the private law is of great importance. Claimants often bring claims against third parties who participate in wrongs. For example, the 'direct wrongdoer' may be insolvent, so a claimant might prefer a remedy against an accessory in order to obtain satisfactory redress. However, the law in this area has not received the attention it deserves. The criminal law recognises that any person who 'aids, abets, counsels or procures' any offence can be punished as an accessory, but the private law is more fragmented. One reason for this is a tendency to compartmentalise the law of obligations into discrete subjects, such as contract, trusts, tort and intellectual property. This book suggests that by looking across such boundaries in the private law, the nature and principles of accessory liability can be better understood and doctrinal confusion regarding the elements of liability, defences and remedies resolved.
Winner of the Joint Second SLS Peter Birks Prize for Outstanding Legal Scholarship 2015.
1. Introduction
I. What is Accessory Liability?
II. Why is Accessory Liability Important?
III. Doctrinal Difficulties in the Law of Obligations
IV. Looking Across the Legal Landscape
V. Approach of the Book
2. Fundamentals
I. Principles Underpinning Accessory Liability
II. Conduct Element
III. Mental Element
IV. Nature of Accessory Liability
V. Distinguishing Accessory Liability
3. Crime
I. Scope of Accessory Liability
II. Primary Offence
III. Conduct Element
IV. Mental Element
V. Defences
VI. Nature of Liability
VII. Rationales of Liability
VIII. Conclusions
4. Equity
I. Seeds of Confusion: The Effect of Barnes v Addy
II. A New Start: Royal Brunei Airlines Sdn Bhd v Tan
III. Primary Wrong: Breach of Contract
IV. Conduct Element
V. Mental Element
VI. Explaining Accessory Liability
VII. What Shape should Accessory Liability Take?
5. Contract
I. The Leading Case: Lumley v Gye
II. Accessory Liability Recognised: OBG Ltd v Allan
III. Primary Wrong
IV. Conduct Element
V. Mental Element
VI. Explaining Accessory Liability
VII. Against Accessory Liability: Defending Breach of Contract
VIII. What Shape should Accessory Liability Take?
6. Tort
I. Mapping Accessory Liability in Tort Law
II. Primary Wrong
III. Conduct Element
IV. Mental Element
V. Explaining Liability
VI. What Shape should Accessory Liability Take?
7. Defences
I. Defences Available to the Primary Wrongdoer
II. Justification
III. Withdrawal
IV. Limitation
V. Conclusion
8. Remedies
I. 'Secondary' Liability Exposed
II. Compensation
III. Gain-based Awards
IV. Hypothetical Bargain Measure of Damages
V. Contribution
VI. Punitive Damages
VII. Injunction
VIII. Combining Remedies
9. Conclusions
I. 'Knowing Assistance'
II. A Standard Approach Across All Obligations
III. The Nature of Accessory Liability
IV. A Narrow But Coherent Law of Accessory Liability
