Bond University Research Repository Challenging Conceptions of Accessory Liability in Private Law Ridge, Pauline; Dietrich, Joachim Published in: Cambridge Law Journal DOI: 10.1017/S0008197319000345 Published: 01/07/2019 Document Version: Peer reviewed version Link to publication in Bond University research repository. Recommended citation(APA): Ridge, P., & Dietrich, J. (2019). Challenging Conceptions of Accessory Liability in Private Law. Cambridge Law Journal, 78(2), 383-408. https://doi.org/10.1017/S0008197319000345 General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. For more information, or if you believe that this document breaches copyright, please contact the Bond University research repository coordinator. Download date: 09 Oct 2020 CHALLENGING CONCEPTIONS OF ACCESSORY LIABILITY IN PRIVATE LAW PAULINE RIDGE* AND JOACHIM DIETRICH** This article concerns recent challenges to the utility of ‘accessory liability’ as an organising principle or concept in private law and argues that accessory liability is a coherent body of law with common features that is worthy of separate, holistic treatment. We defend a conceptual framework for accessory liability which is dynamic in its operation and which does not dictate the precise legal content of accessory liability in different contexts. Such a conception of accessory liability has come under challenge from recent cases and commentary which either minimise the scope and analytical relevance of accessory liability altogether in equity and tort law or propound a conceptual framework for accessory liability that is fixed in its application and uniform in its content across the whole of private law. Our purpose in this article is to resist both the dismissal of, and simplification of, accessory liability in private law. I. INTRODUCTION It is rare for the law to impose liability on one person for wrongful conduct engaged in by another. Accessory liability is one instance in which this occurs. In broad terms, accessory liability arises where a party involves herself in another’s wrongdoing — the primary wrong — with a sufficient mental state such as to be legally at fault. That fault justifies the accessory (A) being held liable to the claimant (C) to remedy the consequences of the primary wrong. In previous work we argued that accessory liability in private law is a coherent body of law with common features that is worthy of separate, holistic treatment.1 We proposed a conceptual framework that is dynamic in its operation and that does not dictate the precise legal content of accessory liability in different contexts. This conception of accessory liability does not depend upon whether the accessory is liable for the same wrong as the primary wrongdoer (that is, they are joint wrongdoers) or is held liable for a different wrong (that is, accessory liability constituting a distinct wrong). Hence, it reaches into most areas of private law. Since then, however, several very different views about the role of accessorial concepts in the law have either emerged or crystallised. On the one hand, some commentators minimise the scope and analytical relevance of accessory liability to equity and tort law. These views are evident in recent scholarly treatments and are given some support in a recent Australian case at the highest level. Such approaches challenge the utility of analysing or indeed, describing, liability as accessorial. On the other hand, a recent monograph accepts the importance of * Australian National University. ** Bond University. We are grateful to the anonymous reviewers for their generous and constructive reviews. 1 See generally J. Dietrich and P. Ridge, Accessories in Private Law (Cambridge 2015). 1 accessory liability, but propounds a conceptual framework for the liability that is fixed in its application and uniform in its content. Our purpose in this article is to resist both the dismissal, and simplification, of accessory liability in private law that is evident in these recent developments. Hence, the article concerns the utility of ‘accessory liability’ as an organising principle or concept in private law. Does accessory liability, as we will explain it, still make better sense of certain liabilities across private law than other explanations of those liabilities, including other conceptions of accessory liability itself? The topic is important. Legal theorising of the type discussed in this article is not completely abstracted from the law in practice. The shared objective of each of the conceptions of law critiqued below is to explain the law from an internal legal perspective in a way that will assist courts and legislators to develop that law in a coherent fashion. Whichever conception, if any, finds favour with the courts will have practical ramifications for the conduct, and outcome, of litigation. This is because the requisite elements of liability, the judicial method for determining whether such elements are satisfied, as well as the boundaries of liability in different areas of law, are all affected by one’s conception of the liability itself. After briefly outlining our preferred conception of accessory liability (Part II) and the terminological confusion regarding accessory and related liabilities (Part III), the article continues in Part III to discuss two conceptual challenges to accessory liability that would dramatically reduce its scope and relevance in equity and in the law of torts respectively. These approaches dismiss the relevance of accessory liability altogether. Part IV evaluates an alternative conception of accessory liability itself and argues that it promotes a degree of uniformity and simplicity that is at odds with, and to the detriment of, the existing law. The jurisdictional focus is on English and Australian private law: although the laws in these two jurisdictions have a common heritage, they have also diverged in significant ways, particularly in the context of equitable accessory principles, such as to provide a useful comparison.2 II. THE PREFERRED CONCEPTION OF ACCESSORY LIABILITY 2 Although it will be necessary in Part III C to consider briefly the criminal law of complicity, the fundamental differences between civil and criminal law, as well as the complexity and confusion surrounding criminal accessory and related liabilities, make anything other than peripheral consideration of the criminal law unwise and unhelpful. 2 Across private law, one circumstance in which liability will be imposed on a person for the wrongful conduct of another is where three elements are present: (i) A primary wrong3 committed by a person (the primary wrongdoer, PW); (ii) Involvement, through conduct, by someone other than PW (the accessory, A), in the primary wrong; and, (iii) A has a requisite mental state relating to the primary wrong at the time of the conduct. At its simplest, it can be said that accessory liability arises where a party involves herself in another’s wrongdoing with a sufficient mental state such as to be legally at fault and, thus, responsible. It is necessary, however, to add three details to this bare conceptual framework in order to accurately represent the scope and operation of accessory liability across private law. They concern the legal content of each element, the dynamic operation of the framework and the form of liability. First, the doctrinal or legislative content of the conduct (ii) and mental (iii) elements of the framework — and hence, fault — is determined by reference to the purposes and values of the law governing the primary wrong, element (i). Importantly, this means that the precise content of elements (ii) and (iii) may and does vary. Accordingly, the framework does not dictate that the legal rules for accessory liability be identical across private law. In other words, the framework does not constitute a generic cause of action, but rather an organising principle of liability. For example, the equitable wrong of dishonest (or knowing) assistance has less onerous conduct and knowledge requirements than the tort of inducing breach of contract. Nonetheless, both embody the same conceptual framework for liability.4 Secondly, the three elements of the framework relate in dynamic fashion. In particular, there is a relationship between the weightings accorded to elements (ii) and (iii) which in combination establish liability. In some areas of law and jurisdictions the dynamic operation of the framework manifests at the level of the judicial inquiry into liability. An example is the requirement for equitable accessory liability in English law that A be ‘dishonestly’ involved in 3 We use the term ‘wrong’ in a broad, but conventional sense, to mean breach of a legal duty that leads to remedial outcomes and as including breaches of common law and equitable duties. Breaches of statutory duty that give rise to private action also come within the ambit of ‘wrong’. 4 Cf., Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 A.C. 378, 392 and OBG Ltd v Allan [2007] UKHL 21, [2008] 1 A.C. 1, at [39]-[44]. 3 any breach of trust or fiduciary duty.5 This requires a normative judgement to be made as to A’s conduct in all the circumstances, including A’s mental state.6 In other jurisdictions this dynamic feature is embedded in the doctrinal formulation. For example, the equivalent Australian