Introduction

Some statutory schemes create obligations, contraventions of which are civilly enforceable under the statute; for example, in the contexts of consumer protection and the regulation of wrongdoing by corporate officers. There are at least two broad ways in which parties suffering harm as a result of statutory infringements may obtain relief: either via claims initiated by regulators, but allowing for orders to be made for the benefit of individuals, as is more commonly the case in the UK; or else directly, by means of statutory causes of action commenced by private claimants. The direct approach is prominent in Australia, where statutory causes of action are used to create sources of private law obligations. Such obligations have had a major impact on the legal landscape, especially the statutory prohibition against misleading or deceptive conduct.

As part of statutory liability schemes, civil liability may expressly be imposed on accessories to the contraventions of the statutory obligations. This chapter considers accessory liability regimes that provide remedies, such as compensation orders, that are available to benefit individuals. It does not focus on accessory liability for civil penalties or for crimes.

In Australia, the legislative schemes adopted to extend liability to accessories are largely uniform. The legislative schemes generally proceed by creating liability for those ‘involved in a contravention’ and then enumerate four circumstances that amount to involvement. The uniformity in approach is somewhat surprising, since the primary obligations to which the accessory liabilities attach vary considerably. The primary obligations range from strict liability for engaging in misleading conduct to the liability of officers of corporations for conduct that may also constitute breaches of proscriptive fiduciary duties (leading to potential overlap with equity's accessory liability regime).

In the UK there is much less statutory activity in the private law field than in Australia. There are relatively few statutes that create sources of private obligations and none of these are as wide-ranging in their scope as Australia's misleading conduct prohibition. Obviously, this means that there are even fewer examples of statutory accessory liability regimes supporting civil claims. In the limited circumstances in which UK statutes impose obligations on primary wrongdoers and, correspondingly, extend liability to accessories, the UK legislation uses the broad concept of persons ‘knowingly concerned’ in a contravention or other shorthand formulations.