25 results
CHALLENGING CONCEPTIONS OF ACCESSORY LIABILITY IN PRIVATE LAW
- Pauline Ridge, Joachim Dietrich
-
- Journal:
- The Cambridge Law Journal / Volume 78 / Issue 2 / July 2019
- Published online by Cambridge University Press:
- 22 April 2019, pp. 383-408
- Print publication:
- July 2019
-
- Article
- Export citation
-
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, and simplification, of accessory liability in private law.
Index
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 409-433
-
- Chapter
- Export citation
9 - Infringement of statutory intellectual property rights
- from PART II - Accessory liability in private law
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 304-351
-
- Chapter
- Export citation
-
Summary
Introduction
Overview
This chapter considers rules imposing accessory, and accessory-like, liability to remedy infringements of intellectual property (IP) rights. We have already considered accessory liability for IP infringements via the application of generic tort accessory principles in Chapter 5. However, persons may also be liable on the basis of specific statutory provisions. This chapter considers such provisions under the following three headings:
(1) Authorisation of infringements. Copyright and design law in the UK and Australia, and patents and trademarks law in Australia, provide that right holders have the rights to do the acts or exploit the rights contained within the relevant IP, and that these rights include the right to ‘authorise’ such use or exploitation [9.2]. Any ‘authorisation’ by a person, A, of a primary infringement by another, primary wrongdoer (PW), without the consent of the right holder therefore itself infringes those rights. The general concept of ‘authorisation’ is therefore central to establishing accessory liability.
(2) Other accessory liability rules. This chapter briefly notes some minor and specifically targeted statutory doctrines that create accessory liability [9.3].
(3) Non-accessorial ‘indirect’ infringements. A number of different, specifically targeted, statutory provisions create precise sources of liability, variously labelled in the legislation and commentary as ‘secondary’, ‘contributory’ or ‘indirect’ infringement. Even though some of these labels suggest accessory liability, for the most part, these provisions do not impose what is conceptually accessory liability (excepting those just noted in (2)), despite having considerable affinity with accessory liability [9.4].
Competing policies in IP accessory law
Accessory liability based on a party's wrongful involvement in another's primary wrong is a narrowly confined basis for liability. The goals of deterring primary infringement and vindicating rights face serious challenges in IP law if third parties are only liable on the basis of such narrowly confined liability rules. In part, these challenges come from technological innovations, particularly on the internet, that enable widespread and repeated infringements of rights by numerous individual infringers. Examples include mass copying of copyrighted materials or worldwide marketing by persons selling goods that infringe trademarks. It may be practically impossible to deter such infringements or remedy their consequences by pursuing individual primary infringers, and this has the potential to significantly diminish the value of IP proprietary interests.
6 - Breach of contract
- from PART II - Accessory liability in private law
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 169-198
-
- Chapter
- Export citation
-
Summary
Overview
The tort of inducing breach of contract is committed when a defendant, A, induces or procures another (the contract breaker and primary wrongdoer, PW) to breach her contract with a claimant, C, causing damage. The acts constituting the inducement to breach must be done with knowledge of the contract, such that A intended, by his acts, to procure the breach. The tort owes its origins to the famous case of Lumley v. Gye, decided in 1853, in which the defendant lured an opera star away from a rival opera house in order to contract with him, although the claim in Lumley itself ultimately failed at trial. Examples of the tort include inducing a related company to terminate a contract with C to promote a sporting event; paying moneys to workers to allow them to continue unlawful strike action; a tenants’ association urging tenants not to pay rents in order to achieve its objectives; and a trade competitor engaging in unfair competition by poaching a rival's customers or employees. In this chapter, we use the label ‘A’ as our usual shorthand for accessory, albeit acknowledging that the accessorial nature of the inducing tort is disputed [6.2].
Some commentators question the need for a tort that further protects contracting parties, in addition to their contractual rights against breaching parties. Such a tort may stifle competition, for example, and there is clearly the need to balance defendants’ interests in freedom of action against claimants’ interests in the security of their contracts. There is, however, widespread support for the tort, albeit on a number of different rationales. These rationales include the protection of quasi-proprietary rights, that is, that contract rights are ‘a species of property’ protected by limited rights against non-contracting parties, economic efficiency and accessory liability principles. Much of the academic debate about the need for the inducing tort and, if such need exists, its rationale and justifiable limits, has occurred in the US, where formulation of the tort in the Restatement of Torts is considerably wider than in Anglo-Australian law. The broad formulation in the Restatement leads to uncertainty: merely interfering with the ‘performance’ of a contract so as to cause the performance to be ‘more expensive or burdensome’ can give rise to liability, provided such interference is intentional and improper.
8 - Breach of equitable duties
- from PART II - Accessory liability in private law
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 217-303
-
- Chapter
- Export citation
-
Summary
Introduction
Overview
The principles governing accessory liability for breach of an equitable duty are to be found within the broader principles that govern third-party participatory liability in equity. This chapter sets out the principles of accessory liability within that broader context, including recipient liability. The law governing accessory liability specifically, and participatory liability generally, is confused in some respects and differs across jurisdictions. The confusion is attributable in part to the extraordinary influence of one nineteenth-century Court of Appeal in Chancery decision, Barnes v. Addy, and specifically, Lord Selborne LC's ex tempore leading judgment. Barnes v. Addy concerned claims against two solicitors who acted in relation to the appointment of a sole trustee to a testamentary trust. The beneficiaries sought redress against the solicitors for the trustee's misappropriation of the trust fund. Lord Selborne was anxious to protect professional agents, particularly solicitors and bankers, acting honestly ‘as the agents of trustees in transactions within their legal powers’ and dismissed the beneficiaries’ appeals. His Lordship did not purport to change the law or to expound generally on the liability of third parties to breach of trust. Nonetheless, during the latter part of the twentieth century, his brief statement as to two exceptional circumstances in which agents of trustees would be liable for a trustee's breach of trust transmogrified into an inflexible template for equitable participatory liability generally, regardless of whether the participant was an agent or not and irrespective of the nature of the participant's conduct or the primary wrong in question. A distinction was drawn between participants who were involved in the primary wrong through knowingly receiving trust property and those who assisted in egregious breaches of trust (later extended to breach of fiduciary duty more generally) without necessarily receiving property. Little or no attention was paid to primary wrongs other than breach of trust and fiduciary duty. The so-called ‘two limbs’ of Barnes v. Addy were often applied in a formulaic and literal fashion. This need not have been so. In contrast to the jurisdictions focused upon in this chapter, the Barnes v. Addy template has not dominated the United States’ jurisprudence on the topic.
In recent times, there has been a move away from the Barnes v. Addy template in most jurisdictions, but with mixed results. Broadly speaking, there are currently two frameworks used to determine participatory liability for breach of trust and fiduciary duty.
5 - Torts
- from PART II - Accessory liability in private law
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 93-168
-
- Chapter
- Export citation
-
Summary
Introduction
Overview of chapter
The liability of an accessory to a primary tortfeasor's tort has not been the focus of much analysis. There are a number of possible reasons for this. In part, accessory liability is obscured in tort law because it is subsumed under the label of ‘joint tortfeasors’, a concept that encompasses other grounds for liability [5.1.2]. All joint tortfeasors are said to be liable as ‘principals’ for the same tort, though this can only mean that they are liable as if they were ‘principals’ (primary tortfeasors) if accessorial concepts are used to render them joint tortfeasors. More importantly, accessorial concepts are only applied and relevant to some torts (for reasons explained in [5.2.1]). Finally, some examples of accessory liability have themselves developed into, or are found within, discrete wrongs: for example, in our view, the tort of inducing breach of contract [Chapter 6] and many circumstances in which the tort of conspiracy is alleged [5.3.2]. Even where liability arises as part of an independent tort, if the defendant's (A's) liability is determined on the basis of some tort (or other wrong) having been committed by a third party, the primary wrongdoer (PW), against a claimant (C) and A's knowing involvement in that wrong, then A's liability is derivative upon PW's wrong and is therefore accessorial. The liability is not, however, duplicative; that is, A need not be liable for the same wrong or necessarily always for the same remedy as PW [5.7.1], [2.6].
Accessory liability has not been widely recognised in tort law; indeed it has been questioned whether accessory liability truly exists at all [5.1.3]. Accessory liability continues to be under-analysed and largely inconspicuous, a fact that is reflected in the small volume of commentary on this topic. The view expressed about US law, that the theory of civil accessory liability remains very ‘underdeveloped’ and that ‘courts apply different tests and often obfuscate their analyses’, probably applies equally to Anglo-Australian law.
Different tests have been articulated for establishing when a person is a ‘joint tortfeasor’ on accessorial principles. One accepted test for accessory liability is where a party procures or induces another to commit a wrong.
10 - Other statutory wrongs
- from PART II - Accessory liability in private law
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 352-372
-
- Chapter
- Export citation
-
Summary
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.
Table of cases
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp xxiii-l
-
- Chapter
- Export citation
PART III
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 405-406
-
- Chapter
- Export citation
11 - Wrongs involving companies
- from PART II - Accessory liability in private law
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 373-404
-
- Chapter
- Export citation
-
Summary
Introduction
Overview
A company, although a separate legal entity, can only operate through human actors. Both the company's mental state and its conduct and, therefore, its primary or accessory liability, can only be determined by reference to the state of mind and conduct of those actors. But equally, the same state of mind and conduct of those human actors can generate primary liability or accessory liability on their part. Whereas in a non-corporate scenario, there is a direct interaction between a human accessory and the person committing the primary wrong, in the corporate context there is an element of circularity: a director (‘D’) may be accessorily involved in the affairs of the corporate primary wrongdoer, PW Co, which in turn has only committed a wrong because of the acts of its employees and agents, perhaps including D himself or herself. When D pursues his or her objectives through the medium of a corporate vehicle (itself acting through its employees and agents), or a corporate group, an analysis in terms of accessory principles becomes complicated and, possibly, artificial. Legal analysis is sometimes also obscured by the metaphorical language of going behind, ‘piercing’ or ‘lifting’ the ‘corporate veil’.
This chapter considers some particular questions concerning accessory liability that arise in the corporate context because of the sui generis nature of the company/human actor relationship (although some of these questions also arise more generally for principals and agents). It does not attempt a comprehensive resolution of these questions, nor does it deal with the various statutory regulatory schemes; that would require a much more detailed treatment of company law and policy that is beyond the scope of this book. Instead, some particular problems are noted and some possible solutions suggested.
First, this chapter introduces and compares the general law tools of attribution and vicarious liability that are used to determine a company's liability [11.1.2]. Secondly, it considers the application of attribution principles to determine the accessory liability of companies (whether to primary wrongs committed by directors, other companies or third persons). Equitable accessory liability is used here to illustrate the application of attribution principles [11.2.2]. The third section of the chapter focuses upon D as accessory to his or her company's primary wrong [11.3].
Dedication
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp v-vi
-
- Chapter
- Export citation
Contents
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp vii-xvi
-
- Chapter
- Export citation
2 - Identifying accessory liability in private law
- from PART I - General principles
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 10-28
-
- Chapter
- Export citation
-
Summary
Overview
This chapter identifies – by drawing upon first principles, the substantive principles of private law and, to a lesser extent, the criminal law – a form of liability that is appropriately characterised as accessory liability and that arises across private law. The chapter explains when a liability can be appropriately characterised as accessorial, regardless of whether it is formulated as an independent wrong or as a ‘secondary’ liability to the primary wrong of the primary wrongdoer (PW), and irrespective of the actual terminology used to describe that concept. The chapter explores the rationales of accessory liability and when it is needed in the law: that is, why it serves an important function in some areas of law and not in others. It explains why accessory liability is derivative upon another person committing a primary wrong, but need not duplicate, or replicate, PW's liability. Finally, this chapter distinguishes other forms of liability and explains why it is necessary to consider some non-accessorial, but related, liabilities in more depth, specifically ones concerning the protection of equitable property rights, recipient liability and the protection of statutory intellectual property (IP) rights.
Identifying accessory liability in private law
In simple, non-legal terms, ‘accessory’ means something that is additional to, or contributes to, something else. The core legal understanding of accessory accords with this meaning: an accessory is someone who is linked to another's wrongdoing in such a way as to be made responsible for its consequences. Such a generic statement, however, hides a range of more specific possible meanings. At its broadest, ‘accessory’ could encompass all situations in which the commission of a primary wrong is a prerequisite to another's liability and could, for example, therefore include vicarious liability [2.8.1], [5.3.1]. But such a meaning would be unhelpfully wide. A narrower meaning is one that focuses on wrongful conduct that contributes to the commission of another's primary wrong. It is this idea that forms the basis of our identification of accessories because, where such contribution exists, a number of common and overlapping rationales justify this narrower form of liability [2.4]. Furthermore, those rationales do not equally apply to any broader ‘accessory’ concept.
7 - Infringement of equitable property rights
- from PART II - Accessory liability in private law
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 199-216
-
- Chapter
- Export citation
-
Summary
Introduction
This chapter considers five doctrines that protect equitable property rights against interference by third parties and explains why they are not accessory liabilities, despite often being conceptually linked to accessory liability for procuring or assisting in a breach of trust. Each claim concerns the (often, but not always, wrongful) involvement, broadly speaking, of a third party, in a custodial relationship between a beneficiary and a trustee or fiduciary where that involvement relates to the property that is the subject of the trust or fiduciary relationship. Nearly all of these doctrines have at some time been grouped under the ubiquitous ‘constructive trust’ label [8.1.7]. It is challenging to disentangle them from accessory liability because they share similar rationales and elements to those of true equitable accessory liability and because none of them were necessarily conceived of with such classificatory concepts in mind. In particular, this chapter is concerned with one of the five doctrines considered, that is, equitable recipient liability: the personal fault-based liability that attaches to the recipient of property that is subject to a custodial fiduciary relationship and which has been received in breach of trust or fiduciary duty. Of the five doctrines, recipient liability is the one most closely related to accessory liability for procuring or assisting in a breach of trust. For that reason, its substantive content is discussed in Chapter 8 along with those accessory liabilities. Recipient liability is a contested doctrine; accordingly this chapter prepares the groundwork for Chapter 8 by explaining our understanding of recipient liability and why it should be considered in tandem with accessory liability.
Trustee de son tort
A third party to a trust who has trust property vested in him or her, or has control over the trust property, and who purports to act as a trustee in relation to that property, rather than as an agent or in a personal capacity, is accountable as though properly appointed as trustee. The so-called ‘trustee de son tort’ is a fiduciary who is subject to the usual duties of an express trustee and will hold all usual trustee powers. The trusteeship arises prior to any breach of the trust. As with express trustees, the trustee de son tort's liability for any ensuing breach of trust is strict; it is irrelevant whether he or she acted in good faith and without knowledge of the breach.
4 - Accessories in criminal law
- from PART I - General principles
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 66-90
-
- Chapter
- Export citation
-
Summary
The relevance of criminal law to private law
There has been some debate as to whether the criminal law can be used to elucidate the private law of accessories. After considering the arguments, we conclude that there are similarities between the two areas of accessory law. Consequently, this book draws on the criminal law where it appears relevant and, to that end, provides a general overview of criminal law.
Although there are obvious parallels between accessory liability in private and criminal law, the question is whether the well-developed (albeit complex and uncertain) criminal law jurisprudence can further our understanding of civil accessory liability. Some judges assert, without necessarily full substantiation, the view that the criminal law is in a problematic state and therefore perhaps unhelpful as a source of guidance. Further, and undeniably, there are some fundamental differences between civil liability and liability as an accessory to a crime. These include the following.
First, criminal law seeks to deter and punish unacceptable social behaviour, whereas civil law is focused on who, as between the accessory (A) and claimant (C), ought to bear a particular loss, or benefit from a particular gain. Indeed, in civil claims, C will often seek remedies against an accessory because of practical impediments to pursuing claims against the primary wrongdoers (PWs) (such as their insolvency). In criminal law, by way of contrast, the moral quality of A's conduct – whether it is sufficiently antisocial and culpable – is the overriding concern. Peter Cane has encapsulated the differences in terms of mental fault and conduct being the main focus of criminal law, whereas causation and the consequences of particular conduct are the focus of civil law. Of course, this does not mean that causation and consequences are not also important in criminal law, and that personal culpability is not important in civil liability.
Secondly, it can be argued that the opprobrium of being found guilty of a crime as an accessory and the consequent punishment is more severe than being found liable as a civil accessory. Interestingly, where a conviction for a serious crime is at issue, one might therefore expect that the law is restrained in extending accessory liability too far. Yet perhaps anomalously, criminal liability in some circumstances is potentially very wide-ranging [4.5.2]. It cannot be assumed that criminal law liability is necessarily narrower than civil liability.
12 - Conclusion
- from PART III
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 407-408
-
- Chapter
- Export citation
-
Summary
This book has explored the circumstances in which a person will be found liable in private law as an accessory to another's wrong. It has also sought to explain this liability. Why must an ‘accessory’ remedy the consequences of another's wrongdoing even though he did not personally commit the wrongful act? The answer, broadly speaking, is that knowing involvement in another's wrong is sometimes considered legally wrongful in itself. The accessory is liable for his own wrongdoing.
Accessory liability is a narrow basis of liability. This is, perhaps, unsurprising given the potentially onerous nature of the liability. Nor is accessory liability the sole basis for imposing liability on persons who participate in another's wrongdoing; consequently, the book has also explored the boundaries between accessory liability and such related liabilities.
This book does not argue that there is a single cause of action for accessory liability. The legal rules that determine accessory liability across private law are too complex and varied, even as to the form of liability itself, for that to be the case. Nonetheless, accessory liability in its various manifestations shares a deceptively simple analytical framework. Liability depends upon three factors: the commission of a wrong by another party; the accessory's involvement, through conduct, in the wrong; and the accessory's mental state at the time of such involvement. The content of the conduct and mental elements – and, consequently, the reach of liability – is a function of the purposes, values and historical development of the primary wrong. These three factors are legally significant in all instances of accessory liability, whether or not they are explicitly averted to.
Furthermore, the analytical framework is not static, but operates in a dynamic fashion. The normative question of whether a person is sufficiently linked to a wrong committed by another depends on the relative weight of, and interplay between, the three elements. The relational interplay of the elements can be discerned in the doctrinal formulation of specific liability rules and, sometimes, in their judicial application. In particular, it is the accessory's conduct and mental state, considered in combination and relative to each other, that may create a sufficiently strong participation link to the primary wrong for the accessory to be considered culpable in relation to that primary wrong.
PART I - General principles
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 1-2
-
- Chapter
- Export citation
PART II - Accessory liability in private law
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 91-92
-
- Chapter
- Export citation
3 - An analytical framework for accessory liability
- from PART I - General principles
- Joachim Dietrich, Bond University, Queensland, Pauline Ridge, Australian National University, Canberra
-
- Book:
- Accessories in Private Law
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016, pp 29-65
-
- Chapter
- Export citation
-
Summary
Introduction to the framework and its operation
In order to establish accessory liability it is necessary to show that the following three elements are present:
(1) a primary wrong committed by a person other than the accessory;
(2) involvement, through conduct, by the accessory in that wrong; and
(3) a requisite mental state, generally established by reference to the accessory's knowledge of the primary wrongdoer's (PW's) wrong.
These three elements form the analytical framework of accessory liability in private law. Ultimately, the question of liability is a normative one: was A sufficiently involved in the primary wrong, with sufficient knowledge, such that he should be held liable for the primary wrong in light of the purposes and values of that primary wrong? Once A's liability is established, it is necessary to consider which defences may be available to A and which remedies are available against A.
The elements of the framework are not discrete; their doctrinal content and judicial application in individual cases are influenced by the content and significance of the other two elements. Of particular importance is the combination of the accessory's conduct and mental state that creates a ‘participation link’ to the primary wrong and justifies the accessory being liable for some or all of the consequences of the primary wrong. This ‘participation link’ is generally the most important factor in determining liability. The dynamic and relational operation of the framework is discussed further in [3.5].
The dynamic, relational operation of the three elements of the framework may be more accurately portrayed as in Figure 3.1, rather than as a list of discrete requirements.
The form of A's liability, that is, whether A's liability is for an independent wrong or for the same wrong as that committed by PW, is not an element of the analytical framework because it does not determine or influence A's liability in any principled way [2.3]. The three elements of accessory liability remain the same; it is only the means by which accessory liability is imposed that differs, and such differences can be explained by jurisdictional and historical factors. Hence, it is not necessary for the purposes of the framework to posit that A's liability is for the same primary wrong as that committed by PW or for a different wrong. Neither outcome precludes A's liability being accessorial.
Accessories in Private Law
- Joachim Dietrich, Pauline Ridge
-
- Published online:
- 05 February 2016
- Print publication:
- 25 January 2016
-
Accessory liability is an often neglected but very important topic across all areas of private law. By providing a principled analytical framework for the law of accessories and identifying common themes and problems that arise in the law, this book provides much-needed clarity. It explains the fundamental concepts that are used to impose liability on accessories, particularly the conduct and mental elements of liability: 'involvement' in the primary wrong and (generally) knowledge. It also sets out in detail the specific rules and principles of liability as these operate in different areas of common law, equity and statute. A comparative study across common law and criminal law jurisdictions, including the United States, also sheds new light on what is and what is not accessory liability.