Concurrent Duties

Date01 January 2019
DOIhttp://doi.org/10.1111/1468-2230.12387
Published date01 January 2019
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Concurrent Duties
Aaron Taylor
This paper offers an account of concurrent liability, and in particular the existence of, and inter-
action between, concurrent contractual and non-contractual duties. It argues for five essential
propositions: (1) a defendant can owe simultaneous private law duties towards a claimant, the
content of which overlaps in whole or in part; (2) cases of concurrent liability in contract and
negligence involve independent duties, which are concurrent but not coextensive; (3) the doc-
trine of concurrent liability is conceptually distinct from the rule that the claimant must elect
between inconsistent remedies; (4) if the defendant commits a wrongin breach of more than one
duty,the claimant has a prima f acie choice to sue for any of those breaches;and (5) the content of
one any duty might affect the content of the other. The last of these principles, it is argued, pro-
vide an explanation for the recent decisions in WellesleyPartners vWithers and AIB vMark Redler.
INTRODUCTION
This paper offers an account of concurrent liability. It argues that English law
has a coherent doctrine of concurrent liability, which can only be understood by
a shif t of foc us away from ‘ liab ilit y’ and t owards th e unde rlyi ng duties on which
liability is founded. Properly understood, the doctrine identified in this paper
explains the existence of, and interaction between, simultaneous, overlapping
private law duties. Of central importance is the relationship between concurrent
contractual and non-contractual duties owed by a defendant to a claimant.1
The paper argues for the following propositions: (1) it is possible for a de-
fendant to owe simultaneous private law duties towards a claimant, the content
of which may overlap in whole or in part; (2) cases of concur rent liability in
contract and in negligence, the latter based on a Hedley Byrne-type ‘assumption
of responsibility,’ involve two independent duties, which are concurrent but
not coextensive; (3) the doctrine of concurrent liability is conceptually distinct
from the rule that the claimant must elect between inconsistent remedies;
(4) if the defendant commits a wrong in breach of more than one duty, the
claimant has a choice to sue for any of those breaches, and is prima facie
entitled to whatever remedial consequences flow therefrom, subject to the
Barrister, Fountain Court Chambers, London; Tutor in Law, Trinity Hall and St Edmund’s College,
Cambridge. Some of the ideas in this paper were first suggested in ‘Whither Remoteness?’ (2016)
79 MLR 679. In preparing that note, I benefited considerably from discussions with Edwin Peel and
Hasan Dindjer, to whom I remain grateful. I am also extremely grateful to Nick McBride, Stephen
Watterson, Damien Bruneau, Jia Wei Lee, Casper Bartscherer, Julius Grower, and the anonymous
referees, for their invaluablecomments on drafts of this paper. Much of the paper was written whilst
I was a Teaching Fellow at University College London. I am very grateful to the UCL Faculty of
Laws for its generosity during that period. The usual disclaimer applies.
1 This is also the subject of Paul Davies’ valuable recent essay ‘Concurrent liability: a spluttering
revolution’ in S. Worthington et al (eds), Revolution and Evolution in Private Law (Oxford: Hart,
2018) 273.
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2019) 82(1) MLR 17–45
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
Concurrent Duties
usual prohibition of double-recovery; and (5) the benefit of the claimant’s
choice between causes of action may be affected by the existence of concurrent
duties, because the content of one duty might affect the content of the other.
The paper is divided into two parts. The first section addresses the first three
propositions, setting out the basic proposition that concurrent liability is not a
rule about remedies, but instead concerns the aprioriexistence of simultaneous
overlapping duties. This section then distinguishes concurrent liability from
the separate rule that claimants must elect between inconsistent remedies. The
next section addresses the last two propositions, arguing that the existence of
concurrent duties can affect the content of each. This is clearest in cases where a
duty imposed by law is concurrent with a duty arising under a contract, which
defines the parties’ respective rights and obligations. This, it is argued, provides
an explanation for the recent decisions of the Court of Appeal in Wellesley
Partners vWithers2(Withers) and of the Supreme Court in AIB vMark Redler3
(AIB).
DUTY-BASED REASONING
This section seeks to reconsider the doctrine of concurrent liability according
to a logical structure. Establishing the existence of a legal duty, and defining its
content, is logically apriorito deter mining what should happen if that duty is
breached.
It is helpful to begin with some preliminary definitions. A duty is ‘an obli-
gation; that which one ought or is bound to do.’4Alegal duty is a compulsion
to act or refrain from acting in a particular way, failure to comply with which
is actionable in court.5In the Hohfeldian analysis, the correlative of a ‘duty’
is a ‘right’.6The person to whom a legal duty is owed holds an enforceable
right that the obligor act according to his or her duty. The words ‘tortious’ and
‘contractual’ are adjectival; they attribute an origin, and a normative founda-
tion, to a duty. A contractual duty is one that arises from a legally recognised
agreement or promise, and is normatively justified by reference to that agree-
ment or promise.7Tortious duties are imposed by the law as a consequence
of the relationship between the parties, and are justifiable by reference to the
law’s desire to protect the obligee’s rights (to bodily integ rity, property, etc).8
The phrase ‘simultaneous duties’ refers to independent sets of obligations owed
3 [2014] UKSC 58; [2015] AC 1503.
4 ‘duty, n.’ Concise Oxford English Dictionary (Oxford: OUP, 12th ed, 2011).
5 See, L. Green, ‘Legal Obligation and Authority’ in E. Zalta (ed), Stanford Encyclopedia of Phi-
losophy (2012) at https://plato.stanford.edu/archives/win2012/entries/legal-obligation/ (last ac-
cessed 10 June 2018).
6 W. Hohfeld, ‘Some fundamental legal conceptions as applied in judicial reasoning’ (1913) 23
Yal e La w Jou r n a l 16.
7 Much more can be said about both the nature and justification for contractual obligations, as
to which this paper seeks to remain neutral: see S. Smith, Contract Theory (Oxford: OUP, 2004)
chs 3 and 4 respectively.
8 Again, this is complex subject, about which much more could be said – and as to which this
paper seeks to remain neutral. For more, see D. Owen (ed), Philosophical Foundations of Tort Law
18 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(1) MLR 17–45

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