Dishonest Assistance and Accessory Liability

DOIhttp://doi.org/10.1111/1468-2230.12246
Publication Date01 Jan 2017
AuthorDavid Salmons
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REVIEW ARTICLE
Dishonest Assistance and Accessory Liability
David Salmons
Paul S. Davies,Accessory Liability, Oxford: Hart Publishing, 2015, 294 pp,
hb £54.99.
INTRODUCTION
There are numerous examples within private law where a third party can be
held liable for playing a role in another person’s breach of duty. This can
be relevant in claims such as ‘dishonest assistance’ and ‘inducing a breach of
contract’.1The language of each of these forms of liability seems to imply
that they focus on different types of involvement. For example, assistance is
not necessarily synonymous with inducement. This has resulted in ‘pockets’
of third party liability, whereby there are separate formulations of third party
liability depending on the primary wrong (a crime or a breach of duty com-
mitted by another person).2Nonetheless, it has been suggested by a number
of commentators that it is possible to draw together claims against those who
involve themselves with primary wrongs under the concept of ‘accessory li-
ability’.3Paul Davies’ book, Accessory Liability, provides a welcome analysis
which seeks to provide coherence to ‘accessory liability’ by demonstrating that
a unified approach can be used to determine the way in which such cases are
treated.
Whether or not one agrees that it is possible to unify the pockets of accessory
liability, it is worth stating that Davies’ book is a thoroughly researched and in-
sightful publication. This book presents a challenging, and powerful, argument
that the various forms of accessory liability can be drawn together, and Davies’
framework provides a clear way towards achieving that goal. In this review,
the major point of divergence with Davies’ proposition is that the inclusion of
the equitable action for dishonest assistance creates a number of problems for
Lecturer in Law, Aston Business School, Aston University, Birmingham.
1 For dishonest assistance, see Royal Brunei Airlines Sdn Bhd vTan [1995] 2 AC 378 (PC) (Royal
Brunei) 384-385 per Lord Nicholls; for inducing breach of contract, see OBG Ltd vAllan [2007]
UKHL 21, [2008] 1 AC 1 at [39]-[44] per Lord Hoffmann.
2P.S.Davies,Accessory Liability (Oxford: Hart, 2015) 1-2.
3 P. Sales, ‘The Tort of Conspiracy and CivilSecondar y Liability’ (1990) 49 CLJ 491; C.Har pum,
‘The Uses and Abuses of Constructive Trusts: The Exper ience of England and Wales’ (1997) 1
Edinburgh L Rev 437, 462; J. Dietrich, ‘The Liability of Accessories under Statute, in Equity,
and in Criminal Law: Some Common Problems and (Perhaps) Common Solutions’ [2010] 34
Melb U L Rev 106.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited. (2017) 80(1) MLR 133–152
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Dishonest Assistance and Accessory Liability
this general concept of accessory liability. Although the mere historical divide
between the courts of equity and common law does not justify differentiating
between the forms of third party liability found in both sources of law, there
remain important distinctions in the underlying aims and goals in equity from
those at common law. It is tentatively suggested in this essay that the reason for
the distinct nature of third party liability in equity reflects the nature of equi-
table duties. The defining nature of an equitable obligation is the control that a
trustee or fiduciary has over the interests of another.4This element of control
is important in determining the position of third parties for two reasons. One
reason is that that the beneficiary or principal is in a vulnerable position because
of the delegation of control given to the duty holder, and so there is a need to
prevent third parties from taking advantage of these relationships even where
their actions assist, rather than cause, breaches of equitable duties.5The other
reason is that the trustee or fiduciary’s ability to engage third parties, which is
inherent in the control afforded to those who hold such positions, would be
undermined if third parties were exposed to potential liability for involvement
in wrongdoing by others.6
These aims are reflected in the way in which equity formulates claims
against those who assist in breaches of equitable duties. First, equity requires
a high level of moral culpability, which justifies liability even for ‘weaker’
causal links with the primary wrong such as omissions.7It is even possible
for a third party to be held liable in cases where no causal link is evident,
such as where assistance is provided after a breach of duty has occurred.8In
contrast, under the tort of inducing a breach of contract, a strong causal link
must be demonstrated through the ‘inducement’ of the primary wrongdoer.9
Second, by only imposing liability on third parties for high levels of moral
culpability, this provides an important level of protection for third parties. For
example, the mental element required in equity for a third party who assists
a breach of an equitable duty is one of dishonesty. Thus, equity’s approach to
third party liability is quite distinct from the approach taken in other instances,
such as inducing a breach of contract where a less stringent mental element is
required.10 Given these differences in approach, the incorporation of dishonest
assistance would not only require drastic changes to the way in which claims
outside of equity operate but it also potentially undermines the cohesion of
the core concept of accessory liability developed in Davies’ book. Moreover,
4 J. Getzler, ‘Ascribing and Limiting Fiduciary Obligations’ in A. S. Gold and P. B. Miller (eds),
Philosophical Foundations of Fiduciary Law (Oxford: OUP, 2014) 43.
5 H. Carty, ‘Joint Tortfeasance and Assistance Liability’ (1999) 19 Legal Studies 489, 511-512.
6Barnes vAddy (1873-74) LR 9 Ch App 244 (CA) 252 per Selborne LC.
7 See M. Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (Oxford:
OUP, 2009) 139. Moore also contends that an omission should not be regarded as a ‘cause’,
139-140.
8 It has been argued by Dietrich that assistance merely provides a ‘weak’causal link, see J. Dietrich,
‘Accessorial Liability in the Law of Torts’ (2011) 31 Legal Studies 231, 242-244.
9Allen vFlood [1898] AC 1 (HL) 121 per Lord Herschell and Quinn vLeathem [1901] AC 495
(HL) 510 per Lord Macnaghten.
10 See Lord Millett’s dissenting judgment in Twinsectra vYard l e y [2002] UKHL 12, [2002] 2 AC
164 at [126]-[134].
134 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(1) MLR 133–152

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