Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - ACCESSORY LIABILITY
John Murphy
ACCESSORY LIABILITY. Paul S. Davies, Associate Professor of Law, University of Oxford. Hart, Oxford (2015) xxxiii and 285 pp, plus 8 pp index. ISBN 9781849462877. Hardback £58.00.
In Accessory Liability, Paul Davies has produced a work that, to the author’s great credit, is characterised equally by its ambition, its scholarship and its invariably elegant prose.
The ambition of this work inheres in the fact that this book attempts to rectify the glaring imbalance of academic attention that has been devoted to accessory liability in the criminal and private law contexts. So, whereas there is, and has been for years, a rich seam of criminal law scholarship concerning accessory liability into which the interested reader—whether academic or practitioner—may tap, the equivalent body of private law scholarship has been largely conspicuous by its absence. Of course, to those familiar with the very many articles that have been written on such diverse matters as vicarious liability, inducing breach of contract, joint tortfeasance, civil conspiracy and knowing assistance, this may seem a somewhat bizarre claim. When so much has been written on these topics, how can it possibly be said that the serious study of accessory liability in the civil law is thin on the ground? The answer is as follows.
Authors to date have tended to grapple with narrow questions, such as whether knowing receipt should count as a form of accessory liability in equity, and whether it is meaningful to speak of accessory liability (as opposed to, simply, joint tortfeasance) in tort law, and whether inducing breach of contract tends to undermine certain claims associated with the famous Birksian scheme of classification of the law of obligations. But no one has hitherto sought to distil out of the contract, tort and equity contexts the commonalities—or key touchstones—of accessory liability across the law of obligations as a whole. No one has previously attempted to explain where and how coherence may be achieved between the various strands of accessory liability in private law. Paul Davies, however, has made himself a pioneer in this respect. His aim is to show that there exists a golden thread running throughout the law of obligations which allows a standard approach to be taken to the attribution of accessory liability. He elaborates, in other words, an understanding of accessory liability that permits “important barriers that have traditionally been erected in the private law of obligations to be dismantled … [such as] the common law/equity divide” (at 283). The golden thread evinced has two strands to it. The first rests upon the idea that, in all cases of accessory liability, one can identify the same three key elements: a primary wrong, a conduct element and a mental element. The second strand consists of the notion that the very same kinds of participatory act and
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