School of Law, Queen’s University Belfast

MISLEADING SILENCE. Edited by Elise Bant, Professor of Private Law and Commercial Regulation, University of Western Australia, and Jeannie Marie Paterson, Professor of Law, University of Melbourne. Hart, Oxford (2020) xlii and 371pp plus 10pp Index. Hardback. £85.50.

This impressive collection of essays derives from the editors’ research grant “Developing a Rational Law of Misleading Conduct”. It is fitting that the overall project comes out of Australia, which has had a statutory prohibition on conduct in “trade or commerce” that is “misleading or deceptive or likely to mislead or deceive” since the enactment of s.52 of the Trade Practices Act 1974 (Cth). The current incarnations of this law are to be found in s.18 of the Australian Consumer Law as well as complementary provisions in the Corporations Act 2001 (Cth) and the Securities and Investment Commission Act 2001 (Cth). The collection of essays focuses upon one particular aspect of misleading conduct: misleading silence. It is often said that there can be no liability for “mere silence”; but, as the editors rightly observe in their introductory chapter, silence is never “mere”.1 The collection endeavours to develop a more coherent body of law on misleading silence. This is not a prescriptive undertaking, more one which attempts to identify the synergies and connections between general common law and statutory rules on misleading silence. The aim is better understanding of the law in its many manifestations. The reviewer found the collection hugely informative.

The approach followed in this review may be slightly mechanical but is adopted so that the reader may acquire the clearest sense of what this collection says about misleading silence. No attempt will be made to be comprehensive about the contents of each essay; instead the focus will be upon what it tells us about misleading silence. The first part of the collection is called “Theory and Methodology”. After the editors’ introductory survey of the entire collection, Justice Andrew Phang of the Singapore Court of Appeal sets out what seem to him to be the critical pressure points in the regulation of silence in misleading conduct. Due regard should be had to local context, developments in other jurisdictions, theory and its practical application, history, existing principles of common law and equity so that the connection between statutory law and the general law can be understood, and what statutory reform is intended to achieve. Misrepresentation is his honour’s case study. He draws attention to the fine line between silence and conduct in cases such as Spice Girls Ltd v Aprilia World Service BV,2 and the defendant’s knowledge