Professor Birke Häcker (Oxford), ‘Substance Over Form — Has the Pendulum Swung Too Far?’
Panel I: Room 108
Mark P Gergen (UC Berkeley), ‘Equitable Wrongs’
- Modern American doctrines that can be traced back to equitable wrongs include breach of fiduciary duty, abuse of confidential relationship, duress, undue influence, fraudulent nondisclosure, constructive fraud, innocent misrepresentation, and equitable estoppel. With some important exceptions, American lawyers no longer associate these doctrines with equity. They associate them with the law of contract, gift, restitution, tort, or more specialized bodies of law. I argue the consequences have largely been benign except insofar as the doctrines are associated with tort law, which tends to make available the remedies of compensatory damages and punitive damages. Henry E. Smith describes “equity as a second-order safety valve” that enables courts to prevent people from taking unfair advantage of legal rules. Smith argues equitable wrongs were purposefully left open-ended to deal with “the crafty evasions of opportunists.” I argue they could be left open-ended because of the limited form of remedies available in equity for a wrong, which loosely speaking were rescission, restitution, reformation (rectification), and estoppel. This reduces the ambit of the equitable wrongs, which reduces claim-avoidance costs and claim-processing costs in cases that generally involve conduct that is morally offensive but which imposes a social cost that is much smaller than the conduct’s private cost. Equity appropriately is a weak “second-order safety valve” because of its restricted remedies. The paper surveys the current landscape of equitable wrongs in American law, proposing a few reforms. The most worrisome development in American law is the conflation of abuse of confidential relationship with breach of fiduciary duty, which opens the door for tort remedies for abuse of confidential relationship. The paper also addresses other questions that need to be resolved explicitly or implicitly when the general equitable wrong of constructive fraud is broken up into multiple nominate wrongs that are distributed across the law of contract, gift, restitution, and tort.
TT Arvind (Newcastle UK) and Ruth Stirton (Sussex), ‘Form, substance, and institutions: revisiting the restitutionary critique of equity’
- The focus of this paper is the role that Atiyah and Summers assign to the institutional and social context within which legal rules operate. They argue that this is the di↵erence between following rules and considering the reasons under those rules. Their reasons go beyond the merely philosophical, and embrace the work that rules do in society; the attitudes they reflect; the context in which those attitudes arise and operate; their relationship with other parts of the legal system; and their overall implications for how the law deals with the problems it is called upon to address. Identifying these reasons requires close attention to history, legal culture, legal consciousness, social expectations, and the structure and priorities of the legal system–the socio-institutional context. We reconsider the place of equity in obligations theory to explore whether modern justificatory accounts of obligations measure up to this standard and the consequences of their falling short. The courts’ approach to equity con- tains many of the features Atiyah and Summers associate with substantive reasoning. Yet it is these very aspects of equity’s ‘internal’ doctrinal struc- ture that have led to it being criticised as lacking a justificatory core. Most approaches to justification in obligations theory take inadequate note of the socio-institutional context in which rules operate. We demon- strate the importance of recognising the contextual dialogue between form and substance, in which each tells us something important about the other. Equity’s formal structures reflect the substantive role it played in address- ing multipartite transactions and complex webs of structural asymmetry. This role has clear modern relevance, which obligations theory has for the most part failed to take account of. This, we suggest, points to a broader concern—that, in the absence of a proper recognition of the symbiotic char- acter of the relationship between form and substance, the law runs the risk of ‘formalistic ossification’, in which legal rules fail to develop in a way that responds to changing social needs; or of ‘substantivistic withering’, in which the quest for more ‘justified’ legal rules inadvertently erodes the social func- tions discharged by existing legal rules.
Panel II: Room 109
Nicole Moreham (Wellington), ‘Deconstructing the privacy tests in English and New Zealand tort law’
- The question of what is and is not private lies at the heart of all legal protection of privacy. But working out whether something is private is a challenge. Any legal test needs to be flexible enough to cover the myriad of situations in which legitimate privacy claims can arise and yet predictable enough for potential defendants to know what they can and cannot do. Two different tests for determining what is private have emerged from the leading privacy tort judgments in New Zealand and England and Wales. The “touchstone” in both jurisdictions is whether the claimant can show that he or she had a reasonable expectation of privacy. In New Zealand, claimants must also establish that the facts received “publicity” which would be highly offensive to an objective, reasonable person. The paper examines – and contrasts – the degree to which the formulation of these two tests reflects the way that they are actually applied in the case law. On one side of the coin, the reasonable expectation of privacy test can be seen as a statement of a normative conclusion about what privacy protection the claimant is entitled to rather than as a test which does any serious analytical work. Courts do not undertake, for example, factual enquiries into what the claimant expected to happen in the situation in question. In contrast, in the most detailed consideration of the high offensiveness test in New Zealand, a judge of the High Court allowed an unduly rigid focus on the words of the test to obfuscate the interests at the heart of the privacy action. This paper will discuss the shortcomings of both these approaches and suggest how they should be reformed.
Luke Rostill (Oxford), ‘Formal and Substantive Reasoning and Strict Liability in Conversion’
- It is trite law that liability in conversion is strict. Lon Fuller and HLA Hart maintained—correctly, in my view—that strict liability is objectionable because it does not adhere to the requirements of the ideal of the Rule of Law. This paper examines the force, and the implications of, the Rule of Law objection to strict liability in the context of the tort of conversion and the closely related tort of trespass to goods. It then considers whether, notwithstanding the objection, strict liability in these torts is justified. The paper maintains that the reasoning in the case law is largely ‘formal’. Insofar as ‘substantive reasoning’ is to be found at all, it is fragmentary, underdeveloped, and unconvincing. The paper also examines several justifications that have been advanced by legal academics. These largely consist of right-based arguments or consequentialist arguments. A premise of the right-based arguments is that liability in conversion protects property rights. It is argued that, while this premise is sound and not contentious, the right-based arguments do not provide a successful justification of the present law concerning strict liability in conversion and trespass to goods. The consequentialist arguments maintain that strict liability in conversion and trespass to goods has a number of desirable consequences, such as reducing the amount of harm in society by discouraging dishonest interferences with goods. The paper examines various objections to such arguments and claims that the arguments do not provide a successful justification of the present law. Accordingly, the paper concludes that, unless a sound justification can be found, the law is in need of reform; and that this is one context in which the dominance of formal reasoning in the cases, and the corresponding paucity of substantive reasoning, ought to be regretted.
Panel III: Room 102
Jason Varuhas, (Melbourne), ‘Contractual Discretion’
- Contracts often confer discretionary powers on one party to the contract which, when exercised, may affect not only their own interests but also those of the other party or parties. It has been recognised for some time that such discretionary powers are not unfettered. Courts will generally imply a term which imposes limits on the exercise of the power. However, a number of questions arise in connection with this term, which are the subject of this paper. First, what is the content of the term, and how do courts apply it. Second, what is the genus of the term? Is it a term implied in fact or implied in law, and does it matter. Third, what are the remedial consequences of breach of the implied term.
Krish Maharaj (Manitoba), ‘To run in thin air - Why Bhasin v Hrynew and "good faith obligations" need a firmer footing’
- In late 2014 the Supreme Court of Canada handed down its decision in Bhasin v. Hrynew and almost immediately threw Canadian practitioners and contracts scholars alike into an uproar over the Court’s introduction of the new “duty of honest performance” (“DHP”) and its recognition of good faith as an “organizing principle” of contract. Two and a half years on, predictions of doom and commercial upheaval have not been borne out, but uncertainty remains as to what it means for good faith to be an “organizing principle”, and what effects DHP has on the substance of the contracts themselves. Different views exist on both of these points, but as yet no consensus appears to have emerged. As I will explain though, it is likely to be impossible for any such consensus to emerge until a more fundamental challenge is first addressed. This proposed paper will explain what it is exactly the Supreme Court of Canada purported to do in the Bhasin decision, and the apparent practical limitations of this approach, before then turning to the aforementioned challenge behind such attempted “good faith reforms”. As I will explain, the underlying problem that has frustrated the SCC’s attempt to introduce even as specific an obligation as DHP, and rendered it apparently ineffective, is the fact that such attempts to extend contractual obligation beyond the parameters of the parties’ own agreement lack the necessary grounding to provide specific direction to the parties. Further, I will set out my view as to why this problem must inevitably effect attempts to introduce general extra-contractual obligations, and how the problem may be resolved by the adoption of a normative theory to anchor obligations that extend beyond a given contract.
Morning tea, first floor
Panel I: Room 108
Robyn Honey (Murdoch), ‘The Relationship between Form and Substance in Equity in the 21st Century: Learning from “the Mess” that is the Law of Undue Influence’
- It has been stated that ‘all rules with true equitable foundations … are concerned with substance rather than form’ (Amev-UDC Finance Ltd v Austin  HCA 63; (1986) 162 CLR 170, 197 (Deane J). However, equitable doctrines, no less than common law rules, require: coherent substantive reasons; apposite formal reasons; and a clearly articulated connection between them. The doctrine of undue influence exemplifies the dysfunction that is caused when formal and substantive reasons become muddled and misaligned. Moreover, an examination of the history of this doctrine provides insights into the relationship between substantive and formal reasoning in equity, which may be useful in clarifying the role of equity as it operates within the law of obligations today. Controversy exists about the substantive basis of the doctrine of undue influence. The decision of the House of Lords, in Royal Bank of Scotland Pty Ltd v Etridge (No 2)  UKHL 44;  2 AC 773, and that of the High Court of Australia, in Thorne v Kennedy  HCA 49; (2017) 91 ALJR 1260, show plainly that there is a divergence between English and Australian law on this point. However, this paper will demonstrate that there is not, nor ever has there been, a ‘true’ substantive basis for the doctrine of undue influence. In fact, the doctrine emerged from the comingling of three distinct strands of case law, each of which disclosed a variety of substantive reasons for equitable intervention. Furthermore, the difficulty of accommodating multiple substantive bases has placed strain on the formal rules which embody the doctrine and has created an inconsistent connection between the substantive and formal reasons that drive it. Therefore, this paper will contend that it is necessary: to reappraise the substantive reasons which justify equitable intervention for undue influence in the context of the 21st century law of obligations; and to reformulate the doctrine accordingly.
Prue Vines (UNSW), ‘Undue Influence in the probate court - a turnaround?’ The paper explores the possible shift in analysis of undue influence in probate law that has broken the ‘drought’. In Nicholson v Knaggsthe judge argued that the right to decide for oneself – that is the right to testamentary freedom – should be seen as a human right ( [protected by the CRPD)and he seemed to use this analysis in a way which allowed him to more easily reach the view that the testatrix had not wanted the defendant to inherit. You will recall that the traditional view was that undue influence was not established unless you could establish a clear overbearing of the desires of the deceased (remember that in probate it is quite OK for a person to beg or nag someone to make a will in their favour and that will not be sufficient to establish undue influence, and there are no relationships presumptive of undue influence). Why did a human rights analysis seem to make this easier for this judge? It might be argued that the human rights analysis which treated testamentary freedom as an aspect of freedom of expression inherently creates a situation where it is easier to see the freedom being breached than the traditional approach which began with the question of whether there had been coercion. My analysis would attempt to separate out the elements of the human rights analysis used in the CRPD and cases referring to it to see what factors are likely to be seen as breaching those rights. I would then like to explore the later cases (which do not explicitly use a human rights analysis) to see if their reasoning process implicitly has used these factors and therefore it might be argued that the human rights analysis has affected (infected?) the traditional approach. Is the use of the CRPD a way of amounting to a merely formal reference to human rights or is a more substantive change taking place?
Jodi Gardner (Cambridge), ‘Beyond Procedural Fairness: Reconceptualising Freedom of Contract’
- This paper focuses on the role of 'freedom' in relation to high-cost credit contracts. It will analyse what freedom means for these types of agreements, looking at issues of non-intervention, procedural fairness, avoiding exploitation and ensuring capacity. It will then highlight examples of how these concepts have played out in high-cost credit contracts, for example disclosure obligations, cooling off periods and vitiating factors. The paper will further discuss how this concept of freedom has resulted in serious problems and, in fact, limited the ability for individuals to make meaningful choices about the financial needs. It concludes by arguing for a reconceptualisation of freedom to that responds to substantive and procedural fairness concerns, thus ensuring the future autonomy for consumers.
Panel II: Room 109
Eli Ball (NSW Bar), ‘Advocate’s Immunity in Australia: Private Law Form, Public Law Substance’
- This paper considers the form and substance of the so-called “advocate’s immunity” from suit in Australian law. It is “so-called” because its name obscures its substance: it has nothing to do with advocacy, and it is not really an immunity from private law action. Rather, advocate’s immunity in Australia is the by-product of a principle probably more familiar to public lawyers than private lawyers: the protection of the judicial power and the judicial branch of government. This has important implications for the scope and existence of advocate’s immunity in Australia. The paper will set out the history and status of advocate’s immunity in Australia according to the four leading High Court of Australia cases, and then explain what the rationale for advocate’s immunity set out in those cases means for its scope and operation. The paper is limited to the Australian law experience, and will not seek to evaluate advocate’s immunity in Australia by comparison with other common law jurisdictions where it has either been abolished, or never took hold to a significant degree—notably Zealand, the United Kingdom, Canada, or the United States. That exercise cannot (and should not) be undertaken without a proper understanding of the substance of advocate’s immunity in Australia in the first place.
David Capper (Queen's Belfast), ‘Can the Advocate's Immunity Rule be Justified?’
- The advocate’s immunity rule provides an absolute defence or immunity from suit in negligence in respect of the presentation of the client’s case in court. Australia is effectively the last outpost of this rule, decisions of final appellate courts having abolished the immunity in other major common law jurisdictions where it previously applied. Australia’s decision to stick with immunity stakes everything on the claimed need to ensure that there is finality in judicial decisions. It is considered a collateral challenge to the original decision to allow a disappointed litigant to sue his or her advocate for the way in which that case was presented. This paper challenges advocates’ immunity in Australia on the following grounds: (1) The decision of the High Court in Giannarelli v Wraith (1988) 165 CLR 543, which adopted advocates’ immunity, was based on a misunderstanding of nineteenth century legal precedent. (2) The finality/collateral challenge argument is unpersuasive. D’Orta-Ekenaike v Victoria Legal Aid (2005) HCA 12, which maintained advocates’ immunity in the face of the House of Lords’ decision to abolish it in Hall v Simons  1 AC 615, was a criminal case presenting no collateral challenge problem because those jurisdictions that reject advocates’ immunity require the conviction to be quashed before any negligence action against an advocate is commenced. In civil cases there is no challenge to the original court’s conclusion on the material placed before the court. Recent decisions now limit advocates’ immunity to work undertaken in court and exclude any advisory or preparatory work from the immunity altogether. This means that the advocates’ immunity rule has been replaced by a principle designed to protect the dignity of judicial decisions in cases where they are not subject to any real challenge.
Phillip Morgan (York), ‘The Case for Volunteer Protection’
- Volunteer protection regimes are found throughout the common law world. The schemes provide protection to volunteers from claims in tort, particularly the tort of negligence. Whilst little studied the form adopted by most volunteer protection legislation throughout the common law world tracks a basic pattern, providing for a variable standard of care, and a concomitant form of statutory vicarious liability. The volunteer protection regimes which may be found throughout the US, Australia, and Ireland, are often criticised, without analysis of their underlying sophisticated substance. This paper advances a substantive defence of volunteer protection regimes, and advances the case for the United Kingdom to follow in the footsteps of other common law jurisdictions and introduce a Volunteer Protection Act.
Panel III: Room 102
Chaim Saiman (Villanova), ‘Form & Substance in in Anglo-American Law: Reassessing Atiyah and Summers one generation later’
- This year marks the 30th anniversary of Atiyah and Summer’s monumental comparison of Anglo-American law and legal culture. To the extent we focus on how traditional private law, Atiyah and Summer’s thesis stands up well. Contemporary Commonwealth courts routinely articulate private law doctrine by eschewing policy analysis, employing confined syllogistic reasoning and crafting narrow analogies based on precedent. In the US by contrast, doctrines usually expand more freely, conceptual analysis is disfavored, and balancing tests and policy analysis predominate.This analysis however misses the dramatic rise in formalism of American procedural and public law. Over the past generation, American courts have devoted considerable energy to articulating a highly formalistic set of gatekeeping doctrines that govern the judiciary’s authority to resolve disputes. American civil litigation thus places less stock in the common law, but rather emphasizes procedural and regulatory regimes.This paper argues these two phenomena are related. In the Commonwealth, private law categories serve as an important bulwark against arbitrary or “palm tree” justice. Because these doctrines are central to how the system maintains the rule of law, they are correspondingly formalistic and confined. By contrast, the plasticity of American common law makes these doctrines too indeterminate to provide effective constrains. The system therefore turned to procedural and public law to fill the void. Hence, cases that in the Commonwealth raise quintessentially private law questions, in the US are litigated in terms of procedure, federalism, and statutory interpretation.In sum, what Atiya and Summers missed are the myriads of ways that American law is more formal than its Anglo counterpart. The difference is not which system is formalistic, but to what ends is the formalism directed.
Ben Chen (Sydney) & Jeffrey Gordon (Columbia), ‘Interpretive Formalism in the Law of Obligations: Thirty Years After Form and Substance’
- Atiyah and Summers argued that statutory ‘interpretive formality’ — the extent to which a statute is interpreted literally rather than by reference to its underlying rationale — is higher in Anglo-Australian courts than in US courts. When interpreting statutes, they contended, Anglo-Australian courts pay close attention to the text but US courts allow the judicially-divined purpose to control. We argue that things have changed since Form and Substance was published thirty years ago. The US and Australia have significantly converged on statutory interpretation: the US has become more formal, and Australia has become more substantive. And because statutory interpretation is critical to private law, this convergence flows through to the law of obligations. We illustrate this claim by reference to proprietary restitution in bankruptcy and the legislative authorisation of equitable relief. The majority of US federal courts now apply a bright-line rule that a restitution claimant in a bankruptcy case is not entitled to a constructive trust over real property. Underlying the courts’ reluctance to grant a constructive trust in bankruptcy is not a substantive analysis balancing the competing interests of the restitution claimant and the unsecured creditors. Instead, these courts take a textualist approach to the bankruptcy statute. This stands in stark contrast to Australia, where courts of equity actively weigh the substantive interests of a constructive trust claimant against those of the general creditors. A similar story can be told for the legislative authorisation of equitable relief. The American approach to statutory equitable relief is decidedly formal: it only permits that relief which was typically available in equity before the federal courts merged in 1938. By contrast, Australian courts do not read statutory injunctions in a similarly formal manner. Rather, they freely liberalise equity’s traditional approach to serve the substantive statutory policy.
Lunch, first floor
Panel I: Room 108
Pey-Woan Lee (SMU), ‘Form, Substance and Recharacterisation’
- At common law, a court may “recharacterise” a contract or document when it is satisfied that the transaction it embodies is substantially different from the label assigned to it by the parties. This process of recharacterisation is well-established in a broad sphere including those of trusts, property, employment and secured financing. Whether a transaction should be recharacterised is routinely said to depend on its “substance”, which assumes there are ways to discover the “truth” of a transaction independently of its form. In practice, this enables courts to determine the legal effects of contracts and documents by looking to a wide range of evidence including the parties’ subjective intention, the legal and/or economic effects of the contractual terms, as well as the parties’ pre-contractual and/or post-contractual conduct. Consequently, recharacterisations are conceptually troubling as they appear to collide with contractual orthodoxy on various fronts. At the most general level, recharacertisation undermines contractual autonomy by ascribing to a contract legal effects not necessarily intended by the parties. To the extent that the parties’ subjective intention is determinative, the jurisdiction also runs counter to the objective principle that governs the formation and construction of contracts. Moreover, interpreting the contract by reference to post-contractual conduct offends the parol evidence rule as well as the traditional exclusion of such evidence. This paper argues that the process of recharacterisation includes but is distinct from that of contractual interpretation. Although it is premised on a trueinterpretation of the parties’ agreement, the legal characterisation of the agreement is always a question of law determined by weighing competing values and policies in a particular context. More specifically, recharacterisation is concerned with avoidancesin general so the central questionis whether and to what extent parties are legally permitted to “contract out” of a particular statutory regime or legal relationship. Thus, it is critical that the broad techniques (viz, shams and construction) that courts employ to recharacterise agreements be developed with that enquiry in mind. That requires courts to acknowledge that this area of law is essentially policy-driven. In each case, it is critical to articulate the interplay of values and policies that led to a particular characterisation. The temptation to resolve the issue by applying a hardened doctrine (eg. of “shams”) must be firmly resisted.
Kelvin Low (City U of Hong Kong), ‘Intangible Property: A Chose by Any Name?’
- Despite Juliet’s appeal to substance over form in the famous balcony scene of Shakespeare’s Romeo and Juliet, she and we, the readers, learn that names matter and that the consequences can be tragic. Today, in the legal context, we can see that the label “chose in action”, or “thing in action” to avoid the use of French, though venerable, is rapidly becoming unfashionable. Most modern scholars prefer the label “intangible property” for a variety of reasons – including the incongruity of the former in respect of many modern forms of intangible property such as carbon credits or export quotas, the plain English movement’s push away from the use of foreign language, the descriptive appeal of a thing being “intangible” as opposed to the vaguely opaque technicality of its being “in action”. This paper makes a case for the retention of the venerable label. First, it is suggested that the widely held views on the limitations of the label of chose in action are unfounded. As a category of property, the chose in action is as much capable of encompassing contractual obligations, its original core, as it is intellectual property rights and even regulatory licences. Secondly, whilst the label may be less accessible to laypersons, it embodies an important reminder to lawmakers, whether legislators or judges, of the importance of demarcating the boundaries of any new forms of intangible property they wish to create by law. By contrast, the newer label of intangible property does not do so. Intangibility describes a negative attribute, telling us what characteristic this category of property does not possess. By focusing attention on the non-existence of an attribute, it lacks the older label’s admonitory value, one that can cause great confusion as new forms of property are recognised with no clear guidance as to how they are actually proprietary.
Panel II: Room 109
David McLauchlan (Wellington), ‘Form and Substance in Contract Damages’
- This paper discusses the role of form and substance in the modern law of contract both generally and with specific reference to the law of damages for breach of contract and, in particular, the recent decisions of the United Kingdom Supreme Court in Swynson Ltd v Lowick Rose LLP UKSC 32and Fulton Shipping Inc of Panama v Globalia Business Travel SAU (The New Flamenco) UKSC 43. Although it was probably true to say when Atiyah and Summers wrote in Form and Substance in Anglo-American Lawover 30 years ago that “the English law of contractual damages continues to be treated by judges and writers as governed by highly formal rules”, it would be wrong to describe the reasoning employed by judges in modern times when explaining, refining, and applying these rules as highly formal. Particularly in appellate decisions, judicial reasoning is usually an amalgam of what the authors would describe as formal and substantive considerations. Indeed, the formal reason for supporting a decision may be preferred precisely because it provides the just or most convenient solution to the dispute, as in Swynson v Lowick Rose. In that case the Supreme Court overturned the decision of the majority of the Court of Appeal that denial of the damages claimed “would be a triumph of form over substance”, preferring the view of the dissenting judge who said that “the form here isthe substance”. And, while the decision in The New Flamenco appears at first sight to rest on formal, arguably formalistic, reasoning, a closer reading reveals that substantive considerations influenced the outcome of the appeal.
Giuseppe Bellantuono (Trento), ‘Beyond Form and Substance in Multi-Level Contract Law’
- Is Atiyah and Summers’ form/substance distinction still useful to compare legal systems? In this paper, I draw on debates about comparative approaches to contract law to argue that the answer is a qualified yes. Atiyah and Summers only considered factors affecting the degree of formality in legal reasoning at the level of national institutions and decision-making processes. But in the last thirty years, contract law has been applied in contexts heavily influenced by transnational processes of regional integration, globalization of business relationships and technological innovation. The key question becomes how national styles of legal reasoning cope with a multiplicity of transnational legal regimes. Seen from this perspective, the form/substance distinction is not the end point of the analysis, but only one of the ways to describe the interactions among multiple levels of contractual decision-making. What matters most is to explain how such interactions affect contractual relationships. In order to begin answering this question, I discuss the case law which addresses the interplay between technical standardization regimes and contractual rules on commercial quality. Disputes in this area touch upon core concepts of national contract law. At the same time, they show how transnational processes can transform those concepts. The analysis preserves much of Atiyah and Summers’ contextual mood. But it goes beyond the form/substance distinction to account for the variety of outcomes that could be observed when multiple national and transnational regimes come into contact.
Panel III: Room 102
Sandy Steel (Oxford) and Andrew Summers (LSE), ‘The Concept of Loss’
- This paper examines a central feature of the concept of loss in private law: its comparative nature. Our main claim is that the legal concept of loss entails what we call a ‘complex counterfactual comparison’. This means that in addition to the ‘no-breach’ counterfactual stipulated by the compensatory principle, various legal rules impose additional counterfactuals as part of assessing the claimant’s breach and no-breach positions. We argue that at least some of these rules are constitutive of the legal concept of loss; they do not merely apply ex post as limitations on the recovery of damages. The paper offers some justifications of the counterfactuals adopted by the law, a principal one being the connection between the concept of loss and the concept of causation.
Václav Janeček (Oxford/Prague), ‘A Theory of Public Damages’
- Multiple heads of non-compensatory damages are normally regarded as disparate judicial remedies. Formally speaking, this is true. Yet if we analyse the reasons that justify them, they start looking more similar to each other than we have thought. This paper argues that several categories of damages, namely punitive, nominal, contemptuous, vindicatory, and disgorgement damages (commonly referred to as non-compensatory damages) can be collectively analysed as public damages because all these awards are justified by violations of some rights that are common to the public. Said remedies thus feature a distinctively public element in private law. In contrast with compensatory damages, public damages are justified by infringements of rights which are not correlative as between the claimant and the defendant, because the suffering right-holder is not only the claimant. This helps us to understand how public damages differ from traditional private damages and why public damages should be treated as an exceptional remedy. In support of these claims, the paper offers an original analytical framework of justifying reasons for damages awards.
Afternoon tea, first floor
Panel I: Room 108
Solène Rowan (LSE), ‘The “Legitimate Interest in Performance” in the Law on Penalties’
- After arguing that English law was highly formal and US law highly substantive, Atiyah and Summers concluded that, as a result, English judges appeared far less creative and activist than their US counterparts. If there is one area of the law of contract in which English judges have been innovative in the last 30 years however, it is that of remedies for breach of contract. Instances of judicial creativity include the introduction of gain-based monetary awards, the creation of exceptions to the general principle that non-pecuniary loss does not sound in damages, the recognition that performance can have intrinsic value, and the rewriting of the rules on penalty clauses. It is on the topic of penalty clauses that my paper will focus. In Cavendish Square Holding Bv v Talal El Makdessi(2015), the Supreme Court jettisoned the criterion of whether a clause is a genuine pre-estimate of loss and shifted the inquiry to whether a clause is justified and not unconscionable or extravagant. The court recognised that the promisee may have a 'legitimate interest' extending beyond the prospect of compensation. The open-ended notion of 'legitimate interest' of the promisee is not new. It has featured in the past in other areas of the law of remedies, for example the award of specific performance, gain-based damages, and repudiatory breach. Conferring in these contexts wide judicial discretion, it has given the courts the ability to be creative, particularly in hard cases. The paper seeks to analyse and bring clarity to the notion of 'legitimate interest' by giving it meaning and defining its scope.
Nicholas Tiverios (UCL), ‘Engaging the New Australian Law of Penalties: When does a contractual clause attract judicial scrutiny?’
- This paper concerns the first stage of the three-stage analysis to determine whether an agreed contractual remedy is a penalty: that is, the threshold or anterior issue of whether an impugned stipulation engages the penalties doctrine. There are two reasons for this paper. The first is to provide an answer to a historical debate between the High Court of Australia in Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 and the Supreme Court of the United Kingdom in Cavendish Square Holding BV v Makdessi  AC 1172. That debate centres on the correct reading of legal history on the issue of whether a breach of contract was required in order to enliven the penalties doctrine. The second reason is to provide guidance as to how the post-Andrews Australian penalties doctrine operates in practice absent a breach of contract requirement, with recourse to legal history and to the jurisprudence that builds on the Andrews formulation.
Panel II: Room 109
Craig Rotherham (Nottingham), ‘The Death of Waiver of Tort’
James Goudkamp (Oxford) and Eleni Katsampouka (Oxford), ‘Formal and substantive reasoning in the Anglo-Australian law of punitive damages’ Punitive damages are the common law’s most controversial remedy. Radically different approaches reflecting a diversity of judicial philosophies are taken in relation to the award throughout the common law-world.The burden of this paper is to promote understanding of these markedly divergent bodies of jurisprudence by comparing the relevant law in several jurisdictions with each other.Our focus is on Australia, Canada, England and the United States. Those jurisdictions have been selected for analysis partly because they are all major common-law jurisdictions but also because each adopts a distinctive approach to punitive damages. To facilitate our comparison, we employ the concepts of formal reasoning and substantive reasoning, which concepts Atiyah and Summers brilliantly expounded in their landmark monograph Form and Substance in Anglo-American Law.Atiyah and Summers specifically addressed punitive damages and regarded the relevant law as powerfully supporting their thesis that English law is highly formalistic whereas the law in the United States is underpinned by substantive reasoning. Our paper contends that Atiyah and Summers’ thesis still holds true in relation to the law of punitive damages. We further argue that the law of punitive damages in Australia is roughly as substantive as that in the United States but that the most substantive approach of all has been taken in Canada. Although our paper stops short of a fully-fledged defence of the award of punitive damages, we suggest that the Canadian approach to punitive damages holds significant appeal relative to that in the other jurisprudences evaluated.
Panel III: Room 102
Tobias Barkley (La Trobe), ‘Judicial Review of Trustee Discretion and the Courts' Preference for Formal Rules’
- The story of the courts’ jurisdiction over the exercise of trustees’ dispositive discretions provides an interesting case study of Summers and Atiyah’s distinction between formal and substantive reasoning in legal culture. This distinction can apply to the judicial review context, provided it is modified to acknowledge that decision-making is situated in two locations: trustees and judges. As modified, it provides an illustration of how rules can be unsatisfactorily arbitrary, but also how regulating behaviour through reasons is simply difficult. This paper describes how the shape of the courts’ jurisdiction of trustees’ discretions has, over time, moved in a spiral from substantive reasoning, to formal rules and back again. It then describes the current state of the courts’ jurisdiction and argues that it suffers from multiplicity and indeterminacy. It will be suggested that at least one cause of these (claimed) problems is ongoing disagreement about the appropriate roles of substantive and formal reasoning in the review of trustees’ discretions.
Mark Bennett (Wellington), ‘Trusts law – Form over Substance or substance over form?’
- This paper examines trusts law's complex relationship with formal rules and substantive reasons in the law, with primary reference to recent decisions on 'illusory trusts'. Settlors expect that formal trusts law rules will be given effect to by Equity courts. However, in three recent decisions (Clayton v Clayton  NZSC 29, JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev  EWHC 2426 (Ch), and Webb v Webb  CKCA 4) Commonwealth courts have set out a legal doctrine that looks to the 'substance' of beneficial ownership of the trust property, contrary to the orthodox view of the formal rules of trusts law. Whether this reflects a preference in Equity for recognising substance over form will be discussed, with further reference to the New Zealand cases Kain v Hutton  NZSC 61 and Vervoort v Forrest  NZCA 375.
Professor Liam Murphy (NYU), ‘The Formality of Contractual Obligation’
6.30 for 7.00 dinner
Woodward Conference Centre
Melbourne Law School, tenth floor