Wednesday 18 July Abstracts

Wednesday 18 July

All day


Melbourne Law School, first floor


Plenary 2.1

Professor Andrew Burrows QC (Hon) FBA (Oxford), ‘Form and Substance: Fictions and Judicial Power’


Parallel 2a

Panel I: Room 108

Desmond Ryan (Trinity College Dublin), ‘Form and Substance - A “Close Connection” in Vicarious Liability?’

  • Vicarious liability is an area of the law of obligations in which the tension between form and substance is especially marked. From the Salmond test to the ‘close connection’ test, by way of just two examples, academics and courts have devised highly specific rules for the operation of vicarious liability, yet all the while intense debate continues about the substantive principles underpinning their imposition. In recent years, appellate courts around the world have continued to articulate tests designed to capture the parameters of vicarious liability for intentional wrongdoing, but the substantive basis for doing so remains elusive. For example, in its decision last year in Prince Alfred College Incorporated v ADC[2016] HCA 37, the High Court of Australia has once again considered the appropriate test for establishing vicarious liability of employers for the wrongful acts of their employees. The High Court expressed very strong disagreement with the decision of the United Kingdom Supreme Court just months earlier in Mohamudv WM Morrison Supermarkets plc[2016] UKSC 11, [2016] A.C. 677. The High Court apparently regarded Mohamudas having in effect abandoned the Lister qualification that mere opportunity was not enough to satisfy the close connection test (Lister v Hesley Hall Ltd[2001] UKHL 22, [2002] 1 A.C. 215), and has articulated a new test in Australian law for vicarious liability reasoning based on whether the employment provided the “occasion” for the wrongdoing to be committed. This paper seeks to identify what these different forms of test reveal about the substantial value judgments underpinning them, and whether a comparison of this tension between form and substance in Australian and United Kingdom case law can illuminate distinctive substantive principles explaining the imposition of vicarious liability.

Christine Beuermann (Newcastle UK), ‘The Abstraction of Form and the Associated Dangers for the English Courts: The Case Study of Vicarious Liability’

  • Since the publication of Form and Substance in Anglo-American Law, the English courts have abolished the long-standing Salmond test for imposing vicarious liability and adopted the more open-ended ‘close connection’ test based on developments in the Canadian courts. This chapter analyses the approach of the English courts to legal reasoning under the two tests for imposing vicarious liability to ascertain whether the change in tests indicates a change in the approach of the English courts to legal reasoning more generally.  Atiyah and Summers categorisation of the attributes of formal legal reasoning is used for this purpose.  It is suggested, somewhat surprisingly, that the degree of ‘formality’ in the approach of the English courts to legal reasoning under the different tests appears to have actually increased.  The increase in ‘content’ and interpretative’ formality in the approach of the English courts to legal reasoning under the ‘close connection’ test can be explained by the change from a ‘process’ to a ‘rule’ based form of legal reasoning and the continued refusal of the English courts to expressly incorporate substantive justifications in the legal reasoning process.

Panel II: Room 109

Andrew Robertson (Melbourne), ‘The Form and Substance of Equitable Estoppel’

  • An important point of tension between form and substance in the law of obligations lies in the field of taxonomy. A core taxonomic question is whether the form the law is said to take accords with its substance. Taxonomic uncertainty has long been a feature of the set of principles loosely known as equitable estoppel. The unifiers had their heyday in a period roughly centred on the 1980s. Today, the splitters are in the ascendant. This paper attempts to take stock of the most important taxonomic questions in equitable estoppel and the issues of substance that underlie them.

Ying Khai Liew (Melbourne), ‘Prima Facie Expectation Relief in the Australian Law of Proprietary Estoppel: Formal or Substantive?’

  • It is now universally agreed that, in Australia, proprietary estoppel attracts the prima facie remedy of expectation relief. It is often thought that this provides a highly formal rule, because unless expectation relief would be ‘all out of proportion’ to the plaintiff’s detriment, courts ought not to depart from the prima facie position. This paper begins by investigating the second-level substantive reason underlying proprietary estoppel in order to demonstrate that the doctrine’s aim is (and remains) the avoidance of detriment. Next, it examines the ‘prima facie’ remedial rule, and asks whether there are any good substantive reasons at all for adopting that rule. Concluding that such reasons do exist, the final section of the paper addresses the question of whether the remedial rule ought to provide a strong or weak default position, that is, whether it should be understood as highly formal or highly substantive. Noting in particular that the present state of the law does not provide any strong indication one way or the other, the question is addressed as a matter of principle and policy. For a host of reasons, including (a) a proper understanding of the elements of proportionality and detriment in proprietary estoppel, (b) consistency with the second-level substantive aim of the doctrine, and (c) the need to avoid formalistic reasoning, the ‘prima facie’ rule ought to be understood as providing a highly substantive rule.

Panel III: Room 102

Steve Hedley (Cork), ‘How can we make private law better?’

  • Today, hardly anyone will admit to believing that we should ignore private law’s impact on society entirely, that formal considerations should entirely triumph over the desire for appropriate substance. The most minimal position is to keep reference to society and its needs as general as possible: for example (1) corrective justice theorists draw on social and moral ideas, but of the most abstract and universal kind, (2) lawyer-economists appeal to the need to promote aggregate welfare, and (3) formalists (of all stripes) stress the law’s own integrity as the desideratum, disregarding or downplaying competing desiderata. All three approaches seek to minimise references to why society instituted particular laws, or with what aim in view – indeed, none of the three is very ready to admit that society has asked different things of private law in different periods. All three schools seek to present an intellectually orderly account of the law, and at all events not to be seen to be choosing between competing values. Others seek a richer and more realistic engagement with substance, and with the actual society that private law plays a part in governing. Yet fairly obviously private law’s role can only be limited. We need to consider: (1) The problem of Means – Which problems is the legal system actually in a position to address, given that it is at root simply a dispute-resolution institution, and not the only one? (2) The problem of Knowledge – What sort of social model do the courts need to assume if they are to address problems effectively? And how do the courts know enough about them?  (3) The problem of Legitimacy – If the courts are to do justice, what is to count as justice? Given that the loudest voices in legal discourse are those at the peak of their professions – an élite within an élite – why should the wider society be persuaded that private lawyers should be listened to?

Frederick Wilmot-Smith (Oxford), ‘Legal Disagreements’

  • The distinction between ‘substance’ and ‘form’ is, I claim in this paper, not one we should use. It can be used in such a variety of ways that the distinction throws very little light on our disagreements. Too often it is deployed merely as a conclusion: to favour ‘substance over form’ is, for example, a shorthand for being in favour of good laws over bad laws. I offer an account of legal disagreements, to illustrate what is at stake when we disagree—for example, when one person says that another is ‘formalist.’ There are three things we can disagree about: facts, concepts and norms. But it is not always clear when we are disagreeing about these things. We should, I say, distinguish disagreements about any of these from cypto disagreements, ones where a dispute is best understood as being about something other than its surface grammar. I also claim that we should distinguish between best-case and second-best disagreements. Best-case disagreements are those about what to do if there were no resource constraints; second-best disagreements concern what to do given resource constraints. This distinction shows a range of new ways in which we can disagree.


Morning tea, first floor


Parallel 2b

Panel I: Room 108

Paula Giliker (Bristol), ‘Severing the plant from the root: Political change and the interpretation of transplanted law’

  • In June 2016, the UK voted in a referendum to leave the European Union.  The consequences of Brexit are wide-ranging, but, from a legal perspective, it will entail the repeal of the European Communities Act 1972, ss 2(4) and 3(1) of which give effect to the doctrine of the supremacy of EU law, as interpreted by the Court of Justice of the European Union, over national law.  The government does not intend to seek to repeal the formal rules of EU law at this stage, but that, in terms of their substantive interpretation, decisions of the CJEU will no longer be binding.  Such political change is not unique, however, to the UK. Other common law systems have shaken off the binding authority of English law in favour of organic domestic legal development, and yet retained the ‘persuasive’ influence of English common law courts.  This paper will seek, with reference to Commonwealth jurisdictions, to examine how the courts apply law which derives from a system whose decisions were previously binding, but  are now solely of persuasive authority.  When the formal rules remain, but the substantive law is decided at a local level, will they continue to be applied with reference to the justifications that underlie them or will domestic concerns prevail?  Further, to what extent do changes to the transplanted laws at the higher level e.g. modification of an EU Directive or the overturning of House of Lords/Supreme Court authority impact on the previously subordinate system?  In examining how substantive provisions of contract and tort law based on EU directives will be interpreted post-Brexit, can guidance be obtained from the common law legal family or will the different political context make a difference?

Jason W Neyers (Western Ontario), ‘Form and Substance in the Tort of Deceit’

  • As conventionally understood by English lawyers, the tort of Deceit’s purpose is to provide a remedy for claimants that suffer pecuniary loss as a result of acting upon lies told by defendants. Unfortunately, this loss-based understanding of the tort is flawed in that it cannot explain the results of leading deceit damages cases and is either conceptually impossible or radically incoherent.  This state of affairs seems attributable to the formality of English law, as identified by Atiyah and Summers, especially formality in relation to interpretation and content. This reliance on formality threatens to render the tort of deceit “formalistic”, a term of  opprobrium used by Atiyah and Summers to indicates a “degenerate species” of formality that is too far divorced from substance. After examining a recent attempt to offer a substantive autonomy-based understanding of the tort—an interpretation that is found to be wanting—the presentation will elucidate a rights-based understanding of the tort of deceit that fits the problematic cases and which is conceptually possible and logically coherent.

Greg Bowley (Toronto), ‘Steampunk Liability? Form, Substance, and Nothingness in Conspiracy to Injure’

  • The House of Lords has made several unsuccessful attempts to explain and justify the continued existence of the anomalous tort of conspiracy to injure, which assigns liability on the express basis of the defendants’ malicious motive.  Atiyah and Summers’ distinction between formal and substantive legal reasoning in Form and Substance in Anglo-American Law offers a useful analytical lens through which these justificatory attempts can be understood and evaluated.  The first part of this paper offers an overview of conspiracy to injure jurisprudence from Mogul to Total.  The second part argues that this jurisprudence reflects the fact that both substantive and formal justifications for the tort have been advanced and discarded over the last century, and that, since 1981, the tort has been expressly recognized as both unjustifiable and entrenched in English law.  This purely formal understanding had, until recently, discouraged extension of the tort’s anomalous principles of liability to other areas of the common law.  The third part argues that this approach has also facilitated a “formalistic” shift in conspiracy to injure jurisprudence, most prominently in Lord Neuberger’s opinion in Total, which extended the tort’s anomalous principles to unlawful means conspiracy, a superficially-similar, but substantially-distinct, tort.  The final part of this paper suggests the possibility that, rather than an inexplicable anomaly, conspiracy to injure might better be thought of as a legal anachronism, a contemporary tort powered by long-abandoned normative principles.  Recognizing this basis of liability as distinct in substance from the balance of English tort law, and from unlawful means conspiracy in particular, could discourage formalistic jurisprudential engagement with conspiracy to injure, limiting its future potential as a source of conceptual entropy.


Panel II: Room 109

Niamh Connolly (UCL), ‘Is the balance between formal rules and substantive justice in English unjust enrichment law shifting?’

KV Krishnaprasad (Oxford), ‘Unjust Enrichment and Countervailing Legal Obligations: From Rules to Reasons’

  • The conflict between unjust enrichment claims and countervailing legal obligations is a vexed issue in the law of unjust enrichment. Recently, in DD Growth Premium v RMF Limited[2017] UKPC 36, the Privy Council confirmed the existence of a rule that denies the restitution of benefits that were received in satisfaction of a legal right (‘the legal obligation qualification’). That paper will examine the justification for this rule. Most accounts of the legal obligation qualification rely on the ‘subsidiarity’ of unjust enrichment. This, however, only restates the problem. It begs the question, why is unjust enrichment subsidiary? It has also been suggested that the interplay between unjust enrichment and legal entitlements of the defendant is best resolved by asking whether the legal entitlement is “outweighed by the injustice” of the unjust factor. This will not do either. Legal entitlements and unjust factors are not commensurate considerations. The balancing methodology is not reflected in the cases either. This paper will argue that a defensible explanation for the legal obligation qualification demands a shift from the rules of unjust enrichment to the reasons for restitution. The process of explaining the legal obligation qualification must proceed in two steps. One must begin with the normative reasons that justify unjust enrichment claims. This enquiry can then pave the way for the further question, does the presence of countervailing legal obligations deny any of these reasons?

Ajay Ratan (London Bar), ‘Reason Reloaded: How to Inform the Unjust Enrichment Formula’

  • Rules can be pitched at different levels of abstraction. So can reasons. Foundational moral theorists seek to articulate reasons at their most abstract. Doctrinally-focused scholars operate at a less abstract level. The work of practitioners is more concrete still. At all of these levels, moral reasoning can and should be brought to bear in one way or another. Unjust enrichment poses a particular problem in this regard. Even in the ‘paradigm’ case of mistaken payment, no complete justification for liability has yet been adequately articulated. Foundational theorists continue to wrestle with this problem. So how can practitioners like me intelligently bring reasons to bear on our work in this area? In this paper I say that mid-level moral principles are the answer. Such principles are an attractive subject for inquiry for at least three reasons. First, as a matter of method, if we wish to show that any foundational justification for unjust enrichment liability is true, we need first to identify the relevant mid-level moral principles embodied in legal practice. Only then can we seek to identify a foundational justification that coheres with those principles. Moral principles that find currency in practice are likely to be a more reliable source of raw input than our ‘intuitions’. As theorists we are vulnerable to a feedback loop whereby our own ‘intuitions’ are predetermined by the foundational justifications they purport to test. Second, mid-level moral principles can have rational force even if we disagree about the more abstract justification for them. They therefore allow for reason-driven progress even without a complete justification for unjust enrichment liability. Third, the law reports contain many instructive statements of mid-level moral principles. We can fruitfully regard the common law in this area (or parts of it) as an accreted body of moral wisdom ready to be tapped.

Panel III: Room 102

James Lee (KCL), ‘Tort Law in Top Courts: Bad Form and Addictive Substance?’

  • This paper considers the form and substance of tort law reasoning in the UK Supreme Court, with appropriate comparative reference to recent authorities in the High Court of Australia and the Supreme Court of Canada. I take a thematic approach to identify trends in tort law decisions. Lord Neuberger, the recently retired President of the Supreme Court, has asserted the centrality of policy in tort reasoning, and we find explicit engagement with corrective, distributive and social justice concerns in recent cases. It is striking that the relevant Justices are transparent in their engagement with these policy considerations, both in their judgments and extra-curial observations. The narrative points to a prevailing teleology which is at odds with tort law principle and treats form as ‘formalistic’ in a pejorative sense.  Although to an extent these are perennial questions in tort and law more generally, what I argue is distinctive about the current trend in the Supreme Court is the open embracing of indeterminacy in the formulation of the relevant tests. In turn, this trend then has implications for the institutions of the common law and the courts.

Dan Priel (Osgoode Hall), ‘Two Forms of Formalism’

  • The aim of this essay is to identify two distinct views that are sometimes considered together under the label ‘formalism’. One view, I call it ‘conceptualism’ seeks to explain law by way of a priori reflection on certain concepts like right, wrong, ownership, and so on. The other approach, which I call ‘doctrinalism’ is the approach underlying, to a greater or lesser degree, most legal textbooks. This approach seeks to build a theory of law by careful examination of the case-law, constructing concepts from these works rather than by way of philosophical reflection. The reason why these two approaches are sometimes treated together is that they share one idea, that of the autonomy of law. This, I argue, is the key distinguishing factor between such views and anti-formalist (often called ‘realist’) approaches. I further argue that despite this superficial similarity, the two approaches are in important respects fundamentally different; in fact, even this idea of the autonomy of law is understood quite differently by conceptualists and doctrinalists. It is on the basis of this difference that I evaluate these two approaches. My conclusion on conceptualism is that it rests on an implausible view of legal autonomy, and as a result, conceptualism is both descriptively inaccurate and normatively unappealing. I argue that doctrinalism is potentially more promising, as underlying it is an appealing (and quite popular) set of political ideas. The key to justifying doctrinalism, I suggest, is the idea that under certain conditions decision-makers will make overall better decisions with less rather than more information. This seemingly counterintuitive thought becomes more plausible once one takes questions of cost and potential error into account. Evaluating the normative appeal of doctrinalism is rather more complex, and in this essay I do not reach definitive conclusions on it, but alongside its strengths, I aim to identify its practical weaknesses. I conclude by suggesting that the reason doctrinalists are attracted to conceptualist ideas is because aligning with conceptualism looks like it can provide adequate solutions to doctrinalism’s problems.


Lunch, first floor


Parallel 2c

Panel I: Room 108

Joanna McCunn (Bristol), ‘Contra Proferentem: The Chameleon of Contract Law’

  • The common law’s conservatism in matters of form can disguise radical changes to its substance. The contra proferentem rule provides an excellent illustration of this tendency. The rule has been part of English contract law for over six hundred years, but has played very different roles at each stage of its life. Recently, it has been under sustained attack, as judges have repeatedly doubted whether it is of any use at all in a modern commercial environment. But this hostility is nothing new: in fact, today’s criticisms of the rule merely echo those made by common lawyers since the medieval period. This paper traces the history of the contra proferentem rule in England, from the fourteenth century to the present day, and shows how it has been continually evolving in response to its critics. Lawyers have repurposed the rule many times to fit with their new conceptions of contract law and to address the most pressing concerns of their day. As a result, while it has retained the same form for centuries, the substance of thecontra proferentem rule has always been in flux. This paper argues that the rule provides a fascinating case study in the development of common law doctrine, and explores what the future might hold for one of our longest-lived canons of construction.

Kelry Loi (NUS/Oxford), ‘The Heart of the Matter: The Substance of Contracts and Exemptions’

  • English law is plagued by attempts to evade the Misrepresentation Act 1967 ('MA') and Unfair Contract Terms Act 1977 ('UCTA'), which prescribe that certain exemption clauses are ineffective unless reasonable. It is sometimes said that contractual provisions which merely define the basis of a transaction or the scope of parties' duties and obligations are immune from the statutory prescription, simply because they are not exemption clauses which purport to exclude liabilities or remedies. This paper examines whether one may legitimately distinguish between exemption clauses subject to the statutory requirement of reasonableness and so-called 'definition' or 'basis' clauses and immunise the latter from statutory scrutiny.

Panel II: Room 109

Ellen Rock (UTS), ‘Misfeasance in public office: a tort of substance’

  • Misfeasance in public office remains an anomalous tort. This paper suggests that while taking the form of a tort, in substance it may be better understood as a tool of government accountability. Adopting this view helps to explain some of the more anomalous aspects of the tort, as it operates not only as a private law means of redress, but more broadly as a mechanism to hold the government accountable for its actions. We can better understand the tort’s role as an accountability mechanism by analysing it within the accountability framework: whois accountable to whom, for what, and how? Within this framework, it is possible to identify various points of tension between aspects of the tort, as it pulls at various times towards the disparate goals of restoration, desert and deterrence. Characterising the tort as an accountability mechanism allows us to view it as reflecting a compromise between these various accountability goals, and also helps to explain why the tort continues to draw interest in public and private law circles notwithstanding its low rates of success in practice.

Neil Foster (Newcastle NSW), ‘Form, Substance and Sheep Overboard: The 'Type of Harm' Rule in the Civil Action for Breach of Statutory Duty’

  • The classic decision of Gorris v Scott(1874) LR 9 Ex 125 (the case of the “washed-over sheep”) has regularly been cited in cases dealing with the civil action for Breach of Statutory Duty (BSD). It is usually said to stand for the proposition that in a BSD action, only the “type of harm” which the relevant legislation was designed to guard against, can be sued for in a civil action based on that legislation. In Gorristhe fact that the legislation requiring that sheep be penned during a sea voyage was part of a scheme regulating animal health, was said to preclude recovery for the loss of the sheep as chattels when washed overboard on the journey. This paper seeks to interrogate this decision, and others following, to ask: is this distinction one that the law should continue to recognize? Is it simply a mis-guided acceptance of the “form” of the rule creating the duty, at the expense of the substance of the relevant obligations? Or are there good reasons to respect the intention of Parliament in crafting rules of this sort? The paper aims to interact with the discussion in Summers, “The Place of Form in the Fundamentals of Law” (2001) 14 Ratio Juris 106-129 to consider the ongoing validity of the “type of harm” rule in the BSD tort.

Panel III: Room 102

Rosemary Langford (Melbourne), ‘Form and Substance in Fiduciary Law - Directors and Corporate Opportunities’

  • The duties to avoid unauthorised conflicts and profits are commonly seen as the two core strands of fiduciary regulation. These duties are expressed strictly – it is irrelevant that the fiduciary acted in good faith, that the beneficiary could not have made the relevant profit, or that there was benefit to the beneficiary. An examination of jurisprudence from Commonwealth jurisdictions concerning corporate opportunities demonstrates a shift in the way in which these duties are applied. In contrast to courts in jurisdictions such as the UK (which continue to apply the duties strictly), Australian courts now focus on whether the director had a duty to bring in opportunities to the company. If not, there is no conflict and any profit is not attributed to position. Courts in England and Scotland have explicitly rejected this approach. In this respect Australian courts appear to be looking more closely at the substance of the particular relationship rather than applying the duties in a formalistic manner. This is consistent with general equitable jurisprudence (in Australia at least) to mould any applicable fiduciary duties to the relationship in question. There are, however, a number of problems. First, this approach appears to ignore the fundamental duty of directors to act in good faith in the interests of the company. Secondly, it creates a distinction between executive and non-executive directors, which can at times be problematic. Thirdly, it creates a great deal of uncertainty and overlooks the reasons for the imposition of the duties. There are other ways of mitigating the perceived harshness of the duties, such as by authorisation or by excusing directors where they are found to have acted honestly and the court finds that they ought reasonably to be excused.

Joshua Getzler (Oxford), ‘Preemption and Crown fiduciary duties’

  • This essay explores the history of the doctrine of pre-emption, reserving the right to buy or take transfer of native lands in settled or discovered colonies to the Crown or sovereign, and denying any legal efficacy to direct dealings between settlers and natives. The origins are traced to the early 17th century North American colonies, and variant justifications for the doctrine are explored. A key theme in the operation and ideology of pre-emption was that the sovereign should protect native rights and ensure fair dealing. But such aspirations could be merely formal, and sometimes concealed a cynical desire to take the land as cheaply as possible. The recrudescence of public fiduciary doctrine in today’s native title law may be seen as a revival of past substantive ideas embedded within the theory of pre-emption. Hence it is important to recover the history of pre-emption, as an urgent practical matter.


Afternoon tea, first floor


Parallel 2d

Panel I: Room 108

Caspar J F Bartscherer (UCL), ‘The Primary/Secondary Chimera’

  • This paper will discuss judicial uses of the distinction between primary and secondary rights (‘the Distinction’). Using the joint judgment of Lord Neuberger and Lord Sumption in Cavendish Square Holding BV v Talal El Makdessi [2015] UKSC 67, [2016] A.C. 1172 I will seek to illustrate common pitfalls in such reasoning. A detailed examination of their Lordships’ reasoning and its implications will reveal that the Distinction is not a particularly helpful tool in private law reasoning. While supposedly providing a hard-edged test, the Distinction does not in fact do any useful work in their Lordships reasoning. In my paper I will show that depending on how one parses the Distinction it either draws the border between impermissible penalty clauses and permissible contractual terms in a way that cannot have been intended by their lordships (it is either hopelessly over-inclusive or hopelessly under-inclusive, neither of which can have been intended) or it ends up being an entirely superfluous proxy for the substantive distinction drawn in the concurring judgments of Lord Hodge and Lord Mance.

Peter Jaffey (Leicester), ‘Remedial Consistency in Private Law’

  • The paper will be concerned with consistency between primary and remedial relations, which I will refer to as “remedial consistency”. The primary relation is the relation subsisting before a claim arises, which specifies what D is required to do for C, or what risk or potential liability the law requires D to bear vis-à-vis C, and so determines when a claim arises for C against D. The remedial relation is the claim that arises out of the primary relation: the claim is C’s right against D to a remedy to realise or satisfy or protect the primary relation in the circumstances now obtaining, which it is the court’s responsibility to identify and enforce by its order. In other words, the remedial relation represents remedial justice relative to, or in accordance with, the primary relation. It seems clear that the law should respect the requirement of remedial consistency, though it may be difficult to say what it requires in particular circumstances. It seems to me that the requirement of remedial consistency has important implications for private law, across a range of topics. The requirement of remedial consistency has something in common with various ideas discussed in the academic literature, including continuity, remedial monism and corrective justice. I will consider these concepts and how they relate to remedial consistency. The requirement of remedial consistency is an aspect of form rather than substance. It does not directly determine substantive law, but, by revealing latent inconsistencies between primary and remedial relations, an inquiry into remedial consistency can force us to reassess matters of substantive law.


Panel II Room 109

Simon Connell (Otago), ‘Consensus, correction and conscience: formal and substantive reasoning in the requirements for rectification’

  • This paper considers the interplay between formal and substantive reasoning in the context of rectification, an equitable remedy that allows a court to effectively re-write a document that does not say what it should. Rectification is usually considered to be available only when certain requirements are satisfied. For example, rectification for common mistake requires a common intention continuing up until the point of execution of the document in question. These requirements have changed over time and the precise details can be controversial. The requirements for rectification can be seen as formal rules that incorporate the outcome of a substantive debate over what constitutes an ‘agreement’ that should be given effect by the law. In the history of rectification, the requirements have fallen out-of-step with developments in the substantive debate, prompting their revision. In addition, there is some dispute over the extent to which rectification’s equitable origin should be reflected in its requirements. This paper considers whether appeals to rectification’s equitable lineage should be understood as formal or substantive reasoning.

Timothy Liau (Oxford), ‘Re-forming privity: third party rights, or third party standing?’

  • I claim in this paper that conceptual analysis of formal rules, and the rights and powers they confer, ought to precede their substantive justification. If we fail to do so, we risk analytical confusion and a mismatch between justification and justificandum.I advance the claim by using the ‘battle over privity’ as a case study. In this area there exists a real risk of justificatory mismatch. This is partly due to the fact that contract lawyers have overlooked the importance of standing, as a distinct concept from one’s contractual rights to the promised performance. Standing, though commonly referred to as a ‘right of action’, is better conceived of as apower to initiate legal proceedings to summon the contractual duty-holder to account before a court of law, thereby subjecting him to the jurisdiction (power) of the court to make an order against him. It is only through the claimant’s decision to exercise his power to sue that the defendant’s liability to the court’s power arises.This simple but important insight has potential implications for the way the privity rule ought to be understood, and therefore on how its reform might be justified. In the paper I consider these implications by reference to canonical cases in the area.

Panel III: Room 102

Kumaralingam Amirthalingam (NUS), ‘Negligence and the False Dichotomy of Substance and Form’

  • Negligence is a dynamic tort, constantly responding to social change and driven by policy considerations.  Its core elements of duty, breach and damage are inherently fluid, shaped and reshaped by a synergistic dialogue between substance and form.  This phenomenon is especially vivid in medical negligence, an area of tort law that is on the move in the United Kingdom and Singapore, catalysed by a resurgence in patient autonomy.  Beyond the doctor-patient relationship and patient autonomy, medical practice is undergoing a seismic shift with the growth of corporate medicine and new innovations, especially in the field of genetic medicine.  These paradigm shifts in medical practice introduce different constraints, expectations and underlying values affecting the form and substance of the core elements of duty, standard and damage.  For example, while loss of autonomy continues to be rejected as actionable damage, it has reshaped the rules on damage.  In a ground-breaking judgment involving an IVF mix-up baby, the Singapore Court of Appeal, while denying the upkeep costs of the child, recognised a new category of actionable damage, namely loss of genetic affinity, in order to vindicate the appellant’s loss of autonomy (ACB v Thomson Medical Pte Ltd[2017] 1 SLR 918).  Rapid developments in genetic medicine introduce new questions about the scope of the duty of care, raising questions as to whether these developments should be left to the courts or the legislature. Negligence is, and always has been, an arena of judicial legislation.  The cases highlight that the distinction between substance and form in the tort of negligence is at once both illusory and necessary: illusory because the “form” in negligence has always been dictated by “substance”; and necessary because it creates a dialogic tension that helps judges develop the law incrementally and transparently.

Craig Purshouse (Liverpool), ‘The Form and Substance of the Breach Element of Negligence: A Utilitarian Explanation’

  • In an important article, Goudkamp and Murphy argued that universal theories of tort law face ‘significant problems of fit’ and highlighted five particularly recalcitrant areas of tort law that universal theories struggle to explain. One of these was the breach element of the action in negligence. Building upon theoretical arguments that I have made elsewhere, this paper will counter Goudkamp and Murphy’s claim by demonstrating that the weaknesses in other universal theories of tort law do not apply to utilitarianism and that there may be a utilitarian explanation for the breach element of negligence. To do this I will rely upon a version of utilitarianism proposed by RM Hare that distinguishes between two levels of utilitarian thinking. These two levels of thinking, I will explain, are broadly analogous to the formof legal rules and the substance of legal rules. I will argue that even if aspects of the formof the breach action of negligence might not appearto be utilitarian in nature, the substanceof this part of the law can be explained in utilitarian terms. In making this argument, this paper will also counter arguments made by Beever in a recent article that the utility is not, and should not, be considered when determining breach.


Plenary 2.2

Professor Matthew Harding (Melbourne), ‘Trusts and Purposes’


Drinks and light meal, first floor