Date: Thu, 15 Nov 2007 09:18

From: Robert Stevens

Subject: Secondary Liability in Private Law

Ignoring Sales, Carty and the standard textbooks:

D Cooper, Secondary Liability for Civil Wrongs (Unpublished Cambridge PhD thesis 1995) This is the most thorough full scale treatment I have read. I don't agree with the central argument (I don't think there is any principle of secondary liability equivalent to that found in the criminal law) but it is very thorough and well done. Unfortunately, it pre-dates Credit Lyonnais v ECGD [2000] 1 AC 486 (HL) which undermines the central thesis. Without going to Cambridge and reading it, I don't know how to get access to a copy.

P Atiyah, Vicarious Liability (1967) is still very good. He deals with the central cases of authorising, ratifying, procuring and conspiring. Out of date of course, but sound.

Charles Mitchell has written some very important work, mainly on the equity side. His chapter 'Assistance' in P Birks and A Pretto Breach of Trust (2002) 179 is the best account of dishonest assistance. See also S Elliott and C Mitchell 'Remedies for Dishonest Assistance' (2004) 67 MLR 16. Again, I don't agree with these authors that dishonest assistance is a form of secondary liability but the relevant caselaw, and why it matters whether the liability of the assistant is primary or secondary, is well brought out.

Tony Weir has, as usual, some entertaining and illuminating things to say in Economic Torts (1997), 37 but the most important argument of that work cannot be correct in the light of OBG v Allan.

A Simester and W Chan 'Inducing Breach of Contract: One tort or two?' [2004] CLJ 132 is good on the theoretical basis for Lumley v Gye, I think.

A bit Anglocentric I fear. If anyone has some further suggestions I'd like to have them too.

Robert Stevens
Professor of Commercial Law
University College London

Quoting Jason Neyers:

Dear Colleagues:

What would you consider to be the leading discussions on secondary liability in private law? I am especially looking for good theoretical discussions as to its basis, its limits, etc. I know that Robert Stevens deals with this in his book (which I am still waiting for) and of the work of Hazel Carty and Phillip Sales. Any other suggestions?

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