Published Papers by Andrew Summers
Judges often invoke ‘common sense’ when deciding questions of legal causation. I draw on empirica... more Judges often invoke ‘common sense’ when deciding questions of legal causation. I draw on empirical evidence to refine the common-sense theory of legal causation developed by Hart and Honoré in Causation in the Law. I show that the two main common-sense principles that Hart and Honoré identified are empirically well founded; I also show how experimental research into causal selection can be used to specify these principles with greater precision than before. This exploratory approach can provide legal scholars with a plausible new set of hypotheses to use in re-examining the decided cases on legal causation. If correct, the new common-sense theory that I develop has important implications not only for debates within legal scholarship, but also for judicial practice on issues of legal causation across both criminal and private law.
Lloyd's Maritime & Commercial Law Quarterly, 2018
This article examines mitigation and the causation of benefits in the assessment of damages for b... more This article examines mitigation and the causation of benefits in the assessment of damages for breach of contract, following the UK Supreme Court's decision in The New Flamenco. It clarifies the meaning and scope of "speculation" reasoning, according to which a benefit (or harm) is said to be ignored in the assessment of damages where it derived from a "commercial risk" undertaken by the claimant. The authors argue that speculation reasoning properly applies where the claimant made a choice not to take steps that would have put it as nearly as possible in the same position as if the contract had been performed. They conclude that the correctness of the decision in The New Flamenco thus turns on whether the shipowners had such a choice, for example, to rehire the vessel under a series of shorter charters, instead of putting it up for sale.
Lloyd's Maritime & Commercial Law Quarterly, 2017
The article examines several unresolved issues in the law on penalties, following the UK Supreme ... more The article examines several unresolved issues in the law on penalties, following the UK Supreme Court’s restatement of the penalties rule in Makdessi v Cavendish Square Holdings. The discussion is divided into three main parts, concerning: the jurisdiction (or scope) of the rule; the test for the validity of impugned clauses; and the effect of the rule. The central argument is that, although the court’s decision to limit the rule’s application at both the jurisdiction and validity stages will increase parties’ certainty that their clauses will be enforced, the restatement leaves the law itself uncertain in several key respects.
Virgo & Worthington (eds), Commercial Remedies: Resolving Controversies (CUP, 2017)
Where a party repudiating a contract refuses to cooperate with further performance by the innocen... more Where a party repudiating a contract refuses to cooperate with further performance by the innocent party, is the contract automatically terminated, or is the innocent party merely prevented from earning the agreed sum? The recent decision in Société Générale v Geys has renewed this old controversy. In a forceful dissenting judgment, Lord Sumption argued in favour of automatic termination, relying on Lord Reid’s comments in the famous case of White & Carter v McGregor. The majority of the Supreme Court instead treated cooperation as a practical limit on recovery of the agreed sum. This chapter sides against Lord Sumption’s automatic termination approach, but acknowledges that the majority’s view leaves one difficult problem
unresolved.
The first section of this chapter describes the cooperation limitation in outline, starting with the dictum of Lord Reid in White & Carter and considering its application in Geys. The second section assesses and rejects the arguments for regarding cooperation as a limitation on the innocent party’s right to affirm the contract. The third section puts forward the argument that cooperation instead provides a practical limitation on the capacity of the innocent party to earn the agreed sum, and shows why this means that the limitation is not universally applicable. The final section acknowledges that the approach of the majority in Geys leaves a difficult problem concerning the content of the wage-work bargain in contracts of employment.
Law Quarterly Review, 2014
We argue that most of the work supposedly done by the date of assessment rule is really done by m... more We argue that most of the work supposedly done by the date of assessment rule is really done by mitigation. The law of damages does not require judges to pick a date on a timeline between breach and trial, but in order to understand why it can sometimes look like this, we need a better understanding of the mitigation rule. Mitigation requires damages to be assessed as if the claimant acted reasonably, if in fact it did not. Where there is an available market it is reasonable to expect the claimant to have resort to it, often shortly after the date of breach. However, this should not disguise the fact that the underlying rule is mitigation. The language of “date of assessment” is just convenient (and sometimes inconvenient) shorthand to describe the outcome once the mitigation rule has been applied.
Lloyd's Maritime & Commercial Law Quarterly, 2012
This article revisits the landmark decision of the House of Lords in British Westinghouse, one hu... more This article revisits the landmark decision of the House of Lords in British Westinghouse, one hundred years on. It highlights some of the uncertainties that still attend the doctrine of mitigation and situates the case among more recent decisions in the law of damages. It is argued that, contrary to conventional understanding, it is not necessary or plausible to explain British Westinghouse as an application of the rule that “claimants cannot recover for an avoided loss”. Instead, the case merely exemplifies the rule that benefits resulting from reasonable conduct in mitigation are taken into account in the assessment of damages.
Conference Papers by Andrew Summers
The doctrine of contractual estoppel enables parties to agree 'facts' that they both know to be f... more The doctrine of contractual estoppel enables parties to agree 'facts' that they both know to be false, thereby creating a contractual basis for subsequent disputes. This paper examines the scope of the party autonomy justification most commonly put forward to demand judicial recognition of these 'agreed basis' clauses. It is argued that agreed basis clauses are best understood not as imposing obligations on the parties themselves, but instead as giving directions to the court. This characterisation recasts the party autonomy justification in a new light, but it is not a knockout blow. Rather than relying on 'freedom of contract' as it applies to the parties' primary obligations, the roots of the party autonomy justification for agreed basis clauses can instead be found in the principles that underpin the adversarial system of civil procedure.
In the course of conversion from Rome Convention to Rome I Regulation, the European legislature h... more In the course of conversion from Rome Convention to Rome I Regulation, the European legislature has (inadvertently or otherwise) offered the European Court of Justice a platform for reinterpretation of the Article 4 ‘escape clause’. Given the crucial commercial relevance of determining a contract’s governing law, and the ambiguities that a purely textual analysis cannot resolve, it will not be long before litigation arises to reassess the Court’s recent decision in ICF v Balkenende. This dissertation aims to draw out the various factors that may bear on the ECJ’s interpretation of Article 4(3), examining them in light of the Community’s broader approach to private international law.
This paper examines the relationship between contributory negligence and mitigation, focusing on ... more This paper examines the relationship between contributory negligence and mitigation, focusing on three points of comparison: the doctrines' temporal application; the standards of conduct to which they apply; and their legal effects. It is argued that contributory negligence and mitigation can both apply to the claimant's post-breach conduct; however, their legal effects are mutually inconsistent because they represent opposing models of causal responsibility for harm. The two doctrines cannot be applied cumulatively in relation to the same conduct; it is necessary to choose between them. The paper considers whether, in light of the Law Reform (Contributory Negligence) Act 1945, the doctrine of contributory negligence must displace the application of mitigation.
Working Papers by Andrew Summers
Papers by Andrew Summers
Defences in Unjust Enrichment
In our first collection, on tort law defences, we observed that defences are rarely discussed in ... more In our first collection, on tort law defences, we observed that defences are rarely discussed in the theoretical literature, citing J Oberdiek (ed), Philosophical Foundations of the Law of Torts (Oxford, Oxford University Press, 2014) as an illustration. In a similar vein, there are no chapters on defences in R Chambers, C Mitchell, and J Penner (eds), Philosophical Foundations of the Law of Unjust Enrichment (Oxford, Oxford University Press, 2009). 2 Eg, Ross Grantham and Charles Rickett write: 'The integration of defences into the normative justification for liability is something that has been overlooked in most areas of the private law': R Grantham and C Rickett, 'A Normative Account of Defences to Restitutionary Liability' (2008) 67 Cambridge Law Journal 92, 103 n 57. Similarly, Graham Virgo observes: 'In the field of private law, much work has been done to describe, explain and rationalise different causes of action. Whilst some excellent work has also been done as regards the analysis of specific defences, notably change of position and passing on as defences to claims in unjust enrichment, surprisingly little work has been done to analyse defences in private law more generally':
This book is the third in a series of essay collections on defences in private law. It addresses ... more This book is the third in a series of essay collections on defences in private law. It addresses defences to liability arising in contract. The essays range from those adopting a predominantly black-letter approach to others that examine the law from a more theoretical or historical perspective. Some essays focus on individual defences, while others are concerned with the links between defences, or with how defences relate to the structure of contract law generally. One goal of the book is to determine what light can be shed on contract law doctrines by analysing them through the lens of defences. The contributors – judges and academics – are all leading jurists. The essays are addressed to all of the major common law jurisdictions.
Lloyd's Maritime and Commercial Law Quarterly, 2017
The article examines several unresolved issues in the law on penalties, following the UK Supreme ... more The article examines several unresolved issues in the law on penalties, following the UK Supreme Court’s restatement of the penalties rule in Makdessi v Cavendish Square Holding [2015] UKSC 67. The discussion is divided into three main sections, concerning: the jurisdiction (or scope) of the rule; the test for the validity of impugned clauses; and the effect of the rule. The central argument is that although the court’s decision to limit the rule’s application at both the jurisdiction and validity stages will increase parties’ certainty that their clauses will be enforced, the restatement leaves the law itself uncertain in several key respects.
In this paper, I examine the role of a wealth tax in the context of the UK's existing taxes on we... more In this paper, I examine the role of a wealth tax in the context of the UK's existing taxes on wealth. First, I discuss several ways in which the UK could be said to tax wealth already, and I set out two possible directions for reforming these taxes, highlighting policies that are merited under either approach. Second, I consider whether and under what circumstances a broad-based tax on the ownership of wealth-a 'wealth tax'-could be justified instead of or in addition to these reforms. Third, I address how a wealth tax should interact with other taxes, focusing on concerns regarding 'double taxation' and (conversely) proposals for an alternative minimum tax based on wealth. I conclude that there is a large degree of consensus amongst existing proposals to reform our current taxes on wealth, and that most of these reforms would be required whether or not a wealth tax is introduced as well. K E Y W O R D S capital gains tax, comprehensive income tax, income tax, inheritance tax, Mirrlees review, wealth tax
Defences in Tort
This book is the first part of an investigation into defences in private law. The present volume ... more This book is the first part of an investigation into defences in private law. The present volume explores tort law defences. Three further volumes are planned, on unjust enrichment, contract and equity. The chapters that constitute the present volume were delivered at a workshop at All Souls College, Oxford in January 2014. In helping to bring the workshop to fruition, we are grateful, first and foremost, for the support of All Souls College, which provided both the setting for the proceedings and significant financial support. The workshop could not have gone ahead without the further financial assistance of the Oxford Law Faculty and the University of Oxford's Fell Fund. We were also able to call on several members of the Faculty-both administrative and academic-for guidance. Discussions at the workshop were greatly enriched by the contributions of several observers, including Lord Hoffmann, Timothy Endicott and John Gardner and, on behalf of the Law Commission, Sir David Lloyd-Jones and David Hertzell. Finally, Anna Kim's patience and efficiency helped immeasurably in the lead up to the workshop. For their assistance in helping to turn the workshop papers into the chapters that feature in this volume, we are grateful to Jodi Gardner, Elizabeth Houghton, Krishnaprasad Kizhakkevalappil, Niranjan Venkatesan and Binesh Hass. We are indebted to Hart Publishing for their editorial assistance, and in particular to Richard Hart for the characteristic enthusiasm and professionalism with which he embraced the project as a whole. Finally, we are grateful to Lord Hoffmann for generously agreeing to write the Foreword.
Oxford Journal of Legal Studies, 2018
Judges often invoke 'common sense' when deciding questions of legal causation. I draw on recent w... more Judges often invoke 'common sense' when deciding questions of legal causation. I draw on recent work in experimental psychology to refine the commonsense theory of legal causation developed by Hart and Honoré in Causation in the Law. I show that the two main principles of abnormality and choice that Hart and Honoré identified are empirically well-founded; I also show how experimental studies into causal selection can be used to specify these principles with greater precision than before. This approach can help provide legal scholars with a plausible new set of hypotheses to use in reexamining the decided cases on legal causation. If correct, the new commonsense theory that I develop has important implications not only for debates within legal scholarship, but also for judicial practice on issues of legal causation in criminal and private law.
1. Introduction, Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith Part I: Theoretical Pers... more 1. Introduction, Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith Part I: Theoretical Perspectives 2. Historical account of defences, David Ibbetson 3. John Goldberg 4. Obligations, liabilities and defences, Stephen Smith 5. Balancing defences, Roderick Bagshaw 6. Defences and strict liability, Richard Epstein 7. Comparison of tort and criminal law defences, George Fletcher 8. Justifications and excuses, Graham Virgo Part II: Specific Defences 9. Waiver, Robert Stevens 10. Intervening causation, Jane Stapleton 11. Statutory authority, Donal Nolan 12. Intoxication, James Goudkamp 13. Contractual exclusions, Frederick Wilmot-Smith 14. Limitation, Andrew Burrows 15. Bona fide purchase, James Edelman 16. Collateral benefits, Charles Mitchell 17. Mitigation and contributory negligence, Andrew Dyson 18. Barbara McDonald
When valuing goods, the cost of repairs, or assets purchased through negligent advice, it is comm... more When valuing goods, the cost of repairs, or assets purchased through negligent advice, it is common to ask “what is the date of assessment?” Judges usually start with the proposition that “as a general rule in English law damages for tort or for breach of contract are assessed as at the date of the breach”. This so-called “breach date rule” is subject to the caveat that it will not be applied “mechanistically” and will be departed from where necessary to reflect the overriding compensatory principle. Over time the rule has spawned a “growing list of exceptions”. It is still thought to be unclear how much of the breach date rule survives after The Golden Victory. We argue that most of the work supposedly done by the date of assessment rule is really done by mitigation. The law of damages does not require judges to pick a date on a timeline between breach and trial, but in order to understand why it can sometimes look like this, we need a better understanding of the mitigation rule. M...
Journal of Social Policy
Policymakers are liable to ‘treasure what is measured’ and overlook phenomena that are not. In an... more Policymakers are liable to ‘treasure what is measured’ and overlook phenomena that are not. In an era of increased reliance on administrative data, existing policies also often determine what is measured in the first place. We explore this two-way interaction between measurement and policy in the context of the investment incomes and capital gains that are missing from the UK’s official income statistics. We show that these ‘missing incomes’ change the established picture of economic inequality over the past decade, revealing rising top income shares during the period of austerity. The underestimation of these forms of income in official statistics has hidden the impact of tax policies that disproportionately benefit the wealthiest. We urge a renewed focus on how policy affects and is affected by measurement.
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Published Papers by Andrew Summers
unresolved.
The first section of this chapter describes the cooperation limitation in outline, starting with the dictum of Lord Reid in White & Carter and considering its application in Geys. The second section assesses and rejects the arguments for regarding cooperation as a limitation on the innocent party’s right to affirm the contract. The third section puts forward the argument that cooperation instead provides a practical limitation on the capacity of the innocent party to earn the agreed sum, and shows why this means that the limitation is not universally applicable. The final section acknowledges that the approach of the majority in Geys leaves a difficult problem concerning the content of the wage-work bargain in contracts of employment.
Conference Papers by Andrew Summers
Working Papers by Andrew Summers
Papers by Andrew Summers
unresolved.
The first section of this chapter describes the cooperation limitation in outline, starting with the dictum of Lord Reid in White & Carter and considering its application in Geys. The second section assesses and rejects the arguments for regarding cooperation as a limitation on the innocent party’s right to affirm the contract. The third section puts forward the argument that cooperation instead provides a practical limitation on the capacity of the innocent party to earn the agreed sum, and shows why this means that the limitation is not universally applicable. The final section acknowledges that the approach of the majority in Geys leaves a difficult problem concerning the content of the wage-work bargain in contracts of employment.