‘This is the peer reviewed version of the following article: Eric Descheemaeker, “Tort Law Defences: A Defence of Conventionalism”, (2014) 77(3) Modern Law Review 493, which has been published in final form at http://onlinelibrary.wiley.com/doi/10.1111/1468-2230.12076/abstract.  This article may be used for non-commercial purposes in accordance With Wiley Terms and Conditions for self-archiving.’ 

Tort Law Defences: A Defence of Conventionalism

Eric Descheemaeker(Edinburgh)

James Goudkamp, Tort Law Defences, Oxford: Hart Publishing, 2013, 270 pp, hb £60.00

We live in an age where orthodoxy has become suspect. Obligations lawyers from the entire English-speaking world can be persuaded to gather at a conference dedicated to its being ‘challenged’.1 When one remembers that the word means ‘right thinking’, this is rather extraordinary: one could be forgiven for assuming that right thinking, far from being attacked, should be encouraged. This must mean that the word is taken in a looser sense, presumably as a synonym of ‘traditional thinking’ or ‘convention’. Now it is absolutely true that conventional thinking may be wrong; it might be heterodox, and indeed it is one of the main tasks of legal academia to constantly examine and re-examine received wisdom. But we must also be careful not to assume, perhaps unconsciously in an environment which institutionally values ‘paradigm shifts’, that new thinking is necessarily better than the old: it may or may not be. While truth is the supreme value, meaning that no one should be afraid to discard previously accepted ideas which are shown to be incorrect, stability – all things being equal – is also a desirable good, for one cannot build safely on ground that is constantly moving.

It is against this background that the present review article seeks to defend a view regarding defences in the law of tort which has been described in an important recent book, James Goudkamp’s Tort Law Defences (Hart 2013), as ‘conventionalism’ – by contrast with the author’s views, described as ‘radical’.2 Indeed, the conventional view is so conventional that it has not been given much thought at all by tort lawyers, for whom the prospect of conceptualising defences is likely to appear as exciting as crumbs in a tin box. Whether or not we end up agreeing with its main theses, one of the greatest merits of Dr Goudkamp’s book is arguably that it forces everyone with a serious interest in tort (and more widely in private law) to think harder about the topic. While most tort lawyers tend to regard defences as a collection of appendices to various causes of action, there is no denying that they are of considerable significance, both theoretically and practically. It follows that anyone critical of the author’s views should probably start by sharing in a collective act of

1 Sixth Biennial Conference on the Law of Obligations: Challenging Orthodoxy (Western University, 17-20 July 2012).2 To avoid the constant repetition of the word ‘radical’, I also use the word ‘revisionist’ to qualify the author’s views. This is not meant to be derogatory in the slightest.

1

repentance for the fact that this is the first serious study devoted to the subject in the common-law world.

This review article focuses on two – intertwined but analytically distinct – issues which I regard as foundational to the book, in that jointly they make up the ‘radical’ understanding of defences set forth in the study. These are (i) the idea that a defence is defined as ‘a rule that relieves the defendant of liability even though all the elements of the tort in which the claimant sues are present’;3 and (ii) the idea that defences are distinct from torts, rather than part of the definition of the causes of action. These views are misguided in my judgement, even though they do raise important questions that we all need to examine carefully, and provide much ammunition for us to do so. The first two parts of this article examine the author’s arguments in respect of both questions, contrasting them with the conventional approach, and argue that there are least four good reasons to retain the traditional thinking. The third part changes tack and seeks to highlight how the author’s attempt to consider defences as a whole is, despite the above criticisms, extremely precious – for a reason on which the author himself does not rely, namely, that it paves the way for a reclassification of defences which would be highly beneficial for the rationality and accountability of the law of torts.

‘RADICALISM’ AND ‘CONVENTIONALISM’

The first two sections of this part are concerned with the author’s professed ‘radicalism’ in respect of tort law defences, and highlight those of his positions which I regard as most significant: namely, as explained, his definition of a defence and the main consequence this definition has on the relationship of defences with torts.4 This part concludes by articulating the conventional understanding of defences on both points.

The Definition of a Defence

The Difficulty of DefinitionsWhat is a defence? This question if of paramount importance in the present context; indeed we cannot hope to go anywhere until it has been settled. But anyone interested in definitions (which ought to be everyone caring about right thinking) will know how difficult an art this is: omnis definitio periculosa est, not simply, as Javolenus tells us, because it is in danger of engraving in marble an understanding that misses the mark;5 but more fundamentally because we struggle to know where to find the authority on which basis we can pass a judgement.

Who is to decide what a defence is? Despite the ever-present temptation to assert that a word only means what people make it to mean, to the effect that usage is the only criterion, this cannot possibly be true: everyone, even the keenest supporter 3 James Goudkamp, Tort Law Defences (Oxford: Hart Publishing, 2013), 7 (hereinafter TLD). 4 What ‘torts’ and the ‘law of torts’ are cannot be discussed in the present context; for the purpose of a discussion of defences, it is enough to accept that ‘Tort is what is in the tort books’ (Tony Weir, An Introduction to Tort Law (2nd ed., Oxford: OUP, 2006), ix). My own views, should they be of interest, are set out in Eric Descheemaeker, The Division of Wrongs: A Historical Comparative Study (Oxford: OUP, 2009), ch. 2.5 ‘Omnis definitio in iure civili periculosa est: parum est enim, ut non subverti posset’: ‘Every definition in civil law is dangerous; for it is rare for the possibility not to exist of its being overthrown’ (Javolenus, 11 Letters; transl. Watson Digest).

2

of unbridled language evolution, will accept that there is such a thing as an incorrect use of a term. A use is incorrect when the person does not intend to convey what is objectively the (or an) appropriate meaning; and while this meaning might ultimately evolve, unless and until it has, any attempt to use the word in a different context should be regarded as inappropriate. The possibility of a wedge existing between usage and what we assert to be the (or a) ‘proper’ meaning of the term has therefore to be right.

The question then becomes how wide this wedge can be, for it is equally obvious that the process of normative refinement of a term can only take us this far. There comes a point where we are driven so far from what people commonly accept that the bystander will have to take the view that the rationaliser ought to carve out a new concept, rather than twist the existing one out of recognition. More fundamentally, the rationaliser needs some authority for his process of refinement and exclusion of ‘wrong’ usage. This could be an appeal to – for instance – history, logic, the degree of fit with related concepts, or etymology (the latter being especially tempting because it seems to give us ‘the right’ answer, but it is evidently dangerous given the depth of assumptions it makes about underlying rationality). At any rate, the authority has to come from outside usage itself, for out of an ‘is’ no ‘ought’ can come.

Defining DefencesTurning to the subject-matter of defences, Dr Goudkamp starts his definitional quest by observing that writers have been using the word defence in a ‘slapdash’ way.6 This is observably true and most of us must plead guilty as charged. ‘Defence’ is a word that everyone interested in tort (though not only in tort) is bound to use with great regularity; yet it is remarkable that even those with a strong interest in tort theory and taxonomy are unlikely to have given the underlying concept more than fleeting attention.7 No-one can seriously disagree with the author when he asserts at the outset of his study that ‘the neglect of defences’ is one of the ‘most striking features of the tort law literature’.8

His second step is to identify clusters of usage: this is the descriptive stage, rather similar to that of a dictionary, content to report its observations and put some order in them. Here, the author identifies five understandings of defences:

(i) defences as ‘denials of elements of the tort in which the claimant sues’;(ii) defences as ‘liability-defeating rules that are external to the elements of the

claimant’s action’;(iii) defences as ‘principles that diminish the claimant’s relief’;(iv) defences as ‘rules in respect of which the defendant carries the onus of

proof’; and lastly

6 TLD, 1, 64.7 Particularly noteworthy in this respect is the fact that Robert Stevens’s highly influential attempt to reconceptualise the entirety of the law of torts says nothing about defences per se (Robert Stevens, Torts and Rights (Oxford: OUP, 2007)). There is no chapter or even sub-heading dedicated to the topic in the book, not even an index entry. The materials that one would typically classify as defence-related are found primarily under three headings: ‘waiver’ in the context of the definition of rights (ch. 1.I), ‘qualified privilege’ and ‘contributory fault’ under fault (ch. 5.E and 5.J), and finally ‘privileges’ in respect of the State (ch. 10.D).8 TLD, 7. On the other hand, there exists a considerable body of literature on defences, contrasted with offences, in the field of criminal law (whose influence on his work Dr Goudkamp happily acknowledges); but it is unclear to what extent tort can rely on it given the differences between civil and criminal wrongs, especially in terms of purpose. For an example of the discrepancy that exists between defences in tort and crime, see Ashley v Chief Constable of Sussex Police [2008] 1 AC 962.

3

(v) defences as ‘the final element of the claimant’s cause of action’.9 The author then proceeds to rule out four of these possible definitions,

essentially on two bases: either that those who use the term in such ways cannot possibly mean what they say, because it leads to consequences they would regard as absurd – e.g. (iv) would lead to describing as a defence the provision that enables defendants to amend their pleadings after service – or because, even though they might quite plausibly mean what they say, such usage leads to other undesirable results – for example (i) obscures the distinction between defences and denials,10 and (iii) that between liability and remedies, both sets of distinctions the author rightly regards as being foundational.

The last stage is to select one as the ‘correct’ definition, in this case (ii), i.e. defences as ‘liability-defeating rules that are external to the elements of the claimant’s action’.11 In other words, for Dr Goudkamp, a defence is a plea in confession and avoidance: the defendant recognises that he has committed a tort (in the sense that all the ‘ingredients’ of liability are made out), yet asserts that he ought not to be held liable because of the existence of a further set of facts making out what the law recognises as a defence. This definition is not reached simply by a process of elimination, for one could not rule out that none of the identified usages would be satisfactory, but also because it ‘facilitates clear thinking’12 about the law of torts, bringing out in particular the distinction between tort and defences (our next point below), considered by the author to be of paramount importance.

It follows that the adopted definition is based mostly on what Dworkin would call ‘justification’, and Dr Goudkamp recognises that its ‘fit’ is less than perfect.13 In particular, it means that the one doctrine which would almost certainly be the most cited if we asked a random sample of lawyers to name ‘a tort law defence’, namely contributory negligence, will be discarded as being concerned with remedies rather than liability.14 While one might object in principle to a line of thinking which rejects a possible definition – (iv) – on the basis of lack of fit, yet goes on to propose one that seems no better and possibly worse in this respect, I will not throw the first stone at the author: in part because, if current use is based on imperfect rationality (as it almost invariably is), something will have to give way in the process of refinement; and in part because I am actually sympathetic, albeit for different reasons,15 with the view that contributory negligence is not ‘properly’ a defence.

9 TLD, 2-5.10 For the author, denials are statements by the defendant to the effect that the requirements of the cause of action (I would say: those ingredients of liability which make up the prima facie wrong and fall on the claimant to prove) are made out. For instance, a defendant who pleads that his hand was grabbed by a third party and used to strike the claimant denies that he has committed the act element of the tort of battery, because the law does not regard involuntary movements as acts (TLD, 48). This is sound – and important – even though Dr Goudkamp is of course right to point out that the distinction can become very difficult to work out in practice. 11 TLD, 5-7.12 TLD, 6.13 On the distinction between fit and justification, see Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), chs. 6-7.14 TLD, 3, 6; James Goudkamp, ‘Rethinking Contributory Negligence’ in Stephen Pitel, Jason Neyers and Erika Chamberlain (eds), Tort Law: Challenging Orthodoxy (Oxford: Hart Publishing, 2013), 309, 336-8.15 I would regard it as a rule of causation.

4

Defences and Burden of PleadingIt is important to highlight a principal consequence of the author’s understanding of defences, which is this: defences are not to be defined, as commonly assumed, by looking at the procedural question of who bears the onus of proof of what. While the author is happy to recognise that the distinction between torts and defences commonly dovetails with the division of pleading between claimant and defendant, this for him is no more than a ‘practice’, which in fact is not ‘universally followed’.16 Indeed, for Dr Goudkamp, the definition of defences is at heart a substantive definition. For the author, strongly influenced by the work of Kenneth Campbell in the field of criminal law,17 the offence – here, the tort – is identified by the fact that there exists ‘a prima facie reason not to perform’ the act.18 It follows that the criteria for identification are extrinsic to the law and find their origin in judgements of a broadly moral nature (the loose term ‘philosophical’ can be used to highlight their extra-legality). However, the argument continues, there can exist stronger counter-reasons why the person engaging in the conduct should nonetheless escape liability: these are defences to the offence. These counter-reasons are of two sorts: they can either pertain to the reasonableness of the defendant’s conduct, explaining why it should be permissible (what the author calls ‘justification defences’, of which examples would be self-defence and responsible journalism),19 or to considerations extrinsic to it, which explain why the defendant should not be liable even though his conduct was irredeemable (‘public policy defences’, such as immunities or limitation bars).20 In neither case is the question of who bears the burden of pleading those countervailing reasons (or their absence) determinative.

It might be helpful to illustrate the logic of reasons and counter-reasons by using the author’s own example of sexual battery. Everyone agrees that an act of sexual penetration performed by the defendant on the claimant is not actionable if the claimant consented to it. The question is whether consent is a defence to the tort of sexual battery or whether lack of consent is factored into the definition of the tort, to the effect that sexual battery is definitionally non-consensual intercourse. For Dr Goudkamp, the answer is the latter, there being no reason to believe, ‘according to our sexual morality’, that any sexual intercourse is prima facie wrongful.21 Because it would be absurd to think that any such intercourse needs to be justified, the wrong has to be defined in such a way as to include lack of consent. Consent is not a defence: without ‘unconsentedness’ there is no wrong to confess and avoid in the first place. To re-emphasise the earlier point, the position would remain the same if for whatever reason the law decided to switch the onus of proof on the defendant, requiring him to prove consent on the claimant’s part.

16 TLD, 47 (also 138-9).17 Kenneth Campbell, ‘Offence and Defence’ in I. H. Dennis (ed,), Criminal Law and Justice: Essays from the W.G. Hart Workshop, 1986 (London: Sweet and Maxwell, 1987), 73.18 TLD, 43. 19 TLD, 76: ‘justifications will be defined simply as defences that relieve the defendant of liability on the basis that he acted reasonably in committing a tort’.20 Ibid: ‘Public policy defences are defences that are insensitive to the rational defensibility of the defendant’s conduct’.21 Ibid. On this point, however, contra Michelle Madden Dempsey and Jonathan Herring, ‘Why Sexual Penetration Requires Justification’, 27 OJLS (2007) 467.

5

Dualism

Such a substantive definition poses considerable challenges in terms of identifying defences, to which we shall return.22 It also has this striking and far-reaching theoretical consequence that, on this understanding, defences will be altogether separate from torts—a view which can be described as ‘dualism’. For the author, this is true not only of what he calls public policy defences but also of justifications based on the defendant’s conduct. Where most people, as explained in the next section, would see the availability of such a defence as an element which prevents a tort from arising, Dr Goudkamp sees it as a way to account for the commission of a tort. As the author puts it, it is ‘crucial to realise that … an act which falls within an offence definition constitutes a wrong even if it attracts a defence’.23 To use a simple example, the defendant who has hit another in self-defence has, on this reading of the law, committed the tort of battery (‘confession’); yet he escapes liability (‘avoidance’) because he had a good reason for acting as he did, which the legal order recognises by granting him the namesake defence.24 Again, The Times really did defame Mr Reynolds, even though it escaped liability because its conduct amounted to responsible journalism.25 In other words, a justification defence does not deny wrongdoing, it explains it.26

Conventionalism

From the assertions of the radicals, as fleshed out above, we can deduce what the non-radicals argue, those which Dr Goudkamp calls the ‘conventionalists’.27 Now it is likely that no-one would want to define themselves as a conventionalist, not simply because the label is unattractive, but because the positions they are supposed to adopt are likely to be regarded as so basic as not to be worthy of any positive engagement. Though there are exceptions,28 most people are conventionalist by default and might only become aware of it when challenged in their position by ‘radicals’ or others. In spite of this, the author is undoubtedly correct to my mind when he ascribes the following views to prevailing thinking.

Contra Dr Goudkamp’s theses, conventionalists would assert two things. First, that defences are, within the ‘ingredients’ of tortious liability (i.e. the elements required for the success of the action, whether they be defined positively – by their presence – or negatively – by their absence), those which fall on the defendant to prove:29 in other words, the definition is a procedural one.30 Second, when it comes at

22 Below, ‘Practical Under-determination’.23 TLD, 43.24 TLD, 106-7.25 Reynolds v Times Newspapers Ltd [2001] 2 AC 127; cf. TLD, 118-9 and below, text to n. 30.26 TLD, 76.27 TLD, 77.28 See arguments by Peter Cane, Arthur Ripstein and Jules Coleman cited in TLD, 76-7.29 In the context of English law, this is apparent from a cursory glance at tort textbooks, though again it is remarkable that it typically remains implicit.30 This corresponds roughly to the fourth meaning identified by Dr Goudkamp (above, ‘Defining Defences’), though it is also consonant with (v). Of course, one would want to specify that we are only concerned with liability-defining rules, so as to avoid falling foul of the author’s criticism.

6

least to justification defences – which stand at the heart of the category of defences – their existence prevents the relevant tort from arising: that it to say, it reverses the provisional finding of liability brought about by the claimant successfully ticking all the boxes on his ‘to-prove list’(thereby making out the prima facie tort). To borrow the terminology used in the book, these defences do not excuse wrongs, they deny it has happened: in Arthur Ripstein’s words, ‘[j]ustifications exculpate by showing that an apparently wrongful act was not wrongful’. It seems fair to say that this is how most tort scholars would think about it, if only by default.

FOUR PROBLEMS WITH RADICALISM

We are thus presented with two views of defences. To the sceptic, tempted to dismiss the matter as being a dispute over how many angels can dance on the head of a pin, it must be emphasised that the argument goes to the heart of what constitutes a wrong. It is therefore of considerable importance both theoretically and, in a more indirect way, practically.

How, then, are we going to decide between the two? The choice, it would seem, depends on arguments pertaining to what we could loosely describe as ‘fit’ and ‘justification’ (in Dworkin’s sense).31 The present part examines them, and argues that there are at least four reasons not to follow Dr Goudkamp’s revisionist attempt to reconceptualise defences. Given that the onus of conviction is clearly on those who attempt to challenge the consensus (whether it be orthodox or heterodox), and that conventionalism does not make similar claims to underlying rationality which could be defended for their own sake, this seems the best way to defend – indirectly – traditional thinking.

Lack of Positive Arguments

Why hold that a tort is committed even if the existence of a further set of facts, making out a defence, directs the law to return a finding of non-liability? The whole radical view is premised on accepting the underlying proposition as true of all defences (including justifications, which are the crux); yet strikingly the only two reasons the author provides in its support are negative, that is to say, they are criticisms of conventionalism – again, a minimalist position that makes no parallel claims to rationality – rather than evidence for the radical view. At any rate, neither of them is, to my mind, convincing.

Legal Wrongs and Moral WrongsStarting with the reason mentioned second, the author argues that conventionalism is unable to ‘easily explain why adverse normative consequences often obtain in respect of justified acts’, giving the following example:

Suppose that D is murderously attacked by C, an upstanding citizen who has temporarily gone insane because an enemy of his injected him against his will with a powerful hallucinogenic drug. D can save himself only by hitting C with a hammer that he happens to be holding. D strikes C with the hammer, causing C to suffer serious injury. Although C is an ‘innocent agressor’, D is surely justified in hitting him (and would not be liable in tort to him). But there are several adverse normative consequences that D would nevertheless incur. For example, D

31 Above, n. 11.

7

would be morally obliged to apologise to C. D should also regret that he needed to injure C in order to save himself.32

There does not appear to be much merit to this argument. First of all, on my own intuitive grasp of moral judgements, I am not convinced that D should indeed feel sorry or apologise – if anything it would be for C to incur these ‘adverse normative consequences’ once he has recovered his sanity. More importantly, even if we grant the starting point, Dr Goudkamp answers his own difficulty by pointing out that the duty would be moral, not legal. Now, there is nothing problematic with holding that different spheres of normativity have different scopes of application; in fact, if they did not, it is difficult to see how they could remain separate. That we ought to feel sorry and apologise for events which are moral wrongs, whether or not they are also legal wrongs, is a trite proposition that presumably no-one would want to challenge. It does not in any follow that this is because they are in actual fact legal wrongs which have been justified.33

Justifying (Prima Facie) WrongsThe other reason is that, for the author, ‘the conventional view leads to the startling conclusion that wrongs … cannot be justified’ – yet ‘if anything calls for justification, it is wrongs’.34 Whether cast as an attack on conventionalism, as Dr Goudkamp does, or recast as a defence of radicalism, this holds no intuitive plausibility to my mind. Is it really the case, to use one example, that a journalist who carefully reports what he believes to be the true about an important matter concerning a public figure needs to somehow find a justification for what he did, if the stated facts happen to cause his readers to think less well of said figure? That he has done nothing which triggers liability is common ground; but to say that he committed a wrong, whether legal or simply moral, which he needs to confess and avoid, does not seem right. If anything, I would be tempted to say that what he did was praiseworthy (and indeed this would have been the case also in the pre-Reynolds age, where he would nonetheless have incurred liability in defamation should he have been unable to prove the truth of the incriminating matter).35 Naturally, this is only one example and there are other situations where Dr Goudkamp’s approach might make in fact sense of our moral intuitions; but one successful counter-example would be enough to disprove the general applicability of the radical view.

Practical Under-determination

The second argument is of a practical nature and concerns the identification of defences. It will be recalled that, if we accept the author’s argument, what is going to tell us what is tort (and therefore what is defence) is not the allocation of onus of proof but whether we can find good reasons for inaction, i.e. for the law prima facie to

32 TLD, 79 (footnotes omitted). 33 Conversely, it is easy to think of legal wrongs for which the author should feel no need to apologise or repent, for instance torts of strict liability which really occurred without any subjective fault on the wrongdoer’s part. 34 TLD, 78-9.35 Perhaps another way of phrasing the same point about the lack of justification would be to say that, on such a line of thinking, it would be every bit as possible – indeed, plausible – to argue that any infliction of harm on another is wrongful, yet the law provides a general defence in the form of the statement ‘but what I did was not a recognised tort’. This would cohere perfectly with Dr Goudkamp’s position, but lead to results which would twist the law of torts out of any recognition.

8

prohibit the conduct in question.36 The question thus immediately arises: where are we going to find these reasons? Two possible answers, between which the author does not choose, would be common morality and the oracles of the law (which, on this view, are meant to apply or translate pre-existing ‘philosophical’ judgements). In other words, the answer can come from the law itself, by looking at how it defines the cause of action – in a substantive, not procedural way – or it can come from outside the law, the assumption being that the two sets of rules will not conflict. This might answer the question in theory; but in practice it does not look like either source, or even their combination, is going to get us even close to answering the question with a sufficient degree of clarity. Given that, for radicals, knowing whether a particular rule belongs to the side of torts or that of defences is the most foundational question – determining in particular whether it belongs in the law of torts in the first place – this is an extremely significant problem.

To illustrate this uncertainty, let us take the example of the role of truth in the law of defamation, which is a good test case because procedurally it can plausibly be placed on either side of the divide (i.e. it could either be for the defendant to prove truth or for the claimant to prove untruth, as evidenced by the fact that both options have been resorted to within the common-law tradition). Ignoring for simplicity’s sake a small statutory exception,37 it is not doubted that in English law no liability will attach to the publication of statements which are defamatory –38 in the sense that they are likely to cause others to think less well of the claimant – yet are true. But, for the dualist (revisionist),39 is truth a defence to the wrong of defamation, or is untruth part of its definition? If we look first at what was described as the ‘oracles of the law’, examining the way they define the cause of action in defamation and whether this includes an element of untruth, it will not be difficult to find conflicting statements. For instance, Millet LJ in Berkoff v Burchill defined defamation as ‘an attack on reputation, that is on a man’s standing in the world’:40 clearly this understands reputation in the wider sense of fama (i.e. whether deserved or not) and says nothing about the fact that an attack might be justified or excused, for example by the truth of the incrimination: according to Dr Goudkamp, this must mean that courts consider truth to be a defence.

Yet in Parmiter v Coupland, Parke B had defined libel as a ‘publication, without justification or lawful excuse, which is calculated to injure the reputation of another’:41 here, the element of untruth is transparently incorporated into the definition of the cause of action, truth providing the most clearly established ‘justification or lawful excuse’ to the commission of the (prima facie) wrong. For the conventionalist, this apparent contradiction is hardly a problem: truth is self-evidently a defence in the procedural sense; and the seemingly conflicting statements of the law can be easily reconciled on the assumption that the phrase ‘subject to defences’ – still in the procedural sense of the term – is to be implied whenever it is not explicitly mentioned. Yet, on the radical view, it becomes crucial to tease out what courts meant, even though they probably never anticipated the fact that their attempted

36 ‘Inaction’ is used in a loose sense here, for some torts can be committed by omission.37 Defamation Act 1974, s 8(5) concerning the malicious disclosure of spent convictions. The existence of this exception does not alter the substance of the argument. 38 Or ‘prima facie defamatory’: there can be reasonable disagreement over terminology here. 39 Above, ‘Dualism’.40 [1997] EMLR 139, 152.41 (1840) 6 M&W 105, 108 (emphasis added).

9

definitions of defamation (or any other cause of action) would be read with a view to answering such a question.

The second avenue open to us is our intuitions of common morality as conveyed by ordinary language. On this extra legem basis, are defamation and truth mutually exclusive? Again, it seems clear that no consensus will be reached on this question. If asked to answer, I would probably say that, according to common language, defamation is the taking away of reputation (fama) and reputation can be wholly undeserved; thus, regardless of what English law might happen to say in its current form, analytically a true statement can be defamatory. But others will disagree. If I may narrate an anecdote, I recall mentioning to my late supervisor that the journal which was about to publish one of my articles had asked me to remove, or tone down, a statement to the effect that, in the United States, even distinguished law professors might have no understanding that contract and tort are related as two branches of the law of obligations. This, the editor had informed me, was verging on defamation. Before I could finish the sentence, Peter Birks had shaken his head gravely and interjected: ‘It’s not defamatory. It’s true’. For him, it was beyond doubt that what was true could definitionally not be defamatory: defamation and truth were mutually exclusive. Thus it seems that, whether we look to the law itself or to the moral intuitions to which its oracles are supposed to give effect, we have no solid basis for deciding one way or the other. Naturally this is not to suggest that the same degree of uncertainty will arise for all defences; but that it might be the case for even some of them is a considerable practical difficulty for the radicals, casting doubts on the viability of their enterprise.

Affirmative Answers to Defences

A third reason not to accept Dr Goudkamp’s theses is the existence in English law of ‘defences to defences’, what Roman law called replicationes42 and the author describes as ‘affirmative answers to defences’. A replicatio functions in respect of an exceptio (defence) in exactly the same way as the defence operated vis-à-vis the cause of action (the tort or prima facie tort): by establishing the existence of a further set of facts, the provisional finding concerning liability is reversed. In this case the apparent non-liability of the defendant, brought about by the existence of the defence, is reversed – to the effect that the claimant will, after all, succeed. In theory, this work of refining the exact scope of facts giving rise to liability could go on indeterminately, but in the practice of English law the stage of second-level defences (defences to defences) is the last.

For reasons to be explained shortly, if affirmative answers to defences do exist, this would severely call into question the sustainability of the radicals’ analysis. As we try to determine whether they do, we must be very careful with the language used, as the tension between procedural and substantive definitions becomes even trickier at the stage of replicationes. On a traditional view, which simply looks at who bears the onus of proof of what, it is very clear that English law knows affirmative answers to defences. The best example is probably to be found in the law of defamation with malice and qualified privilege: by establishing the defendant’s malice – whatever exactly this might mean – the claimant ‘qualifies’ the privilege and prevents the prima facie defence from coalescing: privilege is dislodged and the now defenceless defendant finds himself liable for the publication of the defamatory words. 42 Singular ‘replicatio’, whence English ‘reply’.

10

However, the revisionists’ view can only be challenged on their own understanding of the concept. So, do affirmative answers to defences exist for them? Dr Goudkamp remains agnostic on the question,43 but it seems that on his own definition they clearly do. Again, what matters on their substantive approach is no longer the onus of proof but extra-legal considerations: a replicatio would have to be counter-countervailing reasons why the defendant should not have performed the act after all, stronger than the countervailing reasons why he was prima facie allowed to engage in the conduct complained of despite its being a tort.44 (In our instant case, the countervailing reasons would be the special relationship existing between the defendant as the publisher of a defamatory statement and the third-party recipient, while the counter-countervailing reasons would be his malice). These reasons exist, or not, independently of the allocation of burdens of pleading:45 what matters, as explained, is the oracles of the law as they give effect to philosophical considerations. But it is indisputable, as Dr Goudkamp acknowledges, that judges routinely speak of malice as ‘defeating’ qualified privilege (or ‘destroying’ it).46 In the absence of any statements that might be used in support of the contrary view, it is hard to see how the language they use could give a clearer indication of the fact that they do regard affirmative answers to defences as being precisely that: answers to defences, therefore separate from them (as opposed to the non-existence of any counter-countervailing reasons being factored into the definition of the defence itself). It is therefore unclear why the author is not willing to recognise their existence, which seems as indibutable on his substantive definition as they are on a procedural one.

But, if we do accept this point, Dr Goudkamp’s views become all but untenable. Let us take, again, the clear example of the defendant who has published defamatory words to a third party ([prima facie] tort of defamation), within a context that gives rise to a duty/interest relationship with the recipient ([prima facie] defence of qualified privilege), yet was malicious in publishing the statement (replicatio of malice). In the absence of any other relevant factors, it is not doubted that he will be liable. But how is his situation to be analysed? On a conventional view, the defendant has committed a prima facie tort (i.e. all the ingredients of the cause of action to be proved by the claimant are present), and he does not have a defence because his prima facie exceptio was on closer examination shown not to exist: therefore he has effectively committed a tort and will be liable. From the radical perspective, however, we need to accept that (i) the defendant has committed a tort; (ii) the defendant has a defence; (iii) the defendant is liable. Thus it is possible to have a defence yet be liable.This three-pronged statement flies in the teeth of how defences were defined –47 they do not invariably ‘defeat’ liability – and it is hard to see how radicalism can accommodate it.48 When it comes to the revisionists’ dualism, difficulties are if 43 TLD, 34: ‘It is unclear whether tort law recognises affirmative answers to defences’.44 From this definition it would follow that counter-defences can only avail in respect of the justification segment of defences, not the public policy one. This seems correct both descriptively and normatively.45 Thus, it does not matter to the argument whether, in the law of battery, the excessive character of the force used in self-defence has to be proved by the claimant against the defendant relying on that (prima facie) defence, or whether it is for the defendant to prove that his use of force was reasonable – a question on which the law is still undecided, see the cases mentioned in TLD, 32.46 Horrocks v Lowe [1975] AC 135 e.g. at 136, 149, 150, 152; Reynolds (n. 21) e.g. at 187, 194.47 Above, ‘Defining Defences’. 48 Of course, Dr Goudkamp could try to rescue the argument by asserting (contra the clear oracles of the law) that no defence arises in the first place when an affirmative answer succeeds, only an apparent (or prima facie) one: but this amounts to reintroducing, without any warrant, the conventionalist

11

anything even greater. It will be recalled that, on their view, defences are altogether separate from torts;49 logically they should not even be mentioned in tort textbooks, other perhaps than as an acknowledged convenience. But it now turns out that we have legal doctrines which are neither torts nor defences but a tertium quid, closely related to the former but analytically separate: are the dualists really trialists?50

Wrong as a Breach of Duty

There remains a final argument against radicalism, which has to do with the definition of a wrong. It is common to define a tort, or civil wrong, as a breach of duty (or alternatively as the violation of a right).51 The author agrees with this characterisation,52 and so do I – indeed, I would probably go a step further and argue that this is what a wrong is as a matter of analytical necessity.

Naturally one does not have to accept this characterisation in the first place, but if one does it is doubtful whether it can be reconciled with the revisionist understanding of defences. On the dualist view espoused by Dr Goudkamp, a breach of duty (tort) will not be actionable if it is overridden by a defence. This would seem to create an enormous practical problem. The reason is this. Duties, especially in an uncodified legal system like English law, are rarely spelt out ex ante: rather they have to be reconstructed from the available materials, primarily court decisions. That is to say, we know that there was a duty because we observe that courts attach legal consequences to particular events that they describe as wrongs. From the wrong we can move back to the underlying duty. Ontologically, the duty pre-exists its violation; but epistemologically, the breach comes first in the order of our knowledge.

If actionability is synonymous with breach of duty, the process of reconstruction will be simple enough: from the consequences attached by the law to a set of circumstances, we recognise the wrongful event and, by turning it inside out, the underpinning right or duty. But the moment we draw a distinction between breach of duty and actionability, we find ourselves with an enormous practical problem: how are we going to distinguish between a wrong and a non-wrong, in other words between an unactionable breach of duty and a non-breach (and indeed between these two and a situation where there was no pre-existing duty)? If we know in advance what the duty is, this is not difficult; but if we rely on the court’s response to the events, things become much trickier – unless they perform works of supererogation by addressing the question whether a duty was breached over and above the separate question whether the defendant is liable.

It is much more satisfactory to define the duty in such a way that its breach (the wrong) will be at lest prima facie synonymous with actionability. Admittedly, the

analysis one step removed.49 Above, ‘Dualism’.50 The only way of avoiding having to create this third, novel, category would be to factor the counter-defences into the tort itself and argue e.g. that by maliciously publishing the defamatory statement, the defendant has committed a tort which is not open to the defence of qualified privilege. The revisionist view would then hold, but the corollary would be that we would now have two distinct wrongs of defamation differentiated according as whether the defence of qualified privilege – which would no longer warrant the adjectival ‘qualified’ – is open to the defendant. This takes us even further away from the way anyone thinks about torts than ‘trialism’.51 E.g. Peter Birks, ‘The Concept of a Civil Wrong’, in David G Owen (ed.), Philosophical Foundations of Tort Law (Oxford: Clarendon Press, 1995), 31, 33; Stevens (n. 7), 2; Descheemaeker (n. 4), 17ff.52 TLD, 22.

12

equiparation is unlikely to be completely attainable: in particular it seems highly artificial, if at all possible, to factor into the definition of the duty events which might defeat liability ex post facto, such as limitation bars. Perhaps other defence-triggering facts which are unrelated to the defendant’s conduct vis-à-vis the claimant, like immunities, must also be made allowance for. But these should remain peripheral exceptions. If we allow defences which pertain to the claimant-defendant relationship itself to be dissociated from the breach of duty,53 even this prima facie identification of wrong with actionability is destroyed. The immediate result is that the identification of the duty is going to get potentially much more difficult. In fact, one might be tempted to go one step further and argue that this is more than just a practical difficulty, and strikes at the heart of the definition of a duty: is it really meaningful to say that one owes a legal duty to another, yet the law will not intervene to give redress when it is breached – and this for reasons which go to the defendant’s conduct itself, not extrinsic factors like immunities or time bars? In what sense is it a duty then? It is at least arguable that the existence of a sanction should one fail to comply is consubstantial to the notion of duty (debere).54

(RE-)RECLASSIFYING DEFENCES

That tort law defences have been under-analysed is self-evident: indeed, Dr Goudkamp’s namesake book is the first serious attempt to conceptualise them. This is enough in itself to make it a landmark in tort scholarship. If defences are one day recognised as a coherent field of study, it will be in large part this book’s heritage. It is precisely because of its significance that it is worth taking the trouble to highlight, as the previous part did, that not all theses the author puts forward should be accepted.

Changing perspective, what this final part sets out to do is highlight – for a reason which is not the author’s own – the significance of this work of conceptualising defences. Its gist is that, regardless of who is considered to be right in respect of the issues discussed above, the book paves the way for a rational classification, or reclassification, of defences, which in turn would have to be regarded as a major stepping stone in the on-going process of systematising the law of torts. To anyone who cares about the law being intelligible and accountable, and who cares about ‘right thinking’, this is matter of great importance worth spending time and effort on.

Causes of Action and Causes of Negation

53 The distinction between defences which go the claimant-defendant relationship and those which do not overlaps to a large extent, but not completely, with the Dr Goudkamp’s justification defences vs public policy defences dichotomy.54 It is for the same reason that I would insist, for example, that the duty of care in negligence must be defined in such a way as to encompass the element of damage: it has to be a duty not to negligently cause relevant loss to the claimant. Even this is too broad and would need to be specified; at any rate it cannot be a duty not to act carelessly towards those who belong to a particular class. If it was, we would find ourselves confronted with the fact that most breaches of duty would be unactionable because they cause no relevant loss. Again, the difficulty with such a view is twofold. Practically, how are we going to know that a duty was indeed breached, or for that matter owed in the first place, if the law returns a similar finding of non-liability in all three sets of circumstances? Conceptually, can we really say that a duty was owed and breached when, failing an additional factor (damage), there are no circumstances in which adverse consequences will follow for the duty-breaker?

13

‘Self-defence, defence of one’s property, abatement, recapture of land, recapture of chattels, distress, qualified privilege, innocent dissemination, consent, public necessity, defence of another person, defence of another person’s property, arrest, discipline, responsible journalism, medical treatment, justification, judicial process immunities, absolute privilege, diplomatic, consular and related immunities, foreign state immunity, Act of State, trade union immunity, crown immunity, honest comment, illegality at common law, statutory illegality defences, limitation bars, res judicata, abuse of process, contract of settlement, release, offer to make amends, prior criminal prosecution, bankruptcy, reportage, death’: this is the list of defences, undoubtedly incomplete, which the author draws up.55 On his diagram, they appear in two columns. First come what the Dr Goudkamp calls ‘justification defences’, rooted in the defendant asserting a good reason to wrong the claimant,56 followed by ‘public policy defences’, which are unconcerned with the reasonableness (in a loose sense) of his behaviour.

To any tort scholar raised in the common-law tradition, this long enumeration is almost bound to evoke another list famously drawn a little over 20 years ago, namely, that of heads of wrongdoing: torts and, as Bernard Rudden called them, ‘torticles’.57 Same rough size; same mixture of well-known and much lesser-known doctrines – to the point where the existence of some might be dubious (meaning, in turn, that comprehensiveness is not only practically difficult to achieve but probably right down impossible); same doubt as to the classification of many (tort or another type of wrong? defences or a related concept like denial or excuse?); same cohabitation of doctrines operating on different levels of generality and according to different perspectives. Birks spoke of the ‘rotten foundations’ of the law of torts due to its ‘bent taxonomy’:58 a similar assessment can be made of defences. Here too, ‘mismatched categories’ are ‘the greatest enemies of rationality’.59 One need not have an artificial craving for rationalisation to describe the above list as muddled. It is transparently the outcome of an organic, unplanned growth in the course of centuries around what we might be forgiven for calling ‘forms of negation’.60 It should not be particularly controversial to say that no-one who would sit around a table today to design defences from scratch, looking at the matter in its generality and its relationship with the rest of the law, would come up with anything approaching even remotely the above list.

This does not mean, however, that there is no measure of underlying rationality. Indeed, it would be highly surprising if there were not. What we should expect to see, instead, is something akin to the rough-and-ready logic underpinning torts. Common-law causes of action might look at first like a heap of ‘mismatched categories’, but in reality it is not difficult to bring out a few key underlying principles, in particular in terms of protected interests and degrees of fault: these have

55 TLD, 135. 56 Above, text to n. 19. 57 Bernard Rudden, ‘Torticles’, 6/7 Tulane Civil Law Forum (1991-92), 105.58 Peter Birks, ‘This Heap of Good Learning: The Jurist in the Common Law Tradition’ in Basil Markesinis (ed.), Law Making, Law Finding, Law Shaping: The Diverse Influences (Oxford: OUP, 1997), 113, 130.59 Peter Birks, ‘The Foundation of Legal Rationality in Scotland’, in Robin Evans-Jones (ed.), The Civil Law Tradition in Scotland (Edinburgh: Stair Society, 1995), 81, 89.60 By contrast with forms of action. The opposition is clear in Latin: on the one hand Aulus Agerius (stock name for the plaintiff) ‘acts’ (agere = to set in motion); on the other Numerius Negidius, the defendant, ‘negates’ (negare = to deny).

14

been brought out and relied upon, since Blackstone, by the classifying stream of the common law.61 Yet, the causes of action as carved out by history do not come ready to be mapped onto any stable framework, and it is only through considerable oversimplifications that some authors have appeared to achieved this sort of results. To take but one example, contrary to what is often assumed, there is no equivalence between defamation as a cause of action and reputation as a protected interest (or right): in reality, defamation protects further interests and it is possible to recover for one’s injured reputation using several other causes of action.62 This is, in fact, exactly as we should expect: without some degree of underpinning logic, the system could hardly have survived for so long; on the other hand, it would be rather extraordinary if the unguided process of organic growth had hit upon a perfectly coherent system by itself (not to mention the fact that, once doctrines have come into existence, they start being instrumentalised by actors of the legal process, according to a logic which will be entirely different from the one having originally given rise to them).

What this entails is that, if we are serious about the process of rationalisation, we cannot be content with taking such doctrines in the form in which they have been inherited and then rearranging them the best we can. What we need to do is open them up. To use metaphorical language, the law must be scooped out of its actional husks before it can be mapped onto a stable grid of analysis. This is true of torts and it is similarly true of defences. This can be seen easily from the fact that Dr Goudkamp’s acceptance of the existing categories – without doubt the only way to get the process started – does not yield much by way of underlying rationality. What we are told in the end is that some defences have to do with reasonableness, which itself can be relative to the claimant himself (e.g. self-defence) or to the wider world (e.g. arrest); while others do not, in which case they either arise at the time of the commission of the [prima facie] tort (e.g. absolute privilege) or subsequently to it (e.g. contract of settlement).63 But it is only in appearance that the second category is defined positively for, according to the author, the very definition of public policy is something that has nothing to do with the defendant’s conduct.64 In that sense, ‘public policy defences’ really means ‘non-justification defences’: there only is, on the first level of the classification, one category and a residual miscellany.

This is all the more frustrating because, on the radical view, the scope of both torts and defences – at least justifications – is determined, in the final analysis, by extra-legal considerations of a broadly moral nature: subject to some fine-tuning, we would therefore expect them to display a significant degree of implicit rationality behind the labels bequeathed by history. But, even on the conventional view that their definition is procedural and that there is a degree of arbitrariness in the way the law allocates onuses of proof, we would still expect to find some undergirding principles to torts and defences concerned with the defendant’s conduct. For, if it is true (as the Roman experience indicates) that what the law does through actiones, replicationes and exceptiones is to refine the proper scope of liability through a succession of trials and errors – as Aulus Agerius and Numerius Negidius go back and forth to the praetor, arguing that the wording of his proposed action is either too broad or too narrow in scope – it is unlikely that this to-ing and fro-ing would be random: common

61 For a detailed historical overview, see Descheemaeker (n. 4), ch. 7.62 Eric Descheemaeker, ‘Protecting Reputation: Defamation and Negligence”, 29 OJLS (2009), 603, 611ff.63 TLD, 135.64 Above, text to n. 20.

15

sense suggests that each stage will be underpinned by some intuitions of common morality concerning what is and what is not acceptable conduct.

Ordering Causes of Negation

Thus, the tantalising question which Dr Goudkamp’s diagram raises is: can we go further? In other words, can we open up the husks of defences – both justifications and public policy defences – extract their substance and map it onto a coherent analytical grid? This is to my mind the next great project on defences, which Dr Goudkamp’s pioneering work both lays the foundation for and invites. We can be certain that the exercise will reveal a degree of order, but we must also be prepared for the fact that this might be less than perfect. It will likely be, and much might be left to a miscellany (or ejected on closer analysis from the category of defences); but this should not call into question the value of the exercise. The history of attempts rationally to order causes of action shows how gradual and imperfect the exercise will be, and the same is bound to true for causes of negation. It is important not to have unreasonably high expectations or treat as failure anything that falls short of perfection.

The exercise is for an Habilitation, not a review article. The following has no ambition other than being my own preliminary musings over the author’s aforementioned list (in order not unduly to complicate the matter, I will simply take as a given those doctrines that qualify as defences on his definition). These are disjointed thoughts and no more than a way to get the ball rolling. Proceeding in the most simple fashion, that is to say by trying to identify similarities between various elements in such a way that – at least ideally – individual doctrines do not come under more than one heading, the following thoughts come to mind:

(i) Starting with perhaps the easiest cluster, many of these defences have to do with immunities, described by Hammond J from the New Zealand Court of Appeal as ‘a state of freedom from the operation of otherwise applicable legal rules’.65 The category includes what the author refers to as ‘judicial process immunities’, ‘diplomatic, consular and related immunities’, ‘foreign State immunity’, ‘trade union immunity’, ‘Crown immunity’ and ‘absolute privilege’. (‘Statutory authority’ is closely related to immunities, of which it might in fact be a species.)

Dr Goudkamp describes them as ‘public policy defences that arise at the time of the tort’, but on conventionalism we would need to say that they arise before the (would-be) tort: they prevent it from materialising. The question is how they do, the alternative being that they render the breach of duty unactionable or that they remove the underlying duty altogether. On the latter reading, someone protected by an immunity owes no duty in respect of the acts and persons covered by the immunity in question. In which case, we should not call them ‘defences’ at all, for defences are concerned with a situation where a duty does in fact exist and we want to explain why the defendant is not liable even though, in the absence of the extra set of facts we call ‘defence’, he would be (whether that be because he has not breached his duty at all or because the breach is unactionable).

65 Lai v Chamberlains [2005] NZCA 37, [169], cited in TLD, 137.

16

(ii) ‘Self-defence’, ‘defence of one’s property’, ‘defence of another person’ and ‘defence of another’s property’ are all aimed at preventing a tort from occurring in the first place. Here, it would be interesting to see whether, if we brought into the picture other relevant doctrines such as prohibitory injunctions, we would get a coherent picture of the way the law aims at preventing the commission of wrongful acts – either through the preventive intervention of the legal system or by authorising prima facie wrongful acts on the basis that they aim at preventing another (worse?) evil.

(iii) Closely related to these – assuming a line can in fact be drawn between the two categories – are ‘abatement’ (i.e. the termination of a nuisance), ‘recapture of land’ and ‘recapture of chattels’. All three are concerned with self-help, to the effect that the law authorises conduct which would otherwise be wrongful on the basis that it is a reasonable way to put to an end (as opposed to prevent) another evil. Provided self-help is understood in a broad sense, i.e. not limited to the defendant’s own interests, ‘public necessity’ and ‘justification’ (in the sense of justified inducement to breaching a contract) could also come under this heading.

(iv) ‘Arrest’, ‘discipline’, ‘illegality at common law’ and ‘statutory illegality defences’ would all seem to be concerned with an individual – the victim of what would otherwise be a tort – losing the prima facie protection of the law through their bad behaviour. There is a difficult question here concerning the relationship between the objectively improper character of such behaviour and the defendant’s subjective perception of it.

(v) ‘Consent’ is probably one of a kind: it relieves the defendant of a duty imposed by law out of respect for the claimant’s autonomy: while tortious duties are normally imposed by the law regardless of consent, common sense suggests that, if it is for the individuals’ own benefit, they should be able to renounce the protection. ‘Contract of settlement’ would seem to be an exemplification of the broader category of consent; while ‘release’ would be to agreement what deed is to contract. ‘Offer to make amends’ is a form of settlement, at least when the offer is accepted.66 ‘Medical treatment’ might be regarded, at least for the most part, as based on implied consent, though one must be careful not to re-establish in a different context the old heresy of consent implied by law.

(vi) ‘Limitation bars’,67 ‘res judicata’, ‘abuse of process’ and ‘prior criminal proceedings’ are all concerned with the integrity of the judicial process, a public interest which is allowed to trump private rights on the basis that a sufficient chance was already given to the claimant, or is otherwise being given to him, to realise his rights in court.

66 However, the payment of a sum of money makes it doubtful whether it is a defence in the first place rather than an alternative form of dispute resolution. 67 In English law, one remarkable feature of limitations is that, while the onus of raising them falls on the defendant, once this has been down the onus switches to the claimant to negative them. This is incompatible with the definition of defences put forward in this article; on the other hand it would seem to be consistent in principle with Dr Goudkamp’s. On conventionalism, the alternative would be to rescue them as defences by changing ‘onus of proving’ to ‘onus of raising’, or to accept that this characteristic – widely regarded as anomalous – entails that they can not be regarded as properly being defences at all.

17

(vii) ‘Death’ and ‘bankruptcy’ have this in common that they are really concerned with the law of persons and the need for a defendant to be capable of being brought to court. While the Law Reform (Miscellaneous Provisions) Act 1934 expanded the notion of a person by allowing them to survive physical death for the purpose of being sued, the doctrine of bankruptcy does the opposite by asserting that a person who has gone through bankruptcy proceedings has died to accountability in respect of their prior life.

(viii) All the remaining defences on the list, i.e. ‘qualified privilege’, ‘innocent dissemination’, ‘responsible journalism’, ‘honest comment’,68 ‘reportage’ and ‘offer to make amends’ (when refused),69 are related to defamation,70 which is by far the tort in which the greatest role is played by defences. This is because the prima facie cause of action is defined in a way which is absurdly broad,71 largely due to the fact that the element of malice, which was originally foundational, has become irrebuttably presumed in non-privileged situations and was pushed into the background – in the form of an affirmative answer – in privileged ones, to the effect that fault is no longer part of the requirement of the prima facie tort. All the above defences can be regarded as rebutting, in a more or less direct way, this original element of fault (which, to complicate the matter further, has itself been to-ing and fro-ing between malice and negligence). The logic of the tort of defamation, obscured by the above historical developments, is therefore that they should be denials of a fault element and not defences.72

CONCLUSION

Defences have long been utterly neglected by tort scholars, both the individual defences recognised by the law and the category as a whole. This neglect is wrong; indeed, with the benefit of hindsight, it is of a puzzling magnitude. But with hindsight, everyone can be wise. The merit of any enterprise must be judged at the point where it is undertaken, and that of Tort Law Defences is to be a pioneering work. It challenges us to think harder about doctrines which are extremely important, both on a theoretical and a practical level. This is true of the law of torts but, as the author

68 In an English context the defence used to be known as ‘fair comment’ and was renamed ‘honest opinion’, first by courts and then by the Defamation Act 2013, s 3.69 In which case the offer operates as a bar to any action, provided the defendant did not know or have reason to believe that the statement was false, defamatory and referring to the plaintiff: Defamation Act 1996, s 4(3).70 Qualified privilege is also a defence to malicious (or injurious) falsehood: TLD, 110. 71 This can be seen easily by considering the sheer breadth of statements which would be redressable through the law of defamation if all the current defences (in the procedural sense of the term) were deleted. Indeed this could be seen to cast doubt as to the plausibility, in the context of defamation, of the author’s view, according to which the defendant who can avail himself of a defence really has in all circumstances committed a tort (noting that, apart from doubts expressed concerning truth (TLD, 62ff.), the radicals’ understanding of what counts as defences in defamation is identical to the conventionalists’). 72 Above, n. 10. Besides, the defence of honest comment seems to give away the fact that English law does not really believe, despite its settled definition of what counts as defamatory matter, that opinions can be defamatory. Through the generously carved defence of honest comment, it can be seen to agree (to a large extent at least) with the idea according to which, failing the incrimination of sufficiently specific facts, derogatory statements really are insults rather than defamations.

18

himself remarks, the work of conceptualisation is potentially relevant to broad swaths of private law.73

This review article has tried to answer the challenge, examining some of Dr Goudkamp’s claims: in particular, that defences can be defined in a substantive – rather than procedural – way; and that they are altogether separate from torts, to the effect that the defendant who can avail himself of a defence, even a justification defence, has nonetheless committed a tort (rather than a prima facie wrong). It was argued that this ‘radical’ view cannot be accepted and that conventional thinking does in fact turn out to be orthodox. In many ways, this is disappointing: conventionalism makes minimal claims and, to anyone eager to make sense of the law, is bound to be unexciting. But we must work with what we have. Besides, as the final part of this article has sought to evidence, whichever understanding of defences we subscribe to – for the practical difference is not great in terms of which doctrines qualify – it should be possible to unpack the principles which underpin the various defences recognised by tort law. This would be a considerable step forward for the rationality and accountability of private law.

If we may be forgiven a slightly daring metaphor to conclude, Dr Goudkamp seems to have fallen in the trap in which many lovers get ensnared, that is to say, seeing the object of their affections as more perfect than they really are. This is a highly vulnerable position to be in, for the danger is then great to suffer a severe (and equally unjustified) backlash when the spell vanishes. We do not want this to happen now that the significance of the topic has been evidenced and the process of rationalisation commenced: unions rooted in a realistic appreciation of the parties’ character stand the best chance of enduring. We want to extract all we possibly can from a careful and systematic study of defences, but we should not expect from them more than they are able to give us.

73 TLD, 211.

19