Setting the boundaries

This collection of essays is the result of a conference at Cambridge in 2023 of academics (not all from Cambridge) and members of the senior judiciary.

Their theme was the borderlines between tort, contract, equity, property and unjust enrichment. Each is compared with the others in turn. The academics offer their perspectives, with the judges responding to and considering the academics’ arguments. This combination ensures academic rigour tempered generally by the constraint of the reality of commercial and judicial life.

Lord Sales and Mrs Justice Cockerill stress the importance of legal taxonomy to treating similar cases alike and ensuring predictability of outcomes (important to those choosing English law to govern their contracts), and avoiding unintended consequences by straying across borderlines. It is a series of probing explorations rather than definitive conclusions.

The essays reveal an atmosphere of erudite collaboration between the distinguished and experienced participants and are refreshingly devoid of grandstanding. They are of digestible length (with helpful sub-headings), admirable clarity and elegance of thought and, with few exceptions, of expression.

The essays focus on the areas where there is tension or overlap, whether they are complementary (such as many equitable remedies), or potentially hostile (such as the creeping incursions of proprietary estoppel into traditional contract law).

Borderlines are not static as the law evolves, sometimes through attempts to deal with inconvenient borders. And unjust enrichment has jostled in as a comparatively recent topic in its own right.

The topics themselves are (with the general exception of contract) of course not homogeneous, with torts, manifestations of equity and types of unjust enrichment and of property taking many forms. Inevitably, the discussions do not cover every eventuality.

A recurring driver towards border incursions is the differences in limitation periods, a problem with its remedy sitting in the unimplemented Law Commission report of 2001. The law in these areas is largely judge-made and has evolved from but still retains hangovers from its origins in different forms of action and jurisdictional rules. The evolution is also not rectilinear. As the essay on contract and tort illustrates, the law on negligence has moved to and fro considerably since the 1963 judgment in Hedley Byrne v Hellier.  

Evolution and adaptation are great strengths of the common law. This book provides valuable insights both into the present state of the law and its potential for the future.  

Charles Clark is a partner consultant at Linklaters, London