By Marcus Teo

Should claimants be entitled to sue either in contract or tort (or both sans double recovery) on a single set of facts? In domestic law, the answer to this question – the question of concurrent liability – matters because obvious differences exist between contract and tort: different remoteness, remedial, and limitation rules apply, for example. Choosing between these claims allows claimants to maximise the chances and consequences of success. Is this justifiable?

To begin, it is helpful to note that discussions about ‘concurrent liability’ in contract and tort typically conflate two distinct questions:

• Are there two different reasons grounding the two different claims, implicated on the same set of facts?

• If so, should the claimant nevertheless be limited only to one of those claims (usually the contract claim)?

Question 1 is really a question of private law theory: can contracting parties owe each other noncontractual duties? Question 2, by contrast, is the true question of concurrent liability: can a defendant be sued for breaching both her contractual and noncontractual duties through a single act or omission?

 Common law courts generally focus on Question 1. This has led to debates about the scope and basis of the ‘assumption of responsibility’ claim in the law of negligence. But where the answer to Question 1 is ‘yes’, an affirmative answer to Question 2 generally follows. This is because the common law does not categorically subordinate tort law to contract law; both are ‘independent source[s] of rights and obligations’ (Banque Financiere, per Lord Steyn). As Lord Goff noted in Henderson v Merrett Syndicates:

‘there is no sound basis for a rule which automatically restricts the claimant to either a tortious or a contractual remedy … given that the tortious duty is imposed by the general law, and the contractual duty is attributable to the will of the parties’

  In domestic law, this is relatively settled. But should the same apply in private international law? Many scholars think otherwise: that, in the ‘conflict of laws, such a right to accumulate causes of action … is objectionable and needs to be reconsidered’ (Briggs; see also Czepelak). One can see the point. Here the consequences of concurrency seem more drastic: the choice is not simply between different legal causes of action but different legal systems (i.e., different courts and judicial procedures and different substantive applicable laws). Are courts not concerned about this?

Apparently not. Courts in the UK, Singapore, and Hong Kong have explicitly recognised concurrent contract and tort claims in private international law disputes, and the CJEU has recently followed suit. In a recent article published in the Cambridge Law Journal, Sagi Peari and I argued that courts have been right to do so. There, we forwarded a positive argument in favour of recognising concurrent claims, and a negative argument against criticisms thereof.

Our positive argument is that the justification for concurrent liability in domestic law applies equally in private international law. If and only if there are two different reasons grounding separate contract and tort claims, implicated on the same set of facts, claimants should be entitled to choose between (or both of) them, whatever jurisdictional or choice of law consequences may follow.

The ‘if and only if’ point is, again, really a question of private law theory. Can contracting parties owe each other noncontractual duties? This depends on the taxonomy of private law obligations a legal system adopts specifically for private international law disputes. Admittedly, most systems do (and probably should) adopt different taxonomies for private international law disputes as they do for domestic disputes, and those private international law taxonomies usually do (even if they should not) differ between systems. But none of this changes the fact that every legal system’s private international law taxonomy must be based on some principled theory of private law. This is because characterisation in private international law, just like characterisation in domestic law, must take ‘a principled, not simply a pragmatic, approach’ – after all, the law must be ‘shaped to serve and give effect to the reasonable expectations of its users’ (Lew v Nargolwala, per Lord Mance IJ). And when a dispute implicates reasons triggering two different claims under that principled taxonomy, private international law should give claimants the choice of suing in either (or both) contract and tort.

Our negative argument defends our positive argument against the critics. One criticism is that claimants should not have a unilateral choice between jurisdictional and choice-of-law rules, because that gives them too much power over defendants. Our response is that recognising concurrent claims in private international law gives claimants no such choice. They do have a choice between claims, but it is not ‘unilateral’ in any normatively defective sense, since it is neither unprincipled (its limits are shaped by private law theory) nor unfettered (spanning at most a few different fora and applicable laws).

Another criticism is that recognising concurrent claims undermines values unique to private international law. These include uniformity of outcomes (for choice of law), and predictability and anti-fragmentation (for jurisdiction). But none of these concerns withstand closer scrutiny:

• Uniformity of outcomes is the idea that the same dispute should be adjudicated in the same way in all legal systems. But uniformity is unlikely to be a goal in itself. It is not enough for legal systems converge on some treatment of a particular dispute; it matters that the basis on which they converge is just. And if it is just for a legal system to recognise two claims against the defendant, that doing so would cause it to treat the dispute differently from other systems is no reason for pause. Moreover, even if uniformity is a goal in itself, it is unclear how recognising concurrent claims necessarily undermines it. If uniformity requires that any putative dispute should be adjudicated in the same way in all legal systems, it is equally upheld if all legal systems would recognise concurrent claims, as if they all denied concurrent claims.

• Predictability only requires that defendants be able to reasonably foresee where they would be sued in relation to any given dispute, not that claimants should only ever be restricted to suing defendants in one forum. The common law has long recognised that claimants have a choice of suing defendants in at least two jurisdictions (where the defendant is present and where the dispute is substantially connected to), and EU law does the same (save that domicile replaces presence). Some choice on the claimant’s part on where to sue the defendant is tolerable; that this choice flows from the recognition of concurrent claims changes nothing.

• Anti-fragmentation is the instinct that claims involving similar facts should generally be consolidated in the same forum, to avoid duplication of judicial resources. The abstract value of consolidation, however, does not suggest that consolidation should be achieved by denying concurrent claims, much less does it tell us which claims should be denied for that purpose. Anti-fragmentation, instead, is best achieved through claim-neutral doctrines like forum non conveniens (the common law) or a rule giving priority to the court first seised (EU law). Both doctrines consolidate claims not by subordinating one to another, but by permitting both to be brought in one neutral forum.

There are, of course, important differences between private law and private international law. As Alex Mills argues, private international law consists of secondary rules distributing decisional authority over private law disputes between different courts and laws. Private international law thus reflects many of the same concerns of (legitimate) authority undergirding public law. But the matters on which private international law distributes decisional authority remain matters of private law. We may disagree fiercely about what ‘private law’ is, but the point remains that private international law operates on the basis of, and so necessarily assumes, some theory of private law. The recognition of concurrent claims, when it flows from some justified theory of private law obligations, is therefore equally (no less and no more) justified in private international law as in domestic private law.

Keywords:  Concurrent claims, choice of law, jurisdiction, private law theory

AUTHOR INFORMATION

Marcus Teo is Sheridan Fellow at NUS Law, and an Advocate and Solicitor of the Supreme Court of Singapore.

Email: lawtwrm@nus.edu.sg