Defences

Abstract

Chapter 9 explores remedial defences. It defends three broad arguments. First, the law of remedial defences constitutes a significant, though largely unrecognized, part of remedial law. Second, remedial defences are based on general principles—principles that cut across the historical boundaries between so-called legal and equitable defences. The same defences, and the same governing principles, could easily have developed in a unitary legal system. Third, while the law governing remedial defences appears, in many cases, ripe for reform, the general idea of specifically remedial defences is coherent. In developing these arguments, Chapter 9 distinguishes between substantive and remedial defences, and, within the latter category, between full and partial defences. Examples of full defences (each of which is discussed individually) include limitation periods, absence of formalities, immunities, res judicata, abuse of process, statutory non-actionability, and, in some circumstances, illegality. Examples of partial defences (again, each of which is discussed individually) include adequacy of damages, supervision, personal duties, clean hands, laches, hardship, and public interest.