Private Law Theory

ABSTRACT
In this chapter, we are concerned with the normative role of reasons grounded in the ‘public interest’. We focus upon a relatively neglected aspect of this issue: the relevance of such reasons to remedies in particular. We do so in order to examine suggestions made in recent literature and judicial opinions that the public interest is distinctively relevant to remedies as distinct from substantive legal rights. It has, for example, been suggested that courts ought to have regard to the public interest when deciding whether to grant an injunction, but not when determining whether a private nuisance occurred.

Our overall claim is a negative one: the mere fact that a remedial question is at issue does not itself confer a special role for public interest considerations. In order to make out this claim, we assess various ‘Remedial Distinctiveness Theses’ (‘RDTs’) — theses that purport to identify a distinctive feature of remedial questions compared to non-remedial questions such that the public interest is permissibly relied upon to answer the latter, but not the former. Our general strategy is to show that these theses either (a) fail to identify a distinctive feature of remedial questions, or (b) identify a distinctive feature which does not itself licence reliance upon the public interest. Although we reject the idea that the nature of remedial questions, as such, licences reliance upon the public interest, we show that, sometimes, when the public interest is normatively relevant to a private law question, it ought to affect the remedy awarded, rather than the substantive rights of the parties.

Steel, Sandy and Georgiou, Alexander, Remedies and the Public Interest (April 1, 2024) in A Robertson and J Neyers (eds), Private Law and the State (Bloomsbury, 2024).