This book investigates the history of the modern doctrine of account, and by that history, seeks to identify some of the principles and premises which help explain the application of, and which underlie, the action today. The common law account, and its successor in equity, is over 800 years old. There does not appear to have been any work devoted to an examination of that history published in that time. The focus on the book is on the question ‘who is an accountable party’? The area of law focused on is common law and equitable remedies, namely, the account (including the subsidiary principle, the ‘account of profits’).
**Dr James Watson, The Duty to Account: Development and Principles , was a finalist of the inaugural Holt Prize 2015.
Foreword by John Sheahan QC
About the Author
Guide to References
Table of Authorities
Table of Statutes
The position today
Accounting outside the scope of the book
PART I Development of the Account
2. Early Circumstances
The first accounting parties
A discursion: tallies
The Exchequer process of accounting
Early records of Exchequer
3. Recognition at Law
Early reports of account cases
The Barons’ Wars
The Statute of Marlborough 1267
Statute of Westminster II
The form of the writ of account
4. Context and Competing Influences
Wager of law
Reforms under Henry II
Trespass and Damages
PART II Accounting
5. Outline: Taking Accounts
Two stages of account
According to equity and justice
The origins of profits
Wilful default of duty (proceeds that ought to be obtained)
PART III Accounting Parties
6. Accounting Parties at Law
Accounting parties from Westminster II
Receiver ad computandum
Bailiff or receiver ‘ad merchantizandum’
The constructive receiver
Joint tenants or tenants in common
Recovery of capital (failure of consideration)
Misrepresentation, deceit and fraud
Usurpation of an office
Receipt to benefit third parties
A to B to the use of C
Common law trade marks (passing off)
The rights of the Crown
The position reached
7. Accounting Parties in Equity
The development of the jurisdiction
The breadth of account in equity
True bills of account
The early trust: Common law use of estates in land
Development of the trust
Fiduciaries and powers
8. Principles of the Duty to Account
9. Outline: Money Had and Received
Moses v Macferlan
10. Outline: Account and Wrongs
Fitzherbert, Brooke, Tottenham and Coke
Privity in fact or law
Waiver of tort
Account for torts or breach of contract
Attorney-General v Blake
The wrong question
11. Concluding Note
It is first important to understand what this book is not. The book does not provide direct and practical guidance, nor court forms, for something like an executor’s account. Such guidance does exist, such as in chapter 6 of Mr de Groot’s Wills, Probate and Administration Practice (Queensland). Dr Watson is not setting out to do that.
Rather, Dr Watson sets out to portray the modern law of account, including the common money actions, in their historical context.
We begin with the Norman Conquest, and Dr Watson engagingly takes us through formative cases.
One thing that must be understood is that the courts were in competition, for the revenue of filing fees. The court offering a better writ or remedy was better placed. Hence, Chancery’s ascent in offering more streamlined account.
Dr Watson refers to Blackstone’s view that the option of wager of law was “probably the real reason for the fading of the action at common law … but also its transfer into equity” with which account is now mostly associated (page 55).
A deep historical understanding of the origins of accounting does come through. As a practitioner, it is possible to be put off by this. Persistence will repay.
In a practical sense, I found the discussion of “Accounting Parties at Law” a good refresher. Recently, I was looking, particularly, at the discussion of payment by mistake (which I found brief but authoritative).
This book will not yield ready answers to practical questions of daily practice. It will repay study, including providing the tools to read around a topic.
Dr Watson writes in an engaging and opinionated way which this reader found inspired confidence and a desire to return, as needed, to this book.
David Marks QC, Hearsay, March, 82
[W]atson’s text is an enjoyable discussion of the nature and (long) history of account.
By reviewing the feudal system of landholding, Watson demonstrates that the legal obligation to account for property being held ‘to the use of’ another substantially predates the Statute of Uses and the origins of the modern day trust. It argues that a liability to account will arise whenever a person receives property which they are not allowed freely to use, a liability that is independent of liability in contract, tort, unjust enrichment, trusts or other fiduciary obligation.
Bar News, NSW Bar Association, Summer 2017
From the outset it is clear that Dr James Watson’s “The Duty to Account – Development and Principles” is to be an interesting trip back through the ages to where it all began for this remedy which many may not encounter once their University days come to an end. …
It is a text which the reviewer would commend to others as well written, easily understood and successful at providing the reader with a thorough understanding of the duty to account and its origins, all this despite it’s relatively short length at 189 pages. It is extremely well referenced (as one would expect) and although the early parts see the regular use of Latin terms and phrases the author addresses the same and indeed provides the Latin alongside its English equivalent. The text is one which would be useful in any lawyer’s collection and is one which, it would appear, is unlikely to fall behind the times anytime soon. Read full review…
Geoff Macguire, Law Letter, The Law Society of Tasmania, Winter/Spring 2017
We are accustomed to thinking of account as an equitable remedy, usually pressed into service to retrieve undeserved profits from delinquent fiduciaries or those who infringe intellectual property rights. Most who deal regularly with trusts and trustees would also be familiar with the notion of the trust as an accounting entity, for which equity developed sophisticated mechanisms designed to hold trustees, literally, to account and to afford beneficiaries procedures by which they might test for due administration. Account does not commonly feature in the modern legal landscape beyond those circumstances; it appears, as the author of this book states, to have been “somewhat relegated in modern law, sometimes described as a minor remedy, or of little practical utility” (p 6).
But, as with so many things taken for granted in modern Australian law, examination of legal history can illuminate previously unfamiliar crevices. In this very impressive monograph, … Watson conducts an almost archaeological excavation of the historical antecedents in pursuit of answers to the critical questions of who is an accounting party and what principles establish accountability.
The author demonstrates not only that account and accountability predate equity (noting that a form of private law writ of account was already in place in the common law courts as early as 1162: p 26) but that they may arise in a wide range of circumstances beyond fiduciary relationships. …
[This book]… would add depth and dimension to any lawyer’s understanding of this fascinating doctrine and its wider place in the family of remedies. Perhaps most importantly of all, it is a very satisfying read. Read full review…
Dr Nuncio D’Angelo, Australian Law Journal, Oct 2017, 91
This challenging and stimulating book deserves the attention of any serious scholar of private law. Its methodology is to use a detailed examination of legal history as the basis for the derivation of legal principle. It recounts the history of the circumstances, since the Norman Conquest, in which English law recognised duties to account, and places those duties in their context in legal and social history. As legal history, it includes many fascinating details. Yet it is no mere antiquarian exercise. It is of real practical use in the thesis it draws from that history: that there is a principled basis on which the law now can recognise some duties to account, and can develop. Read full review…
Joe Campbell QC, Sydney Law Review, 2017, 39, 2017
At its very outset, The Duty to Account claims that its purpose “is to invite a larger consideration of the doctrine of account, including having regard to its long history and modern utility, as the premises and foundation of many and varied relationships recognised in law and equity today”. It lives up to this promise: the book is a long overdue consideration of the nature and history of account. …
Watson’s book, … is an original and valuable contribution to scholarship, which will provoke thought amongst scholars and legal practitioners alike. … the book is a thought-provoking and welcome foray into an important and interesting area, with the potential to blow open a whole series of modern doctrinal and legal historical debates. Read full review…
Andreas Televantos , Cambridge Law Journal, 2017
The book demonstrates that the remedy of an account is manifestly under-utilised. … there can be no doubt as to the extremely high level of learning and scholarship which underlies the discussion of the historical development of the principles in question. … This is another exceptional work from The Federation Press which surely must now be considered as Australia’s leading legal publisher. It constantly publishes work of the highest quality and standard which leads and develops the law. This work is no exception. Read full review…
Queensland Law Reporter – 14 October 2016 –  40 QLR