Approaching the Defence of Passing On : Arguments, Language and Discourse

This paper examines some methodological issues that have arisen when analysing the problem of passing on. The problem of passing on is a special problem of measuring an award of damages or restitution in a commercial situation where the injury or expense incurred may have been passed on down the chain of distribution. A defendant may under such circumstances invoke the defence of passing on, claiming that an award of damages or restitution, as the case may be, would under such circumstances constitute a windfall or unjustified enrichment of the claimant. Across jurisdictions, courts have chosen diametrically opposite approaches to the problem of passing on, making it an interesting object of legal study. In my doctoral thesis, I intend to analyse patterns of argumentation around the problem of passing on in European Union law. Arguments will primarily be extracted from the reasons given by the Court of Justice of the European Union for the approach it has chosen. Other materials will be examined for comparison and discussion. The analysis is intended to have three tiers. Firstly, argumentations will be more exactly defined and examined. This will involve the methodological problem of trying to define arguments that may be vague. It is argued that what is vague must be treated as vague, although interpretative methods should be used to suggest plausible definitions and to delineate, when possible, the interpretive space surrounding them. Secondly, the patterns thus defined will be examined and compared. This will involve the methodological problem of analysing wordplay and identifying connotations carried by legal concepts fundamental to our understanding of the problem of passing on. Thirdly, the impact of legal context will be assessed. This will involve the methodological problem of understanding larger legal discourses and identifying argumentation patterns fundamental to those legal discourses. It will also involve the methodological problem of assessing the interaction between wordplay surrounding the problem of passing on, the argumentation patterns of the legal discourse in which the problem of passing on has arisen, and the factual circumstances of individual cases