The scope and rationale(s) of the change of position defence

Abstract

The article examines an innovative suggested rationale for change of position – namely that the claimant has ‘outcome responsibility’ for the defendant’s change of position. It concludes that the justification fails. Although it purports to justify a single baseline against which to judge if the defendant’s position has changed, it – at best – only justifies a subset of the cases in which change of position is normatively attractive; it does not justify the defence in (say) cases of innocent wrongdoing. As such it requires us to accept that there are several different species of defence. An easier route to justifying the availability of the defence in all these different cases is ‘irreversible detriment’, although that explanation still has to justify why the defendant should not be worse off.