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THE MODERN FUNCTIONS OF THE ECONOMIC TORTS: REVIEWING THE ENGLISH, CANADIAN, AUSTRALIAN, AND NEW ZEALAND POSITIONS

Published online by Cambridge University Press:  08 May 2015

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Abstract

The economic torts were developed to regulate excessive competitive practice. They had the limited function of stretching existing civil liability where a defendant deliberately inflicted economic harm on a claimant, through the use of an intermediary. However, claimants seek to expand the function of the unlawful means and conspiracy torts so that they can fill “gaps” in existing tort liability, to regulate commercial misbehaviour more generally. In light of this phenomenon, the aim of this article is to analyse the modern approach to these torts in the English, Canadian, Australian, and New Zealand courts.

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Copyright © Cambridge Law Journal and Contributors 2015 

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References

1 The names of these torts have varied over the years but this article will use their most modern nomenclature. For the purposes of this article, the remaining economic tort – intimidation – is assumed to form part of the tort of causing loss by unlawful means. However, see Murphy, J.Understanding Intimidation” (2014) 77 (1) M.L.R. 33.

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2 Palsgraf v Long Island Railway Co. (1928) 248 N.Y. 339, per Cardozo C.J., the plaintiff must “sue in her own right for a wrong personal to her and not as the vicarious beneficiary of a breach of duty to another” (p. 342).

3 And indeed OBG Ltd. v Allan [2007] UKHL 21; [2008] 1 A.C. 1, per Lord Hoffmann, in defining the unlawful means tort, stated that the wrongful interference had to be with the actions of a third party in which the claimant has an economic interest (at [47]).

4 OBG Ltd. [2007] UKHL 21; [2008] 1 A.C. 1, at [306], per Baroness Hale.

5 In the tort of inducing breach of contract, it is the intention to cause breach.

6 The Canadian, Australian, and New Zealand courts appear content to follow OBG in rejecting the unitary theory and the interference with contractual relations tort and in accepting the narrow definition of the tort of inducing breach of contract. See Correia v Canac Kitchen (2008) 91 O.R. (3d) 353, at [99] (Ontario CA); Murray v A&J Bilske Pty Ltd. [2012] NTSC 05, at [100], per Mildren J. (Australia); Diver v Loktronic Industries Ltd. [2012] NZCA 131 (New Zealand).

7 OBG Ltd. [2007] UKHL 21; [2008] 1 A.C. 1.

8 Ibid., at para. [32].

Ibid

9 Indeed, the unlawful means tort was originally named the tort of unlawful interference with trade.

10 Garret v Taylor (1620) Cro. Jac. 56; Tarleton v M'Gawley (1793) Peake N. P270.

11 OBG Ltd. v Allan [2008] 1 A.C. 1, at [56].

12 Deakin, S. and Randall, J., “Rethinking the Economic Torts” (2009) 72 M.L.R. 519, 520, and 532. However, later they state that the torts protect against “the use of illicit means to seek commercial advantage” (at p. 534).

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13 There are areas of the civil law that can protect claimants' economic interests where they are directly harmed by the defendant – such as deceit; conversion; breach of confidence; breach of fiduciary duty.

14 T. Weir, A Casebook on Tort, 10th ed. (London 2004), 572.

15 Lord Watson limited the scope to the use of illegal means, defined as “means which in themselves are in the nature of civil wrongs”, Allen v Flood [1898] A.C. 1, 97–98. Re. conspiracy, note the views of Laddie J. in Michaels v Taylor Woodrow [2001] Ch. 493, at [38]–[49], [66], that unlawful means must be the same for both torts.

16 “Liability stretching” was the phrase used by Cromwell J. in A.I. Enterprises Ltd. v Bram Enterprises Ltd. 2014 SCC 12, at [37].

17 Lord Shand in Allen [1898] A.C. 1.

18 Even though that was in essence a trade dispute case involving inter-union rivalry.

19 Where the defendant was acting in the course of a trade dispute. This started with the Trade Disputes Act 1906; now see Trade Union and Labour Relations (Consolidation) Act 1992 (as amended).

20 Lord Hoffmann, “The Rise and Fall of the Economic Torts” in Edelman, J., Goudkamp, J. and Degeling, S. (eds.), Torts in Commercial Law (Sydney 2011), 113. It is significant that the extension of the conspiracy tort in both Canada and Australia appears to be based on the statutory regulation of industrial action.

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21 Ibid., at p. 114. (On the potential impact of OBG on economic tort liability in labour disputes, see further B. Simpson, OBG case comment [2007] I.L.J. 468.)

Ibid

22 Ibid., at pp. 113, 116, respectively.

Ibid

23 Matthews, M., O'Cinneide, C. and Morgan, J. (eds.), Hepple & Matthews' Tort: Cases and Materials, 6th ed. (Oxford 2008), 864.

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24 See Cromwell J., A.I. Enterprises Ltd. 2014 SCC 12, at [43], though unfortunately he describes liability stretching as “gap-filling”.

25 OBG Ltd. [2007] UKHL 21; [2008] 1 A.C. 1.

26 A.I. Enterprises Ltd. 2014 SCC 12.

27 Diver [2012] NZCA 131. The case concerned the agreement of a manufacturer and the defendant company to cut out the plaintiff middleman from its distribution chain.

28 Sanders v Snell (1998) 196 C.L.R. 329.

29 Total Network SL v Revenue and Customs Commissioners [2008] UKHL 19; [2008] 1 A.C. 1174.

30 Canada Cement LaFrage Ltd. v British Columbia Lightweight Aggregate Ltd. [1983] 1 S.C.R. 452.

31 Dresna Pty Ltd. v Misu Nominees Ltd. [2004] F.C.A.F.C. 169 (Federal Court of Australia Full Court).

32 Williams v Hursey (1959) 103 C.L.R. 30 (see Menzies J. and Taylor J.).

33 Wagner v Gill [2014] NZCA 336, at [71].

34 There are of course some who suggest that the unlawful means tort may not be confined to economic losses. See McBride, N.J. and Bagshaw, R., Tort Law, 4th ed (London 2012), 699.

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35 “There are … two grounds only upon which a person who procures the act of another can be made legally responsible for its consequences. In the first place, he will incur liability if he knowingly … induces that other person to commit an actionable wrong. In the second place, when the act induced is within the right of the immediate actor … it may yet be to the detriment of a third party; and in that case … the inducer may be held liable if he can be shewn to have procured his object by the use of illegal means directed against that third party”, Allen [1898] A.C. 1, 92–93, 97–98.

36 OBG Ltd. [2007] UKHL 21; [2008] 1 A.C. 1, at [159] per Lord Nicholls. What Viscount Cave L.C. termed the “famous trilogy of cases” (in Sorrell v Smith [1925] A.C. 700 (HL)) which helped establish the economic torts – Mogul SS. Co. v McGregor, Gow & Co. [1892] A.C. 25; Allen [1898] A.C. 1 and Quinn v Leathem [1901] A.C. 495 – followed this intermediary-use attack scenario. Lord Hoffmann, in OBG Ltd. [2007] UKHL 21, at [20], referred to Clifford v Brandon (1810) 170 E.R. 1183; Gregory v Brunswick (1846) 136 E.R. 192 (the obstruction of stage actors by concerted hissing) where direct harm rather than intermediary use was involved. However, whether these are truly based on conspiracy liability remains unclear and they did not lead to any discernible development in the common law.

37 Quinn [1901] A.C. 495.

38 Though Salmond in 1924 doubted whether the tort existed, Salmond on Torts, 6th edn (London 1924), 576–78.

39 Both its lawful and unlawful means varieties – has been accepted by the highest courts in Canada, Australia (see below), and New Zealand (in Wagner [2014] NZCA 336, at [48]).

40 Torquay Hotel v Cousins [1969] 2 Ch. 106, 139 (he relied on dicta from Lord Macnaghten in Quinn [1901] A.C. 495).

41 Acrow (Automation) Ltd. v Rex Chainbelt Inc. [1971] 1 W.L.R. 1676.

42 Daily Mirror v Gardner [1968] 2 QB 762 (a case rejected by Lord Hoffmann in OBG Ltd. [2007] UKHL 21, at [36]).

43 Lord Denning deviated from the intermediary-use template in his campaign to protect the record industry against bootleggers. But in these (interim) cases – Carlin v Collins [1979] FSR 548; ex parte Island Records [1978] Ch. 122 – the harm to the claimant's contractual partners looks foreseeable rather than targeted.

44 Mitchell, G. Q.C., “Conspiracy: A Wide Ranging Tort” (2008) N.L.J. 773.

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45 Sales, P., “The Tort of Conspiracy and Civil Secondary Liability” [1990] C.L.J. 491.

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46 Lonrho v Fayed [1992] 1 A.C. 448, 463, per Lord Bridge.

47 Lord Dunedin, “mere surplusage”, Sorrell [1925] A.C. 700, 716.

48 Lonrho v Shell [1982] A.C. 173 (HL), 189. P. Burns contended at the time “thus in the UK today there is only the tort of conspiracy to injure”, Civil Conspiracy: An Unwieldly Vessel Rides a Judicial Tempest” (1982) 16 U.B.C.L.R. 229.

49 In Canada, “they are now the staple of commercial litigation”, Kain, B. and Alexander, A., “The ‘Unlawful Means' Element of the Economic Torts: Does a Coherent Approach Lie Beyond Reach?”, in Archibald, T.L. and Echlin, R.S. (eds.), Annual Review of Civil Litigation, 2010 (Toronto 2010).

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50 O'Sullivan, Janet, “Intentional Torts, Commercial Transactions and Professional Liability” (2003) 3 P.N. 164.

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51 Mitchell, “Conspiracy”, notes that the transaction in Meretz v ACP Ltd. [2007] EWCA Civ 1303; [2008] Ch. 244 “ordinarily would only have been considered from a conveyancing or mortgage/guarantee point of view”.

52 Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [97], per Lord Walker.

53 Torquay Hotel v Cousins 2012 NBCA 33, at [82]–[83].

54 Barber v Vrozos 2010 ONCA 570: contract breach causing inevitable harm to plaintiff sub contractor.

55 Hardie Finance Corp Pty Ltd. v Ahern (no3) [2010] WASC 403, discussed below, repossession on a lessee causing economic harm to the plaintiff lessor.

56 Agribrands Purina Canada Ltd. v Kasamekas 2011 ONCA 460. For facts, see note 118.

57 Diver [2012] NZCA 131.

58 Canada Cement LaFrage Ltd. v British Columbia Lightweight Aggregate Ltd. [1983] S.C.J. 33. The definition of unlawful means included a non-actionable statutory criminal offence.

59 Digicel (St. Lucia) Ltd. v Cable & Wireless Plc [2010] EWHC 774 (Ch), Morgan J., Concept Oil Services v En-Gin Group LLP [2013] EWHC 1897 (Comm), at [50], per Flaux J. See note 153 below.

60 Usually but not exclusively conspiracy.

61 Bank of Tokyo-Mitsubishi UFJ Ltd. v Baskan Gida Sanayi Ve Pazarlama AS [2009] EWHC 1276 (Ch), per Briggs J.; Meretz [2007] EWCA Civ 1303; [2008] Ch. 244; HSBC Bank Canada v Fuss [2013] ABCA 235; Fatimi Pty Ltd. v Bryant (2004) 59 NSWLR 678 (New South Wales Court of Appeal); Wagner [2014] NZCA 336; Erste Group Bank AG v JSC (VMZ Red October) [2013] EWHC 2926 (Comm).

62 Thames Valley Housing Association v Elegant (Guernsey) Ltd. [2011] EWHC 1288 (Ch), per Lewison J.

63 Fortress Value Recovery Fund v Blue Skye Special Opportunities Fund [2013] EWHC 14, per Flaux J.; Concept Oil Services Ltd. [2013] EWHC 1897 (Comm), per Flaux J.

64 Ontario Racing Commission v O'Dwyer (2008) 293 DLR (4th) 559 (Ont. CA): official from the horse-racing agency decided the plaintiff could no longer work as a race starter; Reach M.D. Inc. v Pharmaceutical Manufacturers Assn of Canada [2003] O.J. No. 2062 227 D.L.R. (4th) 458 (Ont. CA), the defendant trade association directed its members to refrain from advertising in the plaintiff's calendar, contrary to the defendant's code.

65 Dresna Pty Ltd. [2004] F.C.A.F.C. 169 (Federal Court of Australia Full Court) (discussed below).

66 There were three consolidated appeals.

67 I.e. where the means are civilly actionable or where the only reason the means are not actionable “is because the third party has suffered no loss”, OBG Ltd. [2007] UKHL 21, at [49].

68 Lord Hoffmann added a new additional requirement: the intermediary had to be one in whom the claimant has an economic interest, OBG Ltd. [2008] 1 A.C. 1, at [47]. Lord Nicholls preferred the “instrumentality” test.

69 OBG Ltd. [2007] UKHL 21; [2008] 1 A.C. 1, at [153]–[155]. He of course rejected this narrow view.

70 Ibid., at paras. [153]–[155], per Lord Nicholls.

Ibid

71 Hoffmann, see note 20 above, at p. 114.

72 A.I. Enterprises Ltd. 2014 SCC 12.

73 Apparently accepted by the SCC in I.B.T., Local 213 v Therien [1960] S.C.R. 265.

74 This is the phrase used by the Ontario CA in Correia (2008) 91 O.R. (3d) 353, at [107].

75 E.g. bribery in ONSC 671122 Ontario Ltd. v Sagaz Industries Canada Inc. [1998] 40 O.R. (3d) 229 (ONSC).

76 Conway v Zinkhofer 2008 ABCA 392. The defendant registered encumbrances against the plaintiff's property in contempt of a court order. As a result, a third party refused to extend financing to the plaintiff.

77 In I.B.T., Local 213 [1960] S.C.R. 265, the SCC determined that, to ascertain whether the means employed were illegal, “enquiry may be made both at common law and of the statute law”, at p. 280. However, note the views of Cromwell J. in A.I. Enterprises Ltd. 2014 SCC 12, at [62].

78 Roberston J.A. in the NBCA level of A.I. Enterprises commented that Lord Denning's treatment of the unlawful means issue in Torquay Hotel, 2012 NBCA 33, “has been a mainstay of the Canadian jurisprudence”, at [4], [47].

79 Reach M.D. Inc. [2003] O.J. No. 2062 227 D.L.R. (4th) 458 (Ont. CA).

80 Ibid., at para. [52].

Ibid

81 Alleslev-Krofchak v Viacom Ltd. 2010 ONCA 557 (conspiracy to defame set against inter-linked contractual relationships). And see Agribrands Purina Canada Ltd. 2011 ONCA 460, at [33] (though obiter).

82 Barber 2010 ONCA 570.

83 A.I. Enterprises Ltd. v Bram Enterprises Ltd. 2010 NBQB 245 (unreported).

84 A.I. Enterprises Ltd. 2014 SCC 12.

85 Roman Corp. v Hudson's Bay Oil and Gas Co. [1973] S.C.R. 820.

86 A series of actions “to thwart the sale”, A.I. Enterprises Ltd. 2014 SCC 12, at [1].

87 With groundless notice of right of first refusal and certificate of pending litigation.

88 A.I. Enterprises 2014 SCC 12, at [22], per Cromwell J.

89 They sought to define unlawful means as including an act that violates an obligation under the law for which legal proceedings (whether by the plaintiff, the third party, or even the state) could be brought to challenge the legitimacy of an act – the plaintiffs complaining that, though they could attack the encumbrances, that would not compensate them for the loss incurred in the meantime.

90 A.I. Enterprises 2014 SCC 12, at [5], per Cromwell J. The respondents won on grounds of breach of fiduciary duty, the company being liable for assisting.

91 Ibid., at para. [23].

Ibid

92 Ibid., at paras. [39]–[42].

Ibid

93 Ibid., at paras. [5], [84], respectively (though note he added at para. [74] that “details relating to the scope of what is ‘actionable’ may need to be worked out in the future”).

Ibid

94 Ibid., at para. [74].

Ibid

95 Ibid., at para. [29]. “The common law in the Anglo-Canadian tradition has generally promoted legal certainty for commercial affairs” (at para. [33]).

Ibid

96 Northern Territory v Mengel (1995) 185 C.L.R. 307, 345.

97 Sanders (1998) 196 C.L.R. 329, at [30]: no unlawful means had been used.

98 Hardie Finance Corp Pty Ltd. [2010] WASC 403.

99 Ibid., at para. [712].

Ibid

100 Ibid., at para. [714].

Ibid

101 In the Supreme Court of the Australian Capital Territory, (2010) ACTSC 20, at [141], [139], respectively.

102 Canberra Data Centres Pty v Vibe Constructions (ACT) Pty Ltd. [2010] ACTSC 20.

103 Ballard v Multiplex [2012] NSWSC 426, per McDougall J.

104 Sanders v Snell [1998] HCA 65, at [343]. This applied Dunlop v Woollahara Municipal Council [1982] A.C. 158 (PC) that a breach of procedural fairness by a public official was insufficient.

105 Hardie Finance Corp Pty Ltd. [2010] WASC 403, at [715].

106 A.I. Enterprises Ltd. 2014 SCC 12, at [54].

107 Diver [2012] NZCA 131, at [100]–[101].

108 The defendant conspirators allegedly participated in a VAT carousel or missing trader fraud, by produced invoices, “in order to pretend to the revenue that genuine commercial transactions had taken place and thereby to deceive the commissioners into paying up on a spurious input tax repayment claim”, Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [55], per Lord Scott.

109 Ibid., at para. [100].

Ibid

110 Lord Hope, “a gap that needs to be filled”, Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [44]; Lord Mance referred to “lacuna” at para. [120].

111 Lord Hope, ibid., at para. [42]–[43].

112 Burns, P. and Blom, J., Economic Interests in Canadian Tort Law (Markham 2009).

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113 Gagnon v Foundation Maritime Ltd. [1961] S.C.J. No. 23; [1961] S.C.R. 435.

114 Canada Cement LaFrage Ltd. [1983] 1 S.C.R. 452.

115 So a direct shape seemed accepted by the earlier Supreme Court decisions in Gagnon [1961] S.C.J. No. 23; [1961] S.C.R. 435 and Hunt v Carey Canada Inc. (1990) 74 D.L.R. (4th) 321, 339, per Wilson J. (SCC). And intermediary use or indirect harm appeared to be accepted in Gagnon and more recently in Alleslev-Krofchak 2010 ONCA 557, re the conspiracy alleged against one plaintiff, ARINC via the defamation of another plaintiff.

116 Gagnon [1961] S.C.R. 435, at 446. Judson J. dissented on the basis that, for conspiracy, unlawful means in the form of torts or crimes must be involved.

117 See Goudge J.A. in Agribrands Purina Canada Ltd. 2011 ONCA 460, at [37]. He accepted that unlawful means could involve a different definition as between the unlawful means and conspiracy torts (at [34]). In Canada Cement LaFrage [1983] S.C.J. 33, the defendants had engaged in a cartel agreement to drive out competition – an offence under the Combines Investigation Act 1970, s. 32. On the facts, however, no causation for the loss was shown.

118 Agribrands Purina Canada Ltd. 2011 ONCA 460. The defendant granted an exclusive dealership in a particular territory to the plaintiff but continued to supply their former exclusive licensee inter alia via other dealers; the plaintiff joined these dealers who knew of the breach. The ONCA found that there was no unlawful means conspiracy on the basis that neither the second or third defendant had actually committed a legal wrong.

119 HSBC Bank Canada [2013] ABCA 235, at [29]. Here, a conspiracy involved a scheme to prevent the creditor bank from realising on its security: new companies were set up to receive the business and assets of the debtor company (held to be the conversion of the debtor company's property as the transfer was not for fair market value) and preferential payments made to another creditor company in breach of bankruptcy laws.

120 Lord Hoffmann, in OBG Ltd. [2007] UKHL 21; [2008] 1 A.C. 1, at [55], distinguishes between acts “contrary to law” and those that are actionable.

121 Williams (1959) 103 C.L.R. 30. And see Ansett Transport Industries (Operations) Pty Ltd. & Ors v Australian Federation of Air Pilots [1991] 1 VR 637, per Brooking J.

122 In Williams, ibid., there were torts committed but Taylor J. appears to suggest (at p. 34) that statutory prohibition suffices. However, Neyers argues that Williams is not in fact authority for this view, Neyers, J.W., “Causing Loss by Unlawful Means: Should the High Court of Australia Follow OBG Ltd. v Allan”, in Degeling, S., Edelman, J. and Goudkamp, J. (eds.), Torts in Commercial Law (Sydney 2011), 138, note 133.

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123 Edmundson, P., “Conspiracy by Unlawful Means: Keeping the Tort Untangled” (2008) 16 T.L.J. 189, 202.

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124 Chen v Karandonis [2002] NSWCA 412. The case essentially involved reducing the company, from the profits of which the plaintiff was to be paid, into a shell.

125 Fatimi Pty Ltd. (2004) 59 NSWLR 678 (New South Wales Court of Appeal).

126 Voidable under s. 37A of the Conveyancing Act 1919 (NSW) because of an intention to defraud creditors. The Court of Appeal also found that unlawful means would be constituted by a statutory criminal offence and the offence of perverting the course of justice. However, the plaintiff failed on causation.

127 Dresna Pty Ltd. [2004] F.C.A.F.C. 169 (Federal Court of Australia Full Court), per Kiefel and Jacobson JJ.

128 Under s. 87B of the Trade Practices Act 1974: “… the party giving the undertaking is not entitled to act in that way” (at [18]).

129 The result alleged by the plaintiff was that the Commission reached a decision that caused economic loss to the plaintiff (Marshall J. dissented on the basis that the statutory scheme did not proscribe behaviour).

130 Barker, K., Cane, P., Lunney, M. and Trindade, F., The Law of Torts in Australia, 5th ed. (Melbourne 2012), 286. (They also note Naidoo v Naidoo [2005] WADC 254, false complaint to the Office of the Public Advocate, though that case was classified as involving lawful means conspiracy.)

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131 Dresna Pty Ltd. [2004] F.C.A.F.C. 169 (Federal Court of Australia Full Court), at [28]. Heydon, J.D., Economic Torts, 2nd ed. (London 1978), 6870.

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132 See note 141 below.

133 Wagner [2014] NZCA 336.

134 The court stressed the limits that could be read into Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174.

135 However, it should be noted that Lord Hoffmann's additional requirement of an “economic link” between the intermediary and the claimant (see note 3 above) was criticised by Cromwell J. in A.I. Enterprises Ltd. 2014 SCC 12, at [87]; he uses Lord Nicholls's instrumentality test (at [78]).

136 The need for a gap was indeed stressed by the NZCA in Wagner [2014] NZCA 336, at [73]: in the case itself, there was held to be adequate civil redress for the plaintiff elsewhere. Interestingly as far as the unlawful means tort was concerned, the SCC in A.I. Enterprises 2014 SCC 12, at [5(2)] and [77], rejected the so-called tort of last resort rule, namely that, to qualify as “unlawful means”, the defendant's actions cannot be actionable directly by the plaintiff.

137 Burns and Blom, Economic Interests in Canadian Tort Law, at note 10.

138 Edmundson, “Conspiracy by Unlawful Means”, p. 199.

139 Mitchell, “Conspiracy”.

140 M. McLaren Q.C., “A New Lease of Life for Unlawful Means Conspiracy”, The In-House Lawyer.co.uk (18 March 2009).

141 For Canada, see note 115 above; in Australia, Dresna involved non-actionable “wrongs” and intermediary use; in Fatimi, non-actionable direct harm was involved.

142 Wagner [2014] NZCA 336, at [80]. The court did note that, in Total Network SL, the court was careful to limit their comments to direct harm.

143 Indeed, this was the form debated by the House of Lords in Lonrho [1992] 1 A.C. 448, the case that confirmed the existence of the unlawful means tort. Lord Hope, Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [43], reserved opinion on indirect conspiracy harm.

144 McBride and Bagshaw, Tort Law, p. 691.

145 Lord Mance cautioned “not every criminal act committed in order to injure can or should give rise to tortious liability”, Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [119].

146 See note 20 above, pp. 115–16. And he limits the tort to direct harm.

147 Wagner [2014] NZCA 336, at [73]. By analogy, it is interesting to note that the NZCA in Wagner (at [78]) determined that the breach of fiduciary duty involved in that case would not constitute unlawful means for the conspiracy tort inter alia because the duty was owed to the company and was not imposed for the purpose of protecting creditors like the plaintiff.

148 See (respectively) e.g. Agribrands Purina Canada Ltd. 2011 ONCA 460 and Barker et al., The Law of Torts in Australia.

149 Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [56], per Lord Scott. Lord Walker noted that the unacceptable conduct must be the means or instrumentality for intentionally inflicting harm on the claimant (at [94]–[100]).

150 Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [56].

151 Lord Neuberger stated that unlawful means conspiracy is “merely an application of … lawful means conspiracy”, Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [228].

152 Digicel (St. Lucia) Ltd. [2010] EWHC 774 (Ch), per Morgan J.; Concept Oil Services Ltd. [2013] EWHC 1897 (Comm), per Flaux J. respectively. And see McLaren, “A New Lease of Life”.

153 Whether such can constitute unlawful means is uncertain in England, see Digicel (St. Lucia) Ltd. [2010] EWHC 774 (Ch), Annex I, at [59], per Morgan J.; Concept Oil Services Ltd. [2013] EWHC 1897 (Comm), at [50] (obiter), per Flaux J.

154 Laurence v Peel Regional Police Force (2005) 250 D.L.R. (4th) 287, at [8].

155 Lord Mance, Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, adding “and the interests of justice may require their development on somewhat different bases”, at [123].

156 A.I. Enterprises 2014 SCC 12, at [62], per Cromwell J.

157 Lord Hoffmann, “The Rise and Fall of the Economic Torts”, p. 115, the unlawful means tort being concerned with the limits of competitive behaviour, the conspiracy tort providing a direct cause of action to fill the gap (though he suggests only in rare cases). He appears to be attempting to reconcile the House of Lords' decisions in OBG Ltd. and Total Network SL.

158 A.I. Enterprises Ltd. 2014 SCC 12, at [68]; and see Goudge J.A., in Agribrands Purina Canada Ltd. 2011 ONCA 460, at [34].

159 Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [219], per Lord Neuberger; at [89], per Lord Walker.

160 Edmundson, “Conspiracy by Unlawful Means”.

161 Lord Walker, Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [55], citing Lord Wright in Crofter v Veitch [1942] A.C. 435, 462.

162 Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [76].

163 A.I. Enterprises Ltd. 2014 SCC 12, at [68].

164 Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [222], per Lord Neuberger. There are hints that there is concern about commercial malpractice through group activity: see Lord Mance at [122], Lord Hope at [42], and Lord Walker at [77], but this needs to be addressed in more detail – and explanations offered why existing civil law is not adequate.

165 Of course, lawful means conspiracy in theory requires a more intense intention – predominant purpose. However, in Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174 itself, the discussion of this concept became in essence synonymous with intentional harm without justification (see in particular at [228], per Lord Neuberger).

166 Hardie Finance Corp Pty Ltd. [2010] WASC 403, at [709].

167 This indeed was suggested Lord Glennie in the Scottish case, McLeod v Rooney [2009] CSOH 158; 2010 S.L.T. 499, Court of Session (Outer House). There is a wider discussion of this in Carty, H.The Tort of Conspiracy as a Can of Worms” in Pitel, S., Neyers, J. and Chamberlain, E. (eds.), Challenging Orthodoxy (Oxford 2013).

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168 So conspiracy is alleged in the asset stripping/restructuring cases referred to in notes 61–63 above.

169 Wagner [2014] NZCA 336, at [27]. Gloster J., in Barclay Pharmaceuticals Ltd. v Waypharm LP [2012] EWHC 306 (Comm), found the proposition that an agreement between a natural person and a company that person controlled could be a conspiracy for unlawful means conspiracy to be persuasive. See C. Witting “Intra-Corporate Conspiracies: An Intriguing Prospect” [2013] C.L.J. 178.

170 In Tiscali UK Ltd. v British Telecommunications Plc [2008] EWHC 3129 (QB), Eady J. permitted the claimant to plead the unlawful means tort inter alia on the basis of an alleged breach of a statutory criminal provision.

171 The Supreme Court of Canada in Gagnon [1961] S.C.J. No. 23; [1961] S.C.R. 435 in fact appeared to envisage the same definition for unlawful means (“prohibited means”) in both the conspiracy and unlawful means torts.

172 OBG Ltd. [2007] UKHL 21; [2008] 1 A.C. 1, at [153]. In Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, Lord Mance found force in the argument that cheating alone – even in the absence of conspiracy – should constitute unlawful means, at [121].

173 OBG Ltd. [2007] UKHL 21; [2008] 1 A.C. 1, at [150] (unlawful means); at [161] (direct harm liability). Interestingly, the Ontario CA in Correia (2008) 91 O.R. (3d), at [98], liken Lord Nicholls's view in OBG Ltd. to the approach taken in Reach M.D. Inc. [2003] O.J. No. 2062 227 D.L.R. (4th) 458 (Ont. CA), which reflected Lord Denning's liberal view of unlawful means.

174 E.g. Lord Walker, Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174, at [93]: “… all the statements of principle in the classic cases seem to me to be consistent with the principle that unlawful means, both in the tort of causing loss by unlawful means and the tort of conspiracy, include both crimes and torts.”

175 It should be noted, however, that, in Canada Cement LaFrage Ltd. [1983] 1 S.C.R. 452, the Supreme Court of Canada established that where the unlawful means conspiracy tort is pleaded, a constructive intent suffices (with the caveat that the act be directed towards the plaintiff).

176 A.I. Enterprises Ltd. 2014 SCC 12.

177 Hardie Finance Corp Pty Ltd. [2010] WASC 403, at [723].

178 Diver [2012] NZCA 131, at [103].

179 Lord Hoffmann expressly stated this was to widen the definition, OBG Ltd. [2007] UKHL 21, at [60]. It should further be noted that the NZCA in Wagner [2014] NZCA 336 cautioned that “the distinction between means and foreseeable consequences is a very narrow one and in practice often difficult to apply in any meaningful way”, at [105].

180 Indeed, at times, there is a negligence feel to the claims, e.g. in Canada, Mraiche Investment Corp v McLennan Ross LLP 2012 ABCA (conspiracy claim against the solicitor of a client who used unlawful means to cause economic harm to the plaintiff, its creditor), and in Australia, Hardie Finance Corp Pty Ltd. [2010] WASC 403.

181 Of course, Lord Hoffmann was happy to expand the definition of intention given he had kept the definition of unlawful means within narrow limits.

182 Berryland Books Ltd. v BK Books [2010] EWCA Civ 1440 (CA), at [48]; and see the English High Court cases noted at [103], fn. 43.

183 Total Network [2008] UKHL 19; [2008] 1 A.C. 1174, at [76]–[77], per Lord Walker.

184 This possibility was noted by the New Zealand Court of Appeal in Wagner [2014] NZCA 336, at [105]. They preferred “directed at” as the test (see [106]), a test found in all the Total Network [2008] UKHL 19; [2008] 1 A.C. 1174 speeches.

185 A.I. Enterprises 2014 SCC 12, at [36], per Cromwell J.

186 Hardie Finance Corp Pty Ltd. [2010] WASC 403, at [707].

187 OBG Ltd. v Allan [2005] QB 762, at [117]. Note the caution of the NZCA in Wagner [2014] NZCA 336, at [81]–[86] re conspiracy liability.

188 For a review of the academic and judicial debate on this topic, see Carty, H., An Analysis of the Economic Torts, 2nd ed. (Oxford 2010), especially 169–81.

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