Economic Torts – Lecture 3					Roderick Bagshaw Magdalen College Michaelmas 2002
			Allen v Flood and Lord Herschell’s Chasm
***			a. Allen v. Flood and TAYLOR [1898] AC 1				***
“ arguably the most important case in the book.” (Weir, Casebook (9th ed.), p. 599)			D threatens employer that Ironworkers will stop working unless Flood and Taylor are not re-engaged the next morning. Done. (NB 1 – no procuring of a breach) (NB 2 – no unlawful means used to persuade employer) ? Is it a tort to “maliciously induce termination of a contract, or maliciously induce a party to refuse to enter a contract”?				For background, RFV Heuston, “Judicial Prosopography” 102 LQR 90
*** Lord Watson, at p. 92,			“the law of England does not, according to my apprehension, take into account motive as constituting an element of civil wrong.”				Cf, Bradford v Pickles [1895] AC 587
*** Lord Macnaghten, at p. 151,			“I do not think that there is any foundation in good sense or in authority for the proposition that a person who suffers loss by reason of another doing or not doing some act which that other is entitled to do or abstain from doing at his own will and pleasure, whatever his real motive may be, has a remedy against a third person who, by persuasion or some other means not in itself unlawful, has brought about the act or omission from which the loss comes, even though it could be proved that such person was actuated by malice towards the plaintiff, and that his conduct if it could be inquired into was without justification or excuse.”
*** Lord Herschell,			“I can imagine no greater danger to the community than that a jury should be at liberty to impose the penalty of paying damages for acts which are otherwise lawful, because they choose, without any legal definition of the term, to say that they are malicious.” [NB i. a civil jury, ii. how civil juries were selected]
*** Weir, Economic Torts (1997), at p. 77,			“I do believe that in the economic sphere where some deliberate harm may unquestionably be caused, not just in self-defence as in the physical sphere but for self-aggrandisement, the common law should not, unless the law has itself outlawed the means used, impose liability; liberty of action should not be constrained by vaguer criteria, however inspiring their formulation.”
***			>b. The centrality of UNLAWFUL MEANS<				***
			If unlawful means had been used by Allen to get Flood and Taylor not re-engaged he would have committed a tort. If the unlawful means used had been a threat of an unlawful act this would have been the tort of intimidation (three-party).
O g			c. The Untaken Path: MALICE & Prima-Facie Tort				g N
Phys: Wilkinson v Downton [1897] 2 QB 57, Wright J			“The defendant has ... wilfully done an act calculated to cause physical harm to the plaintiff - that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act.”
Economic: Mogul Steam’p (1889) 23 QBD 598, at p. 613			Bowen LJ, “Intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person’s property or trade, is actionable if done without just cause or excuse.”(HL [1892] AC 25)
***			· The case in favour of the prima-facie tort doctrine
Academics			OW Holmes, “Privilege, Malice and Intent” (1894) 8 Harv LR 1
			JD Heydon, (1975) 12 UWALR 1, 14, “The change would make the law much more capable of handling bad behaviour and abuse of rights and of power; much more flexible; and much more based on factors of substance rather than technicality.”
Cases in need…			Tuttle v Buck (1909) 119 NW 946; Keeble v Hickeringill (1705) 11 East 573n
*** The case against the prima-facie tort ***			· The case against the prima-facie tort doctrine 1. ‘without justification’ too vague and too difficult to define 2. onerous for trade rivals, protestors and trade unions to justify 3. “Disinterested malevolence is so rare that it is unwise to develop a rule to combat it which can be used by a disgruntled hairdresser who has lost his profitable local monopoly.” (Weir, Economic Torts, p. 73)				Website: http://users.ox.ac. uk/~mans0322/
		d. The Taken Path: Interference with Trade by Unlawful Means
***	The functions and risks of general principles
Functions>>	1. Filling Gaps 2. Ironing-out Inconsistencies, Neatness
	Misidentification 2. Hypnosis 3. Expansionism Wedderburn, (1983) 46 MLR 224, economic torts - “a ramshackle construction for decades … they have lacked their Atkin”.					<<Risks
***	Existence of the “genus tort”					***
…it exists	Lonrho v Fayed [1990] 2 QB 479, Woolf LJ, at 493E, “The tort relied upon by Lonrho of unlawful interference is still, in my view, of uncertain ambit, albeit that its existence is now beyond doubt and certain of its features are clearly defined.” Merkur Island Shipping v Laughton [1983] 2 AC 570, Lord Diplock, at 609, “the evidence also establishes a prima facie case of the common law tort ... of interfering with the trade or business of another person by doing unlawful acts. To fall within this genus of torts the unlawful act need not involve procuring another person to break a subsisting contract or to interfere with the performance of a subsisting contract.”
***	Torts outside the genus: procuring a breach of contract (Lumley v. Gye); simple conspiracy (Quinn v. Leathem); Deceit (?); Injurious falsehood (?) - squeezing everything in: Sales & Stilitz 115 LQR 411 (1999)
***	Points of uncertainty: Lonrho v Fayed, Ralph Gibson LJ, at 492, “first, the nature of the intention which is required to satisfy the requirement that conduct be ‘directed against’ the plaintiffs ...; secondly, the nature of the business interest by reference to which the plaintiff must prove that he has been damaged; thirdly, whether there is a sufficient nexus or directness of impact between the unlawful means employed and the alleged loss causing effect upon the plaintiffs; and, fourthly, whether the damage alleged is sufficient to support the existence of a cause of action.”					***
Uncertainty 1	· · i. State of Mind					???
	‘aiming at’ or ‘directed against’ Falconer v NUR [1986] IRLR 331 - ‘aiming at’ commuters?
Uncertainty 2	· · ii. Trade					???
	Merkur Island – payment expected under contract Stratford v Lindley [1965] AC 269 – chance of new contracts Lonrho v Fayed – chance to bid for House of Fraser RCA v Pollard [1983] Ch 135 - bootleggers & the Chelsea burglar ‘Unjustified business reputations’?
Uncertainty 3	· · iii. Unlawful Means					???
	Rookes v Barnard [1964] AC 1129 – threats to break contracts Lonrho v Shell (No. 2) [1982] AC 173 – breaking penal statutes Lonrho v Fayed – deceit without loss to the person deceived
Solutions to Uncertainty 3	Carty 104 LQR 250 (1988) - choose: “all things one is not at liberty to do”, “all crimes & civil wrongs” or “all civil wrongs”.
	Elias & Tettenborn [1981] CLJ 230, 232, “a criminal provision should ground liability … unless there are clear reasons of policy or in its interpretation why it should not.”
Why 3 persists?.	The problem of R E L A T I V I T Y					Website: http://users.ox.ac. uk/~mans0322/
	Defining what is wrongful between D and C, with regard to D causing harm to C’s economic interests - using what it is unlawful for D to do vis-à-vis T
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