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Roderick Bagshaw Mansfield College Michaelmas 2000 |
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Economic Torts – Lecture 4 |
The “Genus-Tort”: |
Interference with trade by unlawful means |
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Lord Wedderburn, (1983) 46 MLR 224, the economic torts have been “a ramshackle construction for decades … they have lacked their Atkin”. |
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a. The functions
and risks of general principles |
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Functions>> |
1. Filling Gaps 2. Ironing-out Inconsistencies, Neatness |
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1. Misidentification 2. Hypnosis 3. Expansionism |
<<Risks |
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b. Interference with Trade by Unlawful Means |
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…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.” |
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Torts outside the genus: directly 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) |
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·
Points of
uncertainty: Lonrho v Fayed, Ralph
Gibson LJ, at 492, “Those points include, 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.” |
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Uncertainty 1 |
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a. State of Mind |
??? |
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‘aiming at’ or ‘directing against’ [XX ‘knowing of the contract’ XX] Falconer v NUR [1986] IRLR 331 - strikers ‘aiming at’ the commuters? |
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Uncertainty 2 |
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b. Trade |
??? |
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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 - boot-leggers & the Chelsea burglar ‘Unjustified business reputations’? |
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Uncertainty 3 |
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c. Unlawful Means |
??? |
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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 deceived Associated Newspapers Group v Wade [1979] ICR 664, 691, Lord Denning MR, “interference with the freedom of the press” |
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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”. |
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Elias & Tettenborn [1981] CLJ 230, 232, “a criminal provision should ground liability in tort for causing loss by unlawful means unless there are clear reasons of policy or in its interpretation why it should not.” |
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Why 3 persists?. |
The problem of R E L A T I V I T Y |
Website: http://users.ox.ac.uk/~mans0322/ |
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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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