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Date: Wed, 12 Mar 2008 16:24 From: Robert Stevens Subject: Unlawful means conspiracy
I must confess that I find their Lordships speeches to be somewhat light on analysis and rather heavy on citation (even if I am one of those cited). In order to know what should count as unlawful means it is necessary to know what the 'tort' of 'unlawful means conspiracy' is for. As a matter of principle, why do we have it? A first instance judge or the Court of Appeal may be bound by prior authority to give an answer one way or the other, and so may not have to reflect further on the principles involved (as was the case here). The House of Lords are not so bound, and there was no clear authority in any event. In the literature there are, so far as I can see, two plausible theoretical bases. The most popular (that of Sales and Hazel Carty in her great book) is that it is a form of secondary liability. On that basis only a civil wrong would do (a breach of contract would count). The House of Lords reject this (rightly in my opinion). Another more outlandish view (mine) was that there was no tort of unlawful means conspiracy, and that it was just part of the general rules on joint torts (i.e. it was part of the same rule as Brooke v Boole). (On this view a breach of contract would not suffice). On the assumption that there is a tort of unlawful means conspiracy (both parties proceeded on this assumption in argument) then it must be the case, as Lord Neuberger states, that a crime suffices, otherwise the 'tort' is swallowed up by the rules of attribution of action for the purposes of the joint torts. By conceding that there was such a free-standing tort, the defendants were bound to lose. However, I do not know what any of their Lordships think this tort is for. We know they reject the secondary liability thesis and (implicitly) reject the view that it is all part of the rules on joint torts. But, when the issue of whether a breach of contract suffices or which crimes suffice (not all - see Lord Mance at [119]), how are we supposed to work out the answer? What is the nature of this beast? For myself, I don't see what the magic of conspiracy is. If Microsoft commit a crime with the intention to harm me, should that be treated differently from two of my students agreeing to commit a crime, which one of them carries out, with the intention to harm me? If there is no tort involved, why should they be liable and Microsoft not? Nobody doubts or criticises OBG, by the way.
Robert Stevens
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