Causing Loss by Unlawful Means

Abstract

In the past, a number of English authorities have suggested that unlawful interference with trade (now also known as 'causing loss by unlawful means') is a 'genus' tort that provides the rationale as well as framework for analyzing various economic torts including intimidation and conspiracy by unlawful means. However, this view has been decidedly rejected by the House of Lords in OBG Ltd. v. Allan. The majority judges in that case restricted the tort to one that redresses only unjustified interferences with third-party liberty. Since it has a multi-party structure, it is conceptually distinct from cases where liability has been imposed for direct (two-party) interferences. On this view, two-party intimidation, unlawful means conspiracy and causing loss by unlawful means are separate torts despite their common reliance on an independent legal wrong. It also means that there is no single thread that runs through this 'family' of economic torts. While the element of illegality is an essential and common constituent of these torts, it is not the sole element that justifies the tort. Rather, each tort is founded on the combination of a particular course of conduct with the requisite unlawfulness. Consequently (and more controversially), it is now no longer meaningful to identify a single conception of 'unlawful means' that is applicable to all these torts. In each case, it is essential to ensure that the illegality constitutes the tort only if it produces the type of conduct that the tort is designed to deter.

Full text

Singapore Journal of Legal Studies
[2011] 330–350
CAUSING LOSS BY UNLAWFUL MEANS
Lee Pey Woan∗
In the past, a number of English authorities have suggested that unlawful interference with trade
(now also known as “causing loss by unlawful means”) is a “genus” tort that provides the rationale
as well as framework for analysing various economic torts including intimidation and conspiracy
by unlawful means. However, this view has been decidedly rejected by the House of Lords in OBG
Ltd. v. Allan. The majority judges in that case restricted the tort to one that redresses only unjustified
interferences with third-party liberty. Since it has a multi-party structure, it is conceptually distinct
from cases where liability has been imposed for direct (two-party) interferences. On this view,
two-party intimidation, unlawful means conspiracy and causing loss by unlawful means are separate
torts despite their common reliance on an independent legal wrong. It also means that there is no
single thread that runs through this “family" of economic torts. While the element of illegality is
an essential and common constituent of these torts, it is not the sole element that justifies the tort.
Rather, each tort is founded on the combination of a particular course of conduct with the requisite
unlawfulness. Consequently (and more controversially), it is now no longer meaningful to identify a
single conception of “unlawful means” that is applicable to all these torts. In each case, it is essential
to ensure that the illegality constitutes the tort only if it produces the type of conduct that the tort is
designed to deter.
I. Introduction
The tort of causing loss by unlawful means1has had a troubled past. Until the House
of Lords’decision in OBG Ltd. v. Allan,2it was better known as an “undeveloped” tort
of “uncertain scope”.3Substantial uncertainty surrounded the scope of its elements
∗Associate Professor of Law, School of Law, Singapore Management University. I am grateful to Gary
Chan for his comments on an earlier draft of this article. The usual caveat applies.
1Or “interference with… trade or business by unlawful means” (Hadmor Productions Ltd. v. Hamilton
[1982] 2 W.L.R. 322 at 333, Lord Diplock (H.L.) [Hadmor]). On the possible significance of the
different labels, see Burton Ong, “Two Tripartite Economic Torts” [2008] J. Bus. L. 723 at 732-734.
The existence of this tort has been judicially recognised in Singapore: see Tribune Investment Trust
Inc. v. Soosan Trading Co. Ltd. [2000] 2 S.L.R.(R.) 407 at para. 15 (C.A.), but this was strictly obiter as
the issues raised in that case ultimately pertained only to the tort of inducing breach of contract. More
recently, this tort was also unsuccessfully pleaded in the High Court decision of Walton International
Group (Singapore) Pte. Ltd. v. Yau Kwok Seng Winston [2011] SGHC 144. But in neither decision was
the scope and rationale of the tort examined at length. For that reason, this paper attempts to explicate
the tort largely through the lens of English authorities.
2[2007] UKHL 21, [2008] 1 A.C. 1 (H.L.) [OBG].
3Anthony Dugdale & Michael Jones, eds., Clerk & Lindsell on Tort, 19th ed. (London: Sweet & Maxwell,
2006) at paras. 25-88, citing Henry J. in Barretts & Baird (Wholesale) Ltd. v. Institution of Professional
Civil Servants [1987] Industrial Relations Law Reports 3 at 10 (Q.B.D.) [Barretts & Baird].

Sing. J.L.S. Causing Loss By Unlawful Means 331
(namely, intention and unlawful means) as its rationale was rarely examined. Adding
to that complexion is the murky relationship that this tort bears to the other economic
torts such as inducing breach of contract, intimidation and conspiracy. With the
recent pronouncements in OBG, a significant measure of clarity appears to have
been restored. In particular, by severing the unlawful means tort from its historical
links to the tort of inducing breach of contract, it is now clear that the unlawful means
tort is (unlike the Lumley v. Gye4tort) not a form of accessory liability5but a primary
and substantive tort.
Significant as this clarification may be, perplexing questions remain as to what
the precise ambit of the tort of causing loss by unlawful means is, or ought to be. In
particular, the debate as to the scope of “unlawful means” remains very much alive in
view of the lack of unanimity amongst the Law Lords in OBG on this point. Although
some degree of finality may have been achieved by the adoption of a narrow definition
by the majority Law Lords in OBG, such an approach has been criticised on account
of its illogicality6and inconsistency with authorities.7Secondly, it is unclear if the
legal principles enunciated by their Lordships apply only to indirect interferences,
or extend also to those involving direct, two-party interferences. In substance, this
second question is part and parcel of a third and larger inquiry: is causing loss
by unlawful means a general principle or “genus” tort of which other specific torts
are examples?8With the excision of the Lumley v. Gye tort, the nominate torts that
may be included under this broad principle are intimidation, indirect inducement of
contractual breaches and conspiracy by unlawful means.
This article addresses these questions by examining the conceptual foundation
of causing loss by unlawful means as elucidated by the authorities. On the whole,
the strict inductive reasoning employed by the majority Law Lords in OBG appears
to have foreclosed the development of a broad organising principle. Rather, their
Lordships’ preference was to construct the law incrementally. Under this approach,
causing loss by unlawful means is a discrete tort with a limited object. It recognises
that a claimant has a general liberty to trade, and such liberty is protected by limited
claim-rights against interferences. Inducing breach of contract, intimidation and
conspiracy are established instances of such rights, and causing loss by unlawful
means is the latest addition to the stable. It protects the claimant’s liberty to trade
by remedying unjustified interferences with third-party liberty. For that reason,
the tort necessarily has a multi-party structure and is conceptually distinct from
4(1853) 2 E. & B. 216 (Q.B.D.).
5But the correctness of this analysis has been doubted: see Pey-Woan Lee, “Inducing Breach of Contract,
Conversion and Contract as Property” (2009) 29 Oxford J. Legal Stud. 511 at 521, 522.
6OBG,supra note 2 at para. 155, Lord Nicholls.
7Simon Deakin & John Randall, “Rethinking the Economic Torts”(2009) 72 Mod. L. Rev. 519 at 544-549.
8This is a narrower proposition than the “unified principle” rejected by OBG, but is similarly traceable
to Lord Denning’s influential dicta in various cases: see e.g.,Daily Newspapers Ltd. v. Gardner [1968]
2 Q.B. 762 at 782 (C.A.) [Gardner]; Torquay Hotel Ltd. v. Cousins [1969] 2 Ch. 106 at 139; Acrow
(Automation) Ltd. v. Rex Chainbelt Inc. [1971] 1 W.L.R. 1676 at 1682 (C.A.) [Acrow]; and culminating
in the recognition of a “genus” tort by Lord Diplock principle in Hadmor,supra note 1 at 333 and
Merkur Island Shipping Corp. v. Laughton [1983] 2 A.C. 570 at 609 (H.L.). Some commentators (see
e.g., Ken Oliphant, Butterworths Common Law Series: The Law of Tort, 2nd ed. (London: LexisNexis
Butterworths, 2007) at paras. 29-87) have interpreted OBG as affirming this more limited general
principle.

332 Singapore Journal of Legal Studies [2011]
two-party liability contingent upon the use of unlawful means. On this account, two-
party intimidation, unlawful means conspiracy and causing loss by unlawful means
are separate torts despite their common reliance on an independent legal wrong.
Crucially, this would also mean that although the element of illegality is necessary
for founding liability, it is not, by itself, the sole rationale of any of the torts. In
each case, the tort is founded on the combination of a particular course of conduct
with the requisite unlawfulness. If that is right, then the answer to the notoriously
vexed question of what should count as unlawful means is not found in an assiduous
search for particular types or lists of unlawful acts but in ensuring a critical coherence
between the illegality and the rationale of each tort.
II. The Tort Clarified?
It is useful to begin with a review of the tort’s elements. In OBG, Lord Hoffmann
identified them to be: “(a) a wrongful interference with the actions of a third party
in which the claimant has an economic interest and (b) an intention thereby to cause
loss to the claimant”.9
A. Intention
Prior to OBG, considerable support existed for the view that the mental element
of the tort ought to be construed narrowly, insisting on proof that the defendant
has targeted or aimed at causing loss to the claimant.10 On this view, it is not
sufficient to show that the defendant knows that his conduct would inevitably injure
the claimant. It must also be established that the latter is in fact the primary subject
of the defendant’s injurious act. Barretts & Baird11 is often cited as an authority for
this proposition. In that case, the defendant union called on its members, who were
employed by the Meat and Livestock Commission (“MLC”) to certify both livestock
and deadstock for export, to go on one-day “lightning strikes” in a bid to coerce the
MLC to agree to improved pay structures. The plaintiffs, who were abattoir owners
and others involved in the meat trade, unsuccessfully sought to restrain the defendants
from proceeding with the strikes on the ground that such conduct would amount
to unlawful interference with their business. One consideration that influenced the
court’s decision was the finding that the defendant had targeted the MLC and not
the claimants. For that reason, the defendant could not be said to have intended
the claimants’ harm, and this was despite their knowledge that the disruption to the
claimants’business would be an inevitable consequence of the strikes.12 By reserving
9Supra note 2 at para. 47.
10 See e.g., Patrick Elias & Keith Ewing, “Economic Torts and Labour Law: Old Principles and New
Liabilities” (1982) 41 Cambridge L.J. 321 at 327; Bob Simpson, “The Labour Injunction, Unlawful
Means and the Right to Strike” (1987) 50 Mod. L. Rev. 506 at 512, 513; Hazel Carty, “Intentional
Violation of Economic Interests: The Limits of Common Law Liability” (1988) 104 Law Q. Rev. 250
at 274-277.
11 Supra note 3.
12 It should, however, be noted that this was decided at a time when it was thought that “predominant
purpose to injure” was an element of the unlawful means tort (see Barretts & Baird,supra note 3 at 10),
a misconception since dispelled by the Court of Appeal in Lonrho Plc. v. Fayed [1989] 2 Q.B. 479 at
488, 489 (C.A.) [Lonrho].

Sing. J.L.S. Causing Loss By Unlawful Means 333
the right of action to the primary targets of the defendant’s conduct, this conception
of “intention” effectively keeps the tort within narrow bounds.
In OBG, however, the House of Lords rejected this restrictive notion of “inten-
tion”, preferring, instead, to define the mental element in terms of ends and means.
Thus, the test is that the defendant must either have intended to harm the claimant
as an end in itself or as a means to an end.13 Mere knowledge that loss is proba-
ble or foreseeable would not suffice.14 The inclusion of this means-to-an-end limb
clearly has the effect of expanding the test, such that a defendant who knows that
a claimant will inevitably be harmed by his conduct may be taken to have intended
such harm even if the claimant is not in fact his primary target. So if A induces
B to breach its contract with C so as to incapacitate C in the performance of its
obligations to D, A’s intention to harm C may be inferred from A’s knowledge that
damage to C is a necessary consequence of B’s breach and therefore an effective
means of injuring D as the ultimate subject of A’s design.This extended concept
of intention was established in Douglas v. Hello! Ltd.,15 where the evidence was
that Hello! knew that the publication of unauthorised photographs of the Douglases’
wedding would inevitably harm OK!’s interests as the exclusive agent to report on
the event. It made no difference that Hello!’s real purpose was that of improving
its own sales because such purpose could only be fulfilled at OK!’s expense.16 In
such a case, the defendant’s gain and the claimant’s loss were “inseparably linked”17
since it may reasonably be presumed that but for Hello!’s interference, the reader
who bought the offending magazines would likely have bought the equivalent OK!
edition.
It does not, however, follow that the relevant intention is inferred whenever harm
to the claimant is a natural consequence of the defendant’s act. It must also be shown
that the defendant intended such harm as a means of achieving its ultimate end.18
This is implicit in their Lordships’ rejection of Millar v. Bassey19 by distinguishing
between means and consequences.20 In that case, Miss Bassey’s refusal to perform
for a recording company had resulted in loss to the claimants and it was found that
such loss was an inevitable consequence of her action. Nonetheless, it was clear that
the only end that Miss Bassey had in mind was the termination of her own contract
with the recording company. As far as Miss Bassey was concerned, the termination
of the claimants’ contracts with the recording company was neither here nor there;
they were only the consequence of her breach but did not in any way facilitate the end
that she had in mind. For that reason, Miss Bassey should not have had to account
for the claimants’ loss.
Despite the Law Lords’ consensus on the mental element of the tort, it is clear the
full ramifications of the test as enunciated in OBG have yet to be worked out. Indeed,
13 OBG,supra note 2 at paras. 42, 43 and 164, 165. Or that “[t]he intent [to injure the claimant] must be a
cause of the defendant’s conduct” (OBG,supra note 2 at para. 166, Lord Nicholls [emphasis added]).
14 Ibid. at paras. 43, 166.
15 One of the three appeals heard in OBG,ibid.
16 Ibid. at paras. 134, 167.
17 Ibid. at para. 167, Lord Nicholls.
18 Ong, supra note 1 at 742.
19 [1994] E.M.L.R. 44 (C.A.).
20 OBG,supra note 2 at paras. 43, 166.

334 Singapore Journal of Legal Studies [2011]
OBG was soon followed by Meretz Investment NV v. ACP,21 which clarified that a
defendant who acted in the honest belief that it was exercising its legal rights could
not be said to have intended to harm the claimant even in the face of clear evidence
that it had intended the claimant’s loss. In so holding, Meretz appears to have added
a gloss to the OBG test, for it is no longer sufficient to demonstrate that the defendant
had intended to injure the claimant as a means to achieving another object. Instead,
one must also examine the nature of the defendant’s ultimate object, to see if it was
proper or legitimate.22 The enforcement of a security by a first chargee, as was the
case in Meretz, is a manifestly proper end. Such a chargee could not be said to have
acted with a blameworthy state of mind even if its enforcement of the charge was
clearly detrimental to the claimant’s interests.23
An arguably more worrying implication of their Lordships’ rejection of targeted
harm as a mechanism for controlling liability is that it may lead to the imposition
of liability in cases where the claimant’s injury appears incidental to the defen-
dant’s design. It would, for example, justify the outcome in a case such as Falconer
v. ASLEF,24 where the claimant, a passenger on British Rail, sought damages for
loss arising from industrial action taken by the defendant unions as against British
Rail. There, the defendants had called on the employees of British Rail to with-
draw their labour (unlawfully), resulting in inevitable disruptions to the latter’s rail
services. The claimant, whose travel itinerary was adversely affected by the strike,
succeeded in his claim against the defendants. Even though the defendants’ acts
were ultimately aimed at British Rail, the court accepted that the defendants had
clearly intended the passengers (such as the claimant) harm in order to place pres-
sure on British Rail to accede to their requests. Some commentators regard this
decision as going too far, since the claimant was not a “direct target” of the union’s
action.25 They argue that extending liability to such cases would render the tort
too wide. For the same reason, another commentator has predicted that the court’s
“rejection of targeted harm in OBG may not gain support from future courts.”26 This
is a formidable criticism, for it is clear that a less exacting mental ingredient will
place correspondingly more strain on the tort’s other primary ingredient—“unlawful
means”—as a liability-controlling device. But this is a prospect that few would rel-
ish, since the seemingly irresoluble complexities associated with attempts to define
the type of unlawful behaviour that should constitute the tort are only too well-
known. Nevertheless, this article will attempt to persuade the reader that a workable
concept of unlawful means may well have emerged from OBG. And if that is right,
a broader notion of intention to injure may well be less objectionable than it first
appears.
21 [2007] EWCA Civ 1303, [2008] 2 W.L.R. 904 at paras. 126 (in relation to inducing breach of contract),
146 (for causing loss by unlawful means and conspiracy) (C.A.) [Meretz].
22 This, indeed, was the interpretation adopted by the New Brunswick Court of Appeal in SAR Petroleum
Inc. v. Peace Hills Trust Company [2010] NBCA 22 at paras. 57, 58 [SAR Petroleum].
23 In holding thus, Meretz,supra note 21, may also be understood as having incorporated the defence
of justification (as exemplified by Edwin Hill v. First National Finance Corp. [1989] 1 W.L.R. 225
(C.A.) in the context of inducing breach of contract) within the conception of “intention”. See also SAR
Petroleum,ibid. at para. 73.
24 [1986] Industrial Relations Law Reports 331 (County Court).
25 See e.g., Deakin & Randall, supra note 7 at 541.
26 See Hazel Carty, “The Economic Torts in the 21st Century” (2008) 124 Law Q. Rev. 641 at 659.

Sing. J.L.S. Causing Loss By Unlawful Means 335
B. Interference by Unlawful Means
The question as to what would count as “unlawful means” has always been the most
problematic aspect of this tort. In OBG, it was also a significant point of departure
for the majority and minority Law Lords. In the leading judgment,27 Lord Hoffmann
adopted a narrow view, which he summarised in these terms:28
Unlawful means therefore consists of acts intended to cause loss to the claimant
by interfering with the freedom of a third party in a way which is unlawful as
against that third party and which is intended to cause loss to the claimant. It does
not in my opinion include acts which may be unlawful against a third party but
which do not affect his freedom to deal with the claimant.
By confining “unlawful means” to liberty-constraining acts,29 Lord Hoffmann effec-
tively limited the application of the tort to cases of indirect interferences, where
the defendant strikes at the claimant through an intermediary.30 In addition, requir-
ing the unlawful act to be separately actionable31 by the intermediary would mean
that criminal and statutory offences that do not otherwise afford a cause of action
in private law would not constitute “unlawful means” for the purposes of this tort.
Although it is far from certain, a further limitation may inhere in the proposition
that the unlawful acts must have interfered with the freedom of the third party “in a
way which is unlawful as against that third party”.32 Literally construed, this may
suggest that the unlawful act has to be actionable only at the instance of the party
whose freedom had been encroached upon. If this were right, the tort would only
apply to three-party interferences but would be irrelevant where there are more than
three parties, since the intermediary whose freedom has been interfered with may
not also be the party who has a cause of action as against the defendant when two or
more intermediaries are involved.
In contrast to the restrictive approach of the majority, Lord Nicholls argued for a
broader tort that would redress “intentional harm caused by unacceptable means”.33
As such, it could extend to two- and three- (or more) party claims. In either case, the
essential liability-controlling mechanism would lie not in the type of unlawful act, but
in the causal connection between the defendant’s unlawful conduct and the claimant’s
loss. This would mean, in a three-party situation, that the claimant had been harmed
through the “instrumentality of a third party”.34 On this approach, “unlawful means”
would embrace both civil and criminal wrongs. Were it otherwise, the law would
27 OBG,supra note 2 at paras. 48, 49, 51. All the other Law Lords except Lord Nicholls concurred with
this aspect of Lord Hoffmann’s analysis: OBG,supra note 2 at paras. 269, 270, 302, 319.
28 Ibid. at para. 51.
29 Ibid.
30 Endorsed by the Ontario Court of Appeal decision, Leona Alleslev-Krofchak v. Valcom Limited [2010]
ONCA 557 at para. 60, where Goudge J.A. restated “unlawful means” as requiring actions that “(i)
cannot be actionable directly by the plaintiff and (ii) must be directed at a third party, which then
becomes the vehicle through which harm is caused to the plaintiff.”
31 For this purpose, an “inchoate” tort—one that is incomplete only because the third party has not suffered
any loss—will suffice: OBG,supra note 2 at para. 49.
32 Ibid. at para. 51 [emphasis added].
33 Ibid. at para. 153.
34 Ibid. at para. 159 [emphasis in original].

336 Singapore Journal of Legal Studies [2011]
be unintelligible. If the law’s intent is to deter unacceptable conduct in commercial
activities, it would make no sense to proscribe a breach of contract but not a crime.35
This divergence in judicial opinion reflects a fundamental disagreement on the
social utility of the tort. For Lord Hoffmann, the limited scope of the tort is justified
by the fact that it is designed only to “enforce basic standards of civilised behaviour in
economic competition”.36 The court is thus only concerned with unfair competitive
conduct at the threshold level. Lord Nicholls, on the other hand, envisaged the tort as a
tool that is responsive to a broad category of “clearly excessive conduct”.37 Emphasis
therefore resides in the wrongful quality of the defendant’s conduct. Although the
majority appears now to have settled the law in favour of the more restrictive function,
the powerful dissent of Lord Nicholls has nevertheless introduced an element of
uncertainty that is likely to threaten the stability of this new-found equilibrium in the
future.
III. Justifying the Tort
The classic exposition of the tort locates its purpose in the need to protect one’s liberty
to pursue a trade, calling or profession by safeguarding the liberty of those who deal
with him. The leading passage is that of Lord Lindley in Quinn v. Leathem:38
As to the plaintiff’s rights…He was at liberty to earn his own living in his own
way, provided he did not violate some special law prohibiting him from so doing,
and provided he did not infringe the rights of other people. This liberty involved
liberty to deal with other persons who were willing to deal with him. This liberty
is a right recognised by law; its correlative is the general duty of every one not to
prevent the free exercise of this liberty, except so far as his own liberty of action
may justify him in so doing.
While reference is made in this passage to the plaintiff’s “right” to deal with others
as the justification for imposing a correlative duty on others not to interfere with
such “right”, it is now clear that this reasoning is, in one sense, flawed.39 It is
not meaningful to speak of a “right” (in the sense of a Hohfeldian claim-right) to
trade at a high level of generality since there can be no concomitant general duty
on others not to interfere with such right. On the contrary, such interferences are
generally permitted, even encouraged, in capitalist economies where competition
for limited resources must of necessity constrain a trader’s liberty.40 So what Lord
35 Ibid. at para. 152.
36 Ibid. at para. 56 [emphasis added].
37 Ibid. at para. 153.
38 [1901] A.C. 495 at 534 (H.L.) [Quinn] [emphasis added], cited by Lord Hoffmann in OBG,supra note
2 at para. 46. See also Meretz,supra note 21 at para. 115.
39 Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning”
(1913) 23 Yale L.J. 16 at 36, 37. A similar “right” to trade has been assumed in other cases; see e.g.,
Mogul Steamship Co. v. McGregor (1889) 23 Q.B.D. 598 at 614, Bowen L.J.; and A.G. v. Adelaide SS
Co. [1913] A.C. 781 at 793 (H.L.), Lord Parker.
40 See J.W. Neyers, “Rights-Based Justifications for the Tort of Unlawful Interference with Economic
Relations” (2008) 28 L.S. 215 at 221, where the learned author argues that “there can be no right to
trade since in a capitalist society there is no concomitant duty on anyone to respect that right”. The point
is repeated in J.W. Neyers, “The Economic Torts as Corrective Justice” (2009) 17 Torts Law Journal
162 at 180.

Sing. J.L.S. Causing Loss By Unlawful Means 337
Lindley really meant to say was that the plaintiff had a Hohfeldian liberty rather than
a right to trade. A person is free to exercise such liberty and commits no wrong in
carrying on his trade or business,41 but the liberty entails no corresponding duty of
non-interference.
This is not to say, however, that the law does not admit of claim-rights against
the type of interferences inflicted, for instance, by Quinn and his associates (who,
in that case, were held to have wrongfully conspired with the predominant intention
to injure the claimant). While a liberty does not in and of itself entail such a duty,
there usually exist other claim-rights (and corresponding duties) that serve as its
“protective perimeter”.42 Thus, a person’s liberty to carry on a lawful business will
usually be protected by the right to claim against another in both tort and criminal law
for intentional damage to his goods and property. Although the obligations against
such interference correspond to his rights in the property rather than his liberty to
trade, they nevertheless secure the essential conditions for the exercise of his liberty.
In the context of economic competition, it is settled that a trader’s liberty now enjoys
some measure of protection against interference through the torts of inducing breach
of contract, intimidation and conspiracy. The issue in both Quinn and OBG was
whether that perimeter should be broadened.
Once it is recognised that the claimants in Quinn and OBG were seeking to for-
tify their liberty rather than to vindicate a right, it becomes clear that the courts
were in both cases asked to engage in judicial lawmaking, that is, to create, rather
than merely uncover, a claim-right. Liberal appeals to “rights”, without appreciat-
ing that such rights may encompass liberties, obscure the true nature of the enquiry
and substitute for relevant considerations of justice and policy a fallacious process
of logical deduction.43 Acknowledging that such social and policy concerns lie at
the heart of the issue displaces the specious assumption that the “answer” is sim-
ply the logical outworking of some pre-existing (and unscrutinised) principle of
law.44
That the majority Law Lords in OBG were fully appreciative of the nature of
the task before them is amply demonstrated by the caution they advocated. The
task of demarcating the line between fair and unfair competition is primarily the
responsibility of Parliament, and an expansive tort would unduly encroach upon the
legislature’s function.45 Whilst it is not disputed that the common law has a legitimate
role in policing unfair conduct in a free market, this role is, at best, residual in nature.
From this perspective, the court should generally be critical of any attempt to extend
liability in this arena. But even if one accepts as fundamental the need to confine
41 Glanville Williams, “The Concept of Legal Liberty” (1956) 56 Colum. L. Rev. 1129 at 1146.
42 Herbert. L.A. Hart, Essays on Bentham (Oxford: Oxford University Press, 1982) at 171.
43 Hohfeld, supra note 39 at 35. See also Matthew H. Kramer, Nigel. E. Simmonds & Hillel Steiner,
A Debate Over Rights (Oxford: Oxford University Press, 2002) at 173. The risk of such analytical
pitfalls lends support to the suggestion that the economic torts are better understood as conduct-based
(or duty-based) rather than rights-based liability: see Peter Cane, “Justice and Justifications for Tort
Liability” (1982) 2 Oxford J. Legal Stud. 30 at 40.
44 See generally, the helpful analysis of Thomas Perry, “A Paradigm of Philosophy: Hohfeld on Legal
Rights” (1977) 14 American Philosophy Quarterly 41.
45 See OBG, supra note 2 at para. 56, Lord Hoffmann; para. 270, Lord Walker; and para. 306, Baroness
Hale.

338 Singapore Journal of Legal Studies [2011]
the tort to “manageable and readily comprehensible limits”,46 the question whether
this is best achieved through the dual strictures suggested by Lord Hoffmann—those
of indirect interference and separate actionability—remains contentious. In shaping
the tort for the future, it is entirely pertinent to re-examine the role of “unlawfulness”
and how it ought to relate to the other elements of the tort. Having selected “unlaw-
fulness” as the touchstone of unacceptable competitive conduct, any curtailment of
that criterion would have to be principled rather than arbitrary. This must mean, as
Lord Nicholls argued, that the tort should not condemn relatively trivial civil wrongs
whilst tolerating potentially more egregious criminal offences. What follows is an
attempt to resolve this tension by separately examining the twin strictures identified
by Lord Hoffmann.
A. Indirect Interference
There are, it appears, two reasons for restricting the tort to situations involving
indirect harm. The first is the constraint of precedents. As Lord Hoffmann had
observed,47 the tort was first derived from cases such as Garret v. Taylor48 and
Tarlton v. M’Gawley,49 where the defendants had injured the plaintiffs indirectly by
threats of physical violence to the latter’s potential customers. Similarly, the leading
cases commonly cited as endorsing this principle (that one may be liable for causing
loss by unlawful means) appear to have done so largely in contexts involving a similar
tripartite structure.50 In general, therefore, the authorities do not support a broader
tort that would also apply to the direct infliction of harm by one party on another.51
But the second and more important reason is the concern that an unbridled
extension of two-party unlawful means torts would effectively swallow up all other
categories of legal wrongs. In a three-party context, the tort is needed as a remedy to
the claimant who would otherwise have no recourse against the immediate actor. The
same is not true of two-party cases, where the fault lines have long been established
in the various fields of civil wrongs. The overlay of tort liability in such cases can
only lead to the undesirable multiplication of liability.52 In OBG, Lord Hoffmann
46 Ibid. at para. 320, Lord Brown. Note, however, Lord Walker’s observation (ibid. at para. 269) that
Lord Hoffmann’s requirement for interference with third-party liberty may, if taken out of context, “be
regarded as so flexible as to be of limited utility”.
47 Ibid. at para. 6.
48 (1620) Cro. Jac. 567 [Garret].
49 (1790) 1 Peake N.P.C. 270 [Tarlton]. In Allen v. Flood [1897] A.C. 1 at 104, 105 (H.L.) [Allen],
Lord Watson approved of both Garrett and Tarlton as cases in which “an act detrimental to others, but
affording no remedy against the immediate actor, had been procured by illegal means”.
50 Allen,ibid. was, of course, a three-party case in which the plaintiff was dismissed as a result of the
pressure applied by the defendant trade union on the plaintiff’s employer. Likewise, both Rookes
v. Barnard [1964] A.C. 1129 (H.L.) [Rookes] and Quinn,supra note 38, were concerned with indirect
harm.
51 Cf.Indata Equipment Supplies Ltd. v. ACL Ltd. [1998] F.S.R. 248 (C.A.), where a majority of the Court
of Appeal accepted that a cause of action in two-party unlawful interference with contract could be made
out on account of the defendant’s breach of the equitable duty of confidence to the claimant, but that
holding was clearly obiter given that the claimant already had a remedy for breach of confidence.
52 See Leonard. H. Hoffmann, “Rookes v. Barnard” (1965) 81 Law Q. Rev. 116 at 127. A similar point
was made in Charles. J. Hamson, “A Further Note on Rookes v. Barnard” (1964) 22 Cambridge L.J. 159
at 168.

Sing. J.L.S. Causing Loss By Unlawful Means 339
alluded to these concerns in observing that a case of two-party intimidation “raises
altogether different issues”.53 These are sound reasons for circumscribing the tort.
The creation of an omnibus tort extending to all two-party wrongs is inherently unap-
pealing and practically unworkable54 since it would all but eradicate the fine balance
of interests painstakingly struck in each area of the law.55 Seen in this light, Lord
Nicholls’conception of a broader principle56 that applies to both two- and three-party
wrongs appears deficient since it does not adequately delimit the tort in two-party
scenarios.
If these arguments are accepted, then it must follow that the rationale of the tort
is in fact rather limited, i.e. it presupposes that everyone has an interest in another’s
autonomy to deal with him, and this interest ought to be protected by a claim-right
that imposes a duty on everyone else not to interfere with such autonomy by the use
of unlawful means. Like the elements of intention, unlawful means and damage, the
fact of interference is thus a definitive element that serves, as we shall see, also to
limit the tort.
B. Independently Actionable Wrongs
Conceiving the tort as one that redresses three-party or indirect interferences does not,
however, necessarily entail the acceptance of Lord Hoffmann’s other restriction, i.e.
independent actionability. Whether this should be so calls for a separate analysis.
The logical starting point is to ascertain the precise role that “unlawful means”
assumes in this context. If the tort were understood as no more than an extension of
liability for the underlying unlawful conduct to indirect victims,57 then the illegality
so employed would itself be the wrong against these victims. One may also say, in
such circumstance, that the defendant’s unlawful act towards the intermediary would
be “transferred” to the benefit of the claimant.58 So understood, the requirement for
independent actionability would make sense, for the defendant cannot be sued on
the underlying unlawful conduct unless such conduct already constitutes an existing
civil wrong. However, such an approach is conceptually problematic because it
disregards the reality that a claimant who is indirectly injured by the defendant’s
conduct is suing for the transgression of his own right, not that of the intermediary.59
To borrow an illustration given by Professor Hamson:60
[If] A by threatening to libel B succeeds in putting an end to B’s association with
C and C, having thereby suffered damage, sues A for intimidation, C is not in
53 OBG,supra note 2 at para. 61.
54 Indeed, a “travesty of history” in Horton Rogers, ed., Winfield & Jolowicz on Tort, 17th ed. (London:
Sweet & Maxwell, 2006) at 852.
55 This concern is acknowledged in Philip Sales & Daniel Stilitz, “Intentional Infliction of Harm by
Unlawful Means” (1999) 115 Law Q. Rev. 411 at 420, but the learned authors argue that the tort may
nevertheless apply in two-party contexts where no prior balance of interests has been established.
56 Although it is possible that his Lordship had, in enunciating this principle, only intended its application
to established instances of two-party unlawful means torts, viz., two-party intimidation and conspiracy
by unlawful means.
57 Carty, “The Economic Torts in the 21st Century”, supra note 26 at 668.
58 John Eekelaar, “The Conspiracy Tangle” (1990) 106 Law Q. Rev. 223 at 226.
59 See Neyers, “Rights-Based Justifications”, supra note 40 at 223.
60 Hamson, “A Further Note on Rookes v. Barnard”, supra note 52 at 163.

340 Singapore Journal of Legal Studies [2011]
that action seeking to vindicate B’s reputation nor, if the libel has been put about,
does he recover damages for the injury done to B’s good name. C quite simply is
not entitled to sue A for A’s defamation of B.
To distinguish between the entitlements of B and C in such instance is not merely to
make a point of conceptual nicety, but to highlight the dissimilar interests protected
by the different causes of action. Since the reasons for protecting B’s reputation
differ from those for protecting C’s economic interests, there is no inherent logic in
“transferring” B’s right of action against A to C.61
If the inclusion of “unlawful means” as an ingredient of the tort is to be justified
at all, it has to be because it is a logical and reasonable badge of unacceptable
competitive conduct. In cases of indirect interferences, it is not difficult to see
why that is so. One’s liberty to trade, as we have seen, is of value only if others
are at liberty to deal with him. Although competition presupposes and, indeed,
mandates interference with such liberty, a distinction has always been drawn between
interferences resulting from “mere competition”62 and those resulting from the use of
unlawful conduct.63 The reason is regarded as self-evident—everyone who engages
in competition in a free market is obliged to, and is further entitled to, expect that his
rivals would compete within the strictures of the general law.64 So while a trader
would have no complaint if his customers were enticed by a competitor’s superior
product, services or publicity, he would be entitled to object if such custom were
intentionally impeded or deflected by unlawful behaviour. In the latter case, the
aggrieved trader’s right is founded, not on the injury to the customer, but on his own
interests in the customer’s liberty to trade. Returning to the example above, C’s right
of action is founded, not on A’s act against B, but on the effect ofA’s unlawful act on
B’s freedom to deal with C.
Understanding “unlawful means” in this way would also, it is submitted, sug-
gest that it is neither necessary nor logical to restrict the concept to actionable civil
wrongs.65 If the tort is aimed at remedying interferences brought about by unlawful
means, then it should generally suffice if the illegal act has in fact constrained the
intermediary’s liberty.66 In other words, all that has to be proven is factual inter-
ference caused by an unlawful act. Insisting that the unlawful act be independently
actionable, on the other hand, is to require a coincidence of both legal and factual
interferences in the same intermediary. Although this more stringent approach may
keep the tort within familiar boundaries and reduce uncertainty for litigants, it may
also in some measure stultify the very object for which it was developed. If the
61 Of course, a similar objection may be raised even if “unlawful means” is not confined to actionable
wrongs. Absent a satisfactory explanation for the tort’s reliance on an illegality directed at B rather
than C, it is difficult to see why C should thereby acquire a right against A. This was acknowledged by
both Lords Hoffmann and Nicholls in OBG: see OBG,supra note 2 at paras. 59, 146, citing Roderick
Bagshaw, “Can the Economic Torts be Unified?” (1998) 18 Oxford J. Legal Stud. 729 at 732; and John
Dyson Heydon, Economic Torts, 2nd ed. (London: Sweet & Maxwell, 1978) at 124.
62 Mogul Steamship Company v. McGregor Gow & Co. (1889) 23 Q.B.D. 598 at 626, Fry L.J.
63 Rookes,supra note 50 at 1207, Lord Devlin states that, “A dividing line must be drawn and the natural
line runs between what is lawful and unlawful as against the party threatened.”
64 See Charles. J. Hamson, “A Note on Rookes v. Barnard” (1961) 19 Cambridge L.J. 189 at 191, 192.
65 For a similar view, see Elias & Ewing, supra note 10 at 337, 338; Deakin & Randall, supra note 7 at
544-550.
66 In the manner discussed in Part III below.

Sing. J.L.S. Causing Loss By Unlawful Means 341
true import of the tort is to maintain a level competitive field, then market partici-
pants should in general be entitled to expect that they can deal with others free from
interferences involving all types of illegality. A blanket exclusion of non-actionable
offences would be odd, as it would suggest that the law condones interferences involv-
ing such conduct, however egregious they may be. Moreover, insisting on legal (as
opposed to merely factual) interference may render the tort too narrow because it
would have no application in situations where the harm is inflicted through more than
one intermediary. To take a somewhat extreme example, consider a case where A, by
threatening an unlawful act against B, coerces B to buy up all raw materials required
for C’s trade so as to cripple C’s business.67 Here, there is no coincidence of legal
and factual interferences because although B has a cause of action as against A if it
suffers losses as a result of A’s intimidation, B’s freedom vis-à-vis C has not been
interfered with since B was not in any way “dealing” with C. Rather, B’s conduct has
had the effect of preventing C from dealing with another intermediary—presumably
the supplier of the raw materials. Insisting on a coincidence of legal and factual
interferences on these facts will mean that no unlawful means has been employed,
since A’s conduct is not unlawful as against the supplier. But that would hardly be
a satisfactory outcome, for A’s conduct is surely no less objectionable only because
it was calculated to injure C through more than one intermediary. It is submitted,
therefore, that in all cases of indirect interference, the critical test ought to be one
of factual interference only. Legal interference, on the other hand, is not logically
required except as an arbitrary means of containing the tort.
That said, there is a case for modifying the general approach in cases where
breaches of statutory duties are involved because this is where the risk of trespassing
on legislative territory is most acute. Here, the primacy of Parliamentary intention has
long been recognised by the line of cases following Cutler v. Wandsworth Stadium
Ltd.68 and Gouriet v. Union of Post Office Workers,69 which confine the right to
bring private actions to those instances where it is established that Parliament had
intended the statute in question for the protection of a class of persons including the
claimant, or where the claimant suffers special damage as a result of the breach.70
To the extent that an action based on the unlawful means tort is an enforcement of
a statutory duty, the need to respect the underlying legislative intent must remain
paramount. So while there is no justification for a general requirement of separate
actionability, the construction test as enunciated in Cutler and Gouriet ought to be
regarded as an integral part of the test for “unlawful means” where statutory breaches
are concerned. Outside the sphere of statutory offences, however, the fear that a
liberal interpretation of “unlawful means” would lead to an expansive tort may be
less critical if the elements of the tort are defined with sufficient stringency. This is
especially so once regard is had to the fact that in addition to the elements of intention
67 I am indebted to Professor Ken Oliphant for drawing my attention to this possible factual matrix.
68 [1949] A.C. 398 (H.L.) [Cutler]. See X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633
(H.L.) for the modern reiteration of the same principle.
69 [1978] A.C. 435 (H.L.) [Gouriet], applied in Lonrho,supra note 12; RCA Corp. v. Pollard [1983]
Ch. 135 [RCA Corp.]; Rickless v. United Artistes Corp. [1988] Q.B. 40.
70 Note, however, that this test has not been consistently applied: see especially Gardner,supra note 8;
Brekkes v. Cattel [1972] Ch. 105; and the observations of Butler-Sloss L.J. and Stuart-Smith L.J. in the
Court of Appeal decision of Associated British Ports v. Transport and General Workers’Union [1989]
1 W.L.R. 939 at 961, 965, 966.

342 Singapore Journal of Legal Studies [2011]
and unlawful means, a third control mechanism is now found in the requirement for
an unlawful act that has interfered with the intermediary’s freedom.
IV. Interference
Until OBG, little attention was directed at the fact of interference. The likely reason is
that until then, it was often assumed that the tort encompassed both direct and indirect
interferences, and as such, the question whether such interference had occurred
was generally subsumed within the broader enquiry on causation. However, if it is
accepted that the tort is aimed at safeguarding one’s minimum rights in another’s
liberty, then the defendant’s interference with such liberty is evidently the gist of the
tort. It is not any unlawful act which is tortious, but only those acts impinging on
third-party liberty. The discussion that follows is an attempt at outlining the concept,
but no more than a sketch is proffered given that the notion is just being developed.
It is, first of all, reasonably clear that any conduct that has the effect of impeding
the intermediary’s physical or practical capacity to deal with the claimant would
suffice. This may be achieved, for instance, by physically detaining the intermediary
so as to prevent him from performing his contractual obligations to the claimant.71
Another well-known example is found in GWK Ltd. v. Dunlop Rubber Co. Ltd.,72
where the defendant physically altered the intermediary’s contractual performance,
thus disabling the third party from fulfilling its contractual duty to the claimant. Fur-
ther, the defendant’s conduct must have rendered it impossible or impracticable for
the intermediary to deal with the claimant. So in JT Stratford & Son Ltd. v. Lind-
ley,73 where the defendant trade union had instructed its members not to handle the
claimants’ barges, thereby preventing the hirers of the barges from returning them to
the claimants as they were contractually bound to do, it was no answer to say that the
hirers could have engaged non-union members to handle the barges because this was
not, in fact, a practicable option. Apart from physical imposition, interferences may
also take the form of conduct calculated to limit or impair the intermediary’s judg-
ment, causing him either to cease dealing with the claimant or otherwise to injure the
latter’s interests. Typically, these interferences occur where intimidation74 or decep-
tion75 has been applied on an intermediary to manipulate the latter into adopting a
course of conduct injurious to the claimant.
In OBG, Lord Hoffmann distinguished between unlawful conduct that interferes
with another’s freedom, and that which merely undermines the claimant’s financial
interests.76 As an instance of the latter, his Lordship cited the case of RCA Corp.77
There, the plaintiffs, who held the exclusive licence to exploit recordings of Elvis
Presley’s performances, complained that they had sustained losses as a result of the
defendant’s bootlegging activities. It was not disputed that the defendant’s activities
71 DC Thomson & Co. Ltd. v. Deakin [1952] 1 Ch. 646 at 678, Evershed M.R.
72 (1926) 42 T.L.R. 376 (C.A.).
73 [1965] A.C. 269 at 322 (H.L.).
74 Rookes,supra note 50.
75 National Phonograph Co. Ltd. v. Edison-Bell Consolidated Phonograph Co. Ltd. [1908] 1 Ch. 335;
Lonrho,supra note 12.
76 OBG,supra note 2 at para. 52.
77 Supra note 69.

Sing. J.L.S. Causing Loss By Unlawful Means 343
constituted criminal offences under the Dramatic and Musical Performers’ Protection
Act,1958,78 and that the Presley estate could have sued the bootleggers on account of
such contraventions because theAct was enacted for the protection of the performers.
Nevertheless, the plaintiffs’ claim failed. For Lord Hoffmann, this outcome could
be justified on the ground that the defendant’s activities did not in any way interfere
with the liberty of the Presley estate to perform the exclusive licensing contract even
if they did in fact render the contract less valuable. In the same vein, the publication
of the unauthorised photographs of the Douglases’ wedding had not affected the
couple’s liberty to deal with OK! in Douglas v. Hello! Ltd.79 since OK! could still
proceed with the publication of the wedding photographs without any physical or
legal obstacle. However, this reasoning is premised on a narrow interpretation that
Lord Hoffmann had ascribed to “unlawful means”, i.e. conduct that interferes with
the autonomy of a third party (factual interference) and which is unlawful as against
that party (legal interference). If it is accepted, as is argued above,80 that there is
no necessity for any coincidence of legal and factual interferences, then would it
not be plausible to argue, for instance, that RCA Corp. was an “interference” case
because the defendant’s bootlegging activities had caused some customers (rather
than the Presley estate) to purchase the defendant’s unauthorised recordings when
they would otherwise have purchased the plaintiffs’ recordings? It is, of course,
reasonable to assume that the defendant’s conduct would (as is generally true of
passing off) lead to some damage to the plaintiffs. But this simplistic equation of
“interference” with “mere causation”81 should be resisted. Rather, the answer is
located in the requirement that the interference in question must have the effect of
physically or practically preventing the third party last intermediary from dealing
with the claimant. This test was not satisfied in RCA Corp. because the plaintiffs’
customers were entirely free to purchase the plaintiffs’ products even if they were
less valuable or attractive as a result of the defendant’s unlawful conduct.
Cases where the unlawful act in question does not affect the intermediary’s liberty
are not true cases of indirect or tripartite interferences since the defendant does not
have to act through the agency of the intermediary at all. This does not mean that
no tort liability should ever be imposed where the unlawful act is direct, but only
that “[the] policy issues opened by cases such as these are of a different order from
the ‘intermediary cases”’.82 Indeed, it is this singular failure to distinguish between
direct and intermediary cases that has continued to bedevil the concept of “unlawful
means” in this context. For example, Hargreaves v. Bretherton83 is often cited for
the proposition that the act of perjury could not constitute “unlawful means” for
purposes of the economic torts. In that case, it was held that an act of perjury did
not, by itself, confer a cause of action on the party injured. Likewise, it is sometimes
suggested that contempt of court is not a type of actionable “unlawful means”. So
in Chapman v. Honig,84 it was held that a landlord who had (lawfully) terminated a
78 (U.K.),6&7Eliz. II, c. 44.
79 OBG,supra note 2 at para. 129.
80 See text accompanying notes 65-67.
81 Specifically rejected by Lord Hoffmann in OBG,supra note 2 at para. 58.
82 Eekelaar, supra note 58 at 227.
83 [1959] 1 Q.B. 45 (C.A.) [Hargreaves].
84 [1963] 2 Q.B. 502 [Chapman].

344 Singapore Journal of Legal Studies [2011]
lease to punish the tenant for having testified against him in an earlier lawsuit had
incurred no civil liability even though his vindictive motive would have rendered
him liable for criminal contempt. However, whether Chapman has in fact excluded
contempt of court from the province of “unlawful means” is questionable in light of
the subsequent decision of Acrow.85 There, a defendant who was guilty of contempt
(by aiding and abetting in the breach of an injunction) was found liable for causing
loss to the claimant. However that may be, it is submitted that all these cases are better
analysed as direct, two-party interferences. In each case, the defendant’s conduct had
no effect on the court’s ability to deal with the claimant even if it is wrongful as against
the State. Clearly, both enhanced civil remedies for contempt (as was the result in
Acrow) and attenuated rights in relation to perjury (such as that in Hargreaves)
may be equally justifiable for the proper administration of justice. In these two-
party contexts, a general principle that purports to “tortify” every description of
unlawful conduct simply does not work. On the other hand, the risk of unprincipled
expansion is much reduced in three-party or indirect interference cases by reason of
the requirement for proof of interference with the third party’s autonomy. A critical
controlling mechanism is therefore found not merely in the notions of intention and
illegality, but in a disciplined approach to the fact of interference.
V. Two-Party Intimidation
Thus far, it has been argued that the tort of causing loss by unlawful means ought to
be understood as a nominate tort that is distinct and independent from the primary
unlawful means. Its purpose is to remedy indirect interferences. By itself, it does
not seek to lay down a general principle that renders tortious all harm resulting from
intentional conduct involving the use of unlawful means. It is not, so to speak, a
“genus” tort from which other “species” torts are derived.86 Applied to the tort of
intimidation, this will mean that only the three- (or more) party form of the tort is
a true instance of causing loss by unlawful means, while two-party intimidation87
is really a distinct form of liability resting on a unique rationale. This proposition
may seem startling at first sight. After all, the House of Lords assumed in Rookes
that both two- and three-party intimidation were merely varied manifestations of a
single phenomenon, the gist of which was the wrongful coercion of another.88 For
reasons explained,89 however, this conception is mistaken as it overlooks the diverse
interests that lie at the root of two- and three-party intimidation.
In the two-party scenario, the mischief resides in the fact of unlawful coercion.
So if A threatens to batter B unless B stops selling widgets to C, A may be liable
85 Supra note 8.
86 In Meretz,supra note 21 at para. 114, Arden L.J. stated that the House of Lords had held in OBG,supra
note 2, that “conspiracy, inducing breach of contract and other economic torts are separate torts”.
87 This tort appears to have been accepted in D & C Builders v. Rees [1966] 2 Q.B. 617 at 625 (C.A.) and
Cory Lighterage Ltd. v. Transport and General Workers’ Union [1973] 1 W.L.R. 792 (C.A.).
88 See, in particular, the speech of Lord Devlin in Rookes,supra note 50 at 1205. In Singapore, there is scant
authority on the application of this tort whether in the two- or three-party form, though its existence has
been affirmed (in obiter) by the High Court in Goh Chok Tong v. Chee Soon Juan [2003] 3 S.L.R.(R.) 32
at para. 49 (H.C.) and Lee Kuan Yew v. Chee Soon Juan [2003] 3 S.L.R.(R.) 8 at para. 48 (H.C.).
89 See text accompanying notes 59-61.

Sing. J.L.S. Causing Loss By Unlawful Means 345
to B if B suffers a loss by yielding to A’s threat. Here, the combination90 of the
threat and the threatened illegality form the nub of the tort, with the threat supplying
the coercive force and the illegal act (i.e. battery) furnishing the unlawful quality.
Following Rookes, this same set of facts would also confer upon C a right of action
against A.Although there can be no doubt that the fact of coercion is (in this example)
also critical to A’s cause of action, the chief justification for C’s action lies in the
fact that A has improperly prescribed B’s conduct in relation to C.91 Thus, while the
two-party tort seeks to identify illegitimate threats, the aim of the three-party tort is
to protect the claimant from unlawful interferences with the intermediary’s liberty.
Though subtle, this distinction is critical for correctly identifying the illegality
relevant to each tort. In the two-party intimidation set out above, A’s threat is unlawful
vis-à-vis B because battery is itself a tort and/or a crime. In the three-party setting,
however, the unlawful means is that which taints the interference rather than the
threat. So as against C, the unlawful means employed by A is not battery but A’s
tortious intimidation of B. It is the fact of intimidation, rather than the act of battery,
that has prevented B from transacting with C. The same may be said of Rookes,
the indisputable archetype of the unlawful means tort. There, the defendants were
liable for “intimidation” when they threatened BOAC with the withdrawal of labour
if the latter did not dismiss the plaintiff. The threatened act, if it materialised,
would have constituted a breach of the workers’employment contracts with BOAC.
Properly analysed, the true weapon wielded by the defendants in this case was the
act of intimidation against BOAC since it was the coercive force of the threat of
breach, rather than the breach per se, that denied BOAC any real option of employing
the plaintiff.92 Indeed, no element of compulsion need inhere in the breach itself,
for the (actual) withdrawal of labour would, in principle, still leave BOAC free
to engage the plaintiff’s services. By this reasoning, it must follow that in every
case where liability is established in a three-party context involving the threat of
an unlawful act, there is simultaneously admitted a tort of two-party intimidation
between the defendant and the threatened intermediary.93 In other words, the two-
party tort is itself a necessary component of the three-party tort insofar as it is
the act of intimidation that constitutes the unlawful means that interferes with the
intermediary’s liberty.
So understood, the decision in Rookes has in fact established two torts, namely, the
tort of causing loss by unlawful means involving intimidation and the two-party tort
of intimidation. Insofar as the latter is an independent tort, it must also mean that the
defendants’ threat of contractual breach was itself a (two-party) tort of intimidation
against BOAC. The difficulties associated with this last proposition are well known.
Lord Wedderburn, the leading critic, decried the decision as a heresy that conflates
90 It is long settled that the threat is an integral but not sufficient element of the tort, for the threat of a
lawful act is not (except where the threat is part of a conspiracy to injure) a cause of action: see Sorrell
v. Smith [1925] 1A.C. 700 at 747, Lord Buckmaster (H.L.) [Sorrell]; Crofter Hand Woven Harris Tweed
Co. Ltd. v. Veitch [1942] 1 A.C. 435 at 467 (H.L.), Lord Wright; and Rookes,supra note 50 at 1168,
1169, Lord Reid.
91 Hamson, “A Note on Rookes v. Barnard”, supra note 64 at 191, 192.
92 As Lord Reid observed in Rookes,supra note 50 at 1168, “[what the claimant] sues for in each case is
loss caused to him by the use of an unlawful weapon against him—intimidation of another person by
unlawful means” [emphasis added].
93 Although the intermediary’s right of action is further contingent on the proof of damage.

346 Singapore Journal of Legal Studies [2011]
tortious with contractual remedies, the result of which is the eventual “tortification”
of all contractual breaches.94 Others, however, pointed to the remedial variances
between tort and contract law as a reason for recognising the two-party tort.95 Be
that as it may, what is more important to note is that if Rookes is correctly decided,
then there is, consistent with the reasoning in OBG, no escaping the conclusion that
the threat of a breach of contract is, at least in principle, itself a tortious act. In
practice, however, it may be necessary, for policy reasons, to confine the right of
action to situations where there exists no concurrent remedy in contract.96 So in
a case where A threatens to breach its contract with B unless B ceases all dealings
with C, and B succumbs to A’s threat, B would have no remedy for breach (since the
contract with A is affirmed) nor any restitutionary remedy on the ground of economic
duress (since no contract is in fact concluded under coercion), the tort of intimidation
may apply to compensate B for the loss of C’s custom. But to accept the threat of a
breach of contract as a tort is not to convert all contractual breaches into torts. There
is, it is submitted, no inherent absurdity in maintaining a distinction between the
threat to breach and the breach itself.97 A breach is distinguishable from a threat to
breach in that the former is an event defined and anticipated by the contract itself
while the latter will often involve the use of the contract “as an instrument to an
end (to cause harm to [the claimant]) which is not contemplated by the consensual
distribution of risk under the contract itself ”.98
In summary, two- and three-party intimidation are conceptually distinct in that
the former seeks to isolate unlawful threats while the latter is aimed at wrongful
interferences with third-party liberty. As such, the “unlawful means” relevant to each
tort is distinct, even if both torts emanate from a single course of conduct. However,
the two torts are nevertheless inextricably connected in that two-party intimidation,
being the effective hindrance of the intermediary’s conduct, is invariably an essential
ingredient of the three-party tort. In light of that, every threatened unlawful act
that amounts to a two-party intimidation must also suffice for the three-party tort.
However, policy reasons may intervene to restrict the actionability of the tort in
certain two-party contexts.
VI. Conspiracy by Unlawful Means
Given the rejection in OBG of a “genus” unlawful means tort, it must now be clear that
unlawful means conspiracy is a stand-alone tort that cannot simply be rationalised
as a manifestation of any such wider principle.99 But that does not yet dispose of the
94 Kenneth. W. Wedderburn, “Intimidation and the Right to Strike” (1964) 27 Mod. L. Rev. 257 at 261,
262, 264.
95 Heydon, supra note 61 at 64, 65.
96 This exception is more limited than that suggested by Carty, who would prefer the threat of contractual
breach to be non-actionable in all two-party contexts: see Hazel Carty, An Analysis of the Economic
Torts, 2nd ed. (Oxford: Oxford University Press, 2010) at 119.
97 Cf. the contrary view of Pearson L.J. in Rookes,supra note 50 at 696, who observed that “[it] seems
inherently absurd to say that a mere threat to do something is actionable, when the actual doing is not,
so that the minor act has a greater effect than the major act”.
98 Sales & Stilitz, supra note 55 at 424.
99 For the contrary suggestion that unlawful means conspiracy is but an instance of the wider “genus” tort,
see Heydon, supra note 61 at 10, 67; Elias & Ewing, supra note 10 at 336; John Murphy, Street on Torts,
12th ed. (Oxford: Oxford University Press, 2007) at 359.

Sing. J.L.S. Causing Loss By Unlawful Means 347
question whether, despite the absence of any such overarching principle, a consistent
notion of “unlawful means” ought to apply to all economic torts. On the one hand,
there is obvious logic and merit (of clarity and certainty) in adopting a uniform
interpretation of “unlawful means” in this context, particularly if regard is had to
the fact that “unlawful means” serves a similar purpose in all the torts, namely,
to protect the liberty to trade and compete by separating licit from illicit forms of
commercial activity.100 Yet a moment of reflection may reveal such an approach to
be at once too sweeping and too sanguine as it overlooks the fundamental structural
and justificatory variance amongst the economic torts. As the preceding discussion
on the tort of intimidation demonstrates, the scope of “unlawful means” cannot be
ascertained without close reference to the particular mechanics of each tort and its
impact on the allocation of risk and liability in the wider context.
For some time, the view that has gained traction amongst commentators is the
conception of conspiracy by unlawful means not as a substantive tort, but as a form
of secondary liability or joint tortfeasance.101 On this understanding, two or more
persons may be liable for the same tort when each of them has participated in its
commission. For this purpose, “combination” is a sufficient form of participation.
By this account, unlawful means conspiracy does not create new liability but merely
extends the class of defendants whom the claimant may sue.102 It would also mean
that only conduct that constitutes a tort actionable by the claimant should count as
“unlawful means”, since there can be no ancillary liability in the absence of primary
liability. But while it has the advantages of promoting certainty and respecting
legislative supremacy, this analysis is unsatisfactory once it is applied to civil wrongs
other than torts. For instance, it is conceptually implausible jointly to breach a
contract103 or a fiduciary duty unless all conspirators are parties to the contract or
subject to the same equitable obligation. Secondly, it has been pointed out that
once the principle of joint tortfeasance is accepted as the true rationale, then there
is no reason to insist on the proof of intention to injure as an element of the tort.104
100 Dugdale & Jones, supra note 3 at paras. 25-94 and 25-121.
101 Peter G. Heffey, “The Survival of Civil Conspiracy: A Question of Magic or Logic?” (1975) 1 Monash
University Law Review 136; Philip Sales, “The Tort of Conspiracy and Civil Secondary Liability”
(1990) 49 Cambridge L. J. 491; Hazel Carty, “Joint Tortfeasance and Assistance Liability” (1999) 19
L.S. 489 at 496-500; Carty, “The Economic Torts in the 21st Century”, supra note 26 at 668, 669, 672;
Sales & Stilitz, supra note 55 at 435; Neyers, “The Economic Torts as Corrective Justice”, supra note
40 at 198. For an analysis of unlawful means conspiracy as a form of accessorial tort after Revenue
& Customs Commissioners v. Total Network SL [2008] UKHL 19, [2008] 1 A.C. 1174 (H.L.) [Total
Network], see Joachim Dietrich, “Accessorial Liability in the Law of Torts” (2011) 31 L.S. 231.
102 If so, the tort is “mere surplusage” (Sorrell,supra note 90 at 716, Lord Dunedin) or “a barren iteration
of joint tortfeasance” (Total Network,supra note 101 at para. 66, Lord Scott). But cf. Sales, supra note
101 at 511, who argues that the tort still has a substantive role in cases where the acts of each defendant
are insufficient for establishing the underlying tort but the combination of all the defendants’acts would
suffice. A pleading of conspiracy may also operate to aggravate damages: see Peter T. Burns, “Civil
Conspiracy: An Unwieldy Vessel Rides a Judicial Tempest” (1982) 16 University of British Columbia
Law Review 229 at 245.
103 Presumably, the action may be more accurately framed as a conspiracy to induce a breach of contract
instead: see Kenneth. W. Wedderburn, “The Right to Threaten Strikes” (1961) 24 Mod. L. Rev. 572 at
581-583.
104 Robert Stevens, Torts and Rights (Oxford: Oxford University Press, 2007) at 249. Stevens’s notion
of joint tortfeasance is, however, distinguished from those of Sales, supra note 101, and Carty, “Joint

348 Singapore Journal of Legal Studies [2011]
However, the mental ingredient of the tort is deeply entrenched105 and its removal
is therefore improbable. Finally, any attempt to revive this joint tortfeasance theory
must now contend with the House of Lords’ decision in Total Network,106 which has
categorically rejected the characterisation of unlawful means conspiracy as a joint
tort.
In Total Network, the defendant was alleged to have conspired with others to
cheat the Commissioners of VAT (Value Added Tax). A preliminary issue that arose
before the court was whether the alleged unlawful means employed by the defendant
must have been independently actionable by the party against whom it was inflicted.
For this purpose, the assumed facts were that the defendant’s conduct constituted
the common law offence of cheating, but such offence was not actionable by the
Commissioners as a civil suit.107 It was unanimously held that a common law
offence could count as “unlawful means” even if it was not separately actionable
by the claimant. In this connection, the stricter approach in OBG was distinguished
as one that was intended to apply only to a three-party unlawful means tort.108
Conspiracy by unlawful means, on the other hand, was neither a species of causing
loss by unlawful means tort109 nor a form of joint tort.110 The gist of the tort lay,
instead, in the intentional infliction of harm through a combination.111 That being
the case, there was no reason for insisting on a “single consistent approach as to what
constitutes unlawfulness in relation to all the economic torts”,112 and no reason why
unlawful means conspiracy could not be established by a crime that was not also
actionable as a tort.
Judged against contemporary scholarship, this reversion to “conspiracy” or “com-
bination” as the nub of the tort is surprising, as the weaknesses associated with this
line of reasoning are well ventilated. The idea that a peculiar power or force of
coercion resides in numbers is widely regarded as sophistry. In the modern market
place dominated by large corporations, power is concentrated not in numbers but in
size.113 Nor should it matter that a combination may be evidence of malice, since
there is no tortious liability for malicious injury in English law.114 Nevertheless, the
arguments are not all one-sided, and some reasons may fairly be given in support of
their Lordships’ stand in Total Network. In the first place, although it is true that a
large corporation is often more powerful than several individual traders combined,
Tortfeasance and Assistance Liability”, supra note 101, in that he argues that it is the act, rather than
the liability, of one party that is attributed to another.
105 Lonrho,supra note 12.
106 Supra note 101. This appears also to be the position in Singapore. In Beckkett Pte. Ltd. v. Deutsche Bank
AG [2009] 3 S.L.R.(R.) 452 at para. 120 (C.A.), Chan Sek Keong C.J. stated that “[it] is not disputed
that in unlawful means conspiracy, the element of unlawfulness covers both a criminal act or means, as
well as an intentional act that is tortious”.
107 TotalNetwork,supra note 101 at para. 42. See also the Court of Appeal’s decision in Revenue & Customs
Commissioners v. Total Network SL [2007] 2 W.L.R. 1156 at para. 36 (C.A.).
108 Total Network,supra note 101 at para. 43, Lord Hope; para. 99, Lord Walker; para. 124, Lord Mance;
and para. 223, Lord Neuberger.
109 Ibid. at para. 123, Lord Mance.
110 Ibid. at para. 44, Lord Hope; paras. 94, 104, Lord Walker; and para. 118, Lord Mance.
111 Ibid. at para. 41, Lord Hope; para. 57, Lord Scott; para. 122, Lord Mance; and paras. 221, 222, Lord
Neuberger.
112 Ibid. at para. 224, Lord Neuberger.
113 Lonrho,supra note 12 at 189.
114 Allen,supra note 49.

Sing. J.L.S. Causing Loss By Unlawful Means 349
it does not follow that the latter cannot constitute an unfair or intimidating force
against a lone trader. So while a common law action for conspiracy may not ade-
quately capture all abuses of dominant power, a case may be made for retaining it
to supplement anti-trust regulations.115 Moreover, the distinction between corpo-
rations and individuals may appear to be overstated if regard is had to the fact that
corporations are just as likely as individuals to attract liability in cases where unlaw-
ful means are used, since it is settled that a company may, together with its directors
and officers, be liable as co-conspirators for wrongs committed by the company.116
More fundamentally, it may be argued that the true rationale underlying the civil tort
of conspiracy by unlawful means is to protect members of society against injury that
results from the deliberate subversion of the law.117 On this view, it is the agreement
among the conspirators to perpetrate an unlawful act that is the essential wrong of
the tort, while the elements of intention to injure and ensuing injury help to identify
the appropriate claimant. So explained, the decision in Total Network is neither
anomalous nor illogical. The law objects to the perpetration of illegality through
concerted conduct, even if the same act is not civilly actionable when it is done by
an individual.
By rejecting the theory of joint tortfeasance, Total Network has clarified that
“unlawful means” in the context of the conspiracy tort should be construed broadly
to include crimes that are not also civilly actionable. But it does not mean that any
unlawful act will suffice. Instead, greater reliance will have to be placed on the need
to demonstrate a tight causal link between the unlawful act and the injury sustained
to rein in the tort.118
115 Thus, it has been observed in Joe Thomson, “AnIsland Legacy—The Delict of Conspiracy” in D.L. Carey
Miller & David W. Meyers, eds., Comparative and Historical Essays in Scots Law (Edinburgh:
Butterworths and the Law Society of Scotland, 1992) 150, that:
[W]hatever its illogicalities, the tort/delict of conspiracy remains a cogent weapon in the attempt to
outlaw fraudulent practices in the international commercial and banking community, where individ-
uals and individual companies may otherwise escape liability for any substantive tort/delict used,
because they are outwith the jurisdiction of the courts.
Indeed, quite apart from the facts assumed in Total Network,supra note 101, there may be other situations
in which the tort could perform a useful gap-filling role. For example, if A bribes B in return for B’s
agreement not to award a contract to C, C is unlikely to have any remedy against B in the absence of
any pre-existing legal relation between them. Although A has, broadly speaking, injured C through
the agency of B, causing loss by unlawful means is inapplicable on these facts since A has committed
no wrong as against B. Instead, the wrong (if any) as against C is perpetrated not by A alone but
by the combined conduct of A and B. So if the act of bribery should constitute a criminal offence
under, e.g., the Bribery Act 2010 (U.K.), 2010, c. 23, an action for conspiracy by unlawful means
as against both A and B would appear to be the more logical and effective means of redressing C’s
loss.
116 Belmont Finance Corp. v. Williams Furniture Ltd. [1979] Ch. 250, though there is a presumption against
liability where the wrong in question is a breach of contract in the ordinary course of the company’s
business: Said v. Butt [1920] 3 K.B. 497 (C.A.).
117 This is not unlike the rationale that underlies criminal conspiracy: see Ian H. Dennis, “The Rationale
of Criminal Conspiracy” (1977) 93 Law Q. Rev. 39 at 50, 51.
118 See Total Network,supra note 61 at paras. 95, 96, Lord Walker; paras. 119, 120, Lord Mance; and
para. 224, Lord Neuberger. For a helpful analysis of the principles relevant to determining what crimes
would suffice for establishing the conspiracy tort, see Peter Edmundson, “Conspiracy by Unlawful
Means: Keeping the Tort Untangled” (2008) 16 Torts Law Journal 189 at 196-198.

350 Singapore Journal of Legal Studies [2011]
VII. Conclusion
Academic discourse has for some time been preoccupied with the question of whether
there exists a general principle that unites the torts commonly discussed under the
broad heading of economic torts. These torts, it has been said, are in need of “a
Cardozo or an Atkin to tell them where they belong”.119 A general principle that
distils the essence of a seemingly disparate group of torts has obvious and enormous
appeal. Apart from clarifying the torts, it could also remedy existing “gaps” in the law
and provide a firmer foundation for its rational development. However, the decisions
in OBG and Total Network have demonstrated that this is not an attainable idea.
Attempts to fashion a wide general principle are likely to be unfruitful because, on
its own, “unlawful means” is simply too broad and unwieldy a concept. Moreover,
calls to rationalise the law by the adoption of a broad principle often assume that
the economic torts share a unity in their conceptual underpinnings, but such an
assumption is, as this article has attempted to demonstrate, largely mistaken. It
is true that, at a high level of abstraction, “unlawful means” performs a common
function across the torts in isolating right from wrong. But in each instance, it is not
the unlawful means per se that makes the wrong, but the primary course of conduct
that is coloured by the use of unlawful means. Thus, the fact of interference with
an intermediary’s liberty is key to causing loss by unlawful means, while two-party
intimidation is distinguished by the fact of illegitimate coercion. Conspiracy by
unlawful means, on the other hand, is (following Total Network ) characterised by the
fact of agreement to commit illegal acts. Given the different starting points, it makes
sense to develop each tort through a “cautious incremental approach”.120 For much
the same reason, we should also be slow to assume that what suffices as “unlawful
means” in one tort must of necessity suffice for another. In each case, the relevance
of the illegality must be tested against the rationale of the tort.121
Some may bemoan this “fragmentation” of the economic torts as a retrogressive
step. But such a view is premised largely on the supposition that “unlawful means”
serves as a satisfactory unifying factor for the economic torts. It does not. Instead,
what this article has attempted to demonstrate is that the diverse bases of the torts
logically require a more nuanced approach to the elements of the different torts—
including unlawful means. Such an approach would not, of course, render the law
simple, but faithful adherence to a cogent rationale will be more likely to beget a
principled and fair body of law in the future.
119 David F. Partlett, “From Victorian Opera to Rock and Rap: Inducement to Breach of Contract in the
Music Industry” (1992) 66 Tul. L. Rev. 771 at 773, 774.
120 OBG,supra note 2 at para. 270, Lord Walker.
121 A similar argument is made by Edmundson in respect of unlawful means conspiracy: see especially
Edmundson, supra note 118 at 202-206.

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