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There
are two sorts of conspiracy:
the Quinn v. Leathem type which employs only lawful
means but aims at an unlawful end, and the type which employs
unlawful means. Thus the tort can take the form of unlawful
conspiracy, where the combination uses unlawful means and the form
of simple conspiracy, where the magic of plurality renders a
combination to injure tortuous, despite the lack of unlawful
means. Though these two torts obviously have common factors- an
agreement or combination involving two or more persons
intentionally to harm the claimant- their focal point is
different. For this reason they must be analyzed separately. In so
doing their relationship to the other economic torts will be
revealed.
(A) Unlawful Conspiracy
Its ingredients are: -
# Intention
# Agreement / Common Design
# Concerted Action
# Damage
# Unlawful Means
# Justification
The issue of INTENTION is
controversial in the economic torts. Though they require
intentional harm, it has not been established whether that concept
of intention is the same for them all. So dicta can be found
requiring only that the act at the heart of the unlawful
conspiracy be
deliberate and have the effect of injuring the claimant . The
parties to
a conspiracy must have a COMMON DESIGN , though they need not all
join
at the same time. It is clear that for the conspiracy liability,
it is
sufficient that the parties combine to secure the doing of acts,
which
in the event prove to be a tort. The lack of common design in
CBS
Songs
Ltd. v. Amstrad meant there could be no complicity liability. The
requirement of a common design- means that ¡¥mere facilitation¡¦
is not
sufficient for liability. Agreement alone is not sufficient for
liability: there must be CONCERTED ACTION, consequent on that
agreement.
Thus, Stuart-Smith LJ commented in Credit
Lyonnais v. ECGD: it is not enough
that [the defendant] merely facilitates the commission of the tort
unless his assistance is given in pursuance and furtherance of the
common design. Glidewell LJ in Unilever plc v. Chefaro
noted that in order to show liability emanating from a
common design ¡¥it is necessary to show some act in furtherance of
the common design, not merely an agreement. Pumfrey J in
Sandman v. Panasonic UK Ltd. ,
having found no decision to support a doctrine of responsibility
in tort
from mere association with a group acting in concert, concluded
there
must be some evidence that the defendant was actually involved in
furthering the common design, that he took part in the
unlawful act.
There must be concerted action to a common end. DAMAGE is an
essential
element of liability in the tort of conspiracy for the tort,
unlike the
crime, consists not of agreement but of concert action taken
pursuant to
agreement. Pecuniary loss must be shown. There was a detailed
consideration of this point in Lonrho v. Fayed
(no. 5) . So,
damages are
at large, i.e. not limited to a precise calculation of the
amount of
the actual pecuniary loss actually proved. Loss of profit and the
expense of investigating the conspiracy are clearly recoverable.
In the light of recent dicta , it would seem that the UNLAWFUL MEANS
relied on
for the tort of unlawful conspiracy must, as Stuart-Smith LJ in
Credit Lyonnais v. ECGD asserted, be
actionable in themselves and
at the
suit of the plaintiff. This was accepted as correct by Toulson J
in
Yukong Line Ltd. v. Rendsburg Investments Corp. (no. 2) . Such a
view
equates this tort with the torts of inducing breach of contract
and
inducing breach of statutory duty, where there is a need to show
that an
actionable wrong (i.e. actionable by the claimant) has been
induced.
It is clearly arguable that where unlawful means are deliberately
used
to harm, a defence of JUSTIFICATION should rarely if ever apply.
Indeed,
it is hard to see why this special defence would apply in unlawful
conspiracy if the unlawful means need to be independently
actionable-
unless something like the defence of justification applies to the
primary tort.
(B) Simple Conspiracy:
Here there is liability for an agreement to do acts, lawful in
themselves, for the sole or predominant purpose of causing injury
to the
claimant and which causes injury to him. Simple conspiracy is an
exception to Allen v. Flood . Lord Denning MR found simple
conspiracy to
be a modern intervention altogether. Simple conspiracy was
established in a modern form in Mogul Steamship Co. v. Mc. Gregor
and
nurtured in Quinn v. Leathem
As an anomalous economic tort,
simple conspiracy in fact only applies in the most extreme cases
of oppressive combination This is because of the need to prove
that the combination is motivated by an illegitimate purpose.
Given this tort can render a defendant liable, even though no
unlawful means have been employed, this proviso to liability is an
attempt: to hold the balance between the defendants right to
exercise his lawful rights and the plaintiffs right not to be
injured an injurious conspiracy.
The tort provides interlocutory relief to the plaintiff in
Gulf
Oil (GB)
Ltd. v. Page. However, there is an obvious need to be wary of
applying
the tort of simple conspiracy to cases where the combinations to
injure
uses words, rather than acts. The tort could place the courts in a
dilemma if it allowed claimants too easily to circumvent the
requirements of a defamation action and gain damages for injury to
reputation where the basis of the action was that the defendants
had
conspired to tell the truth.
Simple conspiracy exists but is of little practical value. It
presents
the opportunity for protection only in the most extreme cases of
hostility and vendetta. It will rarely be useful for victims of
others
use of market power. A tort based on reviewing the interests and
motivation of only the parties before the court would appear of
little
value in the process of market regulation.
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Conspiracy
as a Torts 
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The
author can be reached at:
kartikeymahajan@legalserviceindia.com /
