Date: Fri, 10 Aug 2007 10:38

From: Robert Stevens

Subject: Millar v Bassey and OBG

Millar v Bassey is clearly wrong. Using Ken's terminology

(i) Accessory Liability

Contracts impose duties on third parties that they will not act in such a way as to induce its breach. They do not impose duties on third parties that they take positive steps to enable contracting parties to perform. So, if X agrees to sell to Y a Picasso owned by Z, Z is not under any duty to Y to sell to X to enable X to perform. Similarly the contract between the claimants and Dreampace imposed no positive duty on Ms Bassey to facilitate its performance by singing.

(ii) Unlawful means

Ms Bassey was under a positive duty to Dreampace to sing for them under the contract between them. Her decision to breach by not performing was clearly not done with the purpose of injuring the claimants. This is the relevant mental element for this claim, which is not the same as that necessary for accessory liability, as OBG makes clear.

So the two claims fail, but for different reasons.

All that said, I tend to agree with Jason that what Lord Hoffmann says at [43] is rather unfortunate. I suspect he has seen that Millar v Bassey is obviously wrong, and is trying to articulate the reason why. His reason is unsatisfactory, but it is one of the few unclear passages in a superb speech which has clarified the law in this area beyond our best hopes.

Robert Stevens
Professor of Commercial Law
University College London

KA Oliphant writes:

I agree with you Jason. There's a lack of clarity on Hoffmann's analysis of this point. The scheme desired end/chosen means of achieving desired end/foreseeable consequence misses out the whole class of events that are actually foreseen (not merely foreseeable) but not desired. In English criminal law, an intention can be "inferred" or "found" if the defendant foresaw a consequence as "virtually certain". Is this also true of the economic torts? Dunno, and Hoffmann certainly doesn't help. But see Lord Nicholls at [167], seeing the necessary intent where the defendant pursues "a course of conduct which he knows will, in the very nature of things, necessarily be injurious to the claimant".

Shameless self-publicity: there's analysis of these issues in my chapter on the Economic Torts in K. Oliphant (ed.) The Law of Torts (Butterworths LexisNexis 2007), out last month.

Re alternative explanations for Millar v Bassey, a first question to ask is whether the claim related to the accessory tort or the unlawful means tort, or both.

Under the accessory tort, the Tony Weir solution (prevention is not inducement), from his Economic Torts (1997), seems to be ruled out by OBG where the whole distinction between direct inducement and indirect influence is trashed, and a simple test of causation instated. Is there any other route by which liability could be denied? I suppose it may be possible to see the contract between the recording company and the musicians as frustrated by Ms Bassey's withdrawal. In which case there's no breach of contract to which she could be accessory.

But that still leaves the unlawful means tort. Following Rookes v Barnard, it's clear that breach of contract satisfies the requirement of unlawfulness, and we come back to the question of intention. But - perhaps an important point - the focal point of the intention here is the claimant's loss, not merely the breach of contract. Without going back to Millar v Bassey, I can't recall whether it was asked there whether Bassey knew for certain that the musicians would lose out financially. If not, that would dispose of the case even if one takes an expanded view of intention as encompassing knowledge of virtual certainty.

Just my tuppence ha'penny worth.

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