Date: Wed, 15 Aug 2007 15:45

From: Ken Oliphant

Subject: Millar v Bassey and OBG

Delayed response to Robert:

1. Accessory liability

Distinguishing positive acts from omissions (or duties not to do X from duties to do Y) does look to be, at first glance, an easy way to dispose of Millar v Bassey. But I have a few reservations:

(a) I can't think of any previous economic torts case that has made anything of this distinction at all (maybe my oversight).

(b) there's nothing in OBG v Allan to support it, and it seems inconsistent with the House of Lord's test of "sufficient causal connection" (because omissions can be causes too).

(c) it may extend liability too far (or further than it's so far been extended) insofar as it suggests that causing a breach of contract by a positive act will, absent a justification, always result in accessory liability. Consider the following: I buy up all the produce you have guaranteed to supply to the claimant, intending you to break your contract with the claimant (so that the claimant will be angry and transfer his business to me). Am I liable as an accessory?

(d) it may not extend liability far enough, because there may be cases of accessory liability by omission, though I'm struggling to find a clear example. But consider the following: I let you place an advertising hoarding on my land (for free), unaware that you have contracted with the claimant that you will not advertise there whatever. Once I become aware of the contract, arguably I'm liable as an accessory if I do nothing to make you take the hoarding down.

(e) I don't think these problems can be resolved by saying that, in some cases, the defendant owes a duty (e.g. to revoke the permission relating to the hoarding) and in others he does not (e.g. to refrain from cornering the market). The decision whether the defendant is liable as accessory entails that he owes/does not owe a duty. There is no independent source of the duty.

2. Primary liability (unlawful means)

OBG does not "make clear" that the mental element for this tort is "purpose". In fact, Hoffmann and Nicholls talk of "means" as well as "ends" precisely to make the point that purpose is not necessary. The key question - which the House of Lords does little to answer - is what is entailed by intending something as the means to an end. Nicholls, for one, hints at an analysis that appears wide enough to cover the facts of Millar (at [167]: "a course of conduct which he knows will, in the very nature of things, necessarily be injurious to the claimant").

Ken

--On 10 August 2007 10:38 +0100 Robert Stevens wrote:

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.

----------------------
Ken Oliphant, CSET Reader in Tort, School of Law, University of Bristol,
Wills Memorial Building, Queens Road, Bristol BS8 1RJ.

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