Date: Wed, 15 Aug 2007 18:07

From: Robert Stevens

Subject: Millar v Bassey and OBG

I wasn't, in my response on Millar v Bassey seeking to give a definitive definition of either accessory liability or causing loss by unlawful means. Rather I sought to say why specifically they failed on the facts of M v B.

1. Accessory liability

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

Maybe. That is because it is misunderstood.

(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).

Doing nothing is not an 'omission.' To omit you must be under a duty to act. Which Ms Bassey was not under vis a vis the claimant.

(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 C, intending you to break your contract with C (so that C will be angry and transfer his business to me). Am I liable as an accessory?

Of course not. Only if the breach which is induced is the voluntary choice of the promisor will liability be imposed. The essence of the tort is that by inducing a voluntary breach the defendant undermines the bond of trust between persons. Where the promisor has no choice, the damage to the convention of promising, and consequently our ability to place trust in one another, is not undermined to the same degree.

(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 the 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.

I don't think so. This is the same again as saying the contract to which Ms Bassey is not a party to requires her to sing in order to facilitate its performance.

(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.

Ok but contracts to which I am not a party do not impose upon me positive duties to act to facilitate their performance.

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").

Yes. Nicholls simply cannot be right (he is in a minority on all of the points of difference). If I decide not to perform my contract can it possibly be enough to impose liability upon me to third parties, that I can foresee that they will suffer loss as a result? I think we need to read the relevant intent more narrowly than that. If I walk down the street I don't intend to wear out the soles of my shoes, even though I know it will happen as an inevitable consequence. (I do know that in the criminal law, intent is sometimes given a wider meaning.)

RS

<<<< Previous Message  ~  Index  ~  Next Message >>>>>