A recent decision of the CA, Meretz Investments v ACP Ltd may be of interest.
As may be recalled, the Court of Appeal in Mainstream Properties v Young, with the lead judgment given by Arden LJ, decided that the mens rea elements for the torts of inducing breach of contract and causing loss by unlawful means were the same. They concluded that intention to cause harm was required for both. (This despite the fact that, if correct, Lumley v Gye would have been incorrectly decided under the principle established in Lumley v Gye.)
The House of Lords corrected this error. The mental elements for the two torts are not the same, inducing breach of contract not requiring intent to cause harm. The economic torts should not be just lumped together.
The Court of Appeal in Meretz Investments v ACP, with the lead judgment given by Arden LJ, have decided that the mens rea elements for unlawful means conspiracy and causing loss by unlawful means are the same, with both requiring intent to cause harm. (To be fair, this time the contrary does not seem to have been seriously argued [146].)
Again, this seems to be an unfortunate example of lumping together two doctrinally separate concepts. If A and B agree upon a common action and in the course of so doing one of them commits a tort, both are jointly liable (The Koursk [1924] P 140, 155 Scrutton LJ). Put another way, conspiracy involves rules for the attribution of one conspirator’s actions to another. Intention to cause harm has never been a requirement of this rule. So if A and B agree to check a gas pipe for leaks with matches, both will be liable even though it cannot be shown who in fact committed the tort (Brooke v Boole [1928] 2 KB 578). This is so even though nobody intended harm. Causing loss by unlawful means is quite different. The different economic torts don't really have much in common with one another.
It is to be hoped that the Court of Appeal's current heresy on this topic is as short lived as the last one.
