From: Neil Foster <Neil.Foster@newcastle.edu.au>
To: obligations@uwo.ca
Date: 01/03/2011 22:56:25 UTC
Subject: ODG: Two person intimidation?
Dear Colleagues;
Apart from sounding like the background for a John le Carre novel, the recent decision of the English CA in Berezovsky v Abramovich [2011] EWCA Civ 153 (23 February 2011)  http://www.bailii.org/ew/cases/EWCA/Civ/2011/153.html is interesting because it assumes that there is a tort of intimidation which can be satisfied where there is a threat from D to commit an unlawful act on C, causing C loss- see [5] where, citing  Lord Denning in Morgan v Fry [1968] 2 QB 710,724C the elements are said to be:

1) a threat by the defendant (D) to do something unlawful or "illegitimate";
2) the threat must be intended to coerce the claimant (C) to take or refrain from taking some course of action;
3) the threat must in fact coerce C to take such action;
4) loss or damage must be incurred by C as a result.
I had thought that after OBG v Allan this tort would be regarded as part of "causing loss by unlawful means" and there must be a bit of doubt about the two-party version. It would have been useful if the Court had commented on the interactions here. However, the facts of this case seem to provide a good example of why a two-party version may be useful.
I was not so impressed with the general comment at [59] that: "A cause of action in tort has, as its essential ingredients, a plea of duty, breach of duty and consequent damage to the claimant." That of course would be a good summary of the action in negligence, but a bit controversial when regarded as a general proposition about torts as a whole. Still, it was given in passing in considering other issues.
Regards
Neil Foster

 
Neil Foster,
Senior Lecturer,
Deputy Head of School & LLB Program Convenor,
Newcastle Law School,
Faculty of Business & Law.
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