Dear Colleagues,

 

A judgment today from the UK Supreme Court considers the economic torts and precedent.  Secretary of State for Health v Servier Laboratories Ltd [2021] UKSC 24 https://www.supremecourt.uk/cases/docs/uksc-2019-0172-judgment.pdf concerned an attempt by the NHS to claim against a drugs manufacturer that had allegedly obtained a patent on the basis of representations as to novely that the manufacturer knew to be false, and so allegedly caused loss to the NHS as it could not buy drugs at lower cost.

 

The main point in issue was whether the tort of causing loss by unlawful means requires that the defendant’s unlawful means should have affected the relevant third party’s freedom to deal with the claimant. The Supreme Court confirm that OBG v Allan, the leading House of Lords authority, did hold that this dealing requirement was essential, as part of its ratio. Further, the Court declined an invitation to depart from that aspect of OBG. The main focus is on the perceived need to keep the tort within reasonable bounds. The main judgment is given by Lord Hamblen, and there is a short concurring judgment provided by Lord Sales, which is of interest because the appellants sought to rely in part on an article written by Lord Sales and Professor Paul Davies ((2018) 134 LQR 69) – Lord Sales also floats the possibility that the decision in Revenue and Customs Comrs v Total Network SL [2008] UKHL 19 on unlawful means conspiracy may need to be reviewed at some point.

 

Best wishes,

Jamie

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James Lee

Professor of English Law and Vice-Dean (Education)

The Dickson Poon School of Law

Somerset House East Wing, room SW1.12
King's College London
Strand
London WC2R 2LS

 

E-mail: james.lee@kcl.ac.uk

 

Tel: +44 (0)20 7848 2363

 

Profile: https://www.kcl.ac.uk/people/james-lee

 

 

Can I help you with anything? Please just get in touch by e-mail james.lee@kcl.ac.uk and we’ll arrange a virtual appointment at a mutually convenient time.

 

 

Forthcoming: Jamie Glister and James Lee, Hanbury & Martin: Modern Equity, 22nd edition (Sweet & Maxwell, 2021)