Dear Jamie and colleagues;

Thanks for sharing this, Jamie. A very interesting example of the common law at work and the complexities of precedent (and the impact of academic work, as well).

For Australian colleagues, I think there is still some doubt about whether “Causing Loss by Unlawful Means” as explained in OBG v Allen is part of our common law. Hardie Finance Corporation Pty Ltd v Ahern [No 3] [2010] WASC 403 at [720] says yes (this case was cited by the majority in Servier at [71]); see also affirming OBG, Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd (2010) 173 ACTR 33 at 52 [139]-[141] per Refshauge J; and in Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126 at [96]-[99].

But to the contrary see Ballard v Multiplex [2012] NSWSC 426 at [84]-[85] McDougall J at first instance in the Supreme Court of NSW (following earlier doubts expressed in Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 470, by Moore J at first instance in the Federal Court). Jason Neyers argues that the HCA should accept the decision: “Causing Loss by Unlawful Means: Should the High Court of Australia follow OBG Ltd v Allan?” in Degeling, Edelman & Goudkamp Torts in Commercial Law (Pyrmont, Lawbook Co, 2011) at 117-139. And it was mentioned in passing in the High Court in Brown v Tasmania [2017] HCA 43, 261 CLR 328 at [554] by Edelman J, but without any analysis as to whether it was good law in Australia.

Here we do have a number of cases now clearly reaffirming the tort of intimidation, especially CFMEU v Boral Resources (Vic) Pty Ltd [2014] VSCA 348, relying on a decision of the NSW Court of Appeal in Sid Ross Agency Pty Ltd v Actors & Announcers Equity Assocn of Australia [1971] 1 NSWLR 760, and the very interesting decision of Uber BV & Anor v Howarth [2017] NSWSC 54. But whether the wider CLUM action is available is still not clear.

(And then of course, even if recognised, we don’t know whether the limitation of applying to “affecting freedom to deal” cases will be accepted. I must say, however, having read Servier on this issue, and in light of the reasons offered relating to possible “indeterminate liability” – see eg [95]- I suspect the HCA would agree with the Servier court here if it were inclined to recognise the tort.)

Regards

Neil

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

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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)