Causing Loss By Unlawful Means

In the past, a number of English authorities have suggested that unlawful interference with trade (now also known as 'causing loss by unlawful means') is a 'genus' tort that provides the rationale as well as framework for analyzing various economic torts including intimidation and conspiracy by unlawful means. However, this view has been decidedly rejected by the House of Lords in OBG Ltd. v. Allan. The majority judges in that case restricted the tort to one that redresses only unjustified interferences with third-party liberty. Since it has a multi-party structure, it is conceptually distinct from cases where liability has been imposed for direct (two-party) interferences. On this view, two-party intimidation, unlawful means conspiracy and causing loss by unlawful means are separate torts despite their common reliance on an independent legal wrong. It also means that there is no single thread that runs through this 'family' of economic torts. While the element of illegality is an essential and common constituent of these torts, it is not the sole element that justifies the tort. Rather, each tort is founded on the combination of a particular course of conduct with the requisite unlawfulness. Consequently (and more controversially), it is now no longer meaningful to identify a single conception of 'unlawful means' that is applicable to all these torts. In each case, it is essential to ensure that the illegality constitutes the tort only if it produces the type of conduct that the tort is designed to deter.