It's a Conspiracy! Or Is It? The Difficulty With the Economic Torts as ‘Alternative’ Causes of Action for Competition Law Damages Actions in UK Courts

The cause of action upon which damages actions brought in the UK courts under either EU or UK competition law are generally founded is breach of statutory duty.1 In two cases from recent years, however—both follow-on actions brought against parties held under regulatory decisions to have partaken in illegal cartels—an attempt has been made to invoke the torts of conspiracy by unlawful means and/or unlawful interference, as causes of action. This article asks why a claimant might attempt to found an action in unlawful means conspiracy or unlawful interference, in addition to, or as an alternative to, an action for breach of statutory duty, when bringing a damages action against a cartelist. With regard to both unlawful means conspiracy and unlawful interference, it will be noted that the dual requirements of showing the necessary intent and establishing the unlawful means, result in these torts being considerably more complicated to invoke as a cause of action than breach of statutory duty in a competition law damages action. It will be suggested that unlawful interference is particularly tricky to successfully invoke because of the additional requirement of having to demonstrate interference with the freedom of a third party to deal with the claimant and because ‘unlawful means’ are defined more narrowly for the purposes of this tort than is the case for unlawful means conspiracy. It will be concluded, however, that even if either of these torts could in theory be used as a cause of action in a competition law damages action, it is precisely the cases in which they would be attractive to a claimant, i.e. those where an action for breach of statutory duty is unavailable, that the use of either tort will come up against insurmountable obstacles. Crucially, it is doubtful that under English law, the breach of the law of a foreign country could constitute ‘unlawful means’ for the purposes of either unlawful means conspiracy or unlawful interference. Finally, the implications of the recent referendum held in the UK on EU membership for the topic of this article will be briefly considered.