The Province and Politics of the Economic Torts

John Murphy

• Publisher: Hart Publishing
• Year: 2022
• ISBN:
  9781509927326
• Edition: 1
• Topic: Droit
• Subtopic: Droit de la responsabilité délictuelle

Economic torts play a key role in the development of private law more generally. Indeed, the landmark case of OBG v Allan (2008) provided one of the most important decisions in the whole of the law of torts in the last generation, as the House of Lords sought to bring order to an area of the law that has long been beset by doctrinal and theoretical puzzles. Probably the most enduring question of all in this area is whether the economic torts can be unified. This book argues that the search for unity is a will o' the wisp. More particularly, it shows that although some juridical connections exist between some of these torts, there is far more that separates them than unites them. Offering a unique perspective, this is a landmark publication on the law of economic torts.

1

Introduction

Tony Weir, in a series of lectures peppered almost as much with caustic wit as they were with highly perspicacious observations about the array of torts he took as his subject, was assuredly right to observe that the economic torts have been ‘generally marginalised’ in academic writing.¹ Even now, nearly a quarter of a century after Weir made that claim, Hazel Carty’s monograph, An Analysis of the Economic Torts,² remains the only available book that provides a comprehensive description and analysis of these torts.³ Furthermore, although it is fair to say that quite a number of journal articles have been written about some of the economic torts, this body of scholarship is dwarfed by the number of books, articles and essays that have been written about much more familiar actions, such as negligence, nuisance, defamation and the seldom-invoked rule in Rylands v Fletcher.

Possibly, this relative lack of juristic attention is a product of the fact that only a small proportion of torts scholars are especially familiar with the torts in view. It is certainly the case that only a handful of university law schools routinely teach the economic torts.⁴ And it is also true that a fair number of the most popular tort textbooks have nothing whatsoever to say about most or all of them.⁵ Yet, however much one considers these omissions to be justified – there is, after all, only so much tort that one can teach in a year-long course – it remains true that some of the most important decisions in the whole of the law of torts come from within the economic torts stable. Allen v Flood,⁶ Rookes v Barnard⁷ and OBG Ltd v Allan⁸ are prime examples. Writing about the first of these in his Blackstone Lecture, RVF Heuston claimed that Allen was ‘perhaps the most important [case] in the whole history of the law of torts’;⁹ while, in a very lengthy case-note concerning Rookes, Weir once wrote that ‘the central message of Rookes … is an extremely important and beneficial contribution to the development of the law’.¹⁰ Some decades later, in a survey of the way that tort law generally had moved on over the preceding 20 or so years, Rogers suggested that ‘the restatement of the economic torts in OBG v Allan … is easily the most important development’.¹¹

From a practical perspective, or so it shall be argued in this book, these actions epitomise tort law’s capacity to fulfil the role of the common law’s Swiss Army Knife.¹² For, with nothing much more than the encouragement of counsel for the claimants, some of these torts were conjured up by judges in order to provide claimants with novel causes of action when they appeared to be clearly morally deserving. Furthermore, as will also be noted at various junctures in this book, these torts have important ramifications for a good deal of contemporary tort theory insofar as most of them depart significantly from what many modern theorists portray as being the structural and juridical hallmarks of tort law.¹³

The very fact that the economic torts have received relatively little juristic attention would probably be reason enough to produce a new book. Add to the mix the fact that they possess considerable theoretical significance, and the case for such an enterprise becomes all the more compelling. But perhaps the most significant reason of all for writing this book is that, for all that the House of Lords may have tried valiantly to bring order to this area of law in recent times, there remains a great deal of uncertainty concerning the purposes, scope, unity and future possible uses of these torts.

This book endeavours to tackle these matters. It is not a treatise. Anyone expecting a fairly routine, textbook-like guide to the essential elements of the various actions discussed in the remaining pages may stop reading now. For, whereas many – perhaps even most – commentators concern themselves primarily with fine-grained analyses (and criticisms) of the particular ingredients of the various economic torts, those matters are largely tangential to what appears in the chapters that follow. Of course, such analyses and criticisms cannot be completely avoided. But it is not my primary objective to suggest how best to construe basic concepts like ‘unlawful means’, or ‘intention’ within any given tort. My concern is with much broader matters.

In this chapter, I aim to do four prefatory things. In section I, I begin by demonstrating one fundamental way in which this field is beset by uncertainty. It involves sketching the extent to which there exists profound disagreement about just which causes of action constitute ‘the economic torts’. I also include in this section a brief account of the little-noticed fact that the problem of identifying the economic torts is not a new one, but one that can be traced back to the days when jurists took their first, hesitant steps towards thinking in terms of a ‘family’ of such torts.

In section II, I lay my cards on the table and set out a fairly expansive dramatis personae whose features, rationales, domain and vitality will occupy half of the remaining chapters. I fully recognise that a number of distinguished jurists (and probably also some judges) would deny, or at least contest, the independent existence of some of the actions I propose to discuss. But I think it is important to include these putatively ‘questionable torts’ for reasons that will be given presently. In section III, I introduce the four central claims of the book; and in section IV, I provide a roadmap to the remaining chapters.

I.Identifying ‘The Economic Torts’

A.One Major Problem

Though most jurists seem happy enough with using the term ‘the economic torts’, there is considerable disagreement among them about just which actions ought properly to be regarded as falling within the fold. This is a major problem for anyone intent on theorising or comprehensively analysing the economic torts. Carty adopts the most expansive view of which torts count for these purposes.¹⁴ She places each of the following eight actions on the list: (i) causing loss by unlawful means; (ii) inducing breach of contract (and certain analogous actions); (iii) lawful means conspiracy; (iv) unlawful means conspiracy; (v) intimidation;¹⁵ (vi) passing off; (vii) deceit; and (viii) injurious falsehood. Nicholas McBride and Roderick Bagshaw adopt more or less the same list (albeit that they are considerably more hesitant about treating the action for inducing breach of contract as a tort¹⁶).

By contrast, Allan Beever thinks a much narrower range of actions constitute the economic torts.¹⁷ He clearly regards the torts of deceit, injurious falsehood and passing off as being ‘members of the family’.¹⁸ But after that, things become hazy. He considers the existence of inducing breach of contract to be a complete mystery,¹⁹ and suggests (at one point) that it should be permitted ‘to die a merciful death’.²⁰ He doesn’t quite say, however, whether he thinks it actually is an economic tort. He reluctantly acknowledges the existence of some sort of cause of action; but he conspicuously stops short of treating it as a thoroughbred tort that is alive and well. On top of this, he is so dismissive about various essential elements in the remaining torts on Carty’s list that it is hard to imagine that he recognises their independent existence at all. Instead, he seems to believe that all the so-called ‘general economic torts’²¹ can be reduced to a single, unifying principle of liability according to which an actionable wrong will be committed where ‘one person attempts to control another via the medium of a third party’.²² If he thinks there is just one tort here, it is a tort with no name.

A different view again is held by Simon Deakin. In an article co-authored with John Randall, Deakin claims that the economic torts are centred on ‘the principle that the right to pursue a trade, business or livelihood free of certain forms of interference, deemed to be illegitimate deserves the protection of the law’.²³ Yet, contrary to this conception – which, in fact, is traceable to a nuisance case²⁴ – his textbook (written with a different co-author) excludes from the list of economic torts the actions for injurious falsehood and passing off. Both of these are dealt with in an entirely separate section of the book devoted to ‘the protection of human dignity’.²⁵ And, whereas both Carty, and McBride and Bagshaw recognise two-party intimidation as a freestanding tort (albeit, a tort on stilts), Deakin accepts only the existence of the three-party version of this tort.²⁶

Judicial opinions about these torts are equally divided. There is no consensus among the judges now (nor has there ever seemingly been one) about which of the various actions has a discrete existence. In OBG, Lord Hoffmann sought to impose order on the general economic torts by simplifying the framework within which they would operate. He wanted to return to the two-tort structure first outlined by Lord Watson in Allen v Flood.²⁷ Indeed, the first 64 paragraphs of his speech in OBG were concerned with just this prefatory matter.²⁸ And yet, despite his efforts, anything but a clear and definitive framework emerged from that case. So apparent was this to Deakin and Randall that they went so far as to contend that ‘the analysis in OBG raises as many questions as it answers’.²⁹

To explain a little here: Lord Hoffmann thought that the vast majority of the previous cases concerning the economic torts could be cashed out either in terms of inducing breach of contract, or the tort of causing loss by unlawful means. En route to so saying, his Lordship was keen to tidy things up by expunging from the catalogue of economic torts a number of actions that he considered to be either otiose or ones which had been constructed on unsound foundations. For example, he was dismissive of the idea that Rookes v Barnard³⁰ had formally introduced a free-standing tort of three-party intimidation. This action, he said, was simply one form of the broader tort of causing loss by unlawful means. He acknowledged the fact that the ancient, yet seminal, cases of Garret v Taylor³¹ and Tarleton v M’Gawley³² had emphasised ‘the use of unlawful threats to intimidate potential customers’.³³ And he acknowledged, also, both the fact that ‘Salmond on Torts, 1st ed (1907) [had] classified them under the heading of “Intimidation”’ and that ‘the existence of a tort of this name was confirmed by the House of Lords in Rookes v Barnard’.³⁴ Yet he insisted, very firm...