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Economic Torts Notes

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The Two Torts

The two torts are [a] procuring breach of contract and [b] causing loss by unlawful means (1.1.b)

Procuring Breach of Contract

Lumley v Gye (1853) (HC) - opera singer X contracted to sing for C, but D made her sing for his theatre instead. D procured her breach of contract with C, thereby causing loss to C. Held that in order for the tort to be made out, D has to know of the existence of the contract and what its terms are (under normal circumstances the conduct would be acceptable). On the facts, D did not know of the contract so no liability Howarth - at the time, breach of contracts by servants was a criminal ofence so this may give the context as to why inducing somebody was regarded as being so bad


Causing Loss by Unlawful Means

Allen v Flood (1898) (HL) - D told X that workers would stop working unless X stopped using C's services. Since workers were not employees there was nothing to stop them just working away. X stopped using C's services as a result of D's pressure. C sued D for causing loss by unlawful means. Held that no wrong had been committed because no threats nor conspiracies were made by D. Therefore there was no unlawful means Tarleton v M'Gawley (1790) (HC) - D and C were masters of boats. People from the shore came to trade with C, and every time this happened D fred canons to intimidate them. C could sue D, and this fts well under the unlawful means tort


Abuse of Rights Tuttle v Buck (1909) (USA) - banker drove a barber out of business by setting up a barbers shop and undercutting his prices. Held that he was liable for intentionally causing the economic loss

OBG v Allan (2007) (HL) - Lord Nicholls - there is no liability for intentionally causing damage without using unlawful means in English law


Unification of the Two Torts




In the 20 Century, the courts tried to unify these two torts Quinn v Leathem (1901) (HL) - Lord Macnaghten - gist of Lumley v Gye is violation of a legal right, and such liability arises when interfering with contractual relations. This led to some confusion because it could be said that the dictum does not require a contract. Lord Lindley - Lumley v Gye not confned to breaches of contract - the principle is that all wrongful acts done intentionally to damage a particular individual are actionable

Mogul Steamship v McGregor (1889) (CA) - Bowen LJ - lumped unlawful means and Lumley v Gye in the same category just because they are wrongful.

Seems wrong because just because they are ways of causing economic damage, doesn't meant there is a single principle. In addition you could sometimes have liability for both (1.2.b)

Progression of the Unifed Theory GWK v Dunlop Rubber (1926) (HC) - X made motor cars and C made tyres. X had a deal with C whereby X would put C's tyres on X's cars and to show the cars at motor shows. The night before a motor show, D changed C's tyres for D's tyres. C tried to sue based on intentionally inducing breach of contract. Held that there was a violation of C's legal rights (so X was in breach as to C) but no inducement

OBG v Allan (2007) (HL) - Lord Hoffman - Dunlop Rubber was a good example of unlawful means; even though not explicitly mentioned by the case it is implied by the statement of principle and separate finding of trespass to goods. Lord Nicholls
- in Dunlop Rubber, the use of Lumley v Gye was unfortunate because X was not induced to breach his contract, he was merely prevented from performing it. Thus D was not an accessory to anything and the case, as a prevention case, fitted under unlawful means instead DC Thomson v Deakin (1952) (CA) - Jenkins LJ - fully adopted the unifed theory. Lumley v Gye extended to all interference with contractual relations by unlawful means: direct persuasion/procurement/inducement was a wrongful act in itself and constituted the primary form of the tort. But other examples such as Dunlop Rubber were examples of the same tort. Sir Evershed MR - not logical to limit it to situations where X persuaded to breach: the situation is the same whether X breaks the contract or whether D interferes

OBG v Allan (2007) (HL) - Lord Hoffman - at the time of DC Thomson there was a lack of appreciation of the unlawful means tort. The court therefore wanted to modify the cause of action to cover cases where unlawful means used to cause damage by interfering with performance of a contract without the participation of X (1.2.c)

Circular Reasoning

OBG v Allan (2007) (HL) - Lord Hoffmann - treating Lumley v Gye as a case of unlawful means is circular because D's conduct was only wrongful because the court had said it was tortious; therefore it is circular to say it was tortious because it was wrongful


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