“12.4 Notwithstanding anything to the contrary contained herein (or in any other agreement entered into between the parties hereto including the development lease) in the event of ACP being in breach of its obligations in respect of the provisions of Paragraph 12.2.5 then: 12.4.1 … 12.4.2 The Freeholder shall have the right to serve written notice upon ACP calling for and requiring a development sub-lease to be granted back to the Freeholder in respect of such part of the roofspace of the Property which has not been developed by ACP (excluding the areas covered by the modules in respect of any penthouse or penthouses then actually constructed by ACP and in situ and/or any penthouse or penthouses). ACP shall thereupon be obliged to grant such development sub-lease at a nominal premium of£1 and a nominal ground rent of£1 per annum but otherwise on substantially the same terms as the development lease in so far as the same relate to the area or areas to be sub-let mutatis mutandis (and ACP shall procure that any necessary consent in this regard is granted by any first mortgagee in respect of the development lease).”
“…payment of the costs…of the developer incurred in carrying out the works…including the cost…of any litigation being conducted in respect of the roofspace, the lease or any agreements relating thereto including the preliminary agreement and the introduction agreement…”
“395. What is the agreement causing loss on which Britel and Meretz rely as amounting to the conspiracy? The answer, as it seems to me, must be the Wrap Around Agreement and the subsequent implementation of the steps it contemplated. Underlying the whole of the allegation is the exercise by FP of its power of sale in circumstances in which the obligation of ACP to make further commission payments to Meretz would never arise; and Britel would not be able to enforce the Lease-Back Option. These consequences would have followed whether it was FP that exercised its power of sale under the FP Charge; or NUBBH that exercised its power of sale under the NUBBH Charge. The precise nature of the arrangements that FP made with Mr Tamimi were irrelevant to (and therefore not causative of) any harm that Britel or Meretz suffered. The harm was caused by the mere exercise of the power of sale. These consequences were, however, inherent in the legal structure of the estates and interests in and contracts relating to Albert Court that Meretz and Britel had themselves created (or allowed to be created). The Court of Appeal has twice held that the effect of the April 1999 Deed of Priorities was to enable FP to exercise its power of sale notwithstanding the existence of contractual obligations in other contracts. In my judgment the same applies to the May 2001 Deed of Priorities. In the present case, therefore, I consider that the series of agreements into which the parties entered had the effect that the rights of FP as mortgagee, and in particular its right to exercise its power of sale, were equal or superior both to Britel’s right to the Lease-Back Option and also to Britel’s and Meretz’ right to timely completion by ACP of the development. Alternatively, Britel and Meretz must be taken to have consented to the risk that FP would exercise its power of sale and that, in so doing, it would override Britel’s contractual entitlement to the lease-back and Meretz’ contractual entitlement to commission. 396. This, as it seems to me, is the logical conclusion from the reasoning of the Court of Appeal in the injunction action (reinforced by the endorsement of that reasoning by the Court of Appeal in the assignment action). In my judgment, on the assumption that FP properly exercised its power of sale, the exercise of that power was not tortious or, if otherwise tortious, any interference with a prior contract was justified.”
“The guarantor hereby agrees and declares that any….act, omission, matter or thing whatsoever whereby (but for this provision) the guarantor would be exonerated either wholly or in part from this deed of covenant and indemnity (other than a release executed by the freeholder) shall not release or exonerate or in any way diminish or affect the liability of the guarantor under the provisions set out herein.”
“A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so.”
“I have no doubt that the predominant state of mind of both ACP and FP was a concern to protect their own interests, rather than gratuitously causing harm to Britel or Meretz. But both companies were aware that causing harm to Britel and Meretz would be a by-product of carrying the action plan into execution. Nevertheless both companies were concerned to act lawfully. It was for that reason that BLP were instructed to devise a plan that worked. They also believed, on the basis of Mr Hawkins’ advice that if all site payments made to Britel were made (as they were in return for the assignment of the NUBBH charge) then the Lease-Back Option would lapse, since it was part of the mechanism for securing payment of those sums. Although I do not agree with that advice, Lightman J appears to have done so. It cannot therefore be suggested that it was an unreasonable view to hold. In my judgment, neither FP nor ACP thought that any harm would be caused to Britel. Both ACP and FP believed that the agreements into which they entered were lawful. At best this is a case within test (c) in Douglas. But it does not, in my judgment, lead to the inference that test (b) is satisfied. Accordingly, in my judgment, they lacked the necessary intention to injure.”
“Mr Tamimi had no conscious intention of harming anyone. As far as he was concerned, he was helping everyone who was owed money. Meretz would get what it was entitled to. NUBBH would be repaid. ACP would be enabled to get on with the development; and Mr Tamimi would get penthouse A, which was his only goal. He was told by the lawyers that the only way to get penthouse A was to take the head lease which is why he took it. If there was a risk, he was willing to take it because he had done nothing wrong. All he did was to finance penthouse A in the only way that he could. In my judgment Mr Tamimi also lacked the necessary intention to injure.”
“If [FP] enforces by taking possession as mortgagee and granting a long lease of a completed flat at a premium, then the subsequent charges will be overreached (Berkshire CapitalFunding v Street (1999) 25 EG 191 CA). The preliminary agreement will also be overreached (see para 2.2 above)…”
“There are a number of contenders for the test of the state of mind that amounts to an "intention to injure" in the context of the tort that we have described as "unlawful interference". These include the following: (a) an intention to cause economic harm to the claimant as an end in itself; (b) an intention to cause economic harm to the claimant because it is a necessary means of achieving some ulterior motive; (c) knowledge that the course of conduct undertaken will have the inevitable consequence of causing the claimant economic harm; (d) knowledge that the course of conduct will probably cause the claimant economic harm; (e) knowledge that the course of conduct undertaken may cause the claimant economic harm coupled with reckless indifference as to whether it does or not. A course of conduct undertaken with an intention that satisfies test (a) or (b) can be said to be "aimed", "directed", or "targeted" at the claimant. Causing the claimant economic harm will be a specific object of the conduct in question. A course of conduct which only satisfies test (c) cannot of itself be said to be so aimed, directed or targeted, because the economic harm, although inevitable, will be no more than an incidental consequence, at least from the defendant's perspective. Nonetheless, the fact that the economic harm is inevitable (or even probable) may well be evidence to support a contention that test (b), or even test (a), is satisfied.”
“The gist of the tort of unlawful interference is the intentional infliction of economic harm. In other words, it must be shown that the object or purpose of the defendant is to inflict harm on the claimant, either as an end in itself, or as a means to another end. If foresight of probable consequences or subjective recklessness sufficed as the mental element of the tort, this would transform the nature of the tort. This, in effect, is what Mr Browne sought to persuade us to do when he advanced tests (d) and (e) as sufficient to satisfy the mental element in the tort of unlawful interference. Indeed, we take the view that satisfaction of test (c) would not be sufficient to establish the requisite mental element. However, as mentioned in para 159 above, establishing that the defendant knew that the claimant would suffer economic loss may well be evidence which can support a contention that test (b) or even test (a), is satisfied.”
“84. The opposite side of the coin to knowledge is ignorance. Mr Randall relies on the proposition that ignorance of the law is no defence. This is a point which did not arise in Douglas v Hello, and therefore falls to be decided by this court. It was undoubtedly held in Greig v Insole [1978] 1 W.L.R. 302by Slade J and by Goff LJ in Pritchard v Briggs[1980] Ch. 338 that if a person knows the facts which make the conduct tortious, a mistake as to the legal consequences flowing from those facts is no defence. Stephenson LJ would have agreed with Goff LJ but in his judgment and that of the third member of the court, Templeman LJ, the question of conspiracy did not arise. The holding of Goff LJ is therefore not binding on this court. In my judgment, it is difficult to reconcile these decisions with British Industrial Plastics v Ferguson: they can only be so reconciled on the basis that public policy demands an exception to be made as to the knowledge required for the tort to be committed in the case of mistake of law. Since Pritchard v Briggs and Greig v Insole were decided, the law on mistake has moved on. Originally at common law there was no relief where a party acted under a mistake of law. However, in Kleinwort Benson v Lincoln City Council[1999] 2 AC 349 the House of Lords decided, with respect to the rule precluding the recovery of money paid under a mistake of law, that the distinction between money paid under a mistake of fact and mistake of law could no longer be maintained. The House held that the law must be allowed to develop appropriate defences to provide protection to recipients of money paid under a mistake of law in those cases where justice or policy did not require them to refund the money. Following this decision, this court held in Brennan v Bolt Burdon [2004] 3 W.L.R. 1321 (Sedley and Maurice Kay LJJ and Bodey J) that a common mistake was now capable of vitiating an agreement even if it was one of law, rather than fact. Maurice Kay LJ said that the effect of the decision in the Kleinwort Benson case "now permeates the law of contract" (at [10]). Likewise in Pankhania v Hackney LBC, Rex Tedd QC sitting as a deputy judge of the Chancery Division held that a claim lay for a misrepresentation of law, rather than fact, so that in this case too ignorance as to the law was no bar to the claimant's claim. 85. In the light of these developments in the law, this court must ask whether the policy behind the tort of interference with contractual relations would be furthered if a defendant to a claim based on this tort were to be prevented from relying on a mistake he made on the law to explain why he took the action he did. In my judgment there is nothing in the policy of this tort that requires this bar. It is clearly important that the law should provide proper incentives to parties to familiarise themselves with the law, but if the bar under consideration does not now apply to the recovery of money paid under a mistake, it is difficult to see why it should apply to the economic tort of interference with contractual relations.”
“For example, in Daily Mirror Newspapers Ltd v Gardner[1968] 2 QB 762 the Federation of Retail Newsagents resolved to boycott the “Daily Mirror” for a week to put pressure on the publishers to allow its members higher margins. The Federation advised their members to stop buying the paper from wholesalers. The publishers claimed an injunction on the ground that the Federation was procuring a breach of the wholesalers’ running contracts with the publishers to take a given number of copies each day. Counsel for the Federation (see the judgment of Lord Denning MR. at p 781) said that it was a case of indirect inducement because the Federation "did not exert directly any pressure or inducement on the wholesalers: but at most they only did it indirectly by recommending the retailers to give stop orders.”
“… I cannot see why this should make a difference. If that is what the distinction between "direct” and "indirect" means, it conceals the real question which has to be asked in relation to Lumley v Gye (1853) 2 E. & B. 216: did the defendant’s acts of encouragement, threat, persuasion and so forth have a sufficient causal connection with the breach by the contracting party to attract accessory liability? The court in Lumley v Gye made it clear that the principle upon which a person is liable for the act of another in breaking his contract is the same as that on which he is liable for the act of another in committing a tort. It follows, as I have said, that the relevant principles are to be found in cases such as CBS Songs Ltdv Amstrad Consumer Electronics Plc[1988] AC 1013 and Unilever plc v Chefaro Properties Ltd[1994] FSR 135 . By the test laid down in these cases, the Federation could not have incurred any liability. They were not encouraging or assisting the wholesalers in breaking their contracts. They were simply advising their members to exercise their own freedom to buy whatever newspapers they liked. The wholesalers had no right to the cooperation of the retailers in enabling them to perform their contracts. The liability could not depend upon the accident of whether the Federation had communicated (directly or through an intermediary) with the wholesalers. The distinction between direct and indirect interference was therefore irrelevant and misleading.”
Showing the 50 most senior of 57.