“[The 2009 Agreement] does not purport to confer any right of access to the racecourse. It might be argued the provisions of the [2009] Agreement assume that the [Board] will discharge various functions on the racecourse and therefore that, in the absence of any other apparent grant of access, it must be taken as constituting an implied permission. But even if that were right, the implied permission would be limited to that which is necessary to give efficacy to the agreement. It could not possibly confer on the [Board] the right to collect and exploit data for purposes unconnected with any relevant business it had carried on.”
“119. … Although an implied term was pleaded by the claimants, this was not pursued in closing argument. 120. Accordingly, while the claimants did not abandon their claim that the Tote’s conduct involved a breach of the Tote Agreement, attention focused in closing on the Arena Terms.”
“Where a person having entered upon land under an authority given by law subsequently abuses that authority, he becomes a trespasser ab initio, his misconduct relating back so as to make his original entry tortious.”
“45. The authority for the first proposition is The Six Carpenters' Case [(1610) 8 Coke Reports 146a]. The six carpenters entered a tavern in the City of London called the Queen’s Head. They had a right by law to enter into it because it was a common tavern. They ordered wine and bread but refused to pay. As Lord Denning MR noted in Cinnamond v British Airways Authority[1980] 1 WLR 582 at 588: ‘The inference was that from the beginning they went in with the intention of having the wine and the bread and not paying for it. The court held that they were guilty of a trespass from the beginning. It was resolved, said Lord Coke at p. 135, that “when entry, authority, or licence is given to anyone by the law, and he abuses it, he shall be a trespasser ab initio” — from the beginning.’ 46. The doctrine of trespass ab initio is best understood as an evidential one, rather than an absolute rule of law. It could safely be inferred that when the carpenters entered the tavern they had no intention of paying for the goods they consumed. They had no lawful authority to enter to consume goods without payment so they were trespassers from the outset. The different approach reflected in the authorities relating to detention which was lawful at the beginning but later became unlawful illustrates that the doctrine is evidential. In the Smith v Eggington case [(1837) 7 Adolphus and Ellis 167] Littledale J observed: ‘Where there is an authority given by law for doing an act, there an abuse may turn the act into a trespass ab initio. But that rule does not apply here. The rule is said to rest upon this: — that the subsequent illegality shews the party to have contemplated an illegality all along, so the whole becomes a trespass. But here the Sheriff could not, from the first, have had in view the detention of the plaintiff after the time should have expired.’” ‘The inference was that from the beginning they went in with the intention of having the wine and the bread and not paying for it. The court held that they were guilty of a trespass from the beginning. It was resolved, said Lord Coke at p. 135, that “when entry, authority, or licence is given to anyone by the law, and he abuses it, he shall be a trespasser ab initio” — from the beginning.’ ‘Where there is an authority given by law for doing an act, there an abuse may turn the act into a trespass ab initio. But that rule does not apply here. The rule is said to rest upon this: — that the subsequent illegality shews the party to have contemplated an illegality all along, so the whole becomes a trespass. But here the Sheriff could not, from the first, have had in view the detention of the plaintiff after the time should have expired.’”
“Where a person enters premises for a purpose partly lawful and partly unlawful, for example, in order to seize goods or documents some of which are lawfully removable and others not, he becomes a trespasser ab initio in respect of the unlawful seizure only.”
“121. Notices posted at the entrance to Arena racecourses stated that: ‘Entry to this racecourse and grounds … is granted subject at all times to the Arena Racing Company Terms and Conditions of entry’, and identified where those terms could be found. 122. The notices stated that special conditions may apply if ‘you are attending the Racecourse as a member of staff … or otherwise than in your personal capacity as a spectator.’ 123. The notices drew attention specifically to two provisions, prohibiting attendees from conducting any commercial activities, including distributing data relating to races, and from using any devices for, among other things, transmitting any data relating to a race, unless they were expressly permitted to do so. 124. I was shown the terms and conditions applicable to Wolverhampton racecourse, it being common ground that materially the same terms apply at the other Arena racecourses. The preamble states: ‘These Conditions apply to all persons entering the Racecourse. If you attend the Racecourse in any capacity other than as a private individual, you must also agree to a set of Special Conditions which will apply in addition to the Conditions.’ 125. The conditions include the following: ‘4.6 No Ticket gives any Attendee any right to receive, use or exploit any racing data, audio, visual or audio-visual coverage of any race or fixture. All such rights are reserved. Any coverage or data made available at the Racecourse is made available for the personal use and consumption of Attendees only and redistribution to any person outside the Racecourse is strictly prohibited.’ ‘10.1 You shall not use any device or technology to capture, record, store, transmit or broadcast any data relating to any race, fixture or other race-related activity unless you are expressly permitted to do so by Condition 10.4.’ (Clause 10.4 permitted mobile devices for personal use.) ‘10.2 In particular, you must not capture, record, store, transmit (including live stream): … (d) any data relating to any race … e.g., odds, Going, colours and colour changes, jockey changes, results…’ (Clause 10.3 stated that the list in 10.2 was indicative of the types of activity prohibited, but not an exhaustive list.) ‘10.6 Unless specifically permitted by these Conditions, you shall not use mobile telephones or any other communications device while on the Racecourse to communicate with anyone outside the Racecourse for the purpose of or in connection with any betting.’ 126. Additional terms and conditions are provided for a variety of categories of commercial third parties. These are: (A) participants in racing; (B) media contractors and licensees; (C) photographers; (D) press; (E) on-course bookmakers; and (F) contractors, trades and exhibitors. The only one of these that the claimants contend is relevant is (B). At the start of the special terms and conditions, the following appears: ‘Attendees will only be required to comply with, and will only be entitled to any of the rights and privileges set out in, the following Special Conditions where specifically and expressly admitted to the Racecourse on the basis of one or more of the categories of Special Condition.’ 127. Special Conditions B apply to ‘Media Attendees’, being those attendees who are present under the terms of a ‘Third Party Media Agreement’ or ‘for purpose(s) equal or similar to those permitted by a Third Party Media Agreement’. A Third Party Media Agreement is defined as an agreement with a third party under which they, their subcontractors and licensees were permitted to enter the Racecourse ‘for the purpose of producing still images or audio/visual/data coverage of races and fixtures and/or transmitting, broadcasting or otherwise distributing [the same]’. 128. By clause 24.3 of Special Conditions B, save where otherwise agreed expressly in writing: ‘…Media Attendees will not be entitled to exercise any rights to, or to produce and exploit, audio/visual/data coverage of races and fixtures on their own behalf or for any purpose other than that permitted under the Third Party Media Agreement.’” ‘These Conditions apply to all persons entering the Racecourse. If you attend the Racecourse in any capacity other than as a private individual, you must also agree to a set of Special Conditions which will apply in addition to the Conditions.’ ‘4.6 No Ticket gives any Attendee any right to receive, use or exploit any racing data, audio, visual or audio-visual coverage of any race or fixture. All such rights are reserved. Any coverage or data made available at the Racecourse is made available for the personal use and consumption of Attendees only and redistribution to any person outside the Racecourse is strictly prohibited.’ ‘10.1 You shall not use any device or technology to capture, record, store, transmit or broadcast any data relating to any race, fixture or other race-related activity unless you are expressly permitted to do so by Condition 10.4.’ (Clause 10.4 permitted mobile devices for personal use.) ‘10.2 In particular, you must not capture, record, store, transmit (including live stream): … (d) any data relating to any race … e.g., odds, Going, colours and colour changes, jockey changes, results…’ (Clause 10.3 stated that the list in 10.2 was indicative of the types of activity prohibited, but not an exhaustive list.) ‘10.6 Unless specifically permitted by these Conditions, you shall not use mobile telephones or any other communications device while on the Racecourse to communicate with anyone outside the Racecourse for the purpose of or in connection with any betting.’ ‘Attendees will only be required to comply with, and will only be entitled to any of the rights and privileges set out in, the following Special Conditions where specifically and expressly admitted to the Racecourse on the basis of one or more of the categories of Special Condition.’ ‘…Media Attendees will not be entitled to exercise any rights to, or to produce and exploit, audio/visual/data coverage of races and fixtures on their own behalf or for any purpose other than that permitted under the Third Party Media Agreement.’”
“129. The first question arising is whether the special terms and conditions relating to Media Attendees applied to the Tote. There is no evidence of any agreement having been entered into between the Tote and Arena (or any predecessor of Arena in relation to the Arena Racecourses), whether in writing or otherwise, which regulated the activities the Tote in fact (as is common ground) carried out, over many decades, in respect of pool betting on the Arena Racecourses. The Tote's presence on racecourses for the purposes of pool betting was originally pursuant to a statutory right, and there is no evidence of its presence on the Arena Racecourses having been made the subject of any agreement (other than the Tote Agreement, dealt with above). There is accordingly no evidence of there being any agreement that might constitute a Third Party Media Agreement within the meaning of Special Conditions B. 130. It remains possible that the Tote's presence on the Arena Racecourses was for purposes ‘similar to those permitted by a Third Party Media Agreement’. Even if so, however, there is no evidence that the Tote was ‘specifically and expressly admitted’ to any of the Arena Racecourses ‘on the basis of’ the Special Conditions B. Unless it did, then the preamble to the Special Conditions makes it clear that the Special Conditions do not apply to it.”
“So far as the general conditions in the Arena Terms are concerned, those cannot have been intended by Arena to apply to the Tote. The provisions I have set out above (from clauses 4.6 and 10) are in absolute terms. They would preclude the Tote from carrying out any activity at all, yet it is common ground that the Tote was carrying on its pool betting activities at the Arena Racecourses lawfully. I reject the claimants’ contention that it is necessary to read clause 4.6 of the general conditions subject to an implied term ‘save insofar as expressly authorised’. Arena recognised that it was necessary to set out in express terms (i.e. the Special Conditions) the extent to which a third party would be entitled to make use of information acquired at the racecourse. It is possible to imply a term (among other requirements) only if it can be said with certainty what the term would have been. That is not possible given the inherent complexity in seeking to identify precisely what use the Tote could make of information acquired on course and to which of the restrictions in the general conditions it should remain bound.”
“First, the information itself ... must ‘have the necessary quality of confidence about it’. Secondly, that information must have been communicated in circumstances importing an obligation of confidence. Thirdly, there must have been an unauthorised use of the information to the detriment of the party communicating it.”
“namely, it must not be something which is public property and public knowledge”
“117. … The point of which one should never lose sight is that ‘OK!’ had paid£1m for the benefit of the obligation of confidence imposed upon all those present at the wedding in respect of any photographs of the wedding. … Provided that one keeps one’s eye firmly on the money and why it was paid, the case is, as Lindsay J held, quite straightforward. 118. It is first necessary to avoid being distracted by the concepts of privacy and personal information. … ‘OK!'s’ claim is to protect commercially confidential information and nothing more. … The fact that the information happens to have been about the personal life of the Douglases is irrelevant. It could have been information about anything that a newspaper was willing to pay for. What matters is that the Douglases, by the way they arranged their wedding, were in a position to impose an obligation of confidence. They were in control of the information. … 123. The Court of Appeal’s analysis, which treats the obligation of confidence as having been imposed in favour of OK! only in respect of the photographs with which it was supplied by the Douglases … seems to me to make no commercial sense. The essential purpose of the security arrangements and the prohibition of unauthorised photography were to impose an obligation of confidence in respect of any pictures of the wedding. Only in that way could the commercial interests of ‘OK!’ be protected. And it was clear to everyone, Mr Thorpe and Senor Sanchez Junco in particular, that this obligation was imposed for the benefit of ‘OK!’ as well as the Douglases. As the Court of Appeal put it when stating ‘OK’’s argument … ‘the photographs published by ‘Hello!’ fell within a generic class of commercially confidential information … which ‘OK!’ were entitled to protect’. 124. … The information in this case was capable of being protected, not because it concerned the Douglases’ image any more than because it concerned their private life, but simply because it was information of commercial value over which the Douglases had sufficient control to enable them to impose an obligation of confidence. …”
“… it is certainly the case that once information gets into the public domain, it can no longer be the subject of confidence. Whatever the circumstances in which it was obtained, there is no point in the law providing protection. But whether this is the case or not depends on the nature of the information. Whether there is still a point in enforcing the obligation of confidence depends on the facts. If the purpose of publishing the pictures was simply to convey the information that the Douglases had married, the bride wore a wedding dress and so forth, then the publication of any photographs would have put that information in the public domain. So would a description of the event. In this case, however, the point of the transaction was that each picture would be treated as a separate piece of information which ‘OK!’ would have the exclusive right to publish. The pictures published by ‘OK!’ were put into the public domain and it would have had to rely on the law of copyright, not the law of confidence, to prevent their reproduction. But no other pictures were in the public domain and they did not enter the public domain merely because they resembled other pictures which had. …”
“SIS contends that because the information comprising Raceday Data was visible to everyone (potentially thousands) on the racecourse, it did not have the necessary quality of confidence. Moreover, because other racecourses … did not contain similar restrictions to those set out in the Arena Terms, it is impossible to conclude that the information is subject to any ‘general obligation of confidence’. That, however, misses the point. Raceday Data is not confidential because it is of an inherently confidential nature, but because there is a substantial commercial value in the information, provided it is disseminated to off-course bookmakers as soon as possible, and Arena has the ability to, and does in fact, control its dissemination via exclusive channels so as to exploit that value. As in the Hello! case, the fact that TRP (and, before it, SIS) was willing to pay substantial sums for the benefit of an exclusive right to collect and disseminate the information to off-course bookmakers engaged in fixed-odds betting is a strong indication of its confidential nature.”
“It follows from the statements of principle I have quoted above that an equitable obligation of confidence will arise not only where confidential information is disclosed in breach of an obligation of confidence (which may itself be contractual or equitable) and the recipient knows, or has notice, that that is the case, but also where confidential information is acquired or received without having been disclosed in breach of confidence and the acquirer or recipient knows, or has notice, that the information is confidential. Either way, whether a person has notice is to be objectively assessed by reference to a reasonable person standing in the position of the recipient.”
“… a document setting out what should be done by the SIS employees who attended the Tote's premises in Wigan for the purposes of providing information to SIS’s traders that was not within the Tote feed. This was a document which Mr Ames said dated from around January 2017. It is the best evidence of what information was actually provided by the Tote to SIS (as opposed to what was potentially to be provided according to documents created during the negotiations with the Tote during the latter part of 2016).”
“… First, the absence of a contractual restriction on the Tote is not determinative of the question. Indeed, the equitable obligation of confidence is of practical relevance precisely because there is no contractual restriction. Second, I do not think it makes any difference that the Tote is allowed on to the Arena Racecourses in order to collect the information, as opposed to the information being provided to it by Arena. In either case it is information over which Arena asserts control and decides to whom it should be made available. Third, the fact that the Tote was lawfully permitted to collect Raceday Data and use it for one purpose (pool betting) does not in itself mean that the information cannot have been acquired by it in circumstances importing an obligation of confidence. It is perfectly possible that where A provides information to B knowing and intending that it be used by B for a specific purpose, the circumstances may be such that B ought to have been aware that it was otherwise confidential and thus could not be exploited by B for its own purposes. …”
“183. In light of the above evidence, the most significant hurdle facing SIS, in relation to the second of the Coco v A.N. Clark requirements, is that it knew essentially the same information that was known to the Tote, on the basis of which I have concluded that a reasonable person in the position of the Tote would have appreciated that the information was acquired by them in circumstances which imported an obligation of confidence. 184. Thus SIS knew: (1) that Arena imposed restrictions on the use of Raceday Data upon all attendees; (2) that Arena had granted exclusive rights to exploit Raceday Data for fixed-odds betting purposes to TRP; (3) that there was considerable commercial value in being able to disseminate Raceday Data to off-course bookmakers as soon as possible, and that the exclusivity given to TRP was in order that TRP and Arena could exploit that value; (4) that the Tote had no contractual arrangement with Arena regulating its entitlement to collect, or sublicence to others, Raceday Data; and (5) while the Tote had the right to be on the Arena Racecourses, that had only ever in fact been exercised for the purposes of pool betting. 185. In addition SIS was also aware that its own agreement with Arena [had] granted it the exclusive right to collect and distribute Raceday Data. I infer that any reasonable person in SIS’s position would appreciate that the rights which TRP had been granted were similarly exclusive, even if SIS had not appreciated the significance of the press release from TRP in September 2016 which made express reference to that fact.”
“It is, therefore, no doubt necessary to consider the object of the combination as well as the means employed to effect the object, in order to determine the legality or illegality of the combination. And in this case it is clear that if the object were unlawful, or if the object were lawful but the means employed to effect it were unlawful, and if there were a combination either to effect the unlawful object or to use the unlawful means, then the combination was unlawful, then those who formed it were misdemeanants and a person injured by their misdemeanour has an action in respect of his injury.”
“As the law is now settled, I apprehend that in order to substantiate their claim, the appellants must shew, either that the object of the agreement was unlawful, or that illegal methods were resorted to in its prosecution.”
“Where conspirators act with the predominant purpose of injuring the plaintiff and in fact inflict damage on him, but do nothing which would have been actionable if done by an individual acting alone, it is in the fact of their concerted action for that illegitimate purpose that the law, however anomalous it may now seem, finds a sufficient ground to condemn their action as illegal and tortious. But when conspirators intentionally injure the plaintiff and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests; it is sufficient to make their action tortious that the means used were unlawful.”
“108. … 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. … 132. … we reject the submission that the claimants were not entitled to claim damages for conspiracy, but we stress that that does not mean that their case must not be properly proved. That involves proving each of the elements in the tort, including the nature of the agreement, the unlawful means alleged, each unlawful act relied upon as causing loss and the fact that each such act was carried out pursuant to the conspiracy. …”
“9. Conspiracy is both a crime, now of limited ambit, and a tort. The essence of the crime is the agreement or understanding that the parties will act unlawfully, whether or not it is implemented. The overt acts done pursuant to it are relevant, if at all, only as evidence of the agreement or understanding. … a tortious conspiracy, like most other tortious acts, must have caused loss to the claimant, or the cause of action will be incomplete. It follows that a conspiracy must necessarily have been acted on. But there is no more to it than that. The critical point is that the tort of conspiracy is not simply a particular form of joint tortfeasance. In the first place, once it is established that a conspiracy has caused loss, it is actionable as a distinct tort. Secondly, it is clear that it is not a form of secondary liability, but a primary liability. … Third, the fact of combination may alter the legal character and consequences of the overt acts. In particular, it may give rise to liability which would not attach to the overt acts in the absence of combination. This latter feature of the tort was what led Lord Wright in Crofter … to say that it was ‘in the fact of the conspiracy that the unlawfulness resides.’ He was speaking of a lawful means conspiracy, but as Lord Hope of Craighead pointed out in Revenue and Customs Comrs v Total Network SL at para 44, the same applies to an unlawful means conspiracy, at any rate where the means used, while not predominantly intended to injure the claimant, were directed against him. There is clearly much force in his observation at para 41 that if a lawful means conspiracy is actionable on proof of a predominant intention to injure, ‘harm caused by a conspiracy where the means used were unlawful would seem no loss in need of a remedy’. 10. What is it that makes the conspiracy actionable as such? To say that a predominant purpose of injuring the claimant in the one case and the use of unlawful means in the other supply the element of unlawfulness required to make a conspiracy tortious simply restates the proposition in other words. A more useful concept is the absence of just cause or excuse … A person has a right to advance his own interests by lawful means even if the foreseeable consequence is to damage the interests of others. The existence of that right affords a just cause or excuse. Where, on the other hand, he seeks to advance his interests by unlawful means he has no such right. The position is the same where the means used are lawful but the predominant intention of the defendant was to injure the claimant rather than to further some legitimate interest of his own. This is because in that case it cannot be an answer to say that he was simply exercising a legal right. He had no interest recognised by the law in exercising his legal right for the predominant purpose not of advancing his own interests but of injuring the claimant. In either case, there is no just cause or excuse for the combination. 11. Conspiracy being a tort of primary liability, the question what constitute unlawful means cannot depend on whether their use would give rise to a different cause of action independent of conspiracy. The real test is whether there is a just cause or excuse for combining to use unlawful means. That depends on (i) the nature of the unlawfulness, and (ii) its relationship with the resultant damage to the claimant. …”
“If this was the state of their mind, what is the legal result? It was not argued before me, and indeed I do not think it could have been argued, that the defendant company were liable for inducement, or that the defendant company and Doherty were liable for conspiracy, unless those acting on behalf of the defendant company had a fraudulent mind—that is to say, intended to get, or suspected they would get, a process which was secret. I think that those persons were both negligent and muddle-headed, but I do not find that their mind was fraudulent. In these circumstances, the case against them fails, and with it any claim against Doherty for conspiracy.”
“The essence of conspiracy is the co-operation of the minds of the conspirators in pursuance of the unlawful design. A person could never be liable for conspiracy, either in a civil or in a criminal court, if he had no knowledge that the design was unlawful, and the essence of the action for inducing a breach of contract is knowledge on the part of the defendant. There never could be liability for that tort unless it was shown that the defendant knew that there was a contract, and, having that knowledge, induced its breach.”
“The use of gas oil in road vehicles only contravenes section 200(2) if a rebate has been allowed on it and the amount of the rebate has not been refunded. An agreement to use in road vehicles gas oil on which a rebate has been allowed is not, therefore, per se an agreement to do an unlawful act, but it will be an agreement to do an unlawful act if the object of the agreement is so to use gas oil in respect of which no repayment has been made. An agreement which is not to do an unlawful act will not be converted into an agreement to do an unlawful act by the fact that, unknown to the accused, gas oil is used in respect of which the required repayment has not been made.” 125.He went on at 237C-F: “In answer to the question posed by the Court of Criminal Appeal in this case, I would say that mens rea is only an essential ingredient in conspiracy in so far as there must be an intention to be a party to an agreement to do an unlawful act; that knowledge of the law on the part of the accused is immaterial and that knowledge of the facts is only material in so far as such knowledge throws a light on what was agreed. In cases of this kind, it is desirable to avoid the use of the phrase ‘mens rea,’ which is capable of different meanings, and to concentrate on the terms or effect of the agreement made by the alleged conspirators. The question is, ‘What did they agree to do?’ If what they agreed to do was, on the facts known to them, an unlawful act, they are guilty of conspiracy and cannot excuse themselves by saying that, owing to their ignorance of the law, they did not realise that such an act was a crime. If, on the facts known to them, what they agreed to do was lawful, they are not rendered artificially guilty by the existence of other facts, not known to them, giving a different and criminal quality to the act agreed upon.”
“The next question is whether or not the defendants were guilty of conspiracy. A conspiracy is an agreement between two or more persons to effect an unlawful purpose which results in damage to somebody (see Crofter Hand Woven Harris Tweed Co Ltd v Veitch ([1942] 1 All ER 142 at 147,[1942] AC 435 at 440) per Viscount Simon LC). A person is a party to a conspiracy if he knows the essential facts to constitute that conspiracy even though he does not know that they constitute an offence (see Churchill v Walton [1967 1 All ER 497,[1967] 2 AC 244 ). Since there was a breach of s 54 and the defendants through their directors made all the arrangements and knew all the facts constituting the breach, it would follow that they conspired together to contravene s 54, the object of their conspiracy being Belmont, and if Belmont suffered damage they are liable.”
“Although my conclusion on the issue of unlawful means makes it unnecessary to decide the point, I would support Arden LJ’s view, at para 127, that it is a defence to an action for conspiracy to injure by unlawful means if the defendant not only acted to protect his own interests but did so in the belief that he had a lawful right to act as he did. Just as the tort of conspiracy to induce breach of contract is not committed if the defendant believes that the outcome sought by him will not involve a breach of contract (the Mainstream case[2005] IRLR 964 ), so a defendant should not be liable for conspiracy to injure by unlawful means if he believes that he has a lawful right to do what he is doing. This is consistent with Lord Hoffmann’s comment in the OBG case[2008] 1 AC 1 , para 56, when considering the tort of causing injury by unlawful means, that the common law in this area is designed only to enforce basic standards of civilised behaviour. Moreover, Lord Nicholls was not addressing such a situation in the passage set out at para 125 above. (I would note two supplementary points. First, for avoidance of doubt, I do not consider that this conclusion is inconsistent with the decision of the House of Lords in R v Churchill (No 2)[1967] 2 AC 224 , which concerned a very different issue, namely, the mens rea element of the crime of conspiracy in the context of an agreement which led to the commission of a strict liability offence. Secondly, we are not in this case concerned with the alternative form of conspiracy to injure, where the intent to injure is the defendant's dominant intention and questions of the lawfulness of the means do not arise.) I would also concur with Arden LJ’s conclusions about intent on the evidence before the judge.”
“… I do not see how the breach of the exchanges’ terms and conditions can be described as directed at the claimants, or the instrumentality of the harm caused to them. While (assuming all other elements of the tort are present) the use of the prices on the exchanges’ websites is the means by which SIS was able to publish its own prices and thus compete with TRP, the unlawfulness involved in that conduct was directed solely at the exchanges. The exchanges’ terms and conditions were there solely for the exchanges’ benefit, and the only persons damaged by the breach of those terms were the exchanges. From the point of view of the claimants, it was irrelevant whether SIS’s use of the exchanges’ prices was done by agreement with the exchanges (which would no doubt have involved payment of a fee) or not.”
“159. The difficulties here are more apparent than real. The answer lies in keeping firmly in mind that, in these three-party situations, the function of the tort is to provide a remedy where the claimant is harmed through the instrumentality of a third party. That would not be so in the patent example. 160. Similarly with the oft-quoted instance of a courier service gaining an unfair and illicit advantage over its rival by offering a speedier service because its motorcyclists frequently exceed speed limits and ignore traffic lights. The unlawful interference tort would not apply in such a case. The couriers’ criminal conduct is not an offence committed against the rival company in any realistic sense of that expression.”
“These two varieties of intention [are] to be contrasted with a situation in which the harm to the claimant was purely incidental because the unlawful means were not the means by which the defendant intended the harm to the claimant: see paras 93, 95. As an example of the latter situation, Lord Walker cited Lonrho Ltd v Shell Petroleum Co Ltd (No 2)[1982] AC 173 . The defendants in that case were alleged to have acted in breach of the statutory order imposing sanctions on Southern Rhodesia, but the order ‘was not the instrument for the intentional infliction of harm’: para 95. Lord Mance in Total Network (para 119) was, we think, making the same point, by reference to the example of a pizza delivery business which obtains more custom, to the detriment of its competitors, by instructing its drivers to ignore speed limits and jump red lights. Addressing the character of the unlawfulness required, Lord Walker derived from the authorities the proposition that ‘unlawful means, both in the intentional harm tort and in the tort of conspiracy, include both crimes and torts (whether or not they include conduct lower on the scale of blameworthiness) provided that they are indeed the means by which harm is intentionally inflicted on the claimant (rather than being merely incidental to it)’: para 93, and cf para 95. He concluded: ‘94. From these and other authorities I derive a general assumption, too obvious to need discussion, that criminal conduct engaged in by conspirators as a means of inflicting harm on the claimant is actionable as the tort of conspiracy, whether or not that conduct, on the part of a single individual, would be actionable as some other tort … 95. In my opinion your Lordships should clarify the law by holding that criminal conduct (at common law or by statute) can constitute unlawful means, provided that it is indeed the means (what Lord Nicholls of Birkenhead in OBG Ltd v Allen[2008] AC 1 , para 159 called “instrumentality”) of intentionally inflicting harm.’ Lord Hope arrived at the same conclusion, at paras 43–44, where addressing the facts of the case before him, he observed that although there was no predominant intention to injure the commissioners, ‘the means used by the conspirators were directed at the claimants themselves’: ‘a conspiracy is tortious if an intention of the conspirators was to harm the claimant by using unlawful means to persuade him to act to his own detriment, even if those means were not in themselves tortious’.” ‘94. From these and other authorities I derive a general assumption, too obvious to need discussion, that criminal conduct engaged in by conspirators as a means of inflicting harm on the claimant is actionable as the tort of conspiracy, whether or not that conduct, on the part of a single individual, would be actionable as some other tort … intentionally inflicting harm.’ ‘a conspiracy is tortious if an intention of the conspirators was to harm the claimant by using unlawful means to persuade him to act to his own detriment, even if those means were not in themselves tortious’.”
“199. While this evidence clearly demonstrates that SIS was aware of the risk that the Tote was not in a position lawfully to provide Raceday Data from Arena Racecourses, it falls short in my judgment of demonstrating knowledge (including blind-eye knowledge) sufficient to establish liability in conspiracy, when seen in the wider context I have set out above. 200. It is true that Mr Smith undoubtedly continued to recognise the litigation risk of proceeding, and was keen to find ways to mitigate that risk, but there is in my judgment an important distinction between recklessness as to whether conduct is unlawful, turning a blind-eye to suspicions to the contrary, and believing conduct is lawful but recognising the risk that someone affected by it might take a different view, and even seek to vindicate that view by taking legal proceedings. 201. Accordingly, I conclude that although a reasonable person in SIS’s position would have appreciated that the Tote acquired the information in circumstances of confidence which precluded its use for fixed-odds betting, it (whether through Mr Smith or others involved in the transaction with the Tote) neither actually knew that, nor turned a blind eye to whether, the Tote was unable lawfully to provide Raceday Data to SIS.”
“The key individual, in this respect, is Gary Smith, its chief executive officer and the person with responsibility for the decision to enter into the Tote HoT. SIS did not call Mr Smith to give evidence. Although Mr Smith had left SIS's employment in 2017 there was no suggestion that he could not have provided a statement or been called. The claimants invite me to draw, where necessary, adverse inferences against SIS from the absence of evidence from Mr Smith. I accept that if there is prima facie evidence as to Mr Smith's state of mind adverse to SIS's case, then SIS's failure to call him would be an important factor in determining whether he had that state of mind. It is necessary in the first place, however, to focus on what was said or written at the time as recorded in the contemporaneous documents.”
“It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. The function of the judge is to adjudicate on those issues alone. The parties may have their own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision. One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness.”
“It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would realise that upon reasonable grounds the information was being given to him in confidence, then this would suffice to impose on him the equitable obligation of confidence.” (Emphasis added)
“The reasonable person who has notice that the information he has received or acquired is confidential is bound by an equitable obligation of confidence precisely because he has such notice. To put it another way, the yardstick for judging whether or not a document is “obviously confidential” is the reasonable person standing in the position of the recipient.”
“SIS contends that because the information comprising Raceday Data was visible to everyone (potentially thousands) on the racecourse, it did not have the necessary quality of confidence. Moreover, because other racecourses (in particular the Independent Racecourses) did not contain similar restrictions to those set out in the Arena Terms, it is impossible to conclude that the information is subject to any “general obligation of confidence”
“Lord Hoffmann suggests, in an appeal to economic realities, that if “OK!” thought that it was worth paying£1m for its “exclusive” contractual right (and “Hello!” was willing to pay the same price) then there is no reason why there should not be an obligation of confidentiality. But the confidentiality of any information must depend on its nature, not on its market value.” 191.He continued at [300]: “For instance, a newspaper or television company might be willing to pay a large sum to the promoter of some important sporting event for the “exclusive” right to all motion pictures and photographs of the event, and it might go to great lengths to publicise its exclusive right (partly to attract custom, and partly in the hope of engaging the law of confidence). If the event (for instance, figure-skating or show-jumping) was held in a relatively small indoor venue, with tight security, the hoped-for exclusivity might actually be achieved. If the event was a motor rally or a marathon foot-race held on public roads it would be unachievable (although the newspaper or television company might still make a worthwhile profit). But in neither case, in my opinion, should the law of confidentiality afford the protection of exclusivity in a spectacle.”
“… it is necessary to enquire more closely into what is happening, in legal terms, when a court makes an order for the protection of confidential information. If the person disclosing the information is in contractual relations with the claimant, the most natural claim will be for breach of an express or implied term in the contract. …Where there is no contractual tie the cause of action is the equitable jurisdiction to restrain (or if it cannot be restrained, to award compensation or an account of profits for) breach of confidence.” (Emphasis added)
“If two parties make a contract, under which one of them obtains for the purpose of the contract or in connexion with it some confidential matter, then, even though the contract is silent on the matter of confidence, the law will imply an obligation to treat that confidential matter in a confidential way, as one of the implied terms of the contract; but the obligation to respect confidence is not limited to cases where the parties are in contractual relationship.”
“I know that Paul and Rachel have already been researching this and have already had discussions with Phil Siers. I have been rather pessimistic about the opportunity so far because of the perceived legal risk. After talking it through with Joe and Phil today I am somewhat more comfortable because they are offering us Tote data (‘Tote Off’; ‘Tote results’; ‘Tote NonRunners’) and are not offering official race-day data. Apparently the Tote versions are usually very similar or the same as the official data but there are some minor differences … They are also taking into account there are no detailed contracts in place between racecourses and the Tote, probably because of its roots as a government franchise. Please can we schedule some time to discuss this to decide whether to proceed?”
“… the claimants contend that anybody with horseracing knowledge would have known that the Tote could not sublicense the information. They rely on the fact that the Tote had never sought to do so and that SIS had, until December 2016, the exclusive right to distribute Raceday Data from Arena Racecourses. It would—if it seriously thought that its rights were vulnerable to being undermined by the Tote (particularly given they viewed Mr Siers as a “canny and aggressive” businessman)—have taken steps to close off that possibility. Moreover, SIS knew (at least from the time of TRP's press release in September 2016) that TRP believed that it had exclusive rights. The claimants also rely on the fact that SIS's internal documents from the outset show that it had a concern that the Tote was not in a position lawfully to supply the data, and that this was a potentially “controversial” matter. In my judgment, these points all go to confirm something which is evident from the documents I have already referred to, namely that SIS did indeed have concerns that the Tote was unable to provide Raceday Data to it. That, however, is only the starting point. If SIS, having realised at the outset that there was risk that the Tote could not lawfully provide Raceday Data to it, had thereafter done nothing to satisfy itself on the point, then it would be difficult to avoid the conclusion that it had, at least, blind-eye knowledge of the breach of confidence. But, on the contrary, SIS made enquiries of the Tote and received reassurances, repeated in a formal legal contract, that the Tote was lawfully entitled to provide the information.”
“Where conspirators act with the predominant purpose of injuring the plaintiff and in fact inflict damage on him, but do nothing which would have been actionable if done by an individual acting alone, it is in the fact of their concerted action for that illegitimate purpose that the law, however anomalous it may now seem, finds a sufficient ground to condemn their action as illegal and tortious. But when conspirators intentionally injure the plaintiff and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests; it is sufficient to make their action tortious that the means used were unlawful.”
“The distinction is based on sound reason, for a combination may make oppressive or dangerous that which if it proceeded only from a single person would be otherwise, and the very fact of the combination may shew that the object is simply to do harm, and not to exercise one's own just rights.” 220.Commenting on that passage, Lord Walker said: “The first reason is not very satisfactory, since (as has very often been pointed out, for instance by Lord Sumner in Sorrell v Smith[1925] AC 700 , 741 and Lord Diplock in Lonrho v Shell Petroleum Co Ltd (No 2)[1982] AC 173 , 189) it all depends on the particular facts. The second reason seems to me more principled, focusing as it does on the fact that the claimant's damage is caused by two or more persons acting in concert to carry out an unlawful plan. That is, I think, what was behind an observation of Lord Dunedin in Sorrell v Smith, at p 725: “Now the moment that that is recognised, i.e., that the essence of conspiracy on which civil action is founded is a criminal conspiracy, though of course unless actual damage has followed no civil action will lie, the moment that fact is recognised, you at once bring in the spirit of the criminal law, where motive or intention—the mens rea—is everything.”
“The successful pursuit of commercial self-interest necessarily entails the risk of damaging the commercial interests of others. Identifying the point at which it transgresses legitimate bounds is therefore a task of exceptional delicacy. The elements of the four established economic torts are carefully defined so as to avoid trespassing on legitimate business activities or imposing any wider liability than can be justified in principle.”
“Conspiracy being a tort of primary liability, the question what constitute unlawful means cannot depend on whether their use would give rise to a different cause of action independent of conspiracy. The real test is whether there is a just cause or excuse for combining to use unlawful means. That depends on (i) the nature of the unlawfulness, and (ii) its relationship with the resultant damage to the claimant.”
“The reasoning in Total Network leaves open the question how far the same considerations apply to non-criminal acts, such as breaches of civil statutory duties, or torts actionable at the suit of third parties, or breaches of contract or fiduciary duty. These are liable to raise more complex problems. Compliance with the criminal law is a universal obligation. By comparison, legal duties in tort or equity will commonly and contractual duties will always be specific to particular relationships. The character of these relationships may vary widely from case to case. They do not lend themselves so readily to the formulation of a general rule. Breaches of civil statutory duties give rise to yet other difficulties. Their relevance may depend on the purpose of the relevant statutory provision, which may or may not be consistent with its deployment as an element in the tort of conspiracy. For present purposes it is unnecessary to say anything more about unlawful means of these kinds.”
“In my judgment, the alleged conspiracy is established in respect of these three defendants, and they are not exempt from liability on account of counsel's opinion or because they may have believed in good faith that the transaction did not transgress s 54. If all the facts which make the transaction unlawful were known to the parties, as I think they were, ignorance of the law will not excuse them: see Churchill v Walton[1967] 2 AC 224 at 237. That case was one of criminal conspiracy, but it seems to me that precisely similar principles must apply to a conspiracy for which a civil remedy is sought. Nor, in my opinion, can the fact that their ignorance of, or failure to appreciate, the unlawful nature of the transaction was due to the unfortunate fact that they were, as I think, erroneously advised excuse them (Cooper v Simmons, and see Shaw v Director of Public Prosecutions, where the appellant had taken professional legal advice).”
“To obtain in civil proceedings a remedy for conspiracy, the plaintiff must establish (a) a combination of the defendants, (b) to effect an unlawful purpose, resulting in damage to the plaintiff.”
“It is said, “Ignorantia juris haud excusat;” but in that maxim the word “jus” is used in the sense of denoting general law, the ordinary law of the country. But when the word “jus” is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact; it may be the result also of matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is, that that agreement is liable to be set aside as having proceeded upon a common mistake.”
"Look, how can I be done for smashing my own property. I put the flooring and that in, so if I want to pull it down it's a matter for me."
“Thus under this subsection the mental element of the offence, apart from the mental element involved in making an agreement, comprises the intention to pursue a course of conduct which will necessarily involve commission of the crime in question by one or more of the conspirators. The conspirators must intend to do the act prohibited by the substantive offence. The conspirators' state of mind must also satisfy the mental ingredients of the substantive offence. If one of the ingredients of the substantive offence is that the act is done with a specific intent, the conspirators must intend to do the prohibited act and must intend to do the prohibited act with the prescribed intent. A conspiracy to wound with intent to do grievous bodily harm contrary to section 18 of the Offences against thePerson Act 1861 requires proof of an intention to wound with the intent of doing grievous bodily harm. The position is the same if the prescribed state of mind regarding the consequence of the prohibited act is recklessness. Damaging property, being reckless as to whether life is endangered thereby, is a criminal offence:Criminal Damage Act 1971, section 1(2) . Conspiracy to commit this offence requires proof of an intention to damage property, and to do so recklessly indifferent to whether this would endanger life.”
“To be liable for inducing breach of contract, you must know that you are inducing a breach of contract. It is not enough that you know that you are procuring an act which, as a matter of law or construction of the contract, is a breach. You must actually realize that it will have this effect. Nor does it matter that you ought reasonably to have done so.”
“Take a case where a defendant seeks to advance his own business by pursuing a course of conduct which he knows will, in the very nature of things, necessarily be injurious to the claimant. In other words, a case where loss to the claimant is the obverse side of the coin from gain to the defendant. The defendant's gain and the claimant's loss are, to the defendant's knowledge, inseparably linked. The defendant cannot obtain the one without bringing about the other. If the defendant goes ahead in such a case in order to obtain the gain he seeks, his state of mind will satisfy the mental ingredient of the unlawful interference tort.”
“Nor is there any question of his having caused loss by unlawful means. He neither intended to cause loss to Mainstream nor used any unlawful means.”
“Finally, there is the question of intention. In the Lumley v Gye tort, there must be an intention to procure a breach of contract. In the unlawful means tort, there must be an intention to cause loss. The ends which must have been intended are different. South Wales Miners' Federation v Glamorgan Coal Co Ltd[1905] AC 239 shows that one may intend to procure a breach of contract without intending to cause loss. Likewise, one may intend to cause loss without intending to procure a breach of contract. But the concept of intention is in both cases the same. In both cases it is necessary to distinguish between ends, means and consequences. One intends to cause loss even though it is the means by which one achieved the end of enriching oneself. On the other hand, one is not liable for loss which is neither a desired end nor a means of attaining it but merely a foreseeable consequence of one's actions.”
“By ordinary standards of commercial probity [he] had a perfectly legitimate reason for acting as he did. It would therefore be wrong to classify such conduct as founding an action for an unlawful means conspiracy.”
“The same would be true of a child who did not know the rules, or of a person who had innocently misread the bus pass sent to him and did not realise that it did not operate until after 10.00 in the morning.”
“… 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.”
“Although my conclusion on the issue of unlawful means makes it unnecessary to decide the point, I would support Arden LJ's view, at para 127, that it is a defence to an action for conspiracy to injure by unlawful means if the defendant not only acted to protect his own interests but did so in the belief that he had a lawful right to act as he did. Just as the tort of conspiracy to induce breach of contract is not committed if the defendant believes that the outcome sought by him will not involve a breach of contract (the Mainstream case[2005] IRLR 964 ), so a defendant should not be liable for conspiracy to injure by unlawful means if he believes that he has a lawful right to do what he is doing. This is consistent with Lord Hoffmann's comment in the OBG case[2008] 1 AC 1 , para 56, when considering the tort of causing injury by unlawful means, that the common law in this area is designed only to enforce basic standards of civilised behaviour.”
“The true position is, I think, that some proceedings are not actionable because neither the end nor the means are wrongful but there are others in which either the end or the means are wrongful and yet those acting in combination are excused because they have just cause for what they have done. To induce the breach of a contract which may lead to immorality…, or of a contract which is an infringement of the right of the breaker … , has been held to be justified. These however are only examples, and afford little assistance in determining the circumstances which will constitute sufficient justification. I doubt whether it is possible to define what those circumstances are. Perhaps one cannot safely go further than the statement to be found in Glamorgan Coal Co v South Wales Miners' Federation, and Conway v Wade, per Lord Loreburn, that they are not matters for definition but for a consideration of the individual circumstances of each case. Whatever the limits within which just cause or excuse are confined, this class of case is, I think, an exception to the general rule that a combination to do what is unlawful or to do what is lawful by unlawful means is actionable, and is not an alternative expression of the principle itself. It may indeed be more meritorious to induce the breach of a contract contra bonos mores than merely to pursue one's own selfish ends, but the one requires justification in law and the other does not.” (Emphasis added)
“But these propositions do not, in my judgment, apply where the causative act is something which the party doing it believes he has a contractual right to do as against the relevant person, notwithstanding that the act would coincidentally cause that person detriment or loss.”
“The OBG case did not concern liability for conspiracy but no counsel suggested that any distinction could be drawn between what was held in the OBG case about intention to cause loss by unlawful means and conspiracy. It follows therefore that it is not enough that there is an intention to do an act which in fact causes loss. That act must be done with the intention that it will cause loss. In the present case Mr Hawkins gave advice that the leaseback option would be overreached. That advice was inconsistent with an intention to cause harm to Britel.”
“It is probably the case that the statements in the Court of Appeal in Meretz on this present point were obiter. But for the decision of the Court of Appeal in British Industrial Plastics Ltd v Ferguson, I might have been prepared to hold that I was bound by the ratio of Belmont and I should follow that ratio notwithstanding the obiter dicta in Meretz. However, in view of what was said by the Court of Appeal in British Industrial Plastics Ltd v Ferguson together with the dicta in the Court of Appeal in Meretz, my conclusion is that a judge at first instance ought to follow what is clearly stated by Toulson LJ in Meretz at [174].”
“To go arguably further than what the Lords Justices had in mind in Meretz, and add knowledge of unlawfulness to the third element of an unlawful means conspiracy, would also appear to detract from the fundamental point that it is in the fact of the conspiracy (with the requisite intent to injure) that the unlawfulness resides. It is that fact (conspiracy being reprehensible in any context) that distinguishes this tort from the tort of unlawful interference.” (Emphasis added)
“But to suggest today that acts done by one street-corner grocer in concert with a second are more oppressive and dangerous to a competitor than the same acts done by a string of supermarkets under a single ownership or that a multinational conglomerate such as Lonrho or oil company such as Shell or B.P. does not exercise greater economic power than any combination of small businesses, is to shut one's eyes to what has been happening in the business and industrial world since the turn of the century and, in particular, since the end of World War II.” “But to suggest today that acts done by one street-corner grocer in concert with a second are more oppressive and dangerous to a competitor than the same acts done by a string of supermarkets under a single ownership or that a multinational conglomerate such as Lonrho or oil company such as Shell or B.P. does not exercise greater economic power than any combination of small businesses, is to shut one's eyes to what has been happening in the business and industrial world since the turn of the century and, in particular, since the end of World War II.”
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