Harvey Michaels / Valentina Michaels v. Taylor Woodrow Developments Ltd; Taylor Woodrow Property Company Ltd; Frogmore Estates Plc; and Harley House (Marylebone) Ltd [2000] EWHC 178

EWHC-Ch

Harvey Michaels / Valentina Michaels v. Taylor Woodrow Developments Ltd; Taylor Woodrow Property Company Ltd; Frogmore Estates Plc; and Harley House (Marylebone) Ltd

[2000] EWHC 178 · 2000-04-19

Harvey Michaels / Valentina Michaels v. Taylor Woodrow Developments Ltd; Taylor Woodrow Property Company Ltd; Frogmore Estates Plc; and Harley House (Marylebone) Ltd

[2000] EWHC Ch 178

(19th April, 2000)

HC 1999 01104

IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION

Before: The Hon. Mr. Justice Laddie

BETWEEN

(1) HARVEY MICHAELS (2) VALENTINA MICHAELS

Claimants

- and -

(1) TAYLOR WOODROW DEVELOPMENTS LIMITED

(2) TAYLOR WOODROW PROPERTY COMPANY LIMITED

(3) FROGMORE ESTATES plc

(4) HARLEY HOUSE (MARYLEBONE) LIMITED

Defendants

Mr. John Mowbray QC, Mr. Edward Cousins and Mr. Tom Weeks instructed by Merriman White for the Claimants Mr. John Martin QC and Mr. Jonathan Seitler instructed by CMS Cameron McKenna for the Taylor Woodrow Defendants Mr. Kim Lewison QC and Mr. Anthony Tanney instructed by Titmuss Sainer Dechert for Frogmore Estates plc and Harley House (Marylebone) Limited

Hearing dates: 20 -21 March 2000

JUDGMENT

I direct pursuant to CPR Part 39 P.D. 6 that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.

DATED: 19 April 2000

Mr.

Justice Laddie :

Introduction

The original claimants in this action, Mr. & Mrs. Michaels, are the tenants of Flat 11, Harley House, 28 - 32 Marylebone Road, London NW1. Since 1996 they have been embroiled in litigation with their landlord and others. That litigation has at its core the provisions of the Landlord and Tenant Act, 1987. The four defendants to this action are Taylor Woodrow Developments Limited ("TW1"), Taylor Woodrow Property Company Limited (TW2"), Frogmore Estates plc ("Frogmore") and Harley House (Marylebone) Limited ("HHL"). Frogmore and HHL have been sued before by the Michaels in respect of their flat under the Act in proceedings commenced in 1996. The nature of those proceedings, the ground upon which the Michaels lost it and the relationship, if any, to the current proceedings will all be considered below. The current action was commenced by the Michaels by writ dated 26 February 1999. In it they originally sought damages for breach of statutory duty for non-compliance with s. 5 of the Act and for conspiracy to defraud. The application which is before me has been brought by all the defendants under Part 24 to strike out these proceedings on a number of grounds. That application has already achieved some measure of success. Mr. Michaels is an undischarged bankrupt. He joined with his wife in the current proceedings without taking an assignment of the relevant causes of action from his trustee. Before the matter came on before me, Mr. Michaels decided to discontinue his claim leaving his wife as the sole claimant. Before going into the detail of the claims made against the defendants and the grounds advanced by the latter under Part 24 it will be useful to have in mind the structure of the Act.

The Structure of the Act

The Act gives certain tenants rights when a landlord is minded to dispose of premises. Although it has been said that it gives rise to a right of first refusal, the tenants' rights are somewhat more limited than that. Section 1(1) provides that a landlord shall not make a relevant disposal affecting any premises covered by the Act unless he has served a notice in accordance with s. 5 of the Act on the "qualifying tenants" and the disposal is made in accordance with the requirements of ss. 6 to 10. A "qualifying tenant" is defined by s. 3. The Michaels and a number of other tenants in Harley House are or were qualifying tenants within that definition. The notice required by s. 5 must include the principal terms of the disposal proposed by the landlord including, for example, the price. It is significant that there is no obligation to give notice of all the terms. S.

(b) requires the notice to state that it

"constitutes an offer by the landlord to dispose of the property on those terms which may be accepted by the requisite majority of qualifying tenants of the constituent flats."

The section also sets out a time-scale, measured in months, within which the tenants can 'accept' the offer contained in the notice. These references to offers and acceptance might be thought to mean that the tenants acquire a right to purchase on the terms set out in the s. 5 notice. That is not so. The terms "offer" and "acceptance" in the Act are defined to mean offer or acceptance subject to contract (s. 20(2)). This is consistent with the fact that the 'offer' which is 'accepted' is in the terms of the contents of the s. 5 notice which, as mentioned already, does not need to include all the terms of the proposed disposal. The result is that the tenants acquire by the s. 5 notice an ability to demand to be considered as potential purchasers of the interest which the landlord wishes to dispose of, but no entitlement to force the landlord to sell to them. This is confirmed by the provisions of s. 6 and 10 as explained below.

S. 6(1) provides that where a s. 5 notice has been served on the tenants and the requisite majority of qualifying tenants of the relevant flats indicate that they "accept the offer", in the sense used in the Act, the landlord

"shall not during the relevant period dispose of the protected interest except to [the relevant tenants or their representative]"

Once again the relevant period is measured in months.

Therefore the combined effect of the above provisions is to require the landlord to notify relevant tenants of the major terms of the proposed disposal so that they can demand the right to be considered as purchasers. However, even if the notice is given and the tenants "accept" the offer within it, there is no obligation on the landlord to sell to them. In the time given by the Act for the submission of the tenants' acceptance and a comparatively short period thereafter, the landlord is prohibited from selling to anyone else. But once that period has expired and whatever the wishes of the tenants, he is free to sell to whomsoever he likes.

The Act also contains provisions which apply when the landlord fails to give the tenants the required s. 5 notice and, instead, sells a relevant interest in the premises to a third party. These are contained in ss. 11 et seq. of the Act under the rubric "enforcement by tenants of rights against new landlords". For the purposes of this application it is only necessary to refer to some of those provisions. S. 11(1) stipulates that where no s. 5 notice has been served, the tenants can serve a notice on the new landlord demanding particulars of the terms on which the new landlord acquired his interest from the landlord who defaulted under s. 5. When that has been done, s. 11(3) requires the person served to comply with the notice within a month. S. 12 entitles the tenants within a limited period to demand that the new landlord disposes of his interest in the premises to them on precisely the same terms as he acquired them. So, as against the new landlord there is a right to purchase but only on terms identical to those on which he had purchased.

The Act contains specific, but limited, powers of enforcement in respect of breaches of the obligations it creates. These are contained in s. 19 which provides:

"(1) The court may, on the application of any person interested, make an order requiring any person who has made default in complying with any duty imposed on him by any provision of this Part to make good the default within such time as is specified in the order...

(3) The restriction imposed by section 1(1) may be enforced by an injunction granted by the court."

These provisions are significant to the issues arising in these proceedings. It can be seen that the legislature has decided that where there is breach of s. 5, an injunction can be obtained to enforce s. 1(1). That is to say the tenants can ask for sale of the premises by the original landlord to be restrained, at least for the period during which s. 1(1) prevents him from disposing of them to a third party. Once the premises have been disposed of, the only relief provided for is that under s. 19(1), namely an order to make good the default. Thus the tenants could enforce their rights under s. 12 to demand sale of the premises to them on the same terms as they had been sold to the new landlord. The Act does not, at least expressly, give the tenants any other rights.

The circumstances leading to the litigation between the parties

TW2 was freeholder of Harley House from 1965 to 1992, whereupon it sold the beneficial interest to its subsidiary, TW1 but retained the legal title. In 1993 Frogmore offered to buy the block for £15.75M. The defendants, using HHL as a corporate vehicle, devised a scheme with the benefit of legal advice under which they believed they could legitimately achieve the commercial substance of a sale of the freehold while, as they hoped, avoiding the necessity of giving a s. 5 notice to the tenants. The precise details of the scheme do not matter for the purposes of the present application. They are set out in the judgment of Lloyd J in his decision in the earlier proceedings between the Michaels, Frogmore and HHL: Michaels v Harley House (Marylebone) Ltd

[1997] 1 WLR 967

The scheme was put into operation. No s. 5 notice was served and Harley House was sold to Frogmore. The tenants believed that they were entitled to receive the notice, notwithstanding the scheme designed by the defendants' lawyers, and they sent a s. 11 notice. A response in purported compliance with the obligations arising under s. 11(3) was sent. The residents' association of Harley House, of which the Michaels were members, sent out a newsletter dated 15 July 1993. It referred to the s. 11 notice and went on to say that it had:

"actually produced a reply giving us the information we sought. We are now in a position to serve a follow up Notice requiring Frogmore to sell the building back to us and this, on legal advice, we shall be doing shortly."

In fact the tenants did not serve a purchase notice under s. 12 demanding that the block be sold to them. Although it does not matter for the purposes of this judgment, it appears likely that the tenants, or many of them, were in no position, or thought they were in no position, to raise the necessary £15.75M purchase price.

The first action concerning Harley House

Over three years later, the Michaels commenced proceedings against HHL and Frogmore. They alleged that the scheme was defective and that a s. 5 notice should have been served. They also alleged that Frogmore's response to the s. 11 notice was deficient. They sought a declaration that there had been a relevant disposal which triggered s. 5 and they requested an order that further information be provided in response to the s. 11 notice of May 1993. At an early stage the matter came on for directions before Lightman J. The Michaels accepted that they had pleaded no cause of action against Frogmore and they amended their pleadings to exclude that company from the action. HHL's defence was that the scheme was effective to avoid triggering s. 5 and that the response given to the s. 11 notice was sufficient. Further, relying on Taylors Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd.

[1982] QB 133

, HHL argued that there had been such delay while, to the knowledge of the Michaels, very large sums were spent refurbishing and extending Harley House, that the Michaels were estopped from bringing proceedings.

The matter came on for trial before Lloyd J. It lasted 3 days. Witnesses were called and were cross-examined. The judge held that the scheme was effective and that there had therefore been no breach of s. 5 of the Act. In addition he went through the facts in detail relating to the estoppel argument and held as follows:

"I consider that it would be unconscionable for the plaintiffs to be permitted to assert that they have and can exercise a continuing right to complain of a default by the defendant in complying with the section 11 notice, and then seek to join with others in proceeding under section 12, in circumstances in which the defendant has been allowed by the plaintiffs' silence and acquiescence from the end of August 1993 until October 1996 to assume that the plaintiffs had no such right or, if they had it, were not intending to exercise it."

The matter was taken to the Court of Appeal. Lloyd J's finding in relation to the effectiveness of the scheme was overturned. It did not stop s. 5 being triggered. Secondly it was held that the response to the s. 11 notice was defective. However the appeal was unsuccessful. Lloyd J's finding of estoppel was not overturned. The Court of Appeal did "not seriously differ" from his conclusions on estoppel but it dealt with the issue by an alternative route. It said that the court's power of enforcement under s. 19 of the Act was discretionary and, because of the delay, the discretion should not be exercised in the Michaels' favour (see Michaels v. Harley House Ltd.

[1999] 1 All ER 356

, 373D). Leave to appeal to the House of Lords was refused.

The current proceedings

As noted above, the current action was commenced by the Michaels by writ dated 26 February 1999 in which they sought damages for breach of statutory duty for non-compliance with s. 5 of the Act and for conspiracy to defraud. However the statement of claim, as augmented by additional information supplied by the claimants after request by the defendants, does not pursue the assertion of fraudulent conspiracy. Instead it is said that the claims made against the defendants are for damages for breach of statutory duty and conspiracy by unlawful means. On the evening before this Part 24 application came on for hearing, Mr. Mowbray, who appears for Mr. and Mrs. Michaels, indicated that his client was not pursuing the claim for damages for breach of statutory duty. The reason for that was that his client accepted, rightly in my view, that such a claim was not maintainable. The legislature had considered what rights of action are to be given to tenants and they are set out in s. 19 of the Act. They do not include a right to damages for breach of s. 5 and therefore, as a matter of construction, it is to be taken that the legislature did not intend any such right to damages to arise under the Act. Although, therefore, the issue of breach of statutory duty is no longer live in the sense that it is no longer advanced in support of Mrs Michaels' claim for damages, it remains central to much of the argument advanced by the defendants against the claim for conspiracy.

The grounds advanced under Part 24

The defendants say that the proceedings should be struck out at this stage on one or more of the following grounds:

breach of the Landlord and Tenant Act 1987 does not give rise to a liability in damages, whether advanced under the head of breach of statutory duty or conspiracy by unlawful means to injure;

even if it did, damage is an essential ingredient in the cause of action and here the Claimants have suffered none or, if they have, it was not caused in any relevant sense by the alleged breach;

all the current claims, assuming they are arguable, could and should have been pursued in the 1996 proceedings and the attempt to pursue them now is an abuse of process

the claim in conspiracy is statute barred.

As a fall-back position the defendants ask for a stay until Mr. and Mrs. Michaels discharge an outstanding liability in costs incurred by them as a result of their unsuccessful appeal in the 1996 proceedings.

Before considering the substantive issues, I should deal with the issue of the approach to be adopted to an application under Part 24.

The application to strike out - general principles

Mr. Mowbray argues that in respect of some of the issues raised in this case, particularly the ambit of the tort of conspiracy to injure by unlawful means, the law is so obscure that it is not appropriate to take the Part 24 route. I do not accept that submission. First of all, Mr. Mowbray does not say that this objection applies to all the grounds for striking out advanced by the defendants. So the application to strike out will continue in any event. I can see no advantage in dealing with some, but not all, of the attacks advanced by the defendants since if any of them succeed the action must fail. Furthermore, even if the only question before the court were the viability of the claim in conspiracy, I would not accept Mr. Mowbray's argument. The law on conspiracy is not free from difficulty. But whether or not Mrs. Michaels has an arguable case at all is not dependent on disputed questions of fact. It is dependent on the ambit of this economic tort. On that issue, the court now is in as good a position as at the trial to determine whether she can succeed. If the defendants' arguments on this topic are correct, then she is bound to fail at the trial, no matter what the facts. If that is so, the court should stop the proceedings now rather than subject the parties to the expense, delay and disruption that a full trial would entail particularly where, as here, litigation has been rumbling on for years.

No action for damages under the Act

Although the issues raised are complex, the parties' respective arguments can be put quite shortly. The defendants say, and it is now conceded, that the Act does not give rise to a right to claim damages for breach of statutory duty. That is because the legislature has decided, or is taken to have decided, not to make that form of relief available to a party harmed by breach of the Act's provisions. If it is not open to Mrs. Michaels to sue for breach of statutory duty she cannot sue for conspiracy to injure by unlawful means, the unlawful means being the same breach of statutory duty. The legislature cannot have intended to exclude the former but allow the latter. Mr Mowbray argues that conspiracy to injure by unlawful means is one of a group of economic torts. The approach of the court in conspiracy cases of this sort should mirror its approach in other economic tort cases. In particular he draws a parallel with the law on unlawful interference with trade. He says that there is authority to the effect that any breach of any statute will constitute unlawful means for the purpose of the latter form of action and such a breach must similarly qualify as unlawful means which are sufficient to support an action for unlawful means conspiracy. Further he says that there is direct authority for the proposition that breaches of a statute which are not actionable as a breach of statutory duty are nevertheless actionable if they form the unlawful means in such a conspiracy. He says that there is nothing in the 1987 Act which precludes an action for conspiracy even if it does not expressly provide for such a cause of action.

The breadth of Mr. Mowbray's submissions can be illustrated by two examples discussed during the hearing. In the first, supermarket A wishes to divert customers away from and to the detriment of supermarket B. To this end it places on the side of vans large advertisements telling customers "Don't shop at B. Come to A. we are cheaper." To make sure this message gets home to customers in the most effective way, supermarket A arranges with a haulage company to park the vans immediately outside some of B's shops. Outside the shops are yellow traffic lines so the parking contravenes relevant traffic regulations and is illegal. Supermarket A gladly pays the fines. Mr. Mowbray says that this is an actionable conspiracy. The agreement to divert customers was executed in a way which involved breach of the regulations. In the second example, two delivery drivers working for one retailer decide that the best way of securing their own jobs in the face of fierce competition from a neighbouring retailer is to ensure that they make deliveries faster than the competition. To this end they agree to breach the speed limit when making deliveries. Once again Mr. Mowbray says that this is an actionable conspiracy entitling the disadvantaged competitor to sue. I will refer to the first of these as the Yellow Line Example and the second as the Speeding Example. In both examples, the unlawful activity amounted to a criminal offence and it is to be assumed that in neither did the relevant legislation give rise to a civil cause of action for the benefit of the injured party nor that there arose a cause of action by reason of the special damage inflicted on that party.

It seems to me that a convenient way to approach the issues here is to consider first the interaction between economic torts, then to consider whether the caselaw relating to conspiracy expressly or implicitly supports Mrs. Michaels' claim and finally to consider whether the law of unlawful interference with trade offers support to her claim.

Economic torts

There is much to commend the suggestion that the principles which apply to economic torts should be consistent with each other. After all, these are creations of the common law and it is difficult to see why, for example, an unlawful act which is sufficient to ground a cause of action for unlawful interference with trade should not also be sufficient to ground an action for unlawful means conspiracy and conversely why an unlawful act, if any, which is insufficient to support one should not also be insufficient to support the other. If different types of unlawfulness will support different common law causes of action it would give rise to a degree of obscurity in the law which serves no useful purpose. The point is made particularly clearly in Clerk & Lindsell on Torts (17th Ed):

"Since the four species of tortious liability, intimidation, indirect procurement of breach of contract, conspiracy to use unlawful means, and unlawful interference, all depend upon proof of an illegal or unlawful act threatened or employed by the defendant, it would make for brevity, logic and elegance if the principle could be stated that the definition of "illegal" or "unlawful" was the same under all four rubrics. The reason for the requirement is clearly the same in all four cases ..." (paragraph 23-61)

The authors go on to note that, unhappily, no such clear principle emerges from the authorities. However there are some decisions which do point in that direction. For example in Grupo Torras SA v Sheikh Fahad Mohammed Al-Sabah (25 June 1999, unreported), Mance LJ sitting at first instance cited with approval the following passage from Clerk & Lindsell:

"There is no good reason why the ambit of 'unlawful means' in [unlawful means] conspiracy should not be coterminous with its scope in the other economic torts of intimidation, unlawful interference and indirect procurement of breach of, or interference with, contract."

The same sentiment can be sensed behind the decision of the House of Lords in Lonrho Plc v. Fayed

[1992] 1 AC 448

, 468:

"If the appellants fail to establish that Lonrho's primary pleading asserting the tort of interference with business by unlawful means should be struck out, they are in no stronger position in relation to the pleaded cause of action in conspiracy. It is not, I think, necessary for the present purposes to consider whether the pleaded conspiracy adds anything of substance or raises any significantly different issues from those on which the rest of the pleading depends. At this interlocutory stage it is sufficient to say that the two pleaded causes of action must stand or fall together. Either both should be struck out or both should go to trial."

It seems to me that although the possibility of inconsistency between different types of economic torts may exist, it is to be avoided save where, and to the extent that it is shown to be, necessary (if ever) or required by binding authority. When the latter occurs, it is for a senior court to sort out the problem. Consistent with this, it seems to me that I should approach the issues in this case on the assumption that, to the extent that a means is treated as unlawful for one economic tort, so to the same extent it should be treated as unlawful for the others. It follows that if a particular prohibited activity will suffice to support an action of unlawful interference with trade it should suffice to support an action for unlawful means conspiracy and vice versa. On the other hand if it is not a relevant unlawful act for one is should not be for another.

Civil Conspiracies

It is well established that there are two types of civil conspiracy. The one at issue here is a wrongful means conspiracy. The other is a conspiracy to injure. The two have some features in common; there must be a combination of two or more persons and the victim must show that he has suffered damage as a result of the conspiracy. There are, however, major differences between them. The conspiracy to injure has sometimes been called, perhaps misleadingly, a lawful means conspiracy. An essential ingredient of the tort is the existence of a predominant purpose among the conspirators to injure the victim. For this tort it does not matter whether the means used for putting the conspiracy into effect are lawful or not since it is not the character of the means deployed but the predominant purpose which underpins the cause of action. On the other hand for unlawful means conspiracy it is not necessary to prove the existence of a predominant intention to injure. It is the character of the means deployed which underpins the cause of action. Although the current proceedings are only concerned with an alleged wrongful means conspiracy, I think it is useful to start the analysis with Lonrho Ltd v Shell Petroleum Co. Ltd (No.2)

[1982] AC 173

To recapitulate the well known facts, Lonrho operated a pipeline in Zimbabwe, then called Rhodesia. That line was put into mothballs when supplying oil to Rhodesia was proscribed by virtue of Orders in Council made under the Southern Rhodesia Act 1965, which was legislation implemented to assist in the commercial isolation of the country after it declared unilateral independence. As a result Lonrho lost money. However Lonrho alleged that Shell and BP, through associated companies and in breach of the criminal sanctions created by the 1965 Act, continued to supply oil. This was said to have prolonged the period of disuse of the pipeline. Lonrho sued Shell and BP asserting a number of causes of action. For the purpose of this application, reference need only be made to two of the questions which were referred to the House of Lords. These were put on the assumption that there were breaches by Shell and BP of the Orders made under that Act. The questions were;

"(a) whether breaches of those Orders would give rise to a right of action in [ Lonrho] for damage alleged to have been caused by those breaches and (b) whether [ Lonrho] have a cause of action for damage alleged to have been caused by such breaches by virtue only of the allegation that there was an agreement to effect them."

Lord Diplock categorised the first of these as "an innominate tort", allegedly committed by Shell and BP severally, of "causing foreseeable loss by an unlawful act". The second he described as a joint tort of conspiring together to do an unlawful act which caused damage to Lonrho (see p. 183). The innominate tort is, or is virtually indistinguishable from, the tort of unlawful interference with business and is considered at paragraphs 51 et seq. below. As far as conspiracy to injure is concerned, Lord Diplock proceeded on the assumption that the alleged activities of Shell, BP and their associated companies did not give rise to a cause of action against each of them separately, even though those activities were to be treated as criminal offences under the 1965 Act. He posed the following question:

"Why should an act which causes economic loss to A but is not actionable at his suit if done by B alone become actionable because B did it pursuant to an agreement between B and C?" (p. 188)

He analysed the standard answer, namely that activities conducted in concert can be more harmful than acts conducted by a person alone and therefore should be restrained, and came to the conclusion that it made little economic or legal sense. However he accepted that there was established authority to support the existence of the tort of conspiracy to injure and went on:

"This House, in my view, has an unfettered choice whether to confine the civil action of conspiracy to the narrow field to which alone it has an established claim or whether to extend this already anomalous tort beyond those narrow limits that are all that common sense and the application of legal logic of the decided cases require.

My Lords,

my choice is unhesitatingly the same as that of Parker J. and all three members of the Court of Appeal. I am against extending the scope of the civil tort of conspiracy beyond acts done in execution of an agreement entered into by two or more persons for the purpose not of protecting their own interests but of injuring the interests of the plaintiff. So I would answer [the second question]: 'No'" (p. 189)

Two points arise out of this part of Lonrho v. Shell . First, the House of Lords was unwilling to extend the law of conspiracy. In particular, save where established authority required it, if an action by a defendant alone does not give rise to a cause of action, his combination with others to do the act should not give rise to a cause of action either. If that principle has general application, and I can see no reason why it does not, then it suggests that Mrs Michaels' cause of action does not exist since it is conceded that she has no cause of action against any of the defendants separately. It is only because of the allegation of joint activity that she is said to acquire a right of action.

Second, and of particular importance to this case, is the nature of the questions put to the House of Lords in Lonrho v. Shell. It is true that none were couched in terms of unlawful means conspiracy. However, if Mr. Mowbray's arguments in this case are correct, Lonrho's case could and should have been so pleaded because the damage allegedly suffered was caused by Shell and BP's commission of criminal offences in concert. If the cause of action subsists, there was no need to try to find a way round the requirement of predominant purpose which exists only in conspiracy to injure cases. Analysis of the last quoted extract from Lord Diplock's speech makes the omission particularly surprising if Mr. Mowbray is right. It will be seen that in the first part of that extract, Lord Diplock thought that Lonrho was attempting to extend the law of conspiracy. The nature of that extension can be seen by reference to two passages in the report. First, the argument of Lonrho was as follows:

"The question of conspiracy assumes no breach of contract, no private rights arising out of breach of the sanctions Orders and no allegations of intention to injure. All that is alleged is actual knowledge that damage would be suffered. A conspiracy to do an unlawful act which is carried into effect and causes reasonably foreseeable damage is actionable as a conspiracy although the act may not have been tortious in itself. There is conspiracy where an unlawful act is done pursuant to an agreement." (p. 180).

I have difficulty in seeing the difference between this and the unlawful means conspiracy relied on by Mr. Mowbray. As this passage makes clear, Lonrho was not alleging the existence of a predominant intention to injure - a defining characteristic of the tort of conspiracy to injure - but was arguing for another form of actionable conspiracy, namely one involving the commission of an unlawful act. Furthermore, Lord Diplock said in relation to this part of Lonrho's case:

"[the second question], to which I now turn, concerns conspiracy as a civil tort. Your Lordships are invited to answer it on the assumption that the purpose of Shell and BP in entering into the agreement to do the various things that it must be assumed they did in contravention of the sanctions Order, was to forward their own commercial interests; not to injure those of Lonrho. So the question of law to be determined is whether an intent by the defendants to injure the plaintiff is an essential element in the civil wrong of conspiracy, even where the acts agreed to be done by the conspirators amount to criminal offences under a penal statute. It is conceded that there is no direct authority either way upon this question to be found in the decided cases; so if this House were to answer it in the affirmative, your Lordships would be making new law." (p. 188: emphasis as in the original)

Once again it is apparent that the House of Lords was not restricting itself to a consideration of the well established, if anomalous, tort of conspiracy to injure but was looking for some other tort of conspiracy. The features of that other tort were said to be that there was no predominant intention to injure, although damage was caused to the victim (see p. 188F), and that the means adopted were unlawful. Again, I have difficulty in seeing the difference between that type of tort and the one proposed by Mr. Mowbray. At the very least, if the claimant's cause of action exists it is surprising that it was not referred to by Lord Diplock since it is far closer to what Lonrho was asserting than conspiracy to injure.

It seems to me that Lonrho v. Shell points strongly against the existence of the tort advanced by Mr. Mowbray. The broad proposition which is consistent with and exemplified by that decision is that where wrongful and damaging acts committed by a defendant alone do not give rise to a cause of action, then the commission of those acts by two or more defendants in concert does not give rise to a cause of action either, save in exceptional circumstances, of which conspiracies to injure are an example. It may be that they are the only example.

The issue of conspiracy was also considered by the House of Lords in Lonrho v. Fayed [1992] 1 A.C. 448, an interlocutory decision on a strike out application. Lonrho argued that while it was prevented from bidding successfully to take over Harrods, the Fayed brothers had been free to make what proved to be a successful take-over bid, that freedom having being obtained by the Fayeds making fraudulent misrepresentations to the Government. Thus the Fayeds were said to have conspired together using unlawful means and this had benefited them and had harmed Lonrho. Lonrho did not plead that the predominant purpose of the Fayeds' conspiracy was to harm it, although it was harmed in fact. The only question in dispute was whether or not the existence of a predominant intention to injure was a prerequisite for an action in conspiracy. It appears that what was before the House of Lords was the argument, advanced on behalf of the Fayeds, that Lonrho v. Shell , as interpreted by the Court of Appeal in Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc.

[1990] 1 QB 391

, required the existence of a predominant purpose to injure in all cases of conspiracy. If that was so, then Lonrho's failure to plead that the Fayeds had such a predominant purpose would be fatal to its claim against them of conspiracy by unlawful means. For present purposes it is important to note that what was not before their Lordships was the question which arises in this case, namely what types of unlawful acts, if not all and any of them, will support an action for conspiracy by unlawful means.

Their Lordships had no difficulty in dismissing the Fayeds' argument. An unlawful means conspiracy does not depend on a predominant purpose to injure. However the analysis of the authorities and principles underlying the law of conspiracy which is set out in the speech of Lord Bridge does throw some light on the issues here. At [1992] 1 A.C. 463, Lord Bridge cited the passage in Lonrho v. Shell in which Lord Diplock pointed out the illogicality of the tort of conspiracy to injure including, in particular, the passage set out at paragraph 28 above. After citing Lord Diplock's criticism of the reasoning which has been used in the past to support this type of conspiracy (i.e. that two acting together can inflict more damage than one) Lord Bridge said at p. 464C:

"But this reasoning has no relevance to the second type of conspiracy which employs unlawful means. Of this type Lord Devlin said in his speech in Rookes v. Barnard [1964] AC 1129 , 1204 ... 'In the latter type ... the element of conspiracy is usually only of secondary importance since the unlawful means are actionable by themselves.'"

It should be noticed that Lord Devlin used the word "usually" to qualify "secondary importance", not "actionable by themselves". The reason for this appears to be as follows. The element of conspiracy sometimes can be of great importance, for example where it extends liability to a conspirator who has not done anything which would make him liable in his own capacity as a sole actor. It is the collaboration with, and assistance given to, one or more co-conspirators who are liable as tortfeasors in their individual capacities which broadens the net of liability. However in many cases each of the conspirators will be individually liable even absent the conspiracy and where that is so it is accurate to say that the element of conspiracy is of secondary importance. On the other hand Lord Devlin did not qualify in any way the requirement that the unlawful means should be actionable by themselves.

Taken together the above quoted passages proceed on the assumption that a crucial difference between conspiracy to injure and unlawful means conspiracy and what makes the latter unexceptional is that it, unlike the former, involves the commission of a wrong by the conspirators which is actionable against at least one of them alone even without the element of conspiracy. Since the wrongful means is actionable, it is not surprising or illogical that a conspiracy to do it is actionable as well. One of the oddities of conspiracy to injure - multiple non-actionable acts becoming actionable because they are done together - does not apply. This analysis is consistent with other passages in Lord Bridge's speech. For example at [1992] 1 A.C. 465G - 466A he again drew a distinction between the two types of conspiracies as follows:

"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 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 use were unlawful." (emphasis added)

Once again, although the point was not directly in issue, it appears that he took it for granted that in an unlawful means conspiracy the means 'would have been actionable if done by an individual acting alone'. It was the absence of that factor in conspiracies to injure which made them anomalous. Consistent with this, Lord Bridge cited with approval the following sentence from the judgment of Parker J. at first instance in Lonrho v. Fayed :

"The claimants accept that there is no case in which an undirected crime, not itself a civil wrong, committed without intent to injure, has been held, or, I think, even alleged to be actionable on the mere ground that it was committed pursuant to agreement." ([1992] 1 A.C. 466G)

All of these passages are inconsistent with Mr. Mowbray's submission and support the defendants' case that the claim advanced against them is unarguable. Conspiracies by unlawful means do not exhibit the anomaly identified by Lord Diplock. However Mr. Mowbray says that, notwithstanding any suggestion to the contrary in the two Lonrho cases, there is clear caselaw to the effect that an unlawful means conspiracy can exist where the unlawful means is not actionable as against any of the conspirators individually. A number of cases were referred to by the parties on this issue namely Credit Lyonnais Bank Nederland N.V. v Export Credits Guarantee Department

[1998] 1 Lloyds Rep 19

, Yukong Line Limited v Rendsburg Investments

[1998] 1 WLR 294

, Surzur v Koros

[1999] 2 Lloyds Rep 611

, Watson v Dutton Forshaw Motor Group Limited , (22 July 1998, unreported) and Grupo Torras SA v Sheikh Fahad Mohammed Al-Sabah (25 June 1999, unreported). They do not present an entirely consistent picture.

The starting point is the Credit Lyonnais case where, at page 32, Stuart Smith LJ stated that a claim in conspiracy added nothing to a claim in deceit because in an unlawful act conspiracy, the unlawful act relied upon must be actionable at the suit of the plaintiff. So a person who could not succeed in deceit could not succeed in conspiracy where the unlawful means was the same deceit. This view was expressed to be based, inter alia, on Lonrho v. Shell . Mr. Mowbray concedes that this is incompatible with his argument but he points out that Stuart Smith LJ's views were based on a concession by counsel for the claimant.

In the Yukong Line case, Toulson J. had to consider the question;

"... whether in an unlawful act conspiracy, the unlawful act relied upon must be actionable at the suit of the plaintiff." (p. 312)

After an analysis of a number of cases, but concentrating particularly on the two Lonrho ones, he said that it did and he noted (p. 314) that this meant that the law was as stated by Stuart Smith LJ in Credit Lyonnais . However Toulson J's conclusion has itself been the subject of debate. In the Watson v Dutton Forshaw case, Waller LJ stated that he wanted to put a marker down that the point was by no means clear and that he was "at present" unconvinced by Toulson J's reasoning. It is not clear from the unreported decision whether any significant argument on the issue was put before the Court of Appeal. Toulson J's view was also considered by Mance LJ, sitting at first instance, in Grupo Torras , a case in which the unlawful means consisted of fraud. Since it was held that the claimant had a direct cause of action against the defendants (see page 136 of the transcript), the conclusions relating to conspiracy are strictly obiter. But Mance LJ appears to have taken a different view to Toulson J (see page 137 of the transcript). Finally, particular reliance is placed on Surzur v Koros , a case said to show that an unlawful means conspiracy can exist even where the unlawful means was not actionable against any of the conspirators individually. That is to say it can exhibit the same anomaly identified by Lord Diplock in Lonrho v. Shell .

Surzur v Koros was an unusual case. The claimants had obtained world-wide asset-freezing relief against the defendants in respect of a claim for more than $50M. The order covered ownership of, or interests in, three ships. A number of defendants produced false documents which, they said, justified the sale of the ships. They asked the claimants to consent to the sale. The claimants refused consent. The defendants applied to the court to vary the order relying on the false documents and untruthful affidavits. The claimants were not taken in. They said that the material was false. However the court was taken in and the order was varied to allow sale. After the sale had gone through and when the claimants believed they could prove the defendants' dishonesty, they commenced proceedings against Mr. Koros and others for damages for unlawful means conspiracy. The unlawful means alleged included:

(v) making unfounded dishonest and malicious applications to the court such applications constituting abuses of the process of the court and contempts of court and

(vi) the procuring and deployment in and out of court of false evidence so as to deceive Surzur into believing that the three vessels had been sold at arms-length and, if necessary, to deceive the court in order to persuade it to permit the sale of the three vessels."

The defendants applied to strike out on a number of grounds, one of them being that the cause of action in conspiracy was bound to fail. That application failed. Mr. Mowbray says that the unlawful means relied on, namely misleading the court but not the claimants, did not give rise to a cause of action as against the defendants individually. It was no doubt a contempt of court and it was that which supported the case in conspiracy. He relies in particular on the following passage from the judgment of Waller LJ:

"This aspect was not debated in any detail before [the first instance judge] at all and was raised very much at the last moment in the argument between (sic) us. It would clearly be wrong to reach any final conclusion. What is clear, in my view, is that it is eminently arguable that in an unlawful means conspiracy the unlawful means do not have to be actionable at the suit of the plaintiff." (p. 617)

Mr. Mowbray says that the last sentence should be viewed as confirming or suggesting the existence of a principle of very wide application so that not only does Mrs. Michaels have an arguable claim here but so too would the claimants in the Yellow Line and the Speeding Examples given above.

I do not accept that submission. There is nothing in Surzur which suggests that the Court of Appeal was seeking to establish or confirm any such broad principle. On the contrary, it was only seeking to dispose of an argument raised at a late stage, it was only concerned with a case where the wrongful act was an abuse of process or contempt and there is nothing to suggest that wider consequences were in contemplation, let alone argued. Furthermore even if(i) in unlawful means conspiracies the unlawful means should usually be actionable against one or more of the conspirators individually and

(ii) the actions of Mr. Koros and his colleagues were not so actionable, there are obvious public policy grounds for the existence of a cause of action in a case like Surzur . As Clerk & Lindsell points out, the early writ of conspiracy was largely restricted to abuse of legal procedure and merged into the modern tort of malicious prosecution (17th Ed. paragraph 23-05). Surzur can be considered to be no more than a modern example of that old form of action. There is no reason why the law of unlawful conspiracy should not be made broad enough to encompass it, if necessary as a judge made exception to the general rules.

There is another reason why I am not attracted by Mr. Mowbray's attempt to use Surzur as a basis for the very wide scope of unlawful means conspiracy which he is arguing for. The cornerstone of his submission is that Surzur is an example of a case in which the claimants had no cause of action against the defendants individually so that it exhibits the same anomaly as conspiracies to injure. The passage from Waller LJ's judgment set out above suggests that he proceeded on that assumption. That is not surprising since the judgment records counsel for the claimants as having said that they were not seeking to allege any cause of action other than conspiracy and that allegations of contempt and abuse of process were only alleged as unlawful and overt acts in the context of a conspiracy plea and "not as free-standing causes of action" ([1999] 2 Lloyds Rep. 616). The consequence of this is that the court did not consider whether the acts of the defendants, if done individually, were actionable. If it had, I think it likely that the court would have decided that, in the circumstances of that case, individual liability existed. It is difficult to believe that if Mr. Koros had succeeded in having the Mareva order modified on the basis of forged documents and dishonest evidence, but had achieved that while acting alone, the claimants would have been deprived of a cause of action. Such an outcome would have made no sense at all. His wrongful acts should have given rise to individual liability, see Acrow (Automation) Ltd v. Rex Chainbelt Inc.

[1971] 1 WLR 1676

. The public policy considerations which underpinned the claim in conspiracy in that case surely would have been just as forceful and applicable to an action for unlawful interference with business. The causes of action should survive or fall together. Therefore I am not convinced that Surzur really is a case in which an actionable conspiracy existed where none of the defendants were individually and separately liable. Furthermore as the passage from Waller LJ's judgment set out at paragraph 45 above makes clear, the point was only raised at the last moment. It does not appear to have been argued in depth and the Court of Appeal only decided that it was arguable.

I have come to the conclusion that none of the cases unequivocally support the wide proposition advanced by Mr. Mowbray and many of them, including particularly the Lonrho cases, are inconsistent with it. Subject to the impact of the law of unlawful interference with business to be considered below, it appears to me that the correct principle is that for a conspiracy by unlawful means to exist, it must be shown that the unlawful activity was actionable against at least one of the conspirators absent the co-operation between them. If that is right, then Mrs. Michaels' claim must fail because it is conceded that no separate actionable wrong has been committed by any one of the alleged conspirators.

Unlawful interference with business

As explained above, I accept Mr. Mowbray's submission that, to the extent that a means is treated as unlawful for one economic tort, so to the same extent it ought to be treated as unlawful for the others. The corollary is that where it is not treated as unlawful for one it ought not to be treated as unlawful for others. Based on this Mr. Mowbray argues that the caselaw relating to unlawful interference with business shows that any unlawful act suffices to support that cause of action and so the same ought to be the case with unlawful means conspiracy. It is convenient to start the analysis of Mr. Mowbray's argument with another extract from the speech of Lord Diplock in Lonrho v Shell [1982] A.C. 173, 185:

"....one starts with the presumption laid down originally by Lord Tenterden CJ in Doe d.Murray v Bridges (1831) 1 B & Ad 847,859, where he spoke of the 'general rule' that 'where an Act creates an obligation and enforces the performance in a specified manner ... that performance cannot be enforced in any other manner' - a statement that has frequently been cited with approval ever since, including on several occasions in speeches in this House."

In adopting this approach, the courts are trying to implement the presumed intention of Parliament. If Parliament has considered the question "what relief should be available to a person harmed by breach of this legislation?" and has furnished an express answer, it is not for the courts to legislate other forms of relief. So, the starting point is that an injured individual is restricted to seeking relief of the type which Parliament has sanctioned. If particular types of relief are specified, the individual is limited to those. If no relief is specified then the court again has to decide what was the legislative intent. It may be that, from a consideration of the whole of the Act and the history of the legislation, the legislative intent is found to be not to give any rights of action to harmed individuals at all. But where no relief is specified the court may be more willing to assume that the legislative intent was that the common law should provide a cause of action. This is explained by Lord Simonds in Cutler v. Wandsworth Stadium Ltd

[1949] AC 398

, 407. It seems to me that there is greater freedom for the courts to construe legislation as giving rise to common law rights of action when it provides no relief at all than when, as here, it specifies limited relief. Either way, what the court has to do is determine the intention of the legislature and then act in accordance with it.

Mr. Mowbray's contention is that even when, as a matter of construction, it is determined that the legislature did not intend to give rights of action (or different rights of action to those expressly specified), nevertheless the common law can intervene to provide a cause of action for unlawful interference with business and, by extension, conspiracy by unlawful means. If that is so then in a vast number of cases, perhaps the majority, the legislative intent not to furnish civil causes of action would be side-stepped. The point is illustrated by Cutler v. Wandsworth itself. Cutler was a bookmaker. Wandsworth Stadium was the occupier of a licensed dog-racing track. The Betting and Lotteries Act 1934 required Wandsworth to provide bookmakers with space on track where they could carry on bookmaking. In alleged breach of the Act, Wandsworth failed to make such space available with the result that Cutler was excluded from the track and his business suffered accordingly. He sued for declaratory and injunctive relief and also claimed damages. Both the Court of Appeal and the House of Lords said that Cutler had no cause of action. They held that the legislature did not intend the 1934 Act to give bookmakers in the position of Cutler a cause of action. What is particularly striking is that if Mr. Mowbray's argument is correct, Cutler and all other bookmakers would have had a cause of action for unlawful interference with business and the legislative intent would have been avoided in all cases and inquiring into that intent would have been otiose.

The same difficulty with Mr. Mowbray's submission arises if one considers the recent caselaw relating to the effect of the Performers Protection Act 1963 (now repealed and replaced by somewhat wider provisions in the Copyright, Designs and Patents Act 1988). This legislation made it a criminal offence to record an artist's performance and to sell recordings so made, a type of activity called 'bootlegging'. As the title of the Act indicates, it was passed to protect performers. Nearly all popular musicians are under contract to a recording company. In a number of actions in the 1980's and 1990's recording companies sued bootleggers of their contracted artists' performances. In Ex p. Island Records

[1978] Ch 122

, the record companies advanced two possible causes of action. The first was for breach of statutory duty. They argued that the 1963 Act was for the protection of their interests as well as the interests of the performers and that therefore, on Cutler v Wandsworth grounds, they could sue for breach of statutory duty. In the alternative they said that the bootleggers were interfering with their property or business by unlawful means and this gave rise to a cause of action. The Court of Appeal unanimously rejected the first of these submissions. If the Performers Protection Act were to be construed as giving rise to a civil cause of action it could only be for the benefit of those who the Act intended to protect. They were the performers, as the title to the Act indicated, not the record companies. However, by a majority, the Court of Appeal accepted the second proposition. Lord Denning M.R. put the principle succinctly:

"A man who is carrying on a lawful trade or calling has a right to be protected from any unlawful interference with it." (p. 136, emphasis added)

Of course the unlawful interference in that case was the breach of the Performers Protection Act. So, although the legislative intent was not to give the recording companies any right of action, they obtained one by persuading the court to accept a wide construction of unlawful interference with trade. The view of the majority of the Court of Appeal appears to me to be the essence of Mr. Mowbray's argument.

However, the decision in Ex p. Island Records was firmly overruled by the House of Lords in Lonrho v. Shell . Lord Diplock said that it was not necessary to decide whether the Court of Appeal had been right in rejecting the record companies' case for breach of statutory duty and then proceeded:

"Lord Denning M.R., however, with whom Waller LJ agreed (Shaw LJ dissenting) appears to enunciate a wider general rule, which does not depend upon the scope and language of the statute by which a criminal offence is committed, that whenever a lawful business carried on by one individual in fact suffers damage as the consequence of a contravention by another individual of any statutory prohibition the former has a civil right of action against the latter for such damage.

My Lords,

with respect, I am unable to accept that this is the law ..." (p 187)

I would only add that in the subsequent case R.C.A. v. Pollard

[1983] 1 Ch 135

, the Court of Appeal held that that part of the decision in Lonrho v. Shell which purported to overrule Ex p. Island Records was not obiter.

What the House of Lords was rejecting was the cause of action of unlawful interference with business which is the cornerstone of this part of Mr. Mowbray's submission. It appears to me that this accords with the logical development of this area of law. Where the legislative intent, as discerned by applying the Cutler v. Wandsworth approach, is not to make available a civil right of action under the head of breach of statutory duty, it is difficult to see how it could have been the intention to create a cause of action simply because the breach of statute causes damage to a business of the victim. Nevertheless, Mr. Mowbray says that there is clear authority to support him. He relies on two decisions.

The first is Associated British Ports v. TGWU

[1989] 1 WLR 939

. In the Court of Appeal, Neill LJ, basing himself on Lonrho v. Fayed and Lonrho v. Shell , said that he saw great force in the submission that a breach of statutory duty cannot be relied on as unlawful means for the purposes of the tort of unlawful interference with business unless it is actionable in its own right (see p. 954). Butler-Sloss and Stuart-Smith LLJ expressed the opposite view (see pp. 961 and 966). However the case was an interlocutory one and all three members of the court made it clear that they were not determining this issue but considering only whether it was arguable. For this reason, Mr. Mowbray accepts that this case does not determine the issue in his favour.

Mr. Mowbray's submission eventually relied almost exclusively on the unreported extempore judgment of the Court of Appeal in Williams v. Department of Transport (3 December 1993). The case involved a dispute by environmental protesters and the Department of Transport over the construction of part of the Winchester bypass over Twyford Down. At a number of 'days of action' the protesters had interfered with the construction of the bypass. Their actions were said to constitute breaches of various regulations made under s. 303 of the Highways Act 1980 which provided that it was an offence, punishable by a fine, to wilfully obstruct the construction work. At first instance Alliot J. had held that the Department of Transport were entitled to sue on orthodox Cutler v. Wandsworth grounds. However in the Court of Appeal, counsel for the Department disclaimed reliance on any such ground. The report does not disclose why he did that. Instead he is reported as arguing that the Department was entitled to injunctions at common law;

" irrespective of s. 303 , against everyone who interferes with the plaintiffs' lawful activities" (emphasis added)

This thoroughly novel tort, if it exists, goes much further than the one argued for by Mr. Mowbray. It does not even require unlawful means. On the other hand Dillon LJ records the defendants' counsel as accepting that ;

"injunctions could be granted for the tort of wrongful interference with business if the appellants interfered with the Plaintiffs' activities by unlawful means. But ... they do not accept that section 303 automatically renders any wilful interference illegal, because section 303 merely provides for a fine and not for civil proceedings. In their submissions, the enforcement of section 303 is a matter for the criminal law or for the civil court acting in aid of the criminal law as in the cases mentioned above - which of course, is what [counsel for the Department] disclaims."

and Mann LJ said:

"There is however a sufficient tort in a wrongful interference with business by unlawful means because a business can encompass the construction of a special road. Counsel for the appellants did not suggest to the contrary."

Having read the transcript a number of times, I have found it impossible to discern what arguments were put to the court and what concessions were made. However it appears that one case which was relied on was R. v. Chief Constable of Devon and Cornwall ex parte Central Electricity Generating Board

[1982] 1 QB 458

in which very similar provisions in s. 281(2) of the Town and Country Planning Act 1971 were considered. In relation to that Templeman LJ said:

"Any person who wilfully obstructs the board in the exercise of their powers also commits a tort for which the board may exercise their civil remedies."

The basis for this tort was not explained by Templeman LJ In the circumstances it is, perhaps, not surprising that in Williams Dillon LJ said:

"I am reluctant to decide an issue of law of such potential importance as the basis of the observations of Templeman LJ and Lord Denning MR in the CEGB case on an interlocutory appeal such as the present and without further research into this particular field of law than counsel were able to undertake."

Notwithstanding this, at the end of his judgment Dillon LJ said:

"I accept [counsel's] submission that an injunction founded on the tort of wrongful interference with business can be granted if Mr. Ward interferes with the Plaintiffs' motorway building activities and ancillary activities by unlawful means... But by virtue of section 303 any wilful interference is unlawful, and, in my judgment, constitutes unlawful means for the purposes of the tort. I do not regard Cutler v. Wandsworth Stadium and Lonrho v. Shell as in point. The claim is founded on a recognised tort at common law, just as the claim in trespass is, and anything which is illegal under any statute provides the unlawful means." (emphasis added)

Staughton LJ appears to have upheld the interlocutory injunction on the same grounds as those adopted by Alliot J and did not express any views on the wide tort supported by Dillon LJ. Mann LJ upheld the injunction but, as noted above, apparently on the basis that the existence of the cause of action was conceded by counsel for Williams.

Mr. Mowbray bases his submission on the passage quoted at paragraph 63 above from Dillon LJ's judgment. He says that it should be treated as the judgment of the court and, in any event, is strongly persuasive. If, as Dillon LJ said, anything which is illegal under any statute will suffice to support an action for unlawful interference with business, then it would mean that, say, in the Speeding Example set out above, there would not even need to be a conspiracy. A lone driver acting for one retailer who assists his employer to take business from its competitor by driving faster than the speed limit would be liable for unlawfully interfering with the competitor's business. I cannot believe that that was what the Court of Appeal in Williams intended. The passage in Dillon LJ's judgment is not the judgment of the court and it is apparent that all three members of the court were only deciding whether or not the alleged cause of action was sufficiently arguable to support an interlocutory injunction to remove protesters from the bypass. Indeed Dillon LJ was at pains to point out that the court had not been supplied with sufficient material to decide such an important point. I do not accept that this one statement can stand against all the other authority referred to above.

In the circumstances, I reject Mr. Mowbray's submission that any unlawful act is sufficient to support an action for unlawful interference with business and I have come to the conclusion that this line of authority does not support his submissions in relation to conspiracy by unlawful means. Mr. Mowbray says that if unlawful means conspiracies are only available in cases where the conspirators are also liable directly and individually in respect of the unlawful activity, there is no point in having the action for conspiracy at all. Even if this submission were correct, I do not think it would advance Mr. Mowbray's case. If, on a proper analysis, a cause of action is only available in situations where another cause of action exists and achieves identical results, that is no justification for expanding the scope or effect of the former so as to give it some purpose. But, in any event, I do not think Mr. Mowbray is necessarily right in suggesting that the defendants' arguments would mean that an unlawful means conspiracy adds nothing to the cause of action available against each defendant alone. First it is possible to sue for wrongful means conspiracy in cases where only some but not all of the conspirators would be liable individually for the wrongful act. In this respect, the tort dovetails with or overlaps the law of joint tortfeasance. That said, I can see much attraction in the courts suppressing the pleading of unlawful means conspiracies where the same allegation could be expressed in terms of joint tortfeasance. In such cases the allegation of conspiracy may add nothing but invective to the claim form and pleadings. Second, the existence and implementation of a wrongful conspiracy may affect the scope of the damages. For example it may be easier to obtain aggravated damages in a case of unlawful means conspiracy than it would be in an action against each defendant separately. It is not necessary to determine whether those damages could ever be different to and larger than the damages which would be recovered if the plea was simply stated in terms of joint tortfeasance.

Summary of conclusions

It appears to me that the following conclusions follow:

(1) Not all wrongful or illegal acts will support an action for conspiracy by unlawful means.

(2) Save in exceptional circumstances, a wrongful act which is sufficient to support an action for unlawful interference with business will be sufficient to support an action for conspiracy by unlawful means and a wrongful act which is insufficient for one will be insufficient for the other.

(3) A major difference between conspiracies to injure and a conspiracy by unlawful means is that in the former, activities which are not actionable in their own right can be rendered actionable by virtue of their being performed in concert and if there is a predominant intention to injure. By contrast in a conspiracy by unlawful means the means must be actionable in its own right against at least some of the conspirators.

(4) Where a wrongful act consists of the breach of the provisions of a statute or subordinate legislation, it will only support an action for conspiracy by unlawful means if it is determined that the intention of the legislature was that such causes of action should be available to enforce the provisions of the legislation.

It follows that I accept the defendants' submission that Mrs. Michael's claim discloses no arguable cause of action and should be struck out on that ground. In the circumstances it is not necessary to consider Mr. Lewison's powerful arguments that there is no relevant nexus between the alleged wrong and the damage allegedly suffered by the Michaels so that they fail to raise an arguable case of causation nor is there any point in considering the limitation or stay arguments. However I think I should say something about estoppel.

Estoppel

For a very long time it has been well recognised that it can be an abuse of process for parties to litigate the same issues on multiple occasions. In Henderson v Henderson (1843) 3 Hare 100 Wigram V-C stated the general principle as follows:

"In trying this question I believe I state the rule of the Court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

This principle is not limited to relitigation or sequential litigation between the same parties. Sometimes the courts have held that if litigation is pursued it should be pursued by and against all interested parties at the same time. It may be an abuse to sue some defendants in one piece of litigation and then sue others in another when they could more conveniently have been sued all at the same time. This is apparent from Yat Tung Investment Co Ltd v Dao Heng Bank Ltd

[1975] AC 581

. However these are not rigid rules. In all cases where the court is being asked to strike out subsequent proceedings on these grounds it must decide whether, in all the circumstances, multiple proceedings are acceptable. Therefore I accept Mr. Mowbray's argument that the court should exercise caution before striking out a claim on an allegation of an abuse consisting of advancing claims not raised in earlier proceedings.

It is not in dispute that this action could have been brought at the same time as the original proceedings. However Mr. Mowbray says that it was entirely appropriate for Mrs. Michaels to have adopted a step-by-step approach. He says that had the previous proceedings succeeded the current claim would have been redundant; there is little legal or factual overlap between the issues raised in the previous proceedings and those raised by the current claim; and the previous proceedings sought an order only against HHL for the provision of information and were defeated merely by delay. It appears to me that the last of these arguments illustrates why the first is wrong on the facts. If the original proceedings were only for information it must follow that it was to be used as a starting point for further proceedings. Furthermore, the suggestion that if there had been success in the first action the present proceedings would have been unnecessary would have been available in nearly every case in which Henderson v. Henderson has been applied.

The purpose of the principles in Henderson v. Henderson and Yat Tung is to avoid multiplicity of proceedings and relitigating except where necessary or there is some other good reason. This is a policy which is consistent with the overriding objective set out in CPR Part 1.

Even if, contrary to the findings above, Mrs. Michaels has a cause of action, to succeed in the current proceedings she must prove against each of the defendants that it was in a conspiracy with the other defendants, that the conspiracy used unlawful means and that at least one of the objectives of the conspiracy was to harm her. Furthermore she must go on and prove that not only was there a conspiracy but that it has actually damaged her and that she is entitled to recover damages from each of the defendants. However the consequences of having reserved the current proceedings to come on after the first set were disposed of will result in much duplication of work, a risk of inconsistent judgments and considerable unfairness to some of the parties.

The impact of this second round of proceedings differs from one defendant to another. I can start with the position of TW1 and TW2. They were never, even fleetingly, the subject of the first action. Mr. Mowbray accepts that they are not bound by any of the findings in that action. It is likely that they will, or would, want to attack the fundamental issue of whether the scheme in which they participated on legal advice led to a breach of s. 5 of the Act. Mr. Mowbray agrees that they are free to do that but he says that, in practice, there is little chance of them succeeding because the Court of Appeal has already decided in the first action that the scheme was defective. The result is that either they will be allowed a free run at trying to persuade the courts that Lloyd J was correct and they are not parties to a breach of s. 5 at all, or they will be bound by the outcome of the previous proceedings. I think Mr. Mowbray is right in suggesting that the latter is the more likely. I also agree with Mr. Mowbray's view that this will be "a bit hard" on those defendants. It will mean that this issue will be relitigated, with the possibility of inconsistent decisions, or the first and second defendants will be deprived of an effective opportunity short of the House of Lords to show that nothing they did was wrongful. Furthermore, although HHL conceded at the beginning of the first proceedings the number of qualifying tenants in Harley House at the relevant time, I was told by Mr. Lewison that TW1 and TW2 may well not wish to make any such concession. They may take the view that the concession was wrong. The result is that, in these second proceedings some of the defendants will be able to argue for a set of facts which is different to those which, by concession, bind HHL. The result may be that different findings may be made against different defendants in respect of the same alleged conspiracy.

The position of Frogmore is different. It was a party to the original proceedings but was struck out on the basis that no substantive relief was sought against it. Now it is being brought back in. Mr. Mowbray says that it will be bound by the concession made by and findings against HHL because the two companies should be treated as privies for the purpose of res judicata. The result will be that it will have been excluded, by the strike out in 1996, from arguing in relation to the issues decided in the first proceedings but will be bound by the outcome of those proceedings. That is hardly fair on this defendant.

HHL is in a different position to the others. It cannot complain about being bound by the outcome of the first proceedings. On the other hand, it, like the other defendants, will undoubtedly wish to argue that the claimant is estopped by the decisions of Lloyd J and the Court of Appeal in the previous proceedings from seeking to recover some or all of the damages she seeks in this action. Towards the end of his submissions Mr. Mowbray asserted, for the first time, that estoppel was close to unarguable as a defence to damages on the facts of this case. No authority was put forward to support this suggestion and, in the absence of such authority, I do not accept that it is correct. It may well be that a court which finds that the grant of injunctive relief is unconscionable could, on the same facts, decide that it was not unconscionable to order damages. But this does not mean that estoppel can never provide a defence to a claim for damages. It follows that the court will have to revisit the facts which gave rise to the finding of estoppel and delay in the first action. No doubt the court will need to consider again all the documents, listen to all the witnesses and hear all the arguments which it heard before. I suppose it is possible that a second court might assess those documents, witnesses and arguments differently to the way they were assessed before. But in any event this will result in a major duplication of costs and effort which would have been avoided if all these claims had been made at the same time.

As against that, nothing of substance has been put forward to justify the sequential litigation course adopted by Mrs. Michaels. On the contrary, there are good reasons for thinking that the course adopted on her behalf will not only be unfair to the defendants and wasteful of costs and court time, but it will also make a fair resolution of her claim more difficult. The events to which this dispute relate occurred about 8 years ago. Many of the original tenants in Harley House have moved on. The tenants could only have forced a sale to them if a sufficient number of them were prepared to take on the financial risks involved in raising £15.75M. Both Mr. Martin for TW1 and TW2 and Mr. Lewison for the other defendants say that the overwhelming likelihood is that the silence which followed the tenants association newsletter of 15 July 1993 is because there was no prospect of the tenants trying to raise that sort of sum. There does not appear to be any material which contradicts that submission. But whether justified or not, it will be much harder now to determine accurately what would have been the attitude of the tenants if they had received a proper s. 5 or s. 11 notice at the time and, just important, whether any decision by them to purchase the block (assuming that is the decision they would have come to) could have been put into practice in the light of their individual financial positions in 1992 and 1993.

In my view the current proceedings constitute an abuse of process on Henderson v. Henderson grounds. I would strike it out on that basis also.

Postscript

In this case reference was made to a number of unreported decisions which have been obtained from legal databases or from the mechanical recording department of the law courts. This is not new, but the recent growth of computerised databases has made it an every more frequent and extensive occurrence. There are now significantly more judges, more cases and more databases than there were even two decades ago. Until comparatively recently, this was not a substantial problem. The courts were only taken to cases which had been published in a limited number of sets of law reports after selection by legally qualified editors. Even in the 1970's, there were no readily available and cheap means for copying unpublished reports, even if they could be found. The lawyers who attended court had to bring with them those volumes of the law reports containing the particular reports on which they intended to rely. Logistics problems helped to lessen the enthusiasm for over-citation of authority.

Now there is no pre-selection. Large numbers of decisions, good and bad, reserved and unreserved, can be accessed. Lawyers frequently feel that they have an obligation to search this material. Anything which supports their clients' case must be drawn to the attention of the court. This is so even when it is likely that the court which gave the judgment probably never intended it to be taken as creating a new legal principle. A number of consequences flow from this. First, of course, it is the client who eventually has to pay for all this searching. This growing costs burden runs counter to the environment being promoted by the Woolf reforms. Further it is a fact of life that sometimes courts go wrong, or at least not conspicuously right. That is why we have a system of appeals. A poor decision of, say, a court of first instance used to be buried silently by omission from the reports. Now it may be dug up and used to support a cause of action or defence which, without its encouragement, might have been allowed to die a quiet death. Thirdly, it is a common experience that the courts are presented with ever larger files of copied law reports thereby extending the duration and cost of trials, to the disadvantage of the legal system as a whole. It seems to me that the common law system, which places such reliance on judicial authority, stands the risk of being swamped by a torrent of material, not just from this country but from other jurisdictions, particularly common law ones.

Early warnings of this problem were sounded by the House of Lords in Roberts Petroleum Ltd v. Kenny Ltd. [1983] 2 A.C. 192. The comments of Lord Diplock are particularly interesting:

"In a judgment, particularly one that has not been reduced into writing before delivery, a judge, whether at first instance or upon appeal, has his mind concentrated upon the particular facts of the case before him and the course which the oral argument has taken. This may have involved agreement or concessions, tacit or explicit, as to the applicable law, made by counsel for the lititgating parties in what they conceived to be the interests of their respective clients in obtaining a favourable outcome of the particular case.

The primary duty of the Court of Appeal on an appeal in any case is to determine the matter actually in dispute between the parties. Such propositions of law as members of the court find it necessary to state and previous authorities to which they find it convenient to refer in order to justify the disposition of the actual proceedings before them will be tailored to the facts of the particular case. Accordingly propositions of law may well be stated in terms either more general or more specific than would have been necessary in order to determine the particular appeal."

Although in Roberts Petroleum the House of Lords was particularly agitated about the citation of two unreported decisions of the Court of Appeal, all the criticisms apply with equal or greater force to decisions at first instance. The solution proposed by Lord Diplock and accepted by the other members of the Committee was that the House of Lords;

"... should decline to allow transcripts of unreported judgments of the civil division of the Court of Appeal to be cited upon the hearing of appeals to this House unless leave is given to do so; and that such leave should only be granted upon counsel giving an assurance that the transcript contains a statement of some principle of law, relevant to an issue in the appeal to this House, that is binding upon the Court of Appeal and of which the substance, as distinct from the mere choice of phraseology, is not to be found in any judgment of that court that has appeared in one of the generalised or specialised series of reports." (p. 202)

Even that proposal does not solve all the problems and would not do so if extended to other courts. First, it would not exclude from consideration a decision which is clearly wrong but which, as a result, is the only one to support an untenable proposition. Secondly the changes to law reporting which have taken place over the two decades since Roberts suggest that the reliance on generalised or specialised series of reports may not be reliable. Sets of law reports are proliferating. Ever more narrow specialities have acquired dedicated reports. Even in the established areas of law there is a tendency to report more and to omit less although this does not apply to the Law Reports proper. Thirdly the suggested method of exclusion itself could become cumbersome. An advocate who has found a case which supports his client's case - particularly if it is the only one - will be obliged to seek leave. Fourthly, such a procedure might work in relation to first instance and Court of Appeal decisions which are to be introduced into argument before the House of Lords, but it is difficult to see how it could work at a lower level of the judicial ladder. Although a court of first instance could decline to allow citation of another first instance decision, this would be pointless because it is not bound by judgments on the same level anyway. On the other hand it is difficult to see how either a court of first instance or the Court of Appeal itself could refuse to allow citation of, say, a unanimous judgment of the Court of Appeal since, on current principles of stare decisis, both would be bound by it whether they liked the decision or not. Fifthly, the solution proposed in Roberts would not reduced the task of searching imposed on the parties' legal advisers. They will still need to look at the growing database of decisions to see if there is something which helps their clients. If there is, they will have to apply for leave. Finally, the solution in Roberts does not address the problem of claims or defences kept alive in whole or in part by the existence of ill-expressed judgments or ones which are simply wrong. In any such case the party will be told by his lawyers that the authority exists and that it can be relied upon although doing so will require negotiating the leave hurdle.

We are not alone in facing this problem. I understand that in Australia a variety of proposals have been put forward. In that country there is a body called the Consultative Council of Australian Law Reporting which has a representative from each Superior Court. Last year a submission was made to it that the remedy largely lay with courts themselves. It was suggested that courts should be prepared to define a category of case - say Not for Publication or Not for Citation - and confine circulation of such cases to the immediate parties and the Court file. They should not go on the Internet. The proposal was not accepted partly because it was felt that courts had no right to restrict publication of their decisions and partly because it was felt that in some areas, e.g. sentencing and personal injuries awards, it is useful for practitioners to get some kind of data about trends, even though cases might not be cited in court. It will be appreciated that the objections were directed to a proposal that, in effect, certain judgments were to be kept secret .

Other remedies have been suggested in Australia. I understand that the Supreme Court of Victoria has a practice note that leave of the Court must be obtained before an unreported authority is cited. This is much the same approach as advocated in Roberts . However I understand that in Victoria the practice has become a dead letter since it is usually easier to let counsel cite the case rather than argue over whether it should be cited.

The problem has also arisen in the United States of America. Anyone who has read decisions of the American courts will have seen how they are frequently filled with numerous citations which, if they have all been cited in court and read by the judges, must have significantly added to the duration of the trials and the burden of judgment writing. I understand that this problem has been addressed, at least in part, in the United States Court of Appeals for the Federal Circuit.

(b) of the Rules of Practice of that court provides:

" Nonprecedential Opinion or Order. An opinion or order which is designated as not to be cited as precedent is one unanimously determined by the panel issuing it as not adding significantly to the body of law. Any opinion or order so designated must not be employed or cited as precedent. This rule does not preclude assertion of claim preclusion, issue preclusion, judicial estoppel, law of the case, or the like based on a decision of the court designated as nonprecedential."

The court's publicly available Internal Operating Procedures of 9 April 1998 explains what criteria are borne in mind in deciding what judgments are nonprecedential and confirms that any such judgments are still available to the public at large. I understand that the court takes this rule seriously (see for example Hamilton v. Brown (1994) 39 F.3d 1574). As an American Professor put it, if counsel tries to cite a nonprecedential judgment to the Federal Circuit, "the court arranges for his hanging right on Lafayette Square".

The approach adopted by Court of Appeals for the Federal Circuit may well not be the answer here. It is dependent for its operation on a degree of modesty by the courts which occasionally may not exist, but at least it prevents some of the bulk of material from clogging up the system. One possibility is that the courts could adopt a procedure where all extempore judgments of any court and any judgment of courts of first instance are not to be cited unless the court, at the time of giving judgment or shortly thereafter, indicates to the contrary. All judgments would still be available to the public, but only the selected ones could be used for citation. Sooner rather than later this problem must be tackled if the increasing ease which prior decisions can be accessed is not going to choke the system.