THE T0R.T OF CONSl'IR-4CY

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1 THE T0R.T OF CONSl'IR-4CY THE tangle of cases which was the source of the civil law of conspiracy has to a great degree been clarified by the decision of the House of Lords in Veitch's Case.= The tort of conspiracy is now a fairly clear passage of the law. But it is the purpose of this article to submit that in their most laudable desire to inject sense and rationality into a confusing topic, the House of Lords in Veitch's Case erected a principle of a peculiar flavour and of doubtful practical value. Before Veitch's Case, and indeed after it in some places, it was customary to say that the tort of conspiracy arose when there was an agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means, causing damage to the plaintiff. This definition would seem to be based on a fallacy in logic. For it was generally agreed that unlike the crime of conspiracy, the merc fact of agreement could not constitute the tort. To give rise to tortious liability there must be some carrying out of the agreement, causing damage. But it would seem evident that if there is some carrying out of an agreement to do an unlawful act or to employ unlawful means then this is equivalent to the doing of an unlawful act. In other words, under this definition, the existence of a tort of conspiracy would be quite otiose, for the defendants could always be sued as joint tortfeasors under some other specific heading of tortious liability. Indeed this view of conspiracy meant that a confusing element was often introduced into cases which could have been decided quite simply under the definition of some existing tort. For example the case of South Wales Miners Federation v. Glamorgan Coal Co.* has been quoted as authority3 in a vigorous argument supporting the definition of conspiracy as outlined above. In that case the appellants induced miners to break their contracts of service with the respondents, with the object of sending up the price of coal and in consequence of increasing their wages. The House of Lords found the appellants liable. In the course of his speech Lord James said :'' The defendants' intention clearly was that the workmen should break their contracts. Their motives no doubt were that by so doing wages should be raised. But, if, in carrying out the intention, the defendants purposely procured an unlawful act to be committed, the wrong that is thereby inflicted cannot be obliterated by the 1 Crofter IIarris Tweed Company v. Veitch [1942] A.C [1905] A.C J Vide 36 L.Q.R. 88, " Conspiracy as a Ground of Liability in Tort," by Dr. J. Charlcsmorth. 209

2 210 THE MODERN LAW REVIEW VOL. 15 existence of a motive to secure a money benefit to the wrongdoers. The learned author of the article referred to treated this as a case of conspiracy and therefare argued that the essential element of conspiracy is not purpose or motive or malice, but the agreement to do an unlawful act. The argument would be sound but for the weakness of its premise. Lord James was pointing out that an unlawful act does not become lawful simply because of a good motive. The defendants were clearly liable for the tort of interference with contract. The case has nothing to do with conspiracy. It was an action against joint tortfeasors for inducing the breach of a valid, existing contract. If there had been a single defendant the result would have been the same, and conspiracy was not a relevant element. To get a clear picture of the tort the first essential is then to realise that whenever the defendants have done an act which can be brought under the heading of some other specific tort there is no question of conspiracy. Or at any rate there should be no such question, for to introduce it is merely to confuse and complicate a simple issue. (A similar situation may be perceived in the criminal law of conspiracy; vide R. v. Cooper and C~rnpton.~) It is submitted that if conspiracy is to have any meaning as a tort it should be confined to acts which if done by one person would not give rise to liability. If it is so confined then it does indeed constitute a new head of liability. But unfortunately, even in Veitch s Case, the House of Lords, although they make it clear that conspiracy does include such cases, still appear from their language to embrace the old definition as well, i.e., to include acts which have a separate tortious existence apart from conspiracy. This is to be regretted for it retains the superfluous element. This point was perceived and treated of by Lord Sumner in Urquhart v. where the noble lord said: As to the measure of damages, it may be that there are cases in which proof that a joint tort was done in pursuance of a conspiracy to do it, will justify some increase of the damages to be awarded for the tort itself, though none such has occurred to me.... A plaintiff cannot be allowed simply by using one technical term where another would equally cover the wrong to aggravate the jury into giving him extra money. The major importance of Veitch s Case then is that it gave certainty to the unsettled doctrine that, in some circumstances, an act which if done by one person is lawful can be unlawful if done by more than one person in combination. And Veitch s Case of course also confirms for us what thosc circumstances are in which this situation arises. It can be stated quite simply by saying that 4 (1947) 32 Cr.App.R [1930] A.C. at p. 60.

3 APRII THE TORT OF CONSPIRACY 211 all combinations which injure another person are unlawful unless the real purpose of the combination is not to injure another but to further or protect the legitimate interests of those combining. Two extremely interesting points emerge. First, the House of Lords has in effect created a general theory of tortious liability for two or more people acting in combination. While an individual cannot be successfully sued in tort unless his act can be brought within the ambit of a specific tort, two combining individuals who cause damage can always be sued unless they can prove the purity of their motives. Conspiracy has become a tort of megalomaniac pretensions which in effect is not a specific tort at all but a declaration of general tortious liability for two or more acting in concert. The House of Lords seems to have been aware of this, although it is not directly mentioned in the speeches, and seems not to have been troubled by its possibilities. Secondly, as has often been demonstrated, what is vital is the motive of the combiners. A bad motive will here convert an otherwise lawful act into an unlawful one, or, to reverse the proposition, a good motive will deprive an otherwise unlawful act of its unlawful character. Now the general principle of English civil law has of course always been that a lawful act cannot be made unlawful simply by an impurity of motive. Authoritative statements in support of this principle are legion. It will be sufficient to quote two. In Allen v. Lord Watson said: The existence of a bad motive in tho case of an act which is not in itself illegal will not convert that act into a civil wrong for which reparation is due. Iri l3ore.cn v. ZZaZZ, Lord Coleridge said: I do not know... that it has ever been held that the same person for doing the same thing, under the same circumstances with the same result, is actionable or not actionable, according to whether the inward motive was selfish or unselfish for what he did. It now appears then that when we are dealing with persons and not a person the old learning is to be ignored and motive is all important. This trend in the tort of conspiracy, now finally confirmed by Veitch s Case was commented on as long ago as 1892 in an article in the Law Quarterly Writing of the novelty and uncertainty of the motive test, the learned author said: But it is difficult to see how malice... can possibly form an element in what, for want of a better word, may be called unfair competition in trade. How can motive in such a case be determined? Is it to be said that a given interference with the trade of another is lawful if thc act is done for the object of personal gain, but unlawful if done with the object of causing loss to B rival? The attempt to distinguish between the two at law... 6 [1SOS] A.C (1881) 6 Q.B.D * 8 L.Q.R. 140, Malice in the Jkw of Torts, by Ormceby J.

4 212 THE MODERN LAW REVIEW VOL. 15 seems to me about as reasonable as to make it a rule of billiard pool that a life, if taken with the object of increasing the striker s score, counts, but that it does not count if the object be to keep down the score of an opponent. As another writcr has observed, motive in this context is as difficult to determine as to decide whether a soldier fires for the purpose of injuring the enemy or 01 defending his country. Not only in its general but also in its particular application is motive an unsatisfactory test. Veitch s Case tells us that if the motives are mixed, we must look for the predominant purpose. But what if A and B combine and A is clearly acting to protect his own interests while B is clearly acting with a malicious desire to injure the plaintiff? How then can we find a predominant purpose? In the case of Pratt v. British Medical Association,1o McCardie J. expressed a definite view on this point to the effect that the proved malice of one or more may be attributed to the other participants of the combination. But in the case of McKernan v. Praser and Another in the High Court of Australia, Evatt J. thought that even if it had been established that the defendant himself had acted merely to gratify a private grudge he would still not be liable for conspiracy unless it could be shown that those who acted with him had been similarly impelled. And he was of the opinion that cvcn if several inembers were so actuated they would not render themselves so liable unless the common purpose was malicious. This point is then still unsettled and since it is not merely an academic hypothesis, but one very likely to arise in practice, it demonstrates the insufficiency of the test. In Veitch s Case, Lord Simon adopted a passage from the judgment of Phillimore J. in Boots V. Grundy,12 where the learned judge said : If the combinution be to further their own prosperity, if it be constructive or destructive only as a means to being constructive, it is otherwise (k, it is not actionable). When the result of an action depends on distinguishing between an act which is purely destructive and one which is destructive as a means to being constructive, we are driven to conclude that the civil law of conspiracy has slipped into casuistry. A final and curious matter is the extent to which this view of the tort of conspiracy impinges on the criminal law. The definition in Veitch s Case forces us to conclude that if, in the case of the Mayor,of Bradford v. Mr. Pickles had been unlucky enough to associate himself in his enterprise with a neighbouring landowner or presumably even with an assistant, he would have been liable for the tort of conspiracy under the present view of it. 9 Professor D. J. Lleivelfryn Davics in 49 L.Q.R [1919] 1 ILB Vide note by Professor D. J. LI. Davics in 49 L.Q.R. 32G. 12 (1900) 82 L.T. at p [1895] A.C. 587.

5 ArniL 1982 THE TORT OF CONSPIRACY 218 Presumably then he would also incur criminal liability for the crime of conspiracy, for it has always been assumed that the two go hand in hand. And here we come face to face with the curse of legal reasoning -the vicious circle. We are told that we have the tort of conspiracy in a combinition to injure, though the act may be lawful if done by one. But a combination to do a lawful act could'not be the crime of conspiracy. Presumably it now may be the crime since the definition of the tort now will make the carrying out of the combination unlawful, if its predominant purpose is to injure another. This means that the broadening of the tort has also broadened the crime. And yet we are told that the tort depends upon the crime. This can be seen in the definition of the tort given in Jenks' Digest of the Civil Law :'' If two or more persons enter into a criminal conspiracy with the design of causing harm to another person and harm is directly caused by such conspiracy to such person, such person will have an action for damages, etc." Does the crime make the tort, or the tort make the crime, or are they quite independent? The only way of cutting the knot would seem to be to declare that since Veitch's Case the historical dependence of the tort upon the crime is at an end. In conclusion it is submitted that the existence of the tort of conspiracy is not a valuable addition to the scope of the English law of tort. Where there is a combination to do an act in itself unlawful, then an adequate remedy already exists. Where the combination is to do an act not in itself unlawful, then the present sweeping principle based on the most unsatisfactory of all tests would seem to be a needless extension of the law. The extreme paucity of successful actions for conspiracy indicates this, for, as has already been suggested, many cases, commonly quoted as cases of conspiracy, were or could have been decided under the heading of other torts. G. J. HUGHES." 14 Jcnks, English Cioil Law, 4th ed., p Assistant Lecturer in Law at University Collcgo, Hull. VOL