Tortious conspiracy involves unlawful means conspiracy and lawful means conspiracy.
The first involves:
1. An agreement between at least two people, which could include an individual and a limited company.
2. At least one unlawful act.
3. Loss being caused to the Claimant.
The second involves:
1. An agreement between at least two people, which could include an individual and a limited company.
2. Acts being carried out with the predominant purpose of causing financial harm to the Claimant, even though such acts are not inherently unlawful, provided such acts are not aimed at protecting the legitimate financial interests of the Defendants.
3. Loss being caused to the Claimant.
Tortious conspiracy is a useful cause of action that is not particularly well known. This particularly applies to lawful means conspiracy, as one might understandably think that there is no cause of action where the acts complained of are not inherently unlawful.
This tort could apply to a wide range of circumstances. It may apply to acts that are otherwise defamatory and where defamation would not be a useful cause of action due to limitation or the restriction on when interim injunctions will be granted in defamation cases.
For example:
In Gulf Oil (Great Britain) Ltd v Page & ors [1987], P contracted to sell petrol to D for its filling stations. A dispute arose between P and D resulting in P ceasing to make deliveries to D. Scott J held that P was in breach of contract. P’s head office was in Cheltenham, but they also had a hospitality tent at Cheltenham racecourse at the Gold Cup meeting. D arranged for a light aircraft to fly over the racecourse towing a banner that stated ‘Gulf exposed in fundamental breach’.
P applied for an interlocutory injunction to prevent a similar event occurring on the day of the Gold Cup. P’s claim was conspiracy and not defamation. P’s application was refused at first instance, but on Appeal it was held that as the act (flying the banner) took place at a time when appeal from a judgment was pending and the relevant agreement had already been terminated, the defendants had no immediate interest of their own to protect. In the circumstances it was held that there was a high likelihood that the purpose of the display was to inflict the maximum possible damage on P by way of revenge.
The Court of Appeal therefore granted the interim injunction and held that the rule to be applied in defamation cases, namely that publication would not be restrained where pleas of justification or fair comment were raised, did not apply to an action based upon conspiracy to injure.
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