Conspiracy
Scope of Conspiracy
The scope of the tort of conspiracy in Ireland is not fully clear. At common law, an agreement or combination by two or more persons to do something to the detriment of a third party constituted the tort of conspiracy. This is the case, notwithstanding that doing the same act or thing by a single person would not be tortious.
The justification for imposing civil liability is based on the notion that a combination of persons for the purpose of doing harm is more objectionable and potentially harmful than if the same acts are undertaken by an individual.
There is a defence where acts are undertaken for legitimate purposes. This may allow the court to determine questions of legitimacy. This has been criticised as something more appropriately defined by the legislature.
Two Types
A conspiracy is an agreement by one or two parties to do an unlawful act or to do a lawful act by an unlawful means. Damage or harm is required for civil liability.
There are two types of civil conspiracy. One type does not involve an unlawful act. This is a so-called simple conspiracy. The other type is known as unlawful means conspiracy.
In the case of lawful means conspiracy, the primary or predominant objective must be to injure or cause damage to another. In the case of unlawful means conspiracy, an agreement by one or more persons to carry out something lawful in itself by unlawful means is actionable.
Simple Conspiracy
Where two or more persons combine with the predominant intent of damaging someone else’s economic interest without justification, there may be a so-called “simple” conspiracy. There must be a predominant purpose of damaging the economic interest of another without justification.
The predominant purpose must be to damage the economic interests of the claimant or of another without justification. If the parties have another objective or intention, liability does not arise. If, for example, their objective is to advance their own interests and objectives, the requisite predominant intention may not be present.
If the real purpose is to advance their own interests, no civil wrong is committed, even though damage and loss may ensue to third parties. In the latter case, there is justification.
Unlawful Means Conspiracy
Unlawful means conspiracy typically involves two or more persons combining to engage in an unlawful act that is a crime, a civil wrong or a breach of constitutional rights. In the UK, the highest court has decided that a conspiracy by unlawful means also requires that the predominant intention must be to damage the interests of a third party.
The highest court in Ireland has decided that a combination to use unlawful means to achieve an aim is a civil wrong, irrespective of the predominant motive.
The unlawful means may be a breach of contract or procuring the breach of contract. It may be a crime, tort/civil wrong or breach of constitutional rights.
No defence of justification exists.
Persons Concerned
The persons concerned may be a company or an individual. It appears that a company may conspire with its directors or even the principal or controlling director. There may be an actionable conspiracy between two companies.
Husbands and wives were a single person at common law for many purposes. For this reason, their joint actions did not constitute a conspiracy.
However, the English courts have reversed this historical position in accordance with modern values and mores. It is likely that the Irish courts would follow suit.
Differing & Developing Approaches
In a famous case in 1981, the House of Lords decided that the tort of “unlawful means” required a predominant intention to injure the claimant’s interest. This appeared to equate the test of unlawful means conspiracy with lawful means conspiracy. The court indicated that it did not wish to extend the scope of an already anomalous tort beyond narrow limits.
However, later cases in England and the Irish Supreme Court have not followed this approach. It has held that where there was a combination to use unlawful means to achieve a particular aim, there was an actionable conspiracy if there is an intention to injure, even if this is not a predominant purpose. The unlawful means may be a breach of contract or tort (civil wrong).
The English courts have refused to categorise criminal offences as unlawful for the purpose of the tort of causing loss by unlawful means. However, they have held that it will constitute unlawful means for the purpose of unlawful means conspiracy. This is likely to be the correct view.
Required Intention
Liability for causing loss by conspiracy requires an intention to cause loss. See above as to the requirement for predominant intention. It is not enough that loss is foreseeable. Liability for negligence may arise in particular cases in accordance with the general principles of the law of negligence.
The fact that the respondent’s conduct may, or is even likely to cause, loss does not constitute intention for this purpose. The infliction of loss may be intended, in the current sense, without necessarily being desired. Liability arises for the deliberate imposition of loss.
The desire may be to further another objective or the respondent’s self-interest without a desire to inflict loss or harm. However, the respondent is liable where the loss is the known but undesired result of his actions.
Where the defendant’s gain and the claimant’s loss are inseparably linked, and the defendant knows that he cannot gain without causing the respondent loss, the requisite element has been held to exist. He might prefer that the respondent was not standing in his way, but where he intentionally causes loss in order to achieve his own objectives, liability arises.
Unlawful Means I
The nature of the unlawful means required is not fully settled. The unlawful nature of means may range from conduct constituting a criminal offence to breaches of statutory, contractual or equitable obligations. Recent cases have suggested that a narrower approach may prevail, although the position is not wholly consistent.
The House of Lords, in 2008, considered that the tort requires wrongful interference with a third party’s actions, in which the claimant has an economic interest and an intention to thereby cause loss. In this view, the unlawful means may consist of causing loss and damage by interfering with another person’s freedom of action in breach of contract with that other person.
The House of Lords took the view that actions against the third-party count as unlawful means, where they are actionable by that third party only. They remain unlawful where there is no actual loss suffered but there is a technical breach of contract. The threat must be to do something which would have been actionable if the third party had suffered loss.
Unlawful means include acts which are intended to cause loss to the claimant by interfering with the freedom of a third party, in a way which is unlawful as against the third party. It does not include acts which may be unlawful against the third party but do not affect his freedom to deal with the claimant.
Unlawful Means II
Other judges have taken a wider view, which encompasses all unlawful actions, including common law tort, statutory torts, breach of contract, breach of trust equitable obligations and breach of confidence. In Ireland, the issue has arisen in the context of industrial disputes. The cases have raised issues of constitutional rights, which the courts have been more willing to characterise as actionable, even where there is no traditional civil wrong supporting them.
Breach of another’s Constitutional rights suffices, at least where a State sector respondent is involved, as a basis for liability for unlawful means conspiracy. The extent to which constitutional rights may be invoked against private non-State entities is limited and evolving. The courts, in some cases, have held that there must be a relief or remedy where a constitutional right is breached. The issue has arisen in the context of the right to a livelihood.
The tort, may if it is broadened, may overlap with the tort of inducement of breach of contract. If the tortious means is constituted by a breach of contract, then less direct procurement than required by the tort of inducement would become tortious.
Competition and Industrial Relations
Many instances of conspiracy have arisen in the context of competition and industrial relations. The view has been expressed that the courts are not an appropriate forum for the resolution of such disputes. Under this view, the subject matter is better dealt with under competition law and industrial relations processes and machinery.
In an infamous Irish case involving an all-out strike, Talbot Ireland v ATGWU, the Supreme Court appeared willing to restrain an embargo which caused breaches of contract between the target company and third parties. It held defendant’s knowledge of the existence of a range of contracts between the claimant, and others was a sufficient basis for liability where it had chosen to extend industrial action such that it induced breaches of contracts to the third parties.
The case suggests a wider basis of liability. However, the case was not formally reported, and there is no written judgment. It is not clear whether it can be relied on as authority for a more general and wider concept of indirect inducement or breach of contract by unlawful means.