Roderick Bagshaw, ‘Lord Hoffmann and the Economic Torts’

In OBG Ltd v Allan the House of Lords re-organized the general economic torts. One of the two leading speeches was delivered by Lord Hoffmann, the other by Lord Nicholls. The new scheme for the general economic torts adopted by the Court, which I refer to as ‘Lord Hoffmann’s scheme’, separated the tort of procuring or inducing breach of contract from the tort of intentionally causing loss by unlawful means, and exterminated the misbegotten chimera of direct interference with contractual relations. The scope of the general economic torts is significant for a broad range of people because they impose liability where various techniques are resorted to by competitors seeking a larger share of the market, employees or suppliers seeking better terms or conditions, and protestors seeking influence, and consequently they restrict the liberty of competitors, employees, suppliers and protesters. Such restrictions can be beneficial in that they can provide welcome protection for the valuable expectations of individuals, businesses and other enterprises against disruption by unfair and egregious methods, such as the use of lies, threats, theft and violence against customers, suppliers or employees. But, equally, extensive restrictions might go too far in preventing interference with existing distributions of wealth and power, and restrictions of uncertain scope might discourage the cautious and responsible from competing or protesting. Lord Hoffmann has informally described the motivation behind his speech in OBG as being to confine the liabilities recognised in the leading cases within clear boundaries, so as to ensure that the general economic torts were not a ‘hazard to navigation’. And this description of his project resonates with recurring themes found elsewhere in his tort law jurisprudence: for instance, commitment to establishing predictability without showing disrespect for precedent, and a preference for a minimalist general common law, which can be supplemented by precise, specialised statutes. The primary purpose of this chapter is not to take issue with these underlying goals, still less to encourage either the Supreme Court or the legislature to strike out in a new direction. Instead this chapter has the more modest goal of illuminating some of the pressures that exist at the edge of the concepts that Lord Hoffmann’s scheme uses to confine liability, and the additional tension resulting from the House of Lords’ pronouncements on the conspiracy torts in the Total Network case. Such exegesis may be useful because there is no doubt that Lord Hoffmann’s speech immediately became the foundational document for modern understanding of the general economic torts. But my discussion of points of detail is also necessary groundwork in preparation for addressing the more general question whether Lord Hoffmann’s attractively simple and clear scheme has over-simplified the economic torts.

Bagshaw, Roderick, Lord Hoffmann and the Economic Torts (February 2015). PS Davies and J Pila (eds), The Jurisprudence of Lord Hoffmann (Oxford: Hart Publishing, 2015); Oxford Legal Studies Research Paper No 9/2015.

First posted 2015-03-04 07:53:57

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