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An Analysis of the Economic Torts (Hardcover, 2nd Revised edition)
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An Analysis of the Economic Torts (Hardcover, 2nd Revised edition)
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The economic torts for too long have been under-theorized and
under-explored by academics and the judiciary alike. In recent
years claimants have exploited the resulting chaos by attempting to
use the economic torts in ever more exotic ways. This second
edition of An Analysis of Econmic Torts, as before, attempts to
provide practical legal research to both explore the ingredients of
all these torts - both the general economic torts (inducing breach
of contract, the unlawful means tort, intimidation, the conspiracy
torts) and the misrepresentation economic torts (deceit, malicious
falsehood and passing off) - and their rationales. And, as before,
an optimum framework for these torts is suggested.
However that framework has to take on board the apparent tension
within the House of Lords as revealed in the recent decisions in
OBG v Allan and Total Network v Revenue. Over 100 years ago the
House of Lords in the seminal decision of Allen v Flood in theory
set the agenda for the modern development of the economic torts.
The majority in that case adopted an abstentionist approach to
liability for intentionally inflicted economic harm, so that even
where intentional and unjustified economic harm was inflicted,
liability would not necessarily follow. However, this clear
framework for the torts was obscured by subsequent case law,
leaving the economic torts in a hopeless muddle by the start of the
twenty-first century. A chance to finally sort out this mess was
presented to the House of Lords in 2007 in the shape of three
conjoined appeals, reported under the name OBG v Allan. The thrust
of the judgments was that a framework for the economic torts was to
be established and dicta and decisions that caused problems and
incoherence were to be named and shamed. Re-affirming the
abstentionist philosophy of Allen v Flood Lord Hoffmann and
Nicholls and Baroness Hale in part relied upon the first edition of
An Analysis of the Economic Torts, Lord Hoffmann noting ..". if
what I have said does anything to clarify what has been described
as an extremely obscure branch of the law, much is owing to Hazel
Carty's book An Analysis of the Economic Torts ." However, within
10 months of the OBG decision, a differently constituted HL in
Total Network SL v Revenue & Customs Commissioners undermined
this nascent coherence and did so by focusing on the conspiracy
torts (previously dismissed by some commentators as anomalous or
superfluous). Distinguishing OBG (which did not as such analyse the
conspiracy torts) the House of Lords in Total Network may have
shifted the general economic torts from the abstentionist to the
interventionist track of development.
Thus it is suggested that conflicting agendas for general economic
liability can be discerned in the OBG and Total Network judgments.
These agendas are debated (against the background of the growing
academic debate) and a coherent approach suggested. As for the
misrepresentation torts their potential for development is also
discussed and the peril of allowing them to transform into unfair
trading or misappropriation torts is explained. As a result, the
second edition involves a substantial re-write of the first
edition. However, the thesis of the author remains that a coherent
framework for these torts can best be constructed based on a narrow
remit for the common law.
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