Inducing breach of contract: One tort or two?

Cambridge Law Journal

Volumn 63, Issue 1, 2004, Pages 132-165

  Simester, A P ^a   Chan, Winnie ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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EID: 85010131351     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197304006531     Document Type: Article

References (184)

1. Lumley v. Gye (1853) 2 E. & B. 216, 118 E.R. 749
2. confirmed in Allen v. Flood [1898] A.C. 1.
3. Cf. Lumley v. Wagner (1852) 1 De G. M. & G. 604, 42 E.R. 687.
4. See, e.g., D. Howarth, Textbook on Tort (London 1995), 484 (“Lumley v. Gye was wrongly decided”)
5. Dan D. Dobbs, “Tortious Interference with Contractual Relationships” (1980) 34 Ark. L. Rev. 335, 345 (lamenting “the complete absence of any principle that will explain to us what judgments to make and why it is that liability sometimes is and sometimes is not imposed”)
6. Lyn L. Stevens, “Interference with Economic Relations—Some Aspects of the Turmoil in the Intentional Torts” (1974) 12 Osgoode Hall L.J. 595, 595 (“illogical and piecemeal”).
7. Economic Torts (Oxford 1997), 28.
8. (1853) 2 E. & B. 216, 118 E.R. 749. C, a prominent soprano, had agreed with P (an opera impresario) to sing exclusively at Her Majesty's Theatre. D, a rival impresario, was alleged, knowing of C's obligation to P, to have persuaded C to sing instead at the Royal Italian Opera. On the point of law that arose from P's allegation, the Queen's Bench held that on such facts D would have committed a tort against P. (As it happens, the alleged facts were not later established at trial.)
9. A valuable discussion of the case in its historical context is S.M. Waddams, “Johanna Wagner and the Rival Opera Houses” (2001) 117 L.Q.R. 431.
10. Although a number of the judgments in Lumley v. Gye described C as a “servant”, by the end of the nineteenth century it was become clear that the tort extended to protect other forms of contract, ones not for employment or personal services. See Bowen v. Hall (1881) 6 Q.B.D. 333
11. Temperton v. Russell [1893] 1 Q.B. 715
12. C. Carpenter, “Interference with Contract Relations” (1928) 41 Harv. L.R. 728.
13. In particular, the distinction between persuasion or inducement and advice. We shall say a little more about this distinction infra, at p. 160.
14. Or at least an inadequate choice, as when D hinders performance without making it entirely impossible: cf. Dimbleby & Sons Ltd. v. NUJ [1984] 1 W.L.R. 67 (C.A.)
15. not discussed on this point by the House of Lords [1984] 1 W.L.R. 427.
16. Boulting v. Association of Cinematograph, Television and Allied Technicians [1963] 2 Q.B. 606, 639–640 (Upjohn L.J.)
17. Williams v. Hursey (1959) 103 C.L.R. 30, 77
18. Brekkes v. Cattel [1972] 1 Ch. 105, 114 (Pennycuick V.-C.).
19. Cf. Camden Exhibition & Display Ltd. v. Lynott [1966] 1 Q.B. 555, 569 (Russell L.J.).
20. Cf. Boulting v. Association of Cinematograph, Television and Allied Technicians [1963] 2 Q.B. 606, 639–640: C “must resist [D's] effort by strength of will”.
21. Allen v. Flood [1898] A.C. 1, 120–121 (Lord Herschell)
22. cf. Stratford v. Lindley [1965] A.C. 269, 340 (Lord Donovan).
23. See, e.g., De Francesco v. Burnum (1890) 43 Ch. D. 165, (1890) 45 Ch. D. 430
24. Joe Lee Ltd. v. Dalmeny [1927] 1 Ch. 300
25. Greig v. Insole [1978] 3 All E.R. 449.
26. McManus v. Bowes [1938] 1 K.B. 98, 127 (Slesser L.J.)
27. Cutsforth v. Mansfield Inns [1986] 1 W.L.R. 588, 563
28. D.C. Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 702 (Morris L.J.)
29. Denaby and Cadeby Main Collieries Ltd. v. Yorkshire Miners' Association [1906] A.C. 384, 406
30. Associated British Ports v. TGWU [1989] 1 W.L.R. 939, 970 (Stuart-Smith L.J.)
31. White v. Riley [1921] 1 Ch. 1, 15, 26, 32.
32. Midland Cold Storage Ltd. v. Steer [1972] Ch. 630, 644–645
33. McKernan v. Fraser (1931) 46 C.L.R. 343.
34. Weir, above note 4, at p. 36 n. 44.
35. [1969] 2 Ch. 106 (C.A.).
36. (C.A.)., at p. 138.
37. (C.A.). (italics omitted).
38. Thus the contract contained “an exception from liability for non-performance rather than an exception from obligation to perform” (per Russell L.J., (C.A.), at p. 143) and C was, in law, in breach of contract albeit that P could not sue. Second, the means used by D to prevent C from performing were in any event unlawful, since they involved procuring C's drivers to break their contracts of employment.
39. Lord Denning accepted a requirement of unlawfulness only where the intervention was indirect: “Indirect interference will not do…. Indirect interference is only unlawful if unlawful means are used”. ((C.A.), at p. 138; italics in original.) We criticise the distinction between direct and indirect inteference below, at pp. 161ff.
40. Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 680 (Evershed M.R.)
41. Torquay Hotel Co. Ltd. v. Cousins [1969] 2 Ch. 106, 138 (Lord Denning M.R.).
42. Per Evershed M.R. in Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 680, “it seems to me that the intervener, assuming in all cases that he knows of the contract and acts with the aim and object of procuring its breach to the damage of B, one of the contracting parties, will be liable … if he intervenes by the commission of some act wrongful in itself so as to prevent A from in fact performing his contract…”. Note that this proposition is subject to qualification, in that the unlawful means used by D must be a wrong against P; it is not enough that D's act is merely unlawful for some incidental reason.
43. See the discussion infra, at p. 146
44. Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) [1982] A.C. 173.
45. [1983] 2 A.C. 570, 608–609 (quoting with approval Lord Denning's statement of the principle reproduced above, text at n. 22).
46. Cf. Law Debenture Trust Corp. v. Ural Caspian Oil Corp. Ltd. [1995] Ch. 152, 167 (Beldam L.J.): “it is an actionable tort knowingly to interfere with another's right to performance of a contractual obligation by preventing or hindering the other party from performing his obligations under the contract”.
47. But compare, from the same judgment, infra n. 29. See too D.C. Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 694–695 (Jenkins L.J.), allowing that there would be liability where D “does an act which, if done by one of the parties to it, would have been a breach”.
48. Prima facie, this asserts no requirement for unlawfulness independent of the contract, but Jenkins L.J. continues: “[o]f this type of interference the case of G.W.K. Ld. v. Dunlop Rubber Co. Ld. 42 T.L.R. 376 affords a striking example”. That case, the facts of which form the basis of our paradigm Case 2, clearly involved intervention by an unlawful act.
49. Although Lord Diplock cited the judgment of Jenkins L.J. in D.C. Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, Jenkins L.J. never contemplated interference falling short of a breach. Moreover, his Lordship relied on the fact that Parliament had, in the then Trade Union and Labour Relations Act 1974, s. 13(1), granted certain immunities from liability for the tort of interference with contract, as evidence that the tort did exist at common law. But that provision was broadly drafted in case of future developments in tort law, not on the basis that such a tort then existed
50. (cf. Rookes v. Barnard [1964] A.C. 1129, 1177 per Lord Reid).
51. E.g., Law Debenture Trust Corp. v. Ural Caspian Oil Corp. Ltd. [1993] 1 W.L.R. 138, 151 (Hoffmann L.J.), where Lord Denning's proposal is regarded as “debatable”.
52. The decision was reversed on other grounds ([1995] Ch. 152, C.A.), where Beldam L.J. remarked (at 170) that “I am not persuaded that an act, otherwise lawful but which to the knowledge of the person doing it might prevent a third party from seeking equitable relief against breach of a primary obligation under a contract, is in itself capable of giving rise to a cause of action in tort”. Cf. also Middlebrook Mushrooms Ltd. v. TGWU [1993] I.C.R. 612, 620 (Neill L.J.).
53. See, e.g., K.W. Wedderburn, The Worker and the Law (3rd edn., Harmondsworth 1986), 611–617
54. Howarth, above note 3, at p. 484
55. Weir, above note 4, at pp. 36–39
56. B. Markesinis and S. Deakin, Tort Law (4th edn., Oxford 1999), 476–477
57. W.V.H. Rogers (ed.), Winfield and Jolowicz on Tort (15th edn., 1998) 631–632.
58. [1952] Ch. 646, 693.
59. For example, News Group Newspapers v. SOGAT (No. 2) [1987] I.C.R. 181
60. Falconer v. ASLEF [1986] I.R.L.R. 331
61. Dimbleby & Sons Ltd. v. NUJ [1984] 1 W.L.R. 427 (H.L.).
62. [1898] A.C. 1, 121 (Lord Herschell).
63. Cf. The Nadezhda Krupskaya [1997] 2 Lloyd's L.R. 35, 40 (Rix J.)
64. also F.B. Sayre, “Inducing Breach of Contract” (1923) 36 Harv. L.R. 663, 696ff.
65. A distinction to which we return, below, at p. 161.
66. Merkur Island, News Group Newspapers v. SOGAT [1987] I.C.R. 181
67. Falconer v. ASLEF [1986] I.R.L.R. 331 (but see n. 97 infra).
68. E.g., D.C. Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 697 (Jenkins L.J.)
69. Torquay Hotel Co. Ltd. v. Cousins [1969] 2 Ch. 106, 138 (Lord Denning M.R.). By “acts with the intent to harm P”, we mean that D must be acting deliberately in order to harm P (either for its own sake or in order to achieve some further purpose of D's)
70. the injury to P, even if foreseen, must be more than a mere side-effect of D's actions—it must be something that D has sought to bring about. See further infra, n. 89 and text thereat.
71. See, e.g., Emerald Construction v. Lowthian [1966] 1 W.L.R. 691, 700–701 (Lord Denning M.R.)
72. but see infra, n. 92.
73. Below, at pp. 154ff.
74. Above note 4, at p. 2.
75. Cf. J.S. Mill's stricture for state action in On Liberty (1859) ch. 1: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”.
76. The explanation of these torts is more complex: liability may, for example, mandate that D assumes the risk his conduct creates (cf. Rylands v. Fletcher (1868) L.R. 3 H.L. 330). We cannot explore these varieties of torts here.
77. Related examples are discussed by J. Gardner and S.C. Shute, “The Wrongness of Rape” in J. Horder (ed.), Oxford Essays in Jurisprudence (4th series, Oxford 2000), 193, 201
78. A.P. Simester and A. von Hirsch, “Rethinking the Offense Principle” (2002) 8 Legal Theory 269, 282.
79. A useful survey can be found in Stephen A. Smith, “Towards a Theory of Contract” in J. Horder (ed.), Oxford Essays in Jurisprudence (Fourth Series, Oxford 2000), 107.
80. J. Raz, “Promises in Morality and Law” (1982) 95 Harv. L.R. 916, 937.
81. The objection is explored more fully by Smith, Oxford Essays in Jurisprudence. 44, at pp. 109ff.
82. Cf. such well-known cases as Felthouse v. Bindley (1862) 11 C.B. (N.S.) 859, 142 E.R. 1037.
83. See, e.g., the work of Patrick Atiyah, The Rise and Fall of Freedom of Contract (Oxford 1979)
84. Promises, Morals and Law (Oxford 1981)
85. “Contract, Promises and the Law of Obligations” in his Essays on Contract (Oxford 1986) 10.
86. See also J. Danforth, “Tortious Interference with Contract: A Reassertion of Society's Interest in Commercial Stability and Contractual Integrity” (1981) 81 Col. L.R. 1491, 1511ff. This is not to deny that non-fulfilment of a contractual promise may harm P, or that inducing breach of contract should protect against this harm; but the harm is parasitic.
87. See J. Coleman, Risks and Wrongs (Cambridge 1992), 350–354.
88. Weir, “Chaos or Cosmos? Rookes, Stratford and the Economic Torts” [1964] C.L.J. 225, 226
89. it is “tortious intentionally to damage another by means of an act which the actor was not at liberty to commit”. Cf. Weir, above note 4, at p. 28.
90. “It is, however, not every ‘unlawful’ act or means which allows for an action in tort, even if damage is intended and caused”. Clerk and Lindsell on Torts (18th edn., 2000)§ 24–91.
91. For example, it appears that contempt of court does not count as unlawful means: Chapman v. Honig [1963] 2 Q.B. 502
92. approved in Harrow LBC v. Johnston [1997] 1 W.L.R. 459, 471 (Lord Hoffman)
93. contrast Acrow (Automation) Ltd. v. Rex Chainbelt Inc. [1971] 3 All E.R. 1175.
94. See H. Carty, “Intentional Violation of Economic Interests: The Limits of Common Law Liability” (1988) 104 L.Q.R. 250, 265ff.
95. Cf. Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) [1982] A.C. 173.
96. [1898] A.C. 1.
97. Notwithstanding that it is a tort intentionally to inflict physical harm to the plaintiff, cf. Wilkinson v. Downton [1897] 2 Q.B. 57, 58–59. The division extends to negligence: “The infliction of physical injury to the person or property of another universally requires to be justified.
98. The causing of economic loss does not”. Murphy v. Brentwood DC [1991] 1 A.C. 398, 487 (Lord Oliver).
99. As Weir argues, above note 4, at pp. 21ff.
100. Above note 4, at p. 35.
101. Neither, it seems, is this true of tort law more generally. See, e.g., Rookes v. Barnard [1964] A.C. 1129, 1209–1210 (Lord Devlin)
102. Associated British Ports v. TGWU [1989] 1 W.L.R. 939
103. (C.A.; reversed on other grounds, Associated British Ports., H.L.), and Barretts and Baird (Wholesale) Ltd. v. IPCS [1987] I.R.L.R. 3, 9, where it is suggested that what constitutes an unlawful means may differ across different economic torts.
104. “Inducing Breach of Contract” in J. Horder (ed.), Oxford Essays in Jurisprudence (Fourth Series, Oxford 2000), 131, 137.
105. An account that is not without precedent: see, e.g., F. Pollock, The Law of Torts (London 1887) 451
106. W. Anson, Principles of the English Law of Contract (10th edn., Oxford 1903) 242.
107. See also R. Epstein, “Inducement of Breach of Contract as a Problem of Ostensible Ownership” (1987) 16 J. Leg. Stud. 1.
108. Above note 65, at pp. 146–148.
109. A point seen by Bagshaw: “Inducement of Breach of Contract as a Problem of Ostensible Ownership”., at pp. 137–138. Indeed, a similar objection might be made to the claim that P has a right to C's existing capacity to perform. Prima facie, such a right could generate a positive obligation of maintenance in strangers, e.g., to repair diminutions in C's capacity to perform.
110. “Intention in Tort Law” in D.G. Owen (ed.), Philosophical Foundations of Tort Law (Oxford 1995) 229, 239.
111. It is no accident that one of the film versions of Choderlos de Laclos's book, Les Liaisons Dangereuses, is entitled Cruel Intentions.
112. Cf. G. Lamond, “Coercion, Threats, and the Puzzle of Blackmail” in A.P. Simester and A.T.H. Smith (eds.), Harm and Culpability (Oxford 1996) 215. Lamond points out that a key difference between a blackmailing threat and an offer or a warning lies in the intentions of the person who delivers it.
113. Thus advice that warns a person of the consequences is not persuasion: Cutsforth v. Mansfield Inns Ltd. [1986] 1 W.L.R. 558, 563 (Sir Neil Lawson).
114. Neither is it a threat or intimidation: White v. Riley [1921] 1 Ch. 1, 13 (Lord Sterndale M.R.).
115. J. Raz, “Promises and Obligations”, in P.M.S. Hacker and J. Raz (eds.), Law, Morality and Society (Oxford 1977) 210, 227–228.
116. Cf. Raz, “Promises in Morality and Law” (1982) 95 Harv. L.R. 916, 928: “The moral presuppositions of this conception of promising are the desirability of special bonds between people and the desirability of special relations that are voluntarily shaped and developed by the choice of participants”.
117. Above note. 4, at p. 34 (italics in original).
118. “Promises in Morality and Law”., at p. 35.
119. Cf. P. Sales, “The Tort of Conspiracy and Civil Secondary Liability” [1990] C.L.J. 491, esp. 502ff
120. D.J. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford 1999), 180 (noting that forms of civil secondary liability appear to have been founded upon analogies to the criminal law).
121. Lubenham Fidelities and Investments Co. Ltd. v. S Pembrokeshire DC (1986) 33 B.L.R. 39, 73–76 (C.A.).
122. Merkur Island Shipping Corp. v. Laughton [1983] 2 A.C. 570, 608 (Lord Diplock)
123. Middlebrook Mushrooms Ltd. v. TGWU [1993] I.C.R. 612, 621 (Neill L.J.).
124. Sometimes, knowledge of the contract will be imputed, especially in interlocutory hearings. But this appears to be an evidential rather than a substantive step, not being one that introduces liability for inadvertent acts of inducement: thus “a third party may be deemed to know of the almost certain existence of a contract and indeed of some of its likely terms” (Middlebrook Mushrooms Ltd. v. TGWU [1993] I.C.R. 612, 621 per Neill L.J.), this is really a matter of inference (cf. Stratford v. Lindley [1965] A.C. 269, 324: “reasonable to infer” per Lord Reid) from circumstances where anyone in D's position would have known of the existence of the relevant contracts; typically, where D is an experienced trade union official who is familiar with the workings of his industry
125. (cf. Merkur Island Shipping Corp. v. Laughton [1983] 2 A.C. 570, 608, per Lord Diplock).
126. See, e.g., D.C. Thomson & Co. Ltd. v. Deakin [1952] 1 Ch. 646, 695 (Jenkins L.J.): “with knowledge of the contract and the intention of bringing about its breach”;
127. Rookes v. Barnard [1964] A.C. 1129, 1212 (Lord Devlin).
128. Tort Law (4th edn.), 471–472.
129. Side-effects are those outcomes that, whether or not foreseen by D, did not motivate him to act as he did. See Finnis, Tort Law. 69, at pp. 229ff
130. Finnis, “Intention and side-effects” in R.G. Frey and C.W. Morris (eds.), Liability and Responsibility (Cambridge 1991) 32
131. A.P. Simester and Winnie Chan, “Intention Thus Far” [1997] Crim. L.R. 704.
132. (1853) 2 E. & B. 216, 118 E.R. 749.
133. [1966] 1 W.L.R. 691, 701.
134. Cf. J.G. Fleming, The Law of Torts (9th edn., Sydney 1998), 762: in the context of inducing a breach of contract, “[i]ndifference is equated with intent”.
135. Above note 65, at p. 142. Wedderburn also suggests that recklessness is sufficient: A.M. Dugdale (gen. ed.), Clerk and Lindsell on Torts (18th edn., London 2000), § 24–20.
136. But the case that both Bagshaw (at 141 n. 31) and Wedderburn (at n. 14) cite in support of that conclusion does not, in fact, do so. Emerald Construction Co. Ltd. v. Lowthian [1966] 1 W.L.R. 691 is a case where D sought (that is, intended) termination, by breach if necessary.
137. It is thus a case of conditional intention to procure a breach, not one of recklessness. The judgment of Diplock L.J. makes this clear (at 704): “ignorance of the precise terms of the contract is not enough to show absence of intent to procure its breach. The element of intent needed to constitute the tort of unlawful procurement of a breach of contract is, in my view, sufficiently established if it be proved that the defendants intended the party procured to bring the contract to an end by breach of it if there were no way of bringing it to an end lawfully. A defendant who acts with such intent runs the risk that if the contract is broken as a result of the party acting in the manner in which he is procured to act by the defendant, the defendant will be liable in damages to the other party to the contract”. Compare Rickless v. United Artists [1986] F.S.R. 502 (in particular, the final paragraph from the unreported portion of the judgment by Hobhouse J.).
138. Millar v. Bassey [1994] E.M.L.R. 44, 64 (Peter Gibson L.J.).
139. Compare K.W. Wedderburn, “Inducing Breach of Contract and Unlawful Interference with Trade”(1968) 31 M.L.R. 440, 445: “the flood of liability would engulf not only trade union officials but also the most innocent, competitive, profit-seeking trader”.
140. E.g., Weir, above note 4, at p. 13.
141. As Beldam L.J. pointed out in Millar v. Bassey [1994] E.M.L.R. 44, 51, “[i]t was not alleged … in Lumley v. Gye that the defendant Gye had any intention to cause harm to the plaintiff beyond an intention that Miss Wagner should break her contract with him”.
142. See also Edwin Hill & Partners v. First National Finance Corp. [1989] 1 W.L.R. 225, 234 (Stuart-Smith L.J.)
143. citing Smithies v. National Association of Operative Plasterers [1909] 1 K.B. 310, 316
144. South Wales Miners' Federation v. Glamorgan Coal Co. [1905] A.C. 239, 244 (Earl of Halsbury L.C.), 246 (Lord Macnaghten). Of course, whether or not intended, actual loss will be required for P to be awarded damages.
145. Cf. Quinn v. Leathem [1901] A.C. 495, 510 (Lord Macnaghten).
146. Both Falconer v. ASLEF [1986] I.R.L.R. 331
147. Millar v. Bassey [1994] E.M.L.R. 44 should be doubted for this reason.
148. R.A. Buckley and R. Heuston, Salmond and Heuston on the Law of Torts (21st edn., London 1996), 352
149. H. Carty, An Analysis of the Economic Torts (Oxford 2001), 47.
150. Cf. D.C. Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 686 (Evershed M.R.)
151. Middlebrook Mushrooms Ltd. v. TGWU [1993] I.C.R. 612, 626 (Hoffmann L.J.).
152. Cf. H.L.A. Hart and T. Honoré, Causation in the Law (2nd edn., Oxford 1985), 54.
153. Cf. Square Grip Reinforcement Co. Ltd. v. Macdonald [1968] S.L.T. 65, 73 (col. 2).
154. As Winn L.J. thought in Torquay Hotel v. Cousins [1969] 2 Ch. 106, 147.
155. So, too, Simonds J. in Camden Nominees Ltd. v. Forcey [1940] Ch. 352, 366: “[a]dvice which is intended to have persuasive effects is not distinguishable from inducement”.
156. Analogously, even a silent picket may, because of the intention of the picketers, be persuasion: Union Traffic Ltd. v. TGWU [1989] I.R.L.R. 127, C.A.
157. Cf. D.C. Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 686 (Evershed M.R.).
158. Cf. Board of Broadview School Unit No. 18 v. Saskatchewan Teachers Federation (1972) 32 D.L.R. (3d) 33
159. Long v. Smithson (1918) 88 L.J.K.B. 223.
160. See also CBS Songs v. Amstrad Consumer Electronics plc [1988] A.C. 1013, 1058 (Lord Templeman)
161. approved in Credit Lyonnais Bank Nederland v. Export Credits Guarantee Dept [2000] 1 A.C. 486, 499 (Lord Woolf M.R.).
162. D.C. Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 681–682 (Evershed M.R.), 694–697 (Jenkins L.J.)
163. Torquay Hotel Ltd. v. Cousins [1969] 2 Ch. 106, 138.
164. See D.C. Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 695–696, 702 (Jenkins L.J.)
165. also GWK Ltd. v. Dunlop Rubber Co. (1926) 42 T.L.R. 376.
166. Even by Lord Denning: Torquay Hotel v. Cousins [1969] 2 Ch. 106, 138: “[i]ndirect interference is only unlawful if unlawful means are used” (italics omitted)
167. D.C. Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 679–680 (Evershed M.R.), 696–698 (Jenkins L.J.).
168. See, e.g., D.C. Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 694, 702 (Jenkins L.J.)
169. Torquay Hotel v. Cousins [1969] 2 Ch. 106, 138 (Lord Denning).
170. N.J. McBride and R Bagshaw, Tort Law (London 2001), 333 (emphasis in original). The authors' claim that D will have induced a breach of contract is subject to the usual provisos about D's mental element and possible justifications.
171. See also J.D. Heydon, Economic Torts (2nd edn., London 1978), 29, 31.
172. [1898] A.C. 1; above notes 33, 57.
173. See also D.C. Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 693 (Evershed M.R.), quoted above in the text at n. 31. Or suppose that C has contracted to sell an asset to P. C is deeply in debt to D, who forces C into bankruptcy in order to prevent transfer of the asset.
174. Heydon (above note 110) cites Esso Petroleum Co. Ltd. v. Kingswood Motors (Addlestone) Ltd. [1974] 1 Q.B. 142 as authority that direct prevention can be a tort even when the means are lawful. But Esso v. Kingswood does not support his analysis, since in that case D (also a company) was the owner of C and the case is thus not accurately depicted as one of “prevention” by a third party.
175. Moreover, the means used were in any event identified by Bridge J. (at 155–156) as unlawful, since they constituted a civil conspiracy to induce a breach of contract.
176. Finnis, above note 69.
177. For an interesting study of the American experience and the issues it raises, see C. Witting, “Of Principle and Prima Facie Tort” (1999) 25 Monash U.L.R. 295.
178. See the text above at pp. 157–158.
179. As Weir argues: A Casebook on Tort (9th edn., London 2000), 606.
180. Bagshaw, A Casebook on Tort. 65, at p. 148; “the most obvious way of drawing [the direct/indirect distinction] is to ask whether the interference occurred through the acts or omissions or some human agent interposed between the defendant and the contract”. For alternative accounts, offered without normative underpinnings
181. see Greig v. Insole [1978] 1 W.L.R. 302, 334 (Slade J.)
182. Middlebrook Mushrooms Ltd. v. TGWU [1993] I.C.R. 612, 625 (Hoffmann L.J.).
183. Bagshaw, above note 65, at p. 148.
184. Contra Bagshaw, Middlebrook Mushrooms Ltd. v. TGWU.