Report No. 69
IV. Conspiracy as a Tort'
7.125. Civil liability.-
Conspiracy to injure is itself a tort, if certain conditions are satisfied.
In the law of torts, a conspiracy is "a combination of several persons against one, with a view to harming1 him"-to adopt the language of Bowen L.J. In criminal law the classical definition of conspiracy is that given by Willes J. in advising the House of Lords in Nulcaby v. R., (1863) 3 HL 306 (317): "A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means." This was with reference to criminal law. The civil right of action is not, however, complete unless the conspirators do acts in pursuance of their agreement to the damage of the plaintiffs.
The concept of civil conspiracy to injure has, in the main, been developed in the course of the last half a century, particularly since the great case of the Mogul Steamship Co. v. McGregor & Co. Its essential character is described by Lord Macnaghten in Quinn v. Leathen, basing himself on Lord Watson's words in Allen v. Flood: "a conspiracy to injure might give rise to civil liability even though the end were brought about by conduct and acts which by themselves and apart from the element of combination or concerted action could not be regarded as a legal wrong." In this sense, the conspiracy is the gist of the wrong, though damage is necessary to complete the cause of action.
1. Moghul Steam Shipping Co. v. McGregor, (1889) 23 Queens Bench Division 598 (617) (Bowen, LJ.).
7.126. Civil and criminal conspiracy.-
The identity between criminal and civil law in this regard is denied by Lord Porter in Crafter's case1though it has been later suggested by Lord Reid in his dissenting speech in the famous case of Shaw2. The difference between tortious and criminal conspiracy is that conspiracy giving rise to an action for damages, being an action on the case, must have been put into execution, and must have given rise to actual damage, whereas, in a criminal conspiracy, the agreement3, and not the execution of the agreement, is the gist of the indictment.
1. Crafter Handwoven Harris Twed v. Veitch, 1942 AC 435 (488) (HL).
2. Shaw v. D.P.P., 1962 AC 220 (HL).
3. Poulter's case, 9 Co Rep 55B, referred to by Lord Hailsham L.C. in Kamara v. D.P.P., (1973) 3 LR 198 (212).
Thus, so far as the tort of conspiracy is concerned, it occurs where there is an agreement between two defendants to effect an unlawful purpose which results in damage to the plaintiff. The tort was fully considered in Crafter's case1 where the following principles were laid down:-
(i) The tort covers acts which would be lawful if done by one person;
(ii) The combination will be justified if the predominant motive is self-interest or protection of one's trade rather than the injury of the plaintiff;
(iii) Damage to the plaintiff must be proved. There are statutory exceptions, particularly in legislation relating to Trade Disputes and Industrial Regulations, which need not be gone into for the present purpose.
1. Crafter Handwoven Harris Twed v. Veitch, 1942 AC 435.
Conspiracy as an offence, like libel, was developed by the Star Chamber, and when taken over by the Courts in the common law, came to be regarded by them not only as a crime, but also as capable of giving rise to civil liability1.
1. Friedman Mens rea in Conspiracy, (1956) 19 Modem Law Review 27.
7.129. The persons combining should have acted in order that the plaintiff should suffer damage1.
1. Para. 7.127(iii), supra.