Lloyd's Maritime and Commercial Law Quarterly
UNRAVELLING CIVIL CONSPIRACY
Pey-Woan Lee *
This article seeks to understand civil conspiracy through the lens of its historical rationale. It identifies that purpose to be the protection of public interests, as the tort was originally fashioned as an extension of criminal conspiracy to counter serious social ills. For lawful means conspiracy, this rationale is exemplified by the requirement for improper or illegitimate motive, whilst “unlawful means” serves the same function in the context of unlawful means conspiracy. Counter-intuitively, understanding the tort in this way provides a means of restricting the tort and reigning in its “revolutionary” tendencies. Recognising the tort’s policy-based foundation would, it is submitted, compel judges to articulate the policy considerations influencing their decisions and confine liability to cases where public harm is palpable and significant. This analysis further reveals that the conventional category of “unlawful means conspiracy” in fact comprises two species of liabilities: the first comprises “true” conspiracies concerned with securing public interests, while the second is a class of joint liability imposed on those who combine with another to commit an actionable wrong.
I. INTRODUCTION
Civil conspiracy has always been a kind of rebel. Established by the House of Lords in Quinn v Leatham
1 (“Quinn”), the tort defies logic, as it makes unlawful that which is lawful if committed by an individual. Described as a “tort of megalomaniac pretensions”,2 it is a potentially far-reaching rule that imposes tortious liability whenever two or more persons act in concert for an improper motive. With its focus on the parties’ motive as a source of unlawfulness, the tort also stands in stark contradiction to the venerated principle of Allen v Flood
3 (“Allen”)—that it is no tort to commit a lawful act in bad faith. For those who viewed Allen as a misstep in the development of English law, this defiant stance of Quinn offered “great possibilities” that could lead to the revolutionary creation of a new tort of malice.4 Altough this revolutionary potential did not subsequently materialise and the tort waned in significance as labour activism receded, simple conspiracy survived as a
* Associate Professor of Law, Singapore Management University. I am grateful to Professor Donal Nolan, Professor Gary Chan, Associate Professor Tham Chee Ho and the anonymous referee for their helpful comments on earlier drafts. The usual caveat applies.
1. [1901] AC 495.
2. GJ Hughes, “The Tort of Conspiracy” (1952) 15 MLR 209, 211.
3. [1898] AC 1.
4. P Devlin, Samples of Lawmaking (Oxford University Press, Oxford, 1962), 13.
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