Date: Fri, 10 Aug 2007 09:27

From: Ken Oliphant

Subject: Millar v Bassey and OBG

I agree with you Jason. There's a lack of clarity on Hoffmann's analysis of this point. The scheme desired end/chosen means of achieving desired end/foreseeable consequence misses out the whole class of events that are actually foreseen (not merely foreseeable) but not desired. In English criminal law, an intention can be "inferred" or "found" if the defendant foresaw a consequence as "virtually certain". Is this also true of the economic torts? Dunno, and Hoffmann certainly doesn't help. But see Lord Nicholls at [167], seeing the necessary intent where the defendant pursues "a course of conduct which he knows will, in the very nature of things, necessarily be injurious to the claimant".

Shameless self-publicity: there's analysis of these issues in my chapter on the Economic Torts in K. Oliphant (ed.) The Law of Torts (Butterworths LexisNexis 2007), out last month.

Re alternative explanations for Millar v Bassey, a first question to ask is whether the claim related to the accessory tort or the unlawful means tort, or both.

Under the accessory tort, the Tony Weir solution (prevention is not inducement), from his Economic Torts (1997), seems to be ruled out by OBG where the whole distinction between direct inducement and indirect influence is trashed, and a simple test of causation instated. Is there any other route by which liability could be denied? I suppose it may be possible to see the contract between the recording company and the musicians as frustrated by Ms Bassey's withdrawal. In which case there's no breach of contract to which she could be accessory.

But that still leaves the unlawful means tort. Following Rookes v Barnard, it's clear that breach of contract satisfies the requirement of unlawfulness, and we come back to the question of intention. But - perhaps an important point - the focal point of the intention here is the claimant's loss, not merely the breach of contract. Without going back to Millar v Bassey, I can't recall whether it was asked there whether Bassey knew for certain that the musicians would lose out financially. If not, that would dispose of the case even if one takes an expanded view of intention as encompassing knowledge of virtual certainty.

Just my tuppence ha'penny worth.

Ken

--On 09 August 2007 10:19 -0400 Jason Neyers wrote:

Dear Colleagues:

I am having difficulty figuring out why Lord Hoffmann in OBG considers the Bassey case to have been wrongly decided (at [43]). I can see the point he is making between consequences that are the end you are pursuing and consequences that are merely foreseeable; but the (presumed) facts in Bassey were that the breach was actually known by her to be inevitable. This seems to make the breach a necessary means to her end (whatever that was) and therefore is intentional on his definition.

Am I missing something?

I know that there might be other reasons why the case is wrong (i.e. she didn't procure the breach but merely caused it) but I don't see why it is wrong on the intention point.

----------------------
Ken Oliphant, CSET Reader in Tort, School of Law, University of Bristol, Wills Memorial Building, Queens Road, Bristol BS8 1RJ.

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