BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
London EC4A 1NL
B e f o r e :
| (1) MX1 LIMITED
(a company incorporated in Israel)
(2) SES S.A.
(a company incorporated in Luxembourg)
|- and -
Mr. Jonathan Cohen Q.C. (instructed by Kingsley Napley LLP) for the Defendant
Hearing date: 30 April 2018
Crown Copyright ©
Mr. Justice Marcus Smith:
(1) A continuation of the preservation order; and
(2) The provision of certain information and documents which – so the Claimants contended – they sought to obtain pursuant to the Court's power, where appropriate, to order "Norwich Pharmacal" relief.
(1) The Defendant indicated, at an early stage, that he was prepared to accede to the continuation of the preservation order. This aspect of the application was therefore not effective.
(2) During the course of the hearing, Mr. Lazarus, counsel for the Claimants, indicated that the Claimants were not minded to pursue the application for "Norwich Pharmacal" relief and that the application should to this extent be dismissed. The Claimants took this step, according to Mr. Lazarus' submissions, because:
(a) Of an acknowledgement by the Claimants that, if the Defendant's application succeeded, they would not be able to obtain "Norwich Pharmacal" relief.
(b) If, conversely, the Defendant's application failed, the Claimants would be able to seek and obtain, if so advised, the "Norwich Pharmacal" relief they sought in some other way.
(c) Of an undertaking expressed orally before me by counsel for the Defendant, Mr. Cohen, Q.C., that the Defendant would undertake not to publish or facilitate the publication of tweets harming the Claimants.
Provided that the Claimants would not be prejudiced in any future disclosure application by the dismissal of the present "Norwich Pharmacal" application (which point I formally note here), this was the course Mr. Lazarus invited me to take.
B. THE FACTS
"16. The Defendant cannot have known sufficient about the business of the Claimants and in particular the confidential matters set out in Schedule 3 hereto to post the Tweets without the assistance of senior current or former employees of [the First Claimant] (or RRM). Accordingly, some such persons must have acted in combination with the Defendant in relation to the publication of the Tweets.
17. The most likely such persons are or include one or more of three former employees of RRM/the First Claimant against whom the Claimant (and related parties) have been engaged in two sets of civil proceedings…since December 2016...".
Pausing there, the names of these former employees are then pleaded: nothing turns on their precise identity, and I shall refer to them as the "Former Employees". I shall refer to the litigation between them as the "Litigation". Paragraph 17 then provides the following particulars:
"(a) The Former Employees have a motive to seek to injure the Claimants in retaliation for being sued in the [Litigation];
(b) They have had access to almost all the information necessary to produce the Tweets...
(c) In the [Litigation] they have made general allegations of corruption by the First Claimant but with virtually none of the details that were included in the Tweets.
(d) The Twitter Account was set up and the first Tweet was posted (in January 2017) shortly after the [Litigation] commenced (in December 2016).
(e) No Tweets were posted on the Twitter Account between August and October 2017 when the parties to the [Litigation] were seeking to settle.
(f) No Tweets were posted on the Twitter Account between 7 January and 19 February 2018 during which period there was a mediation in relation to the [Litigation]…"
C. THE DEFENDANT'S APPLICATION
(1) First, it is said that the cause of action founded upon lawful means conspiracy is defectively pleaded in that no sufficient object is set out in the draft Amended Particulars of Claim.
(2) Secondly, it is said that if and to the extent the Claimants or either of them have suffered loss or damage as a result of the Conspiracy, the place of that loss or damage was not England. According to Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (the "Rome II Regulation") the applicable law was not English law. The applicable law identified by the Rome II Regulation did not – according to the Defendant – recognize the lawful means conspiracy pleaded by the Claimants as a cause of action.
(3) Thirdly, the Defendant contended that the unlawful means founding the unlawful means conspiracy cause of action had been defectively pleaded, in that no proper case had been articulated as to whether:
(a) The information in the Tweets was indeed confidential;
(b) The Defendant knew this.
D. IS THE LAWFUL MEANS CONSPIRACY PROPERLY PLEADED?
(1) First, an agreement or combination between two or more parties (the "combination").
(2) Secondly, the combination must be to effect an unlawful object.
(3) Thirdly, the combination must result in damage to the claimant.
(1) Often, in the case-law, the terms "purpose" or "motive" are used interchangeably with the term "object". Significantly, the formulation of Lords Simon and Cave, quoted in paragraph 21 above, avoids each of these terms, but exactly what was meant was considered in a number of passages in Crofter. In particular, Lord Simon said:
"On this question of what amounts to an actionable conspiracy "to injure" (I am assuming that damage results from it), I would first observe that some confusion may arise from the use of such words as "motive" and "intention". Lord Dunedin in Sorrell v. Smith appears to use the two words interchangeably. There is the further difficulty that, in some branches of the law, "intention" may be understood to cover results which may reasonably flow from what is deliberately done, on the principle that a man is to be treated as intending the reasonable consequence of his acts. Nothing of the sort appears to be involved here. It is much safer to use a word like "purpose" or "object". The question to be answered, in determining whether a combination to do an act which damages others is actionable, even if it would not be actionable by a single person, is not "did the combiners appreciate, or should they be treated as appreciating, that others would suffer from their action", but "what is the real reason why the combiners did it?" Or, as Lord Cave puts it, "what is the real purpose of the combination?" The test is not what is the natural result to the plaintiffs of such combined action, or what is the resulting damage which the defendants realize or should realize will follow, but what is in truth the object in the minds of the combiners when they acted as they did. It is not the consequence that matters, but the purpose…"
(2) This important passage highlights two points:
(a) The object, purpose or motive is, obviously, subjective, to be discerned from the minds of the parties to the combination. Inevitably, state of mind is a matter to be inferred from facts that can be established before a court.
(b) Whilst there is no presumption that a person intends the natural and probable results of his or her actions, in many cases a state of mind can be inferred from the natural and probable consequences of an act. In the case of lawful means conspiracy, it is necessary to be extremely careful about the drawing of such inferences. This is because the fact that (i) damage to another ensues as a result of the combination and (ii) is the natural and probable result of that combination is not of itself sufficient to make out the tort. If the object of the combination is not to injure another, but some other legitimate object, then no wrong is committed.
(3) Of course, a combination may have several objects. Indeed, where it is clear that the natural and probable consequence of the combination is injury to another, it may be hard to resist the inference that this was an object of the combination. However, this is not enough to establish the tort. Where there are several objects or purposes "liability must depend on ascertaining the predominant purpose. If the predominant purpose is to damage another person and damage results, that is tortious conspiracy. If the predominant purpose is the lawful protection or promotion of any lawful interests of the combiners (no illegal means being employed) it is not a tortious conspiracy even though it causes damage to another person".
(4) Self-evidently, a combination cannot have a state of mind. The relevant states of mind will be those of the two or more persons party to the combination. Whilst it may be that there is an identity of object amongst the parties, in that they all share the same object or purpose, that will not always be the case. It may be that a party to the combination lacks the purpose of the other parties. This may be because such a party has a different purpose or simply because such a party – because he or she lacks certain information – cannot be said to have as his or her object or purpose the effecting of an unlawful object. In such a case, that party commits no tort.
(5) It is an open question whether a party to the combination, who knows of and countenances the unlawful object of the other parties, can be said him- or herself to have an unlawful object in mind. The view of Clerk & Lindsell on Torts  is that this is sufficient. In my judgment, provided that party lacks another legitimate object, the inference that he or she is adopting the unlawful object of the others must be hard to resist.
(6) Whilst a combination cannot have a state of mind, it can have an object or a purpose. Whether that object or purpose is predominantly legitimate or predominantly unlawful must be gleaned from an assessment of the states of mind of the various parties to the combination.
"19. The sole or predominant purpose of the Conspiracy and accordingly the sole or predominant purpose of each of the conspirators including the Defendant is to injure the Claimants because the publication of the Tweets in the terms in which they were published cannot fulfil any other purpose.
20. In relation to the Defendant's sole or predominant purpose to injure the Claimants:
(a) His journalistic activities do not include any particular focus on corruption;
(b) Very little of the information in the Tweets has been disclosed in the [Litigation], so the Tweets cannot amount to legitimate reporting of that litigation or even of facts that have emerged in that litigation;
(c) The content and language used in the Tweets seeks to denigrate the Claimants; there is no attempt at journalistic objectivity;
(d) Certain of the Tweets contain no factual allegations or information but are merely innuendo…;
(e) The author of the Tweets purports to be an insider not a journalist or other external reporter;
(f) The Defendant cannot have been purporting to act in the public interest as there are many more appropriate and effective way to pursue that course, such as contacting the Second Claimant or regulators;
(g) The Defendant has concealed his involvement with the Twitter Account…;
(h) The Defendant has tagged or hash-tagged many of the Claimants' customers and agents…; the obvious purpose of this is to prejudice the Claimants' business relationships by bringing the Twitter Account to their attention;
(i) While the Tweets are largely expressed in the present tense, they often relate to historic matters that occurred while the Former Employees were employed by RRM/the First Claimant. Such distortion (a) tends to conceal the Former Employees' responsibility for the matters alleged and (b) tends to mislead the reader into thinking that the wrongdoing alleged is continuing.
21. The Claimants infer in the premises that in participating in the Conspiracy the Defendant's sole or predominant purpose is to assist the Former Employees whose sole or predominant purpose is to damage the Claimants in retaliation for being sued in the [Litigation]. In the premises, the Defendant shares their said sole or predominant purpose."
(1) Paragraph 19 derives the object or purpose of the parties to the combination from the purpose of the Conspiracy. That, as it seems to me, puts matters the wrong way round. The purpose of the combination can only be derived from the subjective states of minds of the parties to the Conspiracy. Pleading the case in the way they have has enabled the Claimants to avoid making any clear plea as to the state of mind of the Defendant and of the other alleged conspirators, namely the Former Employees.
(2) The opening words of paragraph 20 do not state sufficiently clearly to what point the particulars contained in sub-paragraphs 20(a) to (i) go. It is not apparent, on the face of the pleading, what these are particulars of. As to this:
(a) If it is being averred that the particulars are all particulars of the fact that the Defendant's object or purpose was to injure the Claimants, then I do not consider that the particulars are properly in support of that averment. With the possible exceptions of paragraphs 20(h) and 20(i), the particulars seem to me to be directed to an altogether different proposition, namely that the Defendant's object or purpose was not to report on matters in a journalistic way.
(b) If what is being averred is this negative proposition, then the opening words of paragraph 20 need to say so.
(3) Paragraph 21 is an extremely confused paragraph, deficient in a number of respects. More particularly:
(a) Paragraph 21 appears to contain an averment that the other parties to the combination – the Former Employees – had, as their sole or predominant purpose an unlawful purpose, namely that of damaging the Claimants in retaliation for being sued in the Litigation. No particulars are provided for this plea.
(b) Because of the difficulties in relation to paragraphs 19 and 20, it is not clear whether it is being asserted against the Defendant that his object or purpose was the unlawful one alleged in relation to the Former Employees. Paragraph 21, however, strongly suggests that this averment is not being made, because (as against the Defendant) it appears to plead only that the Defendant passively adopted this object, without actually holding it himself. It may be that such an averment is sufficient – see paragraph 23(5) above – but in order to be sufficient at the very least the Defendant's knowledge of and countenancing of the purpose of the other parties needs to be set out.
(4) The failure properly to set out the purposes of the parties to the Conspiracy means that there is no proper plea of the purpose or predominant purpose of the Conspiracy.
E. THE APPLICABLE LAW
"(1) Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
(2) However, where the person claimed to be liable and the person sustaining the damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.
(3) Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question."
"23. Unless restrained by the court, the Defendant will cause damage to the business of the Claimants in England and Wales and elsewhere by publishing or facilitating the publication of harmful tweets pursuant to the Conspiracy.
24. Further, unless the Defendant is ordered by the court to delete the Tweets, the Claimants will suffer damage to its business in the future by reason of the continued public existence of the Tweets.
25. By reason of the matters aforesaid, the Claimants have suffered loss and damage. The best particulars which the Claimants can currently give are that:
(a) The Claimants have incurred the costs of investigating the Conspiracy in approximately the sum of US$350,000 including costs of at least £100,000 incurred in England in respect of the services of Kroll and of the Claimants' lawyers which are not recoverable as part of the costs of this claim;
(b) The Claimants have also incurred additional costs investigating the allegations made in the Tweets."
"…I wish to state that the costs incurred in England alone by Kroll and by the Claimants' lawyers in uncovering [the Defendant's] tracks as the person behind the Twitter Account were well in excess of £100,000. There are in addition substantial costs incurred in the US. On 19 April 2018, [the Defendant's] solicitors asked for confirmation regarding which of the two Claimants had incurred such costs to date. I am making enquiries of the relevant accounting personnel. Subject to the outcome of those enquiries, my understanding is that (i) both entities have a primary liability in respect of at least the costs and disbursements of the Claimants' lawyers in England; and (ii) in practice, the Second Claimant has been paying the costs, which are then charged back to the First Claimant."
(1) Article 4(1) was set out in paragraph 32 above. The Recitals in the Rome II Regulation, so far as material, provide:
"(7) The substantive scope and the provisions of this Regulation should be consistent with Council Regulation (EC) No. 44/2001 of 22 December 2000 in jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I") and the instruments dealing with the law applicable to contractual obligations.
(16) Uniform rules should enhance the foreseeability of court decisions and ensure a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage. A connection with the country where the direct damage occurred (lex loci damni) strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage, and also reflects the modern approach to civil liability and the development of systems of strict liability.
(17) The law applicable should be determined on the basis of where the damage occurs, regardless of the country or countries in which the indirect consequences could occur. Accordingly, in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively."
(2) The explanatory memorandum accompanying the Commission Proposal in relation to what became the Rome II Regulation states:
"The place or places where indirect damage, if any, was sustained are not relevant for determining the applicable law. In the event of a traffic accident, for example, the place of the direct damage is the place where the collision occurs, irrespective of financial or non-material damage sustained in another country. In a Brussels Convention case, the Court of Justice held that the "place where the harmful event occurred" does not include the place where the victim suffered financial damage following upon initial damage arising and suffered by him in another Contracting State.
The rule entails, where damage is sustained in several countries, that the laws of all the countries concerned will have to be applied on a distributive basis, applying what is known as "Mosaikbetrachtung" in German law."
(3) As Recital (7) implies, there is a close relationship between the Rome II Regulation and what is now the Recast Brussels I Regulation. In Case 21/76, Bier v. Mines de Potasse d'Alsace SA  ECR 1735,  1 QB 708, the European Court of Justice held that for the purposes of jurisdiction in the case of matters relating to tort, the courts of the place where the harmful event occurred would have special jurisdiction. The place where the harmful event occurred is:
(a) The place where the event which gave rise to the damage occurred; and/or
(b) The place where the damage occurred.
Self-evidently, a regime determining applicable law must select a single law to apply to a single issue, and it is clear that the Rome II Regulation has opted for the second of these alternatives.
(4) So far as the second limb of Bier is concerned, it is clear that like all of the "special jurisdictions" enumerated in the Brussels regime, this jurisdictional base constitutes a derogation "from the principle that jurisdiction is vested in the courts of the State where the defendant is domiciled and as such must be interpreted restrictively". In accordance with the restrictive treatment of the "special jurisdictions", a court having jurisdiction pursuant to Article 5(3) only has jurisdiction in respect of damage, if any, actually suffered in that territory.
(5) Article 2 of the Rome II Regulation defines "damage" in the following terms:
"(1) For the purposes of this Regulation, damage shall cover any consequence arising out of tort/delict, unjust enrichment, negotiorum gestio or culpa in contrahendo.
(3) Any reference in this Regulation to:
(a) an event giving rise to damage shall include events giving rise to damage that are likely to occur; and
(b) damage shall include damage that is likely to occur."
Clearly, this definition is wide enough to embrace the £100,000 loss.
(6) Article 4(1) distinguishes three different laws:
(a) The law of the country in which the damage occurs.
(b) The law of the country in which the event giving rise to that damage occurs.
(c) The law of the country in which the indirect consequences of that event occur.
It is clear from the express wording of Article 4(1) that the applicable law is the first of these three alternatives.
(7) Whereas in the case of personal injury and physical damage to property it may be more straightforward to discern the country in which the damage occurs, and hence the applicable law, the fact that financial and non-material loss (such as the £100,000 loss) lacks an immediate physical manifestation presents real problems in discerning the applicable law.
(8) The touchstone, in cases of financial and non-material loss, for identifying the applicable law, appears to be reversibility. The point is put thus in Dickinson, The Rome II Convention:
"If, however, the victim performs, or fails to perform, some act towards a third party, whether by entering into a contract or by transferring an asset, resulting in a diminution in the victim's assets or in his incurring liability to that third party then that act or omission should be considered to have caused him "damage" at the moment, and in the country, where the act or omission becomes irreversible by his own actions. In the case of entry into a contract, the country of damage should be that of the country in which the contract was concluded. Although this fact may be open to manipulation and does not in any event appear to provide a particularly powerful connecting factor, it can be objectively ascertained and seems preferable (for example) to the place where the third party may enforce the contract or the place of performance of the victim's obligations towards the third party."
(9) Reversibility appears to be the test applied in Hillside (New Media) Ltd v. Baasland  EWHC 3336 (Comm). Hillside provided facilities for on-line gambling. In order to avail themselves of this facility, gamblers had to register and open an on-line account or (as it was called) "wallet" from which bets could be made. Funds transferred to the wallet were held by a bank in England. Mr. Baasland placed bets through his on-line account/wallet from various jurisdictions – Germany, Norway, the Czech Republic and Denmark –, made substantial losses and threatened (but did not bring) proceedings in Norway against Hillside. These proceedings would have alleged that Hillside was liable in tort or delict for allowing him to gamble without appropriate warnings. Hillside commenced proceedings in England seeking a negative declaration that it was not liable. The question arose as to the applicable law. Andrew Smith J. considered the nature of the on-line account that Mr. Baasland had with Hillside and concluded that when Mr. Baasland deposited money into the account:
"…the deposit created a debt owed to Mr. Baasland, and Mr. Baasland suffered no loss simply as a result of transferring funds to the wallet. He suffered loss only when he was allowed to use those funds to place bets. At that point, the loss that he suffered was that the value of the chose in action represented by the funds in the wallet was reduced, if not exhausted. This, as it seems to me, was the immediate loss that Mr. Baasland suffered as a result of being allowed facilities to gamble…"
Andrew Smith J. went on to consider the significance of the (now repealed) s.18 of the Gaming Act 1845:
"The effect of s.18 of the Gaming Act was that any contract between Mr. Baasland and Hillside was null and void, and Mr. Baasland could not under the law of England bring proceedings to recover the money deposited in his wallet. There was, therefore, no chose in action represented by the funds deposited in the wallet. Does this mean that Mr. Baasland's loss was suffered not in England but in Norway? I do not consider that it does. Although Mr. Baasland had no claim in debt for the sum in the wallet, in substance he confidently and reasonably expected that he could have repaid to him the monies referable to his wallet which were in bank accounts with RBS. The reality is he suffered loss when the monies referable to his wallet were reduced because he placed bets, and so that the immediate damage that he suffered as a result of the alleged wrong was in England."
(10) Payment by Mr. Baasland into the wallet did not result in damage to him, because that transaction could be reversed. Equally, mere payment out of the wallet might, or might not, result in damage to Mr. Baasland. That would turn on the circumstances. In this case, it was the fact that the payment out of the wallet was to gamble that was generative of the damage. The money was gone, and Mr. Baasland could not reverse it. In short, the location of the damage in this case was determined by the combination of the payment and what that payment was for. The payment alone says nothing.
(11) It was noted in paragraph 40(3) above that there is a distinct resonance between the Brussels regime and Article 4(1) of the Rome II Regulation. It is significant that, in Brussels regime cases considering jurisdiction based on the place where the damage occurred, the same "reversibility" test appears to be applied. Raiffeisen Zentral Bank Österreich AG v. Tranos  ILPr 9 concerned a contract (a credit facility) entered into as a result of various alleged misrepresentations. Longmore J. held that damage occurred when reliance on the misrepresentations resulted in some concrete transaction that gave rise to the loss, rather than when the representation was made to any given officer of the bank. The damage thus occurred in London, where the credit facility was arranged, rather than in Greece or Austria where the representation was received and given approval for further action:
"In a case of this kind, the loss cannot be said to have been suffered until the reliance had itself resulted in a concrete transaction that gives rise to a loss. In this sense, the initial damage was suffered when the credit facility was agreed…"
Longmore J. is plainly using the term "concrete" as meaning "irreversible".
"It is not clear how Article 4 of the Rome II Regulation applies where a claimant has suffered financial loss in more than one country. The Explanatory Memorandum that accompanied the Commission's original proposal suggests that in such cases "the laws of all countries concerned will have to be applied on a distributive basis, applying what is known as "Mosaikbetrachtung" in German law." I do not need to decide whether the proper approach is to attempt some such fragmentation of the law governing an obligation, or whether the court should decide in which country the damage predominantly occurred…"
F. UNLAWFUL MEANS CONSPIRACY
(1) There was no proper plea that information in the Tweets was confidential.
(2) There was no plea regarding the Defendant's knowledge that the information in the Tweets was confidential.
"…the Defendant and the other conspirators have sought to injure the Claimants by publishing confidential information as set out in Schedule 3 hereto and the Conspiracy is to that extent a conspiracy to injure the Claimants by unlawful means, namely breach of confidence."
"1. The identity of suppliers, commercial partners and sales agents, which must be kept confidential to protect these relationships from competitors. Such information is referenced in the Tweets posted on 13 January 2017, 22 February 2017, 19 March 2017 (six Tweets), 29 May 2017 and 24 November 2017.
2. The invoice included in the Tweet posted on 25 January 2017.
3. Confidential emails in the Tweets posted on 22 February 2017 and 22 April 2017.
4. The confidential letter sent to agent Bashe Omar terminating the agreement between [RRM] and the Mr. Omar in the Tweet posted on 15 June 2017."
(1) How the obligation of confidence – which is said to have been breached – arises is unstated in the pleading. It may be that it arises pursuant to the contracts of employment between RRM and the Former Employees, in which case English law is unlikely to be applicable to the issue of whether an obligation of confidence arises. But the pleading fails to plead any of the facts material to this question.
(2) This means it is impossible to know by what test the information in the Tweets is to be assessed as confidential. Assuming – and it is not a safe assumption – that English law applies, the basis upon which the information set out in Schedule 3 would attract a duty of confidence under English law is also unpleaded. It is simply asserted, without more, that the Schedule 3 tweets contain confidential information.
Note 1 I should be clear that Mr. Lazarus was not contemplating a further “Norwich Pharmacal” application. Mr. Lazarus accepts that, for such an application to be properly brought, there would have to be a material change of circumstance. [Back] Note 6 This was the case in Huntley v. Thornton  1 WLR 321. The details of the combination do not matter, save that the conspiracy was a lawful means conspiracy. Harman J found that whilst there was a lawful means conspiracy (on the part of the Hartlepool District Committee: at 340), two parties to the combination lacked the requisite object (at 343):
“No doubt Thornton and Langford lent themselves to their co-defendants’ plan, but I have no evidence that their motive was to injure the plaintiff rather than to forward the interests of the union as they saw them. They had none of their co-defendants’ personal reasons for attacking the plaintiff, who was in fact unknown to them. I cannot hold them to be participators in the conspiracy I have found to exist. It was suggested that they might themselves have formed a separate conspiracy. No doubt they acted in concert, but I cannot find that their predominant motive was to injure the plaintiff.” [Back] Note 8 See, for example: Lord Cave in Sorrell v. Smith  AC 700 at 711-712: “If the real purpose of the combination is…”; Lord Diplock in Lonrho Ltd. v. Shell Petroleum (No. 1)  AC 173 at 189: “…injury to the plaintiff and not the self-interest of the defendants must be the predominant purpose of the agreement in execution of which the damage-causing acts were done.” [Back] Note 9 In a two-party combination between A andB, where only one party (A) has the requisite unlawful object, it must follow that, B self-evidently not being guilty of the tort (see fn 5 above) that A is not either: see Lonrho at 188-189 (per Lord Diplock). [Back] Note 14 Regulation (EU) No. 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments (Recast). I shall endeavour, in view of the constantly changing Article numbers, to refer quite generally to the provisions of the Brussels regime. [Back] Note 24 I was helpfully taken to the law regarding the duty of confidence, and in particular the analysis in Faccenda Chicken Ltd v. Fowler  1 Ch 117. Because the basis upon which the Schedule 3 information would attract a duty of confidence is utterly unpleaded, it is unnecessary to consider the law in any detail. [Back]
Note 1 I should be clear that Mr. Lazarus was not contemplating a further “Norwich Pharmacal” application. Mr. Lazarus accepts that, for such an application to be properly brought, there would have to be a material change of circumstance. [Back]
Note 6 This was the case in Huntley v. Thornton  1 WLR 321. The details of the combination do not matter, save that the conspiracy was a lawful means conspiracy. Harman J found that whilst there was a lawful means conspiracy (on the part of the Hartlepool District Committee: at 340), two parties to the combination lacked the requisite object (at 343): “No doubt Thornton and Langford lent themselves to their co-defendants’ plan, but I have no evidence that their motive was to injure the plaintiff rather than to forward the interests of the union as they saw them. They had none of their co-defendants’ personal reasons for attacking the plaintiff, who was in fact unknown to them. I cannot hold them to be participators in the conspiracy I have found to exist. It was suggested that they might themselves have formed a separate conspiracy. No doubt they acted in concert, but I cannot find that their predominant motive was to injure the plaintiff.” [Back]
Note 8 See, for example: Lord Cave in Sorrell v. Smith  AC 700 at 711-712: “If the real purpose of the combination is…”; Lord Diplock in Lonrho Ltd. v. Shell Petroleum (No. 1)  AC 173 at 189: “…injury to the plaintiff and not the self-interest of the defendants must be the predominant purpose of the agreement in execution of which the damage-causing acts were done.” [Back]
Note 9 In a two-party combination between A andB, where only one party (A) has the requisite unlawful object, it must follow that, B self-evidently not being guilty of the tort (see fn 5 above) that A is not either: see Lonrho at 188-189 (per Lord Diplock). [Back]
Note 14 Regulation (EU) No. 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments (Recast). I shall endeavour, in view of the constantly changing Article numbers, to refer quite generally to the provisions of the Brussels regime. [Back]
Note 24 I was helpfully taken to the law regarding the duty of confidence, and in particular the analysis in Faccenda Chicken Ltd v. Fowler  1 Ch 117. Because the basis upon which the Schedule 3 information would attract a duty of confidence is utterly unpleaded, it is unnecessary to consider the law in any detail. [Back]