CL-2018-000297, CL-2018-000404, CL-2018-000590, - [2025] EWHC 2364 (Comm)

At the risk of philosophy, obiter, on p.262 of a judgment, I wonder if there may yet be room to consider whether knowledge of the essential facts is or should be the definitive test. The question is what must be the state of mind of the alleged accessory concerning that which they have incited or encouraged, and then: (a) it seems to me possible to think that inciting or encouraging a tort, believing or intending that the tort would be committed, should be sufficient, always making clear in that regard that it is not necessary for the accessory to realise that what they have incited or encouraged is categorised by the law as wrongful (tortious); (b) where the tort is only committed if there is a subjective degree of fault on the part of the primary tortfeasor (knowledge, belief, absence of honest belief, wilfulness, etc.), I tentatively question whether it is in truth meaningful to ask whether an alleged accessory knew what was going on inside the primary tortfeasor’s head, but there may be no such difficulty about contemplating what the accessory believed or intended concerning the primary tortfeasor’s state of mind.