CA-2024-001802 - [2025] EWCA Civ 1389

The elements of unlawful means conspiracy were summarised by Mrs Justice Cockerill in FM Capital Partners Ltd v Marino [2018] EWHC 1768 (Comm), para 94. Her summary has been adopted in a number of cases at first instance, including by the Deputy Judge in the present case. She said:

‘94. The elements of the cause of action are as follows:

i)

A combination, arrangement or understanding between two or more people. It is not necessary for the conspirators all to join the conspiracy at the same time, but the parties to it must be sufficiently aware of the surrounding circumstances and share the same object for it properly to be said that they were acting in concert at the time of the acts complained of: Kuwait Oil Tanker at [111].

ii)

An intention to injure another individual or separate legal entity, albeit with no need for that to be the sole or predominant intention: Kuwait Oil Tanker at [108]. Moreover:

a)

The necessary intent can be inferred, and often will need to be inferred, from the primary facts – see Kuwait Oil Tanker at [120-121], citing Bourgoin SA v Minister of Agriculture [1986] QB 716: “[i]f an act is done deliberately and with knowledge of the consequences, I do not think that the actor can say that he did not 'intend' the consequences or that the act was not 'aimed' at the person who, it is known, will suffer them”.

b)

Where conspirators intentionally injure the claimant and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests: Lonrho Plc v Fayed [1992] 1 AC 448, 465-466; see also OBG v Allan [2008] 1 AC 1 at [164-165].

c)

Foresight that his unlawful conduct may or will probably damage the claimant cannot be equated with intention: OBG at [166].

iii)

In some cases, there may be no specific intent but intention to injure results from the inevitability of loss: see Lord Nicholls at [167] in OBG v Allan, referring to cases where: “The defendant's gain and the claimant's loss are, to the defendant's knowledge, inseparably linked. The defendant cannot obtain the one without bringing about the other. If the defendant goes ahead in such a case in order to obtain the gain he seeks, his state of mind will satisfy the mental ingredient of the unlawful interference tort.”

iv)

Concerted action (in the sense of active participation) consequent upon the combination or understanding: McGrath at [7.57].

v)

Use of unlawful means as part of the concerted action. There is no requirement that the unlawful means themselves are independently actionable: Revenue and Customs Commissioners v Total Network [2008] 1 AC 1174 at [104].

vi)

Loss being caused to the target of the conspiracy.’

The Deputy Judge also set out and adopted the further points made by Mr Justice Bryan when rejecting the challenge to the jurisdiction of the English court in the present case (Lakatamia Shipping Co Ltd v Su [2023] EWHC 1874 (Comm) [2024] 1 WLR 746):

‘106. (1) Dishonesty is not itself an element of the tort, see Arcelormittal USA LLC v. Ruia [2020] EWHC 3349 (Comm), at [27 (3)].

(2)

Justification is not a defence, see, for example, Palmer Birch v. Lloyd [2018] EWHC 2316 (TCC); [2018] 4 WLR 164, at [192]–[193]; [Lakatamia Shipping Co Ltd v Su [2021] EWHC 1907 (Comm)], at [81]; Seneschall v. Trisant Foods Ltd [2023] EWHC 1029 (Ch), at [151]–[160]. Justification cannot be a defence since the element of unlawful means connotes the absence of justification, see JSC BTA Bank v. Khrapunov [2018] UKSC 19; [2020] AC 727 at [10] …

(3)

The combination element requires that “at least one of” (but not necessarily all of) the conspirators will use unlawful means – see Revenue and Customs Commissioners v. Total Network SL [2008] UKHL 19; [2008] 1 AC 1174, at [213]. Thus, there is no requirement that all of the conspirators will use unlawful means. It is also unnecessary that the combination be, for example, contractual in nature, or that it be an express or formal agreement, see Kuwait Oil Tanker Co SAK v. Al Bader (No.3) [2000] 2 All ER (Comm) 271 (CA), at [111].

(4)

The element of unlawful means comprises conduct lacking 'just cause or excuse' (see JSC BTA Bank, at [10]). Contempt of court and steps taken to prevent the enforcement of judgments constitute unlawful means (see at [16]).

(5)

The intention to injure need not be the defendant's predominant intention, see JSC BTA Bank, at [13]. Nor need he or she act maliciously in the sense that harm to the claimant need not be the end sought.

(6)

It is enough that harm to the claimant was the means by which the defendant sought to achieve his or her end, i.e. that the defendant knew (or turned a blind eye to the fact) that injury to the claimant would ensue - see ED&F Man Capital Markets Ltd v. Come Harvest Holdings Ltd [2022] EWHC 229 (Comm) 487, [500]. In The Eurysthenes [1977] Q.B. 49 (CA) at 68, Lord Denning M.R. said that “If a man, suspicious of the truth, turns a blind eye to it, and refrains from inquiry – so that he should not know it for certain – then he is to be regarded as knowing the truth”.

(7)

The damage requirement calls for proof of “damage caused by the conspiracy”, Palmer Birch v. Lloyd, supra, at [239].'

The fact that not all of the conspirators need themselves use unlawful means is significant in this case. Thus, even if Maître Zabaldano was acting lawfully in accordance with Monegasque law, a point which was in issue and which the Deputy Judge did not resolve, undoubtedly Mr Su was acting unlawfully in procuring the transfer of funds to UP Shipping in breach of the freezing order and Maître Zabaldano assisted him to achieve his objective.