Causing loss by unlawful means
77.Lord Hoffmann summarised the ingredients of the tort in OBG Limited v Allan [2007] UKHL 21. His analysis was shared by the majority (Lord Walker, Baroness Hale and Lord Brown) and was endorsed by the Supreme Court in Secretary of State for Health v Servier Laboratories Ltd [2021] UKSC 24 at [1]. Lord Hoffmann said:“[47] The essence of the tort therefore appears to be (a) a wrongful interference with the actions of a third party in which the claimant has an economic interest and (b) an intention thereby to cause loss to the claimant. ……[49] In my opinion, and subject to one qualification, acts against a third party count as unlawful means only if they are actionable by that third party. The qualification is that they will also be unlawful means if the only reason why they are not actionable is because the third party has suffered no loss. ……[51] Unlawful means therefore consists of acts intended to cause loss to the claimant by interfering with the freedom of a third party in a way which is unlawful as against that third party and which is intended to cause loss to the claimant. It does not in my opinion include acts which may be unlawful against a third party but which do not affect his freedom to deal with the claimant.” 78.Lord Hoffmann explained the meaning of intention to cause loss:“[62] Finally, there is the question of intention. In the Lumley v Gye tort, there must be an intention to procure a breach of contract. In the unlawful means tort, there must be an intention to cause loss. The ends which must have been intended are different. South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 shows that one may intend to procure a breach of contract without intending to cause loss. Likewise, one may intend to cause loss without intending to procure a breach of contract. But the concept of intention is in both cases the same. In both cases it is necessary to distinguish between ends, means and consequences. One intends to cause loss even though it is the means by which one achieved the end of enriching oneself. On the other hand, one is not liable for loss which is neither a desired end nor a means of attaining it but merely a foreseeable consequence of one’s actions.”79.In my opinion, YNNY has not established the requisite intention on the part of Ms McIver in the present case. Ms McIver certainly intended to promote her own business and may have realised that it was foreseeable that this could lead to a loss on the part of Ms Tang and/or YNNY, although I am not at all certain that she will have thought this through. However, even if that were the case, I am satisfied that their loss was not the end she intended within the meaning explained by Lord Hoffmann.80.Loss by unlawful means has not been established.