HT-2021-000363 - [2025] EWHC 532 (TCC)

The tort of unlawful means conspiracy requires: (i) a combination between the defendant and others; (ii) an intention to injure the claimant; (iii) unlawful acts carried out pursuant to the combination as a means of injury; and (iv) causation of loss to the claimant: Kuwait Oil Tanker v Al Bader [2000] 2 All ER (Comm) 271 (CA) at [108] & [132]; JSC BTA Bank v Khrapunov [2018] UKSC 19 at [8]; The Racing Partnership Ltd v Sports Information Services [2020] EWCA Civ 1300 per Arnold LJ at [104].

The first necessary element is a combination, arrangement or understanding between two or more people. It is not necessary to show an express agreement, whether formal or informal. It is sufficient if two or more persons combine with a common intention, or, in other words, that they deliberately combine, albeit tacitly, to achieve a common end. It is not necessary for the conspirators all to join the conspiracy at the same time, but the parties 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 relevant acts: Kuwait Oil Tanker at [111]. A conspirator’s participation in the combination may be active or passive: Lakatamia Shipping v Su [2021] EWHC 1907 (Comm) per Bryan J at [95]-[98].

For the reasons set out above, I find that this element is satisfied in respect of LzLabs, Winsopia and Mr Moores. LzLabs developed and marketed the SDM using information gleaned from the ICA Programs and IBM proprietary material that had been requested from, and passed to it by, Winsopia. Winsopia acted in breach of the ICA to assist LzLabs as directed in the development of the SDM. Mr Moores used his funding, power and control over LzLabs and Winsopia in furtherance of these activities to develop the SDM.

The second necessary element is intention to injure: OBG v Allan (above) per Lord Hoffmann at [62] and Lord Nicholls at [164]-[166]. In that regard, it is necessary to establish an intention to injure the claimant but not a predominant intention or purpose to do so: Kuwait Oil Tanker at [118]. It is sufficient that the defendant intends to advance their or the company’s economic interests at the expense of the claimant’s, where the gain and corresponding loss are inseparably linked: see FM Capital Partners v Marino [2018] EWHC 1768 (Comm) per Cockerill J at [94].

I find that this element is satisfied in respect of LzLabs, Winsopia and Mr Moores. For the reasons set out above, LzLabs, Winsopia and Mr Moores intended to develop the SDM as a competitor product at the expense of IBM’s mainframe business through breach of the ICA.

The third necessary element is unlawful acts carried out pursuant to the combination as a means of injury. Although there may be debate as to the scope of “unlawful means” required, it is common ground that it covers civil wrongs such as torts and breaches of contract: OBG v Allan (above) Lord Nicholls at [150]-[151].

I have already found that Winsopia was in breach of contract, and that LzLabs and Mr Moores unlawfully procured such breaches, thereby satisfying this required element.