Civil Conspiracy: An Unwieldy Vessel Rides a Judicial Tempest

University of British Columbia Law Review, Vol. 16, pp. 229-255, 1982

27 Pages Posted: 28 May 2011

See all articles by Peter T. Burns

Peter T. Burns

University of British Columbia (UBC), Faculty of Law

Date Written: 1982

Abstract

The tort of civil conspiracy' has medieval origins, originally being a crime that also gave civil redress where two or more people combined to abuse the court's criminal process. The civil action gradually evolved into an action on the case and flowered in the nineteenth century, largely as a judicial weapon designed to check what was perceived to be socially dangerous activities by organized labour. Its growth has occurred in England and the Commonwealth as a separate tort action whereas in the United States many jurisdictions have entirely rejected it and others have adopted it only in narrow forms.

American courts tended not to embrace this tort for two reasons: (1) a fundamental rejection of the rationale for the tort itself; and (2) generally, the American law governing economic relationships developed independent doctrines, including "unfair competition" and the prima facie tort doctrine, to accomplish the same tasks as the more cumbersome conspiracy action used in Commonwealth courts. These doctrines do not depend on combination for their validity and therefore have a wider range than the tort of conspiracy.

This paper analyzes the state of the law it existed prior to, and as a result of, the 1981 decision of the House of Lords in Lonrho Ltd. et al. v. Shell Petroleum Co. Ltd. et al. which reversed one of the trends that had developed, at least so far as the United Kingdom is concerned. Dicta in that case also goes some way towards adopting the American doctrinal view of the tort by criticizing the traditional reliance on the magic of plurality.

Thus, in the United Kingdom today there is only the tort of conspiracy to injure. In other jurisdictions, particularly Canada, conspiracy by unlawful means is a well-established tort and only time will reveal whether or not the Lonrho decision will be regarded as sufficiently compelling to cause a shift in judicial direction.

For this reason this paper's analysis deals with both classes of civil conspiracy, but the discussion of conspiracy by unlawful means must be regarded as coloured by the prospect of the Lonrho case being highly persuasive in the other Commonwealth jurisdictions.

Keywords: Torts, Civil Conspiracy

Suggested Citation

Burns, Peter T., Civil Conspiracy: An Unwieldy Vessel Rides a Judicial Tempest (1982). University of British Columbia Law Review, Vol. 16, pp. 229-255, 1982, Available at SSRN: https://ssrn.com/abstract=1809017

Peter T. Burns (Contact Author)

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

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