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ACCESSORY LIABILITY FOR ASSISTING TORTS

Published online by Cambridge University Press:  20 June 2011

PAUL S. DAVIES
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The Cambridge Law Journal , Volume 70 , Issue 2 , July 2011 , pp. 353 - 380
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Copyright © Cambridge Law Journal and Contributors 2011

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References

1 Taylor, R., “Procuring, Causation, Innocent Agency and the Law Commission” [2008] Criminal Law Review 32, 32Google Scholar.

2 “Important contracts are more commonly broken with than without persuaders or procurers, and these are often responsible persons when the principals may not be so”: Lumley v. Gye (1853) 2 E. & B. 216, 250 (Coleridge J.).

3 An obvious exception is in equity: dishonest assistance in a breach of fiduciary duty can lead to liability (Royal Brunei Airlines Sdn Bhd v. Tan [1995] 2 A.C. 378).

4 For reasons of space, the primary focus of this article is upon establishing liability, rather than remedies or defences. However, the latter is considered, albeit rather briefly, below: see text to notes 135–141.

5 Manley (1844) 1 Cox C.C. 104; Mazeau (1840) 9 C. & P. 676; D. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford 1999), p. 180.

6 Attorney-General's Reference (No. 1 of 1975) [1975] Q.B. 773.

7 Law Commission Participating in Crime (2007) Law Com. No. 305, paras 2.20–2.22, although the Law Commission considered procurement to be distinct.

8 Lomas (1913) 9 Cr. App. R. 220.

9 Law Commission Participating in Crime (2007) Law Com. No. 305, example 1B.

10 R v. Kennedy (No. 2) [2007] UKHL 38, [2009] 1 A.C. 269.

11 Law Commission, Assisting and Encouraging Crime (1993) Law Com. Consultation Paper No. 131. The Law Commission has since altered its stance: Law Commission, Inchoate Liability for Assisting and Encouraging Crime (2006) Law Com. No. 300; Law Commission, Participating in Crime (2007) Law Com. No. 305.

12 Smith, K., “The Law Commission Consultation Paper on Complicity: (1) A Blueprint for Rationalism” [1994] Criminal Law Review 239, 244Google Scholar; cited at Law Commission, Inchoate Liability for Assisting and Encouraging Crime (2006) Law Com. No. 300, para. 2.19.

13 See generally K. Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford 1991), ch. 3. See also J. Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford 2007), ch. 3. However, it is not clear whether a causal link is currently necessary if the accessory encourages but does not assist: see e.g. R v. Calhaem [1985] Q.B. 808.

14 R. v. Cato [1976] 1 W.L.R. 110. The de minimis principle is very important within causation.

15 G. Williams, Criminal Law: The General Part (London 1953), p. 294.

16 R. v. Giannetto [1997] 1 Cr. App. R. 1, 13.

17 Cf. Serious Crime Act 2007, Part 2: no need to consider causation if encouragement or assistance has led to inchoate liability under the statute.

18 See note 12 above.

19 Law Commission, Inchoate Liability for Assisting and Encouraging Crime (2006) Law Com. No. 300, paras 2.8–2.10.

20 Ibid., at paras 2.11–2.13.

21 Ibid., at paras 2.14–2.18.

22 Ibid., at paras 2.19.

23 Save, perhaps, the first reason. Compare Serious Crime Act 2007, Part 2.

24 See e.g. A. Simester, J. Spencer, G. Sullivan and G. Virgo, Criminal Law: Theory and Doctrine, 4th edn.(Oxford 2010), pp. 219–233.

25 [1950] 1 K.B. 544, 546.

26 See further Law Commission, Participating in Crime (2007) Law Com. No. 305, Part 2.

27 NCB v. Gamble [1959] 1 Q.B. 11, 23.

28 It should be emphasised that this “simple accessory” liability is different from “joint enterprise” liability, which is beyond the scope of this article. See Law Commission, Participating in Crime (2007) Law Com. No. 305, paras 3.47–3.58.

29 Crime and Disorder Act 1998, s. 34.

30 The Law Commission has even supported a slight expansion of this doctrine: Law Commission, Participating in Crime (2007) Law Com. No. 305, Part 4.

31 Although the act of the accessory does need to have a more than minimal effect upon the primary wrong.

32 Deterrence is, admittedly, a controversial notion in tort law, but on balance it seems as if tort law does have some deterrent effect even in the sphere of negligence; deterrence seems even more relevant when intentional acts are involved. See e.g. W. Lanes and R. Posner, The Economic Structure of Tort Law (Cambridge, Mass. 1987) pp. 9–13; P. Cane, Tort Law and Economic Interests (Oxford 1996) pp. 469–473; Schwarz, G., “Reality in the Economic Analysis of Tort Law? Does Tort Law Really Deter?” (1994) 42 U.C.L.A. Law Review 377Google Scholar; Cummins, J., Phillips, R., Weiss, M., “The incentive effects of no-fault automobile insurance” (2001) 44 Journal of Law and Economics 427CrossRefGoogle Scholar. Cf. Sugarman, S., “Doing away with tort law” (1985) 73 California Law Review 555CrossRefGoogle Scholar.

33 This is already recognised as a defence to an action for inducing a breach of contract: Brimelow v. Casson [1924] 1 Ch. 302. See text to notes 135–141 below.

34 Carty, H., “Joint tortfeasance and assistance liability” (1999) 10 L.S. 489Google Scholar. See too G. Williams, Joint torts and Contributory Negligence (London 1951).

35 [1924] P. 140, 156.

36 See e.g. the speech of Houbhouse L.J. in Credit Lyonnais Bank Nederland N.V. (Now Generale Bank Nederland N.V.) v. Export Credit Guarantee Department [1998] 1 Lloyd's Rep 19, considered below, text to notes 79ff.

37 Whitford J. in C.B.S.. Inc. v. Ames [1982] Ch. 91, 106 observed that: “Any ordinary person would, I think, assume that an authorisation can only come from somebody having or purporting to have authority and that an act is not authorised by somebody who merely enables or possibly assists or even encourages another to do that act, but does not purport to have any authority which he can grant to justify the doing of the act”. This passage was cited with approval by Lord Templeman: C.B.S. Songs Ltd. v. Amstrad Consumer Electronics plc [1988] A.C. 1013, 1054. Admittedly, this was in the context of a “statutory tort” (Copyright Act 1956, s.1 (2)) but there is no reason why the meaning of “authorisation” should be any different under the statute. Indeed, “authorisation” was previously recognised by the common law as leading to liability as a joint tortfeasor (Harris v. James (1876) 45 L.J.Q.B. 545) and thus its inclusion in statute may have been superfluous: Performing Rights Society v. Ciryl Theatrical Syndicates Ltd. [1924] 1 K.B. 1 (Scrutton L.J.).

38 Particularly when compared with the criminal law's use of “assist” and “encourage”.

39 Although the focus of this article is upon assistance, there seems no reason to suggest that the same principles do not apply to encouragement; after all, encouragement might sometimes be an inducement, and can be said to amount to the provision of assistance.

40 H. Hart and T. Honoré, Causation in the Law, 2nd edn. (Oxford 1985), pp. 187–8.

41 See text to note 63ff below.

42 Allowing a person to sue a party who knowingly assisted the wrong makes it easier for the claimant to find another person from whom compensation for the claimant's loss may be sought. However, indiscriminate “defendant-shopping” should not be tolerated: the defendant must be culpable.

43 Spartan Steel v. Martin [1973] 1 Q.B. 27.

44 Cf. Lord Templeman in C.B.S. Songs Ltd. v. Amstrad Consumer Electronics Plc [1988] A.C. 1013, 1059.

45 Unless innocent agency is at issue.

46 As Coleridge J. observed in Lumley v. Gye, “to draw a line between advice, persuasion, enticement and procurement is practically impossible in a court of justice” (1853) 2 E. & B. 216, 252Google Scholar (admittedly, the judge was dissenting and arguing against a generalisation of accessory liability). See too Sales, P., “The Tort of Conspiracy and Civil Secondary Liability” [1990] C.L.J. 491, 507Google Scholar: “In many cases, however, the dividing line between inducing a third party to commit a wrong and assisting him in its commission is so fine as to be non-existent”. Cf. Lord Nicholls in Tan [1995] 2 A.C. 378, 384–5.

47 Global Resources Group Ltd. v. Mackay [2008] CSOH 148, 2009 S.L.T. 104, [13].

48 For example, if A wishes to shoot C, and the only person who can supply a gun is B, then the assistance of B in the tort of battery is clearly of the utmost importance to the tort being committed.

49 Moreover, a de minimis exception should be recognised, so that a third party to an obligation would not have to be concerned about incurring liability for very minor, trivial acts. See above for discussion in the criminal context. See also J. Gardner Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford 2007), ch. 3.

50 Something which seems acceptable to this writer, but troubled Sayre: Sayre, F., “Inducing Breach of Contract” (1923) 36 Harvard Law Review 663CrossRefGoogle Scholar. That more strain is placed on the mental element than the conduct element to ensure liability remains within an appropriate scope seems entirely appropriate given that the “primary” loss-causing act was not committed by the accessory himself.

51 Cf. Lord Millett in Twinsectra Ltd. v. Yardley Ltd. [2002] UKHL 12, [2002] 2 A.C. 164, at [127].

52 Unless the assister can make out a defence of justification: see text to notes 135–141 below.

53 Bradford v. Pickles [1895] A.C. 587; Allen v. Flood [1898] A.C. 1. However, such jurisprudence has been criticised: Ames, J.B. “How far an act may be a tort because of the wrongful motive of the actor” (1905) 18 Harvard Law Review 411CrossRefGoogle Scholar; J. Finnis, “Intention in Tort Law” in D. Owen (ed.), Philosophical Foundations of Tort Law (Oxford 1995). Lord Nicholls in OBG Ltd. v. Allan was not prepared to question whether Allen v. Flood was correct: [2007] UKHL 21, [2008] 1 A.C. 1, at [144]–[148].

54 See e.g. T. Honoré, “The Morality of Tort Law” in D. Owen (ed.), Philosophical Foundations of Tort Law (Oxford 1995), p. 74. Note also the moral overtones in Donoghue v. Stevenson [1932] A.C. 562.

55 E.g. Lord Nicholls in Royal Brunei Airlines Sdn Bhd v. Tan [1995] 2 A.C. 378, 387.

56 Admittedly, the role of deterrence is, perhaps, of less weight where the tort in question is also a crime, since the criminal law should be a stronger deterrent. But not all crimes are prosecuted or successfully lead to a conviction, so liability in tort may still have to operate “alone”. On deterrence in tort law generally, see note 32 above.

57 P. Cane, Tort Law and Economic Interests (Oxford 1996) p. 470.

58 [2002] EWCA Civ 976, [2003] R.P.C. 14 at [59]. Reversed, but not on this point, in [2004] UKHL 45, [2005] R.P.C. 10.

59 However, it is far from certain that an accessory is liable for the wrong of the primary wrongdoer, rather than for his own wrong as an accessory; if the latter, it should not be crucial whether or not the accessory “makes the wrong his own”. For discussion of the nature of the remedy against an accessory in the equitable context, see Elliott, S. and Mitchell, C., “Remedies for Dishonest Assistance” (2004) 67 M.L.R. 16CrossRefGoogle Scholar; Ridge, P., “Justifying the Remedies for Dishonest Assistance” (2008) 124 L.Q.R. 445Google Scholar.

60 Negligence, or even strict liability, may suffice for the primary tort but never for accessory liability. This is also true regarding intellectual property rights, where primary civil liability is not usually conditioned upon scienter: Copyright, Design and Patents Act 1988 s. 16; Trade Marks Act 1994 s. 10; Patents Act 1977 s. 60.

61 Take the example of the supplier of a gun given at note 48 above; the acts of the supplier appear tantamount to “making the act his own”.

62 Cf. Allen v. Flood [1898] A.C. 1.

63 See, recently, Gray v. Thames Trains Ltd. [2009] UKHL 33, [2009] 3 W.L.R. 167 (in the context of the illegality defence).

64 Eg Credit Lyonnais Bank Nederland N.V. v. Export Credits Guarantee Department [2000] 1 A.C. 486, 500 (Lord Woolf).

65 See note 5 above.

66 However, it is feasible that an accessory should only be liable as a concurrent and several tortfeasor, as occurred in The Koursk: see note 35 above. This is related to the question of whether accessory liability is primary or secondary, and what the appropriate remedy should be. Space precludes detailed consideration of these issues.

67 See e.g. Shaw, N., “Joint and Several Liability Shunned Overseas” (2005) 16 Construction Law 29Google Scholar.

68 Department of Trade and Industry Consultation Document, Feasibility Investigation of Joint and Several Liability by the Common Law Team of the Law Commission (London: HMSO, 1996).

69 Stapleton, J., “Duty of care: peripheral parties and alternative opportunities for deterrence” (1995) 111 L.Q.R. 301Google Scholar.

70 C.B.S. Songs Ltd. v. Amstrad Consumer Electronics plc [1988] A.C. 1013, 1059 (Lord Templeman).

71 Stapleton, J., “Duty of care: peripheral parties and alternative opportunities for deterrence” (1995) 111 L.Q.R. 301Google Scholar, 302

72 See e.g. the speech of Lord Goff in Smith v. Littlewoods Organisation Ltd. [1987] 1 A.C. 241.

73 R. Stevens, Torts and Rights (Oxford 2007), pp. 256–257.

74 At least, not as an accessory rather than a primary party: see the old common law crime of incitement and the Serious Crime Act 2007, Part 2.

75 Which is not totally clear. Hobhouse L.J. in Credit Lyonnais remarked that “persons who participate in a criminal joint enterprise are, through the attribution to them of the actus reus, in reality joint principals with the primary actor”: Credit Lyonnais Bank Nederland N.V. (Now Generale Bank Nederland N.V.) v. Export Credit Guarantee Department [1998] 1 Lloyd's Rep 19, 42.

76 See, for example, R v. Bourne (1952) 36 Cr. App. R. 125. Similarly, the doctrine of innocent agency can clearly be found in the criminal law and is not unique to civil law, although innocent agency is not really an example of accessory liability at all: see text to notes 29–30 above.

77 Although Stevens gives the converse example of the shopkeeper who sells a firearm perhaps being liable in the criminal law but not the civil law, he does not discuss this difference in any detail. It is suggested that such a difference cannot be justified: text to notes 63–72 above.

78 This is particularly important in the context of remedies: is the accessory liable for his own wrong, or for that of the wrongdoer? For discussion in the context of accessory liability in Equity, see Elliott, S. and Mitchell, C., “Remedies for Dishonest Assistance” (2004) 67 M.L.R. 16CrossRefGoogle Scholar; Ridge, P., “Justifying the Remedies for Dishonest Assistance” (2008) 124 L.Q.R. 445Google Scholar.

79 [1998] 1 Lloyd's Rep 19. The decision of the House of Lords is analysed in some detail below, text to notes 98–108.

80 Ibid., at p. 42–43.

81 Ibid., at p. 44.

82 Ibid., at p. 44. For consideration of Gamble, see text to n 27 above.

83 Ibid., at p. 44.

84 However, if there is a common design then an accessory can incur both criminal and civil liability: Ibid., at p. 36 (Stuart-Smith L.J.)

85 Ibid., at p. 46.

86 [2001] A.C. 486, 500.

87 Carty, H., “Joint tortfeasance and assistance liability” (1999) 10 L.S. 489Google Scholar, 498.

88 W. Rogers, Winfield and Jolowicz on Tort (17th ed., London 2006) para. 21–2, note 26.

89 C.B.S. Songs Ltd. v. Amstrad Consumer Electronics Plc [1988] Ch. 61, 83 (Sir Denys Buckley; admittedly this was a dissenting judgment). See too Yullie v. B&B Fisheries (Leigh) Ltd. (The Radiant) [1958] 2 Lloyd's Rep 596, 618–619 (Willmer L.J.). Similarly, the Swedish court, in the context of the recent The Pirate Bay litigation concerning a website which facilitated breaches of copyright, has stated that: “Anyone who has caused solely a loss of wealth – a financial injury which arises without associated injury to person or property – through the perpetration of a crime must pay compensation for the loss. Under the general principles governing the law or torts, there is no obstacle to ordering each and every one complicit in the infringement of a copyright to pay compensation” (Stockholm District Court of 17 April 2009 in Case No. B 13301-06, p. 62).

90 See, e.g., British Motor Trade Association v. Salvadori [1949] Ch. 556, 565. Admittedly, Roxburgh J. did go on to find that, in any event, inducement could be shown on the facts. Salvadori has been referred to without disapproval by Jenkins L.J. in D C Thomson & Co. Ltd. v. Deakin [1952] Ch. 646, 694, and Bingham L.J. has expressed the view that the principle enunciated by Roxburgh L.J. was “good law”: Rickless v. United Artists Corporation [1988] Q.B. 40, 59. See too the facts of Mainstream Properties Ltd. v. Young, one of the appeals in OBG v. Allan [2007] UKHL 21, [2008] 1 A.C. 1 and Global Resources Group Ltd. v. Mackay [2008] CSOH 148, 2009 S.L.T. 104.

91 R. Stevens, Torts and Rights (Oxford 2007), p. 257. For a contrary view see Baughen, S., “Accessory Liability at Common Law and in Equity – ‘The Redundancy of Knowing Assistance’ Revisited” [2007] L.M.C.L.Q. 545, 551Google Scholar.

92 (1842) Car. & M. 93, 96. This comment was made in relation to a person who was the servant of the master and perhaps not part of a common design. Cf. M. Jones (ed.), Clerk & Lindsell on Torts, 20th edn. (London 2010) para. 4-04.

93 (1842) 4 Man. & G. 48, 60. See also the speech of Tindal C.J.. Similar opinions can be found in the judgments of McCardie J. in Pratt v. British Medical Association [1919] 1 K.B. 244, 254; Performing Right Society Ltd. v. Mitchell and Booker (Palais de Danse) Ltd. [1924] 1 K.B. 762; Falcon v. The Famous Players Film Company Ltd. [1926] 1 K.B. 393, 413 (affirmed by the CA: [1926] 2 K.B. 474.

94 P. Atiyah, Vicarioius Liability in the Law of Torts (London 1967), p. 195. Fleming also consistently expressed the same view: eg J. Fleming, The Law of Torts, 9th ed., (Sydney 1998), p. 256.

95 Credit Lyonnais Bank Nederland N.V. (Now Generale Bank Nederland N.V.) v. Export Credit Guarantee Department [1998] 1 Lloyd's Rep 19, 44.

96 [2000] 1 A.C. 486.

97 [1988] A.C. 1013.

98 [2000] 1 A.C. 486.

99 Ibid., at p. 1058.

100 Ibid., at p. 1058.

101 “If, instead of limiting our recourse to the agent, actual or constructive, we will go back to the person who immediately persuades or procures him one step, why are we [to] stop there? The first mover, and the malicious mover too, may be removed several steps backward from the party actually induced to breach the contract: why are we not to trace him out?” (1853) 2 E. & B. 216, 253. See too Howarth, D., “Against Lumley v. Gye” (2005) 68 M.L.R. 195CrossRefGoogle Scholar, 206.

102 Vicarious liability has been recognised to be another form of accessory liability, albeit through a relationship link, rather than a participation link: Carty, H., “Joint tortfeasance and assistance liability” (1999) 10 L.S. 489Google Scholar, 490.

103 Particularly since this can have important ramifications when dealing with the question of remedies: for example, is the accessory liable for his own wrong, or for that of the wrongdoer? For discussion in the context of accessory liability in Equity, see Elliott, S. and Mitchell, C., “Remedies for Dishonest Assistance” (2004) 67 M.L.R. 16CrossRefGoogle Scholar; Ridge, P., “Justifying the Remedies for Dishonest Assistance” (2008) 124 L.Q.R. 445Google Scholar.

104 Credit Lyonnais Bank Nederland N.V. (Now Generale Bank Nederland N.V.) v. Export Credit Guarantee Department [2000] 1 A.C. 486, 500.

105 [1996] 1 Lloyd's Rep 200, 228.

106 [1998] 1 Lloyd's Rep 19, 35.

107 These cases tend to concern intellectual property: eg Belegging-en Exploitatiemaatschapij Lavender B.V. v. Witten Industrial Diamonds Ltd. [1979] F.S.R. 59; Paterson Zochonis Limited and Others v. Merfarken Packaging Limited and Others [1983] F.S.R. 273; Generics (UK) Ltd. v. H Lundbeck A/S [2006] EWCA Civ 1261.

108 That The Koursk should have this effect is especially unfortunate since The Koursk actually limited the scope of joint tortfeasance.

109 C.B.S. Songs Ltd. v. Amstrad Consumer Electronics plc [1988] A.C. 1013, 1018.

110 Ibid., at p. 1058.

111 Counsel for the appellants does not seem to have argued in favour of assistance independent of incitement or procurement: C.B.S. Songs Ltd. v. Amstrad Consumer Electronics plc [1988] A.C. 1013, 1057.

112 Ibid., at p. 1058.

113 Unless the doctrine of innocent agency applies.

114 C.B.S. Songs Ltd. v. Amstrad Consumer Electronics Plc [1988] A.C. 1013, 1053. Emphasis added

115 See text to notes 13–18 above.

116 Belegging-en Exploitatiemaatschapij Lavender B.V. v. Witten Industrial Diamonds Ltd. [1979] F.S.R. 59

117 Credit Lyonnais Bank Nederland N.V. (Now Generale Bank Nederland N.V.) v. Export Credit Guarantee Department [1998] 1 Lloyd's Rep 19, 44.

118 Referring, inter alia, to Dunlop Pneumatic Tyre Co. Ltd. v. Moseley & Sons Ltd. (1904) 21 R.P.C. 274 and C.B.S. Inc. v. Ames Records [1981] R.P.C. 407.

119 Paterson Zochonis Limited and Others v. Merfarken Packaging Limited and Others [1983] F.S.R. 273, 283. See too Townsend v. Haworth (1875) 48 L.J. (NS) Ch. 770, Sykes v. Howorth (1879) 12 Ch.D. 826, Dunlop Pneumatic Tyre Co. Ltd. v. Moseley & Sons Ltd. (1904) 21 R.P.C. 274 and Belegging etc. B.V. v. Witten Industrial Diamonds Ltd. [1979] F.S.R. 59.

120 C.B.S. Songs Ltd. v. Amstrad Consumer Electronics plc [1988] A.C. 1013, 1060.

121 Ibid.

122 D. Cooper, Secondary Liability for Civil Wrongs (Unpublished PhD thesis, University of Cambridge, 1996).

123 C.B.S., at p. 1060.

124 See text to note 23 above.

125 Cf. Emerald Construction Co. Ltd. v. Lowthian [1966] 1 W.L.R. 691, 700-1. This was cited with approval by Lord Hoffmann in OBG v. Allan [2007] UKHL 21, [2008] 1 A.C. 1, at [40]. See too Grimme Maschinenfabrik GmbH v Derek Scott (t/a Scotts Potato Machinery) [2010] EWCA Civ 1110, [2011] F.S.R. 7, at [106].

126 Simester, A., “The Mental Element in Complicity” (2006) 122 L.Q.R. 578Google Scholar, 590, footnote 54. See too R. v. Lomas (1914) 9 Cr. App. R. 220. Similarly, Lord Templeman himself observed that “if the thing supplied is an ordinary article of commerce in the sense that it is capable of significant non-infringing uses, then the connection between the secondary defendant and the primary wrong may be too tenuous for secondary liability to be imposed”: C.B.S. Songs Ltd. v. Amstrad Consumer Electronics plc [1988] A.C. 1013, 1057.

127 C.B.S. Songs Ltd. v. Amstrad Consumer Electronics plc [1988] A.C. 1013, 1058.

128 Ibid., at p. 1048.

129 For the defence of justification see text to notes 135-141 below.

130 Unless acting in the course of business falls within the scope of the defence of justification. For some discussion of this in the context of the criminal law, see e.g. G. Williams, Criminal Law: the General Part, 2nd edn., (London 1961), para. 124; A. Simester, J. Spencer, G. Sullivan and G. Virgo, Criminal Law: Theory and Doctrine, pp. 224–226

131 See text to note 126 above.

132 Cf. Abou-Rahmah v. Abacha [2006] EWCA Civ 1492, [2007] 1 Lloyd's Rep 115 in the context of assistance liability in Equity.

133 Compare C.B.S., where Amstrad took some steps to prevent the hi-fi systems being used unlawfully.

134 Cf. MGM Studios Inc. v. Grokster Ltd. 545 U.S. 913 (2005) (U.S.A.); Twentieth Century Fox Film Corporation v Newzbin Ltd [2010] EWHC 608 (Ch); [2010] E.C.C. 13.

135 Accepted by Lord Nicholls in OBG: [2007] UKHL 21, [2008] 1 A.C. 1, at [193]. See too Edwin Hill and Partners v. First National Finance Corp. plc [1989] 1 W.L.R. 225, 233; Glamorgan Coal Co v. South Wales Miners' Federation [1903] 2 K.B. 545, 573, affirmed by the House of Lords: [1905] A.C. 239.

136 [1924] 1 Ch. 302. As Cane has pointed out, “[i]nducing a person to breach a contract may not be wrong if the contract itself is a vehicle of wrongdoing”: Cane, P., “Mens Rea in Tort Law” (2000) 20 O.J.L.S. 533CrossRefGoogle Scholar, 554.

137 Greig v. Insole [1978] 1 W.L.R. 302, 340–342 (Slade J).

138 Howarth, D, “Against Lumley v. Gye” (2005) 68 M.L.R. 195CrossRefGoogle Scholar has strongly advocated the extension of this defence.

139 H. Carty, An Analysis of the Economic Torts (Oxford 2001), p. 85. Since this is an area of the law which deals with calculated conduct, and therefore decisions are made before the (potentially tortious) act, the law must be as clear as possible to enable people to appreciate the effects of their actions.

140 In essence, such a defence was recognised by the U.S. Supreme Court in Sony Corp of America v. Universal City Studios 464 US 417 (1984).

141 It is suggested that this may help to explain the recent decision of the US Supreme Court in MGM Studios Inc. v. Grokster Ltd. 545 U.S. 913 (2005) (U.S.A.).

142 Such as the law of contract and fiduciary obligations, consideration of which must occur elsewhere.