Causing loss by unlawful means (C)

Question 1

What are the three requirements for causing loss by unlawful means?

Answer 1

OBG v Allan [2008] 1 AC 1 / McLeod v Rooney 2009 SLT 158.
1. D uses unlawful means to interfere with the actions of X, a third party in which P has an economic interest.
2. D intends for that interference to harm P, by restricting X’s freedom or ability to deal with P.
3. D’s interference causes loss to P.

Question 2

Douglas v Hello! [2008] 1 AC 1.

Answer 2

Michael Douglas, Catherine Zeta Jones wedding. OK! Magazine had exclusive contract to publish photos from wedding. Hello! Magazine published photos. Intention was to sell more copies than competitors OK!
Held it was not actionable.

Question 3

Step 1: Unlawful means?

Answer 3

OBG v Allan.
Actionability: [49] “acts against a third party count as unlawful means only if they are actionable by that third party”.
- Only if a civil wrong - delict, breach of contract etc.

Question 4

Step 2: Restricting?

Answer 4

OBG v Allan.
Restriction: [51] “unlawful means … 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.”

AI Enterprise v Bram Enterprise [2014] 1 SCR 177.
Canadian courts disagree with need to show “interference with freedom to deal with” pursuer.

Application to Hello! case:
“All they did was to make OK!’s contractual rights less profitable” (Lord Hoffmann, [129]).
“Exclusive licence was not destroyed; it was simply made less valuable” (Lord Walker, [298]).