When considering a claim (or counterclaim) in tort, many lawyers’ thoughts begin and end with negligence. The law of tort addresses non-contractual civil wrongs of many kinds, however.
Depending on the circumstances, instead of or in addition to a claim in negligence, a civil wrong might be addressed by claims in torts such as negligent misstatement or deceit, trespass, nuisance, or any number of more esoteric torts.
- A false representation might give rise to an action based on negligent misstatement, or in deceit. For negligent misstatement, the claimant must establish that the representor owed a duty to the claimant which has been breached. The tort of deceit requires the claimant to show that the representor knowingly or recklessly made a false statement, intending that the claimant rely on that statement. In both cases, actual reliance, to the claimant’s detriment, must be proved.
- Wrongful interference with, or harm to, land, goods or the person might give rise to an action in trespass.
- Where there has been damage to, or interference with the enjoyment of, land a party may seek damages or injunctive relief through a claim in private nuisance.
A number of so-called “economic torts” provide a route to redress where one party’s intentional conduct has injured another’s economic interests. These include interference with contracts, conspiracy and breaches of a party’s intellectual property rights:
- Procuring a breach of contractual obligations by a third party is actionable in tort. Where unlawful means are used to interfere with business or contractual relations, this may found an overlapping action for unlawful interference or for inflicting harm by unlawful means.
- Where multiple tortfeasors have jointly taken action or entered into an agreement which has caused harm to another, this may be grounds for a claim in conspiracy. The most common is a claim for unlawful means conspiracy, requiring the use of unlawful means and an intention to cause harm. An accessory to the commission of tortious acts by another may also find themselves caught by the tort of common design (Sea Shepherd UK v Fish & Fish Ltd ).
In the courts
The English courts are not afraid to see old torts revived, nor even to create new ones if required. The tort of intentional infliction of mental suffering was established over a century ago (Wilkinson v Downton) and was used (albeit unsuccessfully) in 2015 as the basis of an attempt to prevent publication of certain materials. More recently:
- In Marex Financial Limited v Carlos Sevilleja Garcia, although only hearing a jurisdictional challenge, the court recognised the (new) tort of inducing or procuring non-payment of a judgment debt, and rejected arguments that in doing so they were opening the door to widespread invocation of the tort as well as affecting the freezing order regime.
- In UPL Europe Ltd & Ors v Agchemaccess Ltd & Ors it was held that the tort of unlawful means conspiracy ought not to be extended so as to cover breaches of regulatory legislative provisions whose enforcement was the responsibility of a government authority (the HSE having decided not to pursue criminal proceedings).
- In Various Claimants v WM Morrisons Supermarket plc (see our elexica article here) a data breach led to claims for breaches of the Data Protection Act (DPA) and breach of confidence, but claims were also founded in the tort of misuse of private information. The court rejected arguments that the nature of the ‘data controller’s’ statutory obligations under the DPA meant that Morrisons could not have vicarious liability for the tortious acts of its employee. The common law remedies are not incompatible with the statutory regime, but complementary to it.
What this means
- Differences in remedies, the burden or nature of proof required, and in some cases elements of strict liability, may mean that an alternative to a negligence claim would provide a party with a better route to redress. For claims against public bodies, for example, a claim founded in the tort of misfeasance in public office may offer a more viable basis for a claim than a negligence action, particularly when dealing with a wide class of potential claimants; the authorities indicate that there is no (or a very limited) proximity requirement.
- Even where a negligence claim might otherwise be the obvious route, where the evidence as to one or more of the key elements looks to be absent or problematic, there may still be a number of possible alternative torts in play. Advisors and parties should consider the full gamut of available tortious options and the key elements of each.