What is a civil conspiracy in law?
Civil conspiracy is:
- a combination – ie a type of agreement - between two or more individuals or legal entities
- to do an act which is tortious
- with a predominant purpose to injure another person,
- where the agreement uses:
- lawful means to injure the claimant, or
- unlawful means to injure the claimant,
- and damage is suffered by the other person.
In the tort of conspiracy, the combination required to make out a claim for conspiracy doesn’t require a formal, expressly stated agreement.
That’s because the law recognises that conspiracies can arise all sorts of different ways.
When a person assists others to inflict tortious damage, they are all in the conspiracy.
Conspiracies to damage businesses as just as unlawful as conspiracies to cause physical harm.
There are two types of conspiracy. They both have elements in common.
The Combination in Conspiracy: the Agreement
It’s the combination of defendants taking concerted action to achieve the common end that makes conspiracy, conspiracy.
The agreement reached between the co-conspirators and the combined acts are aimed or directed at the claimant, the person that has suffered loss.
The combination isn’t the equivalent of making a contract. It’s more open-textured than that.
For the conspiracy to arise:
- an express agreement is not required. It can be:
- unspoken or
- inferred from conduct, including knowledge attributed as a consequence of wilful blindness
There’s no need for the participants to map out a plan between one another.
And the combination is able to be reverse engineered from facts proved on the balance of probabilities in the case.
- two or more legal persons (ie legal entities) - deliberately combine with a common intention to achieve a common end. The co-conspirators share the same objective to cause damage to the claimant
- the co-conspirators don’t need to join the conspiracy all at the same time
It’s likely that at least one of the alleged co-conspirators will be required to share the knowledge of unlawfulness of the relevant conduct with another co-conspirator.
In Lonrho Plc v Fayed  1 AC 448, Lord Bridge summarised it as follows:
Where conspirators act with the predominant purpose of injuring the plaintiff and in fact inflict damage on him, but do nothing which would have been actionable if done by an individual acting alone, it is in the fact of their concerted action for that illegitimate purpose that the law, however anomalous it may now seem, finds a sufficient ground to condemn their action as illegal and tortious.
But when conspirators intentionally injure the plaintiff and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests; it is sufficient to make their action tortious that the means used were unlawful.
Liability of Co-conspirators
In the tort of conspiracy, it’s the combination that gives rise to the unlawfulness.
That combination alters the legal character and consequences of the actions of the conspirators, and gives rise to liability for those actions forming part of the conspiracy.
With that, the separate tort of conspiracy arises, which would not arise if the combination did not exist.
So, it gives rise to an independent and additional liability to any unlawful acts of each of the co-conspirators. Once the combination – the concerted action to a common end - is acted upon to cause loss or damage, it is actionable as a tort in its own right.
This also means that those co-conspirators that reach the agreement but do not cause the damage are just as liable as those that do cause the damage.
Suppose 3 people conspire to steal copyright works of a company.
Only one of them actually infringes the copyright.
That person is liable for copyright infringement.
The others facilitate the infringement - knowing the common end to be achieved – to steal copyright works.
All 3 of them are liable for conspiracy.
- liable as a joint tortfeasor because they participated in the commission of the tort with others, to achieve the combination, which was tortious.
- jointly and severally liable for the loss caused by them arising from the actions of the co-conspirators.
Difference with criminal conspiracies
Civil conspiracy requires that the agreement is acted on, and causes damage. It follows that a conspiracy must necessarily have been acted on.
Criminal conspiracy is different. The criminal law doesn’t require a positive act to assist with underlying the offence. Knowledge that a conspirator is aiding and abetting the primary offence is sufficient.
In NCB v Gamble (1959), Devlin LJ put it like this:
the consequence [in the criminal law] is that selling a person a gun knowing that person will use it to kill someone else will make the seller an accessory to the murder but will not in itself make him liable in tort.
There is no accessory liability in conspiracy without participation. Liability in tort requires knowledge of the combination and acting upon it to achieve the common end.
The Two Types of Civil Conspiracy
Claims for conspiracy obviously involve more than one defendant.
For each defendant, the claimant bears the burden of proof of each individual element of the conspiracy on the balance of probabilities against each defendant (ie each co-conspirator).
It may be that some facts apply in common to different defendants: such as those going to the common concerted action.
Each however will contribute in different ways by their own acts which establishes liability.
Lawful means Conspiracy
The acts constituting the conspiracy may be lawful, but the predominant purpose is to injure the claimant.
This gives rise to a lawful means conspiracy, also known as “conspiracy to injure”.
What is Conspiracy to Injure?
Conspiracy to injure is also referred to as "lawful means conspiracy".
Breaking it down, conspiracy to injure requires a claimant to satisfy a series of elements:
- concerted action between two or more persons including the defendant (which is the combination)
- a predominant purpose on the part of the defendant to cause damage to the claimant
- an overt act by the defendant in pursuance of the agreement or undertaking; and
- damage results.
In a "lawful means conspiracy":
- the overt acts done pursuant to a conspiracy may be lawful,
- but they are done with an intention with the intention of causing damage: injuring the claimant.
- an otherwise innocent act of agreement becomes actionable when the object of the agreement is unlawful conduct.
The difference with unlawful means conspiracy (see below) is that the combination causes harm to the victim: the means employed to do so is lawful.
As it was put by Viscount Simon in Crofter Hand Woven Harris Tweed Co Ltd v Veitch  AC 435:
If that predominant purpose is to damage another person and damage results, that is tortious conspiracy. If the predominant purpose is the lawful protection or promotion of any lawful interest of the combiners (no illegal means being employed), it is not a tortious conspiracy, even though it causes damage to another person.
Accordingly, the question is whether a purpose to injure was the source of the acts that grew from them.
Where there is more than one purpose or motive to the conspiracy, the claimant bears the burden of proof to show that the predominant intention was to injure. If that is the case, a cause of action arises for conspiracy, even though the means used were lawful.
Unlawful means Conspiracy
The elements of unlawful means conspiracy are:
- concerted action between two or more persons including the defendant (the combination)
- take steps which are unlawful
- knowledge of the unlawfulness on the part of the defendant
- intention on the part of defendant to cause damage to the claimant, whether or not it was the predominant purpose
- an overt act by the defendant in pursuit of the combination; and
- damage results.
The unlawful means conspiracy can arise from anything the conspirators are not lawfully entitled to do.
There must however be a sufficient connection between the acts carried out and the aim of the conspiracy. It is not enough that the unlawful means is just incidental to or nothing to do with the damage inflicted.
The lawful conduct must be the means by which harm is inflicted on the claimant.
The unlawful means might arise from:
- infringement of copyright, or any other intellectual property right
- infringement of the database right
- breach of contract, whether or not it is actionable by the claimant
- breach of confidence
- breach of a statutory duty
- sham transactions: acts done or documents created which are intended give the impression of legal rights which do not actually exist
- contempt of court
- theft, obtaining money by false pretences, or assault occasioning actual bodily harm
A person has a right to advance his own interests by lawful means even if the foreseeable consequence is to damage the interests of others.
That is a natural incident of a market economy.
The existence of the right to advance one’s own interests affords a just cause or excuse. There cannot be any conspiracy. Where unlawful methods are engaged or the motive is unlawful, it’s a different matter.
It’s not simply a matter of exercising a legal right. It’s the predominant purpose not of advancing his own interests but of injuring the claimant which is the purpose.
In either case, there is no just cause or excuse for the combination.
Business Conspiracy Solicitors
Conspiracies can arise in any situation where two or more people have cooperated to cause financial loss to a business.
It can stem from fraudulent intentions, infringement of intellectual property rights, breaches of contract, taking of physical property, and interfering with the administration of the business.
Conspiracies expand the collection of wrongdoers to draw in the benefit of the law to correct the unlawful wrongdoing.
Our solicitors can help.