Economic Delict and Harassment

• Pure Economic Loss


  where the harm is purely financial and not connected to any other injury.
• Total Network SL v HMRC [2008] UKHL 19 per Lord Hope


  Why economic delict is a thing."designed only to enforce standards of civilised behaviour in economic competition between traders or between employers and labour"
• What is an economic delict


  ConspiracyCausing Loss by Unlawful Means,Inducing Breach of ContractPassing Off
• General Principle of 'Economic Wrong'


  In business competition is essentialA can harm B economically as long as A has acted Lawfully.(disregard competition law)A used lawful means to cause economic harm to Beven though the intention may have been to maliciously cause the harm to B.The Courts are interested in unlawful means.
• Example of inducing breach of contract in economic delict

  1. If Colin induces Fred to break his contract with Anne.Anne can sue Fred for breach of contract.2. Anne may be able to sue Colin in delict for inducing Fred to break his contract with Anne.It is an actionable wrong if Colin has intentionally and without lawful justification induced Fred to break his contract with Anne. There is damage to Anne as a result of the breach.
• British Motor Trade Association v Gray 1951


  Grey purchased a car near-new and argued that his offer to purchase the car at a higher price than the dealer did not amount to inducement - the court was ultimately unswayed by this and ruled his offer at a higher price was inducting the original purchaser to break their contract.
• OBG v Allan [2008]


  HL held that a breach of contract by inducement was a accessory liability.An intention to procure or cause loss was found to be an essential requirement of a tort of wrongful interference with contractual relations
• Global Resources Group v McKay 2008 SLT 104 [106-107] and section 2.3 of TDL

  1. A must breach the contract with C2. B must know that his acts will result in Alice breaching the contract with C3. B must intend to induce the breach of contract as a means to an end itself or to achieve another end.4. Bmust in fact induce by persuading ,encouraging or assisting A. The inducement does not have to be lawful.5. B will have a defence if the inducement is justified.
• Causing Loss by Unlawful Means


  B uses unlawful means against A in order to cause C harm.C must show that B intended to cause financial loss.Also, C must show that unlawful means were used.Unlawful means is restricted to 'civil wrongs.'The unlawful means must have affected the a third party's freedom to deal with the claimant.
• Conspiracy


  B and A work together to harm C.
• conspiracy by lawful meansCrofter handwoven Harris Tweed Limited v Veitch 1942 SC(HL


  When B and A use lawful means then the conspiracy is not delictual unless C can prove that the predominant motive or intention of the conspirators was to injure her.• C must prove that A and B predominate purpose was to harm her economically.• C must also prove that she has suffered an economic loss as a result.
• Unlawful ConspiracyLonrho v Al-Fayed (No.1) [1992] 1 AC 448


  Only actionable if an intention of the conspirators is to harm the pursuer. It was not the primary purpose of the conspirators.
• Unlawful conduct'

  1. Delictual if done by one person alone;2. The action constitutes a breach of contract; or3. constitutes a breach of the criminal law.
• 'Passing off'


  The protection from harm caused by another business employing words or marks or packaging that you can prove are distinctive to your own existing brand.eg• Marks and Spencer's Colin the caterpillar• Aldi's Cuthbert the caterpillar
• Ervin Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731

  A misrepresentation• Made by a trader in the course of trade• To prospective customers of his or ultimate consumers of goods or service supplied by him
• Scottish Milk Marketing Board v Dryborough & Co Ltd1985 SLT 253

  Scottish Pride Butter and Scottish Pride Lager were so different the consumer was not likely to confused the products.
• Dunlop Pneumatic Tyre Co v Dunlop Motor Co


  A multi-million pound tyre company and a small motor garage in Kilmarnock. It was not likely that they would be confused.
• Lego System A/S v Lego M Lemelstrich Ltd [1983] FSR 15


  A toy manufacturing company was successful in applying for injunction to stop an irrigation company using 'Lego' as its name.
• Protection from Harassment Act 1997s. 8 - s.11 (Scottish Provisions)


  s. 8 - s.11 (Scottish Provisions)What is Harassment? (s.8(3))"conduct'' includes speech;"harassment" of a person includes causing the person alarm or distress; anda course of conduct must involve conduct on at least two occasions.
• Domestic Abuse s.8A


  conduct'may involve behaviour on one or more than one occasion; and includesspeech; and presence in any place or area; and"harassment" of a person includes causing the person alarm or distress."
• Defences s.8


  (4)It shall be a defence to any action of harassment to show that the course of conduct complained of—(a)was authorised by, under or by virtue of any enactment or rule of law;(b)was pursued for the purpose of preventing or detecting crime; or(c)was, in the particular circumstances, reasonable
• Remedies


  The Court can award:DamagesInterim interdict/ interdictNon Harassment orderThe defender has to refrain from conduct for a time period and that could be indeterminate.A defender cannot be subject to a interdict and a Non-Harassment order at the same time.It is a criminal offence to breach this order. (s.9)If convicted then a prison sentence could be given