MEMORANDUM ON THE CIVIL ACTION OF CONSPIRACY.

BY MR. ARTHUR COHEN, CONCURRED IN BY LORD DUNEDIN, SIR GODFREY

LUSHINGTON, AND MR. SIDNEY WEBB.

I propose in this Appendix to discuss the question in what cases a civil action of conspiracy can be maintained.

If a person is a party to a conspiracy or combination to do acts causing injury to another person and those acts are in themselves actionable torts, there the injured person can evidently maintain an action quite apart from conspiracy; he can maintain it against anyone who is a party to the conspiracy, and the non-joinder of the other parties to it cannot be pleaded either in bar or in abatement. For instance, if two or more persons conspire to assault, and do assault, another person, the latter can maintain an action for such assault against any one who committed the assault or who joined in and authorised it, and the allegation of conspiracy in the statement of claim is mere surplusage, except so far as it may affect the amount of damages to be recovered. In those cases, therefore, conspiracy is not the foundation of the action. Herein lies the essential distinction between an action and a criminal prosecution.

In a well known passage from the opinion of the judges delivered by Willes, J., in Mulcahy v. Reg. 1868, L.R., 3 H.L. 317, the character of a criminal conspiracy is described in the following terms :

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A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object, or for the use of criminal means."

In the case of a civil action the position is entirely different, for such an action cannot be maintained merely because the combination or conspiracy has been formed; it is necessarily a condition precedent to the right of action that the tortious act itself should have been committed and that the actual damage or injury should have accrued.

There may be, however, cases where the combination or conspiracy to injure is itself a misdemeanour, although the acts agreed to be done are neither actionable torts nor criminal offences; for instance those in which there is a conspiracy to injure such as is not protected by the provisions of the Conspiracy and Protection of Property Act 1875.

In those cases a civil action can be maintained by the injured person. Thus Coleridge, L.C.J., says in the Mogul case at page 549 of 21, Q.B.D.

"If the combination is unlawful, then the parties to it commit a misdemeanour, and are offenders against the State; and if, as the result of such unlawful combination and misdemeanour, a private person receives a private injury, that gives such person a right of private action."

Again in the same case in the Court of Appeal, Fry, L. J., says at page 624 of 23, Q.B.D.:

"I cannot doubt that whenever persons enter into an agreement which constitutes at law an indictable conspiracy, and that agreement is carried into execution by the conspirators by means of an unlawful act or acts which produce private injury to some person, that person has a cause of action against the conspirators."

In such cases it may be said that the conspiracy, which is the misdemeanour, is the ground of the civil action. These, however, are the only cases in which it can, in propriety, be said that a civil action can be maintained for conspiracy. There is abundant authority in proof of this proposition. The principal authorities are the judgment of Lord Holt in Saville v. Roberts, I. Lord Raymond, 374, the notes to Skinner v. Gunton, reported in I. William Saunders, 269, the judgment of Coleridge, L.C.J., in the Mogul case, 21, Q.B.D., 547, and the cases therein cited by his Lordship, also the judg ments in the same case in the Court of Appeal, and in the House of Lords in 23, Q.B.D., 598 and 1892, A.C. 25, finally the judgments in the Scottish Co-operative Society v. the

Glasgow Fleshers Association, 35 Scotch L.R., 645, and in Kearney v. Lloyd, 26 Ir., L.R. 268, and the judgment of Lord Esher in Salaman v. Warner, 7 Times Law Reports P. 485.

It will be enough to cite passages from one or two of these judgments. In Kearney v. Lloyd, Palles, C.B. (p. 280) says:

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It anything is well settled in law, it is that in cases of this description (i.e., so-called actions for conspiracy) in which the old writ of conspiracy did not lie, the gist of the action is not the conspiracy itself, but the wrongful acts done in pursuance thereof. The cause of action must exist, although the allegation of conspiracy be struck out."

Again, in the Mogul case, which was an action for conspiracy, Lord Bramwell, in delivering his opinion in the House of Lords, said it was not enough for the plaintiffs to make out that the agreement was illegal, that is, not enforceable by law. To maintain their action on this ground (i.e., conspiracy) they must make out that it was an offence, a crime, a misdemeanour.

In the same case the Lord Chancellor said (p. 40 of 1892, A.C.) :

"I ask myself whether, if the indictment had set out the facts using the ambiguous language to which I have referred in the statement of claim, it would have disclosed an indictable offence.'

It is difficult to see how this question could be material except upon the assumption that the civil action for conspiracy upon which the statement of claim was founded, was not maintainable unless the conspiracy was criminal.

Again, in Salaman v. Warner, a case unconnected with trade disputes, and involving the general common law of conspiracy, Lord Esher says, at p. 484 of The Times Law Reports :"It is not true to say that a civil action could be brought for a conspiracy. If persons conspired to do an illegal thing, or to do a legal thing in an illegal way, they are liable to an indictment and not to an action. They are only liable to an action if they conspired to do something against the rights of the plaintiffs, and have effected their purpose and committed a breach of those rights. The plaintiff, therefore, must show that the conspiracy was to injure his rights, and that those rights had been injured. He has, in fact, to carry his case as far as if there were no conspiracy at all. The fact of there having been a conspiracy did not increase his right of action in the least, though it did not diminish it."

Finally, there is on this point the well-known authoritative statement in the note to Skinner v. Gunton, I. William Saunders, p. 229 b. (4), 230 :

A writ of conspiracy, properly so called, did not lie at common law in any case, but where the conspiracy was to indict the plaintiff either of treason or felony, and he had been acquitted of the indictment by verdict, and such writ could only be brought against two at least. All the cases of conspiracy, called in the old books writs of conspiracy, are in truth nothing else but actions on the case, and not properly writs of conspiracy, though in most, if not all of them, it was usual to insert the words per conspirationem inter eos habitam, and these actions it was always held might be brought against one person only. Those words inserted in the writ or declaration do not convert the action into a formed action of conspiracy, but it is nevertheless an action upon the case, and those words are mere surplusage intended as matter of aggravation, and therefore not necessary to be proved to support the action."

Such are the numerous authorities in support of the view I am contending for; but there is one case that has been frequently cited in support of the opposite view. It is Gregory v. The Duke of Brunswick, and another 6 M. & G., 205 and 953, also 6 Scott, N.R., 807.

This case, therefore, requires to be carefully examined. The declaration stated in effect that the defendants, maliciously intending to injure and aggrieve the plaintiff, and to oppress, impoverish, and ruin him, wickedly and maliciously conspired together to prevent the plaintiff from performing in the character of Hamlet, and in pursuance of the said conspiracy hired a number of persons to hoot and hiss him, and to make a great uproar and rio' at and against the plaintiff, and thereby compelled the plaintiff to discontinue acting, and in consequence the plaintiff sustained damage.

The defendants pleaded a plea of justification, as to so much of the grievances as related to the hooting, hissing, and making a great uproar at and against the plaintiff. To this plea there was a special demurer.

The counsel for the plaintiff in the course of his argument cited a note of the Reporter to the case of Clifford v. Brandon, 2 Camp. 372, which stated that Macklin, the comedian, indicted several persons for a conspiracy to ruin him in his profession, that they were tried before Lord Mansfield, and it being proved that they had entered into a plot to hiss him as often as he appeared on the stage, they were found guilty under his Lordship's direction. On this note being cited, Maule, J., said :

This is very like the present case."

In other words, the declaration set forth a criminal conspiracy. In fact, it is evident that a combination to create a riot in a theatre or in any other place is a combination to commit a misdemeanour, and therefore a criminal conspiracy.

Tindal, C. J., in delivering judgment against the validity of the plea, said :—

"Every plea which is not in denial of the charge must be in confession and avoidance of the whole or some part of the declaration. Here the defendants single out an overt act of the conspiracy and attempt to justify it. The charge of conspiracy and some of the overt acts remain unanswered."

The case afterwards came on for trial before the Chief Justice. The plaintiff rested his case entirely on the conspiracy. The Chief Justice left it to the Jury to say whether what took place in the theatre was the result of a preconcerted arrangement between the defendants and other persons in the theatre.

The jury found for the defendants.

The plaintiff moved for a new trial on the ground of misdirection, the misdirection being that the Lord Chief Justice omitted to tell the Jury that either of the defendants might be found guilty, although the other were acquitted, and told them that unless there was a conspiracy between the defendants they ought to find for the defendants.

The report of the case on this point is at p. 953 of 6 M. & G.

The counsel for the plaintiff argued that there were many cases showing a civil action for conspiracy was in reality an action of tort, and would therefore lie, though only one person was guilty.

It was held by the Court (p. 958-959) that, as the plaintiff's counsel, although he considered the action was capable of being sustained against one of the defendants alone, yet thought it more for the interest of his client not to advert before the Jury to that view of the case, but on the contrary to make out a case of conspiracy against both the defendants he was not entitled to a new trial on the ground that the Lord Chief Justice had not made out a case for the plaintiff which his counsel had purposely declined to make.

This part of the judgment was as follows:

It might be true in point of law that on the declaration as framed, one defendant might be convicted, although the other was acquitted, but, whether, as a matter of fact, the plaintiff was, under the circumstances entitled to a verdict against one of the defendants alone, was a very different question. It was to be borne in mind that the act of hissing in a public theatre is prima facie a lawful act, and even if it should be conceded that such an act, though done without concert with others, if done from a malicious motive might furnish a ground of action, yet it would be very difficult to infer malice from isolated acts of one person unconcerted with others."

When the plaintiff thought proper to rest his case wholly on proof of conspiracy the judge (as the Court proceeded to say), was well warranted in treating the case as one in which unless the conspiracy was established, there was no ground for saying that the plaintiff was entitled to a verdict.

I submit, with great deference to those who have expressed a contrary opinion, that a careful examination of the judgments in Gregory v. The Duke of Brunswick shows that the case is no authority for the proposition that an action can be maintained for a conspiracy where the conspiracy is not a misdemeanour. As before observed, the Declaration alleged amongst other things a combination to create a riot in a theatre, which is in itself a combination to commit a misdemeanour. Moreover, if this be not the true view of the Declaration, it undoubtedly alleged a conspiracy to ruin the plaintiff in his profession by hissing him off the stage, and this was, whether rightly or wrongly assumed, in accordance with a ruling of Lord Mansfield, to be a criminal conspiracy.

Finally, even if Gregory v. Duke of Brunswick did, as I venture to deny, contravene the proposition for which I am contending, that case which was decided many years ago would be inconsistent with the numerous authorities cited at the beginning of this

paper.

There are two other cases which have been cited to show that an action can be maintained for a conspiracy which is not a criminal conspiracy; namely, R. v. Parnell 14 Cox C.C. 508, and Barber v. Lesiter. 7 C.B.N.S., 175.

As regards the former case, it was an action for a criminal conspiracy, and has therefore nothing to do with the question now under consideration. As regards the other case Barber v. Lesiter, it will be found on a careful examination that the declaration would at law have been equally good if all the statements about conspiracy were struck out, and that the only point actually decided was that it appeared on the face of the declaration that the damages were too remote.

For all these reasons I submit that at common law a combination to do any acts cannot be made the subject of a civil action, unless such acts would, apart from the conspiracy, give a right of action, or unless the combination be a criminal conspiracy. In short, conspiracy cannot be the foundation of a civil action unless it be a criminal conspiracy.

If this view be correct, then the decision in Quinn v. Leathem that the Act of 1875 did not affect any civil liability which existed previously, although it may be the result of a proper construction of the statute, would manifestly introduce an anomaly into our law. It has been seen that the question whether a civil action of conspiracy is maintainable is material only in those cases where the act in itself is not a tort and would not give a right of action. Now it is exactly in those cases that the action of the common. law relating to criminal conspiracy is, to use the language of Earl Cairns, "indirect and

deluding," and it is for this reason that the legislature passed the Act of 1875 with a view to prevent its application to disputes between workmen and their employees. It is for the very same reason equally important that it should be excluded from civil liability in disputes between employers and workmen.

Finally, I would observe that nothing which I have said affects the question of political boycotting, for nothing that I have urged impugns in the slightest degree or is intended to throw any doubt whatever on the proposition that in all cases, where boycotting or any other act or agreement intended to cause injury is a misdemeanour or criminal offence a civil action can be maintained by the injured person.

MEMORANDUM ON "ALLEN v. FLOOD" [1898. A.C. 1]

BY

BY MR. ARTHUR COHEN, CONCURRED IN BY LORD DUNEDIN, SIR GODFREY LUSHINGTON, AND MR. SIDNEY WEBB.

It has been in effect recommended in our Report that a combination of two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be ground for an action, if such act, when committed by one person, would not be ground for an action. Moreover, it is enacted by the Conspiracy and Protection of Property Act 1875, that a similar combination shall not be indictable as a conspiracy, if such act committed by one person would not be punishable as a crime. It follows that the only remaining subject to be considered is that of noncriminal torts committed by one individual. In connection with this subject, there is, since the unanimous confirmation of Lumley v. Gye in the House of Lords, only one legal question of any importance or difficulty. It is this: Is a person liable for doing any act which, though not in itself an actionable tort, amounts to an interference with or molestation of another person in his trade, business or employment?

I propose to show that since the decision of Allen v. Flood, and also independently of that decision and on general principles of law, this question must be answered in the negative.*

The facts which gave rise to the case of Allen v. Flood are for the present purpose sufficiently stated in the head note which is as follows:

"The respondents were shipwrights employed for the job on the repairs to the woodwork of a ship, but were liable to be discharged at any time. Some ironworkers who were employed on the ironwork of the ship objected to the respondents being mployed, on the ground that respondents had previously worked at ironwork on a ship for another firm, the practice of shipwrights working on iron being resisted by the trade union of which the ironworkers were members. The appellant, who was a delegate of the union, was sent for by the ironworkers and informed that they intended to leave off working. The appellant informed the employers that unless the respondents were discharged, all the ironworkers would be called out or knock off work (it was doubtful which expression was used) that the employers had no option, that the ironmen were doing their best to put an end to the practice of shipwrights doing ironwork, and that wherever the respondents were employed the ironmen would cease work. There was evidence that this was done to punish the respondents for what they had done in the past. The employers, in fear of this threat being carried out which (as they knew) would have stopped their business, discharged the respondents and refused to employ them again. In the ordinary course the respondents' employment would have continued. The respondents having brought an action against the appellant the jury found that he had maliciously induced the employers to discharge the respondents and not to engage them, and gave the respondents a verdict for damages."

The statement of claim contained, amongst other counts, one charging conspiracy, but the learned judge who tried the case ruled that there was no evidence to support that charge, and no objection was taken to this ruling. Therefore all that was said in the judgments in Allen v. Flood about conspiracy and about Temperton v. Russell and other cases turning on conspiracy were entirely immaterial to the decision. There were also counts charging illegal intimidation, coercion and threats, and also one alleging that the defendants maliciously and wrongfully induced the Glengall Company to break their contracts with the plaintiffs; but as regards those two counts the learned Judge who tried the case ruled that there was no evidence to support these charges (see 1898 A.C. p. 3).

The only count on which the plaintiffs were left to rely, and the only one on which their counsel asked the judge to leave questions to the jury was one alleging that

"The defendants maliciously and wrongfully and with intent to injure the plaintiffs procured the Glengall Company to discharge them and not to enter into new contracts with them."

* On the subject of Allen v. Flood, see the questions put to Mr. Askwith and his answers at pages 17, 51, 52, and 56 of the Evidence in the Appendix.