Allen v Flood: HL 14 Dec 1898

Tort of Malicicious Inducement not Committed

Mr Flood had in the course of his duties as a trade union official told the employers of some ironworkers that the ironworkers would go on strike, unless the employers ceased employing some woodworkers, who the ironworkers believed had worked on iron for another firm. The employers discharged the woodworkers (without breach of contract). Two of the woodworkers sued Mr Flood for loss of their employment, arguing that mere malice, in the sense of doing that which was calculated in the ordinary course to damage, and which did damage, without just cause or excuse, sufficed to ground tortious liability.
Held: The action failed. The case did not fall within Lumley v Gye because no breach of contract or other unlawful act had been procured and did not fall within the unlawful means tort because no unlawful means had been used.
Lord Watson: ‘There are in my opinion two grounds only upon which a person who procures the act of another can be made legally responsibly for its consequences. In the first place he will incur liability if he knowingly and for his own ends induces that other person to commit an actionable wrong. In the second place when the act induced is within the right of the immediate actor and is therefore not wrongful in so far as he is concerned, it may yet be to the detriment if a third party; and in that case according to the law laid down by the majority in Lumley v Gye the inducer may be held liable if he can be shown to have procured his object by the use of illegal means directed against that third party.’ He approved the judgment in the Queen’s Bench as embodying ‘an intelligible and a salutary principle’: ‘He who wilfully induces another to do an unlawful act which, but for his persuasion, would or might never have been committed, is rightly held to be responsible for the wrong he has procured.’
Lord Herschell: ‘the procuring [of] what was described as an unlawful act – namely, a breach of contract, was regarded as the gist of the action.’ and ‘More than one of the learned judges who were summoned refers with approval to the definition of malice by Bayley J in the case of Bromage v Prosser: ‘Malice in common acceptation of the term means ill-will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse.’ It will be observed that this definition eliminates motive altogether.’
Lord MacNaghten discussed the principle underlying Lumley v Gye: ‘[W]here the act itself to which the loss is traceable involves some breach of contract or some breach of duty, and amounts to an interference with legal rights . . the immediate agent is liable, and it may well be that the person in the background who pulls the strings is liable too, though it is not necessary in the present case to express any opinion on that point.’
He emphasised the absence of a conspiracy: ‘the decision of this case can have no bearing on any case which involves the element of oppressive combination. The vice of that form of terrorism commonly known by the name of ‘boycotting,’ and other forms of oppressive combination, seem to me to depend on considerations which are, I think, in the present case conspicuously absent.’

Lord Watson, Lord Herschell, Lord Macnaghten
[1898] AC 1, [1897] UKLawRpAC 56, 67 LJQB 119, 74 LT 83
England and Wales
DistinguishedLumley v Gye 1853
Inducing breach of contract is a Tort
An opera singer (Miss Wagner) and the defendant theatre owner were joint wrongdoers. They had a common design that the opera singer should break her contract with the plaintiff theatre owner, refuse to sing in the plaintiff’s theatre and instead . .

Cited by:
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The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
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CitedDouglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
DistinguishedQuinn v Leathem HL 5-Aug-1901
Unlawful Means Conspiracy has two forms
Quinn was treasurer of a Belfast butchers’ association. Leathem, who traded as a butcher, employed some non-union men, although when the union made difficulties he asked for them to be admitted to the union, and offered to pay their dues. The union . .
CitedRCA Corporation v Pollard CA 1982
The illegal activities of bootleggers who had made unauthorised recordings of concerts, diminished the profitability of contracts granting to the plaintiffs the exclusive right to exploit recordings by Elvis Presley.
Held: The defendant’s . .
AppliedNational Phonograph Co Ltd v Edison-Bell Consolidated Phonograph Co Ltd CA 1908
The defendant had intentionally caused loss to the plaintiff by fraudulently inducing a third party to act to the plaintiff’s detriment. The court considered the tort of wrongful interference in contractual relations where a fraud had clearly been . .
CitedDouglas and others v Hello! Ltd and others; similar HL 2-May-2007
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CitedCrofter Hand Woven Harris Tweed Co Ltd v Veitch SCS 1940
Lord Justice Clerk Aitchison said: ‘When the end of a combination is not a crime or a tort in the accepted sense, and the means are not in the accepted sense criminal or tortious – cases which give rise to no difficulty – the question always is – . .
CitedTotal Network Sl v Revenue and Customs HL 12-Mar-2008
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CitedRhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
CitedSecretary of State for Health and Another v Servier Laboratories Ltd and Others SC 2-Jul-2021
Economic tort of causing loss by unlawful means
The Court was asked whether the ‘dealing requirement’ is a constituent part of the tort of causing loss by unlawful means; whether a necessary element of the unlawful means tort is that the unlawful means should have affected the third party’s . .
CitedNavigators Insurance Company Ltd and Others v Atlasnavios-Navegacao Lda SC 22-May-2018
The vessel had been taken by the authorities in Venezuela after drugs were found to have been attached to its hull by third parties. Six months later it was declared a constructive total loss. The ship owners now sought recovery of its value from . .

Lists of cited by and citing cases may be incomplete.

Torts – Other

Leading Case

Updated: 01 November 2021; Ref: scu.194967