Secretary 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 freedom to deal with the claimant. Servier had persisted in asserting and defending a patent asserting its novelty, but knowing that to be false or reckless as to its is truth. The claimant had had to pay more for its drugs.
Held: The dealing requirement is part of the ratio of OBG. The stated purpose of the decision in OBG was to bring clarity to the law and to set out and define the requisite elements of the unlawful means tort and the tort of inducing breach of contract. That is what they were purporting to do and that is what they did.

Lord Reed, President, Lord Hodge, Deputy President, Lord Lloyd-Jones, Lord Briggs, Lord Kitchin, Lord Sales, Lord Hamblen
[2021] UKSC 24
Bailii, Bailii Summary, Bailii Issues and Facts
England and Wales
CitedDouglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Appeal fromThe Secretary of State for Health and Another v Servier Laboratories Ltd and Others CA 12-Jul-2019
The SS said that the respondent had knowingly made false assertions in its defence of a patent. This had unlawfully maintained the patent, causing the appellant to pay more for associated drugs. . .
At First InstanceThe Secretary of State for Health and Another v Servier Laboratories Ltd and Others ChD 2-Aug-2017
Roth J struck out the unlawful means tort claim, saying that, in OBG ‘the ratio of Lord Hoffmann’s determination of the elements of the tort is in para 51’ of his speech: ‘Unlawful means therefore consists of acts intended to cause loss to the . .
CitedAllen 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 . .
CitedQuinn 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 . .
CitedGarret v Taylor 1620
The defendant was held liable under the tort of causing loss by unlawful means, after he drove away customers of Headington Quarry by threatening them with mayhem and vexatious suits. . .
CitedTarleton v M’Gawley 1790
The master of the Othello, anchored off the coast of West Africa, was held to be liable in tort for depriving a rival British ship of trade by the expedient of using his cannon to drive away a canoe which was approaching from the shore: ‘that an . .
CitedNational 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 . .
CitedGWK Ltd v Dunlop Rubber Co Ltd 1926
GWK company made motor cars and the ARM company made tyres. GWK contracted to fit all their new cars with ARM tyres and to show them with ARM tyres at trade exhibitions. On the night before a motor show in Glasgow, Dunlop employees removed the ARM . .
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 . .
CitedLonrho plc v Fayed CA 1989
There had been a battle to purchase the share capital of the House of Fraser which owned Harrods. Lonrho alleged that the Fayed brothers had perpetrated a fraud on the Secretary of State, and thereby secured permission to buy the company without a . .
CitedOren, Tiny Love Limited v Red Box Toy Factory Limited, Red Box Toy (UK) Limited, Index Limited, Martin Yaffe International Limited, Argos Distributors Limited PatC 1-Feb-1999
One plaintiff was the exclusive licensee of a registered design. The defendant sold articles alleged to infringe the design right. The registered owner had a statutory right to sue for infringement. But the question was whether the licensee could . .
CitedAir Canada and Others v Emerald Supplies Limited and Others CA 14-Oct-2015
Appeal against case management directions given by Peter Smith J. . .
CitedRookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
CitedHenderson v Dorset Healthcare University NHS Foundation Trust SC 30-Oct-2020
Where a claimant, during a serious psychotic episode, committed a criminal offence, which she would not have committed but for the defendant’s negligence, can she recover damages for the consequences of having committed the offence, including her . .
CitedSea Shepherd UK v Fish and Fish Ltd SC 4-Mar-2015
Accessory Liability in Tort
The court considered the concept of accessory liability in tort. Activists had caused damage to vessels of the respondent which was transporting live tuna in cages, and had caused considerable damage. The appellant company owned the ship from which . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Intellectual Property

Updated: 02 November 2021; Ref: scu.666002