The tort of conspiracy is still in the nascent stages of development in India. While we are yet to see a successful claim for damages instituted for committing the tort of conspiracy, the principle is being explored and entities may be able to protect their business interests, provided the immensely high standard of proof required is discharged.

Conspiracy in tort law occurs when two or more persons agree to do something lawful but with the pre-dominant purpose to injure the interests of another, or to do something unlawful. The tort of conspiracy thus takes two forms: (i) conspiracy to injure by lawful means or lawful means conspiracy; and (ii) conspiracy to injure by unlawful means or unlawful means conspiracy. It is only prudent that these two facets of the tort of conspiracy be analyzed separately .The tort of conspiracy is an intricate legal concept rooted in both historical and contemporary jurisprudence. This tort addresses scenarios where two or more individuals collaborate with the intent to cause harm or engage in unlawful activities. Originating from early British law, the tort of conspiracy has evolved significantly, adapting to modern legal challenges and interpretations.

Lawful means conspiracy

Conspiracy to injure by lawful means or lawful means conspiracy may be established where the overt acts done pursuant to the conspiracy may be lawful, but the predominant purpose is to injure the claimant. Incidental losses pursuant to actions taken to promote trade are not actionable. It was firmly established in Crofter Hand-Woven Harris Tweed Co. Ltd. V. Veitch, that if there is a combination of persons whose purpose is to cause damage to the plaintiff, that purpose may render acts unlawful, which would otherwise be lawful.

It may be said that lawful means conspiracy exists only in theory and bringing a successful action for this tort may be a stretch of imagination. Lawful means conspiracy has little relevance in the commercial context. The apparent reason for this was observed by the Supreme Court of India in Rohtas Industries Limited and Ors. v. Rohtas Industries Staff Union and Ors. It was stated that “It may well be that even where there is an offending object, it may be difficult for a court to hold that there is a tort if one may read into the facts an equal anxiety for the defendants to promote their success which produces the plaintiff’s extinction.”

Similarly, in Mogul Steamship Co. v. McGregor, Gow & Co.[5], where ship-owners in order to secure exclusive trade for themselves, formed an association and threatened to dismiss agents if they loaded the plaintiff’s ships with cargoes along with circulating notices for non-grant of rebate, should the plaintiff’s vessels be loaded, the House of Lords, affirming the decision of the Court of Appeal held that since the acts of the defendants were done with the lawful object of protecting and extending their trade, the plaintiff had no cause of action.

In a rare case however, the High Court of the Republic of Singapore has remarkably affirmed an allegation of lawful means conspiracy. In SH Cogent Logistics Pte Ltd v. Singapore Agro Agricultural Pte Ltd.[6], the Court found that the defendants had deliberately and with the predominant purpose to injure, evicted the existing tenants. The Court derived the predominant intent to injure from the defendant’s disruptive conduct at its own expense.

Lawful means conspiracy is also somewhat anomalous. The anomaly lies in the fact that the tort imposes liability on two or more persons acting in concert to pursue a course of conduct that is otherwise lawful, when committed by an individual.[7]

Unlawful means conspiracy

As opposed to lawful means conspiracy, unlawful means conspiracy does not require the intention to injure to be predominant. This was clarified by the House of Lords, after a period of uncertainty, in Lonrho plc v. Fayed[8]. The elements of unlawful means conspiracy were crystallized in OBG v. Allen[9] as

1. Unlawful means conspiracy is a tort of primary liability;
2. It involves the use of unlawful means;
3. Liability for unlawful means does not depend upon the existence of contractual relations and
4. Economic damages caused.

Conspiracy being a tort of primary liability, the question what constitute unlawful means cannot depend on whether their use would give rise to a different cause of action independent of conspiracy. The real test is whether there is a just cause or excuse for combining to use unlawful means. That depends on (i) the nature of the unlawfulness, and (ii) its relationship with the resultant damage to the claimant. This was the position reached by the House of Lords in Revenue and Customs Comrs v. Total Network SL .The Court held that a criminal offence could be a sufficient unlawful means for the purpose of the law of conspiracy, provided that it was objectively directed against the claimant, even if the predominant purpose was not to injure him.

In JSC BTA Bank v. Khrapunov, where the UK Supreme Court examined the jurisprudence of tort of conspiracy and observed that the reasoning in Total Network left open the question of how far the same considerations apply to non-criminal acts, such as breach of civil statutory duties, or breach of contract or fiduciary duty. The Court held that the act of assisting Mr. Ablyazov in concealing and dissipating assets, against whom the bank had a freezing order, rendered his son-in law Mr. Khrapunov liable for conspiracy to injure by unlawful means.

An attempt to secure an injunction for the tort of conspiracy was made in 1999 in Pepsi Foods Limited v.  Bharat Coca-Cola Holdings Private Limited. The plaintiff, however, failed to establish a prima facie case. Yet another attempt has been made to procure a decree for damages for the tort of conspiracy. In Lindsay International Private Limited and Ors. v. Laxmi Niwas Mittal and Ors., the plaintiff initiated an action alleging, inter alia, unlawful means conspiracy. The Defendant No. 1 attempted to resist the action by filing an application for rejection of plaint, which was dismissed by a Single Judge of the High Court of Calcutta, affirmed by the Division Bench, and finally by the Supreme Court of India. Whether the plaintiff will succeed in getting a decree for damages basis the tort of conspiracy, is yet to be seen.

Tort of Conspiracy Meaning

The tort of conspiracy involves an agreement between two or more individuals to act together with the intent to cause harm or engage in unlawful activities against another party. It is a civil wrong where the conspirators’ collective actions result in damage to the claimant, which would not occur if undertaken by a single person.

There are two main types: conspiracy to injure, where the predominant purpose is to cause harm, and unlawful means conspiracy, where the conspirators use illegal actions to achieve their objective, regardless of their primary intent. The tort seeks to address both the intent and the collaborative nature of the wrongdoing, holding all parties involved accountable for the resulting harm.

Historical Background of Tort of Conspiracy

The origins of the tort of conspiracy can be traced back to early British law, where the writ of conspiracy was recognised. Initially, it focused on the abuse of legal procedures and was acknowledged during the reign of Queen Elisabeth I. Over time, the concept developed, with the 17th century marking a significant evolution when conspiracy was established as a crime by the Star Chamber. In common law courts, conspiracy was seen not only as a criminal act but also as a source of civil liability.

In the 19th century, the landmark case of Crofter Hand Woven Harris Tweed Co Ltd v Veitch further solidified the dual nature of conspiracy as both a criminal and civil wrong. This case underscored the distinction between criminal conspiracy, governed by statutes such as the Criminal Law Act 1977 and civil conspiracy, which remains broader in scope and is not confined by statutory definitions.

The Concept of Civil Conspiracy

Civil conspiracy can be classified into two main types:

1. Conspiracy to Injure (Crofter Conspiracy)
2. Unlawful Means Conspiracy

Conspiracy to Injure

Conspiracy to injure, also known as Crofter conspiracy, occurs when a combination of individuals aims to cause harm to the claimant. This harm can be to the claimant’s trade, business or other legitimate interests. The important element here is the predominant purpose behind the actions. If the primary intent is to cause injury, even lawful acts can be deemed unlawful.