Understanding Intimidation

DOIhttp://doi.org/10.1111/1468-2230.12055
Publication Date01 Jan 2014
AuthorJohn Murphy
Understanding Intimidation
John Murphy*
This article examines the gist, vitality and practical utility of the tort of intimidation and
identifies what count as unlawful threats and as actionable harm. While two versions of the tort
have been identified in the past – one involving two parties, one involving three – only the
former has survived the decision of the House of Lords in OBG vAllan. In the context
considering the tort’s practical usefulness, the article exposes as bogus the suggestion that two-
party intimidation offers nothing that is not already supplied under the law of contract via the
doctrines of anticipatory breach, duress and economic duress. The article concludes with two
radical suggestions. First, that two-party intimidation is not a specifically economic tort and
secondly, in view of this fact, it was a most inappropriate tool for the House of Lords to have
used in their resurrection of the tort of unlawful means conspiracy in Total Network SL v
Revenue and Customs Commissioners.
INTRODUCTION
The tort of intimidation is of very considerable vintage.1Yet, so sparse were the
reported cases during the three centuries that followed its first application that, in
the landmark case of Rookes vBarnard (Rookes), one Court of Appeal judge
described it as an ‘obscure, unfamiliar and peculiar cause of action’.2Certainly,
the tort had eluded anything approaching rigorous judicial analysis or exposition
for the best part of a century until the House of Lords had occasion to examine
it in depth in that self-same case.3Little wonder, then, that one stand-out feature
of Rookes should have been that the defendant persisted throughout the litigation
*Lancaster University. Thanks are due to Roderick Bagshaw, Hazel Carty, Neil Foster, Jason Neyers,
Stephen Waddams and Christian Witting who all helped with this project in one way or another. The
article is dedicated to my former colleague and my mentor for many years, Margot Brazier.
1 One early case, Gilbert vStone (1641) Aleyn 35, concerned a group of 12 bandits who threatened
to kill the defendant if he did not help them to steal the claimant’s gelding. While the court
rejected the defendant’s plea – namely, that he was entitled to rely on a defence of duress in
relation to his trespassing upon the claimant’s land – it nonetheless accepted that, in respect of their
forcing him to do so, ‘the defendant hath remedy against those that compelled him’ (ibid). Garrett
vTaylor (1620) Cro Jac 567 was another early case in which a claimant quarryman was entitled
to sue a defendant who had threatened would-be purchasers of quarried stone with ‘mayhem’ if
they continued to buy from the claimant. A more doubtful antecedent, though one which is
regularly cited in this context, is Tarleton vM’Gawley (1793) Peake NP 270. In that case, there had
been an unlawful act, rather than an unlawful threat, on the part of the defendant. (He had fired
a ship’s canon at a canoe containing Cameroonian natives – and actually killed one person – in an
attempt to dissuade the natives from trading with a rival vessel also moored just off the coast.) The
distinction between unlawful threats and unlawful acts is, as I argue at length below, a vital one
if intimidation is to be understood properly.
2Rookes vBarnard [1963] 1 QB 623, 694, per Pearson LJ.
3Rookes vBarnard [1964] AC 1129. The case in which the tort had most rigorously been examined
prior to Rookes was Allen vFlood [1898] AC 1.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(1) MLR 33–59
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
in denying the very existence of any such tort.4No doubt with this persistent
denial in mind, roughly contemporaneous academic commentary suggested that
‘in Rookes v Barnard, the House of Lords has invented a new extension of civil
liability’,5and that the case involved ‘a bold instance of judicial lawmaking’.6
Leaving to one side the fact that these claims are hard to reconcile with earlier
decisions offering clear recognition of such a tort, a more accurate portrayal of
the outcome in Rookes would have reflected Lord Devlin’s insistence in that case
that ‘the tort can take one of two forms’:7the first involving only two parties; the
second involving three.8According to his Lordship, the first version of the tort
would be committed where A threatened B and thereby coerced B into acting
to his own detriment. By contrast, the second version would entail A threatening
B and thereby coercing B into acting in a way that causes loss to a third party
claimant, C. This depiction of the law – differentiating as it does between
instances of two- and three-party intimidation – came to be regarded as ortho-
doxy among jurists and judges alike in the decades immediately following
Rookes.9It remained the accepted view of the law for a little over forty years.
Then, quite momentously, in OBG vAllan10 (OBG), Lord Hoffmann (who
delivered the leading judgment in that case) painted a very different picture of
the legal landscape; one which called into question the continued vitality of not
just one, but both versions of the tort. According to his Lordship, any case of
three-party intimidation ought henceforth to be seen as a mere example, or
subspecies, of a more general principle of liability. The more general principle he
had in mind was the so-called unlawful means tort which is engaged wherever
A uses unlawful means – whether they be threats or acts – against B with the
intention of thereby causing loss to C.11 On this account, intimidation would in
future count as no more than one among several possible forms of ‘unlawful
means’. Such an approach is appealing both in terms of its apparent logic and its
undoubted simplicity. Furthermore, in the absence these days of any sound
juridical reasons to treat three-party intimidation as a discrete cause of action,12
4 No less remarkable is the fact that, when he subsequently wrote a book about the case, the
claimant gave it the title ‘Conspiracy’: see D. Rookes, Conspiracy (London: Johnson Publications,
1966).
5 K. W. Wedderburn, ‘Intimidation and the Right to Strike’ (1964) 27 MLR 257, 257.
6 L. Hoffmann, ‘Rookes v Barnard’ (1965) 81 LQR 116, 116 (emphasis added).
7Rookes vBarnard (1964) n 3 above, 1205.
8 In this there was nothing genuinely new, either. Two-party intimidation was clearly recognised
in Gilbert vStone n 1 above; whereas the three-party version of the tort had its origins in Garrett
vTaylor n 1 above.
9 As to jurists, see, eg, J. D. Heydon, Economic Torts (London: Sweet and Maxwell, 1978) 64; A.
Dugdale and M. Jones (eds), Clerk and Lindsell on Torts (London: Sweet and Maxwell, 19th ed,
2006) 1154–1157; B. A. Hepple et al, Tort – Cases and Materials (London: Butterworths, 5th ed,
2000) 99. As to the judges, there were no reported cases during the years in question that cast the
slightest doubt on Lord Devlin’s taxonomy
11 ibid at [6]–[7] and [47].
12 Such a view of three-party intimidation has not always been tenable. This is because, as the
decision in Rookes amply testifies, the specific tort of three-party intimidation was not one in
respect of which (unlike other economic torts) the defendants in that case would have been able
to claim immunity under the Trade Disputes Act 1906. However, now that Parliament has
plugged that gap in the web of statutory protection via the Trade Disputes Act 1965, there is no
Understanding Intimidation
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
34 (2014) 77(1) MLR 33–59

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