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This final chapter provides a coherent framework for the economic torts. To do so it underlines the best policy for these torts, drawing on the discussion of the conflicting agendas and potentials explored in Chapters 8 and 12. The need to tackle and analyse all the economic torts is explained. In addition, civil actions and doctrines that may supplement the protection of economic interests provided by the economic torts — the principle in De Mattos v Gibson, the action for misfeasance in a public office, conversion, the action for breach of commercial confidence, and the action for dishonest assistance — are discussed and distinguished. The optimum framework offered provides a clear basis for liability while allowing freedom to compete effectively. However, the optimum framework offered now requires adjustment, following the decision of the House of Lords in Total Network. The full range of such possible adjustments is outlined.

This chapter considers the two 21st century decisions of the House of Lords concerning the general economic torts: OBG and Total Network. Though in both decisions the House of Lords attempted to resolve some uncertainties, a clear view of these torts — both in relation to their ingredients and their framework — is lacking. A critical review of both decisions is followed by a discussion of the growing academic debate concerning this area of tort law. Three possible agendas for the torts are outlined: the extended civil party agenda, the two-party civil liability agenda as a supplement to the first agenda, and the extended civil liability agenda for both the direct and indirect infliction of economic harm. There is a concluding suggestion as to the most coherent way forward offered.

This chapter introduces the economic torts, i.e., those torts that have as their name suggests the primary function of protecting claimants' economic interests. They include the general economic torts of inducing breach of contract, the unlawful means tort, intimidation, lawful means conspiracy, unlawful means conspiracy and the misrepresentation economic torts of deceit, malicious falsehood, and passing off. The tort of negligence is also discussed as in exceptional circumstances it may perform the function of an economic tort but it is noted that its rationale is different from the economic torts. Unlike negligence, which looks to dependency, the economic torts look to unlawful acts and offer the common law rules of the economic game. The policy issue for all these torts is whether the courts, in the absence of an action for unfair competition, should adopt an interventionist or abstentionist policy in relation to imposing liability.

This chapter explores the history and modern form of this tort. Two key issues surrounding this tort remain controversial as was highlighted by the recent decisions in OBG and Total Network. These are the relationship between this tort and the unlawful means tort, and the scope and implications of the two-party version of this tort (and in particular whether a threatened breach of contract should constitute an unlawful threat for this tort). The chapter, therefore, links into the discussion in Chapter 4 and Chapter 7. It argues that the two-party form of this tort does not provide the seed for a general development of two-party economic torts, but rather that two-party liability in the tort of intimidation is a separate area of tort liability, a necessary supplement to existing tort liability.

The orthodox analysis of the economic torts focuses on three-party, indirect liability. Both the tort of inducing breach of contract and the unlawful means tort envisage the use of a third party or intermediary in order to intentionally harm the claimant. However, after the House of Lords' decision in Total Network a key issue for debate is whether economic tort liability in the 21st century extends to the direct intentional infliction of economic harm, without the use of an intermediary. This chapter analyses whether such economic two-party liability exists beyond the tort of intimidation (where it appears to be accepted) and the controversies that would follow from such two-party liability namely: what constitutes ‘unlawful means’ in such a two-party setting; what impact two-party economic tort liability would have on the tort/contract divide; and what the rationale for two-party liability would be compared to the rationale for three-party economic tort liability.