Conspiracy to injure
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Conspiracy; the very word conjures the image of tinfoil hats, the “Illuminati” and garbled YouTube videos.
What may come as a surprise to many would be that conspiracy to injure a person (or company) is a claim actionable in law.
A simple scenario
Consider this simple example:
Pinocchio and Jiminy are the best of friends. They establish a company called Candlewick Sdn Bhd, with the intention of producing the greatest mannequins known to man.
Respectively, they helm the directorial board of Candlewick and hold shares equally.
4 months after the inception of Candlewick, they discover that a competitor named Geppetto has set-up across town. Geppetto makes life-like mannequins that are of far superior quality to anything Pinocchio and Jiminy are able to create.
In-time, Candlewick loses a considerable portion of its business. Pinocchio and Jiminy, incensed with Geppetto, begin subverting his business. They dissuade Geppetto’s suppliers from supplying by bribing them. Additionally, they begin issuing threats to Geppetto’s customers, thereby dissuading them from buying. All this is done under the banner of Candlewick.
In such a scenario, Pinocchio and Jiminy are clearly acting in collusion (together with Candlewick) to cause loss to Geppetto. Their actions are clearly unlawful and Geppetto would certainly be able to lodge a police report against their actions.
Interestingly, they will also be afforded a remedy in civil law, under the tort of conspiracy.
2 forms of conspiracy
Conspiracy to injure is a claim actionable in tort.
Section 10 of the Evidence Act 1950 provides as follows:
“10. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of those persons, in reference to their common intention after the time when the intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”
A discussion into the jurisprudence of conspiracy to injure may be found in the Court of Appeal decision of Khoo Theng Chye v Cekal Berjasa Sdn Bhd & 1 other, Civil Appeal No.:P-02-542-03/2013.
There are 2 distinct forms:
conspiracy to injure by unlawful means; and
conspiracy to injure by lawful means.
Both forms of conspiracy have very similar elements. Lawful means conspiracy does not require any unlawful act to have been done by the parties. Their sole purpose need not even have been to have caused damage to the plaintiff.
Lawful means conspiracy is exceptional. There are instances of success (SH Cogent Logistics v Singapore Agro Agricultural [2014] SGHC 203) but these are far and few between (refer also to Milicent Rosalind Danker & Anor v Malaysia-Europe Forum Sdn. Bhd. [2012] 2 CLJ 1076).
Unlawful means conspiracy is a considerably easier creature. In most pleaded cases, the conspirators will utilise unlawful means to injure the plaintiff. As a practice point, it would be ideal to plead the specific unlawful act that the Defendants have allegedly committed.
The main elements
Conspiracy to injure requires 3 main elements. These have been laid down by the Court of Appeal in Renault SA v Inokom Corp [2010] 5 MLJ 394:
[32] In regard to the tort of conspiracy, the following need to be satisfied at this interlocutory stage: (a) an agreement between two or more persons (that is an agreement between Tan Chong and others); (b) an agreement for the purpose of injuring Inokom and Quasar; (c) that acts done in execution of that agreement resulted in damage to Inokom and Quasar; (d) damage is an essential element and where damage is not pleaded the statement of claim may be struck out. [33] It is clear that the very first element to be shown must be an agreement between two or more persons for the purpose of injuring Inokom and Quasar. 'Agreement' is not limited to a signed and sealed agreement but any informal agreement, including a combination of efforts of the alleged co-conspirators.
Likewise, in SCK Group v Sunny Liew Siew Pang [2011] 4 MLJ 393, the Court of Appeal opined as follows:
Hence, this tort is complete only if the agreement is carried into effect, thereby causing damage to the plaintiffs. In order to succeed in a claim based on the tort of conspiracy, the plaintiffs must establish: (a) an agreement between two or more persons; (b) for the purpose of injuring the plaintiff; and (c) acts done in the execution of that agreement resulted in damage to the plaintiff
The agreement between two or more persons
A common question that arises would be whether the agreement between two persons would need to be written or denoted in some form.
The answer to this may be found in Cubic Electronic v MKC Corporate & Business Advisory [2016] 3 MLJ 797, where the Court of Appeal referred to the judgment of Lornho plc v Fayed [1991] 3 All ER 303 and emphasised as follows:
[13] The elements required to bring an action for unlawful means conspiracy and lawful means conspiracy are as follows: A combination or agreement between two or more individuals It is not necessary to show that there was anything in the nature of an express agreement, whether formal or informal. The court looks at the overt acts of the conspiracy and infers from those acts that there was agreement to further the common object of the combination. It is sufficient that two or more persons combine with the necessary intention or that they deliberately co-operate, albeit tacitly, to achieve a common end (R v Siracusa [1990] Cr App R 340).
From a practical viewpoint, it would be absurd to require two or more persons that intend to carry out an unlawful conspiracy to injure someone to explicitly write down their intentions and have the same signed, sealed and delivered.
The Courts are alive to this fact and will not look at an “agreement” as being something written. The conduct of the parties will also be necessary and at trial, this will be considered.
Conspiracy involving a company
Conspiracy need not involve only individuals. It may also involve companies.
A company may conspire together with its directors (Prudential Assurance Co Ltd v Newman Industries Ltd (No.2) [1982] Ch 204 CA); First Subsea Ltd v Balltec Ltd [2017] EWCA CIV 186).
Employees may also conspire together with a company. This was outlined in Canberra Data Centres v Vibe Constructions (2010) 173 ACTR 33, where the Supreme Court of Australia stated as follows:
[162] At one stage, I was concerned that the two parties to the alleged conspiracy were a company (through the agency of a named employee) and one of its employees. I am satisfied, however, that, so long as it can be shown that the employee was acting with an appropriate degree of independence and not merely obeying orders which could not be disregarded, there would be a combination between them: Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 ; [1942] 1 All ER 142 ( at AC 441 , 468 ; All ER 147 ; 161 ). Even the criminal law accepts that a company can conspire with its directors, and, therefore, presumably, its employees: R v Blamires Transport Services Ltd [1964] 1 QB 278 ; [1963] 3 All ER 170 .
Likewise, in Delmasa Systems v Mackiewics [2005] OJ No. 2025, the Ontario Superior Court of Justice noted the following:
…the plaintiff is suing the Ministry of Community, Family and Children's Services and three Ministry employees for what is alleged to be a campaign by the defendants to improperly phase out the plaintiff's involvement in existing contracts with the Ministry and blacklisting the plaintiff from participating in future contracts with the Ministry. The action is based on conspiracy, breach of contract, breach of duty of fairness and intentional interference with economic relations… 3 There is of course no question that an employee who is alleged to have engaged in tortious conduct may be named personally as a defendant whether or not the employer is also named. Employers are generally speaking vicariously liable for wrongful acts committed by employees in the scope of their employment but the fact that the employer is also liable does not relieve the employee of such responsibility… The proposed claim against an additional employee is therefore tenable in law and it may not be excluded automatically.
In Guimond v Wrubel [2012] NBQB 383, several employees were implicated in a civil suit for conspiracy. The plaintiff pleaded them as having acted in concert with the company.
The employees applied to strike-out the suit, claiming that they did not have any ability to combine together with the company, given that they were merely employees. In dismissing the employees’ application to strike-out a claim against them for conspiracy to cause injury, HH McLellan J stated as follows:
The plaintiff claims to be the victim of a conspiracy and reprehensible actions on the part of all four defendants. Two of those individual defendants Christopher Everett Dunham and Sunil Dexter Rajaram say that they were always acting only as officers or employees of the corporate defendant Best Rate Advantage Group Ltd., a mortgage broker. 2 Thus those individual defendants ask by pre-trial motion that this action be dismissed against them and ask that the action be struck against them. 3 The law generally protects individual officers and employees of corporations from personal liability. There are a number of qualifications on that and those include matters involving fraud, conspiracy or other misconduct. When there is an allegation of a conspiracy and reprehensible conduct as there is here, as I understand the law, it is possible for individual officers of a corporation to be found personally liable. … 6 The tort of conspiracy is broad. Whether or not there is any liability by anyone to the plaintiff in this case is a matter to be resolved at trial. 7 On what is before me I am not persuaded that I should strike the plaintiff's claim against the two individual defendants Christopher Everett Dunham and Sunil Dexter Rajaram. The plaintiff's motion is dismissed.
Similarly, In Meehan v Tremblett [1996] NBJ No. 142, the Canadian Court of Appeal determined as follows:
3 The respondent, Meehan, alleged that the Province of New Brunswick acting through two provincial employees deprived him of a career in the correctional services from July 1981 until December 1992. He alleged a conspiracy to intentionally interfere with his economic interests. He says the conspirators were the Superintendent of the Saint John Regional Correction Facility, James Tremblett and a Supervisor, Michael Burns. … 35 Tremblett was the person in authority who provoked Meehan to terminate his employment. He exercised his authority in a wrongful manner. He did not deal fairly with Meehan, who was in a vulnerable position as a probationary employee. Under the existing rules governing the Civil Service, a probationary employee could be fired at will without any recourse to grievance procedures. 36 In this case, the Province, as the employer, is vicariously liable in damages to Meehan, the employee. That is so because of the unlawful conspiracy of Tremblett and Burns.
Impressive breadth
From the above, it is clear that a claim for conspiracy to injure is a wide-ranging tort that may cover numerous bases.
Provided the necessary ingredients of the tort are made out, there should be an actionable claim against the conspiring defendants. The Plaintiff must carefully plead the necessary elements to ensure that his claim is sufficient.
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