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An estimated 20-minute read

Let's revisit Allen v. Flood

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A trade union official told an employer his members would not work alongside the claimants. The employer was pressured to get rid of the claimants. For the loss of work, the claimants sued the trade union official. An important fact is that all the workers in the case were only hired day by day. Therefore, the trade union official had never threatened a breach of contract  because the contracts began afresh with a new day's work.

The House of Lords held that even though there was a malicious motive, this could not render the conduct unlawful, because the effect actually complained of (not rehiring) was in itself entirely lawful.

In the course of his judgment Lord Davey pointed out an ‘employer may refuse to employ [an individual] for the most mistaken, capricious, malicious or morally reprehensible motives that can be conceived, but the workman has no right of action against him.’

Cave J. said:

 

The personal rights with which we are most familiar are:

1. Rights of reputation;

2. Rights of bodily safety and freedom;

3. Rights of property; or, in other words, rights relating to mind, body and estate

In my subsequent remarks the word 'right' will, as far as possible, always be used in the above sense; and it is the more necessary to insist on this as during the argument at your Lordship's bar it was frequently used in a much wider and more indefinite sense. Thus it was said that a man has a perfect right to fire off a gun, when all that was meant, apparently, was that a man has a freedom or liberty to fire off a gun, so long as he does not violate or infringe any one's rights in doing so, which is a very different thing from a right, the violation or disturbance of which can be remedied or prevented by legal process.’

 

 

 

 

The first and important proposition is that an act otherwise lawful, although harmful, does not become actionable by being done maliciously in the sense of proceeding from a bad motive, and with intent to annoy or harm another. This is a legal doctrine not new or laid down for the first time in Allen v. Flood; it had been gaining ground for some time, but it was never before so fully and authoritatively expounded as in that case. In applying this proposition care, however, must be taken to bear in mind, first, that in Allen v. Flood criminal responsibility had not to be considered. It would revolutionise criminal law to say that the criminal responsibility for conduct never depends on intention. Secondly, it must be borne in mind that even in considering a person's liability to civil proceedings the proposition in question only applies to “acts otherwise lawful,” i.e., to acts involving no breach of duty, or, in other words, no wrong to anyone.

The second proposition is that what Allen did infringed no right of the plaintiffs, even although he acted maliciously and with a view to injure them. If the view of the facts of noble Lords was correct, their conclusion that Allen infringed no right of the plaintiffs is perfectly intelligible, and indeed unavoidable. Truly, to inform a person that others will annoy or injure him unless he acts in a particular way cannot of itself be actionable, whatever the motive or intention of the informant may have been.

 

CITATION:

[1898] AC 1

 

NAME OF THE CASE:

Allen v. Flood

 

PLACE OF ORIGIN:

HOUSE OF LORDS

SIGNIFICANCE:

Allen v Flood has come under criticism in some quarters. However Allen v. Flood was approved by the House of Lords in the recent case of OBG v Allan.

 

JUDGES IN THE CASE:

Lord Halsbury LC, Lord Watson, Lord Ashbourne, Lord Herschell, Lord Macnaghten, Lord Morris, Lord Shand, Lord Davey, and Lord James of Hereford.

 

FACTS AND BACKGROUND OF THE CASE :

In Allen v. Flood the plaintiffs were carpenters who were working for a shipowner on a day-to-day basis. In practice they could reasonably expect several days of gainful employment, but as a mtter of law they made a new contract with the shipowner each morning each morning that they were engaged. The defendant an official representating a trade union which was a rival to the organization of which the plaintiffs were members, without resorting to any threat of unlawful behaviour, persuaded the shipowner to exercise its lawful right not to re-engage the plaintiffs. Thus the shipowner committed no private law wrong to the plaintiffs, and the defendant neither committed nor threatened  a private law wrong to the shipowner

 

JUDGEMENT :

Although  jury however found that the defendant union  official acted maliciously towards the plaintiffs, and the question arose whether this was sufficient to constitute the defendant’s behaviour a tort to the plaintiffs. Eventually a majority of the House of Lords held that maliciously inflicting economic harm was not a tort recognized by the law of England. The majority seems to have been influenced principally by distrust of the concept of malice. In their speeches they complained of the difficulty of denning malice and the particular risks of leaving the matter to juries

The law lords have unanimously rejected the expansion of economic tort into a more general form of liability for interfering with contractual relations. Liability in economic tort arises where a person intends to do a wrongful act. The test is fundamentally subjective and depends upon showing that the defendant actually had the relevant intention.

.The majority therefore determined that liability for the sort of economic harm suffered in the case should depend not on the defendant's state of mind but on the means that he used. A defendant would be liable if he procured harm to the plaintiff by the use of unlawful means. This is the foundation of the general economic tort of causing economic harm by unlawful means

 

ANALYSIS:

 

In the case of Allen v Flood one of the Lords asked this interesting question “if the cook says to her master ‘Discharge the bultler or i leave you,’ and the mater discharges the butler , does the butler have an action against the cook?” this, Lord Shand said, was the simplest form in which the very question in Allen v Flood could be raised. And like the original question, it puzzled the judges and Lords very much to answer. Cave J. answers, Yes:--

“Ex concessis, the butler has been interfered with in earning his livelihood and has lost his situation, and the circumstances shew no just cause or excuse why the cook should have induced her mster to discharge the butler; ...no good cause or excuse being shown though many may be suggested, it is malicious and actionable”

Lord Herschell answers, No:--

“in my opinion a man cannot be called upon to either act or word merely because it interferes with another’s trade or calling ; any more than he is bound to justify or excuse his act or word under any other circumstances unless it to be shown to be in its nature wrongful, and thus to require justification.”

These answers fairly represent the divergence of views in Allen v. Flood , which it has been said : “the ruling of the majority in the House of Lords is of extraordinary interest as affecting the fundamental theory of the Law of Torts”. Sir Frederick Pollock in the 6th English edition of his work on Torts, says “the Chief alterations...are due to what was decided, perhaps still more to what was suggested in the House of Lords in...Allen v Flood, shortly after the publication of the last edition” Chapter VIII, formerly entitled “Wrongs of Fraud and Malice”. Has become “Wrongs of Fraud and Bad Faith”, and it is said:---

Since the decision of Allen v Flood, it seems that in those cases where the state of mind of the defendant is material, it is not malice in the popular sense of personal ill will that is the decisive element, but wilful or reckless disregard of truth in some form” .Allen v flood has been criticised both for an unduly restrictive approach to recovery of intentional harm, and for a lack of clarity in the idea of malice. Whether the first criticism is well places is a matter for debate. The second criticism however is not unfair. It is not at all clear that Allen’s motive really ought to be described as malicious, or really different from the motive of the competitor out to win the entire market( and thereby to put his rivals out of business) in Mogul Steamship. He was trying to protect the interests of his trade association at the expense of another; and the reason for doing this was not predominantly to cause harm to shipwrights, even if this was a necessary corollary. It was to benefit boilermakers. Indeed this point was briefly made explicit by Lord Herchell .

The object which the defendant and those he represented, had in view throughout was what they believed to be the interest of the class to which they belonged; the step taken was a means to that end.

But Finnis has suggested that in general, the handling of malice and intention in this case was far too loose.

Inept handling of the concept of intention (under whatever name) marks most of the judgements in Allen v Flood, most notably in their failure to identify the equivocation in the conception of ‘malice’ with which the legal sources and professional discourse then current, and the trial judge’s direction to the jury, confronted them. On that conception, malice includes having a purpose to ‘benefit oneself is not more than a welcome side-effect). To be sure, the House of Lords rejected the conception of malice which involves this confusion; the judges discerned its incompatibility with the lawfulness of any winner-takes-all commercial competition. Yet they did not identify the confusion’s source: failure to distinguish the intention to secure all the available trade (and in this sense ‘win’) from the certain side-effect of such trading success- causing loss to the loser.

Perhaps it is unwise to scour the judgements in Allen v Flood too closely for analysis of the motives involved. The essence of the majority decision was that Allen’s motive does not matter. No form of malice or ill-will (if present) would have sufficed to make his actions into an actionable wrong. The headnote to Allen v Flood clearly states an act lawful in itself is not converted by a bad motive into an unlawful act so as to make the doer of the act liable to a civil action...

..The appellant had violated no legal right of the respondents, done no unlawful act, and used no unlawful act, and used no unlawful means, in procuring the respondents’ dismissal; ...his conduct was therefore not actionable however malicious or bad his motive might be..

The main question for those who take a philosophical approach to intention is not so much whether Allen v Flood was clear enough about the nature of ‘malice’ (it would almost certainly fail that test) , but whether it took intention seriously enough as a ‘wrong-making factor’.

...One’s conduct will be right only if both one’s means and one’s ends are right; therefore, one wrong making factor will make one’s choice action wrong, and all aspects of one’s act must be rightful for the act to be right. The acting person’s intentions must be right all the way down (or up)

But the question to be addressed was not whether Allen’s actions were right. It was whether they were wrong in such a way as to attract legal liability. Finnis concedes that intentional harm will not always justify legal liability; but, following J.B.Ames (‘How Far an Act May be a Tort Because of the Wrongful Motive of the Actor’ (1905)18 Harv L Rev 411), he contends that a defendant may escape liability for intentional harm only for particular reasons such as legal privilege, or because the defendant only compels the claimant to do what he has a duty to do, or because the defendant’s malevolence only extended to an omission or non-feasance (where there was no positive duty to act). This implies that intentionally caused harm ought always to attract a remedy. This is at odds with the ‘abstentionist’ approach (to use the word applied by Hazel Carty) that operates in respect of the economic torts generally. This approach is to be contrasted with the position in the US Restatement (extracted at the start of this chapter). In his Clarendon lectures (Economic Torts, Clarendon Press, 1997), Tony Weir implied that this abstentionist approach had (at the time of writing) little support:

Tony Weir has proposed a single framework for the economic torts which takes the clear negative line established in Allen v Flood as the starting point for a positive proposition, namely: It is tortious intentionally to damage another by an act which the actor was not at liberty to commit.

This organizes the economic torts as a whole around two ideas : intentional harm; and unlawful means. This is an attractive proposition because it combines simplicity with abstentionism.

There are however some significant difficulties in attempting to unify the economic torts in this way.

Weir's defence of Allen v Flood and his championing of a general economic tort founded on 'unlawful means' answers bodi criticisms, though he does not distinguish between diem. Against die first he argues that malice is far from a simple moral concept. If it is taken to mean 'intending to cause harm for its own sake' then it is hard to envisage that there will ever be a significant number of such cases. It will not be worth creating liability to meet such a trivial demand given the risk of such claims being misused. If,  malice is taken to mean 'intending to cause harm without a legitimate justification for doing so’ the tort would amount to a considerable and unpredictable restriction on freedom.

 

 

If intention was treated in die broad way in which it usually is in tort law" then those who acted in ways that they knew would inevitably harm others might be compelled to justify their actions.

For instance, every protest group urging a consumer boycott might be compelled to justify its actions on pain of liability for the consequences. Weir treats the same concerns about unpredictability and the scale of the restriction on freedom as answering the second criticism as well. Thus he argues that making the general economic tort on parasitic on what is unlawful according to other areas of law is to make it depend on a more clearly denned standard of conduct than any critic has proposed. His third lecture bolsters this prediction of oppression and uncertainty if either criticism is acted on by outlining the experience of the German courts in defining what means are prohibited by reference to the vague notion of what is 'repugnant to good morals' and of American juries with liability based on finding 'improper purposes'. He suggests that a clear standard is particularly necessary because the general economic torts used against people who have planned their conduct and may

Having insisted on the overriding importance of certainty, however, somewhat surprisingly Weir refuses to discuss the concern that 'unlawful means' is in fact not a clearly denned concept. He excuses himself by stating, 'I leave aside the complaint that it is difficult to know what is illegal and what is not, for while that may not be easy it is certainly easier than saying what is immoral or improper and what is not'.

This excuse hints at a possible weakness in Weir's otherwise powerful argument. The weakness flows from the fact that clarity is, obviously, not in itself a sufficient reason for accepting a particular factor as a determinant of tortious liability. Whether a human defendant is over 6 feet tall or not is a fairly clear factor but no one would suggest that it was therefore relevant to liability in the economic torts. It is not enough merely to argue that '•unlawful means' is a clearer concept than 'behaviour that is unacceptable between competitors and

 

 

should give rise to liability in tort'. 'Unlawful means' can only be accepted as a satisfactory factor if it is identical with or in some way approximates to 'behaviour that is unacceptable between competitors and should give rise to liability in tort'. Given this, if 'unlawful means' within the general economic tort is an unclear concept  .We might suspect that the lack of clarity is a product of a lack of approximation.

The suspicion would be that the imperfect concept of 'unlawful means' is being manipulated to make it better reflect what is thought to be unacceptable between competitors, and that the clarity of the concept is being sacrificed in the process.

Indeed Weir himself seems to suggest that such certainty-sapping manipulation could be desirable. Thus he concedes that in order to prevent a trivial illegality triggering the general economic tort it may be necessary to hold that breaches of minor provisions in contracts and of irrelevant laws do not constitute 'unlawful means'.

Weir also suggests that the general economic tort must distinguish between different types of breach of contract.

A further possible manipulation may be behind his insistence that 'to tell lies is invariably to use unlawful means', since there must be some doubt as to what area of law it is which makes every lie into an unlawful act. If even a staunch defender of Allen v Flood is forced into manipulation of the 'unlawful means' concept to make its results tolerable this must cast doubt on the wisdom of using the concept as the primary determinant of liability

There is a view, more or less clearly set forth in the opinions of many judges and the writings of many legal authors, in both England and this country, that when a plaintiff has proved that the defendant has intentionally caused him to suffer pecuniary damage, he has shown a good cause of action, unless the defendant shows some ground of justification. A broad general privilege of every person to conduct his affairs as he chooses, and in particular to manage his business in whatever way seems most profitable, is considered to furnish sufficient justification in almost all cases where the defendant has not made use of fraud, violence, or other means conceded to be illegal apart from the motives by which it may be directed. Where the question of the defendant’s responsibility for his acts has been approached in this

 

manner , however it has almost always been declared, either by implication or by direct words, that this justification would not extent to cases where mere personal spite, or other wholly improper considerations, furnished the sole or predominant motives for the defendant’s act. The presence of this gap in the whole range of acts of intentional infliction of damage, between the class of acts which are unlawful without regard to motive and those which are, in point of law, wholly justifiable and lawful, is what gives practical importance to this whole view of the theory of the law of torts. That there was such a gap has been stated under discussion in Flood v Jackson [1895]2Q.B. 715, but also by several of the judges and law lords in Mogul Steamship Co. V Mc.Gregor 23Q.B. Div598 where the decision upon the facts of the case was in favour of the defendant. And this existence of such a gap has been assumed, if not expressly asserted, in a great number of American cases too.

Now the decision in Allen v Flood seems to cut in back of the whole modern theory just stated, and render all discussion of what constitutes justification or privilege, outside of the cases of recognized affirmative defences, of little practical value. The majority distinctly lay down the proposition that an act which is not in itself unlawful apart from the motive of the person doing it, as falling within some of the ancient and tolerably well- defined classes of wrongful acts, cannot render a man liable to an action at law, however bad the motives on which he may have acted, and however serious the loss he may succeed in inflicting upon others. The existence of the gap above referred to, which admits of some acts being considered tortious on account of the bad motive accompanying them, is altogether denied. It may be maintained, of course, that this amounts to saying that the privilege of doing as one chooses sweeps back to the boundaries of fraud and violence. The court, however, do not so treat the question; they do not go into any question of justification, because they recognize no prima facie wrong.

That  this doctrine of Allen v Flood is simple, convenient in practice, and in accord with a conservative view of the spirit of the common law, almost undeniable. Though many will argue that it impairs the invaluable elasticity of the common law, and will argue that it impairs the invaluable elasticity of the common law, and will keep out of the courts many cases in which the conditions of modern society demand judicial interference may in some respects appear difficult and dangerous.

 

 

Radical as is the decision in Allen v flood, it leaves a loophole through which the doctrine that unjustifiable motives can be the determining element in a tort might, even in England, come back into the law. In that case there was no combination of several defendants to commit the acts complained of. It is expressly recognized, in at least two opinions, that the presence of an element of conspiracy might make a very material difference. If such an element can, as a matter of law, make that illegal which would not be illegal which would not be illegal without it, all the questions as to “malice’’ and unjustifiable motives can come before the courts in the same form as before, whenever there are several defendants. In England it appears to be likely that conspiracy will not be held to furnish a cause of action in any case where an action would not lie against a single defendant according to the doctrine of Allen v. Flood; to that effect at any rate, is a decision in a court of the first instance, Huttley v Sumons, 14 Times L.R. 150, following immediately after the announcement of the decision in the House of Lords. In this country there have been so many decisions holding the defendants liable for what the courts consider malicious interference with the plaintiff’s business, that it seems probable that the judges will pay little respect to Allen v Flood, beyond distinguishing it as without the element of conspiracy which has been present in al the American cases, and hereafter giving more attention to this last point. The most satisfactory method of dealing with this whole subject, it may be suggested, is that now likely to be adopted in England, by simply making the more objectionable forms of boycotting criminal offences, and giving up all attempts to stretch the law of torts to cover cases lying outside of the clearly recognized classes of actionable wrongs.

 

 

 

 

 

 

 

 

CONCLUSION

The case which completed the triangular foundation on which twentieth century economic tort law was to be constructed was Allen v Flood.   In essence this case simply extended the principle of Mogul Steamship Co. to labour disputes. In the sameway that rival businesses are free to cause harm to one another in lawful pursuit of their own interests, so too is an employee free to cause economic harm to a rival employee (by getting him laid off) as long as no unlawful means are employed Such an analysis seems perfectly reasonable with a century of hindsight but the social mood of the time was perhaps less comfortable with it. The Lords specifically rejected the proposition that liability might arise whenever one person did damage to another wilfully and intentionally without just cause and excuse. 

Some writers regret the failure of English law to accept bad motive as a ground for liability, as it is in the United States and Germany: see for example Dyson Heydon, Economic Torts 2nd ed (1978) p 28. But personally I agree with Tony Weir's opinion, forcibly expressed in his Clarendon Law Lectures on Economic Torts (OUP 1997) that we are better off without it. It seems to have created a good deal of uncertainty in the countries which have adopted such a principle. Furthermore, the rarity of actions for conspiracy (in which a bad motive can, exceptionally, found liability) suggests that it would not have made much practical difference.

 

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