1. P Birks ‘Civil Wrongs: a New World’ in Butterworths Lectures 1990–1 (London: Butterworths, 1992) p 100. The leading text is still G Williams Joint Torts and Contributory Negligence (London: Stevens, 1951).

2. Of course, the other method of attempting to widen tort liability is by claiming that the tort of negligence brings in the extra defendants. This was alleged in the nuisance case of Smith v Scott [1973] Ch 314 and in the patent infringement case of Paterson Zochonis v Merfarken Packaging [1983] FSR 273, CA and in the copyright infringement case CBS Songs v Amstrad Consumer Electronics [19881 AC 1013, HL. In all cases the negligence claim failed, Pennycuick V-C remarking in Smith v Scott that ‘the law cannot… now be reshaped by a reference to the duty of care’.

3. Most commonly, as will be seen, in cases concerning the infringement of intellectual property rights.

4. The most recent example of this occurred in Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department [1998] 1 Lloyd's Rep 19, at Court of Appeal level. Before the House of Lords, the plaintiff varied their argument to focus more on extensions to liability based on Lumley v Gw (1853) 2 E 216.

5. Sales ‘The Tort of Conspiracy and Civil Secondary Liability’ (1990) 49 CLJ 491.

6. D Cooper Secondary Liability for Civil Wrongs (unpublished PhD thesis (Cambridge) 1995).

7. [1998] I Lloyd's Rep 19, CA and [1999] 2 WLR 540, HL.

8. Williams, above n I, p 16: ‘several concurrent tortfeasors are independent tortfeasors whose acts concur to produce a single damage. The damnum is single, but each commits a single injuria.’

9. As in The Koursk [1924] P 140 (see below) or eg Drinkwater v Kimber [1952] 2 QB 281.

10. Or having the effect of extending relief even against those not within the jurisdiction. This is a typical setting for an allegation of joint tortfeasance in patent infringement litigation. See eg Unilever plc v Gillette [1989] RPC S83. CA; Molnlycke AB v Proctor & Gamble Ltd [992] RPC 21.

11. Partnership Act 1890, ss 10. 12: a partner is liable for the torts of another partner acting in the ordinary course of business of the firm or with the authority of his co-partners. This is vicarious liability imposed by statute.

12. There is a further possibility: the defendants may owe a joint duty see M Brazier and J Murphy Street on Torts (London: Butterworths. 1 0th edn. 1999) p 594 (joint occupancy liability).

13. [1924] P 140 at 155.

14. They also failed on their contract claim: had the plaintiff taken the steps it should have done under the guarantee scheme to check the validity of the bills of exchange, they would have suffered no loss.

15. He did nothing unlawful in issuing the guarantees as such.

16. As Lord Woolf noted: ‘indeed, if the Bank had taken the action which it should have done to protect itself, it was ECGD who would have suffered the loss… since ECGD would have had to honour the guarantees.’

17. [1928] 2 KB 578, discussed below.

18. [1988] AC 1013:‘ a defendant who procures a breach of copyright is liable jointly and severally with the infringer, a defendant may procure an infringement by inducement, incitement or persuasion.’

19. [1990] FSR 607.

20. [1988] AC 1013 at 1058.

21. And, indeed, this is a typical definition. though it might be noted that Lord Macnaghten in Allen v Flood [1898] AC 1 at 149 drew a distinction between procuring and inducing.

22. Lord Templeman [1988] AC 1013 at 1058. T Weir ‘Liability for Knowingly Facilitating Mass Breaches of Copyright’ (1988) 47 CLJ 348, 349 notes that the need for the procurement to be directed at a particular individual rather than the general public is ‘consistent with inducing breach of contract and reminiscent of negligent misrepresentation’.

23. ‘One who merely advises another may do no more than draw attention to facts which show how eligible or desirable a given course of action is; whereas one who induces and a fortiori, one who makes or causes another to act, does something, if only by his words, to make a given course of action more eligible or desirable in the eyes of the other than it would otherwise have been, or seem more eligible or desirable than it really is.’ (H L A Hart and T Honoré Cousation in the Law (Oxford: Clarendon Press, 2nd edn, 1985).

24. [1985] 1 WLR317, CA.

25. [1975] AC 507 at 514–515, PC.

26. [1993] FSR 197 at 238–239 (a patent infringement case).

27. Or that he has conspired with the infringer Rotocrop International Ltd v Genbourne Ltd [1982] FSR 241, Graham J. The defendant manufactured and sold infringing product in parts, with assembly instructions. Held: jointly liable with his customers: the vendor and purchaser having a common design to carry out an infringing act.

28. [1988] FSR 385 at 405. Here the sale of chocolate flake bars, with the knowledge that ice cream vendors would infringe the plaintiff's trade mark, was merely facilitating that infringement not procuring it.

29. [1987] RPC 429.

30. He was particularly referring to Townsend v Haworth (1875) 48 LJ Ch 770 and Belegging-en Shappij Lavender v Witten Inds Diamonds Ltd [1979] FSR 59.

31. In Paterson Zochonis [1983] FSR 273 at 295 Robert Gogg LJ accepted that ‘it is at least implicit in certain authorities… that no action lay against a person who merely facilitated passing off by another, as opposed to being sufficiently involved in the commission of the tort to become a joint tortfeasor’. The case itself was an effort to extend the scope of recoverable damages in a copyright infringement case by alleging that the third party' s passing off had been facilitated' by the defendant's infringement of copyright.

32. (1875) 48 LJCh 770.

33. (1898) 15 RPC 449.

34. [1904] 1 Ch 164 and 612. There was no joint wrong where the defendant sold an innocent product to known infringers in Innes v Short & Bea1 (1898) 15 RPC 449 cf common design found – and therefore jointly liable for infringing the plaintiff's patent - in Morton Norwich Products v Intercen Ltd [1978] RPC 501.

35. [1979] FSR59.

36. [1982] FSR 406: ‘merely selling the articles to the potential infringer does not amount to an infringement.’

37. [1993] FSR 197 at 238–239 (a patent infringement case).

38. In CBS Songs Lid v Amstrad [1988] AC 1013 at 1058 Lord Templeman asserted that the opera singer and the defendant were ‘joint wrongdoers participating in an unlawful common design’.

39. (1853) 2 E&B 216 at 232.

40. Accepted by the Court of Appeal in Men& v Haringey LBC [1979] 2 All ER 1016 and in Associated British Ports v Transport mid Generd Workers Union [1989] 1 WLR 930 at 951 (reversed by the House of Lords on other grounds).

41. That the participator who has authorised a wrong is jointly liable is clear from Brooke v Bool [1928] 2 KB 578, Div C (discussed below in text).

42. [1985] 1 WLR 317, CA.

43. [1993] FSR 197 at 238–239 (a patent infringement case).

44. See also defamation - where author, publisher and printer may be jointly liable for the ultimate publication. Often this could be on the basis of concerted action or authorisation or procuring.

45. (1876) 45 LJ QB 545 at 546. See also Sampson v Hodson-Pressinger [1981] 3 All ER 710; Tetley v Chitty [1986] 1 All ER 663.

46. Winfield and Jolowicz on Torts (London: Sweet & Maxwell, 15th edn, 1998) p 520.

47. [1973] Ch 314; cf Lippiatt v S Gloucestershire CC (1999) Times, 9 April, CA.

48. [1988] AC 1013, HL.

49. It is more than arguable that the express inclusion in copyright law of the tort of authorising copyright infringement was unnecessary, based on an incorrect judicial decision. Parliament inserted ‘authorisation’ into the Copyright Act 1911 to overrule the decision in Karnov Pathe Freres (1909) 100 LT 260 that only the infringements of servants or agents could be extended to the defendant. However, Scrutton LJ in Performing Rights Society v City 1 Theatrical Syndicates Ltd [1924] 1 KB 1 was inclined to agree that it was a superfluous addition. His view was that authorising the tort of infringement of copyright was already covered by the common law on joint tortfeasors.

50. Now contained in the Copyright Designs and Patents Act 1988, s 16(2). Though suppliers have been held to have authorised a subsequent copyright infringement, in fact continuing control is often a factor in these cases, as in Winstone v Wurlitzer Automatic Phonograph Co Ltd [1946) VLR 339 or in Falcon v The Famous Players Film Co [1926] 2 KB 474 (where a joint venture appeared to be involved). Of the wide liability imposed on the university library in Moorhouse v University of NSW [1976] RPC 151, the editors of Luddie Prescott Vitoria: The Modern Law of Copyright and Designs (London: Butterworths. 2nd edn, 1995) p 913 note that the judge erred by equating authorising with permitting.

51. Or purport to grant.

52. [1982] Ch 91 at 106.

53. They did not authorise or act in concert nor did they procure the unlawful acts.

54. Scrutton LJ [1924] P 140 at 155.

55. Bankes LJ: ‘there must be some connection between the act of the one alleged tortfeasor and that of the other’ ([1924] p 140 at 151).

56. [1924] P 140.

57. The ‘merger’ doctrine meant that there was but one cause of action.

58. The court rightly held that joint liability did not arise.

59. The only remaining procedural distinction between joint and several tortfeasors is in theory the effect of release of joint tortfeasors, though this is subject to criticism: see Clerk and Lindsell on Torts (London: Sweet & Maxwell, 17th edn, 1995) para 4–55.

60. Mustill LJ in Unilever plc v Gillette [1989] RPC 583 at 603, (tracing the development of joint liability based on common design).

61. [1928] 2 KB 578, DC.

62. Mustill LJ in Unilever plc v Gillette [1989] RPC 583 at 603: ‘Thus far, the cases were concerned with the question whether A and B acknowledged or found to be tortfeasors were responsible individually or jointly for what they had done… [however, in Brooke v Bool, the Koursk test was applied] to determine not whether the 2 acknowledged tortfeasors A and B were responsible for the same tort, but whether in a case where B was undeniably liable, A could be held liable as well.’

63. The defendant admitted he wanted to examine the upper part of the pipe and had welcomed the lodger's help.

64. Talbot J also held that there was a primary duty on the landlord, given that this was an extra-hazardous activity and this duty could not be delegated. In addition, Salter J asserted that the lodger was acting as the defendant's agent at the time of the accident and, further, that the defendant, as someone in control of the premises, should be jointly liable, as in the vehicle ownership cases such as Wheatley v Patrick (1837) 2 M&W 650.

65. [1928] 2 KB 578 at 586.

66. Clerk and Lindsell on Torts, above n 59, para 23–79.

67. CF the anomalous tort of ‘simple’ conspiracy, where the fact of combination alone, if unjustified, can (on rare occasions) render the defendant liable. For J Eekelaar ‘The Conspiracy Tangle’ (1990) 106 LQR 223. ‘the major advantage in framing the action in conspiracy when unlawful means are used is evidential. In complex case it may not be easy to show which individual defendant adopted the specific unlawful procedures alleged’.

68. The question whether there was a separate tort of conspiracy was still at matter of debate in 1920: see J Charlesworth ‘Conspiracy as a ground of Liability in Tort’ (1920) 36 LQR 38.

69. Note that Hobhouse LJ in Credit Lyonnnis Bank Nederland NV v ECGD [1998] 1 Lloyd's Law Rep 19 at 41 expressed the view that there could be vicarious liability for unlawful conspiracy in only the exceptional case.

70. So for Lord Dunedin… if a combination of persons do what if done by one would be a tort, an averment of conspiracy so far as founding a civil action is mere surplusage' (Sorrel v Smith [1925] AC 700 at 716). while Lord Denning asserted in Ward v Lewis [1955] I WLR 9 at 11 that:… the prior agreement merges in the tort… conspiracy adds nothing when the tort has in fact been committed.' Stuart-Smith LJ in Credit Lyonnnis Bank Nederland NV v ECGD [1998] I Lloyd's Rep 19 at 32 said: ‘… the claim in conspiracy added nothing to the claim in deceit.’

71. Clerk and Lindsell on Torrs above n 59, para 23–07.

72. Paraphrasing the views of Mustill LJ in Unilever plc v Gillette [1989] RPC 583 at 609.

73. Gardner v Moore [1969] I QB 55 at 91.

74. An example of accessory liability in criminal law given by Lord Diplock in NCB v Gamble. However Stuart-Smith LJ felt that there would be civil liability on the facts of a case such as Thambiah v R [1966] AC 37, cited by P Atiyah Vicarious Liability in the Law of Torrs (London: Butterworths, 1967) p 301: there the accessory opened a bank account in a false name in furtherance of a fraud to be practised by the actual fraudster.

75. Ownership of and the ability to control a subsidiary company is not per se evidence of joint tortfeasance: Unileverplc l'Chqfilrn [1994] FSR 135, CA. Applied by Laddie J in Mead Corp l'Riivrkvood Inrerrmtiom Corporntiori [1997] FSR 484: the fact that a parent company regarded itself and its subsidiaries as a single economic entity is neutral: to show a common design more than mere approval ofa subsidiary's activities has to be shown. And see Sundwzuri 11 Pariusonic Ltd [1998] FSR 651, Pumfrey J.

76. [1994] FSR 135.

77. In that case patent infringement.

78. Of course, this is a different concept to the motive of such a party: the motive is irrelevant (though of course in the separate tort of simple conspiracy - which does not relate to secondary liability - motive is the key to liability).

79. [1998] FSR 651 at 664. Paraphrasing Laddie J in Mead Corp v Riverwood Multiple Packaging [1997] FSR 484.

80. Petrie v Laman (1842) Car & M 93 at 96.

81. [1998] 1 Lloyd's Rep 19 at 35.

82. [1983] FSR 273.

83. It is clear from this analysis that simply agreeing to buy a product, knowing that the vendor will thereby be in breach of his own contract should not give rise to secondary liability either for inducing breach or for conspiring to breach. Yet Roxburgh J in BMTA v Salvadori [1949] Ch 556 indicated he would be willing to impose liability in such a case, discussed later in text. Subsequently, Lord Evershed in Thornson v Deakin [1952] Ch 646 at 678 suggested that the case might have been an example of an unlawful conspiracy.

84. J Fleming The Law of Torts (Sydney: The Law Book Co Ltd, 8th edn, 1992) p 257.

85. Per Stuart-Smith LJ [1998] 1 Lloyd's Rep 19 at 36.

86. See Stuart-Smith LJ in Credit Lyonnais [1998] 1 Lloyd's Rep 19 at 35.

87. Mustill LJ in Unilever plc v Gillette [1989] RPC 583 at 603.

88. Eekelaar, above n 67 p 224.

89. Thus in Morgan v Fy [1968] 1 QB 521 only some of the defendant union officials were active in furthering the tort of intimidation.

90. The attempt in Credit Lyonnais to create a tort of assisting another's tort was unlikely therefore, to succeed.

91. [1985] 1 WLR 317 at 329. Obviously, as Slade LJ goes on to note, there is no need to be aware that they are committing a tort, provided they are aware of the relevant facts that render the action tortious.

92. See Stuart-Smith LJ in Credit Lyonnais [1998] 1 Lloyd's Rep 19.

93. Sales, above n 5; Cooper, above n 6. Birks, above n I, p 100 contends: ‘we need one law on the civil liability of accessories.’

94. That is certainly the case re ‘joint enterprise’ liability, recently affirmed in Rv Powell; R v English [19971 3 WLR 959, HL. According to Lord Mustill the accessory can be liable for ‘wrongful participation in the face of a known risk’ (at 963). See also DPPfor NI v Lynch [19751 AC 653; AG v Able [19841 QB 798; though cf Gillick v West Norfolk and Wisbech AHA [19861 AC 1 12.

95. [1959] 1 QB 11.

96. Though this principle of facilitating is not always applied and at times the courts appear to prefer imposing accessory liability only where the purpose of the assister is to further the offence, National Coal Board v Gamble is still law.

97. Above n 1, p 11.

98. Above n 74, p 195.

99. Hobhouse LJ [1998] 1 Lloyd's Law Rep 19 at 44 asserted that both Williams and Atiyah may have only been referring to criminal secondary liability which mirrors conspiracy and agency civil liability.

100. Above n 84, p 256.

101. Above n 5, pp 502–503: civil liability may be imposed ‘in circumstances similar to those in which criminal liability is imposed on persons who aid, abet, counsel or procure a crime’.

102. Above n 6.

103. Procuring or assisting in a breach of trust was identified as ‘accessory liability’, a form of ‘secondary liability in the sense that it only arises where there has been a breach of trust’.

104. [1995] 3 WLR 64.

105. Or, indeed, any other civil wrong.

106. (1842) Car & M 93 at 96.

107. [1919] lKB 244 at 254.

108. Sales (above n 5) contends that the original reasons for the award of compensation in cases like Lumley v Gye ‘were in fact analogous to the reasons for secondary liability in criminal law’.

109. A major difference between criminal and civil conspiracy is that for criminal liability a defendant can be charged whether or not the conspiracy has been carried through to the commission of the intended crime.

110. A Ashworth Principles of Criminal Law (Oxford: Clarendon Press, 2nd edn, 1995) p 411 notes: ‘in the case of a child's death caused by drugs, if it can be shown that one or other parent administered methadone to their young child, and that both were present throughout, it matters not that the prosecution cannot establish which parent administered it…’

111. CBS Songs v Amstrad Electronics [1988] AC 1013 at 1059.

112. T Weir Economic Torts (Oxford: Clarendon Press, 1997) p 32 f 31: ‘I would be very uneasy about the development of any such principle as is espoused by Sales… accessory liability in the criminal law has not been joyous, nor has it in equity.’

113. Ashworth, above n 110, p 422.

114. Above n 110, p 439.

115. [1998] 1 Lloyd's Rep 19.

116. Providing acceptability letters and purporting to identify the signatures of acceptors.

117. Stuart-Smith LJ [1998] 1 Lloyd's Rep 19 at 35. Counsel for the plaintiffs submitted ‘that liability as a joint tortfeasor will arise in the same circumstances as in the criminal liability of an aider and abettor’; Hobhouse LJ (at 42): plaintiffs' counsel ‘drew heavily upon an analogy with criminal law’.

118. Issuing the guarantees (which in itself did not deceive the plaintiff bank).

119. Below n 120. Hobhouse LJ considered the nature of the criminal law on accessories in some detail. He roughly divided the law into three areas: incitement/inducement (though obviously, these are inchoate offences in crime, unlike tort liability); agency, involving authorisation or joint enterprise; and. finally, aiding and abetting. Only the first two concepts are relevant to tort law: see [1998] I Lloyd's Rep 19 at 46.

120. They relied on extracts from Williams (above n I), Fleming (above n 84) and Atiyah (above n 74). They also prayed in aid assistance liability in breach of trust cases.

121. Stuart-Smith LJ [1998] I Lloyd's Rep 19 at 35. He drew an analogy with Armagas Ltd v Mundogas SA (The Ocean Frost)[[1986] 1 AC 717.

122. [1979] FSR 59 at 66.

123. [1998] 1 Lloyd's Rep 19 at 46.

124. See Hobhouse LJ [1998] 1 Lloyd's Rep 19 at 42.

125. He noted that the criminal law historically developed separately and that its development was influenced by the distinction between felonies and misdemeanours.

126. Above n 5, p 492. He refers to the general dicta already referred to in this text and to the law of contempt for support. The former adds little to the debate as the dicta are not addressing the point in issue; the latter cannot be relevant to the development of the civil law.

127. (1853) 2 E&B 216.

128. Sir Leonard Hoffmann in P Birks (ed) The Frontiers of Liability (Oxford: Oxford University Press, 1994) commented (p 28) ‘the general principle on which Lumley v Gye is based is that intentional interference with legal rights is actionable.’ However, with respect, the notion of procurement is an important ingredient in the extended liability discussed in Lumley v Gye - procurement is a limiting factor, unlike the notion of ‘interference’.

129. Birks (ed), above n 128, p 232.

130. Prudential v Lorenz (1971) 11 KIR 78.

131. Sales, above n 5, also contends that the concept of joint tortfeasor may involve assistance rather than a causal connection with the wrong committed. However, from the above discussion earlier in this text he would appear to be wrong.

132. Above n 5, p 503.

133. Thus, he cites the decision in Belmont Finance Corporation Ltd v Williams Furniture Ltd [19791 Ch 250, which was disapproved by the Privy Council in Royal BruneiAirlines Sdn v Tan [1995] 3 WLR 64. However, he noted the criticisms of this earlier decision and suggests that a change in the law on this matter that was in fact undertaken by the Privy Council in the Royal Brunei Airlines case.

134. [1995] 3 WLR 64.

135. Under an agreement with the plaintiffs, the company, a travel agent, was trustee for the airline of money it received for the sale of passenger and cargo transport undertaken by the plaintiffs.

136. C Harpum ‘Accessory Liability for Procuring or Assisting a Breach of Trust’ (1995) 111 LQR 545, 546, notes that, as the basis of the imposition of liability on the assister was fauit, ‘there was a logical flaw in the requirement that such liability could be imposed only if the breach of trust assisted or procured by [the assister] was itself fraudulent’.

137. Harpum, above n 136, comments that the liability may still be characterised as a form of constructive trusteeship for limited purposes such as service out of the jurisdiction.

138. [1995] 2 AC 378 at 382.

139. ‘Accessory Liability for Procuring or Assisting a Breach of Trust’ (1995) 111 LQR 545, 546. The Privy Council distinguished dishonest assistance liability from knowing receipt liability: ‘recipient liability is restitution-based, accessory liability is not.’

140. Sir Thomas Bingham in Law Debenture Trust Corp v Ural Caspian Oil Corp [1995] Ch 152 pointed out that Erle CJ's original formulation was not limited to inducing breach of contract alone.

141. [1988] AC 1013 at 1058.

142. And see G Williams, above n 1, p 128; N Cohen-Grabelsky ‘Interference with Contractual Relations and Equitable Doctrines’ (1982) 45 MLR 241, 253: ‘The tort of interference with contractual relations can be described as a special case of joint wrongdoers.’

143. (1971) 11 KIR 78, Plowman J.

144. Of course, the rigid distinction between tortious and equitable liability is under fire from commentators such as A Burrows Understanding the Law of Obligations (Oxford: Hart Publishing, 1998) p 14 and P Cane Tort Law and Economic Interests (Oxford: Clarendon Press, 2nd edn, 1996) p 75 n 310: ‘[the] distinction between tortious and equitable liability makes no sense except in historical terms’ but the distinction does remain. In Metall und Rohstoff SAG v Donaldson Lujkin & Jenrette Inc [1990] 1 QB 391 at 481 Slade LJ stressed that he could see no sufficient justification for a new tort of procuring a breach of trust as liability for such behaviour already existed in equity. In Royal Brunei Lord Nicholls noted that the accessory's liability was ‘a liability in equity to make good resulting loss’: [19951 2 AC 378 at 392.

145. [1949] Ch 556.

146. See also H Carty ‘Intentional Violation of Economic Interests: the Limits of Common Law Liability’ (1988) 104 LQR 250, 258–259.

147. For a similar Scottish case see BMTA v Gray 1951 SLT 247.

148. See also BIP v Ferguson [1940] 1 All ER 479, where although the contract breaker originally approached the defendants, the court stressed that the issue was the price offered by the defendants for the information offered. Per Lord Romer: ‘that the respondents did in fact induce [the Defendant]… to make such a disclosure of the process… is not now disputed.’

149. See also Stamp J in Sefton v Tophams [1965] Ch 1140 at 1160 (reversed on other grounds [19671 1 AC 50), where he accepted Roxburgh J's view that inducement is no longer necessary, although adding that the purchase price is a sufficient inducement.

150. See H Lauterpacht ‘Contracts to Break a Contract’ (1936) 52 LQR 494.

151. [1952] Ch 646 at 694. Lord Evershed MR did not mention ‘inconsistent transactions’.

152. [1952] Ch 646 at 694.

153. (1890) 45 ChD 430.

154. [1988] 1 QB 40 at 59, Bingham MR ‘1 regard it as good law’.

155. [1993] 1 WLR 138 at 151.

156. Some support for this view can be gleaned from Batts Combe Quarry Ltd v Ford [1942] 2 All ER 639. Batts v Combe Quarry was not referred to in either decision. Cohen-Grabelsky, above n 142, p 25 1 agrees that the cases cannot be reconciled but concludes that Batts is wrong, a part of the evolution of the tort, superseded by Salvadori; Bums argues in (1980) Can Bar Rev 103, 109 that the case can be explained on the basis that inconsistent dealings will not be actionable if the third party accepts the benefits of an inconsistent transaction at the insistence of the contract breaker; however, Roxburgh J in Salvadori does not make such a distinction. There, the plaintiffs contract partner breached his contract not to assist in carrying on a rival quarry business. The breach involved the provision of a sum of money to his sons to enable them to purchase a rival quarry. The Court of Appeal agreed with the trial judge that the mere acceptance by the sons of the gift did not amount to a procuring by them of the breach of contract

157. Weir, above n 112, p 42 f 54.

158. In Townsend v Haworth (1875) 48 W Ch 770 the defendant was not jointly liable with the infringer of the plaintiff s patent though he sold (commonplace) chemical substances to the infringer, knowing that he intended to use those substances to infringe the patent. This dichotomy was underlined more recently in Belegging-en Shappij Lavender v Witten Inds Diamonds Ltd [19791 FSR 59. Buckley LJ noted that ‘facilitating the doing of an act is obviously different from the procuring of the doing of the act’.

159. Above n 23, p 191. They cite W L Prosser Handbook on the Law of Torts (St Paul, Minn, 4th edn, 1971) p 934, that the weight of American authority was against this liability'… so long as the defendant creates no added reason and exerts no other influence or pressure by his conduct'.

160. On the basis that the speech of Lord Templeman in CBS Songs Lord v Amstrad plc [1988] AC 1013 ‘strongly suggests that there is little scope for the creation’ of such a tort. He went on to state that ‘direct liability for conduct which would be caught by the new tort [assisting another's tort] exists independently of that tort on the well established grounds for making a secondary tortfeasor jointly and severally liable with a principal tortfeasor’. Given the context of the case and the reliance on Lumley v Gye he appears to be refering to the orthodox procurement or common design links for joint liability in tort.

161. This was applied in Wilkinson v Weave [1915] 2 Ch 323 at 325, where the allegation was that the employer by continuing to employ ‘knowingly assisted’ the breach.

162. [1955] 1 QB 275.

163. In Thomson v Deakin [1952] Ch 646 at 678 Lord Evershed MR said that in BMTA v Sulvadori [1949] Ch 556 the defendant's conduct was tortious in itself as it amounted to a conspiracy with the plaintiffs co-contractor. Weir, above n 112, p 36 argues that the decision, which he categorises as an ‘anti-postwar-spiv’ decision, was wrong anyway, on the basis that the contract was unenforceable as between the parties (being in restraint of trade): however, in BMTA v Gray 1951 SLT 247 a similar contract was held not to be in restraint of trade.

164. He compared their position to that of a defendant inducing the plaintiffs ex-employee to breach a restrictive covenant by working for him.

165. Having been anticipated by Millett J in Agip (Africa) Ltd v Jackson [1990] Ch 265 at 293.

166. M Halliwell ‘The Underlying Concept of Accessory Liability for Breach of Trust’ (1995) 59 Conv 339; R Nolan ‘From Knowing Assistance to Dishonest Facilitation’ (1995) 54 CLJ 505; C Harpum ‘Accessory Liability for Procuring or Assisting a Breach of Trust’ (1995) 111 LQR545; cf ABerg ‘Accessory Liability for Breach of Trust’ (1996) 59 MLR 443. As Harpum notes, though Royal Brunei is a Privy Council decision, it is likely to be followed.

167. CF ‘knowing receipt’ liability, which was held to be restitution-based.

168. Harpum, above n 136, contends that the true nature of the assistance liability in trust is ‘as the equitable analogue of the economic torts’ (p 548). It is clear that this writer disagrees with this assertion.

169. Of course, Sales, above n 5, would put the question in the reverse context: viz why has the common law not followed equity?

170. A J Oakley Parker and Mellows: The Modern Law of Trusts (London: Sweet & Maxwell, 7th edn, 1998) p 282.

171. P D Finn ‘The Fiduciary Principle’ (paper presented to the International Symposium on Trusts, Equity and Fiduciary Relationships. Faculty of Law, University of Victoria, British Columbia Feb 1988) p 36.

172. See R P Austin ‘Moulding the Content of Fiduciary Duties’ in A J Oakley (ed) Trends in Contemporary Trust Law (Oxford: Clarendon Press, 1996) p 158.

173. L S Sealy ‘Fiduciary Obligations, Forty Years On’ (1995) 9 JCL 37,40 comments that the emphasis has shifted from defendant to plaintiff, from the notion of selflessness… to features such as the ‘vulnerability’ of the beneficiary’.

174. P Loughlan ‘Liability for Assistance in a Breach of Fiduciary Duty’ (1989) 9 OJLS 260, 261.

175. An objective standard, with ‘subjective characteristics’, according to Lord Nicholls in Royal Brunei. Though knowledge was rejected as the test of liability, knowledge or recklessness concerning the beneficiary's interest would obviously be relevant to the issue of honesty.

176. T Weir Economic Torts (Oxford: Clarendon Press, 1997) p 31 n 31, referring to the tort of inducing breach of contract, notes that ‘equitable rights, with their property flavour, are rather stronger in some ways than contractual rights, so it would come as no surprise to find them better protected against third parties’. Of course, trust funds may be involved (and, indeed, this is the context in which the doctrine developed), but the principle as clarified in Royal Brunei would appear to apply to assistance for any breach of fiduciary duty. Though Rattee J in Brown v Bennett [1998] 2 BCLC 97 refused to extend the doctrine beyond a breach affecting trust property (there the fiduciary duty was owed by a director to his company and he held this would not be within the dishonest assistance doctrine), on appeal (decided on another point) Norritt LJ appeared to disagree with this (Lexis transcript 1 December 1998).

177. Dishonest assistance, therefore, represents a balance ‘between the protection of the beneficiary's interests and those of the third person [the assister]’: Loughlan, above n 174, p 260.

178. Lord Nicholls Royal Brunei [1995] AC 378 at 387. He goes on to suggest that dishonest assistance has the same rationale as the tort of inducing breach of contract. However, with inducing breach of contract liability is based on the causal link, rather than dishonesty (and is in fact limited to inducing breach, rather than, as Lord Nicholls appears to accept, mere interference with contract performance).

179. Nolan, above n 166, p 506.

180. In fact, as Harpum, above n 136, p 547 points out, most cases are likely to involve agents employed by the trust

181. It should, however, be noted that the Privy Council in referring to the judgment of Thomas J in Powell v Thompson [1991] I NZLR 597 at 610–615, disapproved of his use of the phrase ‘unconscionable conduct’ because this may not always involve dishonesty. However, they approved of the attempt to provide a coherent analysis.

182. The past 30 years have seen a growth of claims based on liability for assistance in a breach of fiduciary duty: Loughlan, above n 174, p 260 points out that until Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 1 WLR 1555 this category of liability was little used. The liability has proved useful at a time when ‘commercial fraud has flourished … [with] pension funds and company funds… misapplied on a massive scale’: Lord Nicholls ‘Knowing Receipt: The Need for a New Landmark’ in W R Cornish (ed) Restitution: Past, Present and Future (Oxford: Hart Publishing, 1998).

183. Interestingly, plaintiffs' counsel in the passing-off case, British Telecommunications plc v One in a Million Ltd [1999] FSR 1 CA, claimed that the basis of the jurisdiction to prevent use of an instrument of fraud in passing off was ‘knowing assistance’ of the passing off, by analogy with the doctrine explained in Royal Brunei. However, Aldous LJ felt this to be a misleading analogy (at 12).

184. [1998] 1 Lloyd's Rep 19 at 46, CA.

185. [1998] 1 Lloyd's Rep 19 at 46.

186. Above n 5.

187. Such liability would involve an expansion of tort liability. B Markesinis and S Deakin Tort Law (Oxford: Clarendon Press, 4th edn, 1999) accept this (p 791): ‘what is proposed here is a unifying principle of liability which would involve at the very least a clarification or more probably an extension of the category of joint tortfeasors.’ But that expansion would in particular undermine the cautious development of the economic torts.

188. Though the assistance of the employee was part of a common design to deceive the bank and would render the employee jointly liable for the rogue's deceit, the assistance was not itself a tort. It would only render the employee liable when linked to the other acts which were not performed in the course of the employee's employment. As Lord Woolf noted, if the tort is committed jointly, then the issue (for vicarious liability) is whether the conduct which is within the course of employment is sufficient to constitute the tort: ‘all the features of the wrong which are necessary to make the employee liable have to have occurred in the course of the employment.’ Thus, the mere fact that the employee was jointly liable for the deceit did not in itself render his employer vicariously liable.

189. C Wadlow The Law of passing-Offs (London: Sweet & Maxwell, 2nd edn, 1995). In fact, this doctrine has recently been extended by the Court of Appeal in British Telecommunications plc v One in a Million Ltd [1999] FSR 1. So, even if not inherently deceptive, it would still fall foul of this doctrine where the court concluded that in all the circumstances the instrument (or, as in the case itself, the name) was produced to enable passing off. Here, the mala fides of the defendant is likely to be crucial.

190. Defined in the Patents Act 1977, s 60(2), though even here it is difficult to render them liable if the product supplied is a ‘staple commercial product’ (see s60(3)): here, inducement needs to be proved.

191. Copyright Designs and Patents Act 1988, s 26.

192. Mirroring the primary liability, whether that be in tort or equity.

193. In Midgley v Midgley [1893] 3 Ch 282 the solicitor was held liable as the instigator of the breach of trust in issue.

194. Above n 1, p 3. Note, however, Waller J in The Leon [1991] 2 Lloyd's Rep 611 wished to distinguish between procuring a contract breach and procuring a tort, at least where the inducer is an employee.

195. Lord Devlin in Rookes v Barnard [1964] AC 1129 at 1210–1211 refused to state whether there would be liability for such a conspiracy; criticised by W Wedderburn ‘Intimidation and the Right to Strike’ (1964) 24 MLR 257,267 – so though a breach of contract is unlawful means for the tort of intimidation in its three-party form (and presumably for the tort of unlawful interference with trade), it may not be so for the tort of conspiracy.