Reflections on Secretary of State for Health v Servier Laboratories Ltd: Keeping economic torts within their proper bounds

On 2 July 2021, a seven-judge panel of the UK Supreme Court handed down its judgment in Secretary of State for Health v Servier Laboratories Ltd[1] ("Servier"). The appeal concerned the tort of causing loss by unlawful means (the "unlawful means tort"). This is one of a number of economic torts under English law.

The relevance of these torts as part of the claimant toolkit in cross-border commercial litigation in particular has become evident in recent years. Many disputes from Russia and the CIS rely heavily on economic torts, typically involving the related tort of conspiracy to injure by using unlawful means (the "unlawful means conspiracy tort"). Servier will be of interest in that context as well.

To summarise the Supreme Court's decision, it maintained the previous landmark decision of the House of Lords in OBG Ltd v Allan[2] ("OBG"), in particular affirming the "dealing requirement" for the unlawful means tort. In doing so, the Supreme Court followed the general policy in OBG of keeping this tort and other economic torts within their proper bounds.

Notably, the Supreme Court did not reconsider the approach to the more typical barriers to this type of claim – proof of intention to cause loss and of unlawful means. OBG remains the leading authority on both those requirements. The former is not as readily amenable to determination on a strike-out application (i.e. on the pleadings, without full factual evidence), while the latter is an area ripe for dispute given the need to show an actionable wrong.

You can read Philippe Kuhn's full post on our Commercial, Construction & International Arbitration Blog here.