Some brave pioneers – like Dyson Heydon, Lord Wedderburn and Tony Weir – made valiant, early attempts to sort out the chaos that has dogged our understanding of these torts almost since their inception. They failed. Others in their wake – like Hazel Carty, Allan Beever and Simon Deakin – have since picked up the baton and run with the challenge. They, in my view, failed too. In my view no-one has quite cracked them yet. No-one has rationalised or – to paraphrase that oft-made complaint – managed to act as an Atkin in this (mine)field of intentional civil wrongs.
I have fared no better in this regard; and deliberately so. This is because I have begun work on a new book that takes a fresh look at the so-called economic torts and offers a sort of anti-theory of them. In the book, I shall argue that much of the confusion stems from the fact that it seems uncritically to be accepted that this group of torts belong together, that they form a family. My view, however, is that this is not so. I think we should get away from the idea that they are a group of closely related torts that have in common the fact that they protect economic or trade or business interests. If they are linked at all it is via the point that they are all good examples of how tort law functions as the common law’s Swiss army knife. I say this because all of these torts can be seen through the lens of the law’s response to particularly opprobrious scoundrels. The range of interests that these torts protect is not limited to those that arise within a commercial setting. Rather, they can be invoked to obtain redress for infringements of autonomy rights (including the right to decision-making autonomy). They can also be used in connection bodily injuries, harm visited upon a claimant's mental well-being and consumer satisfaction and expectations.
Naturally, in advancing this thesis I am ruffling more than just a few feathers. I disagree with just about everybody who has written prominently about them. I lock antlers with conventional accounts of these torts, with Kantian explanations and with rights theorists’ understandings.
Work is still at a relatively early stage of development. However, during my sabbatical – spent in the wonderfully welcoming arms of the Cambridge Law Faculty as well my host college, Clare Hall – I did mange to write a draft chapter engaging with (and dismissing as implausible) the rival accounts produced by the ‘Conventional School’, the ‘Kantian School’ and the “Rights Theory School’. I also wrote another draft chapter dealing with what ought to be a simple matter, but is in fact a fiendishly difficult one, namely, identifying the dramatis personae. In simple terms, the chapter seeks to identify a list of torts that are both thought to be vital (in the strict sense of that word) and part of the economic tort family. Incredible as it may seem, no two authors have ever yet agreed on which torts are the economic torts (or even what all their names are).
On top of writing these two draft chapters, I have had many fruitful discussions with knowledgeable members of the Cambridge Law Faculty. I also had the chance to present a paper on “the book so far” to the Cambridge Private Lawyers at their away day – from which we have a lot to learn (in particular the 2 ½ hours that they allow for a three course lunch with fine clarets and sauvignon blancs).
All in all, a very agreeable and useful period of research leave was had. The feedback on “the book so far” paper I gave was reassuringly very positive and helpful.
And one last thing... as an antidote to thinking about the economic torts all day every day, I managed to tickle into a publishable state a few papers on other topics that I had been working on. These are now all due later in 2019 (in the OJLS, the CLJ, the McGill Law Journal and the Canadian Journal of Law and Jurisprudence).