THE ACTION OF CONSPIRACY

In the English criminal law, however the term conspiracy has much longer standing. It originally
referred to particular king of combination which were made  punishable by various medieval
statutes, e.g. combination to pervert justice, to raise prices or wages. Conspiracy was finally defined
as an agreement between two or more persons to do an illegal act or an act which is not illegal by
illegal means. A similar offence under the name of criminal conspiracy was also added to the Indian
Penal Code in 1919. The element of conspiracy the element of conspiracy is collateral to or
evidentiary of an independent tort, because even a single individual who does similar harm is liable.

 Two or more persons who cause damage to another by a conspiracy among them will be
liable to him, (a) where their conduct amounts to the offences of criminal conspiracy, (b)
where the conspiracy is malicious, i.e. has the motive or object of causing such damage. The
element of Conspiracy in relation to other independent torts is very important to understand.
It may be material in the following ways: a)
 
It may be a circumstance of aggravation, e.g., a concerted assault, libel, or inducement to
break a contract.  b)It may be evidence of the casual connection between the conduct of the
wrongdoers and the resulting damage, as the pressure of numbers can often achieve what a
single person cannot, eg, dismissal of a workman in breach of a contract of employment by
an employer at the request and out of fear of a powerful trade union.
c)It may be evidence of malice or the absence of a proper motive or  justification, eg, a
conspiracy to hoot an actor when he appears on the stage. d)It would prove the joint liablity
of two or more persons for the same tort.
6
 Ward V. Lewis[1955]
7
 The Law Of Torts, Dr. A Lakshminath & M.Sreedhar [LexisNexis Butterworths,
New Delhi] 2006 Pg 485
In these cases, the element of conspiracy is collateral to or evidentiary of an independent tort,
because even a single individual who does similar harm will be liable.
8
The tort of conspiracy as now evolved by English decisions assumes that two or more
persons acting in concert may become liable for conduct which on the  part of a single
individual alone is not actionable.

 The Law Of Torts by Ratanlal & Dhirajlal [LexisNexis Buttorworths ,

Gurgaon, Haryana] 2013 CRIMINAL CONSPIRACY
In India, conspiracy was initially only considered as a civil wrong, but later on it
was brought under the ambit of Indian Criminal Law. Conspiracy was not an
offence under the Indian Penal Code, 1860 (hereinafter referred to as the IPC)
until the Criminal Law Amendment Act of 1913 was passed which added the
Sections 120A and 120B to the IPC
Section 120A of the IPC state that:
“Definition of criminal conspiracy- When two or more persons agree to do, or
cause to be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall
amount to a criminal conspiracy unless some act besides the agreement is done
by one or more parties to such agreement in pursuance thereof.
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Explanation- It is immaterial whether the illegal act is the ultimate object of
such agreement, or is merely incidental to that object.”
Section 120B of the said Code states that:
“Punishment of criminal conspiracy.—
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable
with death, 2[imprisonment for life] or rigorous imprisonment for a term of two
years or upwards, shall, where no express provision is made in this Code for the
punishment of such a conspiracy, be punished in the same manner as if he had
abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy
to commit an offence punishable as aforesaid shall be punished with
imprisonment of either description for a term not exceeding six months, or with
fine or with both.”
So, while Section 120A of the IPC provides the definition of criminal conspiracy,

Quinn v. Leathem, the tort of conspiracy was famously defined as, “A conspiracy is an
unlawful combination of two or more persons to do that which is contrary to law, or to do
that which is wrongful and harmful towards another person, or to carry out an object not in
itself unlawful but by unlawful means.” In simple words, when two or more people come
together to cause harm to some other person, and do some act in furtherance of their
intention and such act actually causes harm to that person, then the tort of conspiracy is
said to be completed. When two or more persons without lawful justification combine for the
purpose of
willfully causing damage to the plaintiff, and actual damage results there from, they
commit the tort of conspiracy. In other words a conspiracy is an unlawful combination of two
or more persons to do, that which is contrary to law, or to do that which is wrongful and
harmful towards other person, or to carry out an object not in itself unlawful by unlawful
means. Conspiracy can also be understood in terms of partnership, where a group of people
come together under an agreement to form a partnership in which each member becomes
the partner or agent to each member and agrees to commit or to engage in planning of
some act.
It is immaterial whether the conspirators are in combination at every stage of conspiracy or
not. The tort of conspiracy is also known as civil conspiracy

SALMOND defined conspiracy as “acombination willfully to do an act causing

damage to a man in his trade or other interests is unlawful and if damage in fact is
caused is actionable as conspiracy.”

 Even when there are mixed motives, liability will depend on ascertaining which is the
predominant object or the true motives or the real purpose of defendant.
Sine Qua Non for Conspiracy
1) There should be more than one person:
The tort requires an agreement, combination, understanding, or concert to
injure, involving two or more persons. There should be at least two persons then only an
action for conspiracy can be made out. Husband and wife were once thought to be one person
in the eyes of the common law and, therefore, to be incapable of conspiring together. This is
still the case in criminal conspiracy. But it has been held that, in the absence of binding
authority, and of compelling rationale of public policy, the primitive maxim that spouses are
one person should not be imported to the tort of conspiracy.
2) The act done should be without any lawful justification:
The plaintiff has to prove that the defendant combined to do the act was
illegal or legal but done by an illegal means. It should not be enforceable by law. In other
words we can say that there should not be any lawful excuse or it should be without any
lawful justification. Unless this requirement is made out there shall have no conspiracy on the
part of the defendants.
3) It should be done willfully:
The object or the purpose of the combination must be to cause damage to
the plaintiff. The test is not what the defendants contemplated as a likely or even an
inevitable consequence of their conduct; it is “what is in truth the object in the minds
of the conspirators or combiners when they acted as they did? Malice in the sense of
malevolence, spite of ill will is not essential for liability; what is required is that the
combiners should have acted in order that (not with the result that, even the
foreseeable result) the plaintiff should suffer damage. The act should be done
willfully, if isn’t then no action can be made out for conspiracy.
4) Damage on the part of the plaintiff:
Damage is an essential element of the tort of conspiracy, the gist of the
cause of action. It has been held that the damage constituted by the expense incurred by
plaintiffs in exposing and resisting the wrongful activities of the defendants can be awarded
to them as damage directly caused by the conspiracy.Damages for injury to feelings or to
reputation, however, cannot be recovered in an action based upon a “lawfulmeans”
conspiracy to injure.

if the act which injures A is not that of single individual ,but is due to a combination of two
or more persons ,then motive or purpose becomes material .thus, where several persons
combine to his at an actor, or to ‘boycott’ a tradesman or merchant ,the element of
combination is a part and parcel of the wrong ,since the damage could not have occurred
without it . the illegal and malicious combination is then the gist of wrong . “in all such cases
it will be found that there existed either an ultimate object of malice or wrong ,or wrongful
means of pursuit of a law object .” The tort of conspiracy can be divided into two parts: a.
Where the dominant purpose is to injure a third party though the means employed are not
themselves unlawful; and  b. Where the means employed are by themselves unlawful
lConspiracy to injure:
The purpose to injure or harm a third party must be distinguished from the purpose toadvance
the legitimate interests of the persons combining together. In Mogul SteamshipCo.’s case3, it
is laid down that no action for a conspiracy lies against persons who act inconcert to advance
their legitimate interests but as a necessary consequence to damageanother and do damage
him, but at the same time merely exercise their own rights bylawful means and who infringe
no rights of other people. Thus acts done by X and Y whoare acting in concert solely for the
purpose of protecting and extending their trade and increasing their profits, and which do not
involves the employment of any means bythemselves unlawful are not actionable, even
though these cause damage to A, notactionable; provided that his competitors are acting
solely with the lawful object ofsecuring success in trade and use no unlawful means.
Quinn v. Leathem4 holds that a combination of two or more persons, without
justification or excuse, to injure a man in his trade by inducing his customers or servantsto
break their contracts with him, or not to deal with him, or continue in his employmentis, if it
results in damage to him, actionable. A person has a right to carry on his ownbusiness, as
long as he does not break the law, in the way he himself prefers. Hence, it isthe legal duty of
third person not to use intimidation or coercion towards him or hiscustomers, with a view to
prevent him from carrying on his business in the way he chooses.In this case the facts are as:
The plaintiff was a butcher and the defendants were officials of a trade union.
The defendants asked the plaintiff to discharge certain workmen who did not belong to
3 (1892) A.C. 25.
4 (1901) A.C. 495.
the Union. The plaintiff refused on which the defendants compelled the plaintiff’s
chiefcustomer to cease to deal with him by threatening that unless that was done, they would
withdraw all their workmen.It was found by the jury that the defendants had maliciously
conspired to induce the plaintiff’s customers not to deal with him. It was held that the
plaintiff was entitled to sue the defendants for damages and thus allowed to recover damages.

_ Unlawful means conspiracy:

If a combination of persons uses unlawful means to achieve their object and damage
results to the plaintiff, he will be no doubt entitled to sue the persons combining for
conspiracy if their predominant purpose was to injure the plaintiff. Further, if the
unlawful means employed by the combiners are themselves actionable by the plaintiff,even
without the combination as joint tort-feasors for the damage caused to him without taking the
aid of tort of conspiracy. But what happens when the means employed are not actionable
though they are unlawful? The answer given to this question by the Supreme Court of India
and the House of Lords, is that persons combining to use such unlawful means cannot be
sued for conspiracy by the plaintiff suffering damage unless the purpose of the combination
was to injure him. But the purpose to injure the plaintiff need not be predominant purpose if
unlawful means are used; it is sufficient if it is one of the purposes. After a period of
uncertainty the House of Lords, in a case, reaffirmed that this form of tort does not require a
predominant purpose to injure the plaintiff. However, the tort still requires an intention to
injure the: it is not enough that the defendants combine to
do an unlawful act, which has the effect of causing damage to the plaintiff.
Judicial Pronouncements:
(1) Mogul Steamship Co. v. McGregor Gow and Co5.
The defendants, who were firms of ship owners trading between china and Europe,
with a view to obtaining for themselves a monopoly of the homeward tea trade, and
thereby keeping up the rate of freight. They formed themselves into an association,
5 (1892) A.C. 25.
(1) Mogul Steamship Co. v. McGregor Gow and Co5.
The defendants, who were firms of ship owners trading between china and Europe,
with a view to obtaining for themselves a monopoly of the homeward tea trade, and
thereby keeping up the rate of freight. They formed themselves into an association,
5 (1892) A.C. 25. and offered to such merchants and shippers in china as shipped their tea
exclusively
in vessels belonging to the members of the association a rebate of five percent. On all
freight paid by them. The plaintiffs, who were rival ship owners trading between
china and Europe, were excluded by the defendants from all the benefits of the
association, and, in consequence of such exclusion they sustained damage. The
plaintiffs brought an action against the defendants allegingconspiracy to injure them.
It was held that the acts of the defendants were done with the lawful object of
protecting and extending their trade and increasing their profits, and since they had
not employed any unlawful means. The defendants were not held liable and thus the
plaintiffs had no cause of action.
(2) Sorrel v. Smith6
The plaintiff, a retail newsagent, who was accustomed to take his newspapers from R,
withdrew his custom from R and started taking newspapers from W. the defendants,
members of a committee of circulation managers of London daily papers, threatened the
cutting off the supply of newspapers to W if W continued to supply newspapers to the
plaintiff.
The defendants had acted so to promote their business interests. The defendants were not
held liable.
(3) Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch7
The defendants, a trade union, instructed dockers, who were members of the union,
to refuse to handle the plaintiff’s goods (without there being any breach of contract). The
object of this embargo was to prevent competition in the yarn trade and thus helping to
secure economic stability of the industry and thereby increase the wage prospects of the
union members in the mills.
6 [The above action by the union was to promote the interest of its members. There was no
conspiracy on the part of the defendants and thus they were not held liable.
(4) Hunteley v. Thornton8
The plaintiff, a member of a union, refused to comply with the union’s call for strike. The
defendants, the secretary and some members of the union, wanted the expulsion of the
plaintiff from the union but the executive council of the union decided not to do that. The
defendants acting out of grudge against the plaintiff made efforts to see that the plaintiff
remained out of work.
The acts of the defendants were not in furtherance of any union interest but were
actuated by malice and grudge. The defendants were held liable and the plaintiffs were
entitled to recover damages
.
Rohtas Industries Ltd. v. Rohtas Industries Staff Union28:

The workmen of two industrial establishments went on strike. The strike was illegal under
Section 23 read with Section 24 of the Industrial Disputes Act, 1947, as conciliation
proceedings were pending. The question before the Supreme Court was whether the union
was liable to pay compensation to the management for the loss incurred by it. Since the
strike was illegal, it was also unlawful, but it was held that the union was not liable because
their object was not to cause injury to the management. Their only purpose was to benefit
themselves and thus they were held not liable.

6. Pepsi Foods Ltd. and Others v. Bharat Coca-Cola Holdings Pvt. Ltd.29:

The plaintiffs were engaged in manufacturing, marketing and sale of soft drinks and
beverages, under the trade mark „Pepsi‟ all over the world, including India. Over the past 6
months the plaintiffs found that the defendants had been resorting not only to unethical
business practices, but the defendants‟ actions in most cases constituted tortious
interference in the business of the plaintiffs. It was further mentioned that the defendants
had entered into conspiracy to undertake concerted action against the plaintiffs to damage
their business interests in an illegal manner. It was alleged that the defendants are guilty of
the tort of conspiracy. On consideration of the totality of the facts and circumstances, the
plaintiffs were not able to make out a strong prima facie case for the grant of injunction at
that stage. The balance of convenience was also not in favour of the plaintiffs. No
irreparable injury was likely to be caused to the plaintiffs. Also, since the third essential of
conspiracy, i.e. overt act that causes damage to the claimant, was not fulfilled, the case was
not actionable.

7. Revenue and Customs Commissioners v. Total Network SL30:

A person „A‟ in country „X‟ contracted to sell goods to „B‟ in country „Y‟. „B‟ then sold the
goods to „C‟ and „C‟ paid VAT for it. „B‟ then disappeared without paying revenue for the
VAT earned by him and „C‟ resold the goods to „A‟ and reclaimed his VAT before the
Revenue discovered the disappearance of „B‟. In this case, conspiracy to injure could not be
proved, because the predominant purpose of the combiners was not to injure, but to gain
profit. But, the unlawful means conspiracy was applicable here and they were held liable for
the tort of conspiracy of the nature of unlawful means conspiracy