Argumentum ad Hitleum not actionable: blogosphere saved

According to the Supremes it is OK for BC talk radio deity Rafe Mair to compare local anti-gay activist Kari Simpson to Hitler and the KKK. The trial judge thought there was an implication that Simpson approved of violence against gays and lesbians, which she doesn't -- however let Mair off on the basis of the "fair comment" defence. The Court of Appeal disagreed, thinking such allegations are beyond the pale, but the Supremes tell us that we might as well get used to unregulated twenty-first century discourse, because they're not going to do anything about us. Godwin's Law is not the law in Canada.

I tend to agree with the concurring justices that when a loudmouth compares another loudmouth to Hitler there really is no defamatory implication that the compared loudmouth wants genocide. But maybe I spend too much time on blogs.

Presumably, if there is an analogy between defamation against individuals and "hate speech" provisions about identifiable groups, then comparing Islam to fascism would be OK. Unfortunately, there is -- as yet -- no doctrine of fair comment in the tribunal jurisprudence.

O.B.G. Limited Again

A while back, Andy suggested I should comment on the House of Lords' decision in OBG Limited. I did read it, but then got off on a tangent about inducing-breach-of-contract, which is as tangential to the main decision as products-liability law is to the plot of Strange Brew.

The classic common law is a very market-oriented thing. And so, in general, it does not protect against competitive injury. And If A failed to perform her contract with you, it encouraged you to sue A, not somebody else who may have caused the dealbreaking. However, there are murky exceptions in the form of the "economic torts," most of which were used to deal with the nascent British Trade Union movement, although the odd shady opera promoter was manhandled as well.

Lord Hoffman does a bang-up job of going through the cases and extracting the principle that P can sue D if D intended to harm D and did so using illegal means. Although that tedious British analytic philosophy comes in handy as his lordship sets out what "intention" means here, with much less fuss than our courts are prone to.

Lord Hoffman and Lord Nicholls of Birkenhead get into a bit of a set-to over the scope of illegal means. Lord Nicholls wants to include any violation of statute, while Lord Hoffman is only interested in common law wrongs against third parties. So if I decide to improve my share of the widget market by scaring your customers with guns, or blowing up your suppliers' widget factory, Lord Hoffman would let you sue me. But if I just violate the EU Widget Manufacturing and Distribution Directive, I won't face worse than the penalty the public law has in store for me.

The Pithlord agrees with Lord Hoffman here. If something that was legal at common law is made illegal by the will of the politicians, then it is to the will of the politicians we should look for the consequences. If they didn't think to put in a civil right of action, then there is no reason for one. In Saskatchewan Wheat Pool, our highest court (rightly, in my view) rejected the idea that breach of statute was inherently actionable. However, Sask. Wheat Pool also says that compliance/non-compliance with a regulatory standard can be presumptively persuasive evidence of whether the defendant acted "reasonably". So too, it may be that some modern statutes (at least those that have clear victims) can help give content to what is trespass, battery or assault. With that caveat, though, I'm on Lord Hoffman's side.

On the other major disagreement, on whether conversion can apply to choses in action, I have to prefer Lord Nicholls. OBG Ltd. was mistakenly put into receivership: the defendant took over all its property and all its contractual rights. The question was whether OBG could sue for damages. If someone takes your property (even innocently, but without your consent), then you can sue. What about "taking" your rights under contracts? It seems to me that these are essentially the same: they are my stuff. Only real law nerds even know whether bank deposits, for example, are contractual rights/choses in action or personal property. As Lord Nicholls points out, if intangible rights are represented in a document, and the document is appropriated, then there can be a suit in conversion. On this point, the majority of the Law Lords seem to just engage in reactionary fear of any change at all, rather than reasoned response.

Donoghue v. Stevenson: What was in Lord Atkin's water?

Donoghue v. Stevenson is maybe the most famous common law case ever (even though it wasn't under the common law, arising as it did out of Scotland, and wasn't really a case, being decided on the pleadings). It inspired the sub-plot in Strange Brew, in which Bob and Doug attempt to get a case of beer by pretending they found a mouse in their stubbie (this leads them to get a job at Elsinore Brewery, leading in turn to their defeat of a plot by Max von Sydow to take over the world through psychoactive substances in beer. Psychoactive substances in fried chicken was the plot in Undercover Brother.)

Miss Donoghue alleged that she found a snail in a bottle of ginger beer manufactured by the defendant. The House of Lords overruled a 19th century precedent holding that manufacturer liability for latent defects causing personal injury could only be brought in contract -- thereby screwing over ultimate consumers who rarely had direct contracts with manufacturers. The Pithlord does not dispute the justice of this result.

However, I have never been fond of Lord Atkin's attempt to generalize. He shows a marvelous sense of Biblical rhetoric, but demonstrates serious conceptual confusion of the kind one would expect from an American judge.

Rolling the tape [1932] A.C. 562 at p. 580:

At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

In this short passage, Lord Atkin distinguishes and then confuses both acts and omissions and moral and legal duties. He uses the term "injury," which sounds like harm-regardless-of-right, but brings to a lawyer's mind the phrase "damnum sine injuria ," which emphasizes that some interests are necessarily not legally protected. He presents the remarkable (and false) claim that there must be a general formula for liability in negligence as something he will at present content himself with. It is also wrong that the legal duty is always more limited than the moral one, since it is sometimes more extensive. As an attempt to make a general formula for negligence law, Lord Atkin's dictum is even worse than Anns.

So why does the passage resonate as much as it seems to? I think it is because of the interesting reversal of Christian theology. There is an overt reference to the tale of the Good Samaritan, and an implicit one to the contrast between law and grace in Romans. The relationship with Jesus's parable is interesting. Atkin invokes the universalism of Luke 10 in favour of an expansion of tort liability, while recognizing that as a coercive force, the law is always on the side of Pilate.

Photograph of snail from macrophile.

Update: The confusion between moral and legal duties arises in the definition of neighbours as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation..." "Ought" here either means a moral "ought" or a legal "ought". But if it is a moral "ought", then he has just confused moral and legal duties again. And if it is a legal "ought", the definition is circular.

The same sentence has him go back and forward between "affected by my act" with no mention of omission and "the acts or omissions which are called into question." It is surely correct that omissions can sometimes give rise to liability. It is surely wrong that they give rise to liability whenever acts would.

Hot "Duty of Care" Action

There's an interesting discussion of "proximity," when you've got it, and when you don't at the University of Alberta Law Blog.

Update: Continuing here, with intervention from Lewis Klar.

Thoughts on Syl Apps

The Supreme Court of Canada ruled today that parents can't sue child protection workers for negligently taking their children from them. The Court thinks that allowing such a thing would put these workers in a conflict, since their paramount duty should be to the children. This may be the right conclusion. But I have a few thoughts:

*Once again, the whole Anns/Cooper analysis doesn't do any work. Lawyers have to keep the policy considerations going into the second part of the first stage separate from those going into the first part of the second stage, but it's all nonsense. The law would be as certain, and quite a bit clearer, if the court just said it will create new duties of care when it thinks it is a good idea and not when it doesn't. As I understand it, this is roughly the law in England.

*The Supreme Court decided there was no duty "on the pleadings." In other words, without a trial or even affidavit evidence. The Court ruled that there would be no case even if everything the plaintiffs claimed were true. At least formally, that was the issue in the Court of Appeal: the majority didn't necessarily say that parents can sue child protection types in these circumstances, but that there should be a trial to figure this out.

I would have liked to have seen some discussion of this process point. I tend to agree with the SCC that judges should do as much work as early on in the civil process as they can: it isn't fair to either plaintiff or defendant to make everybody put in evidence and have a trial if there is no cause of action anyway. But, of course, if you need evidence to decide something, then you should wait for the evidence.

The implication of the SCC deciding the "duty of care" issue on the pleadings is therefore that it doesn't need evidence. But we are also told that the question of whether to recognize a new duty of care is principally one of policy, and involves questions of expectations, representations and reliance. Dwelling only on policy, it is at least conceivable that child protection experts or law-and-economics experts could give evidence on how allowing actions like this could affect child protection decisions. The alternative seems to be to rely on uninformed judicial intuition, which is really all we get in the decision.

*The first point and the second point are related. If the Court's "duty of care" jurisprudence focused on whether and what kind of evidence would support a new duty of care, it would be less vacuous.

*On the policy issue, I'm not sure the SCC is right. Child protection is so difficult -- everyone agrees -- because mistakes in either direction have tragic consequences. If the authorities don't take kids into care when they should, abuse will likely continue. If the take kids into care when they shouldn't, they destroy families and, in light of the statistics about children in the wardship of the state, make their lives hellish (including creating risks of abuse). Decisions are difficult, but mistakes are symmetrically disastrous.

There is an argument that protection workers making good faith decisions shouldn't be sued in negligence at all. Judges who make protection orders can't be. Police and prosecutors who put people in jail can't be. But if protection workers can be sued for one kind of mistake (not removing a child against its best interests), it should also be possible to sue them for the opposite mistake. Otherwise, you are creating a "safe harbour" in one direction, which is a terrible incentive to create. It is true, however, that a child can still sue for its loss in overzealous protection.

Case Comment on Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38

Serhan and the Trouble With Unjust Enrichment

Having asked for uncorrupted intuitions on the interesting Serhan v. Johnson & Johnson case, I ought to give my own views. Unfortunately, they are a bit unformed (which I suppose is why I find the case interesting -- I'm usually pretty opinionated).

It isn't quite right to say that the absence of harm should always and everywhere foreclose any recovery. It's mostly right, but not totally right.

The most general principle is that plaintiffs should lose. Losses should fall where they may. That's because legal process is expensive, emotionally harmful, and it sometimes just makes things worse. At a first cut at anything, somebody who wants a court to give them someone else's money should have a hard time of it.

But of course if we are to avoid a Hobbesian nightmare world, there have to be exceptions. All of those exceptions come out of one-sided transactions. D and P interacted and either P was harmed or D benefited.

The easiest case is the one Aristotle considers in Book 5 of the Nicomachean Ethics where the harm to P is exactly equal to the benefit to D. Equivalently, we could just consider the situation where what P is seeking is the lesser of the two quantities. It would still seem by our first principle that plaintiffs should usually lose that P ought to show some reason why he should get min (benefit to D, harm to P). Which, if you'll permit the digression, is why the test set out in Pettkus v. Becker is wrong. In words repeated ad nauseum subsequently, the SCC says that once P shows that min (benefit to D, harm to P)>0, then it's D's job to explain why the court shouldn't intervene. Crazy stuff, but I agree that min (benefit to D, harm to P) should be the easiest thing to get.

Let's suppose that harm>benefit, and P wants compensation for harm. That's tort law, and it's a bit harder than just getting the return of money paid by mistake. You usually have to show that D did something wrong, or at least stupid. And that's how it should be because now we have an overall loss we need to stick somebody with.

But what if (benefit)>(harm), and P wants something equal in value to the benefit? That should be even harder to get, because generally (benefit)>(harm) is a good thing we want to encourage. If P gets (harm) and D gets (benefit)-(harm), then we've made Mr. Pareto happy, and when he's happy, everybody's happy. So why screw around with that?

Oddly, the cranky old English law did occasionally screw around with that. If the reason (benefit) exists in the first place is that D used P's property (whether as a result of trespass, detinue, conversion or some breach of trust), then P ought to get the full benefit. That's because the right to property includes the right to its fruits. Even when the use of the property was completely innocent, D may find that P gets everything.

I'm not sure that the facts of Serhan can reasonably be fit into that particular framework. Maybe there's something analogous between using somebody's chronic condition as a way to make money and using their chattel. But maybe not. It's a bit of a stretch, and by our first principle that plaintiffs should usually lose, we shouldn't be allowing stretches for plaintiffs.

The other situation where equity would do funny things is where there's fraud. We discourage negligence as much as we want to when we make it pay for the harm it does. If someone benefits from their negligence only because it still is profitable after the harm has been accoutned for, then there's nothing wrong with that. Fraud's different. It's not cool to benefit from it, even in those circumstances where nobody got hurt.

So I give the Div. Ct a pass, at least on the basis of the stage of the litigation. I suspect that the government would have been the better plaintiff though (whether literally through the civil justice system or through some public law mechanism), and its apparent decision not to act which makes me sympathize a smidgen with the dissent.

Monday Afternoon Begging: For Non-Lawyers Only

I want to get uncorrupted intuition on this. Comments from anyone who has been to law school are banned.

Manufacture makes a device that provides diagnostic information to people with a chronic condition. Inaccurate information could lead to death or serious injury. Manufacturer markets these in a Canadian province, already knowing that they are defective and inaccurate. Government pays the tab. Fortunately, no one is actually hurt before the manufacturer ultimately fixes the problem. The government is not interested in suing.

Should the manufacturer have to hand over its profits to the user group or should it be allowed to keep them?

The Dog Materially Contributed to the Risk of My Homework Being Eaten

A while back, reader David Cheifetz assigned the Pithlord a number of articles on the subject of the Supreme Court's "causation" jurisprudence, and why it sucks. I haven't said anything about it since, so I wanted to get my excuses out there.

If you want to sue someone about a car accident, it isn't enough that you are hurt and that they were driving badly. Their car also has to hit you, and cause your injuries. Most times, we get by with the "but for" test: the injury can only be compensable if it wouldn't have happened without the accident. But there is a more exotic form of legal causation, "material contribution." The theme of the articles Cheifetz sent me is that the "but for" test is just fine, and the Court's varying statements about when other forms of causation should be applied is confusing and confused.

I'm not totally sure. Humans are given intuitions about countefactuals by divine providence or natural selection, but they are very hard to get a more scientific grip on. That means that we can be sensible about what would have happened when the events are the kind of things we have pre-scientific intuitions about, but breaks down when the white lab coats get involved. Sure, there are some forensic experts who don't mind opinionating on what would have happened, but they shouldn't necessarily be trusted.

If it is granted that there is a genuine practical problem here, what is the solution? I'd say it isn't a better verbal formula for what causation really means. It is a more concrete sense of what kind of evidence needs to be called to get to liability in various contexts.

Which gets me out of the uncomfortable world of counterfactuals and into my favourite legal process point. People in general are better at deciding what should be done in particular situations than stating coherently the general principles behind them. Judges are people. So we should expect that they get cases right more often than doctrine. It follows that they might have avoided Mr. Cheifetz's well-founded criticisms by being a bit quieter. The only time it is legitimate to talk about how evidence that doesn't support an inference of "but for" causation should result in liability, is when the court decides that evidence that doesn't support an inference of "but for" should result in liability. Then the facts of the case gives guidance as to what the hell the abstract language is supposed to mean. On the other hand, if there are well-understood reasons to reject liability anyway, doctrinal language is just going to confuse everybody.

So, in Resurfice, there was no need to throw out incomprehensible dicta.There was nothing wrong with zamboni, its design didn't increase the risk of the accident, and that's all that had to be said.

Something more substantive on Resurfice

So far, the reviews are bad for Resurfice v. Hanke, the Supreme Court of Canada's latest on "causation." Neither Russ Brown nor our friend David Cheifetz thinks it has helped clarify when courts should use the "but for" test (is it more likely than not that the defendant's negligent act was a necessary precondition for the plaintiff's injury) or the "material contribution" test (?!?) to determine liability.

I think the "but for" test is fine and so I don't mind that the Court says it is the one we are generally supposed to use ("primary" and "basic"). I tend to agree that things get confusing after that.

But it seems to me that there is a more basic problem with the decision. At least from how the sympathetic SCC describes things, the trial judge seems to have applied the "but for" test to the plaintiff's conduct, not the defendant's (full disclosure: I haven't read the trial decision). The defendant poured water into the gas tank of his zamboni, which caused his injury. His claim was that the design made it easy to mistake the two tanks.

The Court of Appeal found, correctly, that the trial judge had applied a “but for” test in determining causation, stating, “the thrust of the reasoning is that ‘but for’ the Appellant putting or leaving the hose in the gasoline tank, the explosion would not have occurred” (Emphasis added.)

But of course Mr. Hanke wouldn't have been injured if he hadn't put water in the gas tank. That was his whole case. The causation issue --on a strict "but for" basis -- was whether he would have put water in the gas tank if the vehicle design had distinguished them more.

Leaving aside the causation issue, the Court of Appeal seems to be right that the trial judge effectively repealed Ontario's Alberta's apportionment statutes, returning to the common law rule where contributory negligence defeated liability.

Or am I missing something?

University of Alberta Law has a blog

Here. We can only hope it won't be as bad as the godawful U of T one.

Russell Brown reflections on the SCC's record in private law is mordantly amusing, and reminds me of an undergraduate paper I did on the liar's paradox. What is the law when the highest court says P, ~P and "P is consistent with ~P"?

What's Wrong With Inducing Breach of Contract? (3)

"Inducing Breach of Contract" was the basis of one of the most famous dubious-threatened-lawsuits in popular culture.

The Insider tells the story of Jeffrey Wigand (played by Russell Crowe), a former VP of research and development at Brown & Williamson, who told Sixty Minutes that the cigarette companies were manipulating cigarette chemistry to increase nicotine uptake. When he left his employer, Wigand signed a confidentiality agreement (a contract). CBS initially censored much of Wigand's interview because they were worried about being sued for inducing the breach of that agreement.

Assuming without deciding that Wigand's deal with his employer would be lawful in respect of this kind of information, why should it allow a lawsuit against CBS?

What's Wrong With Inducing Breach of Contract? (2)

I see my fatwa against the tort of inducing breach of contract has not won universal acceptance. Obviously, if this state of affairs is allowed to continue, the terrorists will have won. In hopes of attaining greater oneness, I propose to do an "economic analysis" of the relative merits of a rule allowing parties to a contract to sue 3rd parties that interfere.

For those who did not have the benefit of a U of T legal education, and might be getting a bit nervous at this point, I should hasten to explain that an "economic analysis of law" does not require the use of calculus or graphs or the investigation of empirical reality in any way. That stuff is all really hard, and if we knew how to do it, we wouldn't have gone to law school. What we will do might better be called "intuitive cost-benefit analysis," but that doesn't sound as good. We take each rule (no liability for inducing breach of contract without the use of illegal means; liability for inducing breach of contract even if the means are not otherwise illegal) and add actual costs under each rule with incentive costs. Incentive costs will be taken as the value of the exchanges that would occur in a transaction-cost-free universe and those that actually occur in the world with these rules. Whichever rule has the lower total costs (determined by intuition and thought-experiment, naturally) wins.

In tribute to the pre-1985 DC Universe continuity, we will call the world with an inducing breach of contract tort in addition to an unlawful interference with contractual relations tort Earth 1. The Pithlord-preferred reality with just an unlawful interference tort will be Earth 2.

OK, let's get started. Suppose that on Earth 1 and Earth 2, all judgments can be enforced and legal process is costless and error free. (Also, Wonder Woman and Superman are married, and Lex Luthor is Clark Kent's best friend.) Assuming as well that a defendant in an inducing breach of contract action has a claim over against the actual contract-breaker, then Earth 1 and Earth 2 will be equally efficient. The incentives will be the same because anyone worried about being sued for IBC will know that they can always recover against the actual breaching party.[1] Let's suppose Batman agrees to sell the bat cave to Hawkman, and Green Lantern is thinking of making a better offer. On Earth 2, Hawkman couldn't sue Green Lantern, so Green Lantern's incentives won't be affected, but on Earth 1, Green Lantern will still know that if Hawkman ever sues him, Batman will indemnify him, so the rule will still have no effect on his behaviour. On the other hand, Batman won't break his deal unless he is willing to compensate

Making things a bit more realistic, let's say the legal process is somewhat costly and prone to the occasional error. (And Luthor is a Republican.) Earth 1 and Earth 2 still won't be that different. It would almost never pay Hawkman to sue Green Lantern in IBC because it will always be cheaper and easier to make a case against Batman, the breaching party. All Hawkman has to show against Batman is that he had a contract, that Batman didn't perform and that Hawkman has suffered damage as a result. Against Green Lantern, he has to prove all these things, and the other elements of inducing breach of contract, as well. Who needs the grief? But if no rational agent sues in IBC, then all rational agents know this, and the incentives don't change.[2] Some inefficient contractual breaches will occur when it just won't be worth the innocent party's while to expend litigation costs and take the risk of legal error. So some incentive costs will exist, but they won't be higher on either Earth.

The existence of a cause of action in Inducing Breach of Contract becomes important when its possible that some contract breachers will be judgment proof. If Green Lantern tempts Batman into breaching his contract with Hawkman, but the Wayne estate turns out to already be heavily leveraged and insolvent, then Hawkman could be out of luck if Batman was the only one he could sue. Green Lantern might be the only deep pocket left. So on Earth 1, alleged inducers will sometimes be sued.

Obviously, Earth 1, with the tort of inducing breach of contract, has higher litigation costs.

On Earth 2, all the incentive for controlling the risk that a party to a contract will not be able to pay damages in the event of breach will be on the other party to the contract. On Earth 1, that incentive will be lessened somewhat, but there will be an incentive for people who might be considered "inducers" to do the same. I think it's fair to say that due diligence/risk management costs will therefore be higher on Earth 1, leading to fewer otherwise-efficient transactions. This is especially the case because it is easier to define and control risk when you have a contract with someone. So, again, Earth 1 is a less efficient place.

There will be a greater deterrence of breaches of contract on Earth 1 than on Earth 2. This will be a good thing sometimes (since the existence of litigation costs and errors and judgment-proofedness means that some inefficient breaches will occur on both Earths), but not always (efficient breaches will be more thoroughly deterred). Because of risk aversion and legal error, some potentially valuable interaction between Green Lantern and Batman won't happen on Earth 1, even though it would not have led to breaches of contract. Let's call the incentive effects here a wash.

The result is that Earth 2, without a tort of inducing breach of contract, is closer to the Coasian ideal of efficiency than Earth 1, with such a tort.


[1] If there isn't a claim over, then the Earth 1 will just plain suck in commercial efficiency. The disincentive to engage in inefficient breaches of contract will be less than it should be since at least some plaintiffs will sue in IBC instead, leaving the breacher off the hook. Also, socially-beneficial activity that could be considered IBC will be deterred.

[2] The existence of legal error complicates things somewhat. If there is uncertainty about the outcome of Hawkman's case, both Batman and Green Lantern might be tempted to contribute towards a settlement for less than the full amount, providing Hawkman with an incentive to sue Green Lantern, and therefore affecting everyone's ex ante incentives.

What's Wrong With Inducing Breach of Contract?

On Andy's recommendation, I took a glance at the House of Lords' decision in OBG Limited v. Allan, in which they return to the always-murky waters of the intentional economic torts. Unusually for English jurisprudence, these played quite a role in British political history, because a century ago they brought the courts into conflict with the nascent trade union movement, contributing to the formation of the Labour Party.

I see the point to a tort for using unlawful means to damage someone else's economic interests. I do not quite understand the modern rationale for a tort of "inducing breach of contract", when the inducement is otherwise legal.

Under the doctrine of privity, contracts generally only give rise to legal obligations/rights between the parties to that contract. I understand the problem with the "rights" part of that doctrine, and am happy that our Supreme Court has relaxed it. Despite my protestations of incrementalism, I'd be even happier if they just abolished it. But while I can see why A and B could agree to create rights for C, I have trouble with the idea that they could agree to impose obligations on D, without D being in on the arrangement.

But it seems to me that the tort of inducing breach of contract does precisely that. It isn't necessary if D does something otherwise illegal. So D's "inducement" must be something D could rightfully do if the contract between A and B never existed. But that means A and B have agreed to restrict what D can do without liability.

Of course, if D does something otherwise lawful that causes B to breach its contract, then A should have a remedy -- but against B, its unfaithful contractual partner, not against the interloper D.

I suspect the injustice of imposing a liability on D it did not agree to has meant that "inducing breach of contract" has been rarely found except if D was doing something that would be stinky anyway. But then the whole thing leads to uncertainty and should just be gotten rid of. To the extent that the House of Lords seem to be emphasizing the distinction between inducing breach of contract and unlawful economic injury, I think they are making a mistake.