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Secretary of State for Health v Servier Laboratories: Supreme Court panel of 7 affirms OBG v Allan on the unlawful means tort


The Supreme Court (Lords Reed, Hodge, Lloyd-Jones, Briggs, Kitchin, Sales and Hamblen) handed down judgment today in Secretary of State for Health v Servier Laboratories, dismissing the Secretary of State’s appeal against an order striking out its unlawful means tort claim against Servier. 

The issues on the appeal were (i) whether a necessary element of the unlawful means tort is that the unlawful means should have affected the third party’s freedom to deal with the claimant, and (ii) if so, whether the Supreme Court should depart from the ratio of OBG v Allan and determine that the dealing requirement is not an essential element of the tort. 

The main judgment was given by Lord Hamblen and a separate, concurring, judgment was given by Lord Sales.  The Court unanimously held, on the first issue, that the dealing requirement did form part of the ratio of OBG.  As to the second issue, the Court agreed with Servier that OBG should not be departed from. The dealing requirement serves an important control mechanism for the tort because it delineates the connection required between the unlawful means used and the damage suffered.  The Appellants had not demonstrated that this was an appropriate case for the Court to depart from OBG in accordance with the 1966 Practice Statement.  Further, none of the alternative proposals for refashioning the tort advanced by the Appellants were satisfactory as they imposed a risk of indeterminate liability for pure economic loss to a wide range of claimants.  In his concurring judgment, Lord Sales specifically rejected the Appellant’s invitation to refashion the tort in accordance with an article written by Lord Sales and Professor Paul Davies “Intentional Harm, accessories and conspiracies” (2018) 13 LQR 69.  Lord Sales accepted Servier’s submission that the Appellant’s proposal entailed adopting a “pick and mix” approach to the tort as it sought to dispense with the control mechanism of the dealing requirement without introducing a stricter approach to intention which is what the authors had proposed.

The judgment is here.

Marie Demetriou QC and Daniel Piccinin represented Servier Laboratories, instructed by Sidley Austin LLP (London).