The Weekly Law Reports 10 December 1993 1489 1W.LR. Armstrong & Holmes Ltd, v. Holmes (Ch.D.) Bree! In my judgment, the deputy master correctly found that there was no defence in this case, and hence I dismiss the appeal Appeal dismissed. Solicitors: Roythorne & Co., Spalding; Rutherford Wallace Mitchell, Nottingham. la 1CaB: [courr oF apréat] *LONRHO PLC. anp Oruers v. FAYED ano Oritrs (No. 5) [1991 L. No. 4705] ith and Evans L.JJ 1993 June 15, 16, 17, 30; Dillon, Stuart-S July 15 22 Practice—Pleadings—Striking out—Abuse of process of court—Action ‘for conspiracy—Claims for injury to reputation and pecuniary Toss—Whether abuse of process of court The plaintiffs, two individuals and a company, claimed against the defendants damages and an injunction for conspiracy, alleging that by that conspiracy the defendants had sponsored and encouraged a third party to publish defamatory statements about the plaintiffs and financed and caused another third party to bring an action against the plaintiffs, and that the plaintiffs had suffered damage. No particulars of the damage were given. ‘The judge struck out the action as an abuse of the process of the court, (On the plaintiffs’ appeal and application for leave to amend the pleadings by alleging injury to the plaintiffs’ reputation and feelings and pecuniary loss to the company:— Held, (1) that the plaintiffs could recover damages for injury to reputation and injury to feelings only in an action for defamation; that such damages could not be recovered in an action for ‘conspiracy; and that, accordingly, so far as the individual plaintiffs were concerned, the amendments sought would be refused and the action would remain struck out (post, pp. 14968-c, 1497a, 1498c-p, 1502c, 1505a-8, 15068, 15076-H, 1509a, 8, ¢,'p, 15118), Joyce v. Sengupta {1993] 1 W.L.R. 337, C.A. and Spring v. Guardian Assurance Ple, (1993) 1.C-R. 412, C.A. applied. Thurston v. Charles (1905) 21'T.L.R. 659 disapproved (2) Allowing the appeal in part, that actual pecuniary loss could be recovered in an action for conspiracy and, therefore, the judge’s order would be set aside, so far as the company was concerned, and the company given leave to amend the statement of claim by alleging particulars of actual pecuniary loss (post, pp. 1494-8, 1496p-£, 1498c, 15018, 1507c-H, 1508=-F, 15118). Vol.1 16‘The Weekly Law Reports 10 December 1993 1490 Lontho Ple. v: fayed (No. 5) (C.A.) (1993) Per Dillon LJ. It would be lamentable if a plaintiff could recover damages against defendants who had combined to tell the truth about the plaintiff and so had destroyed his unwarranted reputation (post, p. 1496c-0). Decision of Macpherson of Cluny J. reversed in part The following cases are referred to in the judgments: ‘Addis v. Gramophone Co. Lid. [1909] A.C. 488, H.L.(E.) Bell-Booth Group Ltd. v. Attorney-General [1989] 3 N.Z.L.R. 148 Berry v. British Transport Commission [1962] | Q.B. 306; [1961] 3 W.L.R 450; [1961] 3 AIL E.R. 65, C.A. British ‘Airways Board v. Laker Airways Lid. [1985] A.C. 58; [1984] 3 W.L.R. 413; [1984] 3 AIL E.R. 39, H.L.(E.) British Motor Trade Association v. Salvadori [1949] Ch. 556 Crofter Hand Woven Harris Tweed Co. Lid. v. Veitch [1942] A.C. 435; [1942] 1 AILE.R. 142, H.L.(Sc.) Dixon v. Calcraft [1892] 1'0.B. 458, C.A. Draper v. Trist (1939] 3 AI E.R. 513, C.A. Fielding v. Variety Incorporated [1967] 2 Q.B. 841; [1967] 3 W.L.R. 415; [1967] 2 All E.R. 497, C.A. Foaminol Laboratories Lid. v. British Aniid Plastics Ltd. {1941] 2 AILE.R, 393 Hook v. Cunard Steamship Co. [1953] 1 W.L.R. 682; [1953] | AIL E.R, 1021 Joyce v. Sengupta |1993] | W.L.R. 337; [1993] 1 AILE.R. 897, C.A. Letang v. Cooper {1965} 1 Q.B. 232; [1964] 3 W.L.R. 573; [1964] 2 All E.R. 929, CA Lonrho ‘Lid. v. Shell Petroleum Co: Lid. (No. 2) (1982) A.C.173; [1981] 3 W.L.R. 33; [1981] 2 AI E.R. 456, H.L.(E.) Lonrho Plc. v. Fayed [1992] 1 A.C. 448; [1991] 3 W.L.R. 188; [1991] 3 All E.R. 303; H.L.(E.) Lonrko Pic. v. Fayed (No. 2) 1992] 1 W.L.R. 1; [1991] 4 All E.R. 961 Martine v. South East Kent Health Authority, ‘The ‘Times, 8 March 1993; Court of Appeal (Civil Division) Transcript No. 245 of 1993, C.A. Mogul Steamship Co. Lid. v. McGregor, Gow & Co. [1892] A.C. 25, H.L(E.) Petch v. Customs and Excise Commissioners [1993] 1.C.R. 789, C.A, Pratt v. British Medical Association [1919] | K.B. 244 Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674, CA. Quinn v. Leathem {1901} A.C. 495, H.L.(1.) Ratcliffe v. Evans (1892 2 Q:B. 524, C.A Rookes v. Barnard [1964] A.C. 1129; [1964] 2 W.L.R. 269; [1964] 1 All E.R. 367, H.L.(E.) Savile v. Roberts (1699) 1 Ld.Raym. 374 Singh v. Observer Lid. [1989] 2 AIL E.R. 751; [1989] 3 All E.R. 777, C.A, Solway Prince, The (1914) 31 T.L.R. 56 Spalding (A.G.) & Bros. v. A. W. Gamage Lid. (1918) 35 R.P.C. 101, C.A. Speed Seal Products Ltd. v. Paddington [1985] 1 W.L.R. 1327; [1986] 1 All ER.9,CA Spring v. Guardian Assurance Plc. {1993] 1,C.R. 412; [1993] | All E.R. 273, CA. Sybron Corporation v. Rochem Ltd. (unreported), 22 November 1982, Peter Gibson J Thurston v. Charles (1905) 21 T.L.R, 659 Trego v. Hunt [1896] A.C. 7, H.L(E.) United Australia Lid. v. Barclays Bank Lid. {1941] A.C. 1, H.L.(E.) Walter v, Alltools Lid. (1944) 61 T.L.R. 39, C.A. The following additional case was cited in argument: Ware and De Freville Lid. v. Motor Trade Association [1921] 3 K.B. 40, CALG ‘The Weekly Law Reports 10 December 1993, 1491 IW.LR. Lonrho Ple. v. Fayed (No. 5) (C. a) INTERLOCUTORY APPEAL from Macpherson of Cluny J By a writ and re-amended statement of claim dated 17 June 1991 the plaintiffs, Lonrho Plc., R. W. Rowland and ‘The Rt. Hon. Sir Edward du Cann, claimed damages against the defendants, Mohamed Fayed, Ali Fayed, House of Fraser Holdings Ple., Richard New, David Royston Webb and Michael Cole. By two orders dated 24 July 1992 the judge struck out the action as an abuse of the process of the court By two notices of ex parte application dated respectively 18 and 19 August 1992 the plaintiffs sought leave to appeal on the grounds that, inter alia, the judge erred in holding that it was open to him to find, and in finding, that the proceedings had no proper basis and the claims were not made in good faith and with a genuine belief in their merits; the judge erred in holding that it was open to him to find, and in finding, that damages were not palpable and at large, and that the approach to the quantum of damage would not be similar to that which would have been adopted had the claim been framed in defamation; and the judge erred in holding that it was open to him to find, and in finding, that the action was more properly brought as defamation proceedings and that it was wrongly “dressed up as a conspiracy to injure.” The facts are stated in the judgments. Harvey McGregor Q.C., John Beveridge Q.C. and David Mildon for the plaintiffs James Munby Q.C. and Alastair Walton for the first, second, third, fifth and sixth defendants. Edward Faulks for the fourth defendant. Cur, adv. vult. 22 July. The following judgments were handed down. Ditton L.J. This matter came before this court, under directions given by Neill L.J., as an application by the plaintiffs, Lontho Ple. (“Lonrho”), Mr. R. W. Rowland and Sir Edward du Cann, for leave to appeal against an order of Macpherson of Cluny J. of 24 July 1992, and on the basis that if leave was granted the hearing of the appeal would immediately follow. In the course of the argument we granted leave to appeal and I now give my judgment on the appeal The order of the judge was that the action be struck out against the first six of the remaining defendants (“the defendants”). There were at one stage various other defendants, who have since ceased to be parties to the action, but it seems that there is still one further defendant, a company, with which we are not concerned since it was not a party to the application before the judge and is not a party to this appeal. It is well known that since 1985 there has been acrimony between Lonrho and Mr. Rowland and the first two defendants (“the Fayeds”) as a result of the circumstances in which in 1985 the Fayeds succeeded in gaining control of a company called House of Fraser Holdings Ple. (“House of Fraser”). One result of this has been a substantial amount of hard-fought litigation, and the principal action, after an interlocutory excursion to the House of Lords (Lonrho Plc. v. Fayed [1992] 1 A.C. 448), awaits trial next year. A second action, Lonrho Plc. v. Fayed (No. 2) [1992] 1 W.L.R. i, arising out of the same circumstances as the principal action, was started by Lonrho in September 1990. This asserted‘The Weekly Law Reports 10 December 1993 1492 Dillon Lil. Loneho Ple. v: Fayed (No. 5) (C.A.) (1993) that a sale by Lonrho to, in effect, the Fayeds in November 1984 of a 29-9 per cent. holding in House of Fraser was induced by fraudulent misrepresentations by the Fayeds; and it sought consequential relief by way of a constructive trust. Lonrho Ple. v. Fayed (No. 2) was struck out by Millett J. [1992] 1 W.L.R. 1, 7 on 12 April 1991 on the ground that Lonrho’s claim: “has no foundation in fact and is not made in good faith and with a genuine belief in its merits, but has been manufactured to provide a vehicle for a further public denunciation of the Fayeds.” There has been no appeal against that order of Millett J., but the grounds on which he concluded that the claim had no foundation in fact have no relevance to the present action There is no doubt that there has been extensive public denunciation of the Fayeds by Lonrho, not least in the circulation of a document entitled “A Hero from Zero” and of a special issue of the “Observer” newspaper. The matters in issue in the present action are said by the Fayeds to represent a counter-attack, in self-defence, by the Fayeds against Lonrho, in order to induce Lonrho to abandon its persistent campaign of vilification against the Fayeds. There was beyond any question a campaign of vilification against Lonrho and Mr. Rowland carried on, ostensibly, by a Miss Francesca Pollard in her own name and for her own reasons. In the course of this campaign scurrilous letters were sent by Miss Pollard to a large number of people, including shareholders in Lonrho, people in responsible positions in this country, and people in responsible positions in the public services of countries in Africa and the Middle East where Lonrho did business or was hoping to do business, Also, scurrilous pamphlets were published by Miss Pollard and other actions were taken which I need not mention now. It is said by the plaintiffs, and accepted by the defendants, that this campaign of Miss Pollard’s was clandestinely sponsored and encouraged by the defendants. It is said further, but disputed, that the campaign was thus sponsored and encouraged with the purpose of injuring the plaintiffs. It is also said by the plaintiffs, and for present purposes accepted by the defendants, that the Fayeds and House of Fraser financed, and caused a Mr. Esterhuysen to bring, an action in the Chancery Division 1987 E. No. 334 (“the Esterhuysen action”) in the name of Jacobus Philipus Esterhuysen against Lonrho and Mr. Rowland and others which is still pending. There is no doubt at all that much that was said in the documents circulated by Lontho was, unless true, plainly defamatory of the Fayeds, and much that was said in Miss Pollard’s letters and pamphlets was, unless true, plainly defamatory of Lonrho and Mr. Rowland. But no proceedings in defamation have been brought by either side. ‘The present action, which was started on 11 July 1991, claims damages and injunctive relief against the defendants in respect of Miss Pollard’s campaign and its alleged consequences and the Esterhuysen action; the cause of action relied on is that form of the tort of conspiracy which has been referred to, not altogether conveniently, as a “lawful means” conspiracy. That is the form of action in conspiracy, recognised by the House of Lords in Lonrho Plc. v. Fayed [1992] 1 A.C. 448 and Lonrho Lid. v. Shell Petroleum Co. Ltd. (No. 2) [1982] A.C. 173 and other decisions there discussed, where actions which, if done by one person on his own, would be lawful and cannot be actionable, can be actionable asThe Weekly Law Reports 10 December 1993 1493 IW.LR, Lonrho Ple. v. Fayed (No. §) (C.A.) Dillon L.J. a tortious conspiracy if done by several persons in combination and if the predominant purpose of those persons was to injure the plaintiff, and not to protect or forward their own interests: see, also, the speech of Viscount Simon L.C. in the Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [1942] A.C. 435, 442-443. So far as this court is concerned, there is no doubt that we have to recognise the validity of such a cause of action. From the plaintiffs’ point of view, the virtue of it is that the truth or otherwise of the allegations against Lonrho and Mr. Rowland in Miss Pollard’s letters and pamphlets would not be an issue in the action; it would be no defence to the defendants to justify the allegations and submit that they cannot be actionable because they are true. This leads to the serious dilemma, to which I shall refer below, as to whether it is possible by this form of action to circumvent the requirements of a defamation action and recover damages for injury to reputation without the defendants being able to plead justification or assert that the high reputation was not deserved. Can a plaintiff by this form of action recover damages for injury to reputation if the defendants have combined to publish the truth about him? In fact the judge, while very sceptical about the plaintiffs’ prospects of obtaining damages or an injunction if the action were to go to trial, struck it out, as an abuse of the process of the court, on the ground that the plaintiffs were misusing the court’s processes in seeking to pursue this action at all, The plaintiffs’ object was, in the judge’s view, simply to continue the plaintifis’ half of the parties’ vendetta in the arti form of an action at law so that at the trial the plaintiffs could ventilate their allegations against the Fayeds and vilify the Fayeds with maximum publicity. The temptation is great to say “a plague on both your houses and let not the court’s time be wasted with any further litigation between them” beyond the principal action already fixed for trial in 1994. But the issue as to what the plaintiffs’ purpose is in bringing this action is an issue of fact which is disputed and it cannot, in my judgment, be decided at an interlocutory stage on the tendentious affidavits of the solicitors on each side. It can only be decided at the trial: compare Speed Seal Products Lid. v. Paddington [1985] 1 W.L.R. 1327. The defendants seek to support the judge’s conclusion also on grounds on which the judge himself did not base the decision. The defendants say, in particular, that this action must fail because the plaintiffs could not possibly demonstrate, as they must, that the predominant purpose of the defendants, in their clandestine backing of Miss Pollard’s campaign or the Esterhuysen action, was to injure the plaintiffs, But what the defendants’ predominant purpose was is again a question of fact which cannot be decided on the affidavits and must be left for the trial. Two other matters I can also dispose of shortly. In the first place, the defendants say that, in view, apart from anything else, of the striking out of Lonrho Ple. v. Fayed (No. 2) [1992] 1 W.L.R. 1 as an abuse of the process of the court, the plaintiffs do not come to court with clean hands and, therefore, are forever precluded from obtaining any injunction or other equitable relief against the Fayeds. As I see it, however, there is no absolute bar. The granting of an injunction is a matter for the discretion of the trial judge, if he holds that the purpose of the plaintiffs in bringing the action is not improper and the action is not in itself an abuse of the process of the court. In the second place, the position of the fourth defendant, Mr. Richard New, who is separately represented, does‘The Weekly Law Reports 10 December 1993 1494 Dillon L.J- Lonrho Ple. v. Fayed (No. §) (C.A.) {1993} not differ from that of the other defendants. He participated willingly in what was done by and for the Fayeds, and there is no basis for striking the action out against him if it is not struck out against the other defendants. I come now to the question of damages which has bulked very large in the argument of this appeal A plaintiff in a civil action for conspiracy must prove actual pecuniary loss, though if he proves actual pecuniary loss the damages are at large, in the sense that they are not limited to a precise calculation of the amount of the actual pecuniary loss actually proved: see Quinn v. Leathem [1901] A.C. 495, especially the charge of the trial judge to the jury, as set out at p. 498, which was approved by Lord Halsbury L.C. at p. 508, and by other members of the House of Lords. As Lor Diplock said in Lonrho Lid. v. Shell Petroleum Co. Ltd. (No. 2) (1982] A.C. 173, 188: “The gist of the cause of action is damage to the plaintiff.” But, relying on the proposition that damages are at large, the plaintiffs had, until the opening of the hearing in this court, merely included in their statement of claim in its original form and as amended, the broad conventional allegation, without any particulars as against the defendants, in paragraph 29 that “by reason of the matters set out above the plaintiffs have suffered loss damage and injury.” T have no doubt at all that was a grossly inadequate pleading. As Bowen L.J. said in Ratcliffe v. Evans [1892] 2 Q.B. 524, 532-533, in giving the judgment of this court: “In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” This was applied by Peter Gibson J. in his judgment in Sybron Corporation v. Rochem Lid. (unreported), 22 November 1982. More recently Sir Donald Nicholls V.-C. said, in Joyce v. Sengupta [1993] 1 W.L.R. 337, 346H, that the plaintiff would need to give particulars of the financial loss claimed sufficient to ensure that the defendants would not be taken by surprise by any evidence adduced on the amount of this, loss. The court having indicated its disapproval of the pleading of damage in the statement of claim up to the date of the hearing in this court, and the hearing having been adjourned for reasons of listing, Mr. Beveridge presented to the court, in advance of the resumed hearing, particulars of damage which he sought leave to insert by amendment in the existing paragraph 29. The new particulars, including schedules, run to some 40 pages, and without them the defendants would not have had notice of the nature of the plaintiffs’ case on damage. ‘The principal issue is whether the plaintiffs can recover in this form of action damages for injury to reputation, or, as it is alternatively put, business reputation. A further issue is whether, in the case of Lontho,m The Weekly Law Reports 10 December 1993 1495 IW. Dillon L.J. Lonrho Plc. v. Fayed (No. 5) injury to business reputation can be recovered as a form of injury to property, sc. goodwill; that involves considering what is meant by goodwill and, on the way the case has been argued by Mr. Beveridge, whether fluctuations in the share price of a company reflect its goodwill and reputation. In the case of the individual plaintiffs there is an issue whether they can recover in this form of action damages for injury to feelings, in addition or as an alternative to damages for loss of business reputation. Part of the difficulty is that in Joyce v. Sengupta [1993] 1 W.L.R. 337, 348r-G Sir Donald Nicholls V.-C. stated that damages for injury to reputation could not be recovered in an action for malicious falsehood; the only remedy for such loss is an action for defamation in which damages for injury to feelings can also be included in a general award of damages. His observations seem to have been founded on the judgment of Lord Denning M.R. in Fielding v. Variety Incorporated [1967] 2 Q.B. 841. Sir Michael Kerr, after citing from McGregor on Damages, 15th ed. (1988), pp. 871-872, ‘para. 1403-1406, referred in Joyce v. Sengupta [1993] 1 W.L.R. 337, 3518 to cases which supported the conclusion that, in claims other than for defamation, damages for distress and injury to feelings were not recoverable as a separate head of damages, but only, in appropriate cases, as an ingredient of aggravated damages. There is also the recent case in this court of Spring v. Guardian Assurance Plc, {1993} I.C.R. 412, which was followed by another division of this court in Martine v. South East Kent Health Authority, The Times, 8 March 1993; Court of Appeal (Civil Division) Transcript No. 245 of 1993, decided on 25 February 1993. Those cases applied the law as stated by Sir Robin Cooke P. in the New Zealand case of Bell-Booth Group Lid. v. Attorney-General (1989] 3 N.Z.L.R. 148. He had stressed that the law as to injury to reputation and freedom of speech was a field of its own. He had aiso pointed out that the common law rules, and their statutory modifications, regarding defamation and injurious falsehood represented compromises gradually worked out by the courts over the years, with some legislative adjustments, between competing values. Therefore, apart from the fact that in defamation truth was an absolute defence, the established rules in defamation as to privilege and fair comment could not be side-stepped by pleading the case in negligence and asserting a duty of care to speak the truth when making a statement. Conversely, Mr. Beveridge referred us to the decision of this court in Walter v. Alliools Lid. (1944) 61 T.L.R. 39 and the decision of Slade J in Hook v. Cunard Steamship Co. Ltd. [1953] 1 W.L.R. 682 as showing that in an action for damages for the tort of false imprisonment the court can award aggravated damages for the injury to the plaintiff's reputation caused by the circumstances of his wrongful imprisonment. That does not, in my judgment, help in the present case Mr. Beveridge also referred us to a decision of Walton J. in Thurston v. Charles (1905) 21 T.L.R. 659, where damages for injury to the plaintiff's reputation were awarded to the plaintiff as damages for conversion of a letter written to her and which was therefore her property, although damages for defamation in respect of the publication of the contents of the letter could not have been obtained because the occasion of the publication, which was also the conversion of the letter, was privileged. In my judgment that decision is inconsistent with Joyce v. Sengupta and Spring v. Guardian Assurance Plc. and cannot stand. It is also contrary to the firm views of this court in Dixon v. Calcraft (1892‘The Weekly Law Reports 10 December 1993 1496 Dillon LJ. Lonrho Ple, v, Fayed (No. $) (C. ) 1993) 1 Q.B. 458 that damages for injury to reputation cannot be awarded in an action for wrongful detention of a chattel or trespass to goods: see, per Lord Esher M.R.. at p. 464, and per Lopes L.J., at p. 466. On the other side, Mr. Faulks referred us to a passiige in the judgment of Hallett J. In Foaminol Laboratories Lid. v. British Plastics Ltd. [1941] 2 All E.R. 393, 399: “a claim for mere loss of reputation is the proper subject of an action for defamation, and cannot ordinarily be sustained by means of any other form of action.” But that was said in the context of reference to Addis v. Gramophone Co. Ltd. [1909] A.C. 488 and other authorities on the law of contract. In my judgment, if the plaintiffs want to claim damages for injury to reputation or injury to feelings, they must do so in an action’ for defamation, not in this very different form of action. Injury to reputation and to feelings is, with very limited exceptions, a field of its own and the established principles in that field are not to be side-stepped by alleging a different cause of action. Justification, truth, is an absolute defence to an action for defamation and it would, in my judgment, be lamentable if a plaintiff could recover damages against defendants who had combined to tell the truth about the plaintiff and so had destroyed his unwarranted reputation. But that would be the consequence if damages for injury to reputation and injury to feelings could be claimed in a “lawful means” conspiracy action. To tell the truth would be wrongful. 1 see no difference in this regard between general reputation and commercial or business reputation. To prove loss of orders and loss of trade is another matter; that is recognisable pecuniary damage. The claim in respect of the joint venture with Iranian interests referred to in part II of schedule 2 to the particulars of damage could come in under this heading if a link between the loss of the venture and Miss Pollard’s campaign is sufficiently proved. Such loss of orders, for example, would involve injury to the goodwill of a business which may be one of the most important assets of the business. But goodwill in that sense must have the meaning put on that word in Trego v. Hunt [1896] A.C. 7: see especially, per Lord Herschell, at pp. 17-18, and per Lord Macnaghten, at p. 24. It cannot mean some airy-fairy general reputation in the business or commercial community which unrelated to the buying and selling or dealing with customers which is the essence of the business of any trading company. Again, the well-established right to damages in passing off, where deceptive goods have been put on the market and passed off as the plaintiff's goods, has a practical relationship to the plaintiff's business which is a long way from the allegations of injury to the business goodwill of Lonrho in the particulars: see Draper v. Trist (1939] 3 All E.R. 5 519-6, per Sir Wilfrid Greene M.R. and A. G. Spalding & Bros. v. A. W. Gamage Lid. (1918) 35 R.P.C. 101, 116, where Swinfen Eady L.J cited from the speech of Lord Sumner on the hearing of an earlier stage in that case in the House of Lords; those were straightforward deceptive goods cases which bear no resemblance at all to the elaborate allegation Of injury to business goodwill or business reputation in the particulars in the present case. Beyond that, Lonrho’s share price is not an aspect of Lonrho’s goodwill in the sense referred to above. The share price of Lonrho is not an asset of Lonrho at all. That the share price may be affected by the‘The Weekly Law Reports 10 December 1993 1497 IW.LR, Lonrho Ple. v. Fayed (No. $) (C.A.) Dillon L.J. perceptions of stock market analysts, financial commentators and business journalists does not mean that the assets of Lonrho are affected by such perceptions or that Lonrho suffers pecuniary damage if its share price falls as a result of the publication of such perceptions. So far as the individual plaintiffs are concerned, damages for injury to the reputation of each can only be recovered in a defamation action. It would be unreal to say of, e.g., Mr. Rowland that he has a double reputation, a general reputation, which can only be the subject of a defamation action, and a business reputation, which can be the subject of any other cause of action. {His Lordship considered subheads (a) to (c) of the proposed amendments to the particulars of claim, allowed some of those amendments, and continued:] Subhead (d) claims the cost of managerial and staff time spent in investigating, or mitigating the consequences of, the conspiracy. There is also a claim for out of pocket expenses in respect of extra security guards, small in amount, but obviously related to aspects of the conspiracy. | would allow the subhead to be pleaded. British Motor Trade Association v. Salvadori [1949] Ch. 556 indicates that time spent in detecting and countering a conspiracy can be included in a claim for damages, at any rate if, as in that case, there is also other pecuniary loss; in a simple case where there is other pecuniary loss, that seems elementary justice. Mr. Munby submits that, since, with a “lawful means” conspiracy, damage is the gist of the cause of action, it would be self- serving to allow the mere cost of staff time, or payment to third parties, to investigate and uncover the conspiracy to count as damage and warrant the bringing of the action if the acts done by the conspirators have caused no other damage to the victim. But that, in my view, is a matter better gone into at the trial when fuller facts are available to show what actually was done by Lonrho staff that is claimed under this heading. Subhead () is also concerned with management resources and staff time, but in relation to investigating the matters raised in the Esterhuysen action. This is in addition to the claim in subhead (f) for the costs, or alternatively the irrecoverable costs, of defending the Esterhuysen action Therefore whatever is claimed in subhead (e) would seem to be something so remote that it could not properly be included in a bill of costs of Lonrho as a defendant in the Esterhuysen action. The claim by Lonrho for the costs of the Esterhuysen action cannot be sustained unless Lonrho wins the Esterhuysen action, and that has not yet happened. But it appears from the decision at first instance in Singh v. Observer Ltd. [1989] 2 All E.R. 751 that if Lonrho succeeds in the Esterhuysen action, the trial judge in that action would be entitled to order the Fayeds to pay Lonrho’s costs of that action. It is established that a party to a civil action cannot, in a separate action, recover against the other party to the first action costs of the first action which he was not awarded at the trial of that action: see Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674, which, in Berry v. British Transport Commission [1962] 1 Q.B. 306, was held to be authority binding on this court, so far as civil proceedings are concerned. It is therefore submitted that the same principle should be applied to the recovery by Lonrho from third parties, the Fayeds, of its costs of the Esterhuysen action. But, before the abolition in 1967 of the tort of maintenance (see Criminal Law Act 1967, section 14), Lonrho would, notwithstanding the principle in Quartz Hill Consolidated Gold Mining‘The Weekly Law Reports 0 December 1993 1498, Dillon LJ. Lonrho Ple. v. Fayed (No. 5) (C.A.) Co. v. Eyre, have been entitled to sue the Fayeds for Esterhuysen action in a separate action for the tort of maintenance. That tort has now been abolished and maintenance is not tortious or illegal, but I do not see that that prevents Lonrho bringing a separate action under another recognised head of tort, “lawful means” conspiracy, if the requisite ingredients of that tort can in all other respects be made out. Accordingly, for my part, I would allow subhead (f) to be pleaded. 1 would also allow subhead (e) to be pleaded because if subhead (f) is allowed and succeeds it must be arguable that there is expenditure within subhead (e) which, subject to examination of the facts at the trial, ought to be allowed on the British Motor Trades Association v. Salvadori principle That leaves subhead (g), a residual claim to damages at large. It adds nothing, by way of particularity, and I would exclude it as unnecessary. It follows that 1 would, for my part, allow the appeal of Lonrho, set aside the order of the judge, so far as Lonrho is concerned, and give Lontho limited leave to re-re-amend paragraph 29 of its statement of claim. So far as the individual plaintiffs are concerned, I would refuse to allow the introduction by amendment of either of the heads of damages suggested. Accordingly, so far as the individual plaintiffs are concerned, the action must remain struck out. Sruart-Smirn LJ. The plaintiffs’ cause of action The plaintiffs’ cause of action is conspiracy to injure. The essential ingredients of this tort are an agreement by two or more persons to do acts, lawful in themselves, for the sole or predominant purpose of causing injury to the plaintiff, and which cause pecuniary loss to the plaintiff: see Lonrho v. Shell Petroleum Co. Ltd. (No. 2) (1982| A.C. 173 and Lonrho Ple. v. Fayed (1992] 1 A.C. 448. It is not an action for defamation or malicious falsehood; nor is it a conspiracy to injure by unlawful means. ‘The case is in the main based upon statements made, ostensibly by Miss Pollard but in reality, it was alleged, by the defendants. There is no plea in the statement of claim that these statements are false and Mr. Beveridge accepted, albeit reluctantly, that the case had to proceed on the basis that the statements were true. Nevertheless he contended that the defendants committed a tort if two or more agreed to tell the truth about the plaintiffs, with the sole or predominant purpose of injuring them, and in fact caused them pecuniary loss. Mr. Munby accepted that in this court that was the law. He reserved the right to argue in the House of Lords that this type of conspiracy should be confined to acts rather than words. Lord Diplock, in Lonrho Lid. v. Shell Petroleum Co. Lid. (No. 2) [1982] A.C. 173, 189c described the action as anomalous. This case shows just how anomalous it is, The application to strike out the statement of claim This being an application to strike out on the basis that the statement of claim discloses no cause of action andior is an abuse of the process of the court, it is trite law that it should only be struck out if there is no arguable case disclosed on the pleadings and that situation cannot be cured by amendment or if the action is clearly an abuse of process. TheThe Weekly Law Reports 10 December 1993 1499 1W.LR Lonrho Ple. v. Fayed (No. §) (C.A.) Stuart-Smith LJ. allegations of fact have to be assumed to be true. Furthermore, novel and difficult points of law in an expanding field of law should not be determined against a plaintiff: see Lonrho Ple. v. Fayed (No. 2) [1992] TW.L.R.1 Proceedings before the judge Before Macpherson of Cluny J. the defendants made four principal submissions. (1) The plaintiffs could not arguably prove that the sole or predominant purpose of the conspiracy alleged was to injure the plaintiffs, as opposed to serving their own legitimate interests. (2) The plaintiffs could not arguably prove damage of the type necessary to found the cause of action. It is not altogether clear whether they also took the point that such damage was not even pleaded and therefore the statement of claim disclosed no cause of action. (3) The plaintiffs could not obtain relief by way of injunction because they did not come to court with clean hands, (4) The action was an abuse of process because it was not brought for the legitimate purpose of obtaining damages or other relief, for example, by way of injunction, but for a collateral or ulterior purpose. This purpose was said to be to use the court simply as a platform from which to broadcast their vilification of the defendants, and so carry on the campaign and vendetta which had been waged between the parties for many years. The judge rejected the first submission. He also rejected the second submission. But he was not in the least impressed by the plaintiffs’ claim for damages. He rejected the submission by Mr. Beveridge that the damages were palpable and at large and could be awarded for loss of reputation as in a defamation action. He said that actual financial lo: had to be proved; he pointed to the paucity of the pleadings; he plainly thought little of the claim for loss caused by waste of “managerial time” and loss of profits due to disruption of “commercial relations” which had been pleaded in further and better particulars sought by a defendant against whom the action has now been struck out. Finally, he was shown the memorandum of understanding, dated 23 January 1989, between Lonrho, Mr. Al-Tajir and the Bank of Industry and Mine of Iran and told that the plaintiffs would claim that lucrative projects envisaged by this understanding were aborted as a result of Miss Pollard’s letter of the same date addressed to the Iranian Ambassador in London, with copies to Ayatollah Khomeni, the Speaker of the Iranian Parliament and his Ministers. Although the judge did not strike out the claim on this basis, he expressed himself as being most sceptical of the plaintiffs’ claim to damages. As to relief by way of injunction he said that the plaintiffs did not come to court with clean hands. He said: “L cannot conceive that this court would entertain an application for an injunction against the Fayeds or those around them in the present state of this affair, particularly upon the application of the author of ‘A Hero from Zero’ and the other hyperbolic publications issued by the plaintiffs.” Millett J. in Lonrho Ple. v. Fayed (No. 2) [1992] 1 W.L.R. 1 had described “A Hero from Zero” as a comprehensive character assassination of the Fayeds. He had struck out the action, at p.7, on the basis that the plaintiff's claim had: “no foundation in fact and is not made in good faith and with a genuine belief in its merits, but has been manufactured to provide a vehicle for a further public denunciation of the Fayeds.”‘The Weekly Law Reports 10 December 1993 1500 Stuart-Smith LJ. Lonrho Ple. v. Fayed (No. 5) (C.A.) (1993) ‘The judge acceded to the defendants’ fourth submission. His conclusion is to be found in the following passage of his judgment “The more I have listened to this case and considered the documents and the arguments, the more I have become convinced that the plaintiffs are misusing the court's processes in seeking to pursue this action at all. . . . Not only do I believe that any remedy which might conceivably be available to the plaintiffs would be minimal, but also 1 firmly believe that the court should not be used for what is in truth simply a continuation of their half of this vendetta by the plaintiffs in the artificial form of an action at law. . . . Master Topley referred in his judgment in this case to the fact that ‘Neither party has shrunk from blackguarding the other in public, and each has used the courts as a rooftop to crow vilifications against their adversaries.’ So far as is properly in my power, I do not propose to allow that to happen again. 1 am convinced that exactly that is the objective of the plaintiffs, and would be the aim of the defendants if they were to have to defend and counterclaim against the present pleading. There is no need to say more. In different circumstances and for different reasons, but with as much emphasis as Millett J., I too find that upon a consideration of the history of this campaign these proceedings have no proper basis and these claims are not made in good faith and with a genuine belief in their merits. This is another attempt, in my judgment, to manufacture a vehicle for further denunciation of the Fayeds, and an attempt to bring into this court, which has much other business to conclude, including Lontho’s own live claim to which I have already referred, yet another round in the disreputable vendetta between these parties. Appeal and cross appeal Pursuant to leave granted by this court the plaintiffs appeal the judge’s order striking out the action and, in particular, his conclusion that no injunction could be granted and’ that the action was an abuse of process. By his skeleton argument Mr. Munby indicated that if leave to appeal were granted he wished to cross-appeal the judge’s conclusions on his first two submissions. It is convenient to consider these four points in the order which I have already set out. (1) The predominant purpose of the conspiracy In this type of conspiracy the plaintiff must prove that the sole or predominant purpose of the conspiracy is to injure the plaintiff. If the predominant purpose of the defendants is to protect or advance their own self-interest, even though damage to the plaintiff is an intended consequence, it is not actionable: Lonrho Lid. v. Shell Petroleum Co. Ltd. (No. 2) [1982] A.C. 173; Mogul Steamship Co. Ltd. v. McGregor, Gow & Co. [1892] A.C. 25 and British Airways Board v. Laker Airways Lid. [1985] A.C. 58. Mr. Munby submitted that the matters complained of, if they were proved to have been done by the Fayeds, which was denied, were plainly done for their own self-interest. He said that they were counter-attacks for the purpose of putting pressure on the plaintiffs to desist from their campaign and to devalue those attacks. In my judgment, it is quite impossible to say that this is so plain that the contrary is unarguable. The very fact that the defendants’ activities, if proved, as they must be taken to be for present purposes, were covert,‘The Weekly Law Reports 10 December 1993 1501 1W.LR. Lonrho Ple. v. Fayed (No. §) (C.A.) Stuart-Smith L.J. makes it difficult to assert that the purpose was to put pressure on Lonrho to desist from its campaign. The action cannot be struck out on the basis that the plaintiffs had no arguable case on this point. (2) Damages Damage to the plaintiff is the gist of the action: see per Lord Diplock in Lonrho Ltd. v. Shell Petroleum Co. Lid. (No. 2) [1982] A.C. 173, 188r, Moreover, the plaintiff must prove actual pecuniary or financial loss. In Quinn v. Leathem [1901] A.C. 495, 498 the trial judge said: “L told the jury that pecuniary loss, directly caused by the conduct of the defendants must be proved in order to establish a cause of action, and I advised them to require to be satisfied that such loss to a substantial amount had been proved by the plaintiff. I declined to tell them that if actual and substantial pecuniary loss was proved to have been directly caused to the plaintiff by the wrongful acts of the defendants, they were bound to limit the amount of damages to the precise sum so proved. I told them that if the plaintiff gave the proof of actual and substantial loss necessary to maintain the action, they were at liberty in assessing damages to take all the circumstances of the case, including the conduct of the defendants, reasonably into account.” This direction was approved by the Earl of Halsbury L.C., at p. 508, Lord Brampton, at p. 521, and Lord Lindley, at p. 540: see, also, Pratt v. British Medical Association [1919] 1 K.B. 244, 281-282. Actual pecuniary loss is not the same as injury or damage which can be measured or compensated by a monetary award. The latter would include damages for personal injury or injury to reputation, though, of course, actual pecuniary loss may result as a consequence of personal injury or defamation. Nor is it sufficient, in my judgment, to constitute the tort that the defendants’ actions were merely calculated to cause pecuniary loss, unless they actually did so. In the torts of slander of title, slander of goods, or other malicious falsehood, at common law actual pecuniary loss had to be proved. This was changed by section 3 of the Defamation Act 1952, which provides that in relation to these torts it shall not be necessary to allege or prove special damage, which in this context means actual pecuniary loss, if the words are calculated to cause pecuniary damage and are published in writing or other permanent form, or are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him. On the other hand, I do not think that precise calculation of the pecuniary loss is necessary, particularly where such loss may be continuing. Loss of employment, loss of profit because of cancellation of a potentially profitable contract or general loss of custom would suffice, though if losses had already been incurred from such cause, for my part, I would expect some calculation to be pleaded. In Ratcliffe v. Evans [1892] 2 Q.B. 524, 532-533, Bowen L.J. giving the judgment of the court, which included Lord Esher M.R, and Fry L.J., indicated what had to be pleaded. ‘The re-amended statement of claim, as it came before the judge and this court, was in my judgment totally defective in relation to the plea of damages. All that was said was that the plaintiffs claimed damages. 1 have no doubt that it did not disclose a cause of action, since an essential ingredient, namely, actual pecuniary loss, was not alleged. Unless theThe Weekly Law Reports 10 December 1993 1502 Stuart-Smith L.J, Lonho Pie. v. Fayed (No. 5) (C.A.) 11993) pleading can be cured by amendment, in my opinion the action should be struck out. In his reply to Mr. Munby’s submissions, Mr. Beveridge sought for the first time leave to amend. I consider hereafter to what extent leave should be granted. (3) Relief by way of injunction The court has a discretion to refuse equitable relief by way of injunction if the plaintiff has been guilty of unconscionable behaviour and does not come with clean hands. But, in my judgment, this is a matter for the discretion of the trial judge. It seems to me to be arguable that the plaintiffs’ behaviour in conducting their vendetta against the Fayeds, however intemperate and immoderate it may have been, is not a sufficient ground for barring them from all relief, provided the other ingredients of the tort, including actual pecuniary loss, are made out. Nor do I think the fact that the plaintiffs did not act bona fide in bringing the action struck out by Millett J. (Lonrho Ple. v. Fayed (No. 2) [1992] 1 W.L.R. 1) unarguably debars them from pursuing this action. I differ from the judge on this point (4) Abuse of process If an action is not brought bona fide for the purpose of obtaining relief but for some ulterior or collateral purpose, it may be struck out as, an abuse of the process of the court. The time of the court should not be wasted on such matters, and other litigants should not have to wait till they are disposed of. It may be that the trial judge will conclude that this is the case here; in which case he can dismiss the action then. But for the court to strike it out on this basis at this stage it must be clear that this is the case. I cannot agree with the judge that the point is so plain as to be unarguable. The application for leave to re-re-amend the statement of claim The proposed amendment, which runs to some 40 pages, puts forward seven heads of claim by Lonrho and two by Mr. Rowland and Sir Edward du Cann, Leave should be granted provided it involves no injustice to the defendants which cannot be compensated for in costs. And a pleading should not be struck out if it can be cured by amendment The defendants, however, contend that each of the heads of claim is unsustainable or misconceived. Before turning to the specific claims it is necessary to deal with certain points of principle Can the plaintiff recover damages for injury to reputation? An individual can sue for injury to reputation, and a trading company can sue for injury to its business reputation but, in my judgment, to do so it must sue in defamation. I think this follows as a matter of principle and also on authority. The reason in principle is that no one has a right to a reputation which is unmerited. Accordingly one can only suffer an injury to reputation if what is said is false. In defamation the falsity of the libel or slander is presumed; but justification is a complete defence. In malicious falsehood, the plaintiff has to prove that the statement is false. In Bell-Booth Group Lid. v. Attorney-General {1989] 3 N.Z.L.R. 148 the plaintiff claimed in defamation and. alternatively, in negligence. trial judge rejected the claim in defamation on the ground of juH ‘The Weekly Law Reports 10 December 1993 1503 1W.LR. Lonrho Pie. v. Fayed (No. 5) (C.A.) Stuart-Smith L but found for the plaintiff in negligence. The New Zealand Court of Appeal allowed the defendant’s appeal. Cooke P., giving the judgment of the court, said, at pp. 156-157: “The common law rules, and their statutory modifications, regarding defamation and injurious falsehood represent compromises gradually worked out by the courts over the years, with some legislative adjustments, between competing values. Personal reputation and freedom to trade on the one hand have to be balanced against freedom to speak or criticise on the other. In the result the present rules are in broad terms well known and reasonably clear. To an action for defamation truth is an absolute defence. Privilege, where applicable, is in a few areas an absolute but in most a qualified defence. Fair comment is a qualified defence subject to rather different rules. In injurious falsehood, on the other hand, the plaintiff has the burden of proving both falsity and malice. These evolved compromises may not draw the lines in places that will always be found generally acceptable in the community. Some argue, for instance, for greater media freedom or licence; statutory changes have been recommended but not enacted. It is a controversial area. The important point for present purposes is that the law as to injury to reputation and freedom of speech is a field of its own. To impose the law of negligence upon it by accepting that there may be common law duties of care not to publish the truth would be to introduce a distorting element. It was argued for the appellant, inter alia, that neither defamation nor slander of goods requires a background duty or breach; and if injury does or may involve those separate elements, there is no ground for depriving the plaintiff of a separate cause of action. That is really no more than a semantic point. The duty in defamation may be described as a duty not to defame without justification or privilege or otherwise than by way of fair comment. The duty in injurious falsehood may be defined as a duty not to disparage goods untruthfully and maliciously. In substance the appellant would add to these duties a duty in such a case as this to take care not to injure the plaintiff's reputation by true statements. All the arguments for the appellant, though put skilfully in various ways by counsel, reduce to that proposition. In our opinion, to accept it would be to introduce negligence law into a field for which it was not designed and is not appropriate. . . . For these reasons in our opinion justice does not require or warrant an importation of negligence law into this class of case. Where remedies are needed they are already available in the form of actions for defamation, injurious falsehood, breach of contract or breach of confidence. Accordingly the cross-appeal must be allowed, and the findings of duty of care and breach and the award of damages for negligence set aside.” In Spring v. Guardian Assurance Ple. [1993] 1.C.R. 412, 437, Glidewell L.J., giving the judgment of the Court of Appeal, said that that passage represented the law of England. The decision has been followed in two further decisions of this court in Petch v. Customs and Excise Commissioners {1993} 1.C.R. 789 and Martine v. South East Kent Health Authority, The Times, 8 March 1993; Court of Appeal (Civil Division) Transcript No. 245 of 1993,The Weekly Law Reports 10 December 1993 1504 ‘Stuart-Smith LJ. Lonrho Ple, v. Fayed (No. 8) (C.A.) 11993) In Joyce v. Sengupta [1993] 1 W.L.R. 337 the defendants published a defamatory statement of the plaintiff in a national newspaper. The plaintiff sued for malicious falsehood, and not defamation, because she could not get legal aid for the latter claim, It was held that she was entitled to sue provided she could prove that the statement was false, it was published maliciously and she had suffered financial loss. But she could not recover damages for injury to reputation at large. Sir Donald Nicholls V.-C. said, at p. 348: “It would be going too far to hold that all non-pecuniary loss suffered by a plaintiff is recoverable in a malicious falsehood action, because that would include injury to reputation at large. The history of malicious falsehood as a cause of action shows it was not designed to provide a remedy for such injury; the remedy for such loss is an action for defamation in which, incidentally, damages for injury to feelings may be included in a general award of damages: see the Fielding case [1967] 2 Q.B. 841, per Lord Denning M.R., at p. 851D-F, and per Salmon L.J., at p. 8554, D.” The other two members of the court agreed with this. Nor, in my judgment, can such a claim be tacked on as parasitic damages to some head of pecuniary loss in this case. In cases of malicious prosecution it is possible to get damages for injury to reputation: see Savile v. Roberts (1699) 1 Ld.Raym. 374 and Berry v. British Transport Commission [1962] 1 Q.B. 306. So, also, in cases of false imprisonment: see Walter v. Alltools Lid. (1944) 61 T.L.R. 39, 40, and Hook v. Cunard Steamship Co. [1953] 1 W.L.R. 682. But these are cases where the wrongful act of the defendant casts an imputation on the reputation of the plaintiff which, ex hypothesi, is not justified, Moreover, they are also cases in which the plaintiff probably cannot sue for defamation, since statements in court are absolutely privileged and in false imprisonment there may be no statement at all ‘These cases do not assist the plaintiffs. In Thurston v. Charles (1905) 21 T.L.R. 659 the defendant wrongfully communicated to another person a letter written by a third person to the plaintiff which had come into the defendant’s possession. The plaintiff brought an action to recover damages for the detention and conversion of the letter and also for libel. The claim in defamation failed because the publication was privileged, but the claim in conversion succeeded. ‘The judge awarded substantial damages for what appears to be loss of reputation. In my judgment, that decision is inconsistent with the recent cases in this court which I have cited. Damages at large If the plaintiff establishes pecuniary loss it is common ground that damages are at large. But the parties have a different view of what is meant by this. In Rookes v. Barnard [1964] A.C. 1129, 1221 Lord Devlin said: “It must be remembered that in many cases of tort damages are at large, that is to say, the award is not limited to the pecuniary loss that can be specifically proved. In the present case, for example, and leaving aside any question of exemplary or aggravated damages, the appellant’s damages would not necessarily be confined to those which he would obtain in an action for wrongful dismissal. He can invite the jury to look at all the circumstances, the inconveniences HG H The Weekly Law Reports 10 December 1993 : 1505 IWR. Lonrho Ple. v. Fayed (No. 5) (C.A.) Stuart-Smith L.J- caused to him by the change of job and the unhappiness maybe by a change of livelihood. In such a case as this, it is quite proper without any departure from the compensatory principle to award a round sum based on the pecuniary loss proved.” For reasons I have already given in this case the plaintiffs cannot recover damages for injury to reputation. Nor can they recover damages for injured feelings. In the case of Lonrho, it has no feelings. In the case of the personal plaintiffs, they allege no pecuniary loss, so in my judgment they have no cause of action and injured feelings would simply be an adjunct of injury to reputation. But the plaintiffs also contend that if they can prove some pecuniary loss, for example, in relation to the Iranian contracts, they can also maintain some general, unspecified and unquantified plea of damage to goodwill arising from ‘all the other overt acts relied upon which are wholly unconnected with any loss resulting from the Iranian contracts. 1 cannot accept this submission. In my judgment the matters alleged in Paragraphs 11 to 28 of the statement of claim are acts relied upon as showing the agreement between the defendants, and that their predominant purpose was to injure the plaintiffs. But in so far as such acts cause damage to the plaintiffs it must, in my view, be pecuniary damage and it must be pleaded with sufficient particularity. In other words, there must be a sufficient nexus between the act causing pecuniary loss and the other damage for which compensation is claimed. Since the tort of conspiracy to injure is not complete without pecuniary loss, any damages at large must be referable to the act causing the pecuniary loss which constitutes the tort. T turn to the specific heads of damage in the proposed re-re- amendments. [His Lordship considered subheads (a) to (e) of the proposed amendments to the particulars of claim, agreed with the decision of Dillon L.J. in relation to those amendments, and continued:] This claim (subhead (f)) is for the costs of defending the Esterhuysen proceedings or, alternatively, the irrecoverable costs. In my judgment this claim is unsustainable. Mr. Beveridge accepts that he can have no claim unless Lonrho wins the Esterhuysen litigation. He also accepts that if it is proved in that litigation that the Fayeds have maintained the action, the judge in those proceedings has jurisdiction and discretion to order the Fayeds to pay the costs: Singh v. Observer Ltd. [1989] 2 All E.R. 751, reversed on the facts [1989] 3 All E.R. 777. For the purposes of the present proceedings it must be assumed that the allegation that the Fayeds are maintaining the Esterhuysen action is true. So far as the question of costs in that action is concerned, therefore, the Fayeds are in the same position as if they were plaintiffs. It is well established that a party cannot recover in a separate action costs which he could have been, but was not, awarded at the trial of a civil action, or the difference between the costs he recovers from the other party and those he has to pay his own solicitors: see Clerk & Lindsell on Torts, 16th ed. (1989), pp. 290-292, para. 5.35 and Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674. In Berry v. British Transport Commission [1962] 1 Q.B. 306 the Court of Appeal refused to extend this principle to the difference between costs awarded to a successful defendant in a criminal trial and her actual costs where the claim is for malicious prosecution. But, apart from expressing concern at the unreality of theThe Weekly Law Reports 10 December 1993 Lonrho Ple, v. Fayed (No. 5) (C.A.) 11993) position in civil cases, since party and party costs were assessed on the basis of necessary and not reasonable costs incurred, the court did not disapprove the principle stated in the Quartz case. That problem has now been mitigated since standard costs are taxed on the basis of a reasonable amount in respect of all costs reasonably incurred: R.S.C., Ord. 62, 1.12. In my judgment it is vexatious and an abuse of process for the plaintiff to sue for these costs in this action, when they can be recovered in the Esterhuysen action. The defendants should not have to face a claim for the same matter in two sets of proceedings. Subhead (g) of the proposed amended claim, as Mr. Beveridge frankly accepts, adds nothing. I would not allow it ‘The claim in respect of Mr. Rowland and Sir Edward du Cann are for damages for loss of business reputation and injury to feelings. The word business adds nothing to damages for reputation. That claim, for reasons already given is unsustainable. The claim for injury to feelings is dependent on the claim for loss of reputation and therefore cannot be sustained. Neither claim is for actual pecuniary loss and they fall on that basis also. Evans LJ. It is common knowledge that Mr, Rowland and Lonrho, which it is tempting to call his company, fell out with the Fayeds over the acquisition of House of Fraser in 1985 and that there has been a bitter, highly publicised dispute between them ever since. For his part, Mr. Rowland has extended his allegations to ministers, advisers and many others. His campaign has been described as. ill-tempered, immoderate and obsessive, and the accuracy of this description is not denied, at least for the purposes of this appeal. For their part, the Fayeds have responded in kind. They commissioned an accountants’ report into the financial status of Lonrho which was critical, and.they sought to use this to the company’s detriment, at the annual general mecting (“A.G.M.”) and elsewhere. Mr. Rowland has had a controversial business career. This. is confirmed by a recently published biography, even if, as Mr. Rowland asserts, only part of its contents is true. But also been a highly successful career in terms of financial rewards for himself and for others. Undoubtedly he has made many enemies. These include Miss Pollard. She claims that she was cheated out of her inheritance, some £40,000,000, by Mr. Rowland and others. She pursued a relentless campaign against him from before 1986 until 1991. Although, possibly, on a somewhat smaller scale than his against the Fayeds, her campaign has matched his for obsession and ill-tempered abuse. It is alleged in the present proceedings that from 1986 she and her campaign were sponsored by the Fayeds. It is said that they supported, encouraged and, above all, financed her in her efforts to denigrate and cause damage to Mr. Rowland and Lonrho. The latter became aware of this in 1989, and one question which arises is whether they should have taken action at that time. But in 1991 there was a dramatic turn of events. Miss Pollard turned her coat. Now, Mr. Rowland is said to have supported her financially, and she has become a potential witness in these proceedings who will support his allegation that she and the Fayeds conspired to cause damage to him and to Lonrho. It is unlawful to combine with others with the sole or predominant object of causing injury (o another person, even if the means used for that purpose are not themselves unlawful. The scope of “lawful mH ‘The Weekly Law Reports 10 December 1993 1507 1W.LR. Lonrho Plc. v. Fayed (No. 5) (C.A.) Evans L.J- conspiracy was considered by the House of Lords in other proceedings between these parties, Lonrho Ple. v. Fayed [1992] 1 A.C. 448: see, in particular, the speech of Lord Bridge of Harwich, at p. 465. Even so, as the present case demonstrates, the limits of the tort are far from clear. The essential facts are, first, a combination between the defendant and others; second, with the sole or predominant object of causing injury to nother person; and, third, damage in fact so caused. There is, however, a recognised defence of self-interest, which, in essence, is the converse of the requirement that the plaintiff must prove that the predominant, if not the sole, object was to cause injury, rather than to serve the defendant's own lawful interest. It may well be said, as a preliminary observation, that any proceedings which raise these issues are quintessentially a case for trial. The nature of the allegations in the present case is such that a long and expensive trial is inevitable, but that is the result of the way in which the tort is defined. The defendants deny all the allegations, including the allegation of primary fact that there was a combination between Miss Pollard and the Fayeds and others, as Miss Pollard apparently will assert. But they also rely upon a variant of the self-interest defence, contending that the virulence of the Rowland/Lonrho campaign against them was such that a counter-attack by means of supporting Miss Pollard was justified as a form of self-defence. This leaves open the question why, if their intention ‘was to bring pressure to bear on Mr. Rowland and Lonrho to desist from waging war against them, the defendants supported Miss Pollard secretly, if they did so at all, thereby running the risk that their association with her would not be realised, as it was not, until, apparently, 1989. Their support of the proceedings brought by Mr. Esterhuysen which is acknowledged is justified on similar grounds. ‘A notable feature of the mass of material before us, only a small portion of which has been read or referred to during the appeal, is that the statement of claim makes only one reference to the House of Fraser dispute, and that is to provide historical support for the allegation that the defendants combined in order to cause damage to the plaintiffs. It is the defendants who in their voluminous affidavit evidence and exhibits go over the detailed history of the affair and its many consequences, including the report of inspectors appointed by the Department of Trade and Industry, in order to provide grounds for their self-interest defence. This does not mean that the defendants are not entitled to apply to have the proceedings struck out. But it would be strange if the scope and nature of an intended defence should lead to the conclusion that a claim not itself objectionable should be struck out at this preliminary stage The sole current issue, in my judgment, is whether the claim. is objectionable or not. Dillon and Stuart-Smith L.JJ. are in agreement on all issues save one item of the heads of damage claimed in the draft re-re-amended points of claim and further particulars which were produced during the hearing. T respectfully agree with their judgments on all these issues and 1 would add only the followng further comments. First, the modern definition of “cause of action” is found in the judgments of Lord Denning M.R. and Diplock L.J. in Letang v. Cooper [1965] 1 O.B. 232. Diplock L.J. said, at pp. 242-24: “A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy agai another person.”‘The Weekly Law Reports 10 December 1993 1508 Evans L.J. Lonrho Ple. v. Fayed (No. $) (C.A.) 11993) The old “forms of action” which ruled all common law civil proceedings were rules of pleading and these have long since been abolished. Despite Maitland’s famous dictum, “the forms of action we have buried, but they still rule us from their graves” (see Maitland, Forms of Action (1909) p. 296), the forms of action can now be disregarded: cf. Lord Atkin’s equally famous remark in United Australia Lid. v. Barclays Bank Ltd. [1941] A.C. 1, 29. Both dicta are quoted in Lord Denning M.R.’s judgment [1965] 1 Q.B. 232, 239. The forms of action no longer form a guide to substantive rights: (1965] 1 Q.B. 232, 239. Those rights depend upon the factual situation described by Diplock L.J. [1965] 1 Q.B. 232, 242-243. In Joyce v. Sengupta [1993] 1 W.L.R. 337, therefore, the question was not one of form or the correct method of pleading. It was whether the facts relied upon by the plaintiff—the factual situation described in her claim—established one or more than one cause of action. If more than one, then there was no justification for depriving her of the remedies which the facts relevant to each cause of action entitled her to obtain, Essentially the same problem arises in the present case. “Damage” is an essential ingredient of the cause of action which the plaintiffs assert. It is “the gist of the action:” per Lord Diplock in Lonrho Lid. v. Shell Petroleum Co. Lid. (No. 2) (1982] A.C. 173, 188, The original statement of claim contained no allegation of damage other than a formal and wholly unparticularised averment in general terms. Unless the plaintffs allege and prove the kind of damage which forms part of the factual situation giving rise asa matter of law to the cause of action upon which they rely, then their claim will fail; and unless they allege such damage, their claim, in my judgment, can be struck out at this preliminary stage Second, and following on from the first, is the question, what kind of damage must the plaintiffs prove in order to succeed, ‘and allege in order to avoid their claim being struck out? It is common ground that this must include pecuniary loss, which I take to mean loss that is capable of being measured in money terms, and not merely capable of being assessed as financial compensation for some other kind of injury, as general damages for personal injury or for loss of reputation in defamation actions are. Where the plaintiffs allege facts which, if proved, will establish damage of this kind, as with the alleged loss of immensely valuable contracts (or contacts) in Iran, then the claim cannot be struck out unless the proceedings are brought for some improper or collateral motive. Where, however, the pleading itself asserts that the plaintiffs are presently unable to identify any such loss, or to allege that any measurable loss has occurred, then the claim is defective because it fails to describe a factual situation which gives rise to the cause of action upon which the plaintiffs rely. In such cases, the claim is not necessarily struck out at once. A proper opportunity to amend or to add to particulars may well be given, as it has been given here. The failure to allege damage of an appropriate kind may be explained and it may be apparent that existing defects are not only understandable but will be remedied before the trial, e.g., if further time for investigations is required or if documents have first to be disclosed by the defendants or obtained from other persons. But no such factors operate here. The plaintiffs, despite their huge resources, cannot, even say that any identifiable loss has occurred which is pecuniary in the sense described above. In my judgment, these other claims should properly be struck out on these grounds.‘The Weekly Law Reports 10 December 1993 1509 1W.LR. Lontho Ple. v. Fayed (No. 5) (C.A.) Evans L.J. Third, the question whether damages for loss of reputation, or loss of business ‘reputation, can be recovered in these proceedings, where defamation is not alleged, seems to me to involve two issues, one a question of law and the other largely a matter of semantics. The question of law is whether damage of that kind is sufficient to establish the cause of action in conspiracy upon which the plaintiffs rely. In my judgment it is not. Such damages are not pecuniary loss, in the sense which I have described, and it follows that they form no part of the factual situation which entitles the plaintiffs to the remedy they seek. Nor-can such damages be recovered parasitically, in my judgment, in addition to damages for pecuniary loss, for the reasons given by Dillon and Stuart- Smith L.JJ. Conversely, the factual situation which gives a remedy in respect of loss of reputation is the cause of action in defamation which the plaintiffs conspicuously fail to assert. Spring v. Guardian Assurance Plc, [1993] 1.C.R. 412 is Court of Appeal authority for this proposition, following Bell-Booth Group Lid. v. Auorney-General [1989] 3 N.Z.L.R. 148, 156, where Cooke P. used a graphic phrase: “The important point for present purposes is that the law as to injury to reputation and freedom of speech is a field of its own.” More prosaically, damage of that kind is part of the factual situation which establishes a cause of action in defamation, but not in other torts, including negligence (Bell- Booth Group Ltd. v. Attorney-General) and “lawful means” conspiracy (here). The same conclusion is justified on wider grounds. If damages for loss of reputation could be recovered by alleging and proving a “lawful means” conspiracy, then it would be unlawful to combine with another person in order to tell the truth about the plaintiff with the object of depriving him of a reputation which he enjoys but does not deserve. The implications are far-reaching, and this result could only be prevented by introducing, for example, a defence of justification and other safeguards which have evolved as part of the law of defamation. In other words, “lawful means” conspiracy should not exist as a separate tort for damage of this kind. The matter of semantics is the need to distinguish between loss of reputation in the defamation sense and loss of reputation which is synonymous with a loss of customer goodwill resulting in a loss of business which can therefore be measured in money terms. The authorities which have been referred to by Dillon and Stuart-Smith L.JJ illustrate the proposition that the plaintiff is not limited to damage which can be precisely measured and specifically proved, but is entitled more generally to damage representing the court’s best assessment of financial loss in fact suffered and proved. Finally, the defendants appeal to the court’s power to regulate all proceedings before it, and they contend that in the present case the court should refuse altogether to entertain the plaintiffs’ claim. Like Macpherson of Cluny J. | find it unappetising that the parties or either of them should use the proceedings as a platform to air their grievances or as a roof top from which to crow. I have already pointed out that it the defendants, not the plaintifs, who seek to introduce the full history of the House ‘of Fraser affair. The plaintiffs’ allegation is that the defendants carried the warfare into different territory, that is the Miss Pollard and the Esterhuysen allegations, and they did so covertly, in order that those allegations should appear distinct. The plaintiffs cannot be said to be bringing the proceedings with a collateral or improper‘The Weekly Law Reports 10 December 1993 1510 Evans LJ. Lonrho Ple. v. rayed (No. 5) (C.A.) [1993] motive, in my judgment, in so far as they allege facts which entitle them to damages for conspiracy, and there are no grounds for depriving the plaintiffs of that remedy if they are entitled to it. But the court can and will keep the proceedings within proper limits, which at this stage means restricting the plaintiffs to the cause of action upon which they rely. The need for control and discipline will continue throughout the proceedings and it will affect both parties equally; the defendants no less than the plaintiffs will be required to keep their factual allegations, and the related pleadings and discovery, within bounds. The mass of unread documents produced for the purposes of this application and appeal shows just how much scope for discipline there is. Damage—particulars (f) The defendants accept that they are supporting the plaintiff in the terhuysen proceedings and that, if those proceedings fail, then the trial judge will have power to award costs against them as well as against the plaintiff: Singh v. Observer Lid. [1989}2 All E.R. 751. Mr. Beveridge, for the plaintiff, accepts that no claim will lie under this head if the Esterhuysen proceedings against Lonrho succeed. Nor does he dispute that no claim lies, as between the parties to a civil action, for the recovery of any balance of the costs actually incurred in defending the action which are not awarded to the successful defendant by the costs order made in the action. The principle was affirmed by the Court of Appeal in Berry v. British Transport Commission [1962] 1 Q.B. 306. Devlin L.J. said, at p. 323, that the rule against recovery in a separate action was based on the “the fiction that taxed costs are the same as costs reasonably incurred.” ‘That fiction has now largely disappeared. The amount recoverable on taxation under R.S.C., Ord. 62, r. 12 is “a reasonable amount in respect of all costs reasonably incurred” (the standard basis, rule 12(1)) or “all costs . . . except in so far as they are of an unreasonable amount or have been unreasonably incurred” (the indemnity basis, rule 12(2)), and the essential difference between the two bases lies in the burden of proof. It is no longer necessary, therefore, to regret the common law rule, and, in addition, there are other reasons of policy which continue to support it, not least the desirability of bringing litigation to a close. There is authority, however, that no such bar exists to a claim for unrecovered costs against a third party, that is, against a person who was not a party to the original action. Such claims are commonplace as damages for breach of contract, and they have been admitted also in tort: per Devlin L.J. in Berry v. British Transport Commission [1962] 1 Q.B. 306, 321, citing The Solway Prince (1914) 31 T.L.R. 56. The measure of such damages under the old costs rules was the difference between the plaintiff's costs of the action taxed as between solicitor and client and as between party and party: McGregor on Damages, p. 459, para. 713. Now that the fiction has become largely fact—although the difference between costs actually charged and those recoverable on taxation, even on an indemnity basis, may still remain large in certain types of litigation—it is questionable whether the right to recover so-called extra costs is still justified, even when the claim is made against a third party to the original action. But, in my judgment, the present case is not in the third party category, By aligning themselves with the plaintiff in the Esterhuysen proceedings, the defendants have admittedly rendered themselves liable to whatever costs order the °The Weekly Law Reports 10 December 1993 ISL IWR. Lonrho Ple. v. Fayed (No. 5) (C.A.) Evans LJ. trial judge considers appropriate in those proceedings. No point has been taken as to what the position will be if the defendants withdraw their support at some time in the future. In these circumstances, it seems to me that the common law rule applies and I am in agreement with Stuart-Smith L.J. that the claim under subhead (f) should be disallowed. The general claim under subhead (g) can add nothing which is permissible in law to the claim made under subheads (b) and (c), which in my view could conveniently be amalgamated, and I agree that subhead (g) should be disallowed. T also agree that the claims by the personal plaintiffs should be struck out. To the extent indicated above, the appeal by Lonrho, in my judgment, should be allowed, with limited leave to re-re-amend the statement of claim. Order accordingly. Solicitors: Denton Hall Burgin & Warrens; Herbert Smith; Titmuss iner & Webb B.O.A. [court oF aereat] “EASTON v. FORD MOTOR CO. LTD. 1993 April 22 Dillon and Butler Sloss L.JJ Practice—Pleadings—Amendment—Defendants applying to plead new defence five years after issue of writ—Action not ready for trial— No fixed trial date—Whether amendment to be allowed—R.S.C., Ord. 20, r. 5 Where there had been delay in prosecuting an action following the issue of the writ and the action was not yet ready for trial, the normal rule in RS.C., Ord. 20, 1.5! as to amendment of the pleadings applied (post, p. 1521¢-H). Where, therefore, the defendants appealed against the refusal to allow amendment of their defence to raise a new isste five years after the issue of the writ but before the summons for directions had been taken out or a trial date had been set:— Held, allowing the appeal, that since the delay after the issue of the writ was largely the responsibility of the plaintitf and since the point sought to be raised did not raise the need for new evidence. the amendment would be allowed (post, p. 1521G-H). RS.C.. Ord. 20, . 5 provides: “(1) Subject to Ord. 15, F. 6,7 and 8 and the following provisions of this rule, the court may at any stage of the proceedings allow the plaintlt 10 mend his weit, or any party to amend his pleading, on such terms as (0 costs oF otherwise sis may be just and in stich manner {if any) as it may direc.”