Tiscali UK Ltd v British Telecommunications Plc

Regulatory breaches protecting consumers or businesses may constitute the unlawful means required for the tort of interference with business by unlawful means. Such breaches may be established without proving traditional dishonesty, because concepts such as honest market practice, good faith and professional diligence may involve an objective assessment. At the amendment stage, the court should permit a proposed claim where there is a realistic, rather than fanciful, prospect of proving that a communication conveyed a misleading impression and that the impression was false or unsupported. A claim for consequential loss may also be pleaded where the alleged causal connection presents difficulties but cannot yet be excluded.

The claimant sought permission to amend proceedings arising from a letter sent by the defendant to the claimant’s broadband customers in July 2008. The proposed amendments added a claim for interference with business by unlawful means, relying on malicious falsehood and alleged breaches of the Consumer Protection from Unfair Trading Regulations 2008, the Business Protection from Misleading Marketing Regulations 2008 and the Control of Misleading Advertisement Regulations 1988.

The claimant also sought to add a claim for special damages based on an alleged unusually high number of customer departures in July. The issues were whether the amendments disclosed a realistic prospect of establishing misleading communications and unlawful means, and whether the alleged loss could be pleaded despite difficulties in proving causation.

1. The court granted permission to amend the claim to plead interference with business by unlawful means. A breach of regulations aimed at protecting consumers and businesses could serve as the unlawful means for that tort.
2. The relevant regulatory concepts did not necessarily require proof that the defendant knew the statement was false or lacked an honest belief in its truth. Regulation 3(3) of the Consumer Protection from Unfair Trading Regulations 2008 referred to professional diligence, including honest market practice and the general principle of good faith. Those concepts could be breached on an objective basis.
3. The court relied on Boehringer Ingelheim Ltd v Vetplus Ltd [2007] FSR 29, where the discussion of honest practices supported the view that an objectively misleading statement could infringe the applicable regulatory regime even if honestly believed when made. The court also referred to Cable & Wireless Plc v British Telecommunications Plc [1998] FSR 383 at 391 in support of the objective approach.
4. At this interlocutory stage, the court could not conclude that there was no realistic prospect of proving that the letter conveyed to reasonable recipients that the claimant’s broadband service might shortly cease to be available, or that the impression was false or unsupported by evidence.
5. Permission was also granted to plead special damages based on the alleged July increase in customer departures. Although proving that individual decisions were caused by the letter might involve substantial difficulty and expense, the claim could not then be excluded.