IMG Data Limited v Perform Content Services Limited

At an interlocutory stage, a claim should be struck out only where it is bound to fail, and summary judgment should be granted only where there is no real prospect of success and no compelling reason for trial. A claimant seeking to establish inducing breach of contract must show that it could bring an actionable claim against the contract-breaker. It need not necessarily have been a party to the contract if the applicable law gives it rights to sue, including as a third-party beneficiary. The dealing requirement applicable to causing loss by unlawful means is not necessarily an element of unlawful means conspiracy. These developing questions should ordinarily be decided on facts found at trial.

The claimant alleged that the defendant induced unauthorised data collectors to breach ticket and ground-regulation contracts made with football clubs in various jurisdictions. It claimed damages for inducing breach of contract and unlawful means conspiracy.

The defendant applied under CPR 3.4(2)(a) to strike out the claim and alternatively sought summary judgment before serving a defence. The parties agreed that the pleaded facts, including the alleged effect of foreign law, should be assumed to be true for the application. The central issues were whether the claimant had to be a contracting party to maintain the inducement claim, and whether unlawful means conspiracy required a dealing or instrumentality requirement.

1. The application was dismissed. The claims were arguable in law, had a real prospect of success, and raised issues better determined after findings of fact at trial.

2. The modern law on inducing breach of contract, stated in OBG v Allan [2008] AC 1, treats the tort as accessory to the contract-breaker’s actionable liability. The claimant therefore had to establish that it could sue the ticketholders for breach of contract. The authorities did not establish that the claimant must itself have been a party to the contract.

3. The question remained open where the claimant’s right to sue arose under foreign law as a third-party beneficiary or equivalent. The alleged foreign-law rights were sufficiently pleaded for present purposes. Their existence and effect were matters of fact ordinarily requiring expert evidence. The claimant did not need actually to sue the ticketholders; it had to prove at trial that it could do so.

4. The claimant’s exclusive licensing agreement did not expressly prevent it from pursuing its own rights, and the court could not conclude at this stage that any contractual obligations to the leagues deprived it of those rights.

5. Unlawful means conspiracy requires a combination of two or more persons, unlawful means, an intention to cause damage to the claimant, and intended damage suffered by the claimant, as stated in Kuwait Oil Tanker Co SAK v Al-Bader (No. 3) [2000] 2 All ER (Comm) 271. The dealing requirement applicable to causing loss by unlawful means was not shown to be an element of unlawful means conspiracy.

6. The instrumentality issue remained open as to whether it concerned intention, causation, or both. In any event, it was distinct from the dealing requirement. The pleaded conspiracy claim was therefore arguable and should proceed to trial.