Njord Partners SMA-Seal LP & Ors v Astir Maritime Ltd & Ors
[2024] EWHC 1682 (Comm)
Domestic & General Group Limited & Ors v Premier Protect Holdings Limited & Ors
21 October 2024
[2024] EWHC 2654 (KB)
High Court
Several companies and people tricked customers into switching from a good service to their worse service. The judge ruled against the people who planned the trickery because they were dishonest and knew they were hurting the good company.
Key Facts
- •Claimants (home appliance protection plan providers) allege defendants caused loss by unlawful means and unlawful means conspiracy.
- •Defendants (various companies and individuals) allegedly made fraudulent misrepresentations in cold calls to claimants' customers.
- •Misrepresentations induced customers to switch plans, causing claimants loss.
- •Defendants allegedly encouraged fraudulent misrepresentations.
- •Multiple defendant companies are alleged to be 'phoenix' companies.
- •Several defendants were debarred from defending the action or are in liquidation.
- •Significant number of customer calls were made (over 2 million from Apex Assure alone).
- •Defendants provided inadequate disclosure, leading to adverse inferences.
- •Call recordings and scripts were used as evidence.
Legal Principles
Tort of causing loss by unlawful means requires: (i) intention to cause loss; (ii) use of unlawful means against a third party; (iii) interference with that third party's freedom to deal with the claimant.
Clerk & Lindsell on Torts, 23rd ed (2020) at para 23.78
Unlawful means consists of acts intended to cause loss by interfering with a third party's freedom to deal with the claimant, and unlawful against the third party.
OBG Limited v Allan [2008] 1 AC 1, paragraphs 49, 51
In deceit, a materially false representation must be shown, intended to, and did, induce the representee to act to its detriment.
Hayward v Zurich Insurance Company [2017] A.C. 142, paragraph 18
A principal may be liable for fraudulent misrepresentations made by its agent if within the scope of the agent's actual or ostensible authority.
Ivy Technology Limited v Martin [2022] EWHC 1218 (Comm), paragraph 428; Clearcourse Partnership Acquireco Limited v Jethwa [2023] EWHC 1218 (Comm), paragraph 61
Intention to harm in unlawful means conspiracy requires a high degree of blameworthiness; foresight of harm is not sufficient; the defendant must intend to injure the claimant.
OBG Limited v Allan [2008] 1 AC 1, paragraphs 164-167
Outcomes
Principal defendants (Akayour, Ali, and Dhimi) liable for causing loss by unlawful means and unlawful means conspiracy.
Defendants made fraudulent misrepresentations, intending to cause loss to claimants by inducing customers to switch plans. Inadequate disclosure and false evidence supported this conclusion.
Defendant Khan not liable.
Insufficient evidence to show involvement in deceptive sales practices despite being a director for a short period.
Defendants 1-4 breached paragraph 1(a) of the 22 January 2021 order.
Continued making the Association Misrepresentation after the order was served.
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