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Instrumentality and the Scope of the Unlawful Means Tort

Joshua Phang Shih Ern & David Tan

(2023) 35 SAcLJ 53

More than a decade on from the landmark cases of the House of Lords in OBG Ltd v Allan [2008] AC 1 and Revenue and Customs Commissioners v Total Network SL [2008] AC 1174, the scope of the unlawful means tort in various jurisdictions, including Singapore, has remained undefined. This article advocates for a wider scope of “unlawful means” to include all criminal and civil wrongdoings against a third party under Singapore law. It further proposes a multi-factorial test to determine whether a particular act is instrumental in causing loss to the claimant. This test of instrumentality arguably acts as an appropriate control mechanism and yet is able to strike a good balance between the twin needs of freedom and fairness in economic competition.