IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION 1998-M-NO 1180 BETWEEN MONSANTO PLC Plaintiff and (l) ROWAN TILL\' (2) JO HAMILTON (3) KATHRYN TULIP (4) MELANIE JARMAN (5) ZOE ELFORD (6) ANDREW WOOD (sued on their own behalf and on behalf of all the other members or representatives of "genetiX snowball", an unincorporated association) Defendants SKELETON ARGUMENT ON BEHALF OF THE 1ST, 2ND AND 6TH DEFENDANTS: DATE OF HEARING: 19/20 APRIL 1999. TIME ESTIMATE 1.5DAYS THE ISSUES l. Whether the Plaintiff is entitled to judgement against the Defendants pursuant to RSC Ord 14 rl 2. Whether the Defendants should be given leave to defend the claim pursuant to RSC Ord 14 r 4 SUMMARY OF DEFENDANT'S CASE 3. The Defendant's case is that there is an arguable case that the Plaintiff has not made out all the elements of each of the torts pursued by the Plaintiff (trespass to goods, interference with business and conspiracy to injure) and therefore the Defence should not be struck out. 4. Further, it is argued that the Court should be slow to use the strike out procedure in cases involving developing torts or torts of uncertain ambit as to do so will stultify the development of the law. 5. It is the Defendant's case that to apply these torts to the peaceful protest actions of the Defendants would involve a considerable extension of the torts (especially) of interference with business and conspiracy to injure. 6. As there are substantial issues to be tried leave to defend should be granted. TRESPASS TO GOODS The documentation 7. There are a number of places in the documentation where the Plaintiff refers to the "ownership" (used in its loosest term) of the genetically modified ("GM") plants. These include the following significant mentions: (a) Paragraph 3 of statement of claim issued 15 June 1998 (B 2) states "On Saturday 4 July 1998 the Defendants and each of them entered a farm at Shirburn Oxfordshire ("the Farm") without the permission of the owner or the occupier of the Farm, on which GM Plants belonging to the Plaintiff were being grown and developed". Later in the paragraph (and in other paragraphs) the plants are described as "the Plaintiff s GM plants". (b) In the original proceedings there is a claim for cost of plants and cost of care of plants (now dropped). There is a claim at pare 7 ( B 4) for "trespass to its goods". (c) Catherine Hooper's affidavit, 15 July 1998, from B 21. She has been employed by Plaintiff since 1996. Para 2 "All plants on the plots and on the other test sites ...are owned by and are the property of the Plaintiff... The land at which the Sites is [sic] situated is owned by the individual farmers. Independent contractors plant, fertilise and spray the plants under the strict instructions and supervision of the Plaintiff". (d) B 22-23: Dr Hooper has a supervisory role "submitting checklists for the plants being grown at the Sites, ensuring that the terms of the Consents are fully complied with". (e) Para 16 (B 25) Dr Hooper tells one of the protectors "on behalf of the farmer" to stop the protest action, and then the same to one of the 5 women. (f) The standard agreement at B 34. This states that the contractor will agree that "when the test is over...the crop resulting [etc] are all the property of Monsanto and will be disposed of as Monsanto may request". (g) The second statement of claim only makes reference to ownership at pare 5 (B 171). Otherwise does not make reference to proof of ownership. (h) Second affidavit of Dr Hooper at 193. Drops claim for damages or financial relief. Para 10 at pl96 - calls "belonging " a spurious issue. Claims the aim of the Defendants was to strike at Monsanto crops. (i) Para 11 at B 196 has a receipt for the seeds sent to Dr Hooper at her home address under maiden name (see B3 17) . The law and submissions 8. It is submitted that Plaintiff is not the correct party to bring an action for trespass to goods in this action. Trespass to goods is concerned with the direct, immediate interference with the plaintiff's possession of a chattel. Clerk & Lindsell at p704 state "though the right to possession without actual possession may enable a plaintiff in conversion to maintain a claim, in trespass the plaintiff must be in possession at the time of the interference". 9. The cited case in Clerk and Lindsell is Ward v Macauley (1791) 4TR 489, a case where a the Plaintiff landlord let a furnished house and then attempted to bring an action in trespass to goods against a Defendant who had seized the furniture. Holding that an action in trespass would not lie Lord Kenyon said The distinction between the actions of trespass and trover is well settled: the former is founded in possession: the latter on property. Here the plaintiff had no possession; his remedy was by action of trover founded on the value of the property in the goods taken. 10. Nowhere in the statement of claims does the Plaintiff claim to be in "actual possession" of the crops pulled up. This is an essential element of the tort. 11. It is submitted that on the evidence available as to possession, such as Dr Hooper stating to the Defendants that she was acting on behalf of the farmers in asking them to stop their action, and the terms of the growers agreement, the conclusion must be reached that whether the Plaintiff (as opposed to the farmer) was "in possession" of the crops at the time of the protest is open to doubt and is a point of law that should be argued at full trial. 12. In addition, it is submitted that there is a question as to whether, even if the Plaintiff proves possession of the seeds, whether this would be enough to prove possession of the crops that subsequently grow from the seeds. INTERFERENCE WITH BUSINESS AND CONSPIRACY TO INJURE The documentation 13. The following are the most relevant references in the Plaintiff s papers to interference with business and conspiracy (with comments): (a) Statement of claim (at B 1-5) does not plead all the elements of the tort of interference with business ("using unlawful means with the object and effect of causing damage to another") (b) Specifically it is not pleaded that the object of any unlawful means was to cause damage to the Plaintiff. (c) The second statement of claim states (at B171) that the purposes and objects of the Organisation are "directed against" the Plaintiff. But again there is no mention that the object of the actions is to cause damage to the Plaintiff. (d) Catherine Hooper's 1st affidavit speaks at length to the damage done but does not mention the alleged intention behind the damage, other than at pare 23 (B26) where reference is made to CLH 6 (B44-46) "in respect of the Defendants' activities and intentions in respect of the Plaintiff s research programme". (e) However, the exhibit referred thereto consists of two newspaper reports which make no reference to any intention in relation to the Plaintiff s research programme. (f) Likewise the letter sent to farmers at CLH 2 (B37) makes no mention of an intention to cause damage to the Plaintiff, rather it is clear that the action is directed against GM plants and the refusal of government to grant a moratorium. (g) In the letter to Monsanto at B39 the object is again clearly to get rid of GM plants rather than to injure the Plaintiff. (h) The leaflet at B42-43 again makes it clear that the intention is to get rid of GM plants rather than to harm the Plaintiff. (i)At B113 is the 19 July 1998 press release which again makes no mention of an intention to damage the Plaintiff. (j) Nothing in the affidavit of Anthony Phillips (B132-137) of 18 September 1998 sworn for the second injunction hearing or the exhibit thereto (B 138-151) adds anything to the above. (k) Catherine Hooper's second affidavit, pare 10 at B196 states that "the whole point of the exercise was to strike at Monsanto GM crops". This is the closest that the Plaintiff comes to alleging that the intention was to cause damage to the Plaintiff. Reference is made to pare 4.2 of the handbook (B232). The only direct reference to the Plaintiff there is the comment attributed to the Defendant. Again, however, the intention revealed here is to prevent genetic pollution rather than to cause damage to the Plaintiff. (1) The claim for conspiracy to injure at pare 3 of the 1st statement of claim (B2) and at para 5 of the 2nd statement of claim (B171) again makes no mention of any intention of any conspiracy that the unlawful means used should cause harm to the Plaintiff. The law Interference with business 14."There exists a "tort of uncertain ambit" which consists in one person using unlawful means with the object and effect of causing damage to another" Clerk & Lindsell, 7th edition 1995, page 1244. 15. The leading recent case is Lonrho plc v Faved [1989] 2 All ER 65, a successful appeal by the Plaintiff against an order striking out their claim for interference with business. 16. It was held that although it was not necessary to prove that the predominant purpose was to injure the Plaintiff, it was necessary to prove that the unlawful act was directed against the Plaintiff or was intended to harm the Plaintiff. 17. The question arises as to exactly what the intention to injure must consist of. The test set out in the New Zealand case of Van Camp Chocolates v Aulesbrroks Ltd (1984) 1 NZLR 354 (cited with apparent approval by Henry J in Barretts & Baird v IPCS [1987] IRLR 3 at pare 66) is that If the reasons which actuate the defendant to use unlawful means are wholly independent of a wish to interfere with the Plaintiff's business, such interference being no more than an incidental consequence foreseen by and gratifying to the defendant, we think that to impose liability would be to stretch the tort too far. Moreover it would entail minute and refined exploration of the defendant's precise state of mind - an inquiry of a kind which the law should not call for when a more practicable rule can be adopted. 18. In Barrett & Baird what was described by the judge as a "straightforward industrial action for improved pay" which "naturally" harmed the Plaintiff's business was held not to have any "independent" purpose so to cause the damage (see para 69), even where the union showed "apparent satisfaction" that disruption had been caused. 19. The Canadian case of Chetcamp Fisheries Co-operative Ltd v Canada (1995) 123 DLR 121 describes intention to injure as an essential element to the tort of (in that case) unlawful interference with economic relations. 20. It is submitted that there is no clear evidence in the papers that the Defendants had an intention to injure the Plaintiff, and there is plenty of evidence which identifies other much stronger intentions. Reference is made to both the Defences where the intentions of the organisation are set out at paragraph 3 and the affidavits of the Defendants. It is submitted that in these circumstances it is not appropriate to apply the strike out procedure to the Defence. 21. The speeches in Lonrho v Fayed [1989] 2 All ER 65 advert strongly to the uncertain nature of the tort and the need for its parameters to be tested at trial on a case by case basis: see per Dillon LJ @ 70G, Ralph Gibson LJ @ 72C, and Woolf LJ @ 73A, and the strike out procedure should only be used in plain and obvious cases. 22. See also the recent case of Toumia v Evans (1999) Times 1 April: wrong to strike pleadings in a case involving a newly emerging tort (misfeasance in public office) as to do so might be to stultify the development of the law. 23. The Defendants submit that the extension of the tort to peaceful protest involving only symbolic damage, as opposed to business disputes (whether between businesses or between business and trade unions) would be a sign)ficant extension of the ambit of the tort (and one for which the Defendants can find no precedent) which is not appropriate to be decided on a strike out application. Conspiracy 24. The headnote of Lonrho v Fayed [1991] 3 All ER 303, HL reads: The tort of conspiracy to injure can be established either by showing that an intention to injure the plaintiff in his trade or business was the predominant purpose of the conspirators, even though the means used to inflict damage on the plaintiff were lawful and would not have been actionable if done by an individual, or by showing that unlawful means were used. 25. That case found that it is no defence to the second limb of the tort (involving unlawful means) for the Defendants to show that the primary or predominant purpose had been to further some legitimate interest of their own. Therefore the Plaintiff's failure to plead "predominant purpose" was not sufficient to strike out the cause of action in conspiracy. 26. However, it is submitted that it is uncertain from the judgement whether their Lordships decided that there has to be some intention to injure, or whether unlawful actions which cause reasonably foreseeable damage is sufficient. 27. Lord Bridge at 309J states "...when conspirators intentionally injure the plaintiff and use unlawful means to do so, it is no defence for them to show that the primary purpose was to further or protect their own interests; it is sufficient to make their action tortious that the means used were unlawful". 28. This certainly suggests that there must be an "intention to injure". 29. Lord Bridge goes on to say that he cannot accept that the House in Lonrho v Shell [1981] 2 All ER had intended to make a sign)ficant change in the law such that "predominate purpose" must be shown for conspiracy to injure by unlawful means. One reason for this is that the House affirmed the view of Lord Denning in the Court of Appeal. This view is set out at 311 D and it is submitted that Lord Bridge accepts this view. It reads It is sufficient if the conspiracy is aimed or directed at the plaintiff, and it can be reasonably be foreseen that it may injure him and does in fact injure him. 30. It is submitted that in the present case it is at least arguable that any conspiracy was not "aimed or directed" at the plaintiff - it is aimed or directed at the planting etc. of GM food and the failure of the government to grant a moratorium. Again see both Defences where aims of the organisation are set out. 31. As for interference with business it is submitted that it would be wrong, as the result of a strike out application, to extend the ambit of the tort of conspiracy to injure to the case of peaceful protectors. The tort has been described as "a highly anomalous cause of action" by the House of Lords in Lonrho Ltd v Shell [1981] 2 All ER 456 per Lord Diplock @463J. Again at 464G Lord Diplock states I am against extending the scope of the civil tort of conspiracy beyond acts done in execution of an agreement entered into by two or more persons for the purpose not of protecting their own interests but of injuring the interests of the plaintiff. 32. It is submitted that the sole purposes of the Defendants are protecting their own interests and those that they perceive to be the interests of society as a whole and that the application of the tort of conspiracy to injure to this case would constitute the extension of the scope of the tort that Lord Diplock was so anxious to avoid. 33. Also noted are the words of Lord Templeman in Lonrho plc v Faved [1991] 3 All ER 303 @ 314E where he suggests "the ambit and ingredients of the torts of conspiracy and unlawful interference may hereafter require further analysis and reconsideration by the courts". It is submitted that this is just such a case for analysis and reconsideration atthe full trial of this matter. THE APPLICABILITY OF ORDER 14 34. The White Book Vol let 14/1/2 (Application of Order 14, p163) states "0.14 proceedings should not be allowed to become a means for obtaining in effect an immediate trial of the action, which will be the case if the court lends itself to determining points of law or construction that may take hours or even days and the citation of many authorities before the court is able to arrive at a final decision". 35. It is submitted that this is exactly the position the Plaintiff finds itself in the present proceedings and the application should be dismissed on this basis. 36. At 14/4/3 (Defendant showing cause (RSC 0.14 r4), pl71) it is stated that The Defendant may show cause against the plaintiff's application (1) ... (2) On the merits eg that there is a good defence to the claim on the merits, or ..that a difficult point of law is involved, or a dispute as to the facts which ought to be tried...or any other circumstances showing reasonable grounds of a bona fide defence. 37. The Defendants have set out their "good defence" above and identified difficult points of law that ought to be tried (see also the comments at 14!4/9 (page 174). It is submitted that unconditional leave to defend should be granted. 38. In addition reference is made to Ord 14 r 3 and pare 14/4/10 at page 175 to there being "some other reason for trial". Thus it is the Defendants' case that: (a) the affidavits Dr Hooper reveal a number of uncertainties and ambiguities and an opportunity should be given for the Defendants to cross-examine at trial. (b) this is a case of public interest and public importance (c) there will be a number of expert witnesses whose evidence will be in dispute (d) the law governing the torts of conspiracy to injure and interference with business are still evolving and a detailed examination of the facts is required. OWEN DAVIES QC STEPHEN CRAGG 15 April 1999 1998-M-NO 1180 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION BETWEEN MONSANTO PLC Plaintiff -and- (l) ROWAN TILLY (2) JO HAMILTON (3) KATHRYN TULIP (4) MELANIE JARMAN (5) ZOE ELFORD (6) ANDREW WOOD (sued on their own behalf and on behalf of all the other members or representatives of "genetiX snowball", an unincorporated association) Defendants SKELETON ARGUMENT ON BEHALF OF THE 1ST, 2ND AND 6TH DEFENDANTS: DATE OF HEARING: 19/20 APRIL 1999. TIME ESTIMATE 1.5DAYS OWEN DAVIES QC STEPHEN CRAGG 2 Garden Court Temple London EC4Y 9BL Tel: 0171-353 1633 Fax: 0171-353 4621 DX 34 CHANCERY LANE Leigh,Day & Co Priory House 25 St John's Lane London ECIM 4LB Tel: 0171650 1200 Fax: 0171253 4433 Ref: DB