The final and perhaps most interesting factor behind the increase in claims, is developments in the law of economic torts, in particular unlawful means conspiracy. Unlawful means conspiracy occurs where two or more people act together unlawfully (the unlawful act can be civil or criminal), intending to damage a third party, and do so.
One aspect that renders IPs particularly vulnerable to claims for unlawful means conspiracy is, of course, that they hold office personally and take appointments jointly with other IPs. This, combined with the fact their firm often has a separate advisory engagement with the company and/or one of the company’s lenders , means there are multiple parties over whom a claimant can make an allegation of conspiracy.
Furthermore, in 2007–2008, two House of Lords decisions clarified two key elements of unlawful means conspiracy and, as a result, made it much easier for claimants to pursue this course of action.
The first of these decisions was OBG Ltd and others v. Allan and others  UKHL 21, which confirmed the level of intention that a claimant must demonstrate to establish unlawful means conspiracy. OBG confirmed that a claimant does not need to show that the defendant’s sole or predominant purpose was to injure another person, only that it was one of the defendant’s purposes. The result being that the relevant level of intention for unlawful means conspiracy can be established where injury to the target is a means to an end, rather than an end in itself4, which is a much lower threshold.
This makes it easier for claimants seeking to plead unlawful means conspiracy. As an example, a claimant looking to bring a claim that an IP (or his or her firm) conspired with a bank to place a company into insolvency, does not need to demonstrate that the IP’s sole purpose was to injure the company; he or she only needs to show that injury to the company was a means to an end; that end can, for example, be the professional fees the insolvency appointment would generate.
The second House of Lords decision was Total Network SL v. HMRC  UKHL 19. Here, it was confirmed that the ‘unlawful means’ in question do not need to be something that is directly actionable by the claimant against the defendant. In other words, as long as there has been an unlawful action that is actionable by someone, even if not the claimant, then (providing all the other requirements are met) a claim for unlawful means conspiracy can be brought.
The fact the ‘unlawful means’ do not need to be directly actionable by the claimant has very wide implications in an insolvency context. In theory, it means individual creditors can bring claims for unlawful means conspiracy in circumstances where they would not otherwise have a cause of action. Take claims against administrators as an example. In an administration, absent special circumstances, the administrator owes his or her duties to the company, not to individual creditors5. However, if a creditor can establish that the office-holder has breached his or her duty to the company (ie the unlawful means), the requisite intention and the necessary element of combination (i.e. the conspiracy), then following Total it seems possible, in theory, for that creditor to bring a claim against the administrator (and others) for unlawful means conspiracy. At the time of writing this article, we are not aware of any such claims having been pleaded and whether such a case could ever proceed on policy grounds is debatable. However, with determined claimants pleading ever more creative causes of action, it seems only a matter of time before this is attempted.