0 [1353.22] CONSPIRACY : IS IT EQUIVALENT TO FRAUD?

Conspiracy falls under the roof of tortious act and it branches into 2 different kinds with its respective ingredients to satisfy. The first is conspiracy to injure by lawful means and the second one is conspiracy to injure by unlawful means.

In Kuwait Oil Tanker Co Sak v. Al Bader [2000] 2 All ER 271 at [107], it was clearly explained: "..It is common ground that there are two types of actionable conspiracy, conspiracy to injure by lawful means and conspiracy to injure by unlawful means. The first is sometimes described simply as conspiracy to injure and the second as a conspiracy to use unlawful means: see eg, Clerk & Lindsell on Torts, (17th Ed), paras 23-76. In our view they are both conspiracies to injure and their ingredients are the same, with one crucial difference. In both cases there must be conspiracy to injure the claimant, but in the first case (in which the means employed would otherwise be lawful) the predominant purpose of the conspiracy must be to injure the claimant whereas in the second case, although the defendant must intend to injure the claimant, injury to the claimant need not be his predominant purpose."

Furthermore, according to the case of Quah Kay Tee v. Ong and Co Pte Ltd [1997] 1 SLR 390, a conspiracy by unlawful means is constituted when two or more persons combine to commit an unlawful act with the intention of injuring or damaging the plaintiff, and the act is carried out and the intention achieved. Meanwhile, in a conspiracy by lawful means, there need not be an unlawful act per se committed by the conspirators. But, there is an additional requirement of proving a "predominant purpose" by all the conspirators to cause injury or damage to the plaintiff, and the act is carried out and the purpose achieved.

Coming to the highlight of this article, the answer is yes; civil conspiracy is equivalent to fraud pertinent to the case of Ng Ah Ba v. Ramanda Sdn Bhd [1995] 2 MLRA 252; [1996] 1 MLJ 62; [1996] 1 CLJ 738. By which, it carries a serious allegation and thus, the court in Hughes v. Western Australian Cricket Assn Inc [1986] 69 ALR 660 laid down a principle that such claim should not be lightly made. As such, it is trite and a settled law that every allegation of conspiracy is bound by the strictest pleading requirement. In Repco (Malaysia) Sdn Bhd v. Tan Toh Fatt & Others [2012] 3 MLRH 156; [2013] 7 MLJ 408, the court held that; "[64]....It is settled law that the assertion of conspiracy requires the strictest pleading and must be supported by full particulars. It is also settled law that parties are bound by their pleadings and shall not adduce any evidence for issues which had not been pleaded. It is trite that unless particulars of conspiracy are specifically pleaded, no evidence can be led on them.

It must be understood that the basic principle in civil action is that the parties are bound by the four corners of their pleading in order to ensure procedural fairness that the Defendant should be reserved the opportunity to meet the case brought forward against him. Now, if a party claims for conspiracy against another party, it is essential that the claimant’s pleading properly set out every single particular or details as to the type of conspiracy involved, how the conspiracy is committed, its extent, the whole narrative and the consequences or injuries suffered by the claimant pursuant to the act of conspiracy committed by the other party.

Quoting the words from Renault SA v. Inokom Corp Sdn Bhd [2008] 3 MLRA 504; [2010] 5 MLJ 394; [2010] 5 CLJ 32, the Court of Appeal held that: "[48] Just as fraud must be pleaded with great particularity, so must the constituent ingredients of the alleged conspiracy by TC. Euro be pleaded."

Now, in the abovementioned case of Renault’s, there are 4 main elements to fulfil in a claim for conspiracy as follows:

"[32] In regard to the tort of conspiracy, the following need to be satisfied at this interlocutory stage: (a) an agreement between two or more persons (that is an agreement between Tan Chong and others); (b) an agreement for the purpose of injuring Inokom and Quasar; (c) the acts done in execution of that agreement resulted in damage to Inokom and Quasar; (d) Damage is an essential element and where damage is not pleaded the statement of claim may be struck out."

Hence, the claimant’s failure to plead clearly and properly will cost the pleading to be considered as bad and embarrassing. In some occasions, the claimant has to bear in mind that the pleading may be strucked out as well. In Satchithanantham v. Zaeiter Corporate Holdings Pty Ltd [2011] NSWC 1609, the court decided that:

"[53]....If it is a common law pleading of conspiracy, the pleading does not identify what is the precise agreement which constitutes the alleged conspiracy. Nor does it make clear whether the alleged conspiracy was one to use lawful or unlawful means. The ASOC is embarrassing and should be struck out as against the first and second defendants."

In summary, a claim for conspiracy is equal to that of fraud causing such claim to be pleaded very distinctly and properly. In order for a claim of conspiracy to be successful, it relies entirely based on the pleading. The failure to plead, is a call for a bad pleading and must be avoided.

Author: Nur Farihah Binti Syahriza, Pelatih Dalam Kamar.