In Judgment handed down on Friday 24 April 2026, in Lux Films Ltd v. (1) Andrew Fowler; (2) Andrew Fowler Media Limited [2026] EWHC 963 (KB), Sweeting J held that a director can conspire with his own one-man company and so be liable for unlawful means conspiracy. This is the first time the point has been determined following argument at trial.
Under criminal law, a director cannot conspire with a company of which he is the sole controller; R v. McDonnell [1966] 1 QB 233. The rationale is that there can be no agreement to conspire where the conspirators are essentially the same person and the same mind.
There has been considerable controversy in cases considering the civil tort of unlawful means conspiracy. Several first instance authorities have established that a director can conspire with a company which is his alter ego; however, those cases have concerned companies with two or more directors. The position has been unclear where the director is sole controller: recent decisions have gone both ways and the leading textbooks have expressed different views[1].
In AAH Pharmaceuticals v. Birdi [2011] EWHC 1625 (QB), Coulson J emphasised the policy goal of consistency, stating by reference to the clear position under criminal law: “a result that distinguishes between the criminal and civil jurisdictions in such a radical way is, in principle, unattractive”. Less than a year later, in Barclays Pharmaceuticals Limited v. Waypharm LP [2012] 2012] EWHC 306 (Comm), Gloster J took the opposite view, but without having heard argument on the point. The case for consistency was advanced by the Court of Appeal in Raja v. McMillan [2021] EWCA Civ 1103, where Nugee LJ cited McDonnell and said at [56]: “Although a criminal case, it is not obvious why the same should not be true in a civil conspiracy”. Nugee LJ went on to note “..there are arguments the other way” and declined to express a concluded view.
A different policy approach was taken in the Irish decision of Taylor v Smyth [1991] IR 142, where the Irish Supreme Court had no hesitation in holding that a director and sole controller could conspire with his company. The court found no reason in principle why a sole controller should obtain immunity from suit, and distinguished McDonnell on the simple basis that it was a criminal case.
Sweeting J undertook a detailed analysis of the elements of both criminal and civil conspiracy and observed at [164]: “the essence of the offence under the [Criminal Law Act 1977] is therefore the agreement itself, not the causing of harm or loss. Criminal liability attaches even if the agreed offence is never committed.” Further at [165], “it is not concerned with compensation for loss.” The criminal statute did not codify the civil law, and was applied against very different procedural and evidential rules.
Turning to the position in tort, Sweeting J considered that here the focus was on the damage caused by concerted action using unlawful means. At [173], he held: “The decisive question is whether there is evidence of concerted action between two legal persons, even if they are closely connected, rather than whether there are two independent psychological actors. Where a director acts in one capacity to procure unlawful conduct, and in another capacity causes the company to receive and exploit the fruits of that conduct, the requirement of combination is satisfied.”
On the evidence, it was clear that Mr Fowler had acted separately in his personal capacity, as director and fiduciary of Lux, to misappropriate confidential information and divert business. Then, in his capacity as director of AFML, he had entered into contracts with diverted clients and received payment, exploiting the stolen confidential information in the process. The court held that unlawful means conspiracy was established on the facts, and upheld that claim along with claims of breach of fiduciary duty and knowing receipt.
The decision brings clarity on a point which has long been unsettled, and that a sole controller will not be exempt from claims in tort. As well as the obvious practical implication that claims can be brought against one-man companies, Sweeting J has algo given important redefinition to the principles underpinning the tort. His judgment demonstrates that the two branches of law address different policy objectives and different mischiefs; the civil tort of unlawful means conspiracy is conceptually distinct from conspiracy under the Criminal Law Act 1977.
The Judgment can be accessed here.
Lucy Bone acted for Lux Films Ltd, instructed by Simon Carroll, Kathryn Fielder and Tom Bourke of BP Collins LLP.
[1] A company conspiring with its sole director is described as “a difficult notion” in Bowstead and Reynolds on Agency (21st ed) para.9-119. However, Clerk and Lindsell (24th Edition) states at 23-106 that the position in criminal conspiracy “might not be the case in a civil action”. In Grant and Mumford on Civil Fraud (1st ed) the lack of clarity in the authorities is noted as “unfortunate”.
