1. Causes of Action

1. OVERVIEW

Civil conspiracy is recognised as a cause of action in the common law case study countries, although the viability of civil conspiracy as a ground for corporate climate litigation varies with only the US and Canada envisaging potentially successful claims. Japan, Netherlands, Poland and the Philippines do not have civil conspiracy as an express cause of action but have other provisions that could be used to bring broadly analogous claims.

This comparative legal research explores established legal avenues for utilising civil conspiracy as a cause of action in the case study countries, as well as the hurdles and challenges that might be encountered by litigants attempting to utilise this cause of action in corporate climate litigation. It also highlights potential legal avenues in future litigation.

1. Established Legal Avenues from Past Litigation

There is currently little insight into how courts will apply civil conspiracy in corporate climate cases. Civil conspiracy claims were alleged in the US cases of Native Village of Kivalina v ExxonMobil and Comer v Murphy Oil USA, Inc. However, the conspiracy claims were not addressed by the courts because the underlying substantive tort claims were dismissed as non-justiciable. Civil conspiracy has also been alleged in Board of County Commissioners of Boulder County v Suncor Energy (USA), Inc; however, as with other Second Wave cases (those initiated from summer of 2017 to present day), the litigation has been delayed by jurisdictional arguments. Finally, Municipalities of Puerto Rico v ExxonMobil has alleged civil conspiracy, but this case is still at a very early stage.

However, arguments that have been effective in civil conspiracy claims in other contexts might be applied in corporate climate litigation, in particular arguments raised in litigation related to other hazardous products, such as asbestos and tobacco. As will be discussed below, a major challenge climate litigants will face when attempting to establish a civil conspiracy is the need to prove that the defendants made an agreement to commit a tortious act. Naturally, parties entering into an agreement to harm others can be expected to keep such an agreement confidential. A useful precedent, where claimants were able to support their claim that an agreement existed, is provided by In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation. In this case, the claimants alleged that the defendant oil companies had engaged in a conspiracy to mislead the public and government as to the health risks of MTBE (a chemical added to petrol) that had contaminated groundwater. The United States District Court for the Southern District of New York denied a motion to dismiss the conspiracy claim because evidence that the defendants had formed specific organisations, most notably the MTBE Committee, in order to discredit scientific evidence, persuade the public the risk was minimal, and persuade the government that further health and safety testing was unnecessary, was deemed sufficient evidence to support the claim that an agreement existed between the defendant companies. Similarly, fossil fuel companies have founded organisations like the Global Climate Coalition to challenge climate science. A court could find that founding these organisations demonstrates an agreement to mislead the public about climate change (see further discussion of this case in Section 5 Current Applications).

2. Hurdles and Challenges

Civil conspiracy can be hard to establish because of the need to prove three elements: 1) that there was an agreement; 2) that there was an underlying tort; 3) that actual harm was inflicted. As will be discussed in greater detail in Part 6 Hurdles and Challenges below, in order to establish a civil conspiracy the claimant must prove that the defendants made an agreement to commit a wrongful act. As held by the Supreme Court of Illinois in McClure v Owens Corning Fiberglas Corp, 'A conspiracy is almost never susceptible to direct proof', as conspiracies tend to be secretive by their nature. Thus claimants are often left with the difficult task of proving an agreement existed using circumstantial evidence. Another prominent hurdle is that the claimant must also prove that the underlying substantive tort was committed, i.e. the tortious act that the conspiracy was designed to effectuate. Thirdly, the claimant has to establish that actual harm resulted from the tortious act. If there is no injury to the claimant then the conspiracy is not actionable.

3. Potential Legal Avenues in Future Litigation

Corporate climate litigation based on civil conspiracy has thus far only been seen in the United States. The Board of County Commissioners of Boulder County v Suncor Energy (USA), Inc has been remanded back to state court and may now progress to the merits stage. If so, this could shed light on the potential of civil conspiracy claims.

As discussed in Part 7 on Potential Future Applications, a key advantage of using civil conspiracy as a cause of action is that a wider range of actors can be held accountable, essentially anyone involved in the conspiracy in any capacity (e.g. 'those who planned, funded, or encouraged the underlying tort, even if they did not commit the tort themselves.'1).

2 GRAPHIC SUMMARY

The British Institute of International and Comparative Law (BIICL) provides informed, independent and practical legal ideas for a global community. Its high quality and respected work involves analysis and debate about contemporary issues on every continent, from its base in the heart of London's energetic and multicultural legal network.

3. RELEVANT DEFINITIONS AND ESSENTIAL ELEMENTS

The elements of civil conspiracy are broadly the same across the common law world:

1. an agreement between two or more individuals;
2. to do an unlawful act or to do a lawful act in an unlawful way;
3. resulting in injury to the claimant inflicted by one or more of the conspirators; and
4. pursuant to a common scheme.2

Civil conspiracy is also defined in Section 27 of the United States' Third Restatement of Torts:

(a) [t]he defendant made an agreement with another to commit a wrong; (b) a tortious or unlawful act was committed against the plaintiff in furtherance of the agreement; and (c) the plaintiff suffered resulting economic loss.3

As discussed above, a conspiracy claim can only succeed if the underlying tort is also proved. In simple terms, conspiracy in itself is not enough - the conspiracy must be to commit a tort and that tort must actually be committed against the claimant, resulting in actual harm. Therefore, to succeed in a conspiracy claim, the claimant must also prove the underlying tort. In the corporate climate context, the claim might be that corporations conspired to hide the causes and risks of anthropogenic climate change. In which case, the underlying tort would likely be fraudulent misrepresentation. This tort will be discussed in its own section (see here). However, it is worthwhile setting out the elements here as well. The classic statement of the elements of fraudulent misrepresentation comes from the UK case Derry v Peek [1889] UKHL 1, which established a three part test:

'fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false.'

It must then be established that the misrepresentation induced the claimant to take action and that action resulted in a loss. 4

4. SOURCES OF LAW

I. International

(n/a)

II. Regional

(n/a)

III. Domestic

i. Constitutional Provisions

(n/a) 

ii. Legislative Provisions and Common Law

• CANADA

Canada Cement LaFarge Ltd v British Columbia Lightweight Aggregate Ltd [1983] 1 SCR 452

'The tort of conspiracy exists: (1) if the predominant purpose of defendant's conduct is to cause plaintiff injury, whether or not defendants' means were lawful; or (2) where defendants' conduct is unlawful and directed towards the plaintiff (alone or with others) and in circumstances that the defendants should know that injury to the plaintiff is likely to, and does, result— notwithstanding the fact that the predominant purpose of' defendants' conduct be not necessary to cause injury to the plaintiff.'

• NETHERLANDS

Under Dutch law, civil conspiracy is not a specific cause of action. However, the general provision on tortious/unlawful acts in Article 6:162 of the Dutch Civil Code could provide a legal basis for a similar claim. Where two or more parties cooperate to commit an unlawful act that causes damage to another, they would be held jointly and severally liable.

Netherlands Civil Code

Article 6:162 (Definition of a 'tortious act'): '- 1. A person who commits a tortious act (unlawful act) against another person that can be attributed to him, must repair the damage that this other person has suffered as a result thereof. - 2. As a tortious act is regarded a violation of someone else's right (entitlement) and an act or omission in violation of a duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behaviour. - 3. A tortious act can be attributed to the tortfeasor [the person committing the tortious act] if it results from his fault or from a cause for which he is accountable by virtue of law or generally accepted principles (common opinion).'

Also relevant is Article 6:166 on collective behaviour:

Article 6:166 (Collective behaviour): '- 1. If a person, when belonging to a group of people, causes damage through a tortious act and the risk that this damage could be inflicted should already have refrained the other persons, belonging to that group, from their collective behaviour, then each of the members of this group is joint and several liable as far as this collective behaviour can be attributed to him individually.

- 2. In their internal relationship all liable persons must contribute for equal shares in the payable damages, unless fairness demands, in view of the prevailing circumstances, another imputation.'

• NIGERIA

Sorrell v Smith [1925] AC 700 HL

'a combination of two or more persons willfully to injure a man in his trade is unlawful and if it results in damage to him is actionable

...

if the real purpose of the combination is not to injure another but to forward or defend the trade of those who entered into it, then no wrong is committed, and no action will lie, although damage to another ensued.'

• PHILIPPINES

In the Philippines, it may be possible to base a claim for civil conspiracy on provisions of the Philippine Civil Code. Articles 19 and 20 together make a person liable for illegal acts. Articles 19 and 21 make a person liable for acts contra bonus mores. Such acts need not be illegal, rather it is enough that the person wilfully causes loss or injury to another in a manner that is contrary to public policy. As addressing climate change is a stated public policy, a corporation that knew its activities were contributing to climate change and refused to address this could be liable for wilfully causing loss to any citizen of the Philippines.

Civil Code of the Philippines

Article 19: 'Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.'

Article 20: 'Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.'

Article 21: 'Any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.'

• POLAND

Civil conspiracy is not a recognised cause of action in Poland. However, a company that undertook actions intended to mislead the public with regard to the science of global warming in order to delay public awareness of climate change and its effects could be liable per the Act on Combating Unfair Market Practices. Article 12 of the Act provides that a person affected by an unfair practice can bring a civil action for compensation under Article 415 of the Polish Civil Code.

Polish Civil Code

Article 415: 'Fault. Anyone who by a fault on his part causes damage to another person is obliged to remedy it.'

• UNITED KINGDOM

Kuwait Oil Tanker Company SAK v Al-Bader (No 3) [2000] 2 All ER (Comm) 271

'108. A conspiracy to injure by lawful means is actionable where the claimant proves that he has suffered loss or damage as a result of action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him, where the predominant purpose of the defendant is to injure the claimant. A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so. We shall call them a "lawful means conspiracy" and an "unlawful means conspiracy" respectively.'

• UNITED STATES

Restatement (Third) of Torts: Liability for Economic Harm (American Law Institute 2020) § 27

'(a) [t]he defendant made an agreement with another to commit a wrong; (b) a tortious or unlawful act was committed against the plaintiff in furtherance of the agreement; and (c) the plaintiff suffered resulting economic loss.'

First United Pentecostal Church of Beaumont v Parker, 514 S.W.3d 214 (Tex 2017)

'An action for civil conspiracy has five elements: (1) a combination of two or more persons; (2) the persons seek to accomplish an object or course of action; (3) the persons reach a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts are taken in pursuance of the object or course of action; and (5) damages occur as a proximate result. Tri v. J.T.T. , 162 S.W.3d 552, 556 (Tex. 2005). An actionable civil conspiracy requires specific intent to agree to accomplish something unlawful or to accomplish something lawful by unlawful means. Swinnea , 318 S.W.3d at 881. This inherently requires a meeting of the minds on the object or course of action. Id. (quoting Massey v. Armco Steel Co. , 652 S.W.2d 932, 934 (Tex. 1983) ). Thus, an actionable civil conspiracy exists only as to those parties who are aware of the intended harm or proposed wrongful conduct at the outset of the combination or agreement. Firestone Steel Prods. Co. v. Barajas , 927 S.W.2d 608, 614 (Tex. 1996) ; see Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp. , 435 S.W.2d 854, 857 (Tex. 1968).'

5. CURRENT APPLICATIONS

As yet, there are no final judgments addressing claims of civil conspiracy in the context of corporate climate litigation. However, lessons can be learned from case law in which conspiracy claims were made in relation to other types of hazardous products.

• UNITED STATES

In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation The claimants alleged that the defendant oil companies had engaged in a conspiracy to mislead the public and government as to the health risks of MTBE (a chemical added to petrol) that had contaminated groundwater. The United States District Court for the Southern District of New York denied a motion to dismiss the conspiracy claim because evidence that the defendants had formed joint task forces and committees in order to suppress or minimise information regarding the risks of MTBE was deemed sufficient to support the claim that an agreement existed between the defendant companies. In the corporate climate context, fossil fuel companies have founded organisations like the Global Climate Coalition to challenge climate science. A court could find that founding these organisations demonstrates an agreement to mislead the public about climate change.

'(a) [t]he defendant made Defendants also argue that plaintiffs have failed to sufficiently allege an unlawful agreement. At most, defendants assert, plaintiffs' allegations merely demonstrate that they engaged in "parallel activity" — allegations that are insufficient to support a civil conspiracy claim or concerted action liability. While plaintiffs do not disagree with this principle of law, they argue that they have alleged more than parallel activity.
The agreement is "a necessary and important" element of a civil conspiracy claim. Adcock, 645 N.E.2d at 894. Accidental, inadvertent, or negligent participation in a common scheme does not amount to a conspiracy. See id. However, "a defendant who understands the general objectives of the conspiratorial scheme, accepts them, and agrees, either explicitly or implicitly to do its part to further those objectives . . . is liable as a conspirator." Id. Although bare allegations are insufficient to support a conspiracy claim or concerted action liability, courts have recognized the difficulty of pleading with specificity the facts necessary to show the existence of an unlawful agreement. See id. at 895 ("Such actions, by their very nature, do not permit . . . plaintiff[s] to allege, with complete particularity, all of the details of the conspiracy or the exact role of the defendants in the conspiracy.") (citation omitted); see also Cofacredit, S.A. v. Windsor Plumbing Supply Co. Inc., 187 F.3d 229, 242 (2d Cir. 1999) ("As is true in criminal conspiracies, agreements in civil conspiracies will not easily be shown by direct evidence, but may be inferred from circumstantial evidence."); In re Sunset Bay Assocs., 944 F.2d 1503 (9th Cir. 1991) (an express agreement need not be shown, only a tacit understanding).
Without repeating the specific factual allegations, plaintiffs have alleged that defendants conspired to market a product they knew to be dangerous to the environment and intentionally failed to warn downstream handlers, government officials and the public as to the threat caused by MTBE. See M.C. ¶¶ 99-137, 195-201, 228-32. More importantly, plaintiffs allege defendants formed joint task-forces and committees such as the MTBE Committee and the OFA for the specific purpose of suppressing or minimizing information regarding MTBE hazards. See id. ¶¶ 82-90, 108, 123-29. Defendants also engaged in joint activity to deceive the government as well as the public regarding these same dangers. See id. Plaintiffs further allege that defendants' conspiracy and the acts taken in furtherance of the conspiracy are a direct and proximate cause of the MTBE contamination of their wells.
Plaintiffs are not required to allege the specific facts surrounding the conspiracy at this stage of the litigation where "the necessary information [may be] within the knowledge and control of the defendant[s] . . . ." Adcock, 645 N.E.2d at 895. Thus, plaintiffs' allegations of an agreement or tacit understanding are sufficient to support their conspiracy claims and concerted action theory of liability.
For these reasons, defendants' motions to dismiss the conspiracy claims and concerted action theory of liability are denied.'

6. HURDLES AND CHALLENGES

Civil conspiracy can be hard to establish because of the need to prove three elements: 1) that there was an agreement; 2) that there was an underlying tort; 3) that actual harm was inflicted.

I. An agreement to commit a tortious act

In order to establish the existence of a civil conspiracy, the claimant must prove that the defendants made an agreement to commit a wrongful act. If the alleged conspirators did not make an agreement to commit a wrong then there is no conspiracy.

Proving the existence of an agreement represents a significant challenge for claimants as it is often hard to find concrete evidence. Consequently, claimants must rely on circumstantial evidence as proof that an agreement exists. This often takes the form of evidence of the defendants' parallel conduct, i.e. demonstrating that the defendants acted in a similar way which suggests they were acting in concert with each other. However, building a civil conspiracy case on such evidence poses a steep challenge.5

As mentioned above, a potential legal avenue for corporate climate litigation is to claim that fossil fuel companies conspired together to discredit the climate science in order to mislead the public about the harmful effects of their activities and products. While there is not yet much case law illustrating how courts will treat such claims in the climate context, lessons can be learned from the difficulties claimants have faced when raising similar arguments in other contexts, such as asbestos litigation and tobacco litigation.

In McClure v Owens Corning Fiberglas Corp, the claimants alleged that a group of asbestos suppliers and manufacturers had engaged in a civil conspiracy to suppress information on the negative health impacts of asbestos and to represent that it was safe for workers to be in close proximity to asbestos and asbestos-containing materials. In the absence of direct evidence of an agreement, the claimants presented circumstantial evidence of the defendants' parallel conduct. The Supreme Court of Illinois analysed case law from multiple US states, as well as federal court judgments, and concluded that such circumstantial evidence on its own was not sufficient to prove the existence of an agreement. The Court accepted that

'A conspiracy is almost never susceptible to direct proof. Walsh v. Fanslow, 123 Ill.App.3d 417, 422, 78 Ill.Dec. 846, 462 N.E.2d 965 (1984). Usually, it must be established "from circumstantial evidence and inferences drawn from evidence, coupled with common-sense knowledge of the behavior of persons in similar circumstances." Adcock, 164 Ill.2d at 66, 206 Ill.Dec. 636, 645 N.E.2d 888.'

However, the Court explained that 'If a civil conspiracy is shown by circumstantial evidence ... that evidence must be clear and convincing.' In this case, evidence of parallel conduct on its own was insufficient to prove an agreement existed:

'Our review of case law from other jurisdictions convinces us that the overwhelming weight of authority has refused to accept mere parallel action as proof of conspiracy...we find that requiring more than proof of mere parallel conduct in civil conspiracy cases involving manufacturers of the same or similar products is necessary to make certain that there is a reasonable basis for inferring an agreement and to minimize the risk that liability will be imposed based on nonconspiratorial conduct. Our conclusion that parallel conduct alone is insufficient to establish civil conspiracy in such cases finds support in the clear and convincing standard of proof that applies to the elements of that tort when the evidence is circumstantial, as it is in the case before us. See, e.g., Bosak, 192 Ill.App.3d at 804, 139 Ill.Dec. 917, 549 N.E.2d 643 (noting the standard of proof for civil conspiracy). Under this clear and convincing standard, "if the facts and circumstances relied upon are as consistent with innocence as with guilt it is the duty of the court to find that the conspiracy has not been proved." Tribune Co., 342 Ill. at 529, 174 N.E. 561; see also Regan v. Garfield Ridge Trust & Savings Bank, 220 Ill. App.3d 1078, 1091-92, 163 Ill.Dec. 605, 581 N.E.2d 759 (1991); ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc., 90 Ill.App.3d 817, 830, 46 Ill.Dec. 186, 413 N.E.2d 1299 (1980). As defendants and the amici argue, there are many potential innocent explanations for parallel conduct by competitors. These include encountering the same business problems, the same consumer demands, and the same competitive pressures. As defendants observe, "[b]asic economic principles dictate that competitive companies will often act in a highly similar manner." See also, e.g., Sindell v. Abbott Laboratories, 26 Cal.3d 588, 606, 607 P.2d 924, 933, 163 Cal.Rptr. 132, 141 (1980) (it is a common practice in the industry for manufacturers to use the experience and methods of others making the same or similar products). Parallel conduct alone by manufacturers of the same or similar products is, therefore, as consistent with innocence as with guilt and cannot be considered, in itself, clear and convincing evidence of a conspiracy.Not only does our rejection of mere parallel conduct as proof of civil conspiracy comport with the clear and convincing standard of proof Illinois courts have applied to this tort, it is consistent with this court's previous descriptions of the scope of a manufacturer's liability. In rejecting the market share theory of product liability in Smith v. Eli Lilly & Co., 137 Ill.2d 222, 148 Ill.Dec. 22, 560 N.E.2d 324 (1990), this court reasoned that imposing liability under this theory violated the principles that manufacturers are not "insurers of their industry" and that "`a logical limit must be placed on the scope of a manufacturer's liability.'" Smith, 137 Ill.2d at 266-67, 148 Ill.Dec. 22, 560 N.E.2d 324, quoting Woodill v. Parke Davis & Co., 79 Ill.2d 26, 37, 37 Ill.Dec. 304, 402 N.E.2d 194 (1980) (requiring plaintiffs to prove that a defendant knew of or should have known of the danger in order to establish strict product liability for failure to warn).'

II. An underlying tort

Civil conspiracy requires the commission of an additional underlying tort, i.e. it is a conspiracy to commit a tortious act. Thus in order to use civil conspiracy as a cause of action an obvious hurdle that must be overcome is the need to prove the underlying tort as well as the conspiracy to commit it. A key example in the climate context is Native Village of Kivalina v ExxonMobil in which the claim of civil conspiracy was dismissed without the need for any consideration by the court because the underlying tort of public nuisance was found to be displaced by the Clean Air Act - once the underlying tort had failed, the conspiracy claim failed automatically.

A civil conspiracy claim alleging that corporations conspired to mislead the public about the damagers of climate change will likely be based on the underlying tort of fraudulent misrepresentation (see Section on Fraudulent Misrepresentation here). Thus, in order to prove the civil conspiracy, the claimant must also overcome all the challenges involved in proving fraudulent misrepresentation, most notably the challenge of proving that the claimant relied on the misrepresentation to their detriment.

III. Actual harm

The third element of civil conspiracy is that the defendant's actions caused actual harm to the claimant. A civil conspiracy claim in the climate context might argue that corporations conspired over many years to mislead the public and the government about the causes and dangers of climate change in order to prevent action to restrict emissions. This conspiracy has made the impacts of climate change worse, thus contributing to harm suffered by the claimant (see e.g. Comer v Murphy Oil).

7. POTENTIAL FUTURE APPLICATIONS

Corporate climate litigation based on civil conspiracy is still an unknown in most jurisdictions. It is anticipated that more Second Wave cases in the United States will progress to the merits stage in numerous state courts. These judgments will hopefully shed light on how courts will treat conspiracy claims in the climate change context (currently there are two ongoing corporate climate cases alleging conspiracy: Board of County Commissioners of Boulder County v Suncor Energy (USA), Inc and Municipalities of Puerto Rico v ExxonMobil).

One potential avenue that may be used in future litigation is to use civil conspiracy in order to target a wider range of actors. Each party involved in a conspiracy is jointly responsible for all the harm caused, regardless of their degree of involvement in committing the underlying tort. For example, a party that merely helps to plan the underlying tort (e.g. plans a fraudulent misrepresentation) but does not actually directly commit the tort themselves can still be held liable for all damage caused. This could make civil conspiracy a very useful tool in corporate climate litigation as a wider range of actors could be held accountable.6

8. COUNTRY SUMMARIES

• CANADA

In Canadian law, the tort of civil conspiracy has two distinct categories. The first is known as "lawful means" or "simple motive" conspiracy, which occurs when defendants engage in a course of conduct with the predominant purpose of causing injury to the plaintiff, even if the conduct itself is legal and some damage to the plaintiff results. The second is "unlawful means" or "unlawful conduct" conspiracy in which the plaintiff must demonstrate that two or more people acted in concert with unlawful conduct, directed towards the plaintiff, which they should have known was likely to result in injury, and , in fact, caused harm (see Supreme Court of Canada in Canada Cement LaFarge Ltd v British Columbia Lightweight Aggregate Ltd).

Civil conspiracy has not yet been invoked in climate change litigation. However, it is possible that a lawful means conspiracy claim might arise if companies in the fossil fuel industry are alleged to have worked together with the primary intention of discrediting climate science to the detriment of the public or specific competitors in the renewable energy sector. An unlawful means conspiracy claim could also be grounded in allegations that companies colluded in illegal activities, such as the deliberate violation of environmental protection laws or fraudulent misrepresentation of emissions data, causing environmental harm. The successful application of these torts in the climate context would require clear evidence of conspiracy and damage resulting from such an agreement.

• NETHERLANDS

Under Dutch law, civil conspiracy is not a specific cause of action. However, there are provisions of the Dutch Civil Code that could be used to impose liability for a conspiracy. Under Article 6:162, when two or more parties cooperate to commit an unlawful act that causes damage to another person, they may be held jointly and severally liable. Related is Article 6:166 which provides that when more than one person of a group commits a tort, the members of the group, under some circumstances, can be held jointly and severally liable for the entire damage unless they prove that the damage is not attributable to them. To date, there is no litigation on civil conspiracy in the climate change context.

• NIGERIA

The tort of conspiracy is an agreement or combination of two or more persons or corporations with the primary purpose of wilfully causing harm to the business of another person using unlawful means which actually results in damage to that other person.7 Where the purpose of the combination is 'to forward or defend the trade of those who entered into it, then no wrong is committed and no action will lie, although damage to another ensues' from the combination.8 While the purpose of the tort of conspiracy is to engender free and fair competition within the boundaries of the law, it has been noted that its 'role in the sphere of economic relations is now minimal, if not almost forgotten in a free market and global economy.'9 Also, the House of Lords in Lonrho v Shell Petroleum Co. Ltd10 has described it as a 'highly anomalous cause of action.' In this light, while conspiracy as a tort is actionable in Nigeria, it is yet to, and may hardly constitute a viable ground for corporate climate litigation in Nigeria.

• PHILIPPINES

It may be possible to base a claim for civil conspiracy on provisions of the Civil Code of the Philippines. Articles 19 and 20 together make a person liable for illegal acts. Articles 19 and 21 make a person liable for acts contra bonus mores. Such acts need not be illegal, rather it is enough that the person wilfully causes loss or injury to another in a manner that is contrary to public policy. As addressing climate change is a stated public policy, a corporation that knew its activities were contributing to climate change and refused to address this could be liable for wilfully causing loss to any citizen of the Philippines.

• POLAND

Civil conspiracy is not a cause of action recognised in Polish law. However, a company that undertook actions intended to mislead the public with regard to the science of global warming in order to delay public awareness of climate change and its effects could be held liable under the Act on Combating Unfair Market Practices. The Act defines as unfair a commercial practice that, among others, is misleading or aggressive or distorts the consumer's economic behaviour with regard to the offered product.11 Along with criminal liability, the Act provides that a person affected by an unfair commercial practice can bring legal action against a company by filing a compensation claim under Article 415 of the Polish Civil Code.12

• UNITED KINGDOM

Conspiracy in English law falls in the domain of the economic torts, which have the purpose of protecting a person in relation to his business. To ensure competition, a person will only be protected from certain kinds of interference, principally those inflicted intentionally or deliberately. Lawful means can ground a claim in conspiracy as long as a number of defendants conspired to harm the claimant.13 The requisite intention is 'malice', which is not consistently defined but generally seems to involve intention to harm the claimant without justification.14 The focus is very much to injure the claimant in his trade or business, and it does not relate to broader societal conspiracies it seems.15

• UNITED STATES

The elements of a civil conspiracy are: (1) an agreement between two or more individuals; (2) to do an unlawful act or to do a lawful act in an unlawful way; (3) resulting in injury to the claimant inflicted by one or more of the conspirators; and (4) pursuant to a common scheme.16

There are two ongoing US corporate climate cases that have asserted claims of civil conspiracy. In Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc. (Second Wave), three Colorado local government entities filed a lawsuit in state court against fossil fuel companies seeking damages and other relief for the companies' role in causing climate change. The claimants amended their complaint to add a civil conspiracy claim to their claims of public and private nuisance, trespass, and unjust enrichment as well as a claim of deceptive trade practices under the Colorado Consumer Protection Act. As in other Second Wave cases, the litigation has been delayed by jurisdictional disputes. The federal district court in Colorado remanded the case back to state court and the remand order was subsequently affirmed by the Tenth Circuit Court of Appeal. The fossil fuel companies have filed a petition for writ of certiorari seeking review of the Tenth Circuit's opinion upholding the remand order.

The plaintiffs in Municipalities of Puerto Rico v ExxonMobil also asserted a claim of conspiracy to commit common law consumer fraud and deceptive business practices against fossil fuel companies, but this case is still at a very early stage.