The Supreme Court is set to reconsider the scope of unlawful means conspiracy in a rare leapfrog appeal from the High Court’s decision in Felipe Massa v Formula One Management Limited [2025] EWHC 3064 (KB).

Although the appeal arises from a Formula One dispute, its significance reaches well beyond sport. It gives the Supreme Court an opportunity to revisit Customs and Excise Commissioners v Total Network SL [2008] UKHL 19 and, in doing so, to reconsider an important element of a cause of action that has become an important tool in complex civil fraud and multi-party recovery claims.

The appeal matters

The tort of unlawful means conspiracy is an economic tort, arising where there is a combination or agreement between two or more people to take unlawful action that is intended to, and does, damage the claimant. It is often pleaded in complex, multi-defendant disputes where the claimant alleges coordinated wrongdoing.

In contentious tax and civil fraud contexts, it can provide a route to pursue connected defendants alleged to have participated in the same scheme, for example, where HMRC exposure and related commercial losses arise from the same factual matrix.

In Felipe Massa, the judge summarily dismissed all of Mr Massa’s claims against Formula One’s governing body, except his claim in the tort of unlawful means conspiracy. On 26 May 2026, however, the Supreme Court granted the defendants permission to appeal directly (leapfrogging the Court of Appeal) to determine whether the unlawful means conspiracy claim should be allowed to proceed. It thereby raised the prospect that the Supreme Court may revisit, and potentially narrow, the House of Lords’ approach in Total Network and, therefore, the scope of the tort.

In Total Network, HMRC alleged that the defendants had conspired to commit VAT fraud through carousel trading arrangements. The House of Lords held that unlawful means conspiracy could be founded on conduct that was unlawful, even where the unlawful act was not independently actionable by HMRC.

The fundamental point underlying the House of Lords’ reasoning was that criminal conduct engaged in by conspirators as a means of inflicting harm on the claimant is actionable as the tort of conspiracy “whether or not that conduct, on the part of a single individual, would be actionable as some other tort”. In other words, the court held that unlawful means conspiracy could afford a cause of action to a claimant where, but for the conspiracy, he would have had no basis for a claim. In the aftermath of this decision, the principle was extended beyond criminal conduct to include civil wrongs such as breach of contract, a director’s breach of fiduciary duty and fraud.

The appeal in Felipe Massa will put a spotlight on these extensions by considering whether a claim in unlawful means conspiracy can be founded on the following bases:

1. A civil wrong that is not independently actionable by the claimant
2. A breach of contract to which the claimant is not a party
3. A breach of foreign law
4. Conduct that the defendant did not know to be unlawful.

Potential impact

Clearly, the potential consequences extend beyond recovery in claims centred on VAT fraud; they extend to the scope of the tort as a whole. This, in turn, has obvious pros and cons for claimants and defendants, respectively, and is likely to be an important factor in each side’s litigation strategies from the outset. It is also likely to give practitioners with unlawful means conspiracy claims on foot pause for thought.

Although it is difficult to predict the approach the Supreme Court will take, a straightforward reversal of Total Network could restrict the scope and applicability of unlawful means conspiracy as a cause of action. On the other hand, the Supreme Court now has the opportunity not just to affirm the status of unlawful means conspiracy as a tort of “primary liability” (ie not needing to be founded on a tort independently actionable by the claimant). It can also lay down principles clarifying which acts can form the “unlawful means” element, as decisions about which specific civil wrongs can found a conspiracy claim have, to date, examined options on a case-by-case basis rather than from any general principles.