ΑΣΤΙΚΑ ΑΔΙΚΗΜΑΤΑ ΣΤΟ ΚΥΠΡΙΑΚΟ ΔΙΚΑΙΟ (2 ΤΟΜΟΙ)

και όχι να εξετάζει εάν έχει λάβει χώρα κάποια παράβαση Νόμου ή Κα- νονισμού. Αυτές οι διιστάμενες απόψεις έχουν συζητηθεί από τον Δι- καστή Nicholls στην υπόθεση ΟΒG Ltd : 900 “The English approach has not lacked critics. On the ‘unlawful conduct’ approach the tort is parasitic on conduct defined as unlawful otherwise than because it amounts to a wrong to the claimant. This, it is said, is inherently unsatisfactory. It is inherently unsatisfactory because it means that a tort concerned with the regulation of trade is geared to commission of illegalities which were created for altogether different reasons […]. A wrong designed for some other purpose is being used as the criterion for deciding whether an act done with an intention to harm is acceptable. This ingredient ‘imposes an arbitrary and illogical limit on the development of a rational general principle to explain this part of the law’: Salmond & Heuston , Law of Torts , 21st ed. (1996), p. 346. […] In J T Stratford & Son Ltd v. Lindley [1965] A.C. 269, 330 , Viscount Radcliffe expressed unhappiness about this aspect of English law. He said the trade dispute in that case should be resolved ‘according to its substance, without the comparatively accidental issue whether breaches of contract are looked for and involved’. These criticisms have force. The contrary, pragmatic view is that in this difficult and uncertain area of the law there is perhaps something to be said for having an objective element of unlawfulness as the boundary of liability. A defendant is not liable under this tort unless he has resorted to ‘unlawful’ means to achieve his end. Tony Weir, a staunch supporter of this approach, says this requirement is ‘entirely correct, sensible and practical’: Weir , Economic Torts (1997), p. 3. I do not propose to enter upon the pros and cons of this particular debate. Your Lordships are not writing on a clean slate. English courts have long recognised they are not best equipped to regulate competitive practices at large. Parliament is better placed to decide what interests need protection and by what means. Fry LJ said that ‘To draw a line between fair and unfair competition, between what is reasonable and unreasonable, passes the power of the courts’: Mogul Steamship Co Ltd v. McGregor Gow & Co (1889) 23 Q.B.D. 598, 625-626 . Since then Parliament has intervened onmany occasions. The courts have taken, as their foothold, conduct which is unlawful. In English law it is now well established that ‘unlawful means’ is an essential ingredient of this tort”. Τόσο το κοινοδίκαιο όσο και ο Κυπριακός Νόμος έχουν υιοθετήσει την πιο πάνω προσέγγιση, ότι δηλαδή ο ελεύθερος ανταγωνισμός επιτρέπεται, 900 Supra . 746 ΠΟΛΥΒΙΟΣ Γ. ΠΟΛΥΒΙΟΥ