Strike Issues
Cases
Lumley v Gye
[1853] EWHC QB 73
Crompton J.
“ ‘Whatever may have been the origin or foundation of the law as to enticing of servants, and whether it be, as contended by the plaintiff, an instance and branch of a wider rule, or whether it be, as contended by the defendant, an anomaly and an exception from the general rule of law on such subjects, it must now be considered clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation subsisting between master and servant… commits a wrongful act for which he is responsible at law.”
D C Thomson and co v Deakin [1952] Ch 646
Jenkins LJ
‘First . . . there may . . be an actionable interference with contractual rights where other means of interference than persuasion or procurement or inducement, in the sense of influence of one kind or another brought to bear on the mind of the contract breaker to cause him to break his contract, are used by the interferer; but, secondly, that (apart from conspiracy to injure, which, as I have said, is not in question so far as this motion is concerned) acts of a third party lawful in themselves do not constitute an actionable interference with contractual rights merely because they bring about a breach of contract, even if they were done with the object and intention of bringing about such breach.’
Lord Evershed MR:
‘It was suggested in the course of argument by Sir Frank Soskice and by Mr. Lindner, that the tort must still be properly confined to such direct intervention, that is, to cases where the intervener or persuader uses by personal intervention persuasion on the mind of one of the parties to the contract so as to procure that party to break it. I am unable to agree that any such limitation is logical, rational or part of our law. In such cases where the intervener (if I may call him such) does so directly act upon the mind of a party to the contract as to cause him to break it, the result is, for practical purposes, as though in substance he, the intervener, is breaking the contract, although he in not a party to it . . At any rate, it is clear that, when there is such a direct intervention by the intervener, the intervention itself is thereby considered wrongful. I cannot think that the result is any different if the intervener, instead of so acting upon the mind of the contracting party himself, by some other act, tortious in itself, prevents the contracting party from performing the bargain. A simple case is where the intervener, for example, physically detains the contracting party so that the contracting party is rendered unable by the detention to perform the contract.’
Emerald Construction v Lowthian
[1966] 1 All ER 1013, [1965] AC 269
Lord Denning MR
‘Even if they did not know the actual terms of the contract, but had the means of knowledge – which they deliberately disregarded – that would be enough. Like the man who turns a blind eye. So here, if the officers deliberately sought to get this contract terminated, heedless of its terms, regardless whether it was terminated by breach or not, they would do wrong. For it is unlawful for a third person to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not.’
To be liable for the tort of unlawful interference with contractual relations, the tortfeasor must either know of the contract or turn a blind eye to its existence, and must intend to interfere with it.’
Diplock LJ
‘The element of intent needed to constitute the tort of unlawful procurement of a breach of contract is, in my view, sufficiently established if it be proved that the defendants intended the party procured to bring the contract to an end by breach of it if there were no way of bringing it to an end lawfully. A defendant who acts with such intent runs the risk that if the contract is broken as a result of the party acting in the manner in which he is procured to act by the defendant, the defendant will be liable in damages to the other party to the contract.
On the evidence as it now stands I think that the inference is irresistible that such was the defendants’ intention. The one thing on which they were determined was that the plaintiffs’ work under their ‘labour only’ sub contract with the main contractors should cease. Whether this involved a breach of contract by the main contractors was a matter of indifference to them.’
Torquay Hotel Co Ltd v Cousins
[1968] EWCA Civ 2 [1969] 2 Ch 106 [1969] 2 WLR 289, [1969] 1 All ER 522
THE MASTER OF THE ROLLS:
“It is plain that, if delivery was hindered or prevented by labour disputes, as for instance, because their drivers would not cross the picket line, Esso could rely on that exception clause as a defence to any claim by Imperial. They would not be liable in damages. And I am prepared to assume that Esso would not bo guilty of a breach of contract. But I do not think that would exempt the trade union officials from liability, if they unlawfully hindered or prevented Esso from making deliveries, The principle of Lumley v. Gye extends not only to inducing breach of contract, but also to preventing the performance of it. That can be shown by a simple illustration taken from the books. In Lumley v. Gye,(1853 3 El. & Bl. 216), Miss Wagner, an actress, was engaged by Mr. Lumley to sing at Her Majesty’s Theatre, Mr. Gye, who ran Covent Garden, procured her to break her contract with Mr. Lumley by promising to pay her more, see Lumley v. Wagner,(1853 1 de G.M. & G). He was held liable to Mr. Lumley for inducing a breach of contract. In Poussard v. Spiers (I876 1 Q.B.D. 410), Madam Poussard was under contract with Spiers to sing in an opera at the Crtterian Theatre. She fell sick and was unable to attend rehearsals. Her non-performance, being occasioned by sickness, was not a breach of contract on her part: but it was held to excuse the Theatre Company from continuing to employ her. Suppose now that an ill-disposed person, knowing of her contract, had given her a potion to make her sick. She would not be guilty of a breach herself. But undoubtedly the person who administered the potion would have done wrong and be liable for the damage suffered by them. So here I think the trade union officials cannot take advantage of the force majeure or exception caused in the Esso contract. If they unlawfully prevented or hindered Esso from making deliveries, as ordered by Imperial, they would be liable in damage to Imperial, notwithstanding the exception clause. There is another reason too. They could not rely on an excuse of which they themselves had been “the mean” to use Lord Coke’s language, see New Zealand Shipping Co. Ltd. v. Societe Pes Ateliers et Chantiers de France,(1919 A.C. 7/8).
The Principles of Law.
The principle of Lumley v. Gye, (1853 2 El. & Bl. 216), is that each of the parties to a contract has a “right to the performance” of it: and it is wrong for another to procure one of the parties to break it or not to perform it. That principle was extended a step further by Lord MacNaghten in Quinn v. Leathern, (1901 AC 495), so that each of the parties has a right to have his “contractual relations” with the other duly observed. “It is” he said, “a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference”. That statement was adopted and applied by a strong Board of the Privy Council in Jasperson v. Dominion Tobacco Company, (1923 AC 709). It included Viscount Haldane and Lord Sumner. The time has come when the principle should be further extended to cover “deliberate and direct interference with the execution of a contract without that causing any breach”. That was a point left open by Lord Reid in Stratford v. Lindley,(1965 A.C. 324). But the common law would be seriously deficient if it did not condemn such interference. It is this very case. The principle can be subdivided into three elements:
First, there must be interference in the execution of a contract. The interference is not confined to the procurement of a breach of contract. It extends to a case where a third person prevents or hinders one party from performing his contract, even though it be not a breach.
Second, the interference must be deliberate. The person must know of the contract or, at any rate, turn a blind eye to it and intend to interfere with it, see Emerald Construction Co. v. Lothian, (1966, 1 W.L.R. 691).
Third, the interference must be direct. Indirect interference will not do. Thus, a man who “corners the market” in a commodity may well know that it may prevent others from performing their contracts, but he is not liable to an action for so doing. A trade union official, who calls a strike on proper notice, may well know that it will prevent the employers from performing their contracts to deliver goods, but he is not liable in damages for calling it. Indirect interference is only unlawful if unlawful means are used. I went too far when I said in Daily Mirror v. Gardner, (1968, 2 W.L.R. 1239), that there was no difference between direct and indirect interference.
On reading once again Thomson v. Deakin and Others,(1952 Ch 646), with more time, I find there is a difference. Lord Morris of Borth-y-Gest (at page 702) there draws the very distinction between “direct persuasion to breach of contract” which is unlawful in itself: and “the intentional bringing about of a breach by indirect methods involving wrong-doing”. This distinction must be maintained, else we should take away the right to strike altogether. Nearly every trade union official who calls a strike -even on due notice, as in Morgan v. Fry – knows that it may prevent the employers from performing their contracts. He may be taken even to intend it. Yet no one has supposed hitherto that it was unlawful: and we should not render it unlawful today. A trade union official is only in the wrong when he procures a contracting party directly to break his contract, or when he does it indirectly by unlawful means. On reconsideration of the Daily Mirror case, (1968 2 W.L.R. 1239), I think that the defendants there interfered directly by getting the retailers as their agents to approach the wholesalers.
I must say a word about unlawful means, because that brings in another principle. I have always understood that if one person deliberately interferes with the trade or business of another, and does so by unlawful means, that is, by an act which he is not at liberty to commit, then he is acting unlawfully, even though he does not procure or induce any actual breach of contract. If the means are unlawful, that is enough. Thus in Rookes v. Barnard,(1964 AC 1129)(as explained by Lord Reid in Stratford v. Lindley,(1965 A.C. 325)and Lord Upjohn at page 337) the defendants interfered with the employment of Rookes – and they did it by unlawful means, namely, by intimidation of his employers – and they were held to be acting unlawfully, even though the employers committed no breach of contract as they gave Rookes proper notice. And in Stratford v. Lindley,(1965 A, C. 269), the defendants interfered with the business of Stratford – and they did it by unlawful means, namely, by inducing the men to break their contracts of employment by refusing to handle the barges – and they were held to be acting unlawfully, even in regard to new business which was not the subject of contract. Lord Reid said (at page 324):
“The defendants’ action made it practically impossible for the appellants to do any new business with the barge hirers. It was not disputed that such interference is tortious if any unlawful means are employed”.
So also in the second point in Daily Mirror v. Gardner,(1968 2 W.L.R. 1239), the defendants interfered with the business of the “Daily Mirror”-and they did it by a collective boycott which was held to be unlawful under the Restrictive Trade Practices Act – and they were held to be acting unlawfully.
This point about unlawful means is of particular importance when a place is declared “black”. At common law it often involves the use of unlawful means. Take the Imperial Hotel. When it was declared “black”, it meant that the drivers of the tankers would not take oil to the hotel. The drivers would thus be induced to break their contracts of employment. That would be unlawful at common law. The only case in which “blacking” of such a kind is lawful is when it is done “in contemplation or furtherance of a trade dispute”. It is then protected by Section 3 of the Trade Disputes Act, 1906, see Thomson v. Deakin and Others,(1952 Ch. at pages 662 and 663 by Lord Upjohn) for, in that event, the act of inducing a breach of a contract of employment is a lawful act which is not actionable at the suit of anyone, sec Stratford v. Lindley,(1965 A.C. 303) by Lord Justice Salmon, and Morgan v. Fry,(1968, 3 W.L.R. 516) by myself. Seeing that the act is lawful, it must, I think, be lawful for the trade union officials to tell the employers and their customers about it. And this is so, even though it does mean that those people are compelled to break their commercial contracts. The interference with the commercial contracts is only indirect, and not direct. See what Lord Upjohn said in Stratford v. Lindley,(1965 A.C. at page 337). So, if there had been a “trade dispute” in this case, I think it would have protected the trade union officials when they informed Esso that the dispute with Imperial was an “official dispute” and said that the hotel was “blacked”. It would be like the “blacking” of the barges in Stratford v. Lindley, when we held, in the Court of Appeal, that, on the basis that there was a “trade dispute”, the defendants were not liable.
APPLYING THE PRINCIPLE IN THIS CASE
Seeing that there was no “trade dispute” this case falls to be determined by the common law. It seems to me that the trade union officials deliberately and directly interfered with the execution of the contract between the Imperial Hotel and Esso. They must have known that there was a contract between the Imperial Hotel and Esso Why otherwise did they on that very first Saturday afternoon telephone the bulk plant at Plymouth? They may not have known with exactitude all the terms of the contract. But no more did the defendants in Stratford v.Lindley,(1965 A.C. 332). They must also have intended to prevent the performance of the contract. That is plain from the telephone message: “Any supplies of fuel-oil will be stopped being made”. And the interference was direct. It was as direct as could be – a telephone message from the trade union official to the bulk plant.
Take next the supplies from Alternative Fuels. The first wagon got through. As it happened, there was no need for the Imperial Hotel to order any further supplies from Alternative Fuels. But suppose they had given a further order, it is quite plain that the trade union officials would have done their best to prevent it being delivered. Their telephone messages show that they intended to prevent supplies being made by all means in their power. By threatening “repercussions” they interfered unlawfully with the performance of any future order which Imperial Hotel might give to Alternative Fuels. And the interference was direct again. It was direct to Alternative Fuels. Such interference was sufficient to warrant the grant of an injunction quia timet.
IS THE TRADE UNION LIABLE?
I do not think an injunction should have been granted against the trade union. Section 4 of the Trade Union Act, 1906, says that:
“An action against a Trade Union……….in respect of a tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained in any Court”.
That Section clearly prohibits an action for damages. But does it prevent an action for an injunction? The words are a “tortious act alleged to have been committed”. Take a continuing tort, such as nuisance: or a repeated tort, such as unlawful picketing. It would be strange if a trade union could not be sued for the wrong done before the writ, but could be sued for the selfsame wrong to be done in the future. I am sure that the legislature never so intended. The Section was intended to over-rule the Taff Vale case,(1901,A.C. 426): and that was an action for “an injunction and such further relief as the Court shall direct”.
After reconsideration, I would still follow the views of Lord Justice Scrutton and Lord Justice Atkin, in Ware and De Freville Ltd. v. Motor Trade Association, (1921 3 K.B.), and hold that the section prohibits not only an action for damages for a tort, but also an action for an injunction, against a Trade Union.
So far as the other defendants are concerned, I have been in some doubt whether there is sufficient evidence to include Mr. Cousins. But I think it plain that the London Headquarters were consulted on developments at Torquay, and took an active part in the action taken against Alternative Fuels. The affidavit of Mr. Cousins is not so explicit as to exempt him from cognizance of what was happening. In my opinion, the injunction should stand as the Judge ordered, save that the trade union should be struck out.
CONCLUSION
Other wrongs were canvassed, such as conspiracy and intimidation, but I do not think it necessary to go into these. I put my decision on the simple ground that there is evidence that the defendants intended to interfere directly and deliberately with the execution of the existing contracts by Esso and future contracts by Alternative Fuels so as to prevent those companies supplying oil to the Imperial Hotel. This intention was sufficiently manifest to warrant the granting of an injunction. The form of the injunction was criticised by Mr. Pain, but it follows the form suggested by Lord Upjohn in Stratford v.Lindley, and I chink it is in order.
I find myself in substantial agreement with the Judge and would dismiss this appeal.
LORD JUSTICE RUSSELL: At the outset I will mention the point of construction on Section 4 of the Trade Disputes Act, 1906, whether it forbids actions for an injunction against a trade union in respect of tort, or only actions for damages. The question is debated in Citrine’s Trade Union Law 3rd Edition at pages 593 to 595, where the relevant cases are A mentioned: and the judgments of my Brethren cover the ground, so that I can be brief on that point. It seems to me that if the legislators had intended the section to be restricted to an action for damages the section would be virtually bound to have opened with the words: “An action for damages against a trade union……”, The section was enacted in connection with the Taff Vale case where the claim was for an injunction, any other claim being hidden in the words “further or other relief”. If, as is generally thought, the purpose of the legislature was to protect trade union funds, a power to grant an injunction whether mandatory or prohibitory would carry with it a power to sequestrate those very funds on breach. On that same point the section was enacted in a legal setting in which the Courts have power to award damages in addition to or in lieu of an injunction. In nearly every case of an action for an injunction against the commission of a tort, the action is for an injunction against repetition or continuance of a tort already committed or in the course of being committed: in that sense such an action is “an action…..in respect of a tortious act alleged to have been committed”: an obvious example is the erection of a wall by a trade union on its premises in infringement of a neighbour’s rights of light and an action for a mandatory injunction: the action would be in terms based upon an allegation that the defendant had tortiously erected the wall, and surely would be correctly described as an action in respect of a tortious act alleged to have been committed. I do not myself therefore see any difficulty in applying the language of the Section to actions in which the relief claimed is an injunction, with the one exception of a case in which the action is purely quia timet. But if the point were argued on that very narrow front – which I do not understand it to be – I would swallow any difficulty of language rather than leave uncovered by the section, for no conceivable reason, such a small corner of the field, bearing in mind the points of argument still available in favour of including quia timet cases in the Section. For these reasons an action for an injunction against a trade union in respect of torts by or on behalf of a trade union is in my judgment forbidden by the Section.
I turn now to the main aspects of the case. Is it a case in which an interlocutoy injunction should be ordered pending trial on the ground that the defendants or some of them have so conducted themselves as to indicate that they are likely unless restrained to take steps against the plaintiff company damaging to it and which in law those defendants are not entitled to take?
Douglas & Ors v. Hello! Ltd & Ors
[2007] UKHL 21 [2008] AC 1
HL LORD HOFFMANN
“My Lords,
The three appeals
These three appeals are principally concerned with claims in tort for economic loss caused by intentional acts
…….
The law was analysed in great depth by the Court of Appeal in DC Thomson & Co Ltd v Deakin [1952] Ch 646, in which argument by eminent counsel extended over nine days. The judgment of Jenkins LJ in particular has directed the course of the law ever since. He fully adopted the theory, originating with Lord Lindley in Quinn v Leathem and supported (possibly unintentionally) by Lord Macnaghten’s dictum in the same case, that the principle of Lumley v Gye extended to all interference with contractual relations by unlawful means. “Direct persuasion or procurement or inducement applied by the third party to the contract breaker” was “regarded as a wrongful act in itself” and constituted the “primary form” of the tort: see p 694. But other forms of interference with contracts by unlawful means, such as GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 TLR 376 (“a striking example”) came within the same tort. From the dicta of Lord Macnaghten and Lord Lindley in Quinn v Leathem Jenkins LJ (at p 693) deduced two propositions:
“First…there may…be an actionable interference with contractual rights where other means of interference than persuasion or procurement or inducement, in the sense of influence of one kind or another brought to bear on the mind of the contract breaker to cause him to break his contract, are used by the interferer; but, secondly, that (apart from conspiracy to injure, which, as I have said, is not in question so far as this motion is concerned) acts of a third party lawful in themselves do not constitute an actionable interference with contractual rights merely because they bring about a breach of contract, even if they were done with the object and intention of bringing about such breach.”
The unified theory thus treated procuring breach of contract, the old Lumley v Gye tort, as one species of a more general tort of actionable interference with contractual rights.
My Lords, I think that one reason why the Court of Appeal in DC Thomson & Co Ltd v Deakin [1952] Ch 646 adopted the unified theory was that there was an inadequate appreciation at that time of the scope, possibly even the existence, of the tort of causing loss by unlawful means. The reasoning of the Court of Appeal proceeded on the footing that no such tort existed. On that assumption, there was clearly a compelling case for creating a cause of action to cover cases in which the defendant used unlawful means to cause damage by interfering with the performance of a contract without any voluntary or even compelled participation on the part of the contracting party. As Evershed MR put it (at pp 677-678):
“It was suggested in the course of argument by Sir Frank Soskice and by Mr. Lindner, that the tort must still be properly confined to such direct intervention, that is, to cases where the intervener or persuader uses by personal intervention persuasion on the mind of one of the parties to the contract so as to procure that party to break it. I am unable to agree that any such limitation is logical, rational or part of our law. In such cases where the intervener (if I may call him such) does so directly act upon the mind of a party to the contract as to cause him to break it, the result is, for practical purposes, as though in substance he, the intervener, is breaking the contract, although he in not a party to it…At any rate, it is clear that, when there is such a direct intervention by the intervener, the intervention itself is thereby considered wrongful. I cannot think that the result is any different if the intervener, instead of so acting upon the mind of the contracting party himself, by some other act, tortious in itself, prevents the contracting party from performing the bargain. A simple case is where the intervener, for example, physically detains the contracting party so that the contracting party is rendered unable by the detention to perform the contract.”
The Court of Appeal thought that the only way to give a remedy in such cases was by an extension of Lumley v Gye along the lines proposed by Lord Lindley. Today one can see that an alternative analysis was available: that the person who physically detained the contracting party would indeed incur liability, but not accessory liability under the principle in Lumley v Gye. It would be primary liability for intentionally causing loss by unlawfully interfering with the liberty of a third party, under the principle derived from Garret v Taylor and Tarleton v M’Gawley.
My Lords, I do not wish to exaggerate the difficulties which have arisen from the adoption of the unified theory. To some extent it is a matter of nomenclature. If, as Jenkins LJ made clear, liability outside the primary form of the tort requires the use of unlawful means, does it matter whether the tort is classified as causing loss by unlawful means or an extension of Lumley v Gye? In most cases, the question of taxonomy will make no difference. It is not easy to point to cases which were wrongly decided because the court had adopted the unified theory rather than the two-tort analysis of Allen v Flood.
Is there something to be said in principle for a unified theory? Tony Weir, in the Clarendon Law Lectures to which I have referred, makes a bravura case for one. Not, it is true, the version adopted in DC Thomson v Deakin, which he thinks paid too much attention to the contractual nature of the claimant’s rights. Weir would prefer Lumley v Gye to be swallowed up by the tort of intentionally causing loss by unlawful means, treating the “seduction” of the contracting party as a species of unlawful means and not distinguishing between interference with contractual rights and damage to economic expectations. The example of what Lord Atkin achieved for negligence in Donogue v Stevenson [1932] AC 562 always beckons (see Weir at p. 25). But this too is a form of seduction which may lure writers onto the rocks.
In my opinion the principle of accessory liability for breach of contract, the first of Lord Watson’s principles of liability for the act of another in Allen v Flood, cannot be subsumed in the tort of causing loss by unlawful means (the second of Lord Watson’s principles in Allen v Flood) simply by classifying “seduction” as unlawful means. That only adds a pejorative description to a circular argument: see paragraph 18 above. To induce a breach of contract is unlawful means when the breach is used to cause loss to a third party, as in Stratford v Lindley [1965] AC 269, but it makes no sense to say that the breach of contract itself has been caused by unlawful means. Philip Sales and Daniel Stilitz, in their illuminating article “Intentional Infliction of Harm by Unlawful Means” (1999) 115 LQR 411-437, make it clear at p. 433 that Lumley v Gye was “founded on a different principle of liability than the intentional harm tort”. It treats contractual rights as a species of property which deserve special protection, not only by giving a right of action against the party who breaks his contract but by imposing secondary liability on a person who procures him to do so. In this respect it is quite distinct from the unlawful means principle, which is concerned only with intention and wrongfulness and is indifferent as to the nature of the interest which is damaged. I therefore do not think that the two causes of action can be brought within a unified theory and agree with Professor Peter Cane (Mens Rea in Tort Law (2000) 20 Oxford JLS 533, 552, that —
“The search for ‘general principles of liability’ based on types of conduct is at best a waste of time and at worst a potential source of serious confusion; and the broader the principle, the more is this so. Tort law is a complex interaction between protected interests, sanctioned conduct, and sanctions; and although there are what might be called ‘principles of tort liability’, by and large, they are not very ‘general’. More importantly, they cannot be stated solely in terms of the sorts of conduct which will attract tort liability. Each principle must refer, as well, to some interest protected by tort law and some sanction provided by tort law.”
That said, I would not expect your Lordships to reject the unified theory adopted in DC Thomson & Co Ltd v Deakin [1952] Ch 646 unless it had serious practical disadvantages. After all, in Merkur Island Shipping Corpn v Laughton [1983] 2 AC 570, 607, Lord Diplock said that for 30 years the judgment of Jenkins LJ had been regarded as authoritative and that no benefit was gained by “raking over once again the previous decisions”, as I must confess to have done. But I do think that it has been a source of confusion in more than one respect and that it would therefore be better to abandon it and return to the two torts identified by Lord Watson in Allen v Flood [1898] AC 1. To these problems created by the unified theory I now turn.
Direct and indirect interference
The distinction between the original Lumley v Gye tort and its extension in DC Thomson & Co Ltd v Deakin has been described in later cases as a distinction between “direct” and “indirect” interference. The latter species requires the use of independently unlawful means while the former requires no more than inducement or persuasion. But the use of these terms seems to me to distract attention from the true questions which have to be asked in each case. For example, in Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762 the Federation of Retail Newsagents resolved to boycott the Daily Mirror for a week to put pressure on the publishers to allow its members higher margins. The Federation advised their members to stop buying the paper from wholesalers. The publishers claimed an injunction on the ground that the Federation was procuring a breach of the wholesalers’ running contracts with the publishers to take a given number of copies each day. Counsel for the Federation (see the judgment of Lord Denning MR at p 781) said that it was a case of indirect inducement because the Federation “did not exert directly any pressure or inducement on the wholesalers: but at most they only did it indirectly by recommending the retailers to give stop orders.” Lord Denning said that it did not matter whether one procured a breach of contract “by direct approach to the one who breaks his contract or by indirect influence through others”. There seems to me much sense in this observation, although whether it leads to the conclusion that the defendant should be liable in both cases or neither is another matter.
In Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106, 138-139, Lord Denning changed his mind. He said that there was a distinction between “direct persuasion”, which was “unlawful in itself”, and bringing about a breach by indirect methods, which had to involve independently unlawful means. On reconsideration of the Daily Mirror case he thought the Federation had “interfered directly by getting the retailers as their agents to approach the wholesalers.”
This treats the distinction as turning simply upon whether there was communication, directly or through an agent, between the defendant and the contract-breaker. But, like Lord Denning in the Daily Mirror case, I cannot see why this should make a difference. If that is what the distinction between “direct” and “indirect” means, it conceals the real question which has to be asked in relation to Lumley v Gye: did the defendant’s acts of encouragement, threat, persuasion and so forth have a sufficient causal connection with the breach by the contracting party to attract accessory liability? The court in Lumley v Gye made it clear that the principle upon which a person is liable for the act of another in breaking his contract is the same as that on which he is liable for the act of another in committing a tort. It follows, as I have said, that the relevant principles are to be found in cases such as CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 and Unilever v Chefaro [1994] FSR 135. By the test laid down in these cases, the Federation could not have incurred any liability. They were not encouraging or assisting the wholesalers in breaking their contracts. They were simply advising their members to exercise their own freedom to buy whatever newspapers they liked. The wholesalers had no right to the co-operation of the retailers in enabling them to perform their contracts. Liability could not depend upon the accident of whether the Federation had communicated (directly or through an intermediary) with the wholesalers. The distinction between direct and indirect interference was therefore irrelevant and misleading.
The distinction between direct and indirect interference has the further disadvantage that it suggests that the “primary form” of the Lumley v Gye tort and the extension of the tort are mutually exclusive. Interference cannot be both direct and indirect. But, as I have said earlier, there is no reason why the same act should not create both accessory liability for procuring a breach of contract and primary liability for causing loss by unlawful means.
In my opinion, therefore, the distinction between direct and indirect interference is unsatisfactory and it is time for the unnatural union between the Lumley v Gye tort and the tort of causing loss by unlawful means to be dissolved. They should be restored to the independence which they enjoyed at the time of Allen v Flood. I shall therefore proceed to discuss separately the essential elements of each.
Inducing breach of contract: elements of the Lumley v Gye tort.
To be liable for inducing breach of contract, you must know that you are inducing a breach of contract. It is not enough that you know that you are procuring an act which, as a matter of law or construction of the contract, is a breach. You must actually realize that it will have this effect. Nor does it matter that you ought reasonably to have done so. This proposition is most strikingly illustrated by the decision of this House in British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479, in which the plaintiff’s former employee offered the defendant information about one of the plaintiff’s secret processes which he, as an employee, had invented. The defendant knew that the employee had a contractual obligation not to reveal trade secrets but held the eccentric opinion that if the process was patentable, it would be the exclusive property of the employee. He took the information in the honest belief that the employee would not be in breach of contract. In the Court of Appeal McKinnon LJ observed tartly ([1938] 4 All ER 504, 513) that in accepting this evidence the judge had “vindicated [his] honesty…at the expense of his intelligence” but he and the House of Lords agreed that he could not be held liable for inducing a breach of contract.
The question of what counts as knowledge for the purposes of liability for inducing a breach of contract has also been the subject of a consistent line of decisions. In Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691, union officials threatened a building contractor with a strike unless he terminated a sub-contract for the supply of labour. The defendants obviously knew that there was a contract – they wanted it terminated – but the court found that they did not know its terms and, in particular, how soon it could be terminated. Lord Denning MR said (at pp; 700-701)
“Even if they did not know the actual terms of the contract, but had the means of knowledge – which they deliberately disregarded – that would be enough. Like the man who turns a blind eye. So here, if the officers deliberately sought to get this contract terminated, heedless of its terms, regardless whether it was terminated by breach or not, they would do wrong. For it is unlawful for a third person to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not.”
This statement of the law has since been followed in many cases and, so far as I am aware, has not given rise to any difficulty. It is in accordance with the general principle of law that a conscious decision not to inquire into the existence of a fact is in many cases treated as equivalent to knowledge of that fact (see Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd [2003] 1 AC 469). It is not the same as negligence or even gross negligence: in British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479, for example, Mr Ferguson did not deliberately abstain from inquiry into whether disclosure of the secret process would be a breach of contract. He negligently made the wrong inquiry, but that is an altogether different state of mind.
The next question is what counts as an intention to procure a breach of contract. It is necessary for this purpose to distinguish between ends, means and consequences. If someone knowingly causes a breach of contract, it does not normally matter that it is the means by which he intends to achieve some further end or even that he would rather have been able to achieve that end without causing a breach. Mr Gye would very likely have preferred to be able to obtain Miss Wagner’s services without her having to break her contract. But that did not matter. Again, people seldom knowingly cause loss by unlawful means out of simple disinterested malice. It is usually to achieve the further end of securing an economic advantage to themselves. As I said earlier, the Dunlop employees who took off the tyres in GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 TLR 376 intended to advance the interests of the Dunlop company.
On the other hand, if the breach of contract is neither an end in itself nor a means to an end, but merely a foreseeable consequence, then in my opinion it cannot for this purpose be said to have been intended. That, I think, is what judges and writers mean when they say that the claimant must have been “targeted” or “aimed at”. In my opinion the majority of the Court of Appeal was wrong to have allowed the action in Millar v Bassey [1994] EMLR 44 to proceed. Miss Bassey had broken her contract to perform for the recording company and it was a foreseeable consequence that the recording company would have to break its contracts with the accompanying musicians, but those breaches of contract were neither an end desired by Miss Bassey nor a means of achieving that end.
Finally, what counts as a breach of contract? In Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106, 138 Lord Denning said that there could be liability for preventing or hindering performance of the contract on the same principle as liability for procuring a breach. This dictum was approved by Lord Diplock in Merkur Island Shipping Corporation [1983] 2 AC 570, 607-608. One could therefore have liability for interference with contractual relations even though the contracting party committed no breach. But these remarks were made in the context of the unified theory which treated procuring a breach as part of the same tort as causing loss by unlawful means. If the torts are to be separated, then I think that one cannot be liable for inducing a breach unless there has been a breach. No secondary liability without primary liability. Cases in which interference with contractual relations have been treated as coming within the Lumley v Gye tort (like Dimbleby & Sons v National Union of Journalists [1984] 1 WLR 67 and 427) are really cases of causing loss by unlawful means.
Causing loss by unlawful means: elements of the tort
The most important question concerning this tort is what should count as unlawful means. It will be recalled that in Allen v Flood [1898] AC 1, 96, Lord Watson described the tort thus—
“when the act induced is within the right of the immediate actor, and is therefore not wrongful in so far as he is concerned, it may yet be to the detriment of a third party; and in that case…the inducer may be held liable if he can be shewn to have procured his object by the use of illegal means directed against that third party.
The rationale of the tort was described by Lord Lindley in Quinn v Leathem [1901] AC 495, 534-535:
“a person’s liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact – in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified – the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done.”
The essence of the tort therefore appears to be (a) a wrongful interference with the actions of a third party in which the claimant has an economic interest and (b) an intention thereby to cause loss to the claimant. The old cases of interference with potential customers by threats of unlawful acts clearly fell within this description. So, for the reasons I have given, did GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 TLR 376. Recent cases in which the tort has been discussed have also concerned wrongful threats or actions against employers with the intention of causing loss to an employee (as in Rookes v Barnard [1964] AC 1129) or another employer (as in J T Stratford & Son Ltd v Lindley [1965] AC 269). In the former case, the defendants conspired to threaten the employer that unless the employee was dismissed, there would be an unlawful strike. In the latter, the union committed the Lumley v Gye tort of inducing breaches of the contracts of the employees of barge hirers to prevent them from hiring the plaintiff’s barges.
In Stratford, at pp 329-330, Viscount Radcliffe expressed some disquiet about using the question of whether the actual or threatened strike was or would have been in breach of contract as the touchstone of whether the union or its officers were liable for causing loss by secondary action. These remarks were made in the context of industrial relations, where the use of secondary action has since been comprehensively regulated by statute. In principle, the cases establish that intentionally causing someone loss by interfering with the liberty of action of a third party in breach of a contract with him is unlawful.
In my opinion, and subject to one qualification, acts against a third party count as unlawful means only if they are actionable by that third party. The qualification is that they will also be unlawful means if the only reason why they are not actionable is because the third party has suffered no loss. In the case of intimidation, for example, the threat will usually give rise to no cause of action by the third party because he will have suffered no loss. If he submits to the threat, then, as the defendant intended, the claimant will have suffered loss instead. It is nevertheless unlawful means. But the threat must be to do something which would have been actionable if the third party had suffered loss. Likewise, in National Phonograph Co Ltd v Edison-Bell Consolidated Phonograph Co Ltd [1908] 1 Ch 335 the defendant intentionally caused loss to the plaintiff by fraudulently inducing a third party to act to the plaintiff’s detriment. The fraud was unlawful means because it would have been actionable if the third party had suffered any loss, even though in the event it was the plaintiff who suffered. In this respect, procuring the actions of a third party by fraud (dolus) is obviously very similar to procuring them by intimidation (metus).
Lonrho plc v Fayed [1990] 2 QB 479 was arguably within the same principle as the National Phonograph Co case. The plaintiff said that the defendant had intentionally caused it loss by making fraudulent statements to the directors of the company which owned Harrods, and to the Secretary of State for Trade and Industry, which induced the directors to accept his bid for Harrods and the Secretary of State not to refer the bid to the Monopolies Commission. The defendant was thereby able to gain control of Harrods to the detriment of the plaintiff, who wanted to buy it instead. In the Court of Appeal, Dillon LJ (at p 489) referred to the National Phonograph case as authority for rejecting an argument that the means used to cause loss to the plaintiff could not be unlawful because neither the directors nor the Secretary of State had suffered any loss. That seems to me correct. The allegations were of fraudulent representations made to third parties, which would have been actionable by them if they had suffered loss, but which were intended to induce the third parties to act in a way which caused loss to the plaintiff. The Court of Appeal therefore refused to strike out the claim as unarguable and their decision was upheld by the House of Lords: see [1992] 1 AC 448.
Unlawful means therefore consists of acts intended to cause loss to the claimant by interfering with the freedom of a third party in a way which is unlawful as against that third party and which is intended to cause loss to the claimant. It does not in my opinion include acts which may be unlawful against a third party but which do not affect his freedom to deal with the claimant.
Thus in RCA Corporation v Pollard [1983] Ch 135 the plaintiff had the exclusive right to exploit records made by Elvis Presley. The defendant was selling bootleg records made at Elvis Presley concerts without his consent. This was an infringement of section 1 of the Dramatic and Musical Performers’ Protection Act 1958, which made bootlegging a criminal offence and, being enacted for the protection of performers, would have given Elvis Presley a cause of action: see Lord Diplock in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173, 187). The Court of Appeal held that the infringement of the Act did not give RCA a cause of action. The defendant was not interfering with the liberty of the Presley estate to perform the exclusive recording contract which, as Oliver LJ noted (at p 149) was “no more than an undertaking that he will not give consent to a recording by anyone else.” Nor did it prevent the Presley estate from doing any other act affecting the plaintiffs. The bootlegger’s conduct, said Oliver LJ (at p 153):
“merely potentially reduces the profits which [the plaintiffs] make as the result of the performance by Mr Presley’s executors of their contractual obligations.”
It is true that there was no allegation that the defendant intended to cause loss to the plaintiff, although, given that the defendant was selling records in competition with the plaintiff, such an allegation would have been easy to make. But I do not think that it would have made any difference. The wrongful act did not interfere with the estate’s liberty of action in relation to the plaintiff.
Likewise in Isaac Oren v Red Box Toy Factory Ltd [1999] FSR 785, one of the claimants was the exclusive licensee of a registered design. The defendant sold articles alleged to infringe the design right. The registered owner had a statutory right to sue for infringement. But the question was whether the licensee could sue. In the case of some intellectual property rights, an exclusive licensee has a statutory right of action: see, for example, section 67(1) of the Patents Act 1977. But the exclusive licensee of a registered design has no such right. So the licensee claimed that the defendant was intentionally causing him loss by the unlawful means of infringing the rights of the registered owner. Jacob J rejected the claim on the principle of RCA v Pollard. The defendant was doing nothing which affected the relations between the owner and licensee. The exclusive licence meant that the licensee was entitled to exploit the design and that the owner contracted not to authorise anyone else to do so. As Jacob J said, at p 798, para 33:
“It is true that the exploitation of the licence may not have been so successful commercially by reason of the infringement, but the contractual relations and their performance remain completely unaffected.”
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 was an attempt to found a cause of action simply on the fact that the conduct alleged to have caused loss was contrary to law. The defendant’s conduct was alleged to be a criminal offence but not actionable by anyone. In this respect it was unlike RCA v Pollard and Isaac Oren v Red Box Toy Factory Ltd, in which it could at least be said that the conduct was a wrong against someone in contractual relations with the claimant. Lonrho owned and operated a refinery in Rhodesia supplied by a pipeline from the port of Beira. When Rhodesia declared independence in 1965, the UK imposed sanctions which made it unlawful for anyone to supply the country with oil. As a result, the refinery and pipeline stood idle until the independence regime came to an end. Lonrho alleged that Shell had prolonged the regime by unlawfully supplying Rhodesia with oil through other routes and thereby caused it loss. The House of Lords decided that the alleged illegality gave rise to no cause of action on which Lonrho could rely. Again, there was no allegation that Shell had intended to cause loss to Lonrho, but I cannot see how that would have made any difference. Shell did not interfere with any third party’s dealings with Lonrho and even if it had done so, its acts were not wrongful in the sense of being actionable by such third party.
Your Lordships were not referred to any authority in which the tort of causing loss by unlawful means has been extended beyond the description given by Lord Watson in Allen v Flood [1898] AC 1, 96 and Lord Lindley in Quinn v Leathem [1901] AC 495, 535. Nor do I think it should be. The common law has traditionally been reluctant to become involved in devising rules of fair competition, as is vividly illustrated by Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25. It has largely left such rules to be laid down by Parliament. In my opinion the courts should be similarly cautious in extending a tort which was designed only to enforce basic standards of civilised behaviour in economic competition, between traders or between employers and labour. Otherwise there is a danger that it will provide a cause of action based on acts which are wrongful only in the irrelevant sense that a third party has a right to complain if he chooses to do so. As Jacob J said in Isaac Oren v Red Box Toy Factory Ltd [1999] FSR 785, 800:
“the right to sue under intellectual property rights created and governed by statute [is] inherently governed by the statute concerned. Parliament in various intellectual property statutes has, in some cases, created a right to sue and in others not. In the case of the 1988 Act it expressly re-conferred the right on a copyright exclusive licensee, conferred the right on an exclusive licensee under the new form of property called an unregistered design right (see section 234) but did not create an independent right to sue on a registered design exclusive licensee. It is not for the courts to invent that which Parliament did not create.”
Likewise, as it seems to me, in a case like Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173, it is not for the courts to create a cause of action out of a regulatory or criminal statute which Parliament did not intend to be actionable in private law.
It is not, I think, sufficient to say that there must be a causal connection between the wrongful nature of the conduct and the loss which has been caused. If a trader secures a competitive advantage over another trader by marketing a product which infringes someone else’s patent, there is a causal relationship between the wrongful act and the loss which the rival has suffered. But there is surely no doubt that such conduct is actionable only by the patentee.
Sales and Stilitz, “Intentional Infliction of Harm by Unlawful Means” (1999) 115 LQR 411-437, take a very wide view of what can count as unlawful means, arguing that any action which involves a civil wrong against another person or breach of a criminal statute (“any act that the defendant is not at liberty to commit”) should be sufficient. In their opinion, a requirement of a specific intention to “target” the claimant should keep the tort within reasonable bounds. Tony Weir in the Clarendon Law Lectures “Economic Torts” is of much the same opinion. But other writers consider that it would be arbitrary and illogical to make liability depend upon whether the defendant has done something which is wrongful for reasons which have nothing to do with the damage inflicted on the claimant: see Roderick Bagshaw’s review of Weir in (1998) 18 Oxford JLS 729-739 at p. 732. I agree.
I do not think that the width of the concept of “unlawful means” can be counteracted by insisting upon a highly specific intention, which “targets” the plaintiff. That, as it seems to me, places too much of a strain on the concept of intention. In cases in which there is obviously no reason why a claimant should be entitled to rely on the infringement of a third party’s rights, courts are driven to refusing relief on the basis of an artificially narrow meaning of intention which causes trouble in later cases in which the defendant really has used unlawful means. This, as I shall in due course explain, is what may have happened in the Hello! case.
I would only add one footnote to this discussion of unlawful means. In defining the tort of causing loss by unlawful means as a tort which requires interference with the actions of a third party in relation to the plaintiff, I do not intend to say anything about the question of whether a claimant who has been compelled by unlawful intimidation to act to his own detriment, can sue for his loss. Such a case of “two party intimidation” raises altogether different issues.
Finally, there is the question of intention. In the Lumley v Gye tort, there must be an intention to procure a breach of contract. In the unlawful means tort, there must be an intention to cause loss. The ends which must have been intended are different. South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 shows that one may intend to procure a breach of contract without intending to cause loss. Likewise, one may intend to cause loss without intending to procure a breach of contract. But the concept of intention is in both cases the same. In both cases it is necessary to distinguish between ends, means and consequences. One intends to cause loss even though it is the means by which one achieved the end of enriching oneself. On the other hand, one is not liable for loss which is neither a desired end nor a means of attaining it but merely a foreseeable consequence of one’s actions.
The master of the Othello in Tarleton v M’Gawley may have had nothing against the other trader. If he had gone off to make his fortune in other waters, he would have wished him well. He simply wanted a monopoly of the local trade for himself. But he nevertheless intended to cause him loss. This, I think, is all that Woolf LJ was intending to say in a passage in Lonrho plc v Fayed [1990] 2 QB 479, 494 which has proved controversial:
“Albeit that he may have no desire to bring about that consequence in order to achieve what he regards as his ultimate ends, from the point of view of the plaintiff, whatever the motive of the defendant, the damage which he suffers will be the same.”
On the other hand, I think that Henry J was right in Barretts & Baird (Wholesale) Ltd v Institution of Professional Civil Servants [1987] IRLR 3 when he decided a strike by civil servants in the Ministry of Agriculture in support of a pay claim was not intended to cause damage to an abattoir which was unable to obtain the certificates necessary for exporting meat and claiming subsidies. The damage to the abattoir was neither the purpose of the strike nor the means of achieving that purpose, which was to put pressure on the government.
Back to the three appeals
My Lords, after this somewhat lengthy clearing of the ground I can come to the three appeals before the House. In arriving at these statements of general principle, I have derived great assistance from many who have written on the subject in addition to those whom I have specifically cited and in particular, if what I have said does anything to clarify what has been described as an extremely obscure branch of the law, much is owing to Hazel Carty’s book An Analysis of the Economic Torts (2001).
Mainstream Properties Ltd v Young
I shall start with the Mainstream case, because it is the easiest and provides a useful stepping stone to the other two. Mainstream was a development company owned and controlled by Mr Moriarty. He engaged Mr Young as a working director and Mr Broad as a manager and left the business to them. In 2000 they diverted the purchase of development land at Findern in Derbyshire to a joint venture consisting of themselves and the respondent Mr De Winter, who financed the project. Judge Norris QC, in a detailed and lucid judgment, found that this was a breach of their contractual and fiduciary duties to obtain the property for Mainstream.
There is no challenge to these findings but the question in this appeal is whether Mr De Winter is liable in tort for inducing Mr Young and Mr Broad to break their contracts. The cause of action is therefore the original Lumley v Gye tort, based on accessory liability. The judge found that Mr Young and Mr Broad could not have acquired the property without Mr De Winter’s financial assistance. His participation was therefore causative. He also knew that they were employed by Mainstream and that there was an obvious potential conflict between their duties to Mainstream and their participation in the joint venture. But the judge found that Mr De Winter was a cautious man who had raised the question of conflict of interest with Mr Young and Mr Broad and had received an assurance that there was no conflict because Mainstream had been offered the site but refused it. This was untrue but Mr Winter genuinely believed it. He had been given a similar (and more truthful) assurance concerning another project which Mr Young and Mr Broad had brought to him in the previous year and that, said the judge, “was now proceeding smoothly without objection”.
On these findings of fact the judge found that Mr Winter did not intend to procure a breach of the contracts of employment or otherwise interfere with their performance. The claim against him was therefore dismissed. This finding was upheld by the Court of Appeal (Sedley and Arden LJJ and Aikens J).
In my opinion this case comes squarely within British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479. On the finding of the judge, Mr De Winter honestly believed that assisting Mr Young and Mr Broad with the joint venture would not involve them in the commission of breaches of contract. Nor can Mr De Winter to be said to have been indifferent to whether there was a breach of contract or not, as in Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691, or made a conscious decision not to inquire in case he discovered a disagreeable truth. He therefore did not intend to cause a breach of contract and the conditions for accessory liability under the Lumley v Gye tort are not satisfied. Nor is there any question of his having caused loss by unlawful means. He neither intended to cause loss to Mainstream nor used any unlawful means.
Your Lordships were referred by Mr Randall QC, who appeared for Mainstream, to a number of authorities. But they concerned different questions and none of them cast any doubt upon the proposition that one cannot be liable for inducing a breach of contract unless one intended to cause a breach. For example, in Smithies v National Association of Operative Plasterers [1909] 1 KB 310 the union undoubtedly intended to cause a breach of the workmen’s contracts of service. But they claimed to be entitled to do so because the employer had not adhered to a collective agreement. The Court of Appeal rejected this defence but the case has nothing to do with the requirements of knowledge and intention. In Greig v Insole [1978] 1 WLR 302 the International Cricket Conference knew that the cricketers were contracted to play for Mr Kerry Packer’s company but put pressure upon them to withdraw, indifferent as to whether this would cause breaches of contract or not. As Slade J observed, the case fell within the principle of Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691. This case clearly does not. The other cases cited by Mr Randall were similarly concerned with indifference, conscious decision not to inquire or different torts.
Finally, Mr Randall said that even if the judge’s findings exonerated Mr De Winter from the charge of inducing a breach of the obligation of good faith which required Mr Young and Mr Broad to make the Findern property available to Mainstream, it did not provide any answer to a claim that he had induced a breach of their obligation to give their full time and attention to Mainstream’s business. Mr De Winter did not say he had inquired into whether they had asked Mr Moriarty for permission to participate in the joint venture; the evidence was that they had not asked and that if they had, permission would not have been given.
This is a point which appeared for the first time in supplemental submissions to the Court of Appeal. The Court of Appeal did not deal with it. There had been no suggestion at the trial that Mainstream was making a separate claim for loss of the services of Mr Young and Mr Broad while they were working for the joint venture. Nothing was put to Mr De Winter about whether he thought they were free to do so. No attempt was made to assess what might have been the damage flowing from such a breach. In my opinion it is not open to Mainstream now to reformulate its case in this way. I would dismiss the Mainstream appeal.”
Rookes v Barnard (No 1)
[1964] UKHL 1
Lord Hodson
“No doubt many of the old cases in which a plaintiff has been held entitled to recover damages from a defendant who has intimidated a third party can be explained on the ground of nuisance, or some other recognized tort, but some cannot, and I think that, of these, Garret v. Taylor (Cro. Jac. 567) and, more particularly, Tarleton v. M’Gawley (1 Peake 270) cannot be so explained, and I agree with your Lordships that the existence of this tort is established by authority.
……
In the past there has been much discussion in the conspiracy cases about the word ” threat”, but there is now no necessity to be careful to distinguish between a threat and a warning on the basis that one is a threat to do an illegal act and the other a warning to do something lawful. As Lord Dunedin put it in Sorrell v. Smith [1925] A.C. 700 at p. 730 “A threat is ” a pre-intimation of proposed action of some sort. That action must be ” either per se a legal or an illegal, i.e., a tortious, action. If the threat ” used to effect some purpose is of the first kind, it gives no ground for ” legal proceeding; if of the second, it falls within the description of illegal ” means, and the right to sue of the person injured is established.” This language, while making clear that the word ” threat” of itself is neutral, does nothing to support the contention of the Appellant that breach of contract was the kind of unlawful act which could be envisaged by the tort of intimidation. Illegal is treated as equivalent to tortious by the use of the link ” id est”. In the Crofter’s case [1942] AC 435, Lord Wright said: ” There is nothing unlawful in giving a warning or intimation that if ” the party addressed pursues a certain line of conduct, others may act in ” a manner which he will not like and which will be prejudicial to his ” interests so long as nothing unlawful is threatened or done. It is clear that the threat must be a threat to do something independently unlawful. Breach of contract is unlawful and Sachs J., in rejecting the Respondents’ contention that this was outside the scope of intimidation, followed the per-suasive authority of two Irish cases, Cooper v. Millea and others 1938 I.R. 749 and Riordan v. Butler and others 1940 I.R., 347, in the earlier of which reliance was placed by Gavan O’Duffy on the speech of Lord Dunedin in Sorrell v. Smith which does not, however, support the propostion that a threat to strike in breach of contract is unlawful and constitutes unlawful means. In Huntley v. Thornton [1957] 1 W.L.R. 321 at p. 344, Harman J. said, in relation to employees who threatened to strike: “If, however, their ” actions amount to threats of illegal strike action—that is to say, action ” to withdraw labour in breach of contract—then those acts were tortious ” and illegal”. As Sachs, J. pointed out, this observation of Harman, J. was obiter.
…..
As my noble and learned friend, Lord Devlin, points out in the speech which I have had the privilege of reading, there is really no absurdity in the instances given. The vice of the Respondents’ action is the threat to break and not the breach itself, which would not have the adverse effect on the Appellant which was caused by the threat to break. Much of the argument which seeks to restrict the rights under a contract to the parties to it in a situation such as the present can be found in the power- ful dissenting judgment of Coleridge C.J., in Lumley v. Gye, but this judgment does not represent the law, and the view of the majority that a party injured by breach of contract has his remedy against one who has induced the breach is now part of our law—subject to any defence there may be by way of justification or under the Trade Disputes Act, 1906, to which I must refer later. I would therefore reject the privity of contract argument.
It would, I think, to-day, be more anomalous to draw the line short of breach of contract than beyond it. In the old days the question of breach of contract by workmen simply did not arise for the reason that they did not have contracts of employment, as a rule, to break. Now the situation is different, and in this case the employees not only agreed to a fixed period of notice on either side for termination of the employment but also not to strike, which I take it means not to take part in any concerted withdrawal of labour, with or without notice.
It would be strange if threats of violence were sufficient and the more powerful weapon of a threat to strike were not, always provided that the threat is unlawful. The injury and suffering caused by strike action is very often widespread as well as devastating, and a threat to strike would be expected to be certainly no less serious than a threat of violence. That a breach of contract is unlawful in the sense that it involves the violation of a legal right there can be no doubt. Lord Herschell in Allen v. Flood [1898] A.C. 1, at p. 121, emphasized this point in the passage where he expressed the opinion that there was a chasm between maliciously inducing a breach of contract and maliciously inducing a person not to enter into a contract. The one is unlawful and the other is lawful. I do not think your Lordships are laying down any new principle in including a threat to break a contract under the head of intimidation. It is no more than an application of the existing principle to a case which has not been before considered, and I would therefore accept the Appellant’s argument that the tort of intimidation would be available to him but for the effect of the Trade Disputes Act, 1906. Section 1 of the Act reads —
” An act done in pursuance of an agreement or combination by two ” or more persons shall, if done in contemplation or furtherance of a ” trade dispute, not be actionable unless the act, if done without any “such agreement or combination, would be actionable.”
I agree with the learned Judge that, once it is accepted that the threat to act in breach of the 1949 agreement constitutes intimidation and is actionable as a tort, if it is likely to harm the Appellant and is followed by reasonably foreseeable damage, it is not open to the Respondents to rely on this section by saying in effect that the damage cannot be attributed to any particular act of the Respondents and therefore the act done is not actionable without the element of combination. Section 1 therefore provides no defence.
Section 3, however, is in a different category. It reads:—
” An act done by a person in contemplation or furtherance of a ” trade dispute shall not be actionable on the ground only that it induces ” some other person to break a contract of employment or that it is an ” interference with the trade, business, or employment of some other ” person, or with the right of some other person to dispose of his capital or his labour as he wills.”
……………..
The intimidation is actionable, and the Plaintiff is entitled to sue on that ground, not ” on the ground only ” that his employment has been interfered with. This last is the damage which he has suffered, it is not the only ground of his action. I would allow the appeal..”
Lord Devlin
“This conclusion, while not directly in point, assists me in my approach to the matter to be determined here. It is not, of course, disputed that if the act threatened is a crime, the threat is unlawful. But otherwise is it enough to say that the act threatened is actionable as a breach of contract or must it be actionable as a tort? My Lords, I see no good ground for the latter limitation. I find the reasoning on this point of Professor Hamson (which Sellers, L.J. sets out in his judgment though he does not himself accept it) very persuasive. The essence of the offence is coercion. It cannot be said that every form of coercion is wrong. A dividing line must be drawn and the natural line runs between what is lawful and unlawful as against the party threatened. If the defendant threatens something that that party cannot legally resist, the Plaintiff likewise cannot be allowed to resist the consequences ; both must put up with the coercion and its results. But if the intermediate party is threatened with an illegal injury, the Plaintiff who suffers by the aversion of the act threatened can fairly claim that he is illegally injured.
Accordingly, I reach the conclusion that the Respondents’ second point fails and on the facts of this case the tort of intimidation was committed. I do not share the difficulties which the Lords Justices felt about the idea of admitting breach of contract into the tort of intimidation. Out of respect to them I must state what those difficulties are and how in my opinion they can be satisfactorily resolved…..
I think therefore that at common law there is a tort of intimidation and that on the facts of this case each of the Respondents has committed it, both individually (since the jury has found that each took an overt and active part) and in combination with others. I must add that I have obtained no assistance from the numerous dicta cited to show what constitutes ” unlawful ” means ” in the action of conspiracy. In some of the dicta the language suggests that the means must be criminal or tortious and in others that breach of contract would do; but in no case was the point in issue. More over, while a decision on that point might have been most illuminating, it is not the point I have been considering. I have not been considering what amounts to unlawful means in the tort of conspiracy. I am not saying that a conspiracy to commit a breach of contract amounts to the tort of conspiracy ; that point remains to be decided. I am saying that in the tort of intimidation a threat to break a contract would be a threat of an illegal act. It follows from that that a combination to intimidate by means of a threat of a breach of contract would be an unlawful conspiracy; but it does not necessary follow that a combination to commit a breach of contract simpliciter would be an unlawful conspiracy.
I have now reached the Respondents’ third defence and must consider whether the Trade Disputes Act provides them with a good defence. The Respondents have advanced two separate statutory defences, the first based on section 1 and the second on section 3.
The argument on section 1 is that in order to find on the facts of this case sufficient proof of the tort of intimidation, it is necessary, so it is said, to bring in agreement or combination by the back door; and that is for- bidden by section 1. The argument is applied in particular and in general.
……
So if the means used are intimidatory, and since it is now clear that there is in law a tort of intimidation which is just as much separate from the tort of inducing a breach of contract as are slander and deceit, an action is not prevented by the section. This is the meaning that was clearly given to the section by Loreburn L.C. in Conway v. Wade [1909] A.C. 506 and although
the passage is obiter, it is entitled to great weight. He said: ” It is clear ” that, if there be threats or violence, this section gives no protection, for ” then there is some other ground of action besides the ground that ‘it ” ‘ induces some other person to break a contract’, and so forth. So far ” there is no change. If the inducement be to break a contract without ” threat or violence, then this is no longer actionable, … In this respect ” there is a change.”
I think that this is the way in which the section in its first limb deals with the tort of inducing a breach of contract. Standing alone the tort is insufficient where there is a trade dispute; but if the defendant has also committed the tort of intimidation, he can be sued. It does not matter that what was achieved by the intimidation was a breach of contract.
The same reasoning must, I think, be applied to the second limb, if it is assumed (as I shall start by assuming) that there is a tort of malicious interference with trade, business or employment. The section must be designed to deal with both torts in the same way. If as a result of the Respondents’ action B.O.A.C., instead of giving the Appellant lawful notice had dismissed him summarily, it would follow that he could have sued the Respondents for intimidation, though not for inducing a breach of contract, and it would be no answer to say that the damage was done by means of a breach of the contract of employment. As they gave him lawful notice, it must follow that the Appellant can sue for intimidation, though not for malicious interference; and likewise it is no answer to say that the damage was done by means of interference with his employment.
……But I must at least say what I mean by such a tort. I mean, putting it shortly, Quinn v. Leathem without the conspiracy. If one man, albeit by lawful means, interferes with another’s right to earn his living or dispose of his labour as he wills and does so maliciously, that is, with intent to injure without justification, he is, if there is such a tort, liable in just the same way as he would undoubtedly be liable if he were acting in combination with others. The combination aggravates but is not essential.
As I say, I do not think your Lordships need decide this point. You are considering the construction of a statute passed in 1906 and endeavouring to interpret it in the light of what Parliament must be taken to have intended. If men were to be fully protected when they acted in furtherance of a trade dispute, they must be protected against what might well happen to them if they acted in a certain way as well as against what inevitably would happen to them. Your Lordships do not therefore have to consider what the law is but what in 1906 Parliament might reasonably have thought it to be. Parliament, there can be no doubt at all, intended that Quinn v. Leathem should not apply to trade disputes. If it was perfectly clear in 1906 that the decision in Quinn v. Leathem depended on the element of conspiracy, section 1 of the Act got rid of it. But if conspiracy was not essential to the decision, something more was necessary: and that something more is supplied by the second limb of section 3. Moreover, the method chosen is that which one would expect Parliament in such circumstances to use. Statutes are not in this respect expressed conditionally. The draftsman cannot be expected to say by way of preface: ” If it be held that interference is wrong ful “. He would assume for the purpose of the enactment that it was.
If it was not, the enactment would be otiose but harmless; if it was, the enactment would achieve the object desired.
I am not at all sure that it can be said even now with certainty what Quinn v. Leathem decided ; but I am quite sure that in 1906 the matter was still in doubt. This can be shewn by citations from three cases in this House, Conway v. Wade, Sorrell v. Smith [1925] A.C. 700, and Crofter Hand Woven Harris Tweed Co., Ltd. v. Veitch [1942] A.C.
In Conway v. Wade Loreburn L.C., speaking of the second limb of section 3 and following on the passage I have already cited from his speech, said: ” If there be no threat or violence, and no breach of contract, and yet ” there is ‘ an interference with the trade, business, or employment of some ” ‘ other person, or with the right of some other person to dispose of his
” ‘ capital or his labour as he wills,’ there again there is perhaps a change. ” It is not to be actionable, provided that it was done ‘ in contemplation or ” ‘ furtherance of a trade dispute ‘.” The material words in this passage are ” perhaps a change”. Lord Loreburn is there saying that interference without threat or violence or breach of contract, might perhaps have been actionable at common law ; and if so, the statute takes the right of action away.
………
This leads to the conclusion that this appeal should succeed. But there is one argument, or at least one consideration, that remains to be noticed. It is that the strike weapon is now so generally sanctioned that it cannot really be regarded as an unlawful weapon of intimidation; and so there must be something wrong with a conclusion that treats it as such. This thought plainly influenced quite strongly the judgments in the Court of Appeal. To give effect to it means either that illegal means ought not to include a breach of contract; or that the statute ought to be construed as wide enough to give protection. The Court of Appeal tended, I think, to apply the argument to both points indiscriminately.
I see the force of this consideration. But your Lordships can, in my opinion, give effect to it only if you are prepared either to hobble the common law in all classes of disputes lest its range is too wide to suit industrial disputes or to give the statute a wider scope than it was ever intended to have.
As to the former alternative, I cannot doubt that the threat of a breach of contract can be a most intimidating thing. The present case provides as good an example of the force of such a threat as could be found. A great and powerful corporation submits to it at once, for it was threatened with the infliction of incalculable loss and of grave inconvenience to the public which it serves. The threat is made by men who are flagrantly violating a pledge not to strike, at least until constitutional means of resolving the dispute have been exhausted. It is not just a technical illegality, a case in which a few days longer notice might have made the difference. Because of the damage that would ensue from a strike, B.O.A.C., no doubt in return for corresponding benefits, secured the pledge not to strike; and it is that pledge that is being broken. Granted that there is a tort of intimidation, I think it would be quite wrong to cripple the common law so that it cannot give relief in these circumstances. I think it would be oldfashioned and unrealistic for the law to refuse relief in such a case and to grant it where there is a shake of a fist or a threat to publish a nasty and untrue story.
I said that I thought it would be wrong to cripple the common law in such a case, but that does not mean that I am necessarily criticising the policy of the Trades Disputes Act. It is easy now to see that Parliament in 1906 might have felt that the only way of giving labour an equality of bargaining power with capital was to give it special immunities which the common law did not permit. Even now, when the scales have been redressed, it is easy to see that Parliament might think that a strike, whether reprehensible or not, ought not to be made a ground for litigation and that industrial peace should be sought by other means.
It may therefore as a matter of policy be right that a breach of contract should not be treated as an illegal means within the limited field of industrial disputes. But can your Lordships get that out of the words of the Act?
Section 3 gives immunity from action for procuring a breach of contract but not for the breach itself. In the Court of Appeal Donovan L.J. said with great force: —” If one may procure the breach of another’s contract with
” impunity in a trade dispute, it is certainly odd if one cannot even threaten ” to break one’s own “. The section could easily have read—” shall not ” be actionable on the ground only that it is a breach of contract or induces “some other person” etc.; but it is not so written. It may be that, as Mr. Gardiner suggests, Parliament thought it very unlikely that an employer would resort to action against workmen individually for breaches of contract and that he would get very little from it if he did: see on this point National Coal Board v. Galley [1958] 1 W.L.R., 16, at 27. Or it may be that Parliament did not anticipate that a threat of breach of contract would be regarded as an intimidatory weapon. Whatever the reason, the immunity is not in the Statute; the section clearly exempts the procurer or inducer and equally clearly does not exempt the breaker. It is not suggested that the House can remove the oddity by reading words into the Act that are not there.
So your Lordships cannot construe the Act to give protection in the ease of a threat of a breach of contract unless you also make it wide enough to protect the threatener of physical violence. The Act was no doubt intended to give immunity for all forms of peaceful persuasion, but I am sure—and Loreburn, L.C. in the passage I have cited from Conway v. Wade says as much—that it was not intended to give protection from violent persuasion. I do not think it would be right so as to construe it. It would mean that under the licence of a trade dispute one man could force another out of his job by threats of violence; and since such threats would not be actionable, I doubt if an aggrieved party could even get an injunction to restrain their constant repetition. The essence of the difficulty lies in the fact that in determining what constitutes the tort of intimidation your Lordships have drawn the dividing line not between physical and economic coercion but between lawful and unlawful coercion. For the universal purposes of the common law, I am sure that that is the right, natural and logical line. For the purpose of the limited field ot industrial disputes which is controlled by statute and where much that is in principle unlawful is already tolerated, it may be that pragmatically and on grounds of policy the line should be drawn between physical and economic pressure. But that is for Parliament to decide. What the House said in Vacher & Sons, Ltd. v. London Society of Compositors [1913] AC 107, especially per Lord MacNaghten at 118, is a very clear warning, if one be needed, against the interference of the courts in matters of policy in this branch of the law.
In my opinion therefore the appeal should succeed and the judgment of Sachs. J. on liability should be restored. Mr. Gardiner has submitted that it ought not to be restored in its entirety.
Crofter Hand Woven Harris Tweed Co Ltd v Veitch
[1941] UKHL 2, [1942] AC 435
Lord Chancellor Simon
“If the predominant purpose is the lawful protection or promotion of any lawful interest of the combiners (no illegal means being employed) it is not a tortious conspiracy, even though it causes damage to another person.”
Lord Thankerton
“In the present case the pressure was applied by means of action by the dock- ers, who were in no sense employees in, or directly connected with, the trade in Harris tweed; but employees in this trade were members of the same union, and the interest of the dockers and the trade employees in the union and its welfare were mutual, and I can see no ground for holding that it was not legitimate for the union to avail itself of the services of its docker members to promote the interests of the union.”
Lord Wright
“Where the rights of labour are concerned, the rights of the employer are conditioned by the rights of the men to give or withhold their services. The right of workmen to strike is an essential element in the principle of collective bargaining”
Dimskal Shipping Co SA v ITWF
[1991] 4 All ER 871, [1992] 2 AC 152,
Lord Goff
‘I start from the generally accepted proposition, embodied in rule 184 set out in Dicey & Morris, The Conflict of Laws, 11th ed. (1987), vol.2, p.1213, that the material or essential validity of a contract is governed by the proper law of the contract, which in the present case is English law. Rule 184 is one of a ground of rules (rules 181-187) concerned with the scope of application of the proper law of a contract. It is expressed to be subject to two exceptions. The first exception asserts that a contract is generally invalid in so far as its performance is unlawful by the law of the place of performance; with that exception we are not, in my opinion, here concerned. The second (which is not strictly an exception to rule 184) concerns the primacy of what used to be called the distinctive policy of English law over any provision of foreign law, in so far as such provision might be relevant to the validity or invalidity of a contract; to that topic, I will briefly return in a moment.
Accordingly in the present case we look to English law, as the proper law, to discover whether the contract may, as a matter of principle, be affected by duress and, if so, what constitutes duress for this purpose; what impact such duress must have exercised upon the formation of the contract; and what remedial action is available to the innocent party. We know, of course, that by English law a contract induced by duress is voidable by the innocent party; and that one form of duress is illegitimate economic pressure, including the blacking or the threat of blacking of a ship. I can see no reason in principle why, prima facie at least, blacking or the threat of blacking a ship should not constitute duress for this purpose, wherever it is committed – whether within the English jurisdiction or overseas; for in point of fact its impact upon the contract does not depend upon the place where the relevant conduct occurs.
It follows therefore that, prima facie at least, whether or not economic pressure amounts to duress sufficient to justify avoidance of the relevant contract by the innocent party is a matter for the proper law of the contract, wherever that pressure has been exerted. Here, of course, the proper law is English law. Moreover in the present case there was at the relevant time no applicable statutory provision of English law which required that blacking or the threat of blacking should not be regarded as duress. So, unencumbered by any such provision, we are left simply with an English contract which is voidable by the innocent party if the formation of the contract has been induced by duress in the form of blacking or the threat of blacking a vessel. The question then arises whether there is any basis in law for rejecting this simple approach, on the ground that the conduct in question was lawful by the law of the place where it occurred, viz. Swedish law.
Before your Lordships, it was the primary submission of Mr. Burton on behalf of the I.T.F. that in relation to any duress abroad, in English law the court should, subject to overriding questions of public policy, look to the law of the place of duress to test its lawfulness or legitimacy. I of course accept that, if Mr. Burton’s submission is correct, it must be subject to the qualification that, if it was inconsistent with the distinctive policy of English law to treat the relevant conduct as lawful, the English courts (consistently with the second exception to rule 184 in Dicey & Morris, The Conflict of Laws) would refuse to do so. But the question is whether Mr. Burton’s submission is correct. I have to say that I know of no authority which supports his submission which, if correct, would require the recognition and formulation of a fresh exception to rule 184 in Dicey & Morris.’
P (a minor), Re
[2003] UKHL 8 [2003] 2 AC 663]
Lord Hoffmann
“ 19. On those assumptions, the case turned upon whether the industrial action was protected by section 219 of the 1992 Act:
“(1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only –
(a) that it induces another person to break a contract…
(4) [Subsection (1) has] effect subject to…section 226 (requirement of ballot before action by trade union)…”
20. This section gives rise to two issues. The first is whether the industrial action was “in contemplation or furtherance of a trade dispute”. The second is whether the statutory requirements for a ballot were complied with. The judge and the Court of Appeal decided both issues in favour of the union. P appeals to your Lordships’ House. Since the decision of the Court of Appeal he has taken his GCSEs and left the school. But your Lordships have heard the appeal because it raises a point of general public importance.
21. First, the trade dispute issue. A “trade dispute” is elaborately defined in section 244(1). The relevant parts of the definition are:
“In this Part a ‘trade dispute’ means a dispute between workers and their employer which relates wholly or mainly to one or more of the following-
(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;
(c) allocation of work or the duties of employment between workers or groups of workers.”
22. The union argued that the dispute related to (1) their terms and conditions of employment (having to comply with the head teacher’s direction to teach P), (2) the physical conditions in which they were required to work (with a disruptive person physically present in the classroom) and (3) the allocation of work between teachers (allocating P to union members).
23. Morison J found for the union on (1) but rejected (2) and (3). The Court of Appeal, in a judgment given by Waller LJ, agreed with the judge on (1) and (3) but expressed no view on (2).
24. In my opinion this was plainly a dispute over terms and conditions of employment, which I regard as a composite phrase chosen to avoid arguments over whether something should properly be described as a “term” or “condition” of employment. It is sufficient that it should be one or the other. Furthermore, the use of such a composite expression shows that it was intended to be given a broad meaning: see Roskill LJ in British Broadcasting Corporation v Hearn [1977] 1WLR 1004, 1015.
25. In the present case, it seems to me that the dispute was about the contractual obligation of the teachers to teach P. It could be characterised as a dispute over whether there was such a contractual obligation: the union, as we have seen, contended that the head teacher’s direction was unreasonable. Alternatively it could be characterised as a dispute over whether there should be such a contractual obligation. It does not seem to me profitable to try to analyse it one way or the other. The dispute arose because the head teacher said that the teachers were obliged to teach P and they said that they were not willing to do so. That seems to me a dispute which does not merely “relate to” but is about their terms and conditions of employment.
26. Mr Giffin, who appeared for P, submitted that “terms and conditions” of employment” meant the rules which governed the employment relationship. They need not be written out in the contract of employment. In Hearn’s case Lord Denning MR said, at p 1010, that
“Terms and conditions of employment may include not only the contractual terms and conditions but those terms which are understood and applied by the parties in practice, or habitually, or by common consent, without ever being incorporated into the contract.”
27. But whether the rules are expressly agreed or implied from custom and practice, Mr Giffin says that they must be rules. The nature of a rule, he said, is that it is a normative statement at some level of generality. In the present case, there was a rule that teachers should comply with the directions of the headmaster. A dispute over whether they should teach P was not a dispute about the rule but about the application of the rule. It might possibly have been formulated as a dispute about terms and conditions of employment if the union had claimed that the rule should be changed to provide that “teachers should comply with the directions of the headmaster (except that they should not be required to teach P).” But the union never said that this was what they wanted.
28. My Lords, I do not think that Parliament could have intended the immunities conferred upon trade unions in industrial disputes to turn upon such fine distinctions. It is in my opinion impossible in this context to formulate a coherent distinction between a rule and the application of the rule to particular cases. A dispute about what the workers are obliged to do or how the employer is obliged to remunerate them, at any level of generality or particularity, is about terms and conditions of employment.
29. The main authority upon which Mr Giffin relied for his proposition was the actual decision of the Court of Appeal in Hearn’s case, which was subsequently approved by this House in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191. In Hearn’s case, union members working for the BBC threatened to refuse to transmit its television signal to a satellite over the Indian Ocean during the Cup Final because the satellite broadcast would be receivable in, among many other countries, South Africa. The refusal was pursuant to a union policy of opposing apartheid and on the ground that, as Mr Peter Hain said in a letter of 22 April 1977 to the Director-General of the BBC, “the screening of the Cup Final will give considerable satisfaction to the sports loving white population.” See [1977] 1 WLR 1004, 1008.
30. The Court of Appeal granted an interlocutory injunction restraining the industrial action on the ground that it was not in furtherance of a trade dispute. They gave brief unreserved judgments. Lord Denning MR said that the threat of industrial action was “coercive interference and nothing more”. It had nothing to do with terms and conditions of employment. It did not become a trade dispute merely because the workers were threatening to break their contracts. The work involved in transmitting the broadcasts was not what the dispute was about. Roskill and Scarman LJJ agreed.
31. The decision was, if I may respectfully say so, correct because the dispute did not relate to anything which the workers were called upon to do. They would have had to do exactly the same things if South Africa had not been among the countries from which the satellite broadcast was receivable. Unlike the teachers in this case, who objected to having to teach P, the BBC workers had no complaint about any aspect of their work. The objection was simply that one result of their work would be to give pleasure in South Africa.
32. I can find nothing in the case which supports a distinction between a rule and a particular application of the rule. Mr Giffin relied upon the following observations of Lord Denning MR, at p 1011:
“To become a trade dispute, there would have to be something of the kind which was discussed in the course of argument before us: ‘We would like you to consider putting a clause in the contract by which our members are not bound to take part in any broadcast which may be viewed in South Africa because we feel that is obnoxious to their views and to the views of a great multitude of people. We would like that clause to be put in, or a condition of that kind to be understood.’ If the BBC refused to put in such a condition, or refused to negotiate about it, that might be a trade dispute.”
33. Mr Giffin says that this shows that a trade dispute must be about a rule. But in my opinion Lord Denning’s remarks were intended to suggest a way in which the concept of a trade dispute might be extended to include disputes over matters which did not concern what the workers had to do or how the employer had to remunerate them. It was not intended to prevent disputes which were over such matters from being trade disputes unless they were formulated in terms of rules. In Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366, 392 Lord Cross of Chelsea cautioned against taking Lord Denning’s tentative observations too far:
“A trade union cannot turn a dispute which in reality has no connection with terms and conditions of employment into a dispute connected with terms and conditions of employment by insisting that the employer inserts appropriate terms into the contracts of employment into which he enters.”
34. The point does not seem to have surfaced in subsequent cases and your Lordships may therefore well leave it there. Mr Giffin draws attention to the fact that the scope of the protection for industrial action was narrowed after Hearn’s case. But the only relevant change is that a trade dispute must “relate wholly or mainly” to terms and conditions of employment and must not merely be “connected” with them: Mercury Communications Ltd v Scott-Garner [1984] Ch 37, 75. But in my opinion the narrower requirement is entirely satisfied. To say that the dispute was related to terms and conditions of employment is, if anything, inadequate. Terms and conditions of employment are what the dispute was about. It is therefore unnecessary to say anything about the other phrases in the definition of a trade dispute on which the union placed reliance.”
University College London Hospital NHS Trust v Unison
[1998] EWCA Civ 1528
LORD WOOLF, MR
“As I have already indicated there can be two strands to a policy. A union can have a policy of opposing a particular course of action root and branch which is seeking to achieve a political objective. At the same time it could have a more limited objective, namely to alleviate the adverse consequences which it anticipates could flow from the more general policy. That more limited objective can be the reason for taking strike action. That more limited policy can comply with the requirements of section 244.
I therefore turn to consider whether the more limited policy and objective of the Union in this case falls within the requirements of section 244. In doing so, I note that the statutory categories of permitted purposes must be the predominant purpose. The dispute must relate wholly or mainly to those purposes. If it relates to them that is not sufficient to fulfil the statutory requirement.
Together with the objectives of obtaining a guarantee for existing employees, the Union is seeking to secure the same guarantee for employees who have never been employed by the Trust. As the 30 year period for which the guarantee is at present being sought progresses, there is bound to be a situation which will arise where the great majority of the employees will never have been employed by the Trust. I cannot see how it is possible to apply the language of section 244(1)(a) and (5) in a way which covers the terms and conditions of employment of employees of a third party who have never been employed by the employer who is to be the subject of the strike action. This in itself is fatal to the case which the defendants advance on this appeal.
In addition, so far as existing employees are concerned, the strike seeks to achieve protection for them in relation to employment with the so far unidentified future employer. Recognising that this does not readily fall within the language of section 244, Mr Hendy submits that the obtaining of the future protection does relate wholly or mainly to the existing terms and conditions of the employees of the Trust because it will provide those employees with a sense of security which they would not otherwise have. He rightly submits that the terms and conditions of employment referred to can be threatened with change in the future. In addition he submits that a correct reading of subsection (5) has the effect of creating a distinction between the parties to the dispute and to the subject matter of the dispute. While he accepts that the parties to the dispute must be the existing employees and the existing employer (here the Trust), there is no such restriction on the subject matter of the dispute.
In support of that argument he attaches particular importance to that part of the language of subsection (5) which, so far as relevant, states:
“(5) In this section-
….
´worker’, in relation to a dispute with an employer, means-
(a) a worker employed by that employer.”
Mr Hendy submits that the words “in relation to a dispute with an employer” are confined to identifying the employer. He submits that the definition does not relate to the categories set out in subsection 1(a) to (g) which are the subject matter of the dispute. He points out that there would be no purpose served by the use of the words “in relation to a dispute with an employer” in subsection (5) if his submission was not correct. The subsection could read “‘worker’ means a worker employed by that employer”, but it does not; it is confined. As to that argument, I see its force. However, in my judgment, it does not assist Mr Hendy because, on the facts which are before the court, while it is true that a consequence of obtaining a guarantee would be to give the existing employees the additional security to which he refers, and therefore to that extent a matter which relates to their terms and conditions of employment, that is not the dispute which those employees are wholly or mainly concerned about. They are wholly or mainly concerned about the dispute with different employment; the employment with the so far unidentified new employer. For that reason, even with regard to the employees who are already employed by the Trust, I consider that on the facts which are before the court, it is unlikely that the Union could take advantage of the statutory immunity.
I would refer to a passage from the judgment of the former Master of the Rolls, Sir John Donaldson, in the case of Mercury Communications v Scott Garner [1984] ICR 74. At page 105 of that judgment Sir John Donaldson refers to the later amendment which was made. He commences:
“This latter amendment narrows the specified subject matters wherever the word ´worker’ appears, eg ´allocation of work or the duties of employment as between workers or groups of workers’. The dispute must therefore not only be between workers and their employer, but must relate wholly or mainly to matters which are specific to that employment. Thus there can be no trade dispute between employer A and his workers relating to the pay and conditions of workers employed by employer B.
In context the phrase ´wholly or mainly relates to’ directs attention to what the dispute is about and, if it is about more than one matter, what it is mainly about. What it does not direct attention to is the reason why the parties are in dispute about this matter. Thus a situation can arise in which company A’s workers will accept a particular rate of pay and company B’s workers will not, the difference being that those who work for company B know that for one reason or another they will become redundant within the next year or so and think, perhaps not unreasonably, that they have little to lose and something to gain in terms of immediate remuneration and in the rate of redundancy payment by pressing for higher wages meanwhile. A contributory cause of the dispute and possibly the main cause is the belief that redundancy (´termination….of employment’ in the words of the section) is just around the corner, but the dispute is not about that or, if it be preferred, relates wholly or mainly to pay (´terms and conditions of employment’).
The view that the words of the statute ´relating to’ mean ´about’ (in the sense of course of ´concerning’ rather than ´approximately’) is supported by a decision of this court in Roberts v Cleveland Area Health Authority [1979] ICR 558 and by the decision of the House of Lords in Garland v British Rail Engineering Limited [1982] ICR 420, although in each case the words were used in a different context. Garland’s case also draws attention to the fact that ´relating to’ or ´about’ can receive a broader or a narrower application according to context – ie ´broadly speaking about’ or ´actually about’ to use popular rather than legislative language. In the context of an admittedly restrictive amendment to the statute, I incline to the view that Parliament intended a relatively restrictive meaning to be given to the phrase, but this probably does not matter since the words ´wholly or mainly’ themselves indicate and provide a degree of restriction.”
Sir John’s approach, as I see it, supports the conclusion to which I have come as to the correct application of section 244 to employees already employed by the Trust.
The third matter to which I draw attention is the different strands of the ballot paper. This refers to the subsequent staff. In view of what I have said about staff who have never been employed by the Trust, it seems to me that that is an impermissible subject for the ballot. As it is impossible to identify the motives of those who voted in favour of strike action for doing so, it follows that this nullifies the ballot which took place. In addition the ballot paper is very persuasive evidence as to what is the proposed purpose of the strike. The terms of the ballot paper support that it was for different purposes, one of which is clearly flawed.
The failure to meet the requirements of section 244, coupled with the defect in the ballot paper, means that this appeal must be dismissed. On the true approach to the statutory provisions to which I have referred, the only conclusion which a court could reach on the evidence which is before us is that the proposed strike is not subject to the protection of the Act. In those circumstances, Mr Hendy does not argue that it would not be appropriate to grant an injunction.
Accordingly this appeal must be dismissed. “
Express Newspapers Ltd v McShane
[1980] AC 672
Lord Diplock
‘Given the existence of a trade dispute (the test of which, though broad, is nevertheless objective . . ), this makes the test of whether an act was done ‘in . . furtherance of’ it a purely subjective one. If the party who does the act honestly thinks at the time he does it that it may help one of the parties to the trade dispute to achieve their objectives and does it for that reason, he is protected by the section. I say ‘may’ rather than ‘will’ help, for it is in the nature of industrial action that success in achieving its objectives cannot be confidently predicted. Also there is nothing in the section that requires that there should be any proportionality between on the one hand the extent to which the act is likely to, or be capable of, increasing the ‘industrial muscle’ of one side to the dispute, and on the other hand the damage caused to the victim of the act which, but for the section, would have been tortious. The doer of the act may know full well that it cannot have more than a minor effect in bringing the trade dispute to the successful outcome that he favours, but nevertheless is bound to cause disastrous loss to the victim, who may be a stranger to the dispute and with no interest in its outcome. The act is none the less entitled to immunity under the section.’
Lord Scarman
The words, ‘An act done by a person in contemplation or furtherance of a trade dispute’ seem to me, in their natural and ordinary meaning, to refer to the person’s purpose, his state of mind. The Court must satisfy itself that it was his purpose, and, before reaching its decision, will test his evidence by investigating all the circumstances and applying the usual tests of credibility: that is to say, it will ask itself whether a reasonable man could have thought that what he was doing would support his side of the dispute, or whether the link between his actions and his purpose was so tenuous that his evidence is not to be believed. But, at the end of the day, the question for the Court is simply: is the defendant to be believed when he says that he acted in contemplation or in furtherance of a trade dispute?’ He wentto describe the test as subjective: ‘It follows, therefore, that once it is shown that a trade dispute exists, the person who acts, but not the court, is the judge of whether his acts will further the dispute. If he is acting honestly, Parliament leaves to him the choice of what to do. I confess that I am relieved to find that this is the law. It would be a strange and embarrassing task for a judge to be called upon to review the tactics of a party to a trade dispute and to determine whether in the view of the court the tactic employed was likely to further, or advance, that party’s side of the dispute . . It would need very clear statutory language to persuade me that Parliament intended to allow the courts to act as some sort of a backseat driver in trade disputes.’
Marine Terminals Ltd & Anor -v- Loughman & Ors
[2009] IEHC 620
Feeney J.
“From the transcripts and the video, including the recording, the Court can identify that the language and delivery of the speeches on the occasion of the protest march must be viewed in the context that it was a protest march. It also must be viewed in the context that persons have a right to protest and to freely express their views. The courts have under the influence of the European Convention on Human Rights in the recent past shown an increasing preparedness to recognise the right and importance of the right of freedom of expression and to give it its due importance when balancing that right against competing rights. The courts recognise the importance of the right of freedom of expression and even though it is not an unqualified right, nor is it one that cannot be prevailed over by other rights in certain limited circumstances, the courts have demonstrated on a number of occasions the importance of such rights. That is to be gleaned from the recent High Court decision, detailing extensive authorities in relation to the matter, of Herity v. Associated Newspapers [2009] I.R. 316 which since the start of this case and today’s date has moved from being an unreported judgment to being a reported judgment now to be found in Volume 1 of 2009 I.R. at page 316. The importance and significance of freedom of expression is illustrated by a quotation from that judgment from Dunne J. following her review of the authorities relating to the matter at page 338 where she states as follows:
“The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle. Like Kelly J. I cite the following passage from Hoffman L.J. as he then was in R v. Central Television Plc [1994] Family 192:
“Newspapers are sometimes irresponsible and their motives in a market economy cannot expect to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what Judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and Judges, however well motivated, think should not be published. It means the right to say things which “right thinking people” regard as dangerous and irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”
Dunne J. goes on on page 339 to state:
“That is a powerful expression of the right to freedom expression. It is not authority however for saying that the right of freedom of expression is more significant than the right to privacy. As Hoffman L.J. noted in R v. Central Television Plc the freedom is subject to clearly defined exceptions laid down by common law or statute. It is in that context that the constitutional right to privacy comes into the equation. Accordingly it seems to me that there is a balancing exercise engaged in circumstances where the right to freedom of expression conflicts with the right to privacy. It is clear that newspapers are free to publish all sorts of matters regardless of public interest and questions of good taste but as is the case with the right to privacy the right to freedom of expression is not an unqualified right. Lord Hoffman noted in the passage just quoted above and approved by Fennelly J. in Mahon v. Post Publications Limited [2007] I ESC 15 and [2007] 3 IR 338.” This freedom is subject only to clearly defined exceptions laid down by common law and statute.”
Later in this judgment because it impacts on two different aspects of this judgment I will return to the issue of the balancing of different rights and also to the issue of proportionality in relation to how one approaches the right of freedom of expression when it is in conflict with other rights. It is also the case that the rights identified in the quotations which I have given which belong to the newspapers equally belong to private citizens and trade unions and the right of freedom of expression is a general one and is not either special or limited to the newspaper media.
The right of freedom of expression equally extends to speeches made at protest marches. It allows and permits the use of strong and emotive language delivered in a robust and articulate way. Generally speaking it is desirable that it should be left to the legislature and not to the courts to stake out the exceptions. That is clear from the approach of our Supreme Court. There are clear exceptions laid down by common law and statute law such as in the law of defamation and the law concerning threatening behaviour and intimidation. Having read the speeches and heard the extracts on the video recording this Court is satisfied that the contents of those speeches as such could not at this point in time give rise to a right to injunct such conduct or expression. The use of the term “scab” and the use of terms such as “crimes against Irish workers” are strong and forceful language but they were used in circumstances where it must be recognised that they represented the entitlement of the persons expressing such views to express their viewsin relation to the matters in issue.
This is in fact recognised by the approach which the Plaintiffs have adopted where they do not seek general relief directed at the use of such expressions as “scab” or “crimes against Irish workers”. They did initially seek such relief in a paragraph in the notice of motion but during the course of argument before the Court it became clear that their application was a more refined and considered one. Given the authorities which I have identified that approach represents not only a realistic but a necessary approach as the courts could not on the evidence before it have arrived at a situation where the use of the terms “scab” or “crimes against Irish workers” in the speeches at the protest march on the 24th August could be viewed in such a manner as to make them capable of being restricted by some form of injunctive relief in relation to the future use of such terms at such events as the protest march.
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This clear and unequivocal averment stands in contrast to the supposition and inference which the Plaintiffs rely on to link the Defendants to the illegal acts of the 24th August. Even on the basis of the test applicable for interlocutory injunctions identified by the Supreme Court in the Campus Oil case this Court is satisfied that the Plaintiff has not established an arguable case of the Defendants’ involvement in the illegal portion of that protest of the 24th August. I should say in passing that it is common case between the Plaintiffs and the Defendants in their legal argument before the Court that the correct principles for this court to apply in relation to the interlocutory relief are to be gleaned from the Irish Supreme Court decision in Campus Oil and it is those principles which I consistently apply throughout this judgment.
For the court to hold that the Defendants were responsible for what occurred on the 24th August and namely the illegal portion of the protest, that is the portion which took place following the illegal entry and occupation of the first named Plaintiff’s premises, the Court would have to infer from the Defendants’ words and actions an intention and an knowledge. That is expressly denied on oath. To rely upon on implied meaning and supposition against a clear and unequivocal averment is a course of action which this Court will not adopt. It accepts the averments which clearly deny knowledge of or support for the illegal trespass and demonstration within the private property. This Court will not therefore grant an injunction against the Defendants based upon the events which occurred on the 24th August.
However as illustrated by the approach of the English Courts in the case of News Group Limited v. SOGAT [1987] ICR 181 there are circumstances where unions can become responsible and liable to be injuncted for the torts or illegal acts of others. That is where previous events have demonstrated that such union or unions knew that violence had occurred and torts had been committed by others at pickets and marches organised by the unions.
In the headnote to that case the following is stated at headnote 4 on page 182:
“The defendants could not be liable for the torts of others merely because in organising the pickets and marches they could foresee that individuals might commit tortious acts but that since the defendants organising the pickets and marches knew that violence had occurred and torts had been committed it was their duty to control their members or desist in organising the picketing and demonstration. Since the Plaintiffs have established that they had an arguable case that they would succeed at the trial of the action and they needed the protection of injunctive relief until that date the Court would exercise its discretion and grant injunctions against the Defendants’ unions and against the third, fifth and eighth Defendants personally but in a form that permitted their continuing to organising peaceful picketing and marches.”
The Court raised this matter with counsel during the course of argument and the issue in the headnote which I have read is in fact clarified when one has regard to the actual text of the judgment. If one turns to pages 216/217 of the judgment:
“In my judgment therefore the defendants are not liable simply because they organise a March or picketing during the course of which tortious acts are committed by third parties even though such acts can be foreseen. But it is to be noted that in all cases to which I have referred liability is sought to be established on the basis of a single act or omission on the part of the defendants whether it be a failure to secure the premises so as to omit vandals who cause damage, thieves who enter to steal or tenants who are admitted to the premises to commit a nuisance.”
Later on in the judgment the judge Indicated as follows at page 218:
“So far as the marches and demonstrations at Wapping are concerned although it is not the invariable pattern violence and nuisance have occurred with sufficient frequency, particularly on those occasions when a large number of people attend and there is no proper control for it to amount to a detectable pattern.
As to control it seems to me that the defendant unions can exercise substantial control over their members and in the ultimate event if they cannot control them they may have to desist from organising the activity in question or organise it away from the plaintiff’s premises.”
In this case the stage has not been reached, to any extent, where the resort to illegal activities and nuisance have occurred with sufficient frequency that one could identify what is described as a ‘detectable pattern’. It is not possible at this point in time to identify such a pattern, however the stage has been reached where a series of events have occurred, that is the illegal trespass and demonstration on the 24th August, including at that protest, the use of union banners, the disputed event in the forecourt on the 27th August and the use of fly posters in Athy on the same date. Those events have occurred and any future protests must be viewed against the knowledge of such past events and the union must at this stage be aware that in organising marches and demonstrations that a stage can be reached were absent control the Court will be put in a position that it would be prepared to consider whether to intervene by way of injunctive relief. That stage has not been reached but the union must now be aware of the risks of escalating the strike. Escalate is a term which they themselves have used and have stated the intention to so do. The influence and potential control of events by the trade unions and its representatives is in fact illustrated by the facts of this case where it is averred in Mr. Flemings’ affidavit of the 11th September 2009 that he was in fact requested by a senior member of the Gardaí to intervene during the course of the illegal activities and trespass and he was brought on to the premises for the purposes of intervening and having the protesters leave. That is an illustration of the power and control the trade unions can have and exercise. Indeed it is a fact that this Court has taken into account in arriving at the conclusion that the stage has not been reached, to any extent, where the resort to illegal activities and nuisance have occurred with sufficient frequency that a detectable pattern can be identified or where the Court can identify the support of the trade unions for that type of illegal activity.
This court has also had regard to the approach of the Supreme Court in the case of E.I. Limited v. Kennedy and Others [1968] I.R. 69. In that case the Court held that there was not sufficient evidence of the continuance of the unlawful mode of picketing which had existed at the start of the strike to justify an interlocutory injunction on that ground, see page 103 of the judgment of Fitzgerald J. as he then was.
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At this interlocutory stage this Court cannot decide between the disputed versions as to what occurred. However on the application of the test identified in the Campus Oil case this Court is satisfied there is sworn evidence of events that satisfy the test that there is an arguable case in relation to that event which meets the necessary threshold, that is that there is a fair question to be tried in relation to the issue as to whether threats or intimidation took place on that occasion.
Determining and determining no more but that there is a fair question to be ultimately tried. The real issue of what occurred can be determined by oral evidence including examination and cross-examination. However, once there is in the Court’s view a fair question to be tried the Court must then consider the question of the balance of convenience and to determine whether or not the balance of convenience favours the grant of an injunction. Having considered the matter this Court is satisfied that the balance of convenience favours the grant of the injunction. On the side of Mr. O’Gara and people employed by the Plaintiff there is a claim of an event which identifies a threat whilst on the other side it is clearly averred that there is no intention or desire to threat. In those circumstances in looking at the balance of convenience one must have regard to the fact that the position adopted by the Defendants is that they did not nor do they have any desire to threaten anybody and in those circumstances any inconvenience caused by the imposition of an injunction would be of inconsequential effect. The Court is also satisfied that damages would not be adequate remedy for the Plaintiff in relation to the issue of threats given the difficulty in quantifying damages in relation to such matters. The Defendants, as the Court has pointed out, will on their own averred position not be adversely affected by the order and the discretion which is available to this Court clearly favours the grant of an injunction relating to this matter. However, that injunction must be limited in extent and the Court must ensure that such injunction is no wider than is necessary. No other Defendants have been identified as having intimidated Mr. O’Gara other than three identified Defendants. Nor is there any claim as to any of the other Defendants being involved and there is no indication that the union or any of the other Defendants conducting their affairs to permit such conduct.
In those circumstances the injunction under this heading will be solely against the third, fourth and fifth named Defendants and will be in the terms of paragraph 3 of the notice of motion.
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However at present it is clear that the case is that the Plaintiffs have established a fair question to be tried given that the use of the fly posters in the manner adopted. It is not just the language but it is the amount and the location of same which the Court has taken into account in considering if it was done for the purposes of coercing or threatening the person identified therein. There is a fair question to be tried in relation to that issue and a fair question in relation to the issue as to whether the union has been a party to such conduct, not only to coerce workers who are continuing to work but to interfere with those persons’ rights to work, those persons’ rights to privacy. There is also a fair question in relation to the issue identified in the submissions of the Plaintiff to the effect that the Defendants have engaged in conduct detrimental to the interests of an employee. All these issues have not been determined by the Court but the stage has been reached that there is evidence before the Court that there is a fair question to be tried in relation to these matters.
One must balance in relation to these matters the fact that what is contained on the poster is an expression or a view which a person can argue and is entitled to argue and represents their right of freedom of expression. As indicated earlier in this judgment that is not an absolute right but it is one which one must on occasions, and particularly on occasions identified by law, take into account, in a balancing exercise or in determining proportionality whether that right is more than counterbalanced by other existing rights. In this case given the contents of the fly posters, the sheer number of the posters, the location of the posters and the apparent intent of causing a person shame or to become a pariah and when one takes all those matters into account and has on the other side to take into account the rights of a person to work, the rights of a person to privacy, the rights of a person to ensure a trade union does not engage in conduct detrimental to the interests of an employee, all of those matters lead to a determination that in this instance, at the interlocutory stage, it would be both proportionate and correct to grant an injunction.
Here the Court must balance the right of freedom of expression against the competing rights which I have identified. The Court must also ensure that any limit on the freedom of expression at an interlocutory stage is proportionate and balanced. Whilst the Court favours the grant of an injunction it must be on the minimum necessary to protect the competing rights which have been identified. On the interlocutory stages the rights sought to be protected have been identified and the Court is satisfied that there is a case to argue. The Court is satisfied that on the Campus Oil tests both in relation to the balance of convenience and in relation to the question of damages that an injunction should be granted.”
The trade union denies involvement in this matter, that is identified from paragraph 7 of the affidavit of Ken Fleming sworn on the 9th September of this year where he said the union never recommended or suggested such a process to any of the Defendants. However at this stage there is evidence available to the Court that the trade union has as part of its name and shame campaign been involved in and supported such activity. That ultimately will be tested and determined at the oral hearing which will take place at the hearing of the action.
The minimum necessary injunction must link the use of fliers to personal identification. It cannot be necessary to limit the expression or the expression of the views of parties, which do not cause the harm which the Court seeks to avoid by means of interlocutory injunction. The injunction will therefore not be in the wider general terms identified in paragraph 1 of the notice of motion but will be in the more precise and limited terms as per paragraph 2 of the notice of motion which links the prohibition to the personal identification by name or address of particular persons. The Court is satisfied that such injunction, for the interlocutory period, would provide the minimum protection necessary and would not be excessive in balancing the competing rights at this point in time.
The Court is also satisfied that the Campus Oil test in relation to balance of convenience and damages not being a suitable remedy both favour the granting of an injunction. There is a case to answer that the Plaintiffs’ workers’ rights to privacy and to associate and to work and to be free from coercion or threats are being interfered with by the name and shame campaign and the balance of convenience requires an injunction.
In arriving at this determination the Court has taken into account the arguments raised by counsel on behalf of the Defendants. That argument in particular centered upon the contention that threats to employees would not amount to the tort of intimidation unless employees succumbed to the threats and thereby damage resulted. The Court has considered this matter and has at this interlocutory stage adopted an approach similar to the approach identified by the English courts in the News Group case. I have already given its reference. The Court will grant injunctive relief where there is evidence, as there is in this case, that the conduct was viewed as threats and were taken seriously by the person so threatened.
At page 204 of the judgment in the News Group v. SOGAT case the following was stated:
“If a threat is little more than idle abuse and is not to be taken seriously then it would not be sufficient to found an action for intimidation. Indeed the tort is not complete unless the person threatened succumbs to the threat and damage is suffered but it is clear that injunctive relief can be granted to restrain the unlawful act and also threats to commit an unlawful act (reference given). But in order for an injunction to be granted the threat or threats must be serious and taken seriously by those who received them.”
That is the position which pertains in this case as in this case it is not just the use of the fly posters but how they were used and where they were used and when all those matters are taken together with the incident in the forecourt it leads this Court to the decision that there is a case to answer in relation to coercion and threats. The issue in relation to the balancing of the right of freedom of expression against the rights of a worker to continue to work and not to be exposed to detrimental actions has been considered at this stage but my final determination will require oral evidence.
There is also a case to answer as to whether the conduct of the saturation use of fly posting concerning an identified individual represents unreasonable harassment of a worker. The test in Campus Oil is whether the balance of convenience favours the granting of an injunction and the Court must also consider whether damages would be an adequate remedy. Under both of those headings the Court is satisfied it is appropriate to grant an injunction and therefore an injunction will be granted against all the Defendants in the terms of paragraph 2 of the notice of motion.
Also in considering the question of balance of convenience the Court has had regard to the open letter which was produced by the Defendants and which was issued on behalf of all the Defendants which indicated a willingness to refrain from a certain manner of naming and shaming, that is not travelling to a particular area. Whilst the injunction ultimately granted by the Court is somewhat wider the Court has taken into account the fact that the Defendants, in open letter, were prepared to limit their future conduct.
Finally as the Court has previously indicated that there is no issue in relation to paragraph 7 and the Court will continue the order therefore in relation to paragraph 7 of the notice of motion. In relation to the other reliefs sought at paragraphs 1, 3, 4, 5 and 6 the Court declines to make any order in relation to those particular matters other than the two reliefs which have been granted, firstly against three named Defendants in relation to paragraph 3 and in relation to all Defendants as regards paragraph 2 and the continuation of the order in relation to paragraph 7. As I have already indicated absent some extraordinary, inventive and brilliant submission I will be reserving the question of costs but I would hear the parties if they have a submission which comes within the category which I have identified.”