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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Torquay Hotel Co Ltd v Cousins [1968] EWCA Civ 2 (17 December 1968) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1968/2.html Cite as: [1969] 2 Ch 106, [1969] 2 WLR 289, [1969] 1 All ER 522, [1968] EWCA Civ 2 |
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COURT OF APPEAL.
Appeal by defendants from judgment of Mr. Justice Stamp
dated 23rd May, 1968 granting the plaintiffs an interlocutory injunction
B e f o r e :
LORD JUSTICE RUSSELL
and
LORD JUSTICE WINN.
____________________
THE TORQUAY HOTEL COMPANY LIMITED |
Plaintiffs Respondents |
|
and |
||
THE RIGHT HONOURABLE FRANK COUSINS H.R. NICHOLAS J.J. JONES H.A. RAY RONALD H. NETHERCOTT JAMES PEDLEY K. LETTIS and TRANSPORT AND GENERAL WORKERS UNION |
Defendants Appellants |
____________________
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C. 2.)
Mr. A.R. CAMPBELL, Q.C., Mr. PETER BRUCE and Miss HILARY BARKER (instructed by Messrs. Herbert Smith & Co.) appeared on behalf of the Respondents.
____________________
HTML VERSION OF JUDGMENT
Crown Copyright ©
THE MASTER OF THE ROLLS: The Imperial Hotel is one of the finest hotels in Torquay. It is owned by the Torquay Hotel Company Limited. The Managing Director is Mr, Chapman. It gets all its fuel oil by contract from the Esso Petroleum Company.
The Transport and General Workers Union is a registered trade union. I will call it the Transport Union. It has members in many trades. In particular, most drivers of oil tankers are members. So are some of the cooks and waiters in hotels. Mr. Frank Cousins is the General Secretary of the whole Union. Mr. Ray is in charge of the group which includes hotel workers. They are both at the London headquarters, Mr. Nethercott la the Regional Secretary for the South Western Region. His headquarters are at Bristol. Mr. Pedley is the District Secretary for the Exeter District. His headquarters are at Exeter. All those are full-time paid officials of the Union. Mr. Lettis is the Branch Secretary at Torquay. He works as a waiter at hotels in Torquay. He is not a paid official. Until recently the hotel workers in Torquay were not very keen on joining trade unions. But those who were ke:en joined a trade union called the National Union of General and Municipal Yorkers. I will call it the General Workers Union. This Union held the field in Torquay until 1967. But then the Transport Union tried to recruit members in the hotels at Torquay. They recruited 80 workers at the Palace Hotel, and in August, 1967, after a strike, persuaded the management of that hotel to recognise the Transport Union as authorised to negotiate on behalf of their members. By December 1967 the Transport Union had recruits 400 members in Torquay. On 1st January 1968, these formed themselves into a branch.
The dispute with the Torbay Hotel.
During the week beginning 23rd January, 1968, Mr. Pedley, the District Secretary of the Transport Union, tried to get the Torbay Hotel to recognise the Transport Union. On 25th January, the Managing Director refused, because he was, he said, in active negotiation with the other Union, the General Workers Union. Mr. Pedley then consulted his senior officials and they decided to call a strike at the Torbay Hotel. It was to start on Saturday, 28th January, 1968.
But the night before, on Friday, 27th January, 1968, the Transport Union held a dinner-dance at the Palace Court Hotel, Torquay, to celebrate the opening of the Torquay branch. It was attended by Mr. Cousins, Mr. Nethercott from Bristol and others. Those present listened to speeches by Mr. Cousins, Mr. Nethercott and Mr. Lettis. Mr. Cousins told them:
"You will have a struggle for recognition but at least you know you got through the first round" (referring, I expect to the strike at the Palace Hotel in August 1967). No doubt, at that time Mr. Cousins and Mr. Nethercott knew of the arrangements to call a strike at the Torbay Hotel: for it was to start the very next day, 28th January, 1968. Indeed, on Saturday evening, 28th January, Mr. Cousins saw Mr. Nethercott in Bristol and Mr. Cousins told Mr, Nethercott that the Union would support the men on strike, That meant that they would receive strike pay. On Monday, 30th January, 1968, Mr. Pedley wrote to the manager of the Torbay Hotel saying: "In view of your refusal to meet me on matters concerning our membership, I am under instructions from my Regional Secretary, Mr. Nethercott, to inform you that this organisation (the Transport Union) is in official dispute with your hotel",
In consequence of this dispute, the Torquay Hotel Association met and on 1st February, 1968, advised their members in these terms:
"There is no doubt that most workers in the Union were perfectly happy with prevailing conditions and wore not desirous of joining any union, but in face of the threat to our industry by the Transport Union, your executive would earnestly advise all hotel managements to encourage their staff to join the General Workers Union, This is an inter-union dispute, of which we are the innocent victims".
The banquet at the Imperial Hotel.
On Friday, 2nd February, 1968, there was a Mayor's banquet at the Imperial Hotel. None of the workers at this hotel was a member of the Transport Union. The banquet finished at about 10.30 p.m. The managing director, Mr. Chapman, was making his way out of the crowded dining-room when he was approached by a newspaper reporter. The reporter asked Mr. Chapman: "How do the hoteliers feel about the action of the Transport Union?" Mr. Chapman replied: "Some of those affected feel strongly. They can only take a certain amount of knocks before they will have to defend themselves.
"Mr. Michael Chapman, managing director at Torquay five-star Imperial Hotel, said last night that the Hotels' Association were now determined to stamp out the intervention of the Transport Union into the hotel trade. 'You can only take so much before you have to make a stand, and do something, and this we are going to do".
The Torquay members of the Transport Union were furious at these remarks of Mr. Chapman as reported in the newspaper. They picketed the Imperial Hotel. Mr. Lettis, the Branch Secretary, says:
"The reaction to the report of Mr. Chapman's statement was spontaneous. Pickets posted themselves at the Imperial Hotel with the object of information to those having business at the Imperial Hotel that the hotel management was in dispute with the Branch".
After the newspaper report, Mr. Pedley, the District Secretary, also became active. He went to Torquay. At 3 p.m. on the Saturday afternoon he telephoned to the Esso Company at Plymouth. That is the bulk plant which supplies oil-fuel to the Imperial Hotel. Mr. Pedley spoke to the shift supervisor, who took down this message:-
"Mr. Priistley" (sic) (Union representative) "phoned this plant today to advise that there is an official dispute with the Imperial Hotel, Torquay, Any supplies of fuel will be stopped being made. 15.00 hours, 3rd February, 1968".
In saying this, Mr. Pedley knew what would happen. Once the pickets were posted outside the Imperial Hotel (in support of the Transport Union) none of the drivers of the oil tankers would take his tanker across those picket lines (because the drivers were members of the same Transport Union.?. It is common knowledge that the drivers would not cross the picket lines.
Mr. Pedley also saw newspaper reporters and told them;
"We are pleased that Mr. Chapman has come out into the open against us because we think he is the real nigger in the woodpile, preventing us from making progress".
"He has intervened. That means sanctions and every means at our disposal will be used. We can cut off supplies at source and we are going to do that. I will put out a public warning now - we are quite prepared to put an embargo on any hotelier who intervenes".
"A bewildered Mr. Chapman denied he had made a public statement which could be regarded as intervention. 'We are not involved', he said".
"Is the strike at Torquay official? We are told that your local man telephoned our bulk plant at Plymouth and told them it was official".
"I refer to your recent esteemed order, but very much regret that we are unable to execute delivery owing to circumstances beyond our control".
Those circumstances were clearly these: The Esso drivers were all members of the Transport Union and would not cross the picket lines outside the hotel.
Oil supplies from Alternative Fuels.
Fuels Limited, who got oil from various sources, and whose drivers were not members of the Transport Union. They asked a price 50% higher than the usual price. But, nevertheless, in order to get supplies, Mr. Chapman ordered 3,000 gallons from Alternative Fuels, and made arrangements for its delivery - in secret - so that it could be got in without the pickets knowing. On Tuesday, 6th February, Mr. Nethercott held a Press Conference at Torquay. He told the reporters that the union was going to pursue the dispute as far as possible within the limits of the law. He made it clear to them that no embargo had been imposed by the Union and that any action was entirely for the union members and that no instructions or recommendations would be made by the Union to them.
"Right now at this moment it is, as I'm the first to confess, this is now an inter-union dispute".
On Monday evening, 12th February, Alternative Fuels managed to make a delivery of oil to the Imperial Hotel. The driver arrived by night and went through the back streets to the Imperial. No pickets were insight. They were apparently at a meeting. But someone told them and, as soon as the tanker had pulled into the yard, they arrived and made a disturbance. But the oil was delivered and the tanker got away safely. Afterwards, Mr. Nethercott is reported as saying to the newspapers:
"It is likely to prove a very expensive victory, not only for the hotel, but also for the 'private firm' which delivered the oil as well. It is believed to be a Cheshire firm. No further supplies will get through from that area".
The Transport Union acted quickly. On the very next day, 13th February, their District Secretary in Cheshire telephoned the Alternative Fuels, He asked: "Is CFM 912C your vehicle?" He was told, "Yes". He asked: "Was this tanker delivering oil in Torquay yesterday?". The conversation was broken off at this point. After a day or two there was a further conversation on Thursday or Friday, 15th or l6th February, when Mr. Davies, the Union representative in Cheshire, spoke to Mr. Sayers a director of Alternative Fuels in Cheshire. The union representative told Mr. Sayers, that the Imperial Hotel was "black" and that "London" were very annoyed. He also said that the oil companies were very annoyed. He said it was important that no further supplies of oil should be made to the Imperial Hotel. He made it quite clear that serious repercussions affecting Alternative Fuels would arise if further supplies were made to the hotel.
Legal action by Imperial.
By this time the Imperial Hotel had taken the advice of their solicitors. They determined to test the position by ordering some more oil from the Esso Company. On Friday, 16th February, I968, the Imperial Hotel ordered from Esso 3,000 gallons of oil for delivery on Monday, 19th February. On Saturday, 17th February, the solicitors to Imperial wrote to the officials of the Transport Union demanding that the "blacking" instructions should be withdrawn: and saying: that, unless an undertaking was received by 1 p.m. on Monday, 19th February, they would apply to the High Court. They also gave notice to them that there was an express contract between the Imperial and Esso for delivery of oil and summarised its terms.
But the Transport Union officials did not give the undertaking. They did not even reply to the letter. So the Imperial Hotel issued a writ. On 23rd February, they obtained an injunction ex parte. On 23rd May, Mr Justice Stamp granted an injunction until trial. The Transport Union and officials appeal to this Court.
The reason why the Imperial Hotel apply for an injunction is essentially quia timet. No oil has in fact been stopped from reaching the Imperial Hotel: but the Imperial Hotel fear that the Union and their officials will try to stop it unless the Court intervenes. To obtain an injunction, the plaintiffs must show that the defendants are proposing to do something unlawful.
Many grounds of unlawfulness have been canvassed before us, including inducing breach of contract, conspiracy and intimidation The Judge put the case on the broad ground that the defendants were proposing, without justification, to interfere with the contractual relations of the Imperial Hotel. He granted an injunction to restrain the defendants from procuring a breach by any supplier of oil of contracts made or hereafter to be made for delivery of fuel-oil to the hotel. On the appeal the argument covered many points which I will take in order.
1. Was there a "trade dispute"?
There was, I think, a trade dispute between the Transport Union and the Torbay Hotel, The Torbay Hotel employed workers of the Transport Union. The Union claimed that it should be recognised as having authority to negotiate on their behalf. The Torbay Hotel refused to recognise them. Such a recognition dispute is, I think, clearly a trade dispute, see Beetham v. Trinidad Cement Ltd., (1960, A.C. 132): and, none the less so, because it springs out of rivalry of one union with another union.
But I do not think there was a trade dispute between the Transport Union and the Imperial Hotel. The Imperial employed no members of the Transport Union. There was no dispute as to the wages of any of the workers in the Imperial, or as to their conditions of labour, or as to recognition on their behalf. Mr. Pain said that the Imperial Hotel, through its managing director, had taken sides in the dispute at the Torbay Hotel and could thus be regarded as parties to that dispute. But I do not think the evidence supports that view. No doubt Mr. Chapman sympathised with the employers at the Torbay, but sympathy with one side or the other does not make a person a party to the dispute.
The only question is whether the acts done by the Trade Union officials against the Imperial Hotel were done in furtherance of the trade dispute with the Torbay Hotel. I do not think they were. They were done in furtherance of the anger which they felt towards Mr, Chapman for having, as they said, "intervened" in the dispute. They were not furthering a trade dispute, but their own fury and the Act does not protect them any more than it did the defendants in Huntley v. Thornton,(1957, 1 W.L.R. 350) by Mr Justice Harman.
2.. Can the defendants take advantage of the force majeure clause?
The Imperial Hotel had a contract with the Esso Company under which the Imperial Hotel agreed to buy their total requirements of fuel-oil from Esso for one year, the quantity being estimated at 120,000 gallons, to be delivered by road tank wagon at a minimum of 3,000 gallons a time. Under that contract there was a course of dealing by which the Imperial Hotel used to order 3,000 gallons every week or ten days, and Esso used to deliver it the next day. But there was a force majeure or exception clause which said that
"neither party shall be liable for any failure to fulfil any term of this agreement if fulfilment is delayed, hindered or prevented by any circumstance whatever which is not within their immediate control, including.........labour disputes".
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:
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".
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.
"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".
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.
I do not propose to detail the facts which have been stated by the Master of the Rolls. All the trouble started because the Defendant union backed out of an inter-union agreement on spheres of influence which allotted the organisation of hotel workers in the relevant area to the General and Municipal Workers Union, with which as a result Torquay hotels agreed to and were prepared to negotiate wages and conditions of employment, Following on this a branch of the defendant union was formed to cover hotel employees in the area the view being taken (rightly or wrongly) that the General Workers Union had in this field been backward in organising union membership and in furthering the interests of hotel employees. The defendant union sought recognition by hotel proprietors in Torquay as a negotiating body for employees who were its members and hotel proprietors found themselves in some difficulty between the defendant union and the General Workers Union
who were at loggerheads over which should organise this labour in the area. No doubt also they preferred to deal with only one union: and no doubt officials of the defendant union thought that they preferred to deal with the General Workers Union as being less demanding than those officials thought they should be. Trouble arose at some hotels employing members of the Defendant Union who refused to recognise that union as a negotiating body for those members: picketing took place giving rise to difficulties in obtaining oil deliveries by tanker driver members of the defendant union. But no such trouble arose at the Imperial Hotel owned by the plaintiff: there was no dispute whether the defendant union should negotiate for its members employed at the Imperial Hotel, because there were none. The plaintiff company and its hotel were singled out for attack by the defendants solely because of the reported comment of Mr. Chapman, who is in substance the owner through the plaintiff company of the Imperial Hotel. The defendant union claims that it had a trade dispute with Mr. Chapman and, therefore, with the plaintiff company and therefore involving the Imperial Hotel because he had made a statement showing that he was critical of the activities of the defendant union in its disputes with other hotel proprietors* Now the difference between this case and the others is obvious: industrial action against the others is designed to lead to action by the others by way of recognition of the defendant Union as a negotiating body: industrial action against the Imperial Hotel could have no such end or aim: it could only be it seems to me to punish Mr. Chapman for the expression of views unpalatable to the defendant union. I do not consider that it could properly or correctly be said that the management of the Imperial Hotel was "in dispute" with the defendant union as that phrase is ordinarily understood, and as at present advised I agree that there was no trade dispute which it could fairly be said that the steps taken or threatened against the Imperial Hotel furthered.
The bulk supply contract between Esso and the Imperial Hotel was such as might be expected for an establishment the size of the latter. It was argued that the exception clause had the effect that Esso could not be in breach of its supply contract if failure to deliver was due to labour disputes. In my view, the exception clause means what it says and no more: it assumes a failure to fulfil a term of the contract - i.e. a breach of contract - and excludes liability - i.e. in damages - for that broach in stated circumstances. It is an exception from liability for non-performance rather than an exception from obligation to perform. If over a considerable period Esso failed to deliver for one of the stated reasons it seems to me that the Hotel would be entitled to repudiate the contract on the ground of failure by Esso to carry out its terms: otherwise the Hotel would be unable to enter into another bulk supply contract until the Esso contract was time expired. I will not repeat the facts as to Esso and Alternative Fuels, but it seems to me that, as they appear at present, they demonstrate an attitude on the part of the Union officials of willingness directly to induce breaches of contract for the supply of fuel oil to the Imperial Hotel in order to carry out a policy of punishing Mr. Chapman for his temerity in being critical of the union. This justifies a continuance of the injunction pending trial. At trial the evidence may appear in a different light, and other considerations such as conspiracy and intimidation will have to be dealt with in the light of the full evidence. In the meantime, the plaintiff company should be protected against what could be virtual destruction of its undertaking.
I have been in some doubt on the position of Mr. Cousins -whether the inference should at this stage be drawn that as General Secretary he would be ready to lend his authority to further attempts to induce oil suppliers not to fulfil their contracts with the Imperial Hotel. On the whole I think he was rightly included in the injunction on the present state of the evidence.
1. Has it been established that one or more of the defendants has an attitude of mind towards the proprietors of the Imperial Hotel likely to be manifested by tortious conduct?
2. Would such conduct were it to materialise be rendered non-actionable?
(a) in the case of individual defendants by Section 3 of the Trade Disputes Act, 1906;
(b) in the case of the Union by Section 4 of that Act?
"an action against trade union........in respect of any tortious act alleged to have been committed by or on behalf of the trade union shall be entertained by any Court".
"framed with intentional width to cover all remedies asked for in relation to a tortious act whether committed or about to be committed".
"I cannot think that Parliament intended to allow injunctions to be granted in respect of acts for which, when done, no damages could be claimed, and therefore, though I feel I am straining the language of the Act, I must read "alleged to have been committed"
as including allegations that trade unions are about to commit tortious acts". Lord Justice Atkin said at page 92 that he shared this opinion. Lord Justice Bankes did not deal with the point.
"an action against the respondent society in its registered name....... claiming an injunction and such further relief as the court might direct".
"the Court is entitled to grant an injunction (scilicet against a union) to prevent an apprehended injury.....and all the more so if the Statute has provided that if in fact the tort is committed he shall be left without remedy".
"Strictly speaking, those words do not forbid an action for an injunction in respect of a tortious act which is about to be committed. But in Ware and de Freville v. Motor Trade Association, Lord Justice Scrutton, with the concurrence of Lord Justice Atkin, thought that the words should be so construed as to forbid injunctions also. I hesitate to differ from so great authority; and on this account I would not be prepared to grant an injunction. But a declaration I would grant......."
It is true that no breach by Alternative Fuels Ltd. of any contract between that company and the company owning the Imperial Hotel in fact occurred; nor is it even established that had any such contract been made and become known to the defendants any of them would have set about procuring a breach of it. On the other hand, the District Secretary in Cheshire of the defendant union did not enquire whether the delivery of oil which he knew had been made by the company to the Imperial Hotel had or had not boon a delivery made pursuant to a contract, either for an isolated quantity or as a part delivery against a bulk contract. Even a single delivery of goods bought is made in performance of a contract for sale and delivery: it seems to have been fortuitous that the delivery made on 12th February was not intercepted by the pickets since they were absent at a meeting.
The evidence does not establish that in consequence any quantity of fuel which had been ordered was not delivered: no breach of contract by Esso was induced. However, the argument of Mr. Pain that Clause 10 of the written contract between Esso and the Hotel company for a year's supply would have operated to prevent a failure or failures to deliver ordered instalments of fuel thereunder from being a breach does not seem to me to be sound. As I construe the clause it affords only an immunity against any claim for damages; it could not bar a right to treat the contract as repudiated by continuing breach: despite the clause Esso could well have been held to have committed a breach by non-delivery and Mr Pedley came close to committing a tort of the Lumley v. Gye type.
Nevertheless, it is perhaps desirable, since so much argument has been heard about the matter, that a view should be expressed. In my opinion, there was at the material times a trade dispute between the union and the Torbay Hotel: none between the Union and the Imperial Hotel proprietors. Nor do I think that the "blacking" of the Imperial is properly to be regarded as an act done in furtherance of the Torbay dispute. Any dispute between the union and Mr. Chapman, or his company, was a personal dispute: a union may have a dispute with an individual whose view about the merits of a trade dispute or an issue in that dispute the union wishes to controvert or cause to be disclaimed. Yet there may in such a case be between the same parties no trade dispute as defined in Section 3, which stresses primarily the characteristic of a dispute with an employer; neither Chapman nor the Hotel employed any T.G.W.U. members. In the present case I reserve my opinion upon the question whether there can ever be a trade dispute within the section with any person who is not an employer of a member or members of the Union claiming to be in dispute with him: as at present advised I think not. Whilst he was not concerned to rule upon this question, Lord Pearce was, I venture to suppose, thinking somewhat as I do when he said in Stratford v. Lindley,(1965 A.C. 336):
"The apparent object of Section 3 was to protect a trade union official in just such a situation against an action by the employer. The only person who could sue him for his conduct 'on the ground only that it induced some other person to break a contract of employment' would be the party to the contract, namely, the employer. And it was the position between him and the employer with which the first limb of Section 3 was dealing........"
The present case is not concerned with any threat or intimidation: it is a simple case of conduct evidencing, as the Judge thought and I agree, such a disposition to induce or produce to the prejudice of the Imperial Hotel non-performance of contracts of their suppliers that relief by injunction was appropriate. As I think, once it is established that an individual or company which can only keep going by receiving, periodically, certain essential commodities, habitually receives them from a certain supplier, and this fact is well known, it is an unreal exercise to trouble to investigate how much any person knew about the precise contractual terms on which such supplies were obtained.
It would be otiose to repeat the thorough survey of the factual events provided in the judgment of my Lord, the Master of the Rolls which I have had the great advantage of reading. I agree with him that the Court should not differ from the learned Judge with regard to the subjection of Mr. Cousins to the injunction: the case against him is less plain than it is against the other appellants: but it would be very remarkable if the Chester Secretary, Mr. Davies, were activated in the dispute direct from Torquay or Bristol without any authority or knowledge plus tacit approval of the General Secretary in London: Mr. Cousins has maintained in the action hitherto a somewhat excessive taciturnity.
I agree with the outcome of the appeal proposed by my Lord, the Master of the Rolls.
THE MASTER OF THE ROLLS: On interlocutory proceedings?
THE MASTER OF THE ROLLS: Does not the Union stand behind them?
MR CAMPBELL: First of all, the rule of court, my Lord —
LORD JUSTICE RUSSELL: No, no — the section.
"No action or other proceedings shall be open to objection on the ground that merely a declaratory judgment or Order is sought thereby".
MR CAMPBELL: If that be the reasoning —
LORD JUSTICE RUSSELL: I am speaking for myself, Mr Campbell.
THE MASTER OF THE ROLLS: That in the Boulting case is probably wrong.
THE MASTER OF THE ROLLS: We will see what Mr Pain has to say. What do you say about costs?
THE MASTER OF THE ROLLS: Give you plaintiffs' costs in action?
MR CAMPBELL: That in fact took, I would have submitted, not more than one day.
THE MASTER OF THE ROLLS: You will have to have some reduction on that account,
MR CAMPBELL: I could not improve on the position as stated by Lord Upjohn.
THE MASTER OF THE ROLLS: Yes. Mr Pain?
THE MASTER OF THE ROLLS: I see your point on that,
MR PAIN: Either both sides should have it —
THE MASTER OF THE ROLLS: Either both sides go or both sides stay?
LORD JUSTICE RUSSELL: Are you resisting the application by Mr Campbell?
LORD JUSTICE RUSSELL: That you have a go too?
THE MASTER OF THE ROLLS: I think we understand that.
MR PAIN: My Lord, I entirely agree.
MR PAIN: No, my Lord, I think that is right.
LORD JUSTICE RUSSELL: It would not solve the point?
LORD JUSTICE RUSSELL: I follow that.
MR PAIN: Therefore, as between the parties ---
THE MASTER OF THE ROLLS: If it is going to the House of Lords, let the whole thing go?
THE MASTER OF THE ROLLS: Yes, I see that. That is that point. What about this question of costs?
MR PAIN: He could not discontinue it at this stage of the action, I agree.
MR PAIN: I have not thought of that yet. I might be entitled.
(The Court conferred.)
MR CAMPBELL: To be taxed and paid in any event?
LORD JUSTICE RUSSELL: No, not taxed and paid. To be the plaintiffs' costs in any event.