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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Rookes v Barnard (No 1) [1964] UKHL 1 (21 January 1964)
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Cite as: [1964] AC 1129, [1964] UKHL 1

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JISCBAILII_CASE_TORT

    Die Martis, 21° Januarii 1964

    Parliamentary Archives,
    HL/PO/JU/4/3/1122

    Dates of hearing: 1st, 2nd, 3rd, 4th, 8th, 9th, 10th, 11th, 15th, 16th July,
    4th, 5th, 6th, 7th and 11th November, 1963

    HOUSE OF LORDS

    Tuesday, 21st January, 1964

    ROOKES (A.P.) - - - - - - - - - - - Appellant.

    v.
    BARNARD and ors. - - - - - - - - - Respondents.

    Lords Present :
    lord reid
    lord evershed
    lord hodson
    lord devlin
    lord pearce

    Counsel for the Appellant:
    the hon. S. C. silkin, Q.C. and mr. A. de piro

    Solicitors:

    Messrs. Lewis Silkin & Partners, 225/229, Rye Lane. Peckham,

    London, S.E.15.

    Counsel for the Respondents :
    mr. gerald gardiner, Q.C. and mr. P. colin duncan. Q.C.

    Solicitor :
    Mr. W. H. Thompson, 1, Serjeants' Inn, Fleet Street, London. E.C.4.

    CONSIDERATION OF REPORT FROM THE APPELLATE

    COMMITTEE

    Lord Reid

    MY LORDS,

    I beg to move that the Report of the Appellate Committee be now
    considered.

    Question Put:
    That the Report of the Appellate Committee be now considered.

    The Contents have it.

    HOUSE OF LORDS

    ROOKES

    v.

    Lord Reid
    Lord Evershed
    Lord Hodson
    Lord Devlin
    Lord Pearce

    BARNARD and Others

    Lord Reid

    MY LORDS,

    The Appellant was employed for many years by B.O.A.C. as a skilled
    draftsman in their drawing office at London Airport. He was a member of,
    a Trade Union, the Association of Engineering and Shipbuilding Draughtsmen
    (A.E.S.D.) to which all who were employed in that drawing office belonged.
    He and another man, Unwin, became dissatisfied with the conduct of the
    Union and resigned from it. The Union were very anxious to preserve
    the position that no non-member should be employed in that office and they
    took energetic steps to get these two men to rejoin. Unwin agreed to
    rejoin, but the Appellant refused. As a result of steps taken by the Union
    and its members, B.O.A.C. were induced first to suspend the Appellant
    and then to terminate his employment after giving him due notice. The
    Appellant has no remedy against B.O.A.C. They neither broke their
    contract with him nor committed any tort against him. In this action the
    Appellant seeks a remedy against two members and an official of the Union
    on the ground that they wrongfully induced B.O.A.C. to act as they did.
    The action was tried by Sachs J. with a jury, and the Appellant was awarded
    £7,500 damages. The Court of Appeal held that the Respondents had not
    committed any tort, and the first question in this appeal is whether the
    Respondents' actions were tortious. If that question is answered in the
    affirmative, a second question arises whether the Respondents are absolved
    from liability by the provisions of the Trade Disputes Act, 1906: it is
    admitted that the Respondents' acts were done in furtherance of a trade
    dispute.

    Certain agreed questions were put to the jury and their answers are not
    challenged. The questions are not entirely free from ambiguity and, in
    order to understand them, we can look at the summing-up of the learned
    judge. But we cannot go beyond the questions so explained and the jury's
    answers. The questions are as follows: —

    Questions Answers

    1. Was there a conspiracy to threaten strike action
    by the members of A.E.S.D. against B.O.A.C. to
    secure the withdrawal of the Plaintiff from the

    Design Office ... ... ... ... ... ... ... ... … There was

    If so:

    1. Was Barnard a party? ... ... ... ... ... ... He was

    2. Was Silverthorne a party? ... ... ... ... ... He was

    3. Was Fistal a party? ... ... ... ... ... ... ... He was

    2. Was a threat to take strike action against

    B.O.A.C. to secure the withdrawal of the Plaintiff
    from the Design Office made by

    1. Barnard ... ... ... ... ... ... ... ... … It was

    2. Silverthorne? ... ... ... ... ... ... ... ... It was

    3. Fistal? ... ... ... ... ... ... ... ... … It was

    3. Did threats of strike action by members of
    A.E.S.D. cause

    (a) the suspension of the Plaintiff was his work

    at B.O.A.C.? ... ... ... ... ... ... ... ... ... They did

    1. The dismissal of the Plaintiff from B.O.A.C. They did


    2

    Questions Answers

    4. (a) What damages should be awarded to the
    Plaintiff if the threats of strike action caused
    the Plaintiff's dismissal £7,500

    (b) What damages should be awarded to the
    Plaintiff if the threats of strike action caused
    the Plaintiff's suspension (but not his

    dismissal)? ... ... ... ... ... (Not answered)

    Barnard was the chairman of the local branch of the Union and Fistal
    was a shop steward. Silverthorne was an official of the Union but not a
    member of it. There was negotiations which I need not deal with. The
    matter was brought to a head by a meeting of the members on 10th January,
    1956, which resolved unanimously: " We, the members of the A.E.S.D.,
    " inform B.O.A.C. that if the Non-Unionist Mr. D. E. Rookes is not removed
    " from the Design Office by 4 p.m., Friday, 13th January, 1956, a withdrawal
    " of labour of all A.E.S.D. Membership will take place ". If the Members
    had ceased work or come out on strike at that time they would have done
    so in breach of their contracts with B.O.A.C. An agreement had been made
    in 1949 between the Employers' and Employees' sides of the Draughtsmen's,
    Planners' and Tracers' Panel of the National Joint Council for Civil Air
    Transport which contained an undertaking that no lockout or strike would
    take place, and provided that any dispute should be dealt with as provided
    for in the constitution of the Joint Council. It is admitted that the provisions
    of that agreement had been made a term of all the contracts of employment
    of the men who took part in the meeting of 10th January, and that if they
    had withdrawn their labour on 13th January they would have been in breach
    of their contracts with B.O.A.C.

    When this resolution was presented to B.O.A.C. they suspended the
    Appellant land removed him from the Design Office, as the resolution
    required. There was considerable argument about the parts played by the
    three Respondents but we must take it from the jury's answers that the
    presentation of this resolution to B.O.A.C. was in pursuance of a conspiracy
    to which the three Respondents were parties, that it was a threat of strike
    action, and that this threat caused B.O.A.C. first to suspend and then to
    dismiss the Appellant. This was not a case of the Respondents merely
    informing B.O.A.C. that the men would strike if their terms were not
    accepted ; no questions were put to the jury suggesting any defence based
    on that ground.

    This case, therefore, raises the question whether it is a tort to conspire to
    threaten an employer that his men will break their contracts with him unless
    he dismisses the plaintiff, with the result that he is thereby induced to
    dismiss the plaintiff and cause him loss. The magnitude of the sum awarded
    by the jury shews that the Appellant had every prospect of retaining his
    employment with B.O.A.C. if the Respondents and other conspirators
    had not interfered: leaving the Trade Disputes Act out of account, if
    B.O.A.C. had been induced to dismiss the Appellant in breach of their
    contract with him then there is no doubt that the Respondents would have
    committed a tort and would have been liable in damages (Lumley v. Gye
    2 E. & B., 216). Equally, there is no doubt that men are entitled to threaten
    to strike if that involves no breach of their contracts with their employer,
    and they are not trying to induce their employer to break any contract with
    the plaintiff. The question in this case is whether it was unlawful for them
    to use a threat to break their contracts with their employer as a weapon to
    make him do something which he was legally entitled to do but which they
    knew would cause loss to the plaintiff.

    The first contention of the Respondents is very far reaching. They say
    there is no such tort as intimidation. They would mean that, short of com-
    mitting a crime, an individual could with impunity virtually compel a third
    person to do something damaging to the plaintiff which he does not want to
    do but can lawfully do the wrongdoer could use every kind of threat to
    commit violence, libel or any other tort, and the plaintiff would have no

    3

    remedy. And a combination of individuals could do the same, at least if
    they acted solely to promote their own interests. It is true that there is no
    decision of this House which negatives that argument. But there are many
    speeches in this House and judgments of eminent judges where it is assumed
    that that is not the law and I have found none where there is any real
    support for this argument. Most of the relevant authorities have been
    collected by Pearson, L.J. and I see no need to add to them. It has often
    been stated that if people combine to do acts which they know will cause
    loss to the plaintiff, he can sue if either the object of their conspiracy is
    unlawful or they use unlawful means to achieve it. In my judgment, to
    cause such loss by threat to commit a tort against a third person if he does
    not comply with their demands is to use unlawful means to achieve their
    object.

    That brings me to the second argument for the Respondents which raises
    a more difficult question. They say that there is a distinction between threats
    to commit a tort and threats to break a contract. They point out that a
    person is quite entitled to threaten to do something which he has a legal
    rieht to do and they say that breach of contract is a private matter between
    the contracting parties. If the plaintiff cannot sue for loss to him which
    results from an actual breach of a contract to which he is not a party, why,
    they ask, should he be entitled to sue for loss which results from a threat
    to break a contract to which he is not a party?

    A somewhat similar argument failed in Lumley v. Gye. The defendant
    had induced a singer to break her contract with the plaintiff and he knew
    that this would cause loss to the plaintiff. The plaintiff had his action
    against the singer for breach of contract and he was held also to have a
    cause of action against the defendant for the tort of unjustifiably interfering
    so as to cause him loss. The fact that the direct cause of the loss was a
    breach of the contract to which the defendant was not a party did not matter.
    So. too, the plaintiff's action in the present case does not sound in contract:
    in fact there was no breach of contract because B.O.A.C. gave in.

    The Appellant in this case could not take a benefit from contracts
    to which he was not a party or from any breach of them. But his ground
    of action is quite different. The Respondents here used a weapon in a
    way which they knew could cause him loss, and the question is whether
    they were entitled to use that weapon—a threat that they would cause
    loss to B.O.A.C. if B.O.A.C. did not do as they wished. That threat was to
    cause loss to B.O.A.C. by doing something which they had no right to do,
    breaking their contracts with B.O.A.C. I can see no difference in principle
    between a threat to break a contract and a threat to commit a tort. If a third
    party could not sue for damage caused to him by the former I can see no
    reason why he should be entitled to sue for damage caused to him by the
    latter. A person is no more entitled to sue in respect of loss which he suffers
    by reason of a tort committed against someone else, than he is entitled to sue
    in respect of loss which he suffers by reason of breach of a contract to
    which he is not a party. What he sues for in each case is loss caused to
    him by the use of an unlawful weapon against him—intimidation of another
    person by unlawful means. So long as the defendant only threatens to
    do what he has a legal right to do he is on safe ground. At least if there
    is no conspiracy he would not be liable to anyone for doing the act, what-
    ever his motive might be, and it would be absurd to make him liable for
    threatening to do it but not for doing it. But I agree with Lord Herschell
    (Allen v. Flood [1898] A.C. 1 at p. 121) that there is a chasm between doing
    what you have a legal right to do and doing what you have no legal right
    to do, and there seems to me to be the same chasm between threatening
    to do what you have a legal right to do and threatening to do what you have
    no legal right to do. It must follow from Allen v. Flood that to intimidate
    by threatening to do what you have a legal right to do is to intimidate by
    lawful means. But I see no good reason for extending that doctrine.
    Threatening a breach of contract may be a much more coercive weapon
    than threatening a tort, particularly when the threat is directed against a
    company or corporation, and, if there is no technical reason requiring a

    4

    distinction between different kinds of threats, I can see no other ground
    for making any such distinction.

    I have not set out any of the passages cited in argument because the
    precise point which we have to decide did not arise in any of the cases
    in which they occur, and it does not appear that any of the authors of these
    passages had this point in mind. Sometimes the language seems to point
    one way and sometimes another and it would, I think, be wrong in such
    circumstances to use a judge's language as authority for a proposition which
    he did not have in mind. The Court of Appeal in this case were unwilling
    to go beyond existing authorities. Sellers L.J. said " Unless authority
    " requires it, I would resist enlarging the tort of intimidation in the manner
    " sought before and accepted by the judge ", and Pearson L.J. said " Should
    " this obscure, unfamiliar and peculiar cause of action, which has its roots
    " in cases of physical violence and threats of violence, be extended to
    " cover a case in which there is only a threat to break a contract? ". I
    am afraid I take a different view. Intimidation of any kind appears to
    me to be highly objectionable. The law was not slow to prevent it when
    violence and threats of violence were the most effective means. Now that
    subtler means are at least equally effective I see no season why the law
    should have to turn a blind eye to them. We have to tolerate intimidation
    by means which have been held to be lawful but there I would stop.
    Accordingly, I would hold that on the facts found by the jury the Respon-
    dents' actions in this case were tortious.

    It is now necessary to consider whether the Respondents are absolved from
    liability by any of the provisions of the Trade Disputes Act, 1906. The
    sections on which the Respondents rely are sections 1 and 3, which are as
    follows: —

    " 1. The following paragraph shall be added as a new paragraph
    " after the first paragraph of section three of the Conspiracy and Pro-
    " tection of Property Act, 1875:—

    " ' 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.'"


    ... ... ... ... ... ...

    " 3. 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."

    Before dealing with these sections I must say a word about what the
    law was, or was thought to be, in 1906. The older law bore very heavily
    on workmen who combined to seek concessions from employers, and Acts
    passed to amend it had been strictly construed. Matters were brought
    to a head by two decisions of this House, the Taff Vale case,
    [1901] A.C. 426,
    and Quinn v. Leathem, [1901] A.C. 495. These were followed by a Royal
    Commission over which Lord Dunedin presided. The main objects of the
    1906 Act are clear enough, to protect Trade Union funds and to exclude
    conspiracy from being an element in future cases. The former does not
    arise in the present case.

    One of the difficulties facing Parliament was the uncertain state of the
    law with regard to liability for interfering with a person's trade or employ-
    ment. It is exceedingly difficult to determine just what was decided in
    Quinn v. Leathem, and I neither need nor intend to embark on that vexed
    subject. But there were at least two theories about what the law really
    was. One was that an individual was free to take any steps he chose so
    long as he used no means to achieve his end which were not unlawful for
    some reason other than that they interfered with some other person's trade

    5

    or employment; and that a combination had the same freedom, provided
    that their conduct was not dictated by a desire or intention to injure the
    Plaintiff. The other theory was that any action intended or known to be
    likely to interfere with the trade or employment of another person was
    unlawful unless it could be justified in some way. I might note that so
    late as 1908 Sir F. Pollock wrote in his Law of Torts (8th edition pp. 325-6)—
    " The present writer confesses to great difficulty in understanding why in
    " Quinn v. Leathem before the House of Lords ... it was necessary to say
    " so much about conspiracy: for the cause of action was in effect ruining
    " the Plaintiff's business by coercing his customers not to deal with him
    " which is well within a line of old authorities .... It is submitted that the
    " discussions would be materially simplified if it were understood that all
    " damage wilfully done to one's neighbour is actionable unless it can be
    " justified or excused." So it is reasonable to suppose that the intention
    was to draft the 1906 Act so that it would be equally effective whichever
    theory ultimately prevailed.

    The only difficulty about section 1 is to discover what is meant by " unless
    " the act, if done without any such agreement or combination, would be
    " actionable ". In the present case, and I have no doubt in many others,
    the precise act complained of could not have been done without previous
    agreement. The act complained of in this case was presenting to B.O.A.C.
    a resolution of all the members of the Union to which the Respondents were
    parties. There was an argument that the section requires us to suppose
    that each Respondent merely told B.O.A.C. that he would himself cease
    work if they did not get rid of the Appellant. But that would have been
    an entirely different act and probably quite ineffective as a threat. The
    section cannot reasonably be held to mean that no action can be brought
    unless the precise Act complained of could have been done by an individual
    without previous agreement or combination. In my view, the section
    requires us to find the nearest equivalent act which could have been so done
    and see whether it would be actionable. In the present case I think we
    must suppose that one of the Respondents had said to B.O.A.C. " I am
    " acting alone but I think I can and I intend to induce the men to break
    " their contracts and strike if you do not get rid of Mr. Rookes ". If the
    opinion which I have already expressed is right, that would have been
    actionable if B.O.A.C. had succumbed to that threat and got rid of the
    Appellant in the way they did. So section 1 does not help the Respondents.

    Section 3 deals with two classes of acts done by individuals, and, by
    virtue of section 1, the immunity given by section 3 to individuals must also
    extend to combination or conspiracies. The classes of acts permitted (if
    done in contemplation or furtherance of a trade dispute) are, (1) inducing a
    breach of a contract of employment and, (2) interfering with a person's
    trade, business or employment or right to dispose of his capital or labour
    as he wills. The facts in this case fall within the second class: if B.A.O.C.
    had not safeguarded themselves by giving notice to the Appellant but had
    dismissed him summarily the case would have come within the first class.

    In considering the proper construction of this section I think it makes for
    clarity to take the first class first. The first class of acts are those within
    the principle in Lumley v. Gye, and there can be no doubt that if no more
    than mere persuasion is used to induce a breach of contract this section ousts
    the principle in Lumley v. Gye. But suppose that the Defendant had to go
    further than mere persuasion and told deliberate lies or used intimidation
    to induce the breach of contract—is he then still protected by section 3?
    Section 3 provides that the act complained of shall not be " actionable on
    " the ground only " that it induces a breach of contract. That is a very
    difficult phrase to construe. An Act which induces one party to a contract
    to break it is never actionable at the instance of the other party to the
    contract merely on that ground. In addition, the Plaintiff must at least
    allege and prove that the Defendant intended to cause him loss, or at least
    knew that his intervention would cause him loss, and that he has suffered
    loss. In this context it appears to me that " actionable on the ground only "
    can only have one or other of two meanings. It could mean shall not be

    6

    actionable if the Plaintiff cannot succeed in his action without alleging and
    proving inducement of breach of contract. Or it could mean shall not be
    actionable if the act done by the Defendant is only unlawful or actionable
    because, or " on the ground " that, it induces the breach of contract. These
    two meanings lead to entirely different results. Whether the weapon used
    to induce the third party to break his contract with the Plaintiff be mere
    persuasion or an extreme form of deceit, slander or intimidation the Plaintiff
    cannot succeed without proving that it caused or induced the breach of his
    contract. So if the first meaning be the right one this section gives a general
    immunity or licence however illegal the means used to induce the breach of
    contract. That was not and could not be denied by the Respondent's
    counsel. But, on the other hand, if the second meaning is correct, then
    the immunity or licence only applies so long as the Defendant has not used
    any unlawful means to induce the breach. If the Defendant had used
    slander or intimidation, which are in themselves tortious, the Plaintiff would
    sue on that ground, although he would still have to prove the damage
    resulting from his dismissal.

    It was argued for the Respondents that Parliament must have intended
    to extend immunity to all ordinary methods of inducing breach of contract
    used in strikes or other trade disputes, and that the use of methods such as
    these Respondents used were commonplace. But it was not suggested that
    the use of deceit, slander or more extreme methods of intimidation were or
    are in general use, and it was hardly suggested that Parliament must be
    supposed to have intended to license them. And I cannot find any general
    indication of intention favourable to the Respondents in other sections of
    the Act. Section 2 licenses picketing merely for the purpose of peacefully
    persuading, so there is no extensive licence there. Section 4 does give
    general immunity to trade unions, as distinct from their members. But there
    the language is very different—" an action against a trade union ... in
    " respect of any tortious act. . . shall not be entertained by any court".
    The protection of individual members is left to section 3. So we are
    thrown back to the language of section 3 itself without any very clear guid-
    ance either from the nature of the mischief which Parliament had to remedy
    by the Act or from other sections of the Act.

    The only important authority is in the speech of Lord Loreburn in
    Conway v. Wade [1909] A.C. 506. I shall have to deal with this case at
    some length when I come to the second half of section 3. He said: "It is
    " clear that, if there be threats or violence, this section gives no protection

    " . . . If the inducement be to break a contract without threat or violence,
    " then this is no longer actionable ". Counsel had to argue that this was
    wrong, and he was quite entitled so to argue because the whole passage
    was obiter. But there was no dissent from this by any other member of the
    House, and, as Lord Loreburn was Lord Chancellor when the 1906 Act
    was passed, he must have been well acquainted with its provisions. His
    speech has been quoted with approval in a number of later cases but I
    do not set great store by that because the matter never seems to have been
    fully argued.

    I would hold that what I have called the second meaning of this part
    of section 3 is the right one—that it does not protect a person who induces
    a breach of contract by tortious means—both on the authority of Lord
    Loreburn and because it appears to me to be the better construction. The
    words " on the ground only " are clearly intended to limit the scope of the
    section, and if the first meaning for which the Respondents contend were
    right, there would be hardly any limit to its scope. It would give immunity
    in almost every case of inducing a breach of contract that seems likely
    to arise in connection with a strike or threatened strike. Section 4 makes
    it quite clear that there is complete immunity for the trade union itself,
    and I cannot believe that the very guarded language of section 3 would
    have been used if it had been intended to give in addition almost com-
    plete immunity to all individuals acting in contemplation or furtherance of
    a trade dispute.

    7

    I have dealt at some length with the interpretation of the first part of
    section 3 because I have come to think that it throws a great deal of light
    on the second part. The second part is much more difficult to construe. I
    must admit that on a consideration of the second part by itself I was
    inclined to think that it was applicable to the present case. If the second
    part of the section had to be construed in light of the law as we now know
    it to be and without reference to the first part I would still be inclined to
    construe it in the way for which the Respondents contend. But I do not
    think that it is proper to approach the problem in that way. In construing
    an Act of Parliament we are attempting to find the intention of Parlia-
    ment. We must find that intention from the words which Parliament has
    used but these words must be construed in the light of the facts known
    to Parliament when the Act was passed. One assumes that Parliament
    knows the law, but if the law is notoriously uncertain we must not attribute
    to Parliament prescience of what the law will ultimately be held to be. In
    1906 the law with regard to lawful and unlawful interference with a person's
    trade, business or employment was quite uncertain. By 1925 Lord Dunedin
    was able to speak of one view as " the leading heresy " (Sorrell v. Smith
    [1925] A.C. 700 at p. 719). But there were still some doubts. As Lord
    Maugham pointed out in Crofters Harris Tweed v. Veitch [1942] A.C. 435
    at p. 450, Lord Dunedin had taken a somewhat different view from that
    of the majority in Sorrell v. Smith. It often takes a long time to determine
    what is heresy and what is orthdoxy, and there can be no better witness
    about what was thought to be the law in 1906 than Lord Loreburn who
    was Lord Chancellor when the Trade Disputes Act was passed. He said
    in Conway v. Wade [1909] A.C. 506 at p. 510—" It is necessary to consider
    " how the law stood before 1906 ... it is material to see in what circum-
    " stances an individual could be sued for inducing someone not to employ
    " or not to serve another ... I think on that point the law stood as follows.
    " If the inducement was accompanied by violence or threats (always remem-
    " bering that a warning is one thing and a threat is another) there was a
    " good ground of action. I next suppose there was no violence and no
    " threat, and yet the inducement involved a breach of contract. There also
    " it was established, after a long controversy beginning with Lumley v. Gye
    " in 1853 that an action could be maintained, unless at all events some suffi-
    " dent justification could be made good. But suppose one person simply
    " induced someone not to employ another or not to serve another, without
    " violence or threat or breach of contract, would an action lie, and in what
    " circumstances, in such a case? I believe there has not been an exhaustive
    " answer to that question. The further difficulty arises, what is a sufficient
    " justification? Is it supplied by self-interest, or by trade competition, or
    " by what other condition or motive? No answer in general terms has ever
    " been given, and perhaps no answer can be given. A parallel difficulty
    " arises where the inducement is by two or more persons acting together."

    If that is a correct statement of the position in 1906—and I think it is—
    there were three classes of inducement which Parliament had to consider,
    (i) inducement accompanied by violence or threats (ii) inducement involving
    a breach of contract, and (iii) mere inducement alone. As regards (i) and (ii)
    the law was thought to be clear, as regards (iii) it was not. Section 3 is
    silent as to (i), so one might think that it leaves the existing liability unaltered.
    It deals with (ii) and (iii). I have stated my opinion as to how it deals
    with (ii); it confers immunity, provided that there is no further element of
    illegality, such as intimidation. The question is how it deals with (iii).
    Does it there go farther and confer immunity even where there is intimida-
    tion. The general plan of the section appears to be to treat (ii) and (iii) in
    precisely the same way, and it would seem a strange result if the liability
    of the present defendants depended on the method which B.O.A.C. adopted
    in acceding to their demands that the Appellant should be removed from
    the Design Office within a few days. If they had summarily dismissed him
    the case would have fallen under head (ii), and the defendants would have
    been liable. But can it be said that the fact that B.O.A.C. chose only to
    suspend him and then give him notice, which puts the case within head (iii),

    8

    makes all the difference and saves the Respondents from any liability to
    him? That may be the necessary result of the way in which the section
    is drafted, but it could hardly have been the intention of Parliament.

    I must now return to what Lord Loreburn said in Conway v. Wade. It is
    true that all this was obiter as regards section 3, because it was held that
    there was no trade dispute. Until the case reached this House there were
    only two issues—whether the jury's findings could be supported, and what
    was meant by " in contemplation or furtherance of a trade dispute ". Wade
    had " acted as mischief-maker in order to injure the plaintiff from unworthy
    " motives " (per Lord Loreburn at p. 509) by procuring his dismissal. He
    had threatened that he would call out the other men when he had neither
    the power nor the right to do that, and the employers gave way to this
    deceitful threat. It was argued for the first time in this House that, apart
    from the statute, Wade was guilty of no actionable wrong. This House
    had no difficulty in holding that he was, and they held, reversing the Court
    of Appeal, that he had not acted " in contemplation or furtherance of a
    " trade dispute." So Conway won his appeal. Lord Loreburn, after
    quoting section 3, said :

    " Let me see how this alters the pre-existing law. 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, provided always
    " that it was done ' in contemplation or furtherance of a trade dispute '.
    " What is the meaning of these words I will consider presently. In this
    " respect there is a change. 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 action-
    " able, provided that it was done ' in contemplation or furtherance of
    " ' a trade dispute.' So there is no longer any question in such cases,
    " whether there was ' sufficient justification ' or not. The condition
    " contained in these words as to trade dispute is made sufficient."

    Lord Loreburn had no doubt that section 3 affords no protection if there
    are threats or violence. If a threat to break a contract amounts to unlawful
    intimidation, that covers the present case, for he draws no distinction
    between the two classes of acts covered by section 3. His opinion was
    obiter and he may have been wrong, but Lord MacNaghten and Lord Gorell
    concurred with him and I find no suggestion in other speeches to the con-
    trary. It can be argued that the reason which he gave is wrong in part.
    The argument is that, although he may have been right in saying that where
    there are threats or violence, there is some other ground of action when
    the act complained of is inducing a breach of contract, he was wrong
    when the act complained of is mere interference with the plaintiff's trade,
    business or employment.

    But Parliament had to provide for the possibility that mere interference,
    if no legal justification were proved, would be held to be a tort, and I think
    that what Parliament did in enacting the second part of section 3 was to
    put in a provision which would be necessary to achieve their object if the
    law should go one way but unnecessary if it went the other way. So I
    would hold that section 3 means that if mere interference is or can be a
    tort then there shall be no liability, where a trade dispute is involved, " on
    " the ground only " of that interference.

    If that is right then the protection given by section 3 is no wider in scope
    as regards acts within the second half than it is with regard to acts within the
    first half. Parliament might have enacted that the protection given by
    section 3 shall only apply so long as no illegal means such as intimidation
    are used to achieve the breach of contract or interference with trade, business
    or employment, or Parliament might have enacted that the protection shall

    9

    extend to all cases, no matter how illegal may have been the means
    employed. But to draw a distinction and restrict protection of inducement
    of breach of contract to cases where no illegal means are employed, but
    extend protection of interference to all cases no matter how unlawful the
    means employed is something that I cannot think Parliament could have
    intended and therefore a construction of the section which I would only
    accept if its words are incapable of any other.

    In my judgment, it is clear that section 3 does not protect inducement
    of breach of contract where that is brought about by intimidation or other
    illegal means and the section must be given a similar construction with
    regard to interference with trade business or employment. So, in my
    opinion, the section does not apply to this case because the interference
    here was brought about by unlawful intimidation. I would therefore allow
    this appeal.

    But that does not end the case, because the Respondents maintain that,
    by reason of misdirection of the trial judge in the matter of damages, the
    jury's award of £7,500 cannot stand and there should be a new trial on
    amount of damages. There is no doubt that the jury were directed that it
    was open to them to award punitive or exemplary damages, and indeed they
    might fairly assume from the summing up as a whole that that would be
    their proper course if they did not accept the Respondents' case on provoca-
    tion. As they awarded a single sum we do not know how much they intended
    10 award in respect of financial loss or how much they added on as punitive
    damages, but it is fairly obvious that they must have added a considerable
    sum. The Respondents contend that there is nothing in the facts of this
    case to justify any award of punitive damages and that the trial judge
    ought to have directed the jury to that effect.

    It appears that at the trial counsel for the Respondents did not take the
    point that exemplary damages could not be awarded in this case: he merely
    argued to the jury that for various reasons they should not award any. So
    the Appellant now submits that it is too late to take the point now. In
    many cases it would be wrong to allow a new and belated point to be argued.
    But here there is no question of the point not being open on the pleadings
    and I have been unable to see that the Appellant can have been in any way
    prejudiced in the presentation of his case by the point not having been
    taken. It is not a case in which it can be said that the course of examination
    and cross-examination of witnesses might have been different. This seems
    to me to be a pure point of law which we could properly admit in our
    discretion.

    I have read and considered the speech of my noble and learned friend
    Lord Devlin and I am in full agreement with his treatment of the subject
    ot exemplary damages. I would therefore allow this appeal and order a new
    trial on the question of damages. In the whole circumstances I think that
    the costs of the previous trial ought to abide the result of the new trial
    and be dealt with by the trial judge, and that the Appellant should now
    be awarded his costs in this House and in the Court of Appeal.

    Lord Evershed

    MY LORDS,

    As I begin to apply myself to the task of formulating my opinion in this
    important and difficult case, I have much in mind the observations of
    Scrutton L.J. when delivering his judgment in the Court of Appeal in the
    analogous case of Ware and de Freville, Ltd. v. Motor Trade Association
    [1921] 3 K.B. 40 at p. 66. That most learned Judge then referred to the
    mass of authorities and dicta, many of them contradictory, contained in
    ten House of Lords cases and many cases in the Court of Appeal and to the
    " able and conscientious attempts" by judges of first instance "to state
    " the results of decisions by which they are bound, and by which they

    10

    " should be enlightened "; and he went on to state that the only tribunal
    which could bring order into chaos was your Lordships' House. There have
    since been the two important decisions of the House in Sorrell v. Smith
    [1925] A.C. 700, and Crofter Hand Woven Harris Tweed Company, Ltd. v.
    Veitch [1942] A.C. 435 ; and so in the present case the attention of your
    Lordships has been drawn to the important speeches in these two cases
    as well as to all the speeches and dicta in the earlier cases to which Scrutton
    L.J. referred, and I cannot maintain any confident hope that in the present
    case order will have been so brought into chaos that, upon some future
    occasion, it will not be found necessary to refer to the opinions now being
    expressed in addition to all those that have gone before. Such, indeed, is
    the importance of the questions now presented to your Lordships and such
    is the difficulty which the history of the relevant law and the language of
    the Trade Disputes Act, 1906, has attached to their solution.

    The essential facts of the present case may be shortly stated. The Appellant
    before your Lordships' House, the Plaintiff in the present proceedings, having
    been for some years employed by British Overseas Airways Corporation
    (hereafter called B.O.A.C. in the year 1955 quarrelled with the Trade Union
    known as the Association of Engineering and Shipbuilding Draughtsmen
    (hereafter called A.E.S.D.) to which he had belonged and of which indeed
    he had been an officer. In the result, he resigned from the Union, and efforts
    made at the end of the year to make him rejoin were without effect. In
    the result, in the month of December, 1955, and January, 1956, the three
    Defendants to the action—the Respondent, Mr. Barnard, Mr. Silverthorne
    and the Respondent, Mr. Fistal—(of whom the second, Mr. Silverthorne,
    died since the proceedings commenced and has been replaced by his personal
    representative, the second Respondent)—being all officials of the A.E.S.D.
    proceeded to make communications to B.O.A.C. to the effect that, unless
    the services of Mr. Rookes were determined by B.O.A.C. all their other
    employees in the same department, in number about 70 and all members of
    the A.E.S.D., would come out on strike—and possibly other servants of
    B.O.A.C. as well. I have so far deliberately used imprecise language; but
    the effect was that (as has been conceded throughout by the Appellant) a
    "trade dispute" within the meaning of the Trade Disputes Act, 1906, had
    arisen. B.O.A.C. thereupon at first suspended the Appellant and later, by
    appropriate notice, determined his contract of service. It is to be noted that
    there was no breach by B.O.A.C. of the Appellant's service agreement.

    If the matter rested only upon the facts as I have stated them, the answer
    to the Appellant's claim would have been short and simple. As I have
    said there was no breach of the Appellant's contract and it has long
    been recognised that strike action or threats of strike action (however
    those terms be interpreted—and I have in mind what fell from Donovan
    L.J. in his judgment in the Court of Appeal) in the case of a trade dispute
    do not involve any wrongful action on the part of the employees, whose
    service contracts are not regarded as being or intended to be thereby
    terminated. So much was stated by Lord Watson in his speech in Allen
    v. Flood [1898] A.C. 1 at p. 99 and has, as I believe, been since consistently
    followed—see e.g. per Lord Sterndale, M.R. in White v. Riley [1921]
    1 Ch. 1 at p. 15. Moreover, such action on the part of the members of
    the A.E.S.D. would, to say the least, not be surprising since there was a
    recorded understanding between B.O.A.C. and the several unions, members
    of which were in the service of B.O.A.C., that if in any section of B.O.A.C.'s
    work 100 per cent, membership of the relevant union was achieved, then
    B.O.A.C. would not employ in that section any non-union labour.

    But the circumstances of the present case are distinguished by one very
    important fact. On the 1st April, 1949, an agreement in writing was made
    between the Employers' and Employees' sides of the Draughtsmen, Planners
    and Tracers Panel, clause 4 of which provided that in the event of any
    relevant trade dispute, there should not be a strike or a lock out but that
    the dispute should be resolved in the manner therein indicated. It has
    been conceded throughout these proceedings on the part of the Defendants
    and Respondents that the terms of this clause should be regarded as

    11

    incorporated in and forming part of the contract of service with B.O.A.C.
    of every member of the A.E.S.D. It follows accordingly that strike action
    or threats of strike action by employees of B.O.A.C. who were members
    of the A.E.S.D. would constitute breaches or threats of breaches by them
    of their service contracts. So it is of the essence of the Appellant's case
    that the acts of which he has complained constituted threats of wrongful
    acts, that is, of breaches of contract, aimed and directed at the Appellant's
    employment, so as to cause, as they did, its determination; and that such
    acts were therefore actionable at the Appellant's suit.

    I was for myself somewhat troubled in the course of the argument by
    the question, what precisely were the " threats " on the part of the three
    Defendants of which the Appellant complained. The answer to the question
    is, however, as I conceive, to be found in the form of the second question
    put to the jury by Sachs J. and the jury's answer thereto—the form of
    such question having, as your Lordships were informed, been agreed by
    the learned counsel appearing on both sides before the learned Judge. The
    question was as follows: " Was a threat to take strike action against
    " B.O.A.C. to secure the withdrawal of the Plaintiff from the Design Office
    " made by " each of the three Defendants?—and the jury gave an affirmative
    answer in each case. I am satisfied that the form of the question and
    the answer given must be taken to have meant that each Defendant
    threatened that strike action would in fact be taken by all the members
    of the A.E.S.D. unless the Appellant's services were terminated. The
    Ihreat, therefore, made by each Defendant was not merely that he himself
    would go on strike (for the coercive effect of such a threat standing by
    itself would be negligible—and the second Defendant Mr. Silverthorne
    was not himself in fact in the service of B.O.A.C.); nor was it, on the
    one hand, mere information that a strike would or might occur or, on
    the other, a threat to procure such strike action. It was, as the words
    of the question implied, a threat that strike action on the part of all the
    A.E.S.D. men would in fact occur unless the Plaintiff were withdrawn
    from the Design department. And since all three Defendants were officials
    of the Union there can be no doubt that they could effectively so threaten
    and were understood by B.O.A.C. so effectively to threaten. It may,
    moreover, be added that on the 10th January, 1956, a resolution to that
    effect had been passed by the Union men and a written copy of the
    resolution was immediately afterwards handed by the third Defendant to
    a representative of B.O.A.C.

    Assuming, therefore, (1) that each Defendant did so threaten and effec-
    tively threaten, (2) that, because of the special term deemed to be incor-
    porated in each union man's service contract, the threat was of unlawful
    action on the part of all these men in the sense of constituting a threat
    to commit a breach of their service contracts and, (3) that the threats were
    directed at the Appellant, being designed to cause an end of his employ-
    ment with B.O.A.C.; can the Appellant successfully sue the Defendants
    for the damage he thereby suffered? This single problem has inevitably
    been dissected into three separate questions, viz., (1) Is there a tort or
    wrong known to the English law as the tort of intimidation such that,
    although the party intimidated is not the party claiming to recover, the
    last mentioned party can sue the persons who did the intimidating on the
    ground that their object was to damnify him, as they did? (2) If so, are
    the wrongful acts which the person or persons threatened, by way of
    intimidation, to do confined to acts in themselves criminal or tortious
    or do they extend to other so-called " wrongful " acts including particularly
    breaches of contract? (3) If the tort of intimidation does so extend, then
    is the Appellant's common law right of action defeated by the terms of
    either section 1 or section 3 of the Trade Disputes Act, 1906, seeing
    that, as is here conceded, the acts of intimidation of which the Appellant
    complains were done in the course of furtherance of a Trade Dispute within
    the meaning of that Act?

    Upon the first of these three questions which I have formulated all the
    members of the Court of Appeal, after a careful consideration of the many
    authorities and dicta upon the subject, agreed with Sachs J. in giving to

    12

    it an affirmative answer. My Lords, it seems to me that in the year 1963
    it is not sensible or possible to deny such a wrong, at any rate where the
    illegal acts threatened are criminal or tortious in character and where the
    threats are sufficiently substantial and coercive to cause real damage to
    the person against whom they are aimed and directed ; and the person
    entitled to recover may be either the party intimidated or may be a third
    party where the intention and effect of the threat is to injure such third party.
    I do not in the circumstances propose for myself to go again through
    all the authorities. I am content to start with the citation (quoted by
    Pearson L.J. in the Court of Appeal) from the well-known judgment of
    Bowen L.J. in the case of the Mogul Steamship Co., Ltd. v. McGregor, Gow
    & Co.,
    23 Q.B.D. 598, and to add only citations from the speech of Lord
    Watson in Allen v. Flood (sup.) and from the speech of Lord Dunedin in
    Sorrell v. Smith (sup.).

    In the Mogul Steamship case, Bowen L.J. said (see p. 614): "No man,
    " whether trader or not, can, however, justify damaging another in his
    " commercial business by fraud or misrepresentation. Intimidation, obstruc-
    " tion and molestation are forbidden ; so is the intentional procurement
    " of a violation of individual rights, contractual or other, assuming always
    " that there is no just cause for it. The intentional driving away of
    " customers by shew of violence . . . the impeding or threatening servants
    " or workmen; the inducing persons under personal contracts to break
    " their contracts ; all are instances of such forbidden acts ".

    My citations from Lord Watson are as follows (see [1898] A.C. pp. 96,
    97 and 98):

    " There are, in my opinion, two grounds only upon which a person
    " who procures the act of another can be made legally responsible for
    " its consequences. In the first place, he will incur liability if he
    " knowingly and for his own ends induces that other person to commit
    " an actionable wrong. In the second place, 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, according to the law laid down by the
    " majority in Lumley v. Gye, 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." Again later: "Assuming that the
    " Glengall Iron Company, in dispensing with the further services of
    " the respondents, were guilty of no wrong, I am willing to take it
    " that any person who procured their act might incur responsibility
    " to those who were injuriously affected by it, if he employed unlawful
    " means of inducement directed against them. According to the
    " decision of the majority in Lumley v. Gye, already referred to, a
    " person who by illegal means, that is means which in themselves are
    " in the nature of civil wrongs, procures the lawful act of another,
    " which act is calculated to injure, and does injure, a third party,
    " commits a wrong for which he may be made answerable. So long
    " as the word ' means' is understood in its natural and proper sense
    " that rule appears to me to be intelligible ; but I am altogether unable
    " to appreciate the loose logic which confounds internal feelings with
    " outward acts, and treats the motive of the actor as one of the means
    " employed by him."

    I turn finally to the speech of Lord Dunedin in Sorrell v. Smith (sup.).
    The noble Lord first quoted (see pp. 718, 719) from a judgment which he
    had delivered in the Scottish case of Mackenzie v. Iron Trades Employers'
    Insurance Association,
    1910 S.C., 79, and which he thereby affirmed Then,
    after referring to numerous other cases, including that of Ware and de
    Freville, Ltd.
    v. Motor Trade Association (sup.), he said, at p. 730 of the
    Report :

    " Expressing the matter in my own words, I would say that a threat

    " is a pre-intimation of proposed action of some sort. That action must

    " be either per se a legal action or an illegal, i.e., a tortious action.

    " If the threat used to effect some purpose is of the first kind it gives

    13

    " 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."

    I shall have something to say hereafter about the use by Lord Dunedin
    of the phrase " i.e., a tortious action ". But for the purpose of answering
    the first of the questions which I have posed, I think that the citations which
    I have made must now be accepted as correctly stating the law; and I add
    only my acknowledgment of the judgments and reasoning upon this question
    of Sellers, Donovan and Pearson L.JJ., in the Court of Appeal, and par-
    ticularly the analysis of the growth of the tort of intimidation stated in
    Pearson L.J.'s judgment, which I respectfully and gratefully adopt.

    I therefore agree with the view expressed by the Court of Appeal that
    there has been established as a wrong and as part of the English law the
    tort of intimidation. I am willing to concede that the tort is one of relatively
    modern judicial creation (though Pearson LJ. in the course of his analysis
    referred to some authorities of respectable antiquity) and that its full
    extent and scope have not (at least before the present case) been authori-
    tatively determined and may well, indeed, even by your Lordships' judg-
    ments in this case, still not have been finally stated. But that is, after all,
    in accordance with the well-known principles of our law, one of the charac-
    teristics of which is (as has been pointed out by many eminent legal scholars,
    including Cardozo, C.J.) that its principles are never finally determined
    but are and should be capable of expansion and development as changing
    circumstances require, the material subject matter being " tested and re-
    " tested " in the law's laboratories, namely the courts of justice.* Moreover,
    as observed by Professor Holdsworth in his history of the Law of England,
    volume 8, pages 392ff, the tort of conspiracy, as now understood, is also
    one of relatively modern exposition differing from the ancient tort of
    conspiracy (which as Professor Holdsworth points out is in reality now
    equivalent to malicious prosecution) and has arisen out of the circumstances
    of modern industrial relations. So also, as I conceive, has the tort of
    intimidation. Mr. Gardiner forcibly argued, upon an analysis of the various
    cases in which the alleged tort has arisen, that it was in truth originally
    and still is no more than an aspect of the law or tort of nuisance. According
    to Mr. Gardiner, it was in truth invented by Sir John Salmond.

    But, with all respect to Mr. Gardiner's argument, it is now, as I have
    said, in my opinion too late to deny the reception of the tort of intimidation
    into the company of English wrongs. So far, I have agreed with the Court
    of Appeal. But I respectfully differ from the Court of Appeal in thinking
    [hat the wrong of intimidation must stop short so as to comprehend
    only threats of criminal or tortious acts and thus to exclude threats of
    breaches of contract. I am aware that the only direct authorities for such
    an extension of the wrong are the two Irish cases of Cooper v. Millea and
    others,
    1938 I.R. 749 before Gavan Duffy, J. and Riordan v. Butler and
    others,
    1940 I.R. 347 in which O'Byrne, J. followed Gavan Duffy, J. I am
    aware also that in the former case the learned Judge erred in attributing
    a dictum in support of his view to Lord Dunedin in Sorrell v. Smith and
    that in fact the noble Lord in that case used the words which I have
    quoted "... that action must be either per se a legal action or an illegal,
    " i.e., a tortious action". I cannot, however, think that by his use of
    the formula " id est" Lord Dunedin was intending to lay it down that only
    threats of tortious actions would constitute the wrong of intimidation. The
    attention of your Lordships was also properly drawn to all the relevant
    dicta that have fallen from the judges since that of Bowen, L.J. in the
    Mogul Steamship case down to the present time, and I would concede that
    upon the face of them these dicta may tend more to support the restriction

    of the tort than its extension so as to include threats of breach of contract-
    though they cannot be said in that respect to be uniform; see, for example,
    the use of the word " unlawful " by Lord Lindley in South Wales Miners'
    Federation
    v. Glamorgan Coal Company, Limited, [19051 A.C. 239, at 253.
    "To break a contract is an unlawful act, or, in the language of Lord

    * Nature of the Judicial Process (published by Yale University Press) p.23.

    32227 A 8

    14

    " Watson in Allen v. Flood, ' a breach of contract is in itself a legal wrong'.
    "... A breach of contract would not be actionable if nothing legally
    " wrong was involved in the breach". To this last citation Lord Justice
    Donovan referred in his judgment in the present case. I venture, like
    Lord Lindley, to refer to Lord Watson's speech in Allen v. Flood where
    (at page 94 of the report) the noble Lord cited and adopted the language
    of Bowen, L.J. in the Mogul Steamship case "... the term ' wrongful'
    "imports in its term the infringement of some right". But in none of
    the reported cases (except the Irish cases) was the question with which
    your Lordships are now concerned raised as relevant for decision, and the
    language in the many judgments to which your Lordships have been
    referred was, as I conceive, intended to be but illustrative and was in any
    event upon the present question obiter.

    I feel therefore free to approach the question as a matter of principle;
    and so approaching it, I cannot for my part see any persuasive basis
    for drawing the line so as to exclude from the wrong of intimation threats
    of breaches of contract. I cannot find in accordance with logic, reason or
    common sense anything between threats to do tortious or criminal acts,
    on the one hand, and threats to break contracts, on the other, which amounts
    in the simile used by Lord Herschell in Allen v. Flood (sup. at page 121),
    to a chasm. It is no doubt true that in attempting to extract the principle
    from the present case there is some obscurity caused by the circumstances
    with which we are concerned, first, by the actual nature of the alleged threats
    and, second, by the presence in the background of the Trade Disputes
    Act, 1906. I therefore consider other illustrations of threats to break
    contracts. Suppose the case of one who carries on upon premises which
    he has leased from another a business or profession, and that the landlord,
    intent on damaging his tenant's business or profession, threatens to commit
    breaches of his covenant of quiet enjoyment; or suppose the case of one
    whose business depends upon the exploitation of a licence granted by a
    patentee and the patentee (let us say) out of spite for the licensee or dislike
    of his methods threatens him with breaches or revocation of the licence.
    I find, for my part, great difficulty in thinking that in such cases as I
    have mentioned there would be no cause of action based on intimidation
    whereas such a cause of action would arise if the landlord or the patentee
    threatened personal assault or other tortious act. Nor, for my part, can
    I regard as conclusive the argument which clearly appealed strongly to
    Pearson, L.J. that if threats of breaches of contract amounted to intimida-
    tion there would be an unnatural and anomalous distinction between threats
    to break a contract, on the one hand, and breaches of the contract, on
    the other. It is an undoubted but established and perhaps peculiar feature
    of the English law that only parties to a contract can sue for breaches
    of that contract notwithstanding that some third party may be damnified
    by the breach and intentionally so damnified. Such, however, has long
    been the established rule in English law though (as some have thought)
    the restriction now should be somewhat relaxed. Let it, however, be
    supposed that A breaks his contract with B and that B, under the pressure
    of the breach of contract, dispenses with the services of C—dispenses,
    that is to say, without breaking his contract with C. If those are the
    only facts, then it is no doubt true that C cannot prefer any claim against A.
    But as a practical matter of fact what in truth in such a case happens?
    If (as we are to suppose) the object of A's breach of contract with B was
    to cause B to dispense with the services of C, then, B having done so,
    does A proceed to renew his contractual relations with B? And, if so,
    does he do so upon the terms, well understood by B, that, if B should
    attempt again to re-engage C, A would once more break his contract?
    If such were the true facts, then it would appear to me not seriously in
    doubt that C could maintain a cause of action against A for continuing
    to threaten further breaches of his contract. It seems, therefore, to me
    that the cases in which the employment of one party is interfered with
    by a breach of the contract with his employer by another but without
    any further threats expressed or implied must indeed be rare. Indeed,
    in practice I conceive a parallel would not be other than close with the

    15

    case of one who, instead of breaking a contract with the employer, in fact
    assaulted him and as a result (as was intended by the assaulting party)
    the employer disposed of the services of his servant. As in the case of
    the broken contract, the inference would no doubt be that unless the
    employer permanently severed his relations with his servant the third party
    would assault the employer again: and so a cause of action would fairly
    arise from the implied intimidation rather than from the actual assault.
    But however that may be, for reasons which I have given, I cannot be
    persuaded that there is in the constitution of the tort of intimidation an
    essential difference between tortious or criminal acts, on the one hand,
    and unlawful acts consisting of breaches of contract, on the other, or
    threats of such breaches which make it necessary for us now to say that
    the tort of intimidation can never extend to cover threats of breaches of
    contract. So far, therefore, I agree with the learned Judge, Sachs J., in my
    answer to the second question which I have above formulated, and think
    that the plaintiff here had established a good cause of action at law unless
    his rights are defeated by sections 1 and 3 of the Trade Disputes Act, 1906.

    It becomes then necessary, as it was strictly unnecessary for the Court
    of Appeal, for the House to reach a conclusion upon the third of the questions
    which I have formulated, namely, upon the effect in the present case of
    sections 1 and 3 of the Trade Disputes Act, 1906. Section 1 reads as

    follows: —

    " The following paragraph shall be added as a new paragraph after
    " the first paragraph of section three of the Conspiracy and Protection
    " of Property Act, 1875:—'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 action-
    " ' able ' ".

    I believe that all your Lordships are agreed that, in the circumstances of
    the present case, section 1 cannot be successfully invoked by the Respondents.
    I am also of that opinion although, as later appears, I am not sure that my
    concurrence with your Lordships' conclusion upon this point rests upon a
    complete concurrence of reasoning. To my mind, the essential question
    may be thus stated: was the quality of the acts done by each of the Defendants
    such that those acts (being, as it is conceded, done in furtherance of a trade
    dispute), would give to the Appellant a cause of action if done by each
    Defendant upon his own, without collaboration with the other Defendants?
    For reasons already given, I have concluded that a threat to do an act
    unlawful in the sense of constituting a breach of contract may qualify as
    falling within the tort of intimidation. No doubt if all that Mr. Barnard
    did (to take his case as an example) was to threaten B.O.A.C. to break
    his own contract of service unless B.O.A.C. gave notice to Mr. Rookes,
    its coercive effect would (as I have earlier indicated) be negligible, if indeed
    at all existent. But Mr. Barnard was an official of the Union and his
    threat was (and clearly understood to be) that he in common with all his
    Union colleagues would break their service contracts unless Mr. Rookes'
    services were determined. Although therefore the threat was not one to
    procure breaches of their service contracts by the other Union men, never-
    the less the threat, properly understood as it was intended to be understood
    In the light of the resolution of the 10th January, 1956, had a real and
    substantial coercive force. As such, and apart from the combination with
    him of the other Defendants, such threat itself constituted a cause of action
    on the Appellant's part. It follows therefore, in my opinion, that section 1
    of the Act provides no answer to the Appellant's claim.

    Section 3 however has caused far greater difficulty. Its language is as
    follows:—.

    " 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

    32227 A 9

    16

    " person, or with the right of some other person to dispose of his capital
    " or his labour as he wills ".

    Nothing in the present case turns upon the first part of the section, since
    there was here no breach of the Appellant's contract " procured " by the
    acts of the Defendants. It is with the second part of the section that your
    Lordships are concerned and it will, I hope, be useful to repeat the relevant
    words. They are: " An act done by a person in ... furtherance of a trade
    " dispute shall not be actionable on the ground only that ... it is an
    " interference with the . • . employment of some other person ".

    I believe that all your Lordships have in the end reached the conclusion
    that upon their true construction and in light of the relevant law as it was
    understood at the date of the passing of the Trade Disputes Act the words
    which I have repeated cannot protect the Respondents in the present case.
    The problem, upon its face, is simple enough: what is meant by the few—
    and the simple—words " An Act . . . shall not be actionable on the ground
    " only that . . . "? As I believe all your Lordships are agreed, the answer
    to the problem is to be found by enquiring whether " the acts " complained
    of are, as such, wrongful only upon the ground (in such a case as the present
    that they constitute or result in an interference with some person's employ-
    ment. If this be the correct nature of the enquiry, then the answer in this
    appeal is that the acts complained of are not wrongful only upon the ground
    that they interfered with the Appellant's employment; for they are also
    wrongful on the ground of constituting the tort of intimidation. The
    alternative analysis which has, I confess, appealed to me places perhaps
    greater emphasis upon the word " actionable " so that the essential question
    posed by the statutory language is, whether the acts complained of are
    actionable on the part of some particular person on the ground only that
    they interfered with that person's employment. Applying such a test to the
    present case the question then is resolved thus: were the acts of the
    Defendants actionable at the suit of the Plaintiff upon the ground (and only
    upon the ground) that they interfered with his employment? And if that
    be the right question then, as I conceive, the answer must be in the
    affirmative since the Plaintiff was not himself intimidated and the only
    ground upon which he can complain of the Defendants' acts is that they
    resulted (as they were intended to do) in an interference with his (the
    plaintiff's) employment with B.O.A.C.

    Let me say at once that I do not at all differ from your Lordships in
    thinking that the same principle of interpretation must be applied to the first
    part as to the second part of section 3 ; for the essential formula—" shall
    " not be actionable on the ground only that " —is equally applicable to
    both parts of the section. So if the test which has appealed to me is applied
    where the first part of the section is involved, that is in a case where there
    has been a breach of the contract of service of someone in the Plaintiff's
    position, it would follow that protection is equally given, where there exists
    a trade dispute, whether the acts which brought about the breach of contract
    were as regards the employer wrongful (e.g. constituted the tort of intimida-
    tion) or consisted merely of persuasion without any threat or any other
    unlawful act. It is, however, as I understand, the view of all your Lordships
    that if the case supposed were one where the breach of contract of service
    were brought about by threats or other unlawful acts, then no protection
    would be afforded by the first part of the section.

    My Lords, I am indeed conscious of the fact that the view upon the sup-
    posed case entertained by your Lordships appears to have the support of
    no less an authority than that of Lord Loreburn, who was Lord Chancellor
    at the time of the passing of the Trade Disputes Act, 1906.

    I have in mind the celebrated passage in his speech in Conway v. Wade,
    [1909] A.C. 506 at p. 511.

    " It is clear that, if there be threats of 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

    17

    " break a contract without threat or violence, then this is no longer
    " actionable, provided always that it was done ' in contemplation or
    " ' furtherance of a trade dispute '. . .. In this respect there is a change.
    " 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'."

    I shall, I hope, be excused from quoting further at length from Lord
    Loreburn's speech.

    It is said indeed with force that the first part of the language which I
    have quoted shows that Lord Loreburn's view was that no protection would
    be given by the section where the wrong of intimidation done to an employer
    had the effect of inducing him to break his service contract. It is therefore
    said that (in Lord Loreburn's view) the first part of the section was only
    intended to give relief where the breach of contract was procured by per-
    suasion unaccompanied by any wrongful acts—in other words, to give relief
    only in cases which were in the year 1906 thought to fall strictly within
    the scope and authority of Lumley v. Gye 2 E & B. 216: though as regards
    the second part of the section, Lord Loreburn was careful to express no
    concluded view. I must also add that in no subsequent case has there been
    any doubt or qualification expressed in regard to Lord Loreburn's statement
    of the effect of the first part of the section ; though it is also true that the
    particular point which your Lordships are now asked to resolve has never,
    in fact, come before the courts for decision.

    Having regard to the unanimity of your Lordships' view upon this matter
    I have not thought it right formally to dissent. Nonetheless, I have not felt
    able to resolve the doubts which I have felt in favour of your Lordships'
    views and in case the section should hereafter come before Parliament
    for review I have thought it right to express more fully the argument which
    has appealed to me in favour of the alternative view of the construction
    of section 3, namely that the acts of the defendants of which the Appellant
    complains are actionable at his suit because (and only because) they have
    constituted and resulted (as they were intended to do) in an interference
    with the Appellant's employment by B.O.A.C. I do not forget that in
    construing the material language of section 3 regard should properly be had
    to the state of the law as it should be taken to have been (and to have
    been understood by Parliament to be) in 1906. It is also no doubt true
    that in 1906 the " leading heresy" in Lord Dunedin's language—see
    Sorrell v. Smith at page 719—had not been exposed and dissipated, viz.,
    that acts which were in themselves lawful might nonetheless be actionable
    if it were shewn that they were " maliciously " directed against another
    person, i.e., were deliberately intended to damage such other person par-
    ticularly in his employment; and it may indeed be that such heresy has
    been entertained until the present time. I here make the point, however,
    that the first part of the citation from Lord Loreburn may have been
    directed to the position of the person who (unlike the Appellant in the
    present case) is himself intimidated and who may well therefore (like one
    who sues another for the tort of negligence) have a cause of action against
    the wrong-doer altogether distinct from the damage by way of loss of employ-
    ment which he may suffer from the wrong.

    I do not, however, fail to appreciate the point that Parliament may,
    in enacting the second part of section 3 of the Act of 1906, have intended
    to resolve the " heresy " above mentioned in favour of the Trade Union
    when the (lawful) acts complained of were done in furtherance of a trade
    dispute; though the result would be, in light of later judicial decisions, to
    make that part of the section (unlike its initial part) merely declaratory of
    the law and therefore, in effect, nugatory. But whatever may have been
    (or may be assumed to have been) the Parliamentary intention in 1906 the
    question before your Lordships must be to construe, according to the

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    18

    ordinary sense of the language used, the terms of the enactment. So much
    has been forcibly and authoritatively stated by Lord Macnaghten (and
    the other noble Lords) in the case of Vacher & Sons Ltd. v. London Society
    of Compositors
    [1913] A.C. 107. Lord Macnaghten at pp. 117 and 118 of
    the Report said:

    " Now it is 'the universal rule', as Lord Wensleydale observed in
    " Grey v. Pearson, that in construing statutes, as in construing all other
    " written instruments ' the grammatical and ordinary sense of the word is
    " ' to be adhered to, unless that would lead to some absurdity, or some
    " ' repugnance or inconsistency with the rest of the instrument, in which
    " ' case the grammatical and ordinary sense of the words may be
    " ' modified, so as to avoid that absurdity and inconsistency, but no
    " ' further'. Acts of Parliament are, of course, to be construed
    " ' acording to the intent of the Parliament' which passes them. That
    " is ' the only rule ' said Tindal C.J., delivering the opinion of the
    " judges who advised this House, in the Sussex Peerage Case. But his
    " Lordship was careful to add this note of warning: ' If the words of
    " ' the statute are in themselves precise and unambiguous, then no more
    " ' can be necessary than to expound those words in their natural and
    " ' ordinary sense. The words themselves alone do, in such case, best
    " ' declare the intention of the lawgiver'. Nowadays, when it is a
    " rare thing to find a preamble in any public general statute, the field
    " of inquiry is even narrower than it was in former times. In the
    " absence of a preamble there can, I think, be only two cases in which
    " it is permissible to depart from the ordinary and natural sense of the
    " words of an enactment. It must be shewn either that the words taken
    " in their natural sense lead to some absurdity or that there is some
    " other clause in the body of the Act inconsistent with, or repugnant to,
    " the enactment in question construed in the ordinary sense of the
    " language in which it is expressed."

    Applying then this test, the question persists, notwithstanding any heresy
    formerly entertained, what acts are actionable at the suit of any person,
    " only on the ground " that they interfere with that person's employment?
    And if that test is applied to the present case the conclusion would be that
    the acts of which the Appellant here complains are not otherwise, at his suit,
    actionable

    We are here concerned with acts, that is to say " unlawful " threats
    constituting intimidation not of the Appellant himself but of the Appellant's
    employers aimed and intended to interfere with the Appellant's employment.
    As I have more than once observed, the Appellant was not himself
    intimidated ; but if I am right in thinking that the " unlawful " acts com-
    plained of comprehend threats of breaches of contract as well as threats of
    tortius actions, then, according to the law as I think it has emerged, the
    Appellant would undoubtedly have a good cause of action, unless the acts
    complained of had been done in furtherance of a trade dispute. It is
    however relevant, upon this view of the effect of section 3 of the Act of 1906,
    to consider also the case of the person who is directly intimidated. The
    attempt to extract the relevant principles from the present case is, as I
    have already intimated, to some extent bedevilled by the circumstances of
    the case, including the possible difficulty in properly stating the nature of the
    " threats " of the defendants and the admitted fact that whatever was done
    by the defendants was done in truth in furtherance of a trade dispute. I
    take, therefore, by way of example the simple case of one who intimidates
    another by threats of personal violence. I take the case of A, engaged
    in some profession or business. I assume that B, from motives of intense
    personal dislike of A, uses threats of personal violence to A of real coercive
    force intended (and effective) to interfere with A's business. If, as a result
    of B's threats, A is compelled to abandon his business or profession he will,
    according to the view of the Court of Appeal as well as of your Lordships,
    have a cause of action against B and such cause of action will be founded
    upon the tort of intimidation. If the only effect of the intimidation is to
    "interfere" with A's business—if, that is to say, the only "damnum"

    19

    suffered by A from B's injuria is damage to A's business—then the question
    remains whether, if the acts of intimidation were done in furtherance of a
    trade dispute, section 3 of the Act of 1906 would provide a good defence
    to A's claim. Upon this question I express no view. But clearly the damage
    to A might not be so confined—he might well, as a consequence of B's
    intimidation, suffer in many ways including health, and, if he did, then, as
    I conceive, his cause of action against B would be founded on the tort of
    intimidation and would not be confined, by reference to the damage suffered,
    to interference with his business. I take by way of analogy the case where B,
    by careless driving of his motor car, seriously injures A. In such a case
    the damage suffered by A may comprehend the fact that, as a result of his
    injuries, he is unable to continue to carry on his business or profession.
    Nonetheless his cause of action against B would be founded on B's negli-
    gence and plainly it could not fairly be said that the " only ground " upon
    which, at A's suit, B's acts were actionable was that they interfered with A's
    business. Does not similar reasoning apply in the case where the person
    complaining of the tort of intimidation is the person himself intimidated?
    In a case therefore in which, pursuant to a trade dispute, threats were made
    —say by members or officials of a trade Union—direct to one who was not
    a member of the Union, it should follow that the person threatened could
    properly claim redress on the ground of intimidation since the damage
    suffered by him was not limited to and dependent upon interference with
    his employment. That question if and when it arises will be decided upon
    the particular facts of the case. Where, however, as in the present case,
    the complainant has not himself been -intimidated, his cause of action must
    depend, and must depend exclusively, upon his claim that the threats to a
    third party (namely, his employers) were made with the deliberate intent
    of affecting his own job. If they were, then (apart from section 3 of this
    Act of 1906) he would have a cause of action; but if the threats were made
    in fact in furtherance of a trade dispute the result is, upon the alternative
    view of construction which has appealed to me, that his cause of action,
    his right to complain, is necessarily and inevitably destroyed by what I take
    to be the plain meaning of the words of the section.

    I should add here that I have been somewhat troubled by the words
    "... is an interference ..." in the section ; since the acts complained of
    may fairly be said not themselves to be, but rather to have resulted in, such
    an interference. But the difficulty arises whichever view is taken of the
    construction of section 3, and I have felt bound to conclude that the word
    " is" must in its context mean and comprehend the effect of the acts of
    which complaint is made. Were it otherwise, indeed, the section would be
    incompetent to cover the case of acts in themselves lawful but by their
    effect intended to damage the business or employment of the complainant.
    In other words, if by the use of the word " is " Parliament intended to confine
    the operation of the section to cases in which the " acts " in question of
    themselves operated as an interference with the business or employment
    of another, the section would, so far as I can see, have been inevitably without
    practical effect. I therefore have felt compelled to the view that by the
    word " is " Parliament meant and intended " is by its effect or intention ".

    I should add that, with all respect to the opposite view, it does not seem to
    me that any assistance one way or the other is to be derived from section 4
    of the Act, which in terms gives absolute immunity to Trade Unions them-
    selves ; for, on the alternative view of its effect which has appealed to me,
    section 3 falls far short of giving a corresponding immunity to those whose
    acts procure a breach of some person's contract or interfere with his employ-
    ment. Nor does it seem to me that the alternative view can be said to
    involve giving wholly unreasonable licence to persons doing wrongful acts
    in contemplation of furtherance of a trade dispute: for as I have endeavoured
    to illustrate, the person (i.e., in the ordinary case, the employer) is not
    deprived of the right to invoke the jurisdiction of the courts where he has
    been the victim of the wrongful acts except at any rate in a case where his
    only ground for complaining of the wrongful acts—the only " damnum "
    suffered by him as their result—was that they interfered with his business.


    32227 A 11

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    After all, on any view the only persons against whom proceedings could
    be taken by anybody in respect of acts done in contemplation or furtherance
    of a trade dispute would (except perhaps in very rare cases indeed) be
    individuals like the defendants in the present case whose ability to pay
    damages would be greatly limited. Moreover, in cases of the kind which
    I have in mind I hope and believe that the Trade Unions in our country
    are sufficiently responsible and influential to see that acts done by their
    members in the course of trade disputes are not wholly irresponsible.

    I have, for the reasons earlier stated, attempted to set down fully the
    grounds which appear to me to support the alternative view of the construc-
    tion of section 3. I add only that, as I have felt, the vital word may be
    said to be " actionable " and not, for example, " wrongful " or " capable of
    " giving rise to a cause of action ". The use of the word " actionable "
    inevitably provokes the question "actionable on whose part?": and the
    alternative answer to the question involves only that there should be read
    into the section such words as " on the part of any person " which the use
    of the word " actionable " may be said inevitably to require. Nonetheless,
    having attempted to express my doubts and the reasons for them I do
    not upon this matter formally dissent from your Lordships.

    There remains the final question fully argued upon the resumed hearing
    of the appeal, namely, whether, assuming the Appellant to be entitled to
    succeed in his action, he could claim what are called " exemplary damages ".
    Upon this difficult question, falling how to be considered for the first time
    by your Lordships' House, I have had the advantage of reading the opinion
    prepared by my noble and learned friend, Lord Devlin, who, at the end
    of it, dealt exhaustively with this subject. For the reasons which Lord Devlin
    gives, I agree entirely with his conclusion that awards of exemplary damages
    ought to be strictly limited to the two classes of case specified by him, neither
    of which comprehends the present case ; and I share my noble friend's
    opinion that your Lordships should now overrule the decision of the C.A.
    in the case of London v. Ryder [1953] 2 Q.B. 202.

    In all the circumstances I agree that the House should now make an
    order in the form proposed by my noble and learned friend Lord Reid.

    Lord Hodson