![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] |
|
United Kingdom House of Lords Decisions |
||
|
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Rookes v Barnard (No 1) [1964] UKHL 1 (21 January 1964) URL: http://www.bailii.org/uk/cases/UKHL/1964/1.html Cite as: [1964] AC 1129, [1964] UKHL 1 |
||
[New search] [Help]
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
Was Barnard a party? ... ... ... ... ... ... He was
Was Silverthorne a party? ... ... ... ... ... He was
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
Barnard ... ... ... ... ... ... ... ... … It was
Silverthorne? ... ... ... ... ... ... ... ... It was
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
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
32227 A10
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
20
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