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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Torquay Hotel Co Ltd v Cousins  EWCA Civ 2 (17 December 1968)
Cite as:  2 WLR 289,  1 All ER 522,  2 Ch 106,  EWCA Civ 2
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COURT OF APPEAL.
Appeal by defendants from judgment of Mr. Justice Stamp
dated 23rd May, 1968 granting the plaintiffs an interlocutory injunction
B e f o r e :
LORD JUSTICE RUSSELL
LORD JUSTICE WINN.
| THE TORQUAY HOTEL COMPANY LIMITED
|THE RIGHT HONOURABLE FRANK COUSINS
RONALD H. NETHERCOTT
TRANSPORT AND GENERAL WORKERS UNION
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C. 2.)
Mr. A.R. CAMPBELL, Q.C., Mr. PETER BRUCE and Miss HILARY BARKER (instructed by Messrs. Herbert Smith & Co.) appeared on behalf of the Respondents.
HTML VERSION OF JUDGMENT
Crown Copyright ©
THE MASTER OF THE ROLLS: The Imperial Hotel is one of the finest hotels in Torquay. It is owned by the Torquay Hotel Company Limited. The Managing Director is Mr, Chapman. It gets all its fuel oil by contract from the Esso Petroleum Company.
The Transport and General Workers Union is a registered trade union. I will call it the Transport Union. It has members in many trades. In particular, most drivers of oil tankers are members. So are some of the cooks and waiters in hotels. Mr. Frank Cousins is the General Secretary of the whole Union. Mr. Ray is in charge of the group which includes hotel workers. They are both at the London headquarters, Mr. Nethercott la the Regional Secretary for the South Western Region. His headquarters are at Bristol. Mr. Pedley is the District Secretary for the Exeter District. His headquarters are at Exeter. All those are full-time paid officials of the Union. Mr. Lettis is the Branch Secretary at Torquay. He works as a waiter at hotels in Torquay. He is not a paid official. Until recently the hotel workers in Torquay were not very keen on joining trade unions. But those who were ke:en joined a trade union called the National Union of General and Municipal Yorkers. I will call it the General Workers Union. This Union held the field in Torquay until 1967. But then the Transport Union tried to recruit members in the hotels at Torquay. They recruited 80 workers at the Palace Hotel, and in August, 1967, after a strike, persuaded the management of that hotel to recognise the Transport Union as authorised to negotiate on behalf of their members. By December 1967 the Transport Union had recruits 400 members in Torquay. On 1st January 1968, these formed themselves into a branch.
The dispute with the Torbay Hotel.
During the week beginning 23rd January, 1968, Mr. Pedley, the District Secretary of the Transport Union, tried to get the Torbay Hotel to recognise the Transport Union. On 25th January, the Managing Director refused, because he was, he said, in active negotiation with the other Union, the General Workers Union. Mr. Pedley then consulted his senior officials and they decided to call a strike at the Torbay Hotel. It was to start on Saturday, 28th January, 1968.
But the night before, on Friday, 27th January, 1968, the Transport Union held a dinner-dance at the Palace Court Hotel, Torquay, to celebrate the opening of the Torquay branch. It was attended by Mr. Cousins, Mr. Nethercott from Bristol and others. Those present listened to speeches by Mr. Cousins, Mr. Nethercott and Mr. Lettis. Mr. Cousins told them:
"You will have a struggle for recognition but at least you know you got through the first round" (referring, I expect to the strike at the Palace Hotel in August 1967). No doubt, at that time Mr. Cousins and Mr. Nethercott knew of the arrangements to call a strike at the Torbay Hotel: for it was to start the very next day, 28th January, 1968. Indeed, on Saturday evening, 28th January, Mr. Cousins saw Mr. Nethercott in Bristol and Mr. Cousins told Mr, Nethercott that the Union would support the men on strike, That meant that they would receive strike pay. On Monday, 30th January, 1968, Mr. Pedley wrote to the manager of the Torbay Hotel saying: "In view of your refusal to meet me on matters concerning our membership, I am under instructions from my Regional Secretary, Mr. Nethercott, to inform you that this organisation (the Transport Union) is in official dispute with your hotel",
In consequence of this dispute, the Torquay Hotel Association met and on 1st February, 1968, advised their members in these terms:
"There is no doubt that most workers in the Union were perfectly happy with prevailing conditions and wore not desirous of joining any union, but in face of the threat to our industry by the Transport Union, your executive would earnestly advise all hotel managements to encourage their staff to join the General Workers Union, This is an inter-union dispute, of which we are the innocent victims".
The banquet at the Imperial Hotel.
On Friday, 2nd February, 1968, there was a Mayor's banquet at the Imperial Hotel. None of the workers at this hotel was a member of the Transport Union. The banquet finished at about 10.30 p.m. The managing director, Mr. Chapman, was making his way out of the crowded dining-room when he was approached by a newspaper reporter. The reporter asked Mr. Chapman: "How do the hoteliers feel about the action of the Transport Union?" Mr. Chapman replied: "Some of those affected feel strongly. They can only take a certain amount of knocks before they will have to defend themselves.
They feel they must make a stand*. The reporter did not tell Mr. Chapman that he was going to publish these remarks. The next day, Saturday, 3rd February, the Western Morning News came out with a report which set things alight. It said:
"Mr. Michael Chapman, managing director at Torquay five-star Imperial Hotel, said last night that the Hotels' Association were now determined to stamp out the intervention of the Transport Union into the hotel trade. 'You can only take so much before you have to make a stand, and do something, and this we are going to do".
The Torquay members of the Transport Union were furious at these remarks of Mr. Chapman as reported in the newspaper. They picketed the Imperial Hotel. Mr. Lettis, the Branch Secretary, says:
"The reaction to the report of Mr. Chapman's statement was spontaneous. Pickets posted themselves at the Imperial Hotel with the object of information to those having business at the Imperial Hotel that the hotel management was in dispute with the Branch".
After the newspaper report, Mr. Pedley, the District Secretary, also became active. He went to Torquay. At 3 p.m. on the Saturday afternoon he telephoned to the Esso Company at Plymouth. That is the bulk plant which supplies oil-fuel to the Imperial Hotel. Mr. Pedley spoke to the shift supervisor, who took down this message:-
"Mr. Priistley" (sic) (Union representative) "phoned this plant today to advise that there is an official dispute with the Imperial Hotel, Torquay, Any supplies of fuel will be stopped being made. 15.00 hours, 3rd February, 1968".
In saying this, Mr. Pedley knew what would happen. Once the pickets were posted outside the Imperial Hotel (in support of the Transport Union) none of the drivers of the oil tankers would take his tanker across those picket lines (because the drivers were members of the same Transport Union.?. It is common knowledge that the drivers would not cross the picket lines.
Mr. Pedley also saw newspaper reporters and told them;
"We are pleased that Mr. Chapman has come out into the open against us because we think he is the real nigger in the woodpile, preventing us from making progress".
The newspaper reporters saw Mr. Chapman, who denied that he had intervened. The newspaper reporters saw Mr. Pedley, who said:
"He has intervened. That means sanctions and every means at our disposal will be used. We can cut off supplies at source and we are going to do that. I will put out a public warning now - we are quite prepared to put an embargo on any hotelier who intervenes".
On the next day, Sunday, 4th February, the "Sunday Telegraph" published those remarks, with the comment:
"A bewildered Mr. Chapman denied he had made a public statement which could be regarded as intervention. 'We are not involved', he said".
On Monday, 5th February, Mr. Chapman telephoned Mr. Bevan, the manager of the Esso Company at Bristol, and gave an order for 500 gallons of Esso Extra petrol, and also asked him what arrangements could be made for delivering fuel-oil. The Bristol Manager of Esso telephoned their London headquarters, who telephoned Transport House, the headquarters of the Transport Union. He said:
"Is the strike at Torquay official? We are told that your local man telephoned our bulk plant at Plymouth and told them it was official".
The headquarters office of Transport House said: "The strike is official". This information was passed back to Mr Evans at Bristol. He telephoned Mr. Chapman and told him that supplies to the Imperial were "blacked" and that he could do nothing to help him. This was followed up by a letter a day or two later from Mr. Bevan to Mr. Chapman, saying:
"I refer to your recent esteemed order, but very much regret that we are unable to execute delivery owing to circumstances beyond our control".
Those circumstances were clearly these: The Esso drivers were all members of the Transport Union and would not cross the picket lines outside the hotel.
Oil supplies from Alternative Fuels.
Being unable to get supplies of fuel-oil from Esso, Mr. Chapman tried to get supplies from elsewhere. After much difficulty, he found a firm in Cheshire, called Alternative
Fuels Limited, who got oil from various sources, and whose drivers were not members of the Transport Union. They asked a price 50% higher than the usual price. But, nevertheless, in order to get supplies, Mr. Chapman ordered 3,000 gallons from Alternative Fuels, and made arrangements for its delivery - in secret - so that it could be got in without the pickets knowing. On Tuesday, 6th February, Mr. Nethercott held a Press Conference at Torquay. He told the reporters that the union was going to pursue the dispute as far as possible within the limits of the law. He made it clear to them that no embargo had been imposed by the Union and that any action was entirely for the union members and that no instructions or recommendations would be made by the Union to them.
On Wednesday, 7th February, Mr. Nethercott gave a discussion on the wireless for the West of England Service. It was taken down on tape and the interviewer put it to Mr. Nethercott: "This is purely an inter-union dispute?", and Mr. Nethercott replied:
"Right now at this moment it is, as I'm the first to confess, this is now an inter-union dispute".
On Monday evening, 12th February, Alternative Fuels managed to make a delivery of oil to the Imperial Hotel. The driver arrived by night and went through the back streets to the Imperial. No pickets were insight. They were apparently at a meeting. But someone told them and, as soon as the tanker had pulled into the yard, they arrived and made a disturbance. But the oil was delivered and the tanker got away safely. Afterwards, Mr. Nethercott is reported as saying to the newspapers:
"It is likely to prove a very expensive victory, not only for the hotel, but also for the 'private firm' which delivered the oil as well. It is believed to be a Cheshire firm. No further supplies will get through from that area".
The Transport Union acted quickly. On the very next day, 13th February, their District Secretary in Cheshire telephoned the Alternative Fuels, He asked: "Is CFM 912C your vehicle?" He was told, "Yes". He asked: "Was this tanker delivering oil in Torquay yesterday?". The conversation was broken off at this point. After a day or two there was a further conversation on Thursday or Friday, 15th or l6th February, when Mr. Davies, the Union representative in Cheshire, spoke to Mr. Sayers a director of Alternative Fuels in Cheshire. The union representative told Mr. Sayers, that the Imperial Hotel was "black" and that "London" were very annoyed. He also said that the oil companies were very annoyed. He said it was important that no further supplies of oil should be made to the Imperial Hotel. He made it quite clear that serious repercussions affecting Alternative Fuels would arise if further supplies were made to the hotel.
Legal action by Imperial.
By this time the Imperial Hotel had taken the advice of their solicitors. They determined to test the position by ordering some more oil from the Esso Company. On Friday, 16th February, I968, the Imperial Hotel ordered from Esso 3,000 gallons of oil for delivery on Monday, 19th February. On Saturday, 17th February, the solicitors to Imperial wrote to the officials of the Transport Union demanding that the "blacking" instructions should be withdrawn: and saying: that, unless an undertaking was received by 1 p.m. on Monday, 19th February, they would apply to the High Court. They also gave notice to them that there was an express contract between the Imperial and Esso for delivery of oil and summarised its terms.
It seems probable that the letter reached the Transport Union officials in time for them to withdraw the "blacking" instructions. At any rate, they seem to have done so, for on Monday, l9th February, Esso delivered 3,000 gallons to the Imperial: and there were no pickets to stop it.
But the Transport Union officials did not give the undertaking. They did not even reply to the letter. So the Imperial Hotel issued a writ. On 23rd February, they obtained an injunction ex parte. On 23rd May, Mr Justice Stamp granted an injunction until trial. The Transport Union and officials appeal to this Court.
The reason why the Imperial Hotel apply for an injunction is essentially quia timet. No oil has in fact been stopped from reaching the Imperial Hotel: but the Imperial Hotel fear that the Union and their officials will try to stop it unless the Court intervenes. To obtain an injunction, the plaintiffs must show that the defendants are proposing to do something unlawful.
Many grounds of unlawfulness have been canvassed before us, including inducing breach of contract, conspiracy and intimidation The Judge put the case on the broad ground that the defendants were proposing, without justification, to interfere with the contractual relations of the Imperial Hotel. He granted an injunction to restrain the defendants from procuring a breach by any supplier of oil of contracts made or hereafter to be made for delivery of fuel-oil to the hotel. On the appeal the argument covered many points which I will take in order.
1. Was there a "trade dispute"?
There was, I think, a trade dispute between the Transport Union and the Torbay Hotel, The Torbay Hotel employed workers of the Transport Union. The Union claimed that it should be recognised as having authority to negotiate on their behalf. The Torbay Hotel refused to recognise them. Such a recognition dispute is, I think, clearly a trade dispute, see Beetham v. Trinidad Cement Ltd., (1960, A.C. 132): and, none the less so, because it springs out of rivalry of one union with another union.
But I do not think there was a trade dispute between the Transport Union and the Imperial Hotel. The Imperial employed no members of the Transport Union. There was no dispute as to the wages of any of the workers in the Imperial, or as to their conditions of labour, or as to recognition on their behalf. Mr. Pain said that the Imperial Hotel, through its managing director, had taken sides in the dispute at the Torbay Hotel and could thus be regarded as parties to that dispute. But I do not think the evidence supports that view. No doubt Mr. Chapman sympathised with the employers at the Torbay, but sympathy with one side or the other does not make a person a party to the dispute.
The only question is whether the acts done by the Trade Union officials against the Imperial Hotel were done in furtherance of the trade dispute with the Torbay Hotel. I do not think they were. They were done in furtherance of the anger which they felt towards Mr, Chapman for having, as they said, "intervened" in the dispute. They were not furthering a trade dispute, but their own fury and the Act does not protect them any more than it did the defendants in Huntley v. Thornton,(1957, 1 W.L.R. 350) by Mr Justice Harman.
It follows that the trade union officials cannot pray in aid the provision of Section l, 2 and 3 of the Trade Disputes Act, 1906. The position must be judged at common law.
2.. Can the defendants take advantage of the force majeure clause?
The Imperial Hotel had a contract with the Esso Company under which the Imperial Hotel agreed to buy their total requirements of fuel-oil from Esso for one year, the quantity being estimated at 120,000 gallons, to be delivered by road tank wagon at a minimum of 3,000 gallons a time. Under that contract there was a course of dealing by which the Imperial Hotel used to order 3,000 gallons every week or ten days, and Esso used to deliver it the next day. But there was a force majeure or exception clause which said that
"neither party shall be liable for any failure to fulfil any term of this agreement if fulfilment is delayed, hindered or prevented by any circumstance whatever which is not within their immediate control, including.........labour disputes".
It is plain that, if delivery was hindered or prevented by labour disputes, as for instance, because their drivers would not cross the picket line, Esso could rely on that exception clause as a defence to any claim by Imperial. They would not be liable in damages. And I am prepared to assume that Esso would not bo guilty of a breach of contract. But I do not think that would exempt the trade union officials from liability, if they unlawfully hindered or prevented Esso from making deliveries, The principle of Lumley v. Gye extends not only to inducing breach of contract, but also to preventing the performance of it. That can be shown by a simple illustration taken from the books. In Lumley v. Gye,(1853 3 El. & Bl. 216), Miss Wagner, an actress, was engaged by Mr. Lumley to sing at Her Majesty's Theatre, Mr. Gye, who ran Covent Garden, procured her to break her contract with Mr. Lumley by promising to pay her more, see Lumley v. Wagner,(1853 1 de G.M. & G). He was held liable to Mr. Lumley for inducing a breach of contract. In Poussard v. Spiers (I876 1 Q.B.D. 410), Madam Poussard was under contract with Spiers to sing in an opera at the Crtterian Theatre. She fell sick and was unable to attend rehearsals. Her non-performance, being occasioned by sickness, was not a breach of contract on her part: but it was held to excuse the Theatre Company from continuing to employ her. Suppose now that an ill-disposed person, knowing of her contract, had given her a potion to make her sick. She would not be guilty of a breach herself. But undoubtedly the person who administered the potion would have done wrong and be liable for the damage suffered by them. So here I think the trade union officials cannot take advantage of the force majeure or exception caused in the Esso contract. If they unlawfully prevented or hindered Esso from making deliveries, as ordered by Imperial, they would be liable in damage to Imperial, notwithstanding the exception clause. There is another reason too. They could not rely on an excuse of which they themselves had been "the mean" to use Lord Coke's language, see New Zealand Shipping Co. Ltd. v. Societe Pes Ateliers et Chantiers de France,(1919 A.C. 7/8).
The Principles of Law.
The principle of Lumley v. Gye, (1853 2 El. & Bl. 216), is that each of the parties to a contract has a "right to the performance" of it: and it is wrong for another to procure one of the parties to break it or not to perform it. That principle was extended a step further by Lord MacNaghten in Quinn v. Leathern, (1901 AC 495), so that each of the parties has a right to have his "contractual relations" with the other duly observed. "It is" he said, "a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference". That statement was adopted and applied by a strong Board of the Privy Council in Jasperson v. Dominion Tobacco Company, (1923 AC 709). It included Viscount Haldane and Lord Sumner. The time has come when the principle should be further extended to cover "deliberate and direct interference with the execution of a contract without that causing any breach". That was a point left open by Lord Reid in Stratford v. Lindley,(1965 A.C. 324). But the common law would be seriously deficient if it did not condemn such interference. It is this very case. The principle can be subdivided into three elements:
First, there must be interference in the execution of a contract. The interference is not confined to the procurement of a breach of contract. It extends to a case where a third person prevents or hinders one party from performing his contract, even though it be not a breach.
Second, the interference must be deliberate. The person must know of the contract or, at any rate, turn a blind eye to it and intend to interfere with it, see Emerald Construction Co. v. Lothian, (1966, 1 W.L.R. 691).
Third, the interference must be direct. Indirect interference will not do. Thus, a man who "corners the market" in a commodity may well know that it may prevent others from performing their contracts, but he is not liable to an action for so doing. A trade union official, who calls a strike on proper notice, may well know that it will prevent the employers from performing their contracts to deliver goods, but he is not liable in damages for calling it. Indirect interference is only unlawful if unlawful means are used. I went too far when I said in Daily Mirror v. Gardner, (1968, 2 W.L.R. 1239), that there was no difference between direct and indirect interference.
On reading once again Thomson v. Deakin and Others,(1952 Ch 646), with more time, I find there is a difference. Lord Morris of Borth-y-Gest (at page 702) there draws the very distinction between "direct persuasion to breach of contract" which is unlawful in itself: and "the intentional bringing about of a breach by indirect methods involving wrong-doing". This distinction must be maintained, else we should take away the right to strike altogether. Nearly every trade union official who calls a strike -even on due notice, as in Morgan v. Fry - knows that it may prevent the employers from performing their contracts. He may be taken even to intend it. Yet no one has supposed hitherto that it was unlawful: and we should not render it unlawful today. A trade union official is only in the wrong when he procures a contracting party directly to break his contract, or when he does it indirectly by unlawful means. On reconsideration of the Daily Mirror case, (1968 2 W.L.R. 1239), I think that the defendants there interfered directly by getting the retailers as their agents to approach the wholesalers.
I must say a word about unlawful means, because that brings in another principle. I have always understood that if one person deliberately interferes with the trade or business of another, and does so by unlawful means, that is, by an act which he is not at liberty to commit, then he is acting unlawfully, even though he does not procure or induce any actual breach of contract. If the means are unlawful, that is enough. Thus in Rookes v. Barnard,(1964 AC 1129)(as explained by Lord Reid in Stratford v. Lindley,(1965 A.C. 325)and Lord Upjohn at page 337) the defendants interfered with the employment of Rookes - and they did it by unlawful means, namely, by intimidation of his employers - and they were held to be acting unlawfully, even though the employers committed no breach of contract as they gave Rookes proper notice. And in Stratford v. Lindley,(1965 A, C. 269), the defendants interfered with the business of Stratford - and they did it by unlawful means, namely, by inducing the men to break their contracts of employment by refusing to handle the barges - and they were held to be acting unlawfully, even in regard to new business which was not the subject of contract. Lord Reid said (at page 324):
"The defendants' action made it practically impossible for the appellants to do any new business with the barge hirers. It was not disputed that such interference is tortious if any unlawful means are employed".
So also in the second point in Daily Mirror v. Gardner,(1968 2 W.L.R. 1239), the defendants interfered with the business of the "Daily Mirror"-and they did it by a collective boycott which was held to be unlawful under the Restrictive Trade Practices Act - and they were held to be acting unlawfully.
This point about unlawful means is of particular importance when a place is declared "black". At common law it often involves the use of unlawful means. Take the Imperial Hotel. When it was declared "black", it meant that the drivers of the tankers would not take oil to the hotel. The drivers would thus be induced to break their contracts of employment. That would be unlawful at common law. The only case in which "blacking" of such a kind is lawful is when it is done "in contemplation or furtherance of a trade dispute". It is then protected by Section 3 of the Trade Disputes Act, 1906, see Thomson v. Deakin and Others,(1952 Ch. at pages 662 and 663 by Lord Upjohn) for, in that event, the act of inducing a breach of a contract of employment is a lawful act which is not actionable at the suit of anyone, sec Stratford v. Lindley,(1965 A.C. 303) by Lord Justice Salmon, and Morgan v. Fry,(1968, 3 W.L.R. 516) by myself. Seeing that the act is lawful, it must, I think, be lawful for the trade union officials to tell the employers and their customers about it. And this is so, even though it does mean that those people are compelled to break their commercial contracts. The interference with the commercial contracts is only indirect, and not direct. See what Lord Upjohn said in Stratford v. Lindley,(1965 A.C. at page 337). So, if there had been a "trade dispute" in this case, I think it would have protected the trade union officials when they informed Esso that the dispute with Imperial was an "official dispute" and said that the hotel was "blacked". It would be like the "blacking" of the barges in Stratford v. Lindley, when we held, in the Court of Appeal, that, on the basis that there was a "trade dispute", the defendants were not liable.
APPLYING THE PRINCIPLE IN THIS CASE
Seeing that there was no "trade dispute" this case falls to be determined by the common law. It seems to me that the trade union officials deliberately and directly interfered with the execution of the contract between the Imperial Hotel and Esso. They must have known that there was a contract between the Imperial Hotel and Esso Why otherwise did they on that very first Saturday afternoon telephone the bulk plant at Plymouth? They may not have known with exactitude all the terms of the contract. But no more did the defendants in Stratford v.Lindley,(1965 A.C. 332). They must also have intended to prevent the performance of the contract. That is plain from the telephone message: "Any supplies of fuel-oil will be stopped being made". And the interference was direct. It was as direct as could be - a telephone message from the trade union official to the bulk plant.
Take next the supplies from Alternative Fuels. The first wagon got through. As it happened, there was no need for the Imperial Hotel to order any further supplies from Alternative Fuels. But suppose they had given a further order, it is quite plain that the trade union officials would have done their best to prevent it being delivered. Their telephone messages show that they intended to prevent supplies being made by all means in their power. By threatening "repercussions" they interfered unlawfully with the performance of any future order which Imperial Hotel might give to Alternative Fuels. And the interference was direct again. It was direct to Alternative Fuels. Such interference was sufficient to warrant the grant of an injunction quia timet.
IS THE TRADE UNION LIABLE?
I do not think an injunction should have been granted against the trade union. Section 4 of the Trade Union Act, 1906, says that:
"An action against a Trade Union..........in respect of a tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained in any Court".
That Section clearly prohibits an action for damages. But does it prevent an action for an injunction? The words are a "tortious act alleged to have been committed". Take a continuing tort, such as nuisance: or a repeated tort, such as unlawful picketing. It would be strange if a trade union could not be sued for the wrong done before the writ, but could be sued for the selfsame wrong to be done in the future. I am sure that the legislature never so intended. The Section was intended to over-rule the Taff Vale case,(1901,A.C. 426): and that was an action for "an injunction and such further relief as the Court shall direct".
After reconsideration, I would still follow the views of Lord Justice Scrutton and Lord Justice Atkin, in Ware and De Freville Ltd. v. Motor Trade Association, (1921 3 K.B.), and hold that the section prohibits not only an action for damages for a tort, but also an action for an injunction, against a Trade Union.
So far as the other defendants are concerned, I have been in some doubt whether there is sufficient evidence to include Mr. Cousins. But I think it plain that the London Headquarters were consulted on developments at Torquay, and took an active part in the action taken against Alternative Fuels. The affidavit of Mr. Cousins is not so explicit as to exempt him from cognizance of what was happening. In my opinion, the injunction should stand as the Judge ordered, save that the trade union should be struck out.
Other wrongs were canvassed, such as conspiracy and intimidation, but I do not think it necessary to go into these. I put my decision on the simple ground that there is evidence that the defendants intended to interfere directly and deliberately with the execution of the existing contracts by Esso and future contracts by Alternative Fuels so as to prevent those companies supplying oil to the Imperial Hotel. This intention was sufficiently manifest to warrant the granting of an injunction. The form of the injunction was criticised by Mr. Pain, but it follows the form suggested by Lord Upjohn in Stratford v.Lindley, and I chink it is in order.
I find myself in substantial agreement with the Judge and would dismiss this appeal.
LORD JUSTICE RUSSELL: At the outset I will mention the point of construction on Section 4 of the Trade Disputes Act, 1906, whether it forbids actions for an injunction against a trade union in respect of tort, or only actions for damages. The question is debated in Citrine's Trade Union Law 3rd Edition at pages 593 to 595, where the relevant cases are A mentioned: and the judgments of my Brethren cover the ground, so that I can be brief on that point. It seems to me that if the legislators had intended the section to be restricted to an action for damages the section would be virtually bound to have opened with the words: "An action for damages against a trade union......", The section was enacted in connection with the Taff Vale case where the claim was for an injunction, any other claim being hidden in the words "further or other relief". If, as is generally thought, the purpose of the legislature was to protect trade union funds, a power to grant an injunction whether mandatory or prohibitory would carry with it a power to sequestrate those very funds on breach. On that same point the section was enacted in a legal setting in which the Courts have power to award damages in addition to or in lieu of an injunction. In nearly every case of an action for an injunction against the commission of a tort, the action is for an injunction against repetition or continuance of a tort already committed or in the course of being committed: in that sense such an action is "an action.....in respect of a tortious act alleged to have been committed": an obvious example is the erection of a wall by a trade union on its premises in infringement of a neighbour's rights of light and an action for a mandatory injunction: the action would be in terms based upon an allegation that the defendant had tortiously erected the wall, and surely would be correctly described as an action in respect of a tortious act alleged to have been committed. I do not myself therefore see any difficulty in applying the language of the Section to actions in which the relief claimed is an injunction, with the one exception of a case in which the action is purely quia timet. But if the point were argued on that very narrow front - which I do not understand it to be - I would swallow any difficulty of language rather than leave uncovered by the section, for no conceivable reason, such a small corner of the field, bearing in mind the points of argument still available in favour of including quia timet cases in the Section. For these reasons an action for an injunction against a trade union in respect of torts by or on behalf of a trade union is in my judgment forbidden by the Section.
I turn now to the main aspects of the case. Is it a case in which an interlocutoy injunction should be ordered pending trial on the ground that the defendants or some of them have so conducted themselves as to indicate that they are likely unless restrained to take steps against the plaintiff company damaging to it and which in law those defendants are not entitled to take?
I do not propose to detail the facts which have been stated by the Master of the Rolls. All the trouble started because the Defendant union backed out of an inter-union agreement on spheres of influence which allotted the organisation of hotel workers in the relevant area to the General and Municipal Workers Union, with which as a result Torquay hotels agreed to and were prepared to negotiate wages and conditions of employment, Following on this a branch of the defendant union was formed to cover hotel employees in the area the view being taken (rightly or wrongly) that the General Workers Union had in this field been backward in organising union membership and in furthering the interests of hotel employees. The defendant union sought recognition by hotel proprietors in Torquay as a negotiating body for employees who were its members and hotel proprietors found themselves in some difficulty between the defendant union and the General Workers Union
who were at loggerheads over which should organise this labour in the area. No doubt also they preferred to deal with only one union: and no doubt officials of the defendant union thought that they preferred to deal with the General Workers Union as being less demanding than those officials thought they should be. Trouble arose at some hotels employing members of the Defendant Union who refused to recognise that union as a negotiating body for those members: picketing took place giving rise to difficulties in obtaining oil deliveries by tanker driver members of the defendant union. But no such trouble arose at the Imperial Hotel owned by the plaintiff: there was no dispute whether the defendant union should negotiate for its members employed at the Imperial Hotel, because there were none. The plaintiff company and its hotel were singled out for attack by the defendants solely because of the reported comment of Mr. Chapman, who is in substance the owner through the plaintiff company of the Imperial Hotel. The defendant union claims that it had a trade dispute with Mr. Chapman and, therefore, with the plaintiff company and therefore involving the Imperial Hotel because he had made a statement showing that he was critical of the activities of the defendant union in its disputes with other hotel proprietors* Now the difference between this case and the others is obvious: industrial action against the others is designed to lead to action by the others by way of recognition of the defendant Union as a negotiating body: industrial action against the Imperial Hotel could have no such end or aim: it could only be it seems to me to punish Mr. Chapman for the expression of views unpalatable to the defendant union. I do not consider that it could properly or correctly be said that the management of the Imperial Hotel was "in dispute" with the defendant union as that phrase is ordinarily understood, and as at present advised I agree that there was no trade dispute which it could fairly be said that the steps taken or threatened against the Imperial Hotel furthered.
The bulk supply contract between Esso and the Imperial Hotel was such as might be expected for an establishment the size of the latter. It was argued that the exception clause had the effect that Esso could not be in breach of its supply contract if failure to deliver was due to labour disputes. In my view, the exception clause means what it says and no more: it assumes a failure to fulfil a term of the contract - i.e. a breach of contract - and excludes liability - i.e. in damages - for that broach in stated circumstances. It is an exception from liability for non-performance rather than an exception from obligation to perform. If over a considerable period Esso failed to deliver for one of the stated reasons it seems to me that the Hotel would be entitled to repudiate the contract on the ground of failure by Esso to carry out its terms: otherwise the Hotel would be unable to enter into another bulk supply contract until the Esso contract was time expired. I will not repeat the facts as to Esso and Alternative Fuels, but it seems to me that, as they appear at present, they demonstrate an attitude on the part of the Union officials of willingness directly to induce breaches of contract for the supply of fuel oil to the Imperial Hotel in order to carry out a policy of punishing Mr. Chapman for his temerity in being critical of the union. This justifies a continuance of the injunction pending trial. At trial the evidence may appear in a different light, and other considerations such as conspiracy and intimidation will have to be dealt with in the light of the full evidence. In the meantime, the plaintiff company should be protected against what could be virtual destruction of its undertaking.
I have been in some doubt on the position of Mr. Cousins -whether the inference should at this stage be drawn that as General Secretary he would be ready to lend his authority to further attempts to induce oil suppliers not to fulfil their contracts with the Imperial Hotel. On the whole I think he was rightly included in the injunction on the present state of the evidence.
I would exclude the defendant Union as such from the injunction, but otherwise would dismiss the appeal. For this purpose I have not found it necessary to discuss some of the matters of law that were debated.
LORD JUSTICE WINN: As I myself see the questions which the Court must answer in this appeal in order to decide not what A will be the outcome of the action but what order, if any, by way of interlocutory quia timet injunction should be made on the evidence as it now stands, are the following:
1. Has it been established that one or more of the defendants has an attitude of mind towards the proprietors of the Imperial Hotel likely to be manifested by tortious conduct?
2. Would such conduct were it to materialise be rendered non-actionable?
(a) in the case of individual defendants by Section 3 of the Trade Disputes Act, 1906;
(b) in the case of the Union by Section 4 of that Act?
It seems convenient to treat question 2(b) separately since by disposing of it the considerable complexity of the matter can be somewhat lessened.
Hitherto there has been a conflict of judicial opinion as to the scope and effect in relation to injunctions of Section 4 of the 1906 Act: there have been several dicta but no decision; now the Court is bound directly to rule upon the meaning of the Section which provides that
"an action against trade union........in respect of any tortious act alleged to have been committed by or on behalf of the trade union shall be entertained by any Court".
These words are not easy to construe but to my mind it is at least clear that they must on their natural meaning include any action in which it is alleged that some act has been done by or on behalf of a union which unless it is held to be rendered non-actionable by Section 3 of the Act was tortious. Whether or not there can be in law any tort which is not actionable does not seem to be a question which is logically involved in the proposition; at any rate, it should be reserved.
In Ware and de Freville Ltd. v. Motor Trade Association (1921 3 K.B. 40), Lord Justice Scrutton said at pages 74 and 75 that, whilst it was not necessary to express a final opinion on the cross-appeal then before the Court, in his view the word "action" in Section 4 covered all actions in the Chancery Division, whether for an injunction alone, or accompanied by damages, and that the words "in respect of" a tortious act seemed to him to be, and I quote,
"framed with intentional width to cover all remedies asked for in relation to a tortious act whether committed or about to be committed".
He went on -
"I cannot think that Parliament intended to allow injunctions to be granted in respect of acts for which, when done, no damages could be claimed, and therefore, though I feel I am straining the language of the Act, I must read "alleged to have been committed"
as including allegations that trade unions are about to commit tortious acts". Lord Justice Atkin said at page 92 that he shared this opinion. Lord Justice Bankes did not deal with the point.
It may here be convenient to recall that the Taff Vale Case the outcome of which directly produced, after a Royal Commission had reported, the 1906 Act was, according to the statement of facts at page 426 of (1901 A.C.),
"an action against the respondent society in its registered name....... claiming an injunction and such further relief as the court might direct".
In Leeds Industrial Co-operative Society Ltd. v. Slack, (1924 A.C. 851), a more specific point arose in relation to power given to a Court of Chancery by Lord Cairn's Act, 1858 toward damages either in addition to or substitution for an injunction or specific performance. It was held by a majority of their Lordships that where an action was brought to restrain future obstruction of legal rights the Court had jurisdiction to award damages in lieu of such an injunction. Mr Pain has submitted that if a quia timet injunction can be granted against a trade union this decision would seem to open a way to an award of damages for tort against a union contrary to the generally accepted policy underlying Section 4 of the 1906 Act.
In more recent times, in 1963, in Boulting v. Association of Cinematograph &c. Technicians, (1963 2 Q.B. 606 Lord Justice Upjohn), with the concurrence of Lord Justice Diplock, said at page 643 that he had the greatest difficulty in understanding the dictum of Lord Justice Scrutton in Ware & de Freville Ltd. v. Motor Trade Association, (1921 3 K.B. 40), that a strict construction should be given to the Section and that he thought that
"the Court is entitled to grant an injunction (scilicet against a union) to prevent an apprehended injury.....and all the more so if the Statute has provided that if in fact the tort is committed he shall be left without remedy".
On the other hand, Lord Denning, Master of the Rolls, said at page 629, after referring to Section 4:
"Strictly speaking, those words do not forbid an action for an injunction in respect of a tortious act which is about to be committed. But in Ware and de Freville v. Motor Trade Association, Lord Justice Scrutton, with the concurrence of Lord Justice Atkin, thought that the words should be so construed as to forbid injunctions also. I hesitate to differ from so great authority; and on this account I would not be prepared to grant an injunction. But a declaration I would grant......."
In Bowles & Sons Ltd. v. The Watermens Union (1965 1 Lloyd's List Reports 20?), Mr. Justice Fenton Atkinson expressed his preference for the views of Lord Justice Upjohn and Lord Justice Diplock expressed in the Boultlng case.
In Camden Exhibition & Display Ltd. v. Lynott,(1966 1 Q.B. 555), Mr Justice Melford Stevenson granted an Injunction against a trade union, but on appeal this was discharged for reasons to which Section 3 of the 1906 Act was relevant. Both Lord Denning, Master of the Rolls, and Lord Justice Davies said that they preferred the view of Lord Justice Scrutton and Lord Justice Atkin to that of Lord Justice Upjohn and Lord Justice Diplock. Lord Justice Russell did not express any view about the effect of Section 4.
Having heard the issue fully argued in the present appeal I myself think that Section 4 does protect trade unions against actions being brought against them in which any form of injunction including a quia timet injunction is sought. It seems to me relevant and impressive (a) that any action in which it could be effectively contended that future tortious conduct is so probable as to require that it be restrained by an injunction without also alleging and proving that tortious conduct has occurred would be so relatively rare - though it is possible that the instant case may provide an example -that it is improbable either that Parliament intended to leave the remedy open for use in such a case, or that had it so intended it would not have expressed that intention more plainly than by the adoption of the aorist tense in referring to a tort "alleged to have been committed". (b) That were an injunction to be granted against a trade union and disobeyed the only processes of enforcement would be monetary, viz. sequestration of assets of the union or. a fine. In 1906, by contrast with today, unions needed and I think that Parliament intended to grant protection for their comparatively slender funds to avoid depletion of the resources from which members and their families could be assisted.
The first question posed in this judgment has been fully discussed by my Lords. I agree with them and with the learned judge upon it. In particular, my own mind has been influenced to this view by the admitted content of the conversation of Mr. Davies with the manager of Alternative Fuels Ltd. Without the benefit of hearing evidence and cross-examination it would be wrong to form anything more definite than an impression that the purport and indeed purpose of what Mr. Davies said was not solely solicitous of the prosperity and immunity from trade disputes of the company, or mere opportunism in utilising the discussion for recruiting.
It is true that no breach by Alternative Fuels Ltd. of any contract between that company and the company owning the Imperial Hotel in fact occurred; nor is it even established that had any such contract been made and become known to the defendants any of them would have set about procuring a breach of it. On the other hand, the District Secretary in Cheshire of the defendant union did not enquire whether the delivery of oil which he knew had been made by the company to the Imperial Hotel had or had not boon a delivery made pursuant to a contract, either for an isolated quantity or as a part delivery against a bulk contract. Even a single delivery of goods bought is made in performance of a contract for sale and delivery: it seems to have been fortuitous that the delivery made on 12th February was not intercepted by the pickets since they were absent at a meeting.
Mr. Davies, the district secretary, appears to have told Mr. Sayers, a director of Alternative, that it was "very important that no further supplies of oil should be made to the Imperial, which was "black", without adding any such qualification as: but, of course, if you have contracted to deliver some more, it can't be helped.
A natural and justifiable inference from this conduct and from that of Mr. Pedley, the District Secretary for the Exeter District in telephoning to the Esso depot in Plymouth on 3rd February, a message that there was an official dispute with the Imperial and any fuel supplies would be stopped, is that without regard to whether, and without investigating whether, the Esso Company had contracted with the owners of the Imperial to make periodical deliveries or a specific delivery of fuel oil, Mr. Pedley was thus seeking to induce them not to make such deliveries.
The evidence does not establish that in consequence any quantity of fuel which had been ordered was not delivered: no breach of contract by Esso was induced. However, the argument of Mr. Pain that Clause 10 of the written contract between Esso and the Hotel company for a year's supply would have operated to prevent a failure or failures to deliver ordered instalments of fuel thereunder from being a breach does not seem to me to be sound. As I construe the clause it affords only an immunity against any claim for damages; it could not bar a right to treat the contract as repudiated by continuing breach: despite the clause Esso could well have been held to have committed a breach by non-delivery and Mr Pedley came close to committing a tort of the Lumley v. Gye type.
It is not necessary in the instant case to consider to what extent the principle of that case may cover conduct which Lord Reid described in Stratford v. Lindley, (1965 A.C.236), as "deliberate and direct interference with the execution of a contract without that causing any breach". For my part I think that it can at least be said, with confidence, that where a contract between two persons exists which gives one of them an optional extension of time or an optional mode for his performance of it, or of part of it, but, from the normal course of dealing between them, the other person does not anticipate such postponement, or has come to expect a particular mode of performance, a procuring of the exercise of such an option should, in principle, be held actionable if it produces material damage to the other contracting party.
It was one of Mr. Pain's main submissions that mere advice, warning or information cannot amount to tortious procurement of breach of contract. Whilst granting arguendi causa that a communication which went no further would, in general, not, in the absence of circumstances giving a particular significance, amount to a threat or intimidation, I am unable to understand why it may not be an inducement. In the ordinary meaning of language it would surely be said that a father who told his daughter that her fiance had been convicted of indecent exposure, had thereby induced her, with or without justification, by truth or by slander, to break her engagement. A man who writes to his mother-in-law telling her that the central heating in his house has broken down may thereby induce her to cancel an intended visit.
The Court is not concerned in this case with any indirect procuring of breach, or non-performance of a contract, or with the adoption of indirect means to produce such a result: it is therefore not appropriate to consider whether such a mode of procuring such a result is only actionable, as Mr. Pain submitted where unlawful means, involving, for example, breaches of contract, or actionable breaches of contract, are involved.
It is equally irrelevant, in my view, as a matter of logic, whether or not there was a trade dispute in furtherance of which the defendants were intending to act: the relevant contracts or contractual relationships - Esso and Imperial, Imperial and Alternative Fuels - did not arise from contracts of employment and are therefore outside the scope of Section 3 of the 1906 Act.
Nevertheless, it is perhaps desirable, since so much argument has been heard about the matter, that a view should be expressed. In my opinion, there was at the material times a trade dispute between the union and the Torbay Hotel: none between the Union and the Imperial Hotel proprietors. Nor do I think that the "blacking" of the Imperial is properly to be regarded as an act done in furtherance of the Torbay dispute. Any dispute between the union and Mr. Chapman, or his company, was a personal dispute: a union may have a dispute with an individual whose view about the merits of a trade dispute or an issue in that dispute the union wishes to controvert or cause to be disclaimed. Yet there may in such a case be between the same parties no trade dispute as defined in Section 3, which stresses primarily the characteristic of a dispute with an employer; neither Chapman nor the Hotel employed any T.G.W.U. members. In the present case I reserve my opinion upon the question whether there can ever be a trade dispute within the section with any person who is not an employer of a member or members of the Union claiming to be in dispute with him: as at present advised I think not. Whilst he was not concerned to rule upon this question, Lord Pearce was, I venture to suppose, thinking somewhat as I do when he said in Stratford v. Lindley,(1965 A.C. 336):
"The apparent object of Section 3 was to protect a trade union official in just such a situation against an action by the employer. The only person who could sue him for his conduct 'on the ground only that it induced some other person to break a contract of employment' would be the party to the contract, namely, the employer. And it was the position between him and the employer with which the first limb of Section 3 was dealing........"
The present case is not concerned with any threat or intimidation: it is a simple case of conduct evidencing, as the Judge thought and I agree, such a disposition to induce or produce to the prejudice of the Imperial Hotel non-performance of contracts of their suppliers that relief by injunction was appropriate. As I think, once it is established that an individual or company which can only keep going by receiving, periodically, certain essential commodities, habitually receives them from a certain supplier, and this fact is well known, it is an unreal exercise to trouble to investigate how much any person knew about the precise contractual terms on which such supplies were obtained.
It would be otiose to repeat the thorough survey of the factual events provided in the judgment of my Lord, the Master of the Rolls which I have had the great advantage of reading. I agree with him that the Court should not differ from the learned Judge with regard to the subjection of Mr. Cousins to the injunction: the case against him is less plain than it is against the other appellants: but it would be very remarkable if the Chester Secretary, Mr. Davies, were activated in the dispute direct from Torquay or Bristol without any authority or knowledge plus tacit approval of the General Secretary in London: Mr. Cousins has maintained in the action hitherto a somewhat excessive taciturnity.
I agree with the outcome of the appeal proposed by my Lord, the Master of the Rolls.
THE MASTER OF THE ROLLS: The result will be that the injunction will not be granted against the trade union, but as against the other defendants it will be granted.
MR CAMPBELL: I am obliged, my Lord. May I apply to your Lordships to grant the declaration against the trade union in terms of the phrase in (B)(1) of the prayer under Order 15, rule 16. This was something which your Lordship did consider in the Boulting case at page 629.
THE MASTER OF THE ROLLS: On interlocutory proceedings?
MR CAMPBELL: Not interlocutory. Your Lordship said you would be ) prepared — "a declaration I would grant in the confident expectation" -
THE MASTER OF THE ROLLS: I forget what the Boulting case was; but to grant an injunction on an interlocutory application — I do not know that we would grant a declaration.
LORD JUSTICE RUSSELL: I do not think you want that, Mr Campbell. Have you not got an injunction against enough people concerned with the running of this trade union?
MR CAMPBELL: The reason is financial. I hold a judgment against the defendants, and the Order made below by the learned Judge was that the plaintiffs' costs will be costs in cause. His Lordship said: "I do not feel disposed to make any special Order regarding the second and third defendants who have chosen to join with the other defendants to resist and resist unsuccessfully this motion", The author of the wrong by adoption is the union, and in any trade dispute the effective wrongdoer is the union. The costs in these cases are astronomical. In fact, I have just been dealing with the Stratford costs. They are £15,000. These officials of the union have not got the money.
THE MASTER OF THE ROLLS: Does not the Union stand behind them?
MR CAMPBELL: No, my Lord.
THE MASTER OF THE ROLLS: They stand behind all the workmen in our Courts in their personal injury cases.
MR CAMPBELL: I do not want to say more in open Court, but, with the utmost respect, it is not to be expected that the union will stand behind the costs Order, and these individual defendants are on risk of a damage claim which they must meet personally. So far as the costs are concerned, the Union is the effective wrongdoer and I am asking for declaratory relief against the union. I do not mask the reason for it: it is to hold my costs Order. It has been a very expensive action for my clients so far, in order to enable them to keep going, and without the assistance of the Courts they would not have kept going. I am seeking to safeguard their costs position. I am not seeking to mask it.
LORD JUSTICE RUSSELL: What is the action against the union in respect of? Is it an action in respect of tort?
THE MASTER OF THE ROLLS: That was the point that was put; I know I said that in the Boulting case. I am not sure that I wag right about that. I forget how it went. Where was Boulting reported?
MR CAMPBELL: 1963, my Lord. It was dealing with how your Lordship came to say that. As your Lordship has expressed different views from Boulting, naturally it is open to your Lordship to regard the matter de novo. But Order 15, rule 16, makes it perfectly plain, with respect, that I am not faced with this difficulty if I ask your Lordships to grant a declaration, and that in future ---
LORD JUSTICE RUSSELL: But in your action are you asking for a declaration against the trade union in respect of tort alleged to have been committed by or on behalf of ---. I forget the exact words of the section now.
MR CAMPBELL: First of all, the rule of court, my Lord —
LORD JUSTICE RUSSELL: No, no — the section.
MR CAMPBELL: Section 4, my Lord. It is an action against a trade union in respect of any tortious act.
LORD JUSTICE RUSSELL: What is this action? Let us notionally leave all the other defendants out of these proceedings. What is the action against the trade union in which you now seek a declaration except an action which is within the language of Section 4? You cannot say: "All right, I will have a declaration" if you are not entitled to bring an action.
MR CAMPBELL: My Lord, with respect, this is where I would have prayed in aid the words of Order 15, rule 16, which, as your Lordship remembers, differentiates between an action or other proceedings:
"No action or other proceedings shall be open to objection on the ground that merely a declaratory judgment or Order is sought thereby".
And this I am submitting now is another proceedings. Your Lordships have held that it is not an action in tort. So far as it is an action in tort and not maintainable, I cannot get relief; but I would have submitted —
LORD JUSTICE RUSSELL: But It is an action in tort. There is no action against the trade union other than an action in tort.
MR CAMPBELL: I will not detain your Lordships further. I would have submitted that here it would plainly be convenient and right, in order to get the effective wrong doer, to be able to apply to the Courts for the declaration which was in terms envisaged by Lord Denning in Boulting. The only way one could do that, in face of your Lordships' unanimous judgment hero, would be to rely on Order 15 rule 16.
LORD JUSTICE RUSSELL: You cannot rely on Order 15 rule 16 because the Statute says you cannot bring the proceedings.
MR CAMPBELL: If that be the reasoning —
LORD JUSTICE RUSSELL: I am speaking for myself, Mr Campbell.
MR CAMPBELL: Then one could not ask for a declaration. I respectfully ask for a declaration, and I must not detain your Lordships further on that.
THE MASTER OF THE ROLLS: I do not know whether this point was argued, but there was another argument in regard to a declaration in the Boulting case, and the Judge said he would not hesitate to grant a declaration; but that was on another point. I am afraid in that last sentence I was not relating it, as I ought to have done, to Section 4.
MR CAMPBELL: My Lord, against myself I conceded in the course of argument in your Lordship's Court that it was rarely done, but it was open to your Lordships to grant an injunction or not — that really a declaration was a half-house. I did make that concession.
THE MASTER OF THE ROLLS: That in the Boulting case is probably wrong.
MR CAMPBELL: The other point I have is this, that, in view of the public importance of this matter that in trade union disputes one should be able to get a declaration or an injunction against the trade union which is the effective author of the wrong, either by original action or by subsequent adoption, I submit that your Lordships should grant leave on this issue.
THE MASTER OF THE ROLLS: We will see what Mr Pain has to say. What do you say about costs?
MR CAMPBELL: The last matter is the costs, I have the costs Order below, and I ask your Lordships to allow it to stand, because of the way the learned Judge approached it,
THE MASTER OF THE ROLLS: Give you plaintiffs' costs in action?
MR CAMPBELL: Yes. He said at page 44-D: after long argument of how they should be dealt with: "The Plaintiffs' costs will be costs in the cause; I do not feel disposed to make any special Order regarding the second and third defendants who have chosen to join with the other Defendants to resist, and resist unsuccessfully, this Motion". Now, all the costs are here one set of costs.
THE MASTER OF THE ROLLS: I suppose in the ordinary way as you have won in the appeal, you get your costs here?
MR CAMPBELL: Yes.
THE MASTER OF THE ROLLS: Although it was costs In the cause, they will be your costs of the appeal; but, on the other hand, there is the trade union point.
MR CAMPBELL: That in fact took, I would have submitted, not more than one day.
THE MASTER OF THE ROLLS: A comparatively short time; but you feel it is of great importance and want to go to the House of Lords?
MR CAMPBELL: Yes.
THE MASTER OF THE ROLLS: You will have to have some reduction on that account,
MR CAMPBELL: I could not improve on the position as stated by Lord Upjohn.
THE MASTER OF THE ROLLS: That is certainly a point, whether you get the costs, and you have to take the burden there.
MR CAMPBELL: Certainly, my Lord. I apply to go to the Lords on this issue, and therefore it is right that I should suffer a deduction. Apart from that, I am asking for the costs Order made by the learned Judge to stand, because it is difficult administratively to unscramble that, Here I am asking broadly for the costs of the appeal as a successful respondent, subject to the deduction which your Lordship may think right having regard to the time taken up in arguing the point on which I have failed.
THE MASTER OF THE ROLLS: Yes. Mr Pain?
MR PAIN: I do not know if your Lordships want to hear me on the declaration point. If it is pursued, it is in my submission, hopelessly out of order. But if your Lordships do not want to hear me on that, I can leave that.
THE MASTER OF THE ROLLS: Yes.
MR PAIN: So far as leave to appeal is concerned, of course, it does not really lie in my mouth to say that any issue in this action is unimportant from the public point of view.
THE MASTER OF THE ROLLS: You said you did not know where you stood and wanted to know where you stood.
MR PAIN: That is right, my Lord. On the other hand, I am inclined to think, in view of the way the judgment has come out, that if both sides were to call it a day, my clients would probably be prepared to leave it there. But, of course, one would have to consider it. I think our attitude really is this, that if leave to appeal is granted, there are equally important issues of law on which we have gone down, and it ought to be granted on both sides.
THE MASTER OF THE ROLLS: I see your point on that,
MR PAIN: Either both sides should have it —
THE MASTER OF THE ROLLS: Either both sides go or both sides stay?
MR PAIN: Both sides should have a go; but the Committee could decide that point if they want to take it further. I submit that is a reasonable attitude.
LORD JUSTICE RUSSELL: Are you resisting the application by Mr Campbell?
MR PAIN: My Lord, I resist it in a qualified sense. In the first place, I resist it, I say, in the alternative. In the alternative, if I am wrong, it should be on condition that —
LORD JUSTICE RUSSELL: That you have a go too?
MR PAIN: That I have a go too; and to that extent I make a qualified application to have a go. If your Lordships reject my friend's application for leave to appeal, I withdraw my application to have a go.
THE MASTER OF THE ROLLS: I think we understand that.
LORD JUSTICE RUSSELL: The injunction point is one which had given rise to a lot of judicial opinion, and it is an important point, is it not?
MR PAIN: My Lord, I entirely agree.
LORD JUSTICE RUSSELL: And it is a point which I personally think cannot be satisfactorily dealt with on an interlocutory application, as a point of law,
MR PAIN: Yes, my Lord.
LORD JUSTICE RUSSELL: Normally I dislike dealing with complicated points of law like this on an interlocutory application; but the facts could not affect this point of law, could they?
MR PAIN: No, my Lord, I think that is right.
LORD JUSTICE RUSSELL: It would not solve the point?
MR PAIN: It would not solve the point, and, equally, of course, there are important questions of law which arise in so far as procurement of breach of contract goes in this case. They may differ according to which judgment one looks. That is a matter for further investigation. But clearly they do arise, and in my submission it would work an injustice as between the parties if one party were entitled to have a chance of getting the Order which he did not like put right immediately —
LORD JUSTICE RUSSELL: I follow that.
MR PAIN: Therefore, as between the parties ---
THE MASTER OF THE ROLLS: If it is going to the House of Lords, let the whole thing go?
MR PAIN; In my submission, the whole thing should go; and in this particular class of case I would not suggest that it is particularly inconvenient to go to the Lords on an interlocutory application. It is very largely law,
THE MASTER OF THE ROLLS: Yes, I see that. That is that point. What about this question of costs?
MR PAIN: So far as costs go, the position now is, of course, that the score was 6 to 2 in my friend's favour in the Court below. In the light of your Lordships' decision, it should have been 5 to 3, and I think by a very narrow margin not 4-all. That, of course, is not by any means the end of the matter; but it does show that the defendants have had a substantial degree of success in this matter. In my respectful submission, it is not satisfactory to say: Well, there is just one set of costs, and, because some of the defendants have lost, therefore costs should go against them. My submission is that both In the Court below and in this Court the Order should be revised. Although my clients should have to bear some of the costs, there should be a reflection of the matter that on an important issue one of my clients has succeeded. My Lord, it is very common in these interlocutory matters, even where a plaintiff succeeds in getting his injunction, for it none the less to be costs in the cause* I do not think one can say that there is any sort of general practice. In my experience it varies from case to case and from Judge to Judge; but there would be nothing unusual in a case of this sort, where the facts at the trial may come out differently, for the Court to say: Well, we will make this costs in the cause. In a case like this, where, out of 8 defendants, 3 have escaped an interlocutory injunction, in my submission, that would be just the sort of case where it is right to say costs in cause.
LORD JUSTICE RUSSELL: No, this is very much a case of one side and the other side, is it not, as a practical matter?
MR PAIN: My Lord, it is a case of one side and the other side. It is also a case where as between one side and the other you do get a preliminary airing of the point of law, which is helpful in solving matters so far as the trial la concerned.
LORD JUSTICE RUSSELL: I am not quite sure that there ought to be some special Order about the costs as between the plaintiffs and the defendant Union and the two who escaped an injunction below. It is unrealistic, is it not?
MR PAIN: The suggestion that I made to the learned Judge below was that the simplest way of dealing with it would be to say costs in cause rather than plaintiffs costs in cause; because it is so difficult to sort it out as between individual defendants; but where you have as between the two sides a defence which has been by no means wholly unsuccessful, that ought to have some bearing if you are going to treat the costs as a whole upon the Order for the costs which you make; and it is a little hard that there should be plaintiffs' costs in cause in respect of it. For example, the union would remain liable in circumstances such as these: supposing, for example, your Lordships are minded not to give my friend leave to appeal in respect of the union, and supposing the Appeals Committee takes the same view, my friend really is then put in the position where he will, as I see it, have to discontinue against the Union; because there is a decision of this Court which would be binding on a Judge of first instance, and, no matter how satisfactorily from his point of view the evidence came out at the trial, he could not win against the union. One would then be left, even if he discontinued, with a Union which had an Order made which prevented it recovering any costs, even though by reason of discontinuance, he has lost his right to recover any costs against them.
LORD JUSTICE WINN: He could only discontinue with the leave of the Judge, who would then have full jurisdiction to deal with the whole problem so far as the union against whom he was discontinuing was concerned.
MR PAIN: He could not discontinue it at this stage of the action, I agree.
LORD JUSTICE RUSSELL: You would have to have the action struck out as against the union, would you not, on the basis of our judgment on Section A?
MR PAIN: I have not thought of that yet. I might be entitled.
THE MASTER OF THE ROLLS: At all events, we must do what we think right. You have won on the trade union point, as Mr Campbell says.
MR PAIN: Yes. My submission would be that the correct way of dealing with it would be to say that the Order below should be varied. If your Lordships say that it should be costs in cause and the Order in this Court should be that the Respondents should have their costs of the appeal to some limited extent — possibly one-half — some Order of that nature to allow for the fact that on one point they have failed, that is I submit what would be right.
MR CAMPBELL: My Lord, only two points. First of all, I accept that it is fair and right that if I get leave, my friend should have leave too. Secondly, I submit with the utmost respect that there really is no sufficient reason for disturbing the exercise of his discretion by the trial Judge as to costs below. As appears in the transcript, my friend did address a very long submission to the trial Judge in which he dealt with all these matters, and it would not be right to disturb the exercise of the discretion of the trial Judge.
LORD JUSTICE RUSSELL: Mr Campbell, if our view of Section 4 stays and the action were to be struck out as against the union, to which he would be entitled on the basis of our decision, yet you would have against the defendant union an Order among others for your costs as costs in cause. I suppose the union, if it were able to separate its costs from those of the others, and if it thought fit, could take that course, to ask for the action to be struck out with costs.
MR CAMPBELL: My Lord, they could, but this has arisen recently at the level of the Master, who has tried to deal with the matter in the Stratford case, where, nothing having been done for four years, it was heard by Master Bickford-Smith last week. They said, "You have got to pay all our costs because you have not prosecuted the action". We said, "We do not want to go on with the action: there is no object in going on with the action today; we want to get out of it; and there is a discretion in the Court to make in those circumstances the Order that is right". But the Master gave a judgment of Solomon, saying, "You can get out. Each side pays its own costs". Now, it does not matter whether they take the initiative in this case and strike us out; there would still be a discretion in the Judge to make the right Order. It really does not matter. With respect, you cannot ever take away the discretion of the Judge. Whether they take the initiative or we take the initiative is fortuitous. I would have submitted that, though it is only at the level of the learned Master at the moment, that is the sort of judgment which any Judge might well make.
(The Court conferred.)
THE MASTER OF THE ROLLS: We do not give leave to appeal to the House of Lords to either side. As to the costs, the appeal is dismissed with three-quarters of the costs to be paid by the Appellants other than the the Trade Union in any event.
MR CAMPBELL: To be taxed and paid in any event?
LORD JUSTICE RUSSELL: No, not taxed and paid. To be the plaintiffs' costs in any event.