THE HIGH COURT
			No. 1999 7690p
BETWEEN
IARNROD EIREANN - IRISH RAIL
			PLAINTIFFS
AND
CHRISTOPHER HOLBROOKE, JOHN COURTNEY, BRENDAN OGLE, GERARD HUGHES, BRIAN DUNPHY, ANTHONY COLLIER, KEVIN CONNOLLY, KENNETH FOX, DAVID HEALY, HENRY MASTERSON, HUGH McCARTHY AND IRISH LOCOMOTIVE DRIVERS ASSOCIATION
			DEFENDANTS

JUDGMENT of Mr. Justice O’Neill delivered the 14th day of April, 2000.

	The first named eleven Defendants in these proceedings are all locomotive drivers and are in the employment of the Plaintiffs.  These defendants are also the members of the National Executive Committee of the twelfth named Defendant, which Association was joined as a co-Defendant in these proceedings by Order of Miss Justice Laffoy made on the 8th day of October 1999.
	In these proceedings the Plaintiffs seek damages from all of the Defendants for the losses that they claim to have suffered arising out of two stoppages which occurred in the rail service, one on the 9th day of July 1999 and the other on the 11th day of July 1999, which stoppages the Plaintiffs claim were brought about by the actions of the Defendants and in respect of which the Plaintiffs claim that all of the Defendants are liable for damages for procuring breaches of the Plaintiffs’ commercial contracts or, in the alternative, for actionable conspiracy.
	In addition the Plaintiffs claim declarations to the effect that the twelfth named Defendants (hereinafter referred to as I.L.D.A.) are not entitled to negotiate and conclude agreements pertaining to the terms and conditions of service of employees of the Plaintiffs who are members of I.L.D.A., and that the Plaintiffs are required as a matter of law to negotiate and conclude such agreements only with authorised trade unions recognised for such a purpose and possessing negotiation licences.  The Defendants counterclaim for declarations to the effect that I.L.D.A. is an excepted body within the meaning of Section 3(3) of the Trade Union Act, 1941 as amended and that I.L.D.A. is a trade union, representative of railway employees within the meaning of Section 55 of the Railways Act, 1924 and that the Plaintiffs are required to reach agreement with I.L.D.A. together with other trade unions representative of railway employees in order to amend the agreement relating to rates of pay, hours of duty and other conditions of service of locomotive drivers made about the month of May 1994.
	Both the Plaintiffs and Defendants claim injunctions in aid of declaratory relief claimed by each of them.
	There is a third aspect to the proceedings and that is a further counterclaim by the third named Defendant, Brendan Ogle, in which he claims declaratory and injunction relief in relation to disciplinary proceedings brought against him by the Plaintiffs.  An interlocutory application by way of Notice of Motion was made to this Court on the 11th day of October 1999 in which, inter alia, an interlocutory injunction restraining the Plaintiffs from proceeding with the disciplinary process against the third named Defendant was claimed.  On that application the Plaintiffs gave an undertaking not to proceed with the disciplinary proceedings against the third named Defendant pending the determination of these proceedings.
	In the course of the trial an application was made to me by the Defendants to amend the defence by expanding the claims made by the third named Defendant in respect of these disciplinary proceedings.  I refused that application.  In the event the reliefs claimed in the third Defendant’s counterclaim were not pursued at the trial.

Background
	The dispute between the Plaintiffs and Defendants has its origins in the reaction of a significant number of locomotive drivers to the negotiation, through the collective bargaining process conducted under Section 55 of the Railways Act of 1924, of a new collective agreement in 1994.  Some locomotive drivers were very unhappy with some of the terms of that new agreement and also the manner in which they claimed the ballot whereby it came to be approved on behalf of locomotive drivers, was, conducted.  In these respects they claimed that they had been badly let down by their unions, namely the Services, Industrial and Professional Trade Union (hereinafter referred to as S.I.P.T.U.) and the National Bus and Railway Union (hereinafter referred to as the N.B.R.U.).  Such was the state of dissatisfaction that these locomotive drivers felt, arising out of these events, that they determined that in future they would not leave matters solely in the hands of the unions.  Hence they formed a Committee which became known as the National Locomotive Drivers Committee.  This Committee was an informal cross-union grouping, its members being drawn from both S.I.P.T.U. and N.B.R.U.   From 1996, this Committee was active in pursuing issues relative to the pay and conditions of locomotive drivers and in putting pressure on the two unions which represented locomotive drivers, namely, S.I.P.T.U. and N.B.R.U.   In 1996 this Committee organised a petition supported by almost all of the locomotive drivers employed by the Plaintiffs, which sought a review of the pay and conditions of employment of locomotive drivers.  In 1997 this Committee prepared a discussion document or a set of proposals on pay and conditions.  The two unions were prevailed upon to bring these proposals to the Plaintiffs.  After a good deal of protracted negotiation extending well into 1998, it became apparent to  the N.L.D.C. that their proposals had been discarded and in this regard they came to the conclusion that the two unions had been only too pleased to permit that to happen.  This convinced the N.L.D.C. that as a pressure group on the two representative trade unions they were a total failure.  This in turn led to a decision on the part of those disenchanted locomotive drivers to form a new association and to constitute it as a trade union.  At a meeting of locomotive drivers in September of 1998 this in fact was done.  I.L.D.A. was formed and the first eleven Defendants were appointed as its National Executive.  I.L.D.A. then proceeded to take such steps as were necessary to become a trade union and in due course an application was made to the Registrar of Friendly Societies and on the 29th July, 1999, I.L.D.A. became a trade union under the provisions of the Trade Union Act of 1871.
	In the meantime the Plaintiffs looked upon the emergence of I.L.D.A. with undisguised dismay.  Mr. Heenan in his evidence expressed the Plaintiffs’ concern at the emergence of I.L.D.A. as being grounded essentially on four reasons.  The first of these was that the Plaintiffs had some 5,000 workers who are currently represented by eleven unions who, for negotiation purposes, were gathered into three groups, namely, approximately half the work force represented by S.I.P.T.U., the craft unions gathered together under the umbrella of the Irish Congress of Trade Unions group (hereinafter referred to as I.C.T.U.) and then the N.B.R.U.   The Plaintiffs did not want to see any fragmentation of these arrangements by the emergence of any new unions.
	Secondly, the Plaintiffs had a policy of only recognising or dealing with “authorised” unions, that is to say, unions who held a negotiation licence under the Trade Union Act of 1941, and as the I.L.D.A. does not have a negotiation licence and because of its numbers will not qualify for such a licence, the Plaintiffs are of the view that they cannot deal with I.L.D.A. as a trade union without fundamentally departing from their settled policy and if they were to depart from that policy, it could lead to an unravelling and fragmentation of stable workable relations built up with the existing trade unions.
	Thirdly, the Plaintiffs have formed the view that I.L.D.A. and its embryo, the N.L.D.C., have had a baneful influence on the relationship between the Plaintiffs and locomotive drivers and have delayed and frustrated the negotiation and completion of a new collective agreement with locomotive drivers.
	Fourthly, in the Plaintiffs’ view I.L.D.A. have been responsible for maverick industrial action which on four occasions since July of  1998 have resulted in one day stoppages.  Insofar as three of these stoppages are concerned, the Plaintiffs attribute blame directly to I.L.D.A. or its predecessor, the N.L.D.C. and in respect of one of them, that is to say, a one day stoppage which occurred in November of 1998, they acknowledged that all of the unions representing locomotive drivers were involved in this.
	Fifthly and finally, the Plaintiffs adopt the position that all of the locomotive drivers are, by virtue of their terms and conditions of employment to which they subscribed on taking up employment with the Plaintiffs in the first instance and in joining the grade of locomotive drivers in the second instance, are obliged to be a member of either one or other of the two unions which they regard as representative of locomotive drivers, namely, S.I.P.T.U. or the N.B.R.U.   The Plaintiffs regard all of the members of I.L.D.A. who have resigned their membership of either of the other two unions as in breach of their terms and conditions of employment and in this case they approach the question of what unions are representative of locomotive drivers, on the basis that all locomotive drivers are obliged to be a member of either S.I.P.T.U. or the N.B.R.U. and hence the question of who are the representative unions for locomotive drivers is settled by the contracts of employment which the Plaintiffs have with all of its locomotive drivers, including the Defendants in this case and all other members of I.L.D.A.
	The Defendants’ defence to the various claims of the Plaintiffs are essentially and in summary form, insofar as the two stoppages in respect of which the Plaintiffs claim damages for their losses, the one in Athlone on the 9th July, 1999 and in Cork on the 11th July, 1999 are concerned,  that these stoppages were unplanned and spontaneous local events in respect of which I.L.D.A. or the Defendants as members of its National Executive had no involvement in or indeed no knowledge of, until these events were over and hence no liability in respect of these events.  Insofar as the Athlone stoppage was concerned, it is the Defendants’ case, and in particular Mr. Ogle’s case, that on the day in question he was not permitted to drive his train because he was deemed by his superiors to be unfit to do so and that the fact that four other drivers refused to drive their trains was a spontaneous reaction unbidden by him and in respect of which he had no hand, act or part.
	The Cork stoppage on the 11th July, 1999 was in the Defendants’ case again the spontaneous and unsought reaction of the Cork drivers who, on the day in question which was a Sunday, all took what they perceived to be their entitlement, namely, their day’s rest.  It was the Defendants’ case that not only did Mr. Holbrooke not seek to procure or induce the other drivers to stay out of work but that on the contrary he expressed the wish that they would work on the day in question.  So far as the other Defendants are concerned, the National Executive of I.L.D.A. had no knowledge at all in advance that this stoppage was going to occur and that it was an entirely unplanned event and hence none of the Defendants, including Mr. Holbrooke, could have any liability for it.
	The Defendants, on the question of their entitlement to represent those locomotive drivers who are members of I.L.D.A., contend that members of I.L.D.A. have a constitutional right to disassociate from the N.B.R.U. and S.I.P.T.U. and to become members of I.L.D.A., that their numbers, namely, 114 represents approximately 41% of locomotive drivers and hence they are a substantial minority of drivers and are representative of those drivers within the meaning of Section 55 of the Railways Act of 1924, that they are an “excepted” body within the meaning of Section 6 of the Trade Union Act of 1941 and that hence, notwithstanding the fact they do not have a negotiating licence, they are still entitled to represent their members and that the Plaintiffs have a mandatory duty under Section 55 of the Railways Act, 1924 to negotiate with them as an accepted body who are a representative trade union within the meaning of the section on terms and conditions of employment leading to a new collective agreement for locomotive drivers.
	I now turn to deal in detail with  the respective claims made in the proceedings and I will first deal with the Plaintiffs’ claim for damages in respect of their losses as a result of the stoppages at Athlone and Cork on the 9th and 11th July, 1999.  Before going into the detail of these claims, I must first set out the appropriate legal principles which would govern the assessment of whether or not the Plaintiffs are entitled to recover damages in respect of these events.  The Plaintiffs claim damages against all of the Defendants in the torts of inducing or procuring breaches of contract and in conspiracy.
	Insofar as the tort of inducing or procuring the breach of contract is concerned, I have been referred to the unreported judgment of Hamilton J., as he then was, delivered on the 2nd day of December 1975 in the case of Armstrong Motors Limited v. Coras Iompair Eireann, British Rail, Patrick Whitty, Patrick Donegan, and the Irish Transport and General Workers Union and I adopt, with respect, the following passage from the judgment of Hamilton J. as a correct statement of the law on the essential ingredients of the tort of actionable interference with contractual relations or otherwise known as the tort of procuring or inducing breach of contract:-
	
	“1.	That the Defendants did know of the existence of the contracts and intended to procure their breach.
	2.	That the Defendants did definitely and unequivocally persuade the employees concerned to break their contracts of employment with the intention of procuring the breach of the contracts.
	3.	That the employees so persuaded, induced or procured did in fact break their contracts of employment.
	4.	That the breach of the contract forming the subject of interference ensued as a necessary consequence of the breaches by the employees concerned of their contracts of employment”.

	The Plaintiffs also claim damages in respect of actionable conspiracy.  The essential features of this tort have long remained afflicted with some uncertainty, both in this jurisdiction and in England.  However, the authorities in this jurisdiction and in particular the judgments of the Supreme Court in McGowan v. Murphy, unreported judgment delivered the 10th April, 1967 and Maskell v. C.I.E., 1973 Irish Reports at 212 and the judgment of Dixon J. in the High Court in Connolly v. Loughney, 87 ILTR.49 at 51, establish the following essential features of the tort:-

	“1.	The agreement or combination of two or more people, the primary or predominant object of which was to injure another is actionable even though the act done to the party injured would be lawful if done by an individual.
	2.	An agreement or combination of two or more persons to carry out a purpose lawful in itself but by using unlawful means is actionable, in circumstances where the act in question might not be actionable against the individual members of the combination, as individuals”.

	Turning now to the events that led to the claims for damages.

STOPPAGE AT ATHLONE ON THE 9th JULY, 1999.
	The origins of this stoppage are to be found in a complaint made on the 27th day of May, 1999 by two locomotive drivers, a Mr. Brophy and a Mr. Fitzpatrick, under the grievance procedure.  The particular grievance which these two drivers had, which is immaterial to these proceedings, was that they were dissatisfied with their rosters.  Both of these drivers requested a hearing and also that they would be accompanied to that hearing by Mr. Ogle, the third named Defendant.  The Plaintiffs, having considered this request, decided that they could not agree to these two drivers being represented by Mr. Ogle.  In due course, on the 6th July, 1999, Mr. Brendan Smith communicated to the two drivers in question the refusal of the Plaintiffs to allow the two drivers to be accompanied and represented at the hearing of their grievance by Mr. Ogle.  It became clear from the evidence given by Mr. Brendan Smith, who in fact made the communication, that what was in fact communicated to the two drivers was that Mr. Ogle could not attend and represent, either as a union representative or merely as a colleague.  Although Mr. Ogle did not give evidence, his version of events as put through cross-examination was in agreement with the evidence of Mr. Smith, and I accept as a fact that what was communicated by the Plaintiffs on the 6th July of 1999 was that Mr. Ogle could not represent either of these two drivers in any capacity.
	I accept also the evidence of Mr. Keenan and Mr. Glynn that this communication did not represent the considered position of the Plaintiffs on the issue of representation by colleagues at grievance procedure hearings or disciplinary hearings.  I accept Mr. Keenan's evidence, and in this regard he was supported by Mr. Glynn, that at grievance procedure hearings or at disciplinary hearings a driver was entitled to be represented by another colleague and that that would have included Mr. Ogle.  Because the grievance of Mr. Fitzpatrick and Mr. Brophy had to do with rostering and therefore the resolution of it would have involved interfering with the rosters of other drivers, that was a grievance or dispute which necessarily involved negotiation with unions and hence it was the position of the Plaintiffs that they would not agree to hear or deal with Mr. Ogle, as in the first place they would not recognise him as a union official and secondly, because the resolution of the problem necessarily involved dealing with the rosters of other workers, it was necessary to involve a union representative and Mr. Ogle, as a colleague, could not have advanced the situation.  However, the damage was done by the flawed communication on the 6th July, 1999.  There is no doubt that the Plaintiffs conveyed the message that they would not treat Mr. Ogle as entitled to represent a fellow locomotive driver, either as a union representative or as a colleague.  In refusing to allow Mr. Ogle represent a locomotive driver as a colleague, they were in breach of the established grievance procedures.
	Mr. Ogle appears to have been greatly upset by this communication and quite reasonably formed the view that he was being, as he put it later, pinpointed for discrimination and victimisation.
	To make matters worse, on the 8th July, 1999 Mr. Ogle rang Mr. Brendan Smith to query the matter and was given the same response.  The following morning at about 9.30 a.m. Mr. Smith received a telephone call from Mr. Ogle.  In the meantime Mr. Smith had been on to the Plaintiffs’ Human Resources Department in Dublin and the content of the message conveyed to the two drivers the previous day was confirmed to him.  Thus when he spoke to Mr. Ogle at 9.30 a.m. on the morning of the 9th July, he had nothing new to convey to Mr. Ogle and repeated the content of the message from the previous day.  Mr. Ogle was again upset at this.  He told Mr. Smith that he was looking for a letter to reassure him that he would not be discriminated against and that he needed to have this letter before he came on duty at 3.15 p.m. that day.  It was Mr. Smith’s evidence that Mr. Ogle conveyed to him the impression that if he did not get this letter of reassurance that there would be adverse consequences, though these consequences were not spelled out.  In the course of this conversation, Mr. Ogle complained repeatedly about being discriminated against.
	At around about 10.30 a.m. Mr. Smith received a phone call from Inspector Denis Minogue, who had received a phone call from Mr. Ogle in which Mr. Ogle had complained that he was stressed out, agitated and lacking in concentration and Mr. Minogue was of opinion that Mr. Ogle might not have been fit to carry out his duty in the afternoon at 3.15 p.m.   Mr. Smith then arranged to contact a regional inspector, Inspector George Behan  so that he would be in Athlone at 3 p.m. to assess the fitness of Mr. Ogle to drive his train.  Further arrangements were made to have a standby driver in place in case Mr. Ogle was unfit.
	Mr. Ogle reported for duty at approximately 3.15 p.m. in the afternoon of the 9th July, 1999.  He handed in a letter of the same date addressed to the Management, Irish Rail.  The letter was as follows:-

	“Yesterday the 9th July, 1999 I was advised by Mr. Brendan Smith in the District Office, Athlone, that Irish Rail management had decided that I was no longer permitted to act as a representative if nominated to do so by any of my colleagues.  Further, I was advised that this decision related specifically to me only and that any other staff member could continue to operate in the agreed fashion.

	It is therefore clear from these remarks that Irish Rail management have decided to pinpoint me for discrimination and victimisation and I feel that no employee of any company should be treated in this way.

I am now informing you, my employer, that this victimisation is upsetting me  and causing me undue stress and annoyance.  This is completely unnecessary and totally of your making and I am asking that you now rescind the remarks made yesterday and assure me in writing that this discrimination is at an end”.

The letter was signed by Mr. Ogle and it was copied to Mr. Donal Spring, Solicitor, Mr. Ted Corcoran, Safety Manager, Irish Rail and Mr. Denis Minogue, Locomotive Inspector, Athlone.
	When he arrived on duty Inspector Behan assessed Mr. Ogle’s fitness to drive a train and declared him unfit to take out the train.
	At this point a relief driver, Mr. Kinehan, was asked to drive the train but he refused to do so.
	The train in question was scheduled to depart from Athlone at 3.40 p.m. and because the Plaintiffs were unable to obtain any other driver, the train had to be terminated in Athlone.  There were some 150 passengers on the train and the Plaintiffs had to arrange for these passengers to be taken to their destinations by buses hired from local private operator and a number of taxis.
	Following this the driver of the train which was due to leave Athlone at 16.30 en route from Heuston to Ballina refused to drive the train out of Athlone.  The consequence of this was that that train had to be terminated and its 100 passengers taken to their destinations on private buses.  A third train, the 19.10 from Heuston to Westport also had to be terminated at Athlone because the driver to take it from Athlone refused to do so.  Again, the passengers on this train had to be taken off and conveyed onwards on buses hired by the Plaintiffs.
	A fourth train, namely, the train from Westport to Dublin, which was due to leave Westport at 18.10 that evening, could not run because the driver refused to take the train out of Westport.  Finally, the evening train from Ballina to Manulla Junction did not depart Ballina because its driver refused to take it out of Ballina. 
	Mr. Smith gave evidence which was unchallenged, that all of the drivers who refused to work these trains were all members of I.L.D.A.  He also said in evidence and was unchallenged on it, that none of these drivers raised any grievance apart from Mr. Ogle and none of the drivers involved, including Mr. Ogle, invoked the agreed grievance procedures.  Mr. Smith also gave evidence, which was unchallenged and which I accept, that Mr. Ogle remained at the depot in Athlone throughout the remainder of the day and at 9 p.m. that evening, after consultation with a Mr. Sean Cook in the Human Resources Department of the Plaintiffs, Mr. Smith handed to Mr. Ogle a document in the form of an internal memorandum which was from the Administrative Executive District Office, Athlone, to Mr. Ogle and was dated the 9th July, 1999 and was a reply to Mr. Ogle’s letter of the 9th July, 1999.  This memorandum reads as follows:-

	“I refer to your letter of today’s date.
	I wish to make it clear to you that you are not and will not be discriminated against or victimised.  You will be treated in  the same manner and you will continue to have the same rights as any other locomotive driver.

	I trust that this clarifies the company’s position for you”.

The letter was signed by Mr. Smith.
	It appears that Mr. Ogle was satisfied with the contents of this memorandum and so expressed himself to Mr. Smith.  This position appears to be confirmed or corroborated by the evidence of Mr. Dunphy who said that he received two phone calls from Mr. Ogle that evening, the first at about 8 p.m.  In this first call he was informed by Mr. Ogle that there had been a problem in Athlone and as a result of which drivers coming on duty had refused to drive their trains.  Mr. Dunphy said in his evidence that shortly after the first conversation he received another phone call from Mr. Ogle and in this phone call Mr. Ogle told him that everything had been resolved and the trains were working normally.  The final event relative to the stoppage in Athlone was a press statement issued by I.L.D.A. dated the 16th July, 1999.  This statement also deals with the stoppage in Cork on the 12th July, 1999, so for convenience I will quote the statement in its entirety here.  The statement bears the logo of I.L.D.A. and reads as follows:-

	 “Press Statement - 16th of the July, 1999
	As a result of communications received by Mr. Christopher Holbrooke, locomotive driver, Cork last evening 15th July, 1999  I.L.D.A. confirms that no member now has any grievance or dispute with respect to their right to represent any fellow employee under Irish Rail’s grievance/disciplinary procedures or at appeals.  Therefore all I.L.D.A. members will continue to operate trains on rest days in accordance with custom and practice. 

	On the 26th June, 1999 Mr. Christopher Holbrooke, a member of this Association was informed by Mr. T. Sheehan, Station Master Cork that he would not be paid for attending an inquiry on the 24th June.  He was not told that this was because there was a problem with completing his roster, neither was such a problem ever raised with him then or since.  To state otherwise is a complete falsehood.

	On the 8th July, 1999 Mr. Brendan Ogle was informed by Mr. Brendan Smith of the District Manager’s Office, Athlone that it had been decided that he was no longer permitted to accompany any colleague who nominated him to attend a meeting under the said procedures.  Mr. Smith offered no explanation for this breach of the procedures when asked other than to say that the decision had been informed to Mr. Gerry Glynn, District Manager, Athlone from Mr. John Keenan, Manager, Human Resources, Irish Rail.  Therefore to state that this issue was never raised is also a complete falsehood.
	Clearly Irish Rail’s attempt at victimisation and discrimination against two employees in this manner was calculated and sinister.  It is, however, indicative of the failure of Irish Rail management to deal with the changed industrial relations landscape within the company.  This reality must be addressed and we call for management to adopt a more realistic and pragmatic approach henceforth.  We thank our colleagues in other unions for their support on this issue and for the many good wishes received by us from fellow employees of all grades.  Their support is consistent with the finest traditions of Irish trade unionism. 

	Finally to the public who were so much inconvenienced last weekend we sincerely apologise and we assure them that as long as our constitutional, legal and employment rights are upheld without fear or favour we will continue to operate all train services in our usual professional manner.”

The statement appears to have been issued by the National Executive Council of I.L.D.A..  
	As mentioned earlier, Mr. Ogle did not give evidence and neither did any of the other members of the National Council apart from Mr. Brian Dunphy, the fifth named Defendant.  Mr. Dunphy struck me as an honest witness and I am inclined to believe him when he says he knew nothing about the Athlone stoppage until late in the evening when he was rung by Mr. Ogle and that he knew nothing about the issuing of the statement of the 16th July, 1999 purportedly on behalf of the National Executive Council.  Having regard to Mr. Dunphy’s evidence and also the nature of events which occurred in Athlone, namely, a grievance which arose for the first time on the 6th of July, 1999, was only confirmed directly to Mr. Ogle on the 8th of July, I accept also, that there was no advance discussion or planning of this stoppage in Athlone by the National Executive Council of I.L.D.A.  It would seem to me that the probabilities are that the stoppages which occurred in Athlone on the 9th July were an unplanned event which in all probability arose as a relatively spontaneous reaction to the grievance of Mr. Ogle, a grievance which was only clearly established on the 8th July perhaps not until the 9th July, 1999.
	There is no doubt, in the light of the evidence given by the witnesses for the Plaintiffs, that as of the morning of the 9th July, Mr. Ogle had a genuine grievance.  That of course would not have justified him in inducing or procuring a withdrawal of labour by other drivers or engaging in a conspiracy to that effect, having regard to the fact that he was bound by the well established grievance procedures, a fact which was readily acknowledged by Mr. Dunphy in his evidence.
	I am satisfied on the evidence that the Plaintiffs have not proved as a matter of probability that the Defendants, apart from Mr. Ogle, had any involvement in the stoppage that occurred in Athlone on the 9th July, 1999.  Hence no liability for whatever losses were suffered by the Plaintiffs as a result of this stoppage can attach to any of these Defendants.
	Insofar as Mr. Ogle is concerned, I am not satisfied that the evidence of his involvement in the events that occurred on the afternoon and evening of the 9th July is of such a persuasive character as to enable me to conclude that he, Mr. Ogle, in the words used by Hamilton J. “did definitely and unequivocally persuade, induce or procure” the four other drivers who refused to take out their trains in Athlone that day, to break their contracts of employment by so refusing to drive their trains.
	While it is the case that Mr. Ogle remained at the depot for the duration of the afternoon and evening of the 9th, there is no doubt that for that period of time he continued to have a genuine grievance of a kind that was deeply upsetting to him and would be likely to have been offensive and upsetting to other locomotive drivers who with knowledge of what had happened would undoubtedly have had a great deal of sympathy for Mr. Ogle. 
	In the light of these factors, the evidence of the Plaintiffs fails to tilt the balance of probabilities on this issue in their favour and I cannot conclude that it was probable in the circumstances of that day that Mr. Ogle unequivocally persuaded or induced any of these four drivers to breach their contracts of employment.  
	I am also not satisfied that the evidence of the Plaintiffs in regard to the events in Athlone that day goes so far as to convince me that on the balance of probabilities there was an agreement or combination between Mr. Ogle and these other four drivers or any other individual to advance Mr. Ogle’s grievance, a purpose lawful in itself, by the unlawful means of a refusal by these four drivers to drive their trains.
	I conclude therefore that the Plaintiffs’ evidence falls short of establishing any liability on the part of the Defendants in respect of whatever losses were suffered by the Plaintiffs as a result of the stoppages at Athlone on the 9th July, 1999.

THE STOPPAGE IN CORK ON THE 12th OF JULY, 1999
	Evidence in relation to this stoppage was given to me by Mr. Tim Sheehan, District Manager, Kent Station in Cork, and Mr. Dan Sheehan, on behalf of the Plaintiffs.  Mr. Holbrooke who is the central figure in this dispute did not give evidence.  The only witness to give evidence in these proceedings on behalf of the Defendants was Mr. Brian Dunphy and his evidence in relation to this stoppage in Cork was that he knew nothing about it in advance and only heard of it the following day.
	I should say at the outset in dealing with this matter that I accept in its entirety the evidence of both Mr. Tim Sheehan and Mr. Dan Sheehan.  
	The events leading to this stoppage began on the 1st July, 1999.  On that day the Plaintiffs were conducting an inquiry into an incident which had happened on 22nd June, 1999.  This was a shunting incident and the inquiry which was being conducted was purely for the purpose of ascertaining what had happened.  It was not a disciplinary hearing.  It was Mr. Tim Sheehan’s evidence that it would be unusual for a driver to be represented at such an inquiry either by a union representative or a colleague.  On the day of the inquiry, Mr. Holbrooke had been rostered to work from 13.00 hours to 21.40 hours.  Mr. Holbrooke came to attend the inquiry with the driver of the train in question, a Mr. Finbar Sullivan, notwithstanding the fact that he had not sought or been given the permission of Mr. Sheehan to so do.   When the inquiry had finished dealing with Mr. Sullivan, Mr. Holbrooke did not return to work and did not sign off in the usual way.  For these two reasons Mr. Tim Sheehan decided that Mr. Holbrooke should not be paid his day’s wages for that day as would be the norm for somebody attending an inquiry having observed the appropriate procedures.
	On the 2nd or 3rd July, Mr. Holbrooke came to Mr. Sheehan’s office and Mr. Sheehan explained the problem to him but asked him for a letter setting out his case for payment.  Mr. Holbrooke refused to give such a letter.  On the 4th July, 1999 Mr. Sheehan met Mr. Holbrooke on the platform and had a discussion with him in the course of which Mr. Sheehan offered to give him a day’s annual leave if he would take it.  Mr. Holbrooke explained he did not want to lose a day’s leave as he was going away later on in the year and that he wanted his leave for then.  Mr. Sheehan told him not to worry about that, that he would fix up another day for him in place of that particular day if he would take it.  That same day the local running foreman got a memo from Mr. Holbrooke telling him not to return him for a day’s annual leave.  On the 5th July, 1999 Mr. Holbrooke and three other drivers sent in notes stating in similar parlance that each of those four drivers was taking a rest day on the following Sunday, the 11th July.  Curiously, each of these notes has the date of the following Sunday incorrectly stated as being the 13th July.
 	On the 6th July, 1999 the Plaintiffs decided to pay Mr. Holbrooke for the day of the inquiry.  On the 8th July, 1999 Mr. Tim Sheehan had a meeting with Mr. Holbrooke in Mr. Sheehan’s office at which Mr. Sheehan informed Mr. Holbrooke that he would be paid for the day in question.  Mr. Sheehan asked Mr. Holbrooke to work the following Sunday but Mr. Holbrooke told him that he would not change his mind and that he did not intend to work that Sunday.  
	Mr. Dan Sheehan, who was working at Heuston Station in Dublin, gave evidence of a discussion he had with Mr. Holbrooke on the 10th July, 1999.  In that discussion Mr. Holbrooke told Mr. Dan Sheehan that none of the Cork drivers would be reporting for work on Sunday the following day, July the 11th.  Mr. Sheehan asked him why and Mr. Holbrooke told him he did not get paid for attending an inquiry with one of his colleagues.  Mr. Sheehan queried this with him stating that it was his understanding that he did get paid or that he would get paid for the day in question but Mr. Holbrooke denied that this was the case.  Mr. Holbrooke repeated in the discussion that he did not get paid for attending the inquiry and Mr. Sheehan urged him to talk to his District Manager in Cork when he arrived with his train later on that afternoon.  
	Later that day Mr. Holbrooke had a further discussion with Mr. Tim Sheehan when he arrived back in Cork.  At this discussion, Mr. Holbrooke was accompanied by another driver, a Mr. Mulcahy.  Mr. Tim Sheehan in Cork had been informed by Mr. Dan Sheehan of his discussion with Mr. Holbrooke in Dublin and he took that matter up with Mr. Holbrooke, and in the light of the fact that the problem had been resolved by the agreement of the Plaintiffs to pay Mr. Holbrooke, tried to persuade Mr. Holbrooke to work on the Sunday because if he refused to work a lot of people were going to be affected.  Mr. Holbrooke indicated again that  he felt he had been treated badly earlier and that he was not going to work on the Sunday.
	In cross-examination Mr. Tim Sheehan accepted that in his discussions with Mr. Holbrooke and in particular the one on  the 10th July, that Mr. Holbrooke had said to him that he did not want any of the other drivers to support him.  While accepting that Mr. Holbrooke expressed himself as not wishing any of the other drivers to support him and that that fact could be freely communicated to the other drivers, Mr. Tim Sheehan was none the less adamant that Mr. Holbrooke was the key or central figure in the stoppage that occurred on the 11th July.  His evidence was to the effect that Mr. Holbrooke’s refusal to work as he was rostered to do on the 11th, was in itself a signal to the other drivers that his protest continued and that they should not work also.  In short, therefore, his evidence was that notwithstanding the fact that Mr. Holbrooke expressed unequivocally the view that he did not wish them to support him and that could be communicated to the other drivers that nonetheless his conduct in refusing to work his own roster is to be construed as an inducement to all the other drivers  to stay out on that Sunday. 
	In the event, on Sunday the 11th July, only two drivers in Tralee turned up for work and all the Cork drivers stayed away.  The result was almost total abandonment of services in the Munster region, resulting in several thousand passengers being discommoded with considerable losses being sustained by the Plaintiffs.
	I am satisfied that there is insufficient evidence to connect the Defendants other than Mr. Holbrooke, to the events in Cork.  Indeed, other than the statement issued on the 16th July, 1999 already referred to, there is no evidence which connects the National Executive Council of I.L.D.A. to these events.  I accept Mr. Dunphy’s evidence in this regard.  He says he knew nothing about the stoppage in Cork until the 12th July when it was all over. I also accept his evidence that there was no discussion of it in advance and that the events in Cork on the 11th of  July in the week leading up to it never came to the attention of the National Executive Council.
	The contents of the statement issued after the event do not convince me that the Defendants named in these proceedings, apart from Mr. Holbrooke, had any involvement in the stoppages that occurred on the 11th July, 1999 or in the events during the week leading up to it.  On the contrary, the evidence satisfies me that on the balance of probabilities what happened in Cork was a local event confined to the drivers based in Cork.  I tend to be reinforced in that conclusion by the fact that out of the forty drivers based in Cork, only eight were members of I.L.D.A., and of the four drivers who submitted notes on the 5th July indicating their intention not to work on Sunday the 11th, two were not members of I.L.D.A..
	That brings me to a consideration of whether or not any liability attaches to Mr. Holbrooke for his part in the events that occurred.
	The Plaintiffs’ case at its highest point in the evidence of Mr. Tim Sheehan is to suggest that from the conduct of Mr. Holbrooke in refusing to work his own roster on the 11th July, there is to be drawn an inference that such conduct thereby persuaded, procured or induced all of the other drivers not to work on Sunday, the 11th July.  That the other drivers did not turn up for work on that day is undoubtedly the case.  There is no evidence, however, to suggest that Mr. Holbrooke engaged in any form of persuasion or cajoling or otherwise put pressure on any of these drivers not to work.  Indeed the contrary is the case.  It was accepted by Mr. Tim Sheehan that Mr. Holbrooke expressed himself as not wishing to have the other drivers support him and that that fact could be made known to the other drivers and indeed there was evidence that the two unions, S.I.P.T.U. and N.B.R.U., issued a statement urging their members to work normally.
	The evidence does not assist me at all in ascertaining or understanding what form of bond there existed (if any) between Mr. Holbrooke and the other Cork drivers or what form of subtle communication (if any) there may have been between Mr. Holbrooke and these drivers which could have resulted in all of them staying out from work on that day, a result that could equally have been no more than the expression of a strong sense of loyalty or solidarity built up over many years of common association and not instigated on the occasion by any act on Mr. Holbrooke’s part.
	Whatever it may have been, the evidence does not, in my view, reasonably support an inference that Mr. Holbrooke in the words of Hamilton J., as he then was, “unequivocally persuaded, induced or procured” these other drivers to not turn up for work on that Sunday.
	I am not satisfied therefore that the Plaintiffs have discharged the onus of proof on them and satisfied me on the balance of probabilities that Mr. Holbrooke either induced or procured breaches of their contracts of employment by these other drivers or that he engaged in an agreement or combination with any of them to effect that purpose.
	Accordingly the Plaintiffs’ claim for damages for the losses that they suffered as a result of this stoppage must fail against all of the Defendants.
  
CLAIMS IN RESPECT OF RECOGNITION AND REPRESENTATION
	This aspect of the case is concerned with the claims by the Plaintiffs to the effect that they are only entitled as a matter of law to negotiate in relation to pay, hours of duty and other conditions of service of locomotive drivers with those trade unions who are the holders of negotiation licences as provided for in Section 6 of the Trade Union Act, 1941, as amended, and their claim that the Defendants are not a union representative of locomotive drivers.
	On the other hand, the Defendants counterclaim on the basis that they are a registered trade union, that they are an excepted body within the meaning of Section 6 of the Trade Union Act, 1941, as amended, and that they are representative of locomotive drivers within the meaning of Section 55 of the Railways Act, 1924 and that the Plaintiffs have a duty to negotiate with them on pay, hours of duty and other terms and conditions of service of the grade of locomotive drivers for the purposes of arriving at a collective agreement which would have the force of statutory obligation pursuant to Section 55 of the Railways Act, 1924.
	The starting point in the analysis of the respective claims and counterclaims is Section 55 of the of the Railways Act, 1924.  It reads as follows:- 

	“55.    From and after the passing of this Act the rates of pay, hours of duty,
	 and other conditions of service of railway employees shall be regulated in 	accordance with agreements made or to be from time to time made between 	the trade unions representative of such employees of the one part and the 		railway companies or other persons by whom they are respectively employed 	of the other part.”

	The crucial questions which clearly arise from this section in the context of the dispute in this case are what is a “representative” union and if I.L.D.A. are a representative union does this section impose upon the Plaintiffs a duty to negotiate with I.L.D.A.		As both sides relied upon the provisions of Section 6 of the Trade Union Act, 1941 as amended by the Trade Union Act, 1942 it is well to quote the relevant parts of these statutes.  Section 6 (of the Trade Union Act, 1941) reads as follows:-
 	
	“6(1)    It shall not be lawful for any body or persons not being an excepted body to carry on negotiations for the fixing of wages or other conditions of employment unless such body is the holder of a negotiation licence.
	    (2)   If any body or persons act in contravention of this section the members of the committee of management or other controlling authority of such body such as the officers of such body as consent to or facilitate such shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £1,000 together with, in the case of a continuing offence, a further fine not exceeding £200 for every day during 	which the offence is continued.

	   (3)   In this section the expression ‘excepted body’ means any of the following bodies that is to say ...” 
	
	Section 2 of the Trade Union Act, 1942 reads as follows:-
	
	“2 -    In Section 6 of the Act of 1941 the expression ‘excepted body’ shall include a body all the members of which are employed by the same employer and which carries on negotiations for the fixing of the wages and other conditions of employment of its members (but of no other employees)”.
	
	It is accepted by the Defendants that they do not have a negotiation licence and hence it would be unlawful for them to purport to carry on negotiations unless they can be considered to be an “excepted body” within the meaning of Section 2 of the Trade Union Act, 1942.  The Defendants contend that they are an excepted body on the basis that all of  their current members are employees of the Plaintiffs in the locomotive driver grade.  The Plaintiffs, on the other hand, contend that Article 5 of the constitution of I.L.D.A. precludes them from being considered as an “excepted body” because it opens the membership of I.L.D.A. to locomotive drivers from the entire island of Ireland thereby opening membership to the employees of Translink, the Northern Ireland Railway Company.  The Plaintiffs also contend that some members of I.L.D.A. have retained their membership of the other two unions either S.I.P.T.U. or N.B.R.U. and the Defendants, in purporting to negotiate on behalf of these members, offend against the last part of the definition of “excepted body”, namely, that they are negotiating for employees other than their own members.
	Against these contentions, the Defendants say that the test to be applied to determine whether a body is an “excepted body” is not the potential membership but the actual membership at the relevant time and as of this time all of the members are employees of the Plaintiffs.  The Defendants assert that on the evidence there is no overlapping between their membership and membership of the other two unions and that they have 114 members all of whom have resigned from the other two unions.  The Defendants have put in evidence copies of letters of resignation on the part of 114 of the members from the two unions and some 20 letters from other members written to the Plaintiffs instructing the Plaintiffs to stop payroll deduction of union dues hitherto paid to either S.I.P.T.U. or N.B.R.U., on the basis of these persons having resigned from those two unions.  I accept that I.L.D.A. does have 114 members currently and that all of these have resigned from the other two unions.  Thus, as of the trial of the action herein, there was no overlapping of membership between I.L.D.A. and either S.I.P.T.U. or N.B.R.U.
	I do not, however, accept the submission of the Defendants to the effect that their claim to be an “excepted body”  is to be determined solely by reference to the employment of their current members.  I am of the view that the clear intention of the legislature in creating the body designated as “excepted body” was to relieve an obvious hardship which might have arisen in the context of the enactment of Section 6 (1) of the Trade Union Act, 1941 in that many employees in small firms might have been deprived of the benefit of trade union representation in the carrying on of negotiations for the fixing of wages and other conditions of employment, where members of the staff of a particular employer did not wish to join a large outside union but whose numbers were too small to raise and maintain what in 1941 was a very substantial deposit of £1,000 which was required for the purposes of getting a negotiation licence.  In my view, therefore, it is essential in order to be considered to be an “excepted body” that all the members of such a body must at all times be employed by the same employer and Article 5 of the constitution of I.L.D.A. insofar as it extends membership of I.L.D.A. to persons other than employees of the Plaintiffs, is inconsistent with that essential requirement.
	Hence I am driven to the conclusion that I.L.D.A. is not an “excepted body” within the meaning of Section 6 (3) of the Trade Union Act, 1941 as amended by Section 2 of the Trade Union Act, 1942.  It necessarily follows from the provisions of Section 6 (1) of the Trade Union Act, 1941, which subsection makes it unlawful for any, body or persons, who either do not have a negotiation licence or are not an excepted body, to carry on negotiations for the fixing of wages or other conditions of employment, that I.L.D.A. could not be “representative” within the meaning of Section 55 of the Railways Act, 1924.
	Although in the light of the foregoing conclusion it is unnecessary for me to do so in deference to the able and learned submissions made by Counsel for both sides, it is appropriate that I express the following opinions on those submissions.
	Mr. Rodgers submitted that the question of what union is a “representative” union is a question of fact in each case.  He submitted that I.L.D.A’s membership made up approximately 41% of all the locomotive drivers and was representative of a substantial minority of locomotive drivers and hence were representative within the meaning of the section.  In support of his contention in this regard reference was made to the case of National Coal Board v. National Union of Mine Workers (1986) I.C.R. 736, in which case it was held that the Union of Democratic Mine Workers who had 30,000 members which constituted roughly 20% of all mine workers in the United Kingdom was a substantial proportion.  Mr. Rodgers referred to the following passage from page 764 of the judgment of Scott J:- 
	
	“The particular circumstances relied upon by the board as reviving its Section 46 duty to consult is the emergence of the U.D.M..  There has been some dispute before me as to the exact number of the present members of the U.D.M., but on the evidence before me I am in my view safe in proceeding on the footing that the present membership is at least 30,000, that is to say some 20% of mine workers.  20% of mine workers represents in anyone’s language a substantial proportion.  Accordingly in my judgment the board had a 	statutory duty under Section 46 to consult with the U.D.M. with the view to establishing conciliation procedures for the industry”.
	
	Mr. Rodgers in this context also referred to the case of  Federation of Irish Rail & Road Workers -v- Great Southern Railways Company & Ors., (1941) Irish Jurist .33 in which Gavan Duffy J made a declaration that the plaintiffs in that case being a trade union representative of railway employees within the meaning of the Railways Act, 1924, S. 55:-

	“(1)	Are one of the trade unions between whom and the Great Southern Railways Company, the rates of pay, hours of duty and other conditions of service of employees of Great Southern Railways, ought to be regulated in accordance with agreements made or to be made pursuant to the said section.”

	In this case the Plaintiffs’ members numbered 4,000, about one-third of the total number of employees of the Defendant railway company.  In that case as appears from the report the railway company consented to this declaration being made.
	As was noted by the learned Judge in that case the Trade Union Act of 1941 had been enacted, but had not come into force at the relevant time.  
	Mr. Rodgers submitted that a union which represented in excess of 40% of the workers in a particular grade was a fortiori “representative” of workers in that grade.
	Mr. Rodgers seeks declaratory relief on similar lines to that contained in the judgment in the Federation of Irish Rail & Road Workers case.  It is contended on behalf of I.L.D.A. that they being representative of locomotive drivers that there then rests on the Plaintiffs a duty to negotiate with them.  They further contend that the term “recognised trade union” as used in Section 14 of the Transport Reorganisation (C.I.E.) Act, 1986, must mean a union which is “representative” as defined in Section 55 of the 1924 Act.
	Mr. Rodgers drew attention to the fact that agreements reached through the process of bargaining under Section 55 enjoy the force of statutory obligation in the sense that the Courts will not permit a departure from the terms of these agreements, save by way of negotiation with unions representative of workers in a grade, affected by any particular provision of such agreement.  In this regard he cited the case of T.S.S.A. v. C.I.E. [1965] VR 180 in which it was held by the Supreme Court that, C.I.E. who wished to attract into the clerical grade persons with higher educational attainments, could not offer better terms of employment than had been provided for in a collective agreement negotiated under Section 55 with unions representative of workers in the clerical grade.  In his submission in this regard Mr. Rodgers stressed that agreements reached under Section 55 as collective agreements were binding on all workers in particular  grade and also on the railway company.  
	Mr. Rodgers further submitted that a union could be “representative” even though only representing a minority, provided that they were representative of a substantial section of a particular grade.  He emphasised that the true meaning of Section 55 had to do with the facts on the ground and that “representative” meant representative of a class of workers in a particular grade not just of a few individuals.  He distinguished in this respect between “representative” as in the context of being an advocate and “representative” in the context of representing a group or class or a substantial proportion or section of the overall grade.  He submitted that the numbers were not decisive, that it was not a “numbers game”, and that their real test was whether or not the union was representative of a class albeit a minority.  
	Mr. Rodgers challenged in his submissions the evidence which had been given by the Plaintiffs in relation to the obligation in contracts of employment of the Defendants to join a particular union or unions, namely, S.I.P.T.U. or the N.B.R.U.  He drew attention to the fact that the only documents put in evidence in support of Mr. Keenan’s evidence to the effect that the Plaintiffs as locomotive drivers were obliged under their contracts of employment to join either the N.B.R.U. or S.I.P.T.U., were merely application forms for employment as temporary employees or in the grade of locomotive driver.  He challenged this evidence as being unsatisfactory and he contended that there was no adequate evidence from which it could be inferred that the Defendants had waived their right to dissociate from S.I.P.T.U. Or the N.B.R.U.  
	Mr. Horan on behalf of the Plaintiff submitted that Section 55 of the Railways Act, 1924 set up a mechanism for negotiation and created no rights and specifically did not require a railway company to negotiate with a particular union.  He submitted that the Plaintiffs were not obliged by Section 55 to do anything, that its terms were not mandatory but were directory in character.  He submitted that an employer must have a right to refuse to treat with a particular union and in support of this proposition he cited the authority of the case of Abbot -v- and Whelan in which McWilliam J delivered an unreported judgment on 2nd December, 1980.  He emphasised that the right to be treated with was not there as a common law right or as a constitutional right and were it to be created by statute it would have to be done so in express terms.  He submitted that Section 55 does not do that. 
	Mr. Horan submitted that a negotiation licence was now a vital component of modern trade union law and in this respect he drew attention to the fact that the immunities which were granted under the 1990 Act were dependant upon having a negotiation licence.  He drew attention to the fact that Section 55 provides no criminal or civil sanction for failure to comply and he submitted that this supported his submission that Section 55 was directory rather than mandatory in nature.
	He submitted that in the light of the decision of the Supreme Court in the case of The National Union of Railway Workers -v- O’Sullivan, (1947) I.R. 77 that the right to associate means also the right to dissociate and that Section 55 must be construed in that light. 
	He submitted that the Plaintiffs had a discretion to recognise a particular union on the basis of a test of “appropriateness” and in this regard he referred to a passage in Kerr & White, at page 19 which reads as follows:-

	“A rare example of the direct use of the law in this area is found in Section 55 of the Railways Act, 1924 as amended by Section 46 of the Transport Act, 1950, which provides that the rates of pay etc of C.I.E. employees are to be regulated in accordance with agreements entered into between C.I.E. and appropriate trade unions.  The provisions confer a wide discretion on C.I.E. in selecting the unions with which it will negotiate but the discretion is not absolute.  C.I.E. must consider the appropriateness of the organisation and the desirability of consulting it.  If C.I.E. acts honestly, in good faith and on reasonable grounds the Courts will not interfere.  This is well illustrated by R. -v- Post Office, Ex Parte, Association of Scientific, Technical and Managerial Staffs (Telephone Contracts Officers Section), where the union seeking recognition only representing a small number of employees, its main membership being in a different industry.  The other recognised unions objected to the A.S.T.M.S. being recognised and the Post Office took the view that the intrusion of A.S.T.M.S. Would upset stable collective bargaining arrangements.  The Court of Appeal refused to grant relief to A.S.T.M.S., commenting that, in their opinion, the recognition of A.S.T.M.S. would fragment, complicate and conflict with the existing structure and would thus be detrimental towards any effective collective bargaining.  It would appear from this decision that a union denied recognition by such a public corporation would have to show, in order to succeed, that its members interests were not being protected adequately by the existing collective bargaining structure, and even then the Court may find that the corporation’s decision was reasonable in the light of other circumstances.”

	Mr. Horan referred to the case of D.S. O Cearbhaill & Ors. -v- Bord Telecom Eireann, a decision of the Supreme Court which judgments were delivered on 20th December, 1993 as authority for the proposition that a collective agreement binds all of those in the grade affected even though some of them may be actually opposed to the agreement.
	In reply Ms. Maguire also drew attention to the T.S.S.A. Case as authority for the proposition that the terms contained in collective agreements negotiated pursuant to Section 55 could only be changed with the agreement of “representative” unions.  She submitted that there was thus an obligation or a duty on the part of the Plaintiffs to negotiate with a union which on the facts was “representative” of workers in a particular grade.  
	Ms. Maguire contrasted Section 55 with the English section which was under consideration in the case of Regina -v- Post Office and submitted that the concept of “representative” was wholly different to that of “appropriate” and that Section 55 did not confer the kind of broad discretion which was permitted under the English section.  In this regard Ms. Maguire took issue with the passage from Kerr & White relied upon by the Plaintiffs. 
	Ms. Maguire submitted that Section 14 of the Transport Reorganisation (C.I.E.) Act, 1986 dealt only with pre-1987 employees of the Plaintiffs, whereas Section 55 covered all employees of the Plaintiffs and in any event the force and effect of Section 14 was exhausted by the 1994 collective agreement if not sooner.  
	She submitted that immunity was provided for under Section 10 of the           Act 1990 without the necessity of having a negotiation licence.  
	She submitted that Section 55 should be construed so as to permit workers in a particular grade to change from union to union.
	While it is the case that a union which does not have a negotiation licence and is not an “excepted body”, cannot be “representative” for the purposes of Section 55, the converse does not apply.  The membership of a union with a negotiation licence or a union which was an “excepted body” might be so small as to render them on any view as not capable of being considered “representative”.
	That of course begs the question of what are the essential ingredients of representativeness for the purposes of Section 55.  In this context the first issue to be resolved is whether or not the concept of representativeness is to be construed as I am urged by the Plaintiffs as being of the broad kind included in the English legislation under consideration in Regina -v- The Post Office under the appellation of “appropriate”.  As is clear from that case a very broad range of consideration was open to the post office including such considerations its general negotiation policy or strategy with all unions that it had to deal with. 
	In my view the phrase “representative union” contained in Section 55 cannot be given such broad construction, as to do so would be to stretch impermissibly the language used beyond its natural or ordinary meaning.  
	The fact that collective agreements reached through the process of negotiation conducted under the aegis of Section 55 are binding on all workers in the grade affected, as was held by the Supreme Court in D.S. O Cearbhaill & Ors. -v- Bord Telecom Eireann and the fact that agreements so reached cannot be altered save with the agreement of the same representative union, as was held in the T.S.S.A. case reinforces me in the conclusion that the concept of representativeness in Section 55 is related solely to the relationship between the unions and the workers it represents and is not of such a broader kind as would permit the inclusion of various interests of the employer as determining factors in ascertaining what unions were “representative”.
	It would seem to me to follow that if agreements negotiated through the process of Section 55 are binding on the workers in the grades affected and cannot be altered save with the consent of unions which represent them, that the unions which purport to negotiate such agreements under Section 55 must have as their members the substantial majority of the workers in those grades.  Up to the time that I.L.D.A. emerged all of the locomotive drivers were in either S.I.P.T.U. Or the N.B.R.U., S.I.P.T.U. having a preponderance of members.  The Defendants say now that the 114 members that they have now exceeds the number of drivers who are in the N.B.R.U. and hence the Defendants say that they are as much entitled to be considered as “representative” if not more so than the N.B.R.U.
	In my view this is to look at the problem from the wrong way.  There is no doubt that I.L.D.A. With 114 members are a minority of locomotive drivers albeit a substantial minority.  Thus in my view the Plaintiffs are entitled to refuse to negotiate with them on the basis that they are not representative of the broad mass or of a substantial majority of locomotive drivers.  The fact that the N.B.R.U. have less members than I.L.D.A. does not gainsay this.  The Plaintiffs have a long established policy of dealing with two unions on behalf of locomotive drivers.  Until the emergence of I.L.D.A. these unions represented all of the locomotive drivers.  In my view, the Plaintiffs are entitled to continue to regard S.I.P.T.U. and the N.B.R.U. as representative of locomotive drivers they between them clearly representing a substantial majority of locomotive drivers and to refuse to regard I.L.D.A. as “representative” for the purposes of Section 55.
	In this regard, in my view the Plaintiffs cannot be coerced to negotiate with any particular union.  I accept the Plaintiffs' submission based on the authority of Abbott v. Whelan, that the Defendants do not have a right in Common Law or a constitutional right to be negotiated with and that Section 55 does not expressly give statutory right to that effect.  I accept that Section 55 is essentially directory in character rather than mandatory.  This flows from its essential nature which is the providing of a statutory structure for agreement which of its essence must be voluntary.  One cannot have agreement by coercion and hence, in my opinion, Section 55 does not coerce the Plaintiffs to contract or not to contract with parties that are not of their choosing.
	Once, of course, an agreement is made under the aegis of Section 55, it binds the Plaintiffs and all workers in the grade affected and  cannot be departed from save as was held in the T.S.S.A case.  This fact however, does not create an obligation where agreement is being reached de novo under Section 55, on the part of the Plaintiffs to negotiate with any particular union.
	It would seem to me that the true effect of Section 55 is to confine or restrain the Plaintiffs to negotiate with unions that are "representative", in other words the section reduces the Plaintiffs' general freedom to contract to the extent of excluding or preventing them from negotiating with unions or combinations of unions who are not "representative" and confines the Plaintiffs to negotiating with unions or combinations of unions that are "representative" as discussed above.  Thus it would not be open to the Plaintiffs to conclude an agreement under Section 55 with a union which represented few workers in a grade and thus bind all workers in that grade.
	The evidence in this case establishes that all of the locomotive drivers were prior to the emergence of I.L.D.A. members of either S.I.P.T.U. or the N.B.R.U.  Mr. Keenan gave evidence to the effect that all locomotive drivers when employed as locomotive drivers were required by their contracts of employment to be members of either S.I.P.T.U. Or the N.B.R.U. and in this regard he referred to sample application forms for the grade of locomotive drivers and also a similar application form in respect of initial employment in the service of the Plaintiffs.  Mr. Keenan’s evidence in this regard was challenged by reference to a letter of the 27th June, 1996 sent by Mr. Keenan to the unions in question, namely, S.I.P.T.U. and the N.B.R.U.  In this letter Mr. Keenan said the following:-

	“However, we operate in a voluntarist industrial relations system which allows for choice regarding membership or non-membership of trade unions.   The responsibility for trade union recruitment lies with the trade unions.”

On the basis of this letter the Defendants sought to make the case that there was no obligation on locomotive drivers to be a member of any union.  Mr. Keenan was recalled to deal with the contents of this letter and he gave evidence to the effect that this letter was written for the purpose of distancing the Plaintiffs from some friction between the unions, namely, S.I.P.T.U. and N.B.R.U. in relation to membership and the letter stressed that recruitment into particular unions was a matter for the unions themselves.  He stated that the reference in the letter to non-membership of a union was in respect of casual, seasonal or temporary workers whom he accepted were not obliged to be a member of a union.
	Apart from Mr. Dunphy none of the other Defendants gave evidence.  I accept Mr. Keenan’s evidence in regard to the obligation of locomotive drivers to be a member of either S.I.P.T.U. or the N.B.R.U.  I am reinforced in that conclusion by the undoubted fact that all of the members of I.L.D.A. were either members if S.I.P.T.U. or the N.B.R.U. and indeed the Defendants stressed as part of their case the fact that all of their members had formally resigned from either of these two unions.
	The significance of this finding is that unless it could be said that the inclusion in the contracts of employment of the locomotive drivers of the term requiring locomotive drivers to be a member of the unions catering for that grade, was a breach of the locomotive drivers constitutional right to associate or dissociate, it would necessarily follow that each locomotive driver, including all of the Defendants, was obliged under his contract of employment to be a member of either S.I.P.T.U. or the N.B.R.U. and hence the question of what unions were “representative” of locomotive drivers for the purposes of Section 55 would be determined by those contractual obligations and I would be prepared to so hold.  The issue of whether or not the term in the contracts of employment of the locomotive drivers requiring them to be a member of one of the trade unions catering for locomotive drivers, could be a breach of the constitutional rights of locomotive drivers to either associate or dissociate was not litigated in these proceedings and I express no view on that topic.  I would, however, make the observation that the determination of what unions are “representative” by such a term in the contracts of employment of locomotive drivers and indeed other employees of the Plaintiffs is a very clear and convenient way of establishing which unions are “representative” for the purposes of Section 55. 

CONCLUSION

	In summary then my conclusion of this aspect of the case is that I.L.D.A. are not an “excepted body” within the meaning of Section 6 (3) of the Trade Union Act, 1941 as amended by the Trade Union Act, 1942 and as they do not possess a negotiation licence pursuant to the Trade Union Act, 1941, it is not lawful for them to negotiate on the fixing of rates of pay, hours of duty and other conditions of service of locomotive drivers.
	Accordingly, the Plaintiffs are entitled to the appropriate declaratory relief which should be in the following terms:-

	"That the Defendants not having a negotiation licence and not being an "excepted body" within the meaning of Section 6 subsection 3 of the Trade Union Act, 1941 as amended by Section 2 of the Trade Union Act, 1942, are not a "representative union" within the meaning of Section 55 of the Railways Act, 1924 and cannot lawfully conduct negotiations for the fixing of rates of pay, hours of duty and other conditions of service of locomotive drivers in the employment of the Plaintiffs".

and I must refuse the relief sought by the Defendants in their counterclaim.                    jkIrish Rail