COURT OF APPEAL
B e f o r e :
(Sir Raymond Evershed),
LORD JUSTICE JENKINS
LORD JUSTICE MORRIS.
| D.C. THOMPSON & COMPANY, LIMITED
|ARTHUR DEAKIN and OTHERS
Official Shorthandwriters, Ltd., Room 392, Royal Courts of Justice,
and 2, New Square, Lincoln's Inn, London, W.C.2.).
MR. PATRICK BENNETT (instructed by Messrs. Neish, Howell & Haldane)
appeared on behalf of the Appellants (Plaintiffs).
MR. GERALD A. GARDINER, Q.C., and MR. M. R. NICHOLAS
(instructed by Messrs. Pattinson & Brewer)
appeared on behalf of the Respondents (Defendants) Deakin, Wood and Intin.
SIR HARTLEY SHAWCROSS, Q.C., and MR. I. J. LINDNER
(instructed by Messrs. Shaen, Roscoe & Co.)
appeared on behalf of the Respondents (Defendants) Briginshaw and Moncrieff.
SIR FRANK SOSKICE, Q.C., MR. JOHN THOMPSON and
MR. COLIN FAWCETT (instructed by Messrs. W. H. Thompson)
appeared on behalf of the Respondent (Defendant) Morrison.
Crown Copyright ©
THE MASTER OF THE ROLLS: The appeal in this case from Mr. Justice Upjohn's order has involved a consideration of many important, novel and difficult questions. In the ordinary way, therefore, I should have wished and thought it right to reserve my judgment, but it has been made plain that the case is one of considerable urgency for the parties concerned, who may indeed desire to take this matter further; and it is moreover an interlocutory application. In those circumstances, having reached my conclusion on these matters, I have thought it right and in the best interests of the parties that I should deliver my judgment, with such inelegancies as it may contain, at once.
I have said that the matter comes before us upon an interlocutory application. The courts have long exercised beneficial powers of granting interlocutory relief by way of injunction pending the trial of an action and in proper cases they have thereby prevented undoubtedly what otherwise might have been grave injury to the plaintiff - injury which could not have been put right or effectively remedied by any order made on the trial.
So indeed the learned judge in the present case has formed the view that the acts of which the plaintiffs complain, if allowed to continue, will cause what he called irreparable injury to the plaintiffs in their business. That is not to say that on that ground alone the court will grant injunctions; nor has Mr. Beyfus so argued. He must indeed, as he concedes, at least show that he has got a prima facie case or, if you will, a strong prima facie case that the plaintiffs are entitled to the remedy they seek. If they go so far, then I have no doubt that the courts will, where necessary, grant an injunction in mandatory form.
The question then is: Have the plaintiffs established on the facts proved in the case a prima facie right (at least) to the injunctions which they seek? In ordinary cases it may not be a difficult matter for the courts to determine whether injunctions of this character should be granted, for the court in ordinary cases will not investigate at length and fully all the matters of law which may be involved. If it appears that the plaintiffs have a real and serious case to argue and that they have a prima facie right to some relief, then the court will not investigate the matter further upon the motion. But in the present instance we have heard long arguments upon these difficult questions, and I would like to express my appreciation to the learned counsel in the case for the great assistance which the court has received. In those circumstances, I think that I must now express my view upon the matters of law involved, stating what I conceive the law to be, and then decide the matter now before us on that basis of the law.
The result may perhaps be in some degree unsatisfactory, because of necessity the facts have not been yet fully investigated. In the course of his forceful reply, Mr. Beyfus supposed that questions were put to a jury: Did this, that or the other defendant do this, that or the other thing, or intend such and such a result? It is impossible at this stage to treat the matters of fact in that way.
The questions of fact are raised upon affidavit evidence. To the affidavits made on the plaintiffs' behalf, sworn testimony by affidavit has been put in by the defendants, to which in the nature of things, perhaps, it has not been practicable to reply; and it is the fact that the plaintiffs have made no reply. In those circumstances, the court cannot, as the learned judge pointed out, disregard the sworn assertions of the defendants unless they are shown from other material in the case clearly to be wrong. On the other hand, the court will not, I conceive, decline to draw from the whole material before it the natural and reasonable inferences which should be drawn.
It will plainly be necessary for me at a later stage to examine closely the facts as they relate to each of the individual defendants. For my immediate purposes, however, the narrative may be stated thus.
It appears that since the year 1926, during which year occurred the so-called general strike, the plaintiffs have maintained the view that they would conduct their business upon the basis that none of those they employed should belong in any circumstances to any union. Thus, all their employees were required to sign and, as I understand, did in fact sign an undertaking in this form: "I undertake not to become a member of any union as long as I am in your employment." But during recent years it seems that many of the plaintiffs' employees, no doubt in disregard of this written undertaking, had become members of a union known as the National Society of Operative Printers and Assistants, commonly referred to as NATSOPA, of which the fourth and fifth defendants are officers, the fourth being its general secretary.
Early in the present year, the plaintiffs determined the employment of one of their employees, one McKay, who had been in their service for a great many years, but who had for some time, as I gather, been a member of NATSOPA. It is said on the part of the defendants and others concerned in this matter that the contract of employment was determined in fact for that reason, namely, that he belonged to the union, and for that reason alone. Mr. McKay accordingly sought help from NATSOPA. His appeals were not in vain. NATSOPA, through its officers, rallied strongly to his support. On 19th April they called out upon strike those members of their union who were in the service of the plaintiffs. It is said - and this is a matter to which I must later refer - that the works of the plaintiffs at Glasgow and Manchester were picketed by members of the union out on strike.
Moreover, the officers of the union, NATSOPA, particularly Mr. Briginshaw, sent out cries and exhortations for support from union labour all over the country. As will appear, he called for support in the way of outting off the supplies of raw material to the plaintiffs, and he also called upon persons capable of doing so to take steps to prevent the distribution of the papers which the plaintiffs' business it is to publish and distribute.
We are not in these proceedings concerned with the latter question of distribution. We are concerned with the supply of the raw material, particularly paper and ink, to the plaintiffs and to their premises which I have mentioned at Glasgow and Manchester. It is specially in regard to Manchester that we have to concentrate our attention.
The supplies of paper, so far as is relevant to this case, came from one or more companies associated with the name Bowater. I put it in that way, for it appears that there is more than one limited liability company forming part of what has been called the Bowater organisation. That fact is, however, immaterial, and for the purposes of this judgment I shall use the name "Bowaters" as indicating the actual suppliers of the paper to the plaintiffs and as also constituting the employers of the loaders and drivers who would in the ordinary course have loaded the paper and driven it to the plaintiffs' premises.
On 22nd April, three days after the start of the strike, there was a meeting in London of the Executive Council of another body, known as the Printing and Kindred Trades Federation, that being a body constituted by a number of trade unions, including NATSOPA, and also another union, which has been called for short in this case the Paperworkers Union, of which the full name is the National Union of Printing, Bookbinding and Paper Workers. Of that latter union the last defendant, Mr. Morrison, is the general secretary. For present purposes, and adhering deliberately to imprecise language, the Executive Council then (that is, on the morning of 22nd April) resolved to support the dispute which had arisen between NATSOPA and the plaintiffs.
The next matter of fact in this short but somewhat turbulent history occurs on 25th April, which was a Friday. On that day, according to the evidence — I again adhere for the moment to imprecise terminology - it came to the attention of the management of Bowaters that the drivers of Messrs. Bowatere had expressed reluctance in regard to driving paper to the plaintiffs' premises in Manchester. Those drivers were members of a third union, the Transport and General Workers Union, of which the first three defendants are officers.
In the ordinary course, the lorries would, as I understand, have been loaded on the Friday and the Saturday and would have set forth on Monday, the 28th April. But on the Monday it also became known to the management that the loaders, who were members of the Paperworkers Union had likewise expressed unwillingness or reluctance to load the paper destined for the plaintiffs.
The result of those intimations was that the management came to the conclusion, no doubt in order to preserve the best interests of Bowaters and so that they should not themselves be involved in this matter or involved in it any more than they could help, that they would not call upon any of their employees either to load or to drive paper to the plaintiffs. The result was that, from that date, 28th April, no further supplies of paper have been taken from Bowaters to the plaintiffs.
On the evidence, as it appears, the failure to supply paper involves, or has involved, a breach of contract which continues. On 6th May Bowaters wrote to the plaintiffs a letter, signed by their director, Mr. Fitt, in the following terms. It refers to a letter they had received, but which we have not seen, and then continues:
"We are prevented from performing our contract by the action of the trade unions which has put a stop to any of your paper being loaded at and delivered from Bowaters' Mersey Paper Mills, Ellesmere Port. We anticipate that this pressure will continue and may increase, and until withdrawn we shall be unable to make deliveries under the contract."
Mr. Beyfus' case, for the plaintiffs, is that this non-delivery, this breach or non-fulfilment of the contract referred to in that letter which I have read between Bowaters and the plaintiffs, has been knowingly and deliberately brought about by the acts of the several defendants, and brought about by their persuading and inducing men in the service of Bowaters and delonging to the respective unions concerned to refuse to load or drive paper required for the plaintiffs.
In the course of his opening speech, Mr. Befyus formulated his case, and it will I think be convenient to read that formulation, to which throughout and without variation, Mr. Beyfus has adhered. He says that the acts complained of in this case, namely, the acts of persuading and inducing to which I have already referred, were acts done knowingly, that is, with the deliberate aim and object of causing breaches of contract for the supply of paper on the part of Bowaters to the plaintiffs, as they in fact did, and therefore, notwithstanding anything in the Trade Disputes Act, 1906, were wrongful.
On 7th May the writ in the action was issued. There are to it six defendants. Mr. Deakin, Mr. Intin and Mr. Wood, the first three, are officers of the Transport and General Workers Union, to which the drivers concerned belonged. The fourth and fifth defendants, Messrs. Briginshaw and Moncrieff, are officers of NATSOPA, directly concerned in the dispute between their union and the plaintiffs. The last defendant, Mr. Morrison, is the general secretary of the Paperworkers Union, to which the loaders belonged.
The plaintiffs' claim is against all the defendants, first, for an injunction "restraining the defendants and each of them from doing (whether by themselves or by their servants, agents or workmen or any of them or otherwise howsoever) any act with a view to causing or procuring a breach or breaches by Bowaters or any other company firm or person of any contract between the plaintiffs and Bowaters or such other company firm or person for the supply of newsprint or any other goods whatsoever to the plaintiffs." There is then a further injunction asked for, carrying the ambit of the first a little further, but I do not pause to read it. Paragraph 3 of the writ asks for damages "for conspiracy to procure the said breach or breaches of contract"; paragraph 4 asks for damages "for procuring a breach or breaches of contract as aforesaid"; and then there are two formal paragraphs.
I need hardly say, as the learned judge observed, that we are not in this case concerned with the propriety upon ethical or social grounds of anything that any of the parties to the action have done. It is quite plain, I should imagine, that the action which the plaintiffs have taken since 1926 is one that is likely and must have been known by them to be likely to cause the utmost anger and resentment amongst trade unionists. On the other hand, it is said by Mr. Beyfus that it is a strong, harsh - nay, even tyrannical - thing if the great forces which the trades unions have at their command can be mobilised to intervene so as to starve or destroy the business of any form or company which may have taken any step of which the trade union movement disapproves.
These are matters of social conduct, with which we are not concerned. The question with which we are concerned is whether there has been shown to be here such an unlawful act upon the part of the defendants or any of them as entitles the plaintiffs to relief.
At this stage, and having said so much, I will refer to certain concessions which Mr. Beyfus has made and to which, again, he has without variation adhered throughout the trial before us. The concessions are to be found at the top of page 9 of the judgment of Mr. Justice Upjohn:
"For the purposes of this motion the plaintiffs concede two things: firstly, that there is in existence a trade dispute for the purposes of section 3 of the Trade Disputes Act, 1906; secondly, that the conspiracy alleged between the defendants is a conspiracy the predominant object of which is to secure the interest of the defendants and not to injure the plaintiffs, and is not, therefore, actionable per se".
The learned judge's next sentence is as follows: "For the purposes of this motion, therefore, the element of conspiracy alleged to exist may be ignored." Of that sentence Mr. Beyfus complains. With all deference to the learned judge, I think Mr. Beyfus is entitled to make a complaint. The reference to a conspiracy per se and to Sorrell v. Smith means, as I understand it, that for the purposes of the motion Mr. Beyfus is not relying on a conspiracy directed to injure the plaintiffs, which, if done and because it is done in concert, might give rise to a cause of action as formulated in the case mentioned. But that leaves it open to him to allege, as he has alleged, that their remains another conspiracy, namely, a conspiracy to achieve a purpose otherwise unobjectionable by means which at any rate include unlawful means, whether known by the doers to be unlawful or not.
The significance of Mr. Beyfus' adherence to that part of his claim is this. If it is well founded and if he is able to show that all the defendants were parties to the conspiracy, then the actions of any one of them in furtherance of the objects of their conspiracy will be treated as the actions of all of them; so that, to make the matter more precise, Mr. Deakin, for example, would be held responsible for what I have ventured to describe - I do not do so in any offensive way - as the cries and exhortations of Mr. Briginshaw.
It will be convenient if I say at once that, in my judgment, for the purposes of this motion, Mr. Beyfus has not established the existence of any such conspiracy. Its existence must rest, first, upon the transactions of the meeting of the Executive Council of the Federation, to which I have alluded, held on the 22nd April, at which were present Mr. Briginshaw and Mr. Morrison, and divers other persons, but no others of the defendants.
In my judgment, for the purposes of this motion it is not shown that Mr. Morrison and Mr. Briginshaw at that meeting agreed to take steps involving the procurement of breaches of contract or other "unlawful" acts.
As to Mr. Deakin and his colleagues, the second and third defendants, the matter of the conspiracy is plainly far more difficult in any event for Mr. Beyfus. He must say, assuming the conspiracy had its origin on the 22nd April, that Mr. Deakin, Mr. Wood and Mr. Intin knew sufficiently of the resolutions passed, that is, of the agreement then made, that when each of them took such part as he did in the later narrative he must have associated himself with the conspiracy and thenceforth became a conspiractor.
In my judgment, the evidence falls far short of enabling the court to hold that any of these three defendants (even if there was a conspiracy between Mr. Briginshaw and Mr. Morrison) became a party to it.
In much that I am saying now I am conscious that I am anticipating what must follow. I have referred to procuration of breaches of contract. It seems to me that the only other way in which Mr. Beyfus might substantiate this part of the case is in a sense by begging the question we have mainly to decide, namely, whether the steps taken by any of these defendants were unlawful in themselves, and then by going on to establish that those steps which were unlawful were steps contemplated when the original concert was made or when other conspirators adhered to it.
My subsequent analysis of the facts will, I hope, more clearly elucidate what I have so far stated by way of general anticipation. As I have said, in my judgment there is no such material before the court as would entitle a court to hold that there was here a conspiracy of the kind alleged for the purposes of this motion between any of the defendants to the action.
It will, I think, be convenient new for me to go immediately to the principal matters of law with which we are concerned and to ask, and attempt an answer to, the question whether, apart for the moment from anything in the Trade Disputes Act, 1906, there has been any wrongful act by any defendant according to the common law.
The formulation of the case on which Mr. Beyfus has based himself is founded upon the language of Lord Macnaghten in the well known case of Quinn v. Leathern, to the effect that any violation of legal rights, including rights under contract, committed knowingly and without justification, is a tortious act.
In raising the matter in the way in which it has been raised in this case, (so far as the very considerable and, I am quite ready to assume, exhaustive researches of counsel have gone), the plaintiffs have put forward an argument never formerly put or decided by the courts, at any rate in this form. In one case, known as the Crofters case, in 1942, the question appears to have been raised when the case was proceeding to the House of Lords. Mr. Gardiner produced for us the Appellants' Case in the House of Lords, from which it appears that the present point in all essentials was put as part of the Appellants' Case. Mr. Beyfus also found for us the Respondents' Case, from which it appears that the answer there suggested was that there was no evidence whatever that the Appellants had any knowledge of the existence of any contract or acted knowingly with the intention of breaking any contract which existed. Whether in the light of that answer or for other reasons, the Appellants, so far as the report of the case in the House of Lords goes, do not appear to have proceeded with or pressed that point at all.
It will be convenient, I think, if I make at this stage some reference to the Crofters case. It was a case which concerned the manufacture of cloth in the Island of Lewis. The charge made against the officials and members of the Transport and General Workers Union was to this effect: that in the interests of one body of manufacturers in the Island, whose yarn was spun in the Island, they instructed and procured their members to refuse to handle yarn made outside the Island and imported into the Island, at a less price than the Island's spinners charged, for other mills in the Island. It is, however, clear that, though an embargo (I use the word used in the case) to that effect was imposed, it involved no breach of contract on the part of the dockers concerned. It is stated in terms in the headnote that the dockers without any breach of contract acted in accordance with those instructions.
I have mentioned that the point now raised found its place in the Appellants' Case, and there is one sentence in the then Lord Chancellor's speech (Lord Simon's speech) which seems to reflect its existence: "in the present case, the evidence did not support an allegation that the defendants, or either of them, had procured a breach of contract, and, if one of them, acting alone, had without employing unlawful means induced the dockers to refuse to handle the appellants' goods, I cannot see that any action would have lain against him." (Page 444, 1942 Appeal Cases).
I think, however, that Mr. Beyfus is entitled to say that that sentence is not to be regarded as a concluded and deliberate rejection of the argument which has been the main burden of his case before us.
I have made reference to the formulation of the tort, which Mr. Beyfus alleges, by Lord Macnaghten: "a violation of a legal right committed knowingly and without justification is a tort". On the face of it that is a broad statement which might appear to cover a case such as the present, and cover it whether or not the employees of Bowaters were induced to commit or did commit any breach of their contracts of service with Bowaters. The question on this part of the case then is: What is the extent of this tort, commonly known as the tort of procuring breaches of contract? Is Lord Macnaghten's formulation to be given its prima facie wide effect or must it be treated as subject to some and, if so, what limitations?
Now it is not, I think, in doubt that there is a well established principle of our law, established long before Quinn v. Leathern, that, if a man, acting lawfully and in all respects within his rights, causes as a result of what he does loss to another, that other has no remedy, though the loss he suffers is the necessary and inevitable consequence of the acts of the first person.
It is also a general proposition of our law, as I understand it, that it makes no difference to the matter as I have stated it that the doer, the first person I have mentioned, in his action was actuated by malice or spite against the person who suffered damage, or, as a general proposition, that his acts were done with the intention of producing that result, that is to say, aimed at the person who suffered the loss.
But like all general propositions, if they are stated bereft of any context, they require the caution of some reservation or qualification. I do not, for example, forget that there are some actions in tort of which malice may be the gist of the case. It occurs, for example, in the law relating to defamation and in regard to malicious prosecution. But I need not dilate upon that aspect of the matter, because it is agreed upon all hands that malice in the sense of spite or ill-will directed by any defendant against the plaintiffs plays no part in this case and is an entirely irrelevant consideration.
The general proposition which I have stated is undoubtedly now subject (whatever may be the qualification to be put upon it) to the existence of the tort which I have described and which is commonly described as the tort of procuring breaches of contract; and in that tort it is conceded that the actor must have acted with the intention of doing damage to the person damaged and that he must have succeeded in his efforts.
Historically, as I follow it, this tort arose from cases of master and servant, and may have been connected therefore rather with matters of status than of contract. But since the well known case of Lumley v. Gye and the subsequent affirmation in Quinn v. Leathern and thereafter of the majority decision in Lumley v. Gye, it is also plain that this tort of procuring breaches of contract is not confined to contracts between master and servant. Lumley v. Gye was itself a case in which the contract breached was a contract for services rather than of service, under which an operatic singer had engaged herself to sing for the plaintiff.
In the case of South Wales Miners Federation v. Glamorgan Coal Company (1903, 2, King's Bench, afterwards affirmed by the House of Lords), to which I shall hereafter refer as the Glamorgan case, a case in this court upon which Mr. Beyfus greatly relies, the contracts broken were contracts of service between the employees of coal mining concerns and the concerns themselves.
In that case the alleged wrongdoers had directly intervened personally between the contracting parties. They had themselves induced and procured a number of individuals, being parties to the contracts of service, to break their bargains with the other parties to the contracts, their employers.
It was suggested in the course of argument, I think by Mr, Lindner and at first by Sir Frank Soskice, that the tort must still be properly confined to such direct intervention, that is, to cases where the intervener or persuader uses by personal intervention persuasion on the mind of one of the parties to the contract so as to procure that party to break it.
I am unable to agree that any such limitation is logical, rational or part of our law. In such cases where the intervener (if I may call him such) does so directly act upon the mind of a party to the contract as to cause him to break it, the result is, for practical purposes, as though in substance he, the intervener, is breaking the contract, although he is not a party to it. Such a statement of the matter I take from Pollock's Law of Torts, 14th edition, at page 266, where reference is made to Street's Foundations of Legal Liability. At any rate, it is quite clear that, when there is such a direct intervention by the intervener, the intervention itself is thereby wrongful.
But, as I have indicated, I cannot think that the result is any different if the intervener, instead of so acting upon the mind of the contracting party himself, by some other act, tortious in itself, prevents the contracting party from performing the bargain. A simple case is where the intervener, for example, physically detains the contracting party so that the contracting party is rendered unable by the detention to perform the contract. The cases, as I shall presently show, contain several instances where the intervener has employed such means, being means wrongful in themselves.
An example is to be found in a recent case which came before Mr. Justice Roxburgh, British Motor Trade Association v. Salvadori and Others (1949, 1, Chancery), where there was a criminal conspiracy involved and the party procuring the breach acted in pursuance of such a conspiracy.
But the matter then proceeds to the next stage. So far I have considered only the case in which the intervener directly acts himself, either by persuasion or by some wrongful act of his own. What is the situation if he attains the same result, indirectly, by bringing his persuasion or procuration to bear upon some third party, commonly a servant of the contracting party, but possibly an independent third person? In my judgment, it is reasonably plain (and the result, as it seems to me, would otherwise be highly illogical and irrational) that, if the act which the third party is persuaded to do is itself an unlawful act or a wrongful act (including in that phrase a breach of contract) and the other elements are present (namely, knowledge and intention to do the damage which is in fact suffered), then the result is the same and the intervener or procurer will be liable for the loss or damage which the injured party sustains.
The cases which have been referred to include some instances of that nature. A strong case was that of G.W.K. Company and Another v. Dunlop Rubber Company, Ltd. (42 Times Law Reports, page 376 and page 593), where the act performed in itself constituted a trespass quoad the goods of one plaintiff, though not of the goods of the second plaintiff.
A recent instance of the application of the same principle is to be found in the last case which was cited in reply by Mr. Beyfus, a case in the Privy Council, Jasperson v. Dominion Tobacco Company (1923 Appeal (Eases, page 709), where the substance of the matter was that the appellant, Jasperson, induced an agent of the name of Deacon, who had to the appellant's knowledge only a limited authority to buy tobacco for the defendants, to act in breach of his agency agreement with the respondents and to engage himself to buy tobacco far in excess of the limit which had been imposed upon him.
Another instance — I do not pretend to cover the whole ground — is National Phonograph Company. Ltd. v. Edison Bell Consolidated Phonograph Company, Ltd. (1908, 1, Chancery, page 335), where fraud was practised by certain persons upon the factors, so as to cause those factors to break their agreements with their principals.
In all these cases which I have mentioned there was a wrongful act committed — I use that term to cover breach of contract — by the party directly induced, either a servant or an agent, as the case may be, and commonly, but not I think necessarily, an independent wrongful act by the party inducing, that is, an act itself wrongful apart from the tort for which he was sued.
But I have come to the conclusion that the result is otherwise where the persons induced, being third parties, servants or otherwise, are induced to do acts which are in themselves lawful and involve no breach of contracts on their part with the contracting party. I think that if the matter is examined, any other view involves so serious an inroad upon the principles of the law that I cannot persuade myself that, from so casual a beginning as would otherwise be the case, that has now to be taken as established as the law.
In the course of Mr. Beyfus' reply, I put to him an instance to which I venture to return. It may be useful, since, at any rate, it is quite free from any complication such as may arise from industrial relationships.
My instance was of a contract between A and B, whereby A had contracted to sell his house to B at a price beneficial to A. I will assume that it had been disclosed by A to B that there was in fact a public right of way passing close to the property, but that B had been informed, correctly, that the use of such right of way had become so slender that it was of little, if any practical significance. Then let it be supposed that some third party, desiring to cause B to resile from the contract with A and to lose for A the benefit of the contract, persuaded a number of individuals in the neighbourhood to resume the use of the right of way, so that there then passed near the premises a considerable stream of persons, all legitimately using the right of way as such, as a result of which B decided that the amenities of the permises were so damaged that he was no longer willing to continue.
I find it for myself exceedingly difficult to suppose that, the exercise of the right of way by the persons persuaded being lawful, the intervener would be liable according to the principles of the law for having persuaded them to do that lawful thing. The persons using it might or might not themselves have been innocent of any desire to cause damage to A; they might be innocent of any knowledge of the existence of a contract between A and B. If they were so innocent, they themselves would, in my view, clearly not be under any liability. But if they knew of the existence of a contract and intended to cause its breach, another question might arise (and this is a matter to which I shall have later to return) whether they would in any circumstances be themselves liable.
Another instance may be quoted which was taken by my brother Jenkins earlier in the case. Let it be supposed that A had made a contract to supply certain goods to B and that the intervener, knowing of the contract and intending to deprive B of its benefit, had proceeded to go into the market and buy up all the goods that he could find of that character, so as to render it impossible for A in fact to perform the contract. Again, I think it is impossible to say, according to the principles of our law, that the intervener in such a case was acting tortiously.
I have referred to cases where the intervener procured or persuaded a servant. The difficulty of carrying the matter so far may be to some extent illustrated by considering what would be the position of the servant if he were persuaded to do something within the terms of his contract but (to his knowledge) directed to procuring a breach of his master's contract. For in such case a claim might be said to arise not only against the intervener but also against the servant. As was pointed out by Mr. Gardiner, so long as the servant acted within the scope of his authority, the master would be responsible for the act of the servant; in other words, the servant's acts would be the master's acts, and the curious situation would then result that the master would be inducing a breach of his own contract. Quite plainly, he could not be sued both for breach of contract and also for inducing his own breach - in the latter event the damages being at large. So much, I think, emerged from the case of Said v. Butt (1920, 3, King's Bench, page 497), which was approved by this court in the case of Scammell & Nephew v. Hurley (1929, 1, King's Bench, page 419).
"If my servant, acting bona fide within the scope of his authority, procures or causes me to break a contract that I have made with you, you cannot sue the servant for interference with the contract; for he is my alter ego, and I cannot be sued for inducing myself to break a contract."
"If the servant does not act bona fide, presumably he is liable, on the ground that he has ceased to be his employer's alter ego",
and so on.
The difficulty (and I think it is a real difficulty) is avoided if the act which the servant is procured to do is not an act in accordance with or under his contract, but is in breach ox violation of it.
I come then to such formulation of the result as seems to me to be correct; but I should first add this. The argument that this tort should be confined to such direct intervention or interference as is illustrated, for example, in Lumley v. Gye introduces this strange difficulty. A limited liability company, a persona ficta, can only act through agents or servants. If the intervention has to be of so direct a kind, it would obviously create strange problems in the case of a limited liability company. No doubt, if I approach some person in the company who has authority on the company's behalf to make contracts, I may be said to be approaching the company direct. But I think that the illustration of the company emphasises the anomaly which would result if in the case of a limited company a tortious act were only committed if the person approached or induced had a particular office or responsibility (actual or perhaps ostensible) in the company.
But dealing, first, with individual contractors, it seems to me that the intervener, assuming in all cases that he knows of the contract and acts with the aim and object of procuring its breach to the damage of B, one of the contracting parties, will be liable not only (1) if he directly intervenes by persuading A to break it, but also (2) if he intervenes by the commission of some act wrongful in itself so as to prevent A from in fact performing his contract; and also (3) if he persuades a third party, for example, a servant of A, to do an act in itself wrongful or not legitimate (as committing a breach of a contract of service with A) so as to render, as was intended, impossible A's performance of his contract with B.
In the case of a company, the approach to or the persuasion of a managing director, or of some person having like authority, may be regarded as being in all respects equivalent to the direct approach of the individual contractor, as found in Lumley v. Gye and in the Glamorgan case; but, if the approach is made to other servants of the company, the case, in my view, becomes parallel to an approach made not to the contracting party himself, but to some servant of the contracting party, so that the intervener will only be liable if the act which he procures the servant to do is either a breach of contract towards the servant's master or is otherwise tortious in itself.
I have stated the matter broadly and (using the language of Lord Dunedin) as though the slate were clean, or at any rate very nearly clean; but I must now make some reference to the numerous cases to which we have been very properly referred during the long and interesting argument.
I have already made mention of Lord Simon's speech in the Crofters case. For a short statement of the principles involved in all that I have tried to explain I would respectfully like to read and adopt what is said by Lord Simon at page 442 (1942 Appeal Cases):
"First, then, apart from the effects of combination, it is clear that: (l) if A is damaged by the action of B, A nevertheless has no remedy against B, if B's act is lawful in itself and is carried out without employing unlawful means. In such a case A has to endure damnum absque injuria. (2) It makes no difference to the above proposition that B in so acting has the purpose of damaging A. A bad motive does not per se turn an individual's otherwise lawful act into an unlawful one. (3) If C has an existing contract with A and B is aware of it, and if B persuades or induces C to break the contract with resulting damage to A, this is, generally speaking, a tortious act for which B will be liable to A for the injury he has done him."
That is a short statement in very general terms. As Mr. Beyfus points out, without further explanation and exposition it may be fairly said not to be completely exhaustive. But it is, I venture to think, a correct statement of our law and his first two propositions cover the general law as it stands and stood before the impact of the tort of procuring a breach of contract, a tort originating in its present form in Lumley v. Gye.
It would be impossible in a case of this sort to pass the matter over without some reference to the case of Allen v. Flood (1898 Appeal Gases, page l). It is, indeed, useful to refer to what Lord Macnaghten said in that case at page 151:
"I do not think there is any foundation in good sense or in authority for the proposition that a person who suffers loss by reason of another doing or not doing some act at his own will and pleasure, whatever his real motive may be, has a remedy against a third person who, by persuasion or some other means not in itself unlawful, has brought about the act of omission from which the loss comes, even though it could be proved that such person was actuated by malice towards the plaintiff, and that his conduct if it could be inquired into was without justification or excuse. The case may be different where the act itself to which the loss is traceable involves some breach of contract or some breach of duty, and amounts to an interference with legal rights. There the immediate agent is liable, and it may well be that the person in the background who pulls the strings is liable too, though it is not necessary in the present case to express any opinion on that point."
Mr. Beyfus said that in the last words that I have read Lord Macnaghten was perhaps prophetic of his later utterance in Quinn v. Leathern. For the present I only pause to observe that, where, as is contemplated, some servant by a tortious or other wrongful act procures his master to break his contract, Lord Macnaghten is indicating that, given the knowledge and intention, that servant may be liable, and further suggesting that the person behind the scenes, the person who pulls the strings, the intervener, may be liable also. But the passage I have read seems to me to be consistent with, and only consistent with, such a general formulation of the law as I have attempted already to state.
In the case of Ware & de Freville v. Motor Trade Association (1921, 3, King's Bench, page 40, at page 84 and following), Lord Justice Atkin, as he then was, dealt at some length with the incidence and the significance of intention, motive and so on.
There is a short passage in Sorrell v. Smith (1925 Appeal Cases, page 700), a case to which I have already made some reference, which may be usefully noted. At pages 723 and 724 of that case I find that Lord Dunedin, after having expressed entire approval of Lord Justice Atkin's judgment in Ware & de Freville, says:
"My Lords, it may seem self-confident to be positive when so many learned persons have expressed other views, but candidly I never held a clearer opinion than the one I now express, that the effect of Allen v. Flood and Quinn v. Leathern is to settle beyond dispute that in an action against an individual for injury he has caused to the plaintiff by his action, the whole question is whether the act complained of was legal, and motive or intent is immaterial; but that in an action against a set of persons in combination, a conspiracy to injure, followed by actual injury, will give a good cause for action, and motive or intent when the act itself is not illegal is of the essence of the conspiracy."
Again, I think it may fairly be said that that statement is much compressed, but I venture to think that it pays due respect to the well established principles of law, against the background of which the statements in Quinn v. Leathern must be viewed.
I come now to consider those statements. I read first a short passage, to which I have already briefly alluded, from Lord Macnaghten's speech on page 510 of the report in 1901 Appeal Cases. After referring to Lumley v. Gye he says:
"Speaking for myself, I have no hesitation in saying that I think the decision was right, not on the ground of malicious intention - that was not, I think, the gist of the action - but on the ground that a violation of legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference."
"If the above reasoning is correct, Lumley v. Gye was rightly decided, as I am of opinion it clearly was. Further, the principle involved in it cannot be confined to inducements to break contracts of service, nor indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him."
Those, as I have said, are wide statements. But I think, for reasons which I have attempted to give, that it would be wrong and contrary to the intention of Lord Macnaghten and Lord Lindley to expand them to an extent greater than I have defined. I think that neither of those very learned Lords could have intended so startling an inroad into what other noble Lords in other cases treat as axiomatic in our law; nor do I think that any of the succeeding cases did more than apply the law so formulated, but also limited as I have already indicated, in the cases which they had to decide. Certainly no case has been found which extended the principle which I have stated beyond the limits which I have attempted to give it. Lord Macnaghten used, after all, the strong word "violation", a word, I should have thought, necessarily carrying with it the idea of something more than mere influence by acts otherwise in themselves lawful. And Lord Lindley speaks, not of acts, but of wrongful acts done intentionally to damage a particular individual and actually damaging him.
If that be the law, I must now come to the facts and see what the conclusion must be. I have already indicated — I hope to make out what I have said as I proceed — that there is, in my opinion, no sufficient case made out for a conspiracy of the kind for present purposes in question. I must, therefore, deal with each of the defendants in turn. But it is convenient and proper to deal with them to this extent together, that as to Mr. Deakin, Mr. Intin and Mr. Wood, the officers of the Transport and General Workers Union, the drivers' union, who were represented by Mr. Gardiner, the evidence in regard to them can be taken together.
The first affidavit to which I allude is that of the transport manager of Bowaters, Mr. Botterill. He takes up the tale when on the afternoon of Friday, 25th April, he received a telephone call from Mr. Cassidy, who was the Northern Transport Supervisor, reporting what had passed between Mr. Cassidy and Mr. Wood. To that I shall allude later.
"I told Mr. Intin that Mr. Cassidy had informed me that the defendant John Wood . . . had telephoned to him (Mr. Cassidy) from Transport House, Salford, stating that members of his union"
— that is the Transport Workers Union —
"had been instructed by the defendant Arthur Deakin, who is the General Secretary of the Transport and General Workers Union, not to handle or move any paper for delivery to the plaintiffs at Manchester or Glasgow. Mr. Intin confirmed that the said instructions had been given through the Lancashire Regional Office at Salford to members of his union employed at the said Mill and added that there would probably be interference with the vehicles and drivers from elsewhere if Bowaters persisted in carrying paper to Manchester for the plaintiffs."
"I was in my office at about 5 p.m. on Friday, 25th April, when I received a telephone call from the defendant, Mr. John Wood. . . He opened the conversation by saying that he had some rather unpleasant news for me, as he had written to the shop steward of the Transport Department at Merseyside, informing him that a dispute existed between NATSOPA and the plaintiffs. He said that on the instructions of the defendant Arthur Deakin, the General Secretary of the Transport & General Workers Union, all branches of the Transport & General Workers Union had been circularised to assist NATSOPA in the matter, and I could therefore expect an indication from the shop steward that labour would be withdrawn as far as deliveries to Salford were concerned."
"At about 5.30" on the same afternoon Mr. Lloyd "returned from a normal delivery to Manchester and informed me that he understood there was some trouble at" the plaintiffs' Manchester offices. "He had already been in contact with Mr. Wood by telephone and had had the fact of this trouble confirmed, and also informed me that he was being officially informed by letter that our driving staff were not to deliver goods to the plaintiffs."
If the matter stood there without more, it would seem to me that there was evidence upon which a court might, should and probably would act and infer that instructions had emanated from Mr. Deakin, through the other defendants, to the effect that the men employed by Bowaters were not to load, notwithstanding any orders to the contrary given to them.
The next item of evidence to which I refer consists of two documents. The first is a letter that Mr. Wood wrote to Mr. Botterill on the same day, the 25th, in accordance with his promise, and the second a letter he had written to Mr. Lloyd, a copy of which he enclosed with his letter to Mr. Botterill.
"As you are provably aware, both the Paper Workers, NATSOPA and the National Union of Railwaymen are refusing to carry any goods for the above firm", that is, the plaintiffs. "We have been approached by the other unions for assistance in this matter, and whilst we are not concerned with the strike in its real sense, I think you will appreciate our position if our people are to deliver paper to Thomsons at this stage, which may involve other transport workers taking action even against your own workpeople. Today we have sent a letter to our Branch Secretary at Ellesmere Port Depot, which is self-explanatory",
and he enclosed a copy of that letter.
"I wish to inform you that there is a dispute in being at the moment between" the plaintiffs "and the Printers' Union and they have informed me that our members employed by your firm are carrying paper to this concern. Brother Deakin has asked us to do all we can to assist the Printers' Union in their right against D. C. Thomson and his anti-trade union attitude. I shall be pleased, therefore, if you man take the appropriate action and it would be advisable if you could speak to me by telephone at your earliest possible convenience."
As we shall see, the appropriate action which was taken (although it was taken not as a result of the letter, but as a result of Mr. Wood telephoning the contents of his letter, which did not in fact reach Mr. Lloyd till later) was to call a meeting of a committee of the drivers, and the resolution which was passed at that meeting is also in evidence.
I think it is clear that, notwithstanding the word "therefore" in Mr. Wood's second letter, the two letters on the face of them go much less far than the reported statements to which Mr. Botterill and Mr. Cassidy have sworn in their affidavits as to the nature of the instructions given. The intimation of Mr. Wood to Mr. Botterill of what was going to happen and the instructions (if that is the proper word for them) given by Mr. Wood to Mr, Lloyd are at any rate consistent with the steps being taken being only of such a character as were in accordance with the performance of any contract by the drivers with their employers, Bowaters.
"On or about the 23rd April, 1952, as a result of information received from the Printing and Kindred Trades Federation" and others, "it appeared that a dispute had broken out between" NATSOPA "and its members on the one side and the plaintiffs on the other, as to whether or not the plaintiffs' employees should be employed subject to a condition that they should not belong to any trade union. The various trade unions and bodies concerned in or connected with the said dispute invited the assistance of the Transport and General Workers Union in the said dispute and, acting on behalf of the Executive Council of the Transport and General Workers Union and in accordance with the general policy of the union, I asked our officials concerned to give the employees' side to the said dispute such assistance as they properly could, but gave no instructions that our members were not to handle or move papers for delivery to the plaintiffs. I did give instructions that our members were not to carry out in connection with the said dispute any work which members of other unions had refused to do."
"Neither of us has given any instructions to any such drivers not to lead or handle goods consigned to the plaintiffs."
"By 'the appropriate action'"
— that being the phrase to which I have referred in Mr. Wood's letter to Mr. Lloyd —
"I meant and the said Lloyd would have known that I meant that our members were not to work in conjunction with men who might be called in to do work which members of other unions had refused to do"
- that is, they were not to work with persons commonly known as "blaaklegs".
In the next paragraph he says that he telephoned to Mr. Cassidy and told him that he had unpleasant news. So far the two stories are in line. He says that he told Mr. Cassidy "that there was a difficulty of which he would no doubt be fully aware over Messrs. D. C. Thomson's works in Salford, and that owing to the fact that these works were being picketed by two other organisations, namely, NATSOPA and the Paper Workers Union, it would be unwise in my view to send any more paper into those works. I asked him to consider this point, and said that no doubt he would be informing his chief in London. It was and is my opinion that if lorries driven by our members had been loaded with supplies for the plaintiffs our members would not, whatever instructions they had received from the union, have delivered such supplies, when they found that the plaintiffs' works were picketed. I am quite sure that had they done so the dispute would have spread because loaders at other newspaper premises in the Manchester area would have refused to unload paper from lorries driven by men who had delivered to the plaintiffs. While I told Mr. Cassidy that he could expect to hear from Mr. Lloyd, I did not tell him nor was it the case that he could expect labour to be withdrawn. I told him the contents of my said letter to Mr. Lloyd. Shortly after this conversation Mr. Lloyd telephoned to me and I told him the substance of my conversation with Mr. Cassidy."
"I told him" — that is Mr. Botterill — "that we intended to support NATSOPA where we properly could but that we did not want Bowaters to be involved. I did not tell him and it was not the case that the defendant Deakin had given instructions . . . that members of my union at Bowaters Mersey Mill were not to handle or move any paper for delivery to the plaintiffs at Manchester or Glasgow."
Mr. Lloyd himself then made an affidavit, supporting what the other deponents had said. He also states that nobody gave instructions to the men not to load, bat he exhibits a memorandum or a minute of the meeting which was held of the committee of the drivers on the 26th April, the Saturday, at 11.30 in the morning, which states:
"It was decided that in view of what is happening it would be unwise to handle D.C. Thomson's newsprint and the shop steward was told to tell Mr. Cassidy to that effect."
In matters of this sort it is common knowledge that one party to a conversation may place a slightly different construction on the words used than the other. Reading all the evidence and having regard to the solemnly sworn statements of each of the three first-named defendants, that they never gave any instructions of the kind indicated, I am quite unable for this purpose to hold to the contrary.
I think indeed there is this to be said, though I am not for a moment suggesting any departure in the least degree by Mr. Botterill or Mr. Cassidy from what they understood they were told, that such written material as there is seems to be in line with and to support the sworn testimony of the three defendants.
I add that there appears in the evidence that I have read to be nothing whatever, so far as I can see, to suggest that any of these defendants had the smallest knowledge of any conspiracy of the kind alleged. The most that emerges is that Mr. Deakin said that he knew there had been a meeting on 22nd April and that the unions there concerned were supporting the strike.
The result, therefore, as regards the first three defendants, is that the evidence in this motion, in my judgment, falls far short of establishing against any of them any such action as, according to the law as I have stated it, would constitute the tort of wrongfully procuring the breach in question.
It also follows, in my judgment, that, if the case made against the first three defendants falls short of what is required to satisfy the grant of an injunction, the effect of which would or might operate on the drivers of Bowaters, the case for an injunction against the other defendants and particularly against the last defendant (which might affect those who load the lorries that the members of the Transport and General Workers Union have to drive) is, on practical grounds, made obviously more difficult.
But I go next to Mr. Briginshaw. With the exception of a matter relating to printing ink, which I will deal with separately, if I am right in saying that no conspiracy has been established, I can deal very briefly with Mr. Briginshaw.
Mr. Briginshaw, in the material he has placed before the court, has been indeed forthcoming in the extreme. He has made it quite plain that he is intensely angered by the attitude taken by the plaintiffs. I think nobody can read his affidavit or the various exhibits to it, the press statements that he issued and the circulars he issued, without feeling that he was as a man standing on the housetops calling in every direction for any and every support he could get from anybody, whatever the nature of that support might be.
The matter of his utterances is dealt with by Mr. Justice Upjohn in his judgment and I can, I think, properly make one or two very brief references to the extracts which mill be found in that judgment. Shortly after the 21st April, in a circular "W.H.T.2.", Mr, Briginshaw states:
"We therefore appeal to our colleagues for their active support to the fullest extent with a view to stopping the handling of Thomson's supplies and the purchasing of his publications so far as possible."
Then later is a press statement, referring to the Transport and General Workers Union "stopping transport of paper for Thomsons from the docks this afternoon". And on the 30th April there is a document addressed to General Secretaries of all National Unions in which he refers to the circumstance that the plaintiff company "has thumbed its nose at the whole trade union movement since 1926, and bluntly we have decided to take them on. . . . Wherever your organisation can give direct assistance we shall be pleased if they will do so."
Then on 9th May (though that is after the issue of the writ it is clearly legitimate to refer to it so far as it reflects on what appears before) he says that certain action which he did not approve of would have released Thomsons from "the iron grip in which we at present hold" them.
"Railwaymen, transport workers, miners, paper workers, printers, all are absolutely united in their effort to see that this prevention of the rights of the individual is ended. They are stopping supplies, namely, they are stopping paper, and where he gets papers out, we are stopping them being delivered."
I need not proceed further. But it is quite plain, and Mr. Beyfus has so conceded, that the exhortations of Mr. Briginshaw would not of themselves have operated to cause members of the Paper Workers Union or the Transport and General Workers Union to act in breach of their respective contracts of service without the intervention of the respective officers of their own unions. So far as Mr. Briginshaw was calling out for assistance from every hand where it might be available, it seems to me that he was doing nothing more than he was entitled to do as a trade union leader.
There is, however, a further letter, which comes late into the picture, namely, at some time after the issue of the proceedings, which relates to printers ink. It is contained in am exhibit to an affidavit of Mr. Leslie, the general manager of Thomsons, being a letter from Messrs. Usher-Walker, Ltd., who are ink suppliers, to Mr. Leslie. After a certain narrative, they say:
"Our employees, members of NATSOPA, decline to complete packing, labelling and delivery of the May consignment, and this attitude has been persisted in by them for some three weeks or more. Every effort has been made by us, by meetings, etc., to induce a resumption of 'normal working', even so recently as yesterday afternoon, when I personally interviewed representatives of the employees concerned, I have to add without success, the decision having been conveyed to me this morning."
"No position such as this has ever before occurred in the history of this company",
and he expresses his regret.
The employees concerned are members of NATSOPA, the union directly involved in the dispute. But there is in this evidence, so far as it goes, nothing which seems to me to show that the action of the employees of Usher-Walker, Ltd., involved any breach of contract on their part or that, if so, it was procured by any direct Intervention by Mr. Briginshaw.
The inference which seems to be drawn from this letter is that these employees were acting on their own. The manager of the company made efforts, by meetings and so on, to get them to change their minds and failed. On the whole, therefore, I think there is nothing in that particular matter to alter the view I have expressed in regard to Mr. Briginshaw. And what I have said about Mr. Briginshaw applies equally to Mr. Moncrieff.
In this court certain further evidence has been available and it is convenient to start with that evidence, since it relates to the meeting on the 22nd April, to which I have already referred, but in regard to which, so far, there is in fact no more evidence than of a most vague and general character; but during the course of the cross-examination of Mr. Morrison at the hearing on an Inquiry the question was put:
"And what was the effect of the resolution?",
the resolution passed at the meeting.
"(A). We all agreed to do what we were called upon to do.
(Q) To do what you could to stop supplies?
(A). Oh, yes."
"On Monday, 28th April, at approximately twelve noon I received a telephone call from Mr. Luke, the General Manager of Bowaters . . . . Mr. Luke informed me that the loaders employed by the company who arc members of the National Union of Printing Bookbinding and Paper Workers had refused" — no date is specified — "to load a British Road Services' vehicle with newsprint paper for delivery to the Glasgow offices of the plaintiffs. He asked me to find out from the area Organiser of the National Union of Printing Bookbinding and Paper Workers what were the official instructions of the Union in the matter.
"I eventually contacted Miss A. Whewell, the Area Organiser of the National Union of Printing Bookbinding and Paper Workers . . and told her what Mr. Luke had said to me. Miss Whewell told me that she had not received official instructions from the headquarters of her Union in London, and that, accordingly, she would get in touch with them and let me know their decision. Later that afternoon she telephoned to me to say that she had spoken to the Head Office of the National Union of Printing Bookbinding and Paper Workers in London, and that they had confirmed that the members of the Union were in agreement with the National Society of Operative Printers & Assistants' members in their fight against the plaintiffs and that, in particular, the members of the union who were employed as loaders by Bowaters Mersey Paper Mills, Ltd., would support the National Society of Operative Printers & Assistants.
"I did not comment upon Miss Whewell's statement, and she said that instructions would be issued to all her members."
"Mr. Fitt further informed me and I verily believe that the instructions to the said loaders were given by the defendant Norrison."
There is a further affidavit by Mr. Derek Thomson, exhibiting a printed circular which bears the signature of Mr. Morrison, dated in May, 1952, but which, it is conceded, went out after the issue of the writ, namely, the 8th May. The relevant words in it are these:
"Our people employed by London and also provincial wholesale distributors will not handle any of Thomson's publications until the dispute has been settled."
"Our colleagues employed in papermills making paper for Thomsons have responded magnificently."
"Neither on or before 28th April, 1952, had I issued or authorised or acquiesced in the issue of any instructions to or for transmission to any loaders employed by Bowaters. . . . Nor have I since 28th April, 1952, issued or authorised or acquiesced in the issue of any instruction to or for transmission to the said loaders."
"He then informed me and I verily believe that on 14th May, 1952, he informed Mr. Luke, the Manager of Bowaters Mersey Paper Mills, Ltd., that I had issued no instructions to or for the said loaders and that the refusal of the said loaders to load newsprint for delivery to the plaintiffs was in no way connected with anything done or said by me."
I must say that when that affidavit of Mr. Morrison was read I confessed to some feeling of surprise at the extremely unqualified character of Mr. Morrison's disclaimer. The unfortunate Miss Whewell seems to me left somewhat in the air. We know now that Mr. Morrison had been at this meeting on the 22nd April and had been a party to the resolution which involved active support (though I am not saying by unlawful moans) to NATSOPA. I repeat that it seems to me somewhat surprising that he should so completely wash his hands of the matter as to say that he never acquiesced in any issue of any instructions, and I am inclined to think that some of the members of his union might share my surprise; but in fact it appears that Mr. Morrison was abroad from the 27th April to a date early in Mayand, as I think, though I have expressed my surprise, there is in truth nothing in the evidence before us to indicate that he, Mr. Morrison, did give any particular instructions and, in particular, nothing to suggest that he gave any instructions to the effect that contracts were to be broken.
As regards the circular and the reference to "Our colleagues have responded magnificently", that is explained by a further affidavit, in which Mr. Morrison says that what he "had in mind was the fact that I had learned that members of his union "employed at Donside Mills, Aberdeenshire" — nothing at all to do with the plaintiffs — "had given notice to terminate their engagement. This notice had been given by these workers in the belief that they were being called on to.make and to load newsprint for the plaintiff company." That, I think, must be taken as.sufficient explanation, and the mistake was apparently remedied.
"During the telephone conversation he was told by Mr. Morrison that the latter had not issued any further instructions cancelling those given before and the embargo on the handling of D. C. Thomson newsprint"
remained as before.
I repeat that it seems to me that on that evidence there is really no material upon which a court could or should in this motion infer that Mr. Morrison had given any particular instructions, and certainly none that he had given instructions to bring about a breach of contract.
As to the whole of the defendants, it follows accordingly from what I have said that, in my judgment, there is not on this notion proved any procuring of any wrongful act by any member of any of the unions concerned.
I need only add that, so far as I follow it, there was in fact on the evidence no breach of contract by any workmen, since Bowaters, for reason which I doubt not were prudent, took the line, as already appears, that they would not order any man either to load or to drive paper for the plaintiffs. They accepted the situation as they found it and, again I doubt not prudently, made no attempt to contrive to get the paper to the plaintiffs by any other means. It is true, if my analysis is correct, that there was in the case of the first three defendants what might be called a direct approach to Bowaters, but, so far as I understand the evidence, I cannot see that that direct approach amounted to anything more than a statement of the facts as the members of the union understood then to be. In particular there was a reference to picketing, which was obviously of great significance; and, whether that reference was correct or incorrect, there is no suggestion that it was not made in the bona fide belief of its truth.
I appreciate that in these matters there is a difficult question of distinguishing between what night be called persuasion and what might be called advice, meaning by the latter a mere statement of, or drawing of the attention of the party addressed to, the state of facts as they were. In the case of Forcey, before Mr. Justice Simonds (as he then was), it was held that the advice given was of such a nature, was of a character obviously intended to be acted upon, that it was for all practical purposes equivalent to persuasion; but, if the matter be advice merely (in the ordinary sense of that word), it seems to me that there can be no complaint about it; nor do I think that Mr. Beyfus can derive any substantial assistance by saying that Bowaters proved themselves merely chicken-hearted and that the ease with which a person may be persuaded is not a relevant consideration in determining whether the persuader was wrongful in what he was doing. That may, as a general proposition be true; but in this case it seems to me, as I have already more than once indicated, that the evidence on this notion, whatever may emerge when the matter is fully investigated, falls too far short of any proof of what is required, as I think, to constitute a cause of action such as would entitled the plaintiffs to an injunction. Put another way, I cannot see that the evidence establishes that there was anything done by Bowaters vis-a-vis the plaintiffs which is fairly attributable to any such pressure, persuasion or procuration on the part of any of these defendants as would in any event cause then to be liable in tort.
The whole matter is, indeed, when it is examined at large, of a vary vague character. The links in the chain which connect the defendants with the plaintiffs are, at points at any rate, as I think, very unsubstantial. I have referred already to the absence of proof of direct procurement or attempted procurement of wrongful acts on the part of the workmen. There were in fact, so far as I can sec, no wrongful acts at all on the workmen's part. There is, moreover, no evidence that there was actual knowledge, on the part of any of the persons charged, of the contract or of any contract between Bowaters and the plaintiffs, assuming such contract to have been broken; or at least, if these persons thought that there might be or was some contract, any knowledge of the terms of that contract.
If all else were satisfactorily proved, it might well be (having regard to common knowledge about the way business is conducted) that absence of such strict proof would not suffice to prevent the grant of relief; but, when the whole matter is generally regarded, it seems to me that the case is a very different case from anything that was contemplated by Lord Macnaghten in Quinn v. Leathem and approved in subsequent cases in which Quinn v. Leathem has been applied.
I find it, therefore, not unnatural that the learned judge thought that the chain of causation, at some point at any rate, had been broken. I only venture to differ from him in so far as he rested his conclusion on the proposition that it was insufficient for the purposes of the plaintiffs' claim to show that the alleged breach of contract by Bowaters was indirectly procured through breaches of contract by the workmen; since, as I think, if it were shown that the workmen were induced or procured to break their contract vis-a-vis Bowaters, prima facie, if the intent and knowledge were shown, that would suffice for present purposes.
Having reached that conclusion, it is unnecessary for me to express concluded opinions upon the natters raised in regard to the Trade Disputes Act, 1906, particularly upon the point of great difficulty which emerges in reference to section 3 of that Act. The section is well known, but I shall be forgiven for reading it. It provides:
"An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills."
Having read the section, it is pertinent to observe that it would not, as I follow it, having regard to Mr. Beyfus' concession, be a wrongful or actionable act on the part of these defendants vis-a-vis Bowaters to cause workmen belonging to their respective unions to break their contracts of employment; but, if that be so, it does not in the least follow, nor is it in my judgment the case, that, if the workmen did break their contracts, they, the workmen, did not do an unlawful act, in the sense of committing a breach of contract.
I should, therefore be prepared to hold that the defendants would not be entitled to resist the plaintiffs' claim merely by saying that their own procuration of the workmen's breach of contract was vis-a-vis Bowaters protected by section 3.
But I would like to make clear that I am not to be taken, in formulating the case as I have, to be deciding that, if the workmen broke their contracts with Bowaters, they would themselves be liable to the plaintiffs for the damage which the plaintiffs suffered. Of course, as a premise to any such claim knowledge and intent of the workmen would have to be proved; but, even so, since the workmen could lawfully have given notice, which presumably would be of a very short character, it may well be that the damage could not be said to flow from the fact that they had ceased loading immediately instead of after giving the requisite notice. Further, it seems to me difficult to suggest as against any one individual workman that his particular act could have resulted in the damage which the plaintiffs suffered. Whether any case for conspiracy would lie against all of them is, of course, another matter, and we are not in any way concerned with it.
There remains, however, the more substantial point that the defendants were in any case protected by the second limb of section 3, "or that it is an interference with the trade, business, or employment of some other person". It is clear that that limb, if available, could be used, not only as excusing the acts themselves, but also as a justification for the acts done, if otherwise not excusable. I confess that the words "an interference with the trade, business, or employment of some other person", being so wide in scope, would appear at first sight to cover such a matter as that with which we are now concerned; but there are, I think, and as Mr. Beyfus has suggested, forcible arguments to the contrary.
It is right, in my judgment, as Mr. Beyfus asked us to do, to construe this section by having due regard to the state of the law at the tine the section was enacted. The judgment of Lord Justice Romer in the case of Giblan v. National Amalgamated Labourers Union of Great Britain and Ireland, in 1903, is, I think, some indication that at that date the extent to which a person might be liable merely for interfering in some way with the trade or business of other persons was in doubt: (see also the speech of Lord Loreburn in the case of Conway v. Wade, reported in 1909 Appeal Cases, page 506, at page 510). Moreover, it would be a curious way to enact the matter if so wide a significance was to be given to the second limb, for in that event the words "of employment" in the first limb seem to be otiose - unless it was intended by the first limb to deal with the specific matter most in the minds of the legislature and then to use in the second part of this section general words which might or might not also cover the subject matter of the first limb.
Such opinions as have been expressed on the meaning of the second limb would appear to support Mr. Beyfus' argument. Twice the matter came before Mr. Justice Russell and in the later of those cases, Brimelow v. Casson (1924, 1. Chancery, page 302), at page 314 Mr. Justice Russell expressed the view that the argument for which Mr. Beyfus contends was, to use the learned judge's language, "a good point" - a view which had also, though no reasons were stated, been taken in the Irish case of Riordan v. Butler (1940 Irish Reports, page 347).
In the circumstances and in particular having regard to the fact that this matter may be argued by the defendants on the question of justification, I think it desirable that I should express no view of my own upon this matter, except to say that, if the plaintiffs proved themselves otherwise entitled I should myself be inclined to think that the reference to section 3 of the Trade Disputes Act, 1906, would not suffice to prevent the granting of an injunction on this notion.
Other points were taken on section 4 and section 5 of the Trade Disputes Act, which I hope that I shall be excused for dealing with somewhat sumnarily. It was suggested that there was protection to be derived from section 4, since these gentlemen sued were in truth officials of the union and section 4 was directed to prohibiting actions of tort against a union. I do not think that that is any answer to the present case, if otherwise good; nor do I find in the definition paragraph of section 5 anything which would assist the defendants towards their construction of section 3.
Then the point was made by Mr. Gardiner that in no circumstances was it shown that there was any sufficient knowledge of the contract or intent that the contract was broken, in the sense that it was entirely repudiated; that the breach went to the root of the contract. Upon those natters, likewise, I express no view - not the less because the other party to the contract, Bowaters, is not before the Court. I only indicate, though expressing no concluded opinion, that, notwithstanding the view expressed by Mr. Justice Porter (as he then was) in De Jetley Marks v. Greenwood (1936, 1, All England Reports, page 863), I an not at present satisfied that the breach procured must be of a kind that goes to the root of the contract. I am not clear upon what principle that view was based.
These, however, are all natters which in the circumstances I think I can and should probably leave without saying more about them. And I must also not be taken by any means to assent to the view that, if entire repudiation, a breach going to the root of the contract, is required, that did not in the present circumstances occur.
It is plain, finally, that it is unnecessary for me also to say anything in regard to the form of injunction that night be appropriate, if I had thought that any injunction were appropriate upon this notion. The circumstance that it night not in all the circumstances be wholly effective, no doubt is something which the court will consider; but I an far from satisfied that that circumstance would, if the plaintiffs were otherwise right, be a sufficient ground for persuading the court to grant no remedy at all to the plaintiffs. I should, however, like to make it quite plain that I accept without reservation the assurance given to this court by all the defendants through their counsel that, if any injunction were granted, it would be loyally implemented by each of the defendants to the best of his ability.
LORD JUSTICE JENKINS: This is an appeal from an order of Mr. Justice Upjohn, refusing the plaintiffs interlocutory relief in an action brought by them against certain trade union officials in respect of allegedly wrongful acts done by the defendants in furtherance of what, for the purposes of the motion to which the appeal relates, is admittedly a trade dispute within the meaning of the Trade Disputes Act, 1906.
The occasion of the dispute seems to have been the alleged summary dismissal by the plaintiffs from their employment of one McKay, a member of the National Society of Operative Printers and Assistants (NATSOPA); but the substantial bone of contention, if I may so describe it, is the policy pursued by the plaintiffs for many years of excluding trade union members from their employment.
In furtherance of the dispute NATSOPA members in the employ of the plaintiffs (for there appears to have been a considerable number of such, notwithstanding the ban) were called out on strike on, I think, the 19th April of this year, and the acts complained of in the action are in the nature of allegedly wrongful interference with contractual relations between the plaintiffs and other companies, designed to deprive and in fact depriving the plaintiffs, who are printers and publishers, of necessary supplies of paper and ink.
The parties to this unfortunate controversy are entitled to advance their respective sides of it by any lawful means they think fit to adopt, and the sole question for the court is whether the defendants or any and, if so, which of them have, as alleged by the plaintiffs, overstepped the bounds of lawful action in the promotion of their cause or, perhaps I should say, the cause of NATSOPA.
Apart from the effect of the Trade Disputes Act, 1906, the principles of law to be applied in this case are thus summarised by Lord Simon (Lord Chancellor) in Crofter Harris Tweed Company v. Veitch (1942 Appeal Cases, page 435, at page 442):
"First, then, apart from the effects of combination, it is clear that (1) if A is damaged by the action of B, A nevertheless has no remedy against B, if B's act is lawful in itself and is carried out without employing unlawful means. In such a case A has to endure damnum absque injuria. (2) It makes no difference to the above proposition that B in so acting had the purpose of damaging A. A bad motive does not per se turn an individual's otherwise lawful act into an unlawful one. (3) If C has an existing contract with A and B is aware of it, and if B persuades or induces C to break the contract with resulting damage to A, this is, generally speaking, a tortious act for which B will be liable to A for the injury he has done him. In some cases, however, B may be able to justify his procuring of the breach of contract",
and the passage goes on to give an example of such justification.
In view of Mr. Beyfus' disclaimer for the purposes of the motion of any allegation of conspiracy to injure, the reference to the effect of combination, developed later in the same speech, requires no further notice here.
"I do not think that there is any foundation in good sense or in authority for the proposition that a person who suffers loses by reason of another doing or not doing some act which that other is entitled to do or to abstain from doing at his own will and pleasure, whatever his real motive may be, has a remedy against a third person who, by persuasion or some other means not in itself unlawful, has brought about the act or omission from which the loss comes, even though it could be proved that such person was actuated by malice towards the plaintiff, and that his conduct if it could be inquired into was without justification or excuse.
"The case may be indifferent where the act itself to which the loss is traceable involves some breach of contract or some breach of duty, and amounts to an interference with legal rights. There the immediate agent is liable, and it may well be that the person in the background who pulls the strings is liable too, though it is not necessary in the present case to express any opinion on that point."
"Now in what respect does an intention to injure the plaintiff affect the legal position stated above? It appears to me to be finally decided by the majority in the House of Lords in Allen v. Flood that an act otherwise lawful is not made unlawful by an intention to injure, except in the case of a combination to injure. That decision is binding upon every tribunal in the land; it certainly binds the Court of Appeal; and, though, after it was given, divers judicial personages more or less respectfully kicked against the pricks, speaking humbly for myself I unreservedly accept the reasoning of the majority judgments."
"My Lords, it may seem self confident to be positive when so many learned persons have expressed other views, but candidly I never held a clearer opinion than the one I now express, that the effect of Allen v. Flood and Quinn v. Leathem is to settle beyond dispute that in an action against an individual for injury he has caused to the plaintiff by his action, the whole question is whether the act complained of was legal, and motive or intent is immaterial; but that in an action against a set of persons in combination, a conspiracy to injure, followed by actual injury, will give a good cause for action, and motive or intent when the act itself is not illegal is of the essence of conspiracy."
Lord Simon's third proposition refers to what may be described as the primary form of the type of wrong held to be actionable in Lumley v. Gye (2 Ellis and Blackburn, page 216) and in that form commonly designated "procuring or inducing a breach of contract".
"Speaking for myself, I have no hesitation in saying that I think the decision was right, not on the ground of malicious intention — that was not, I think, the gist of the action --- but on the ground that a violation of legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference."
"If the above reasoning is correct, Lumley v. Gye was rightly decided, as I am of opinion it clearly was. Further, the principle involved in it cannot be confined to inducements to break contracts of service, nor indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him."
We were referred to a great many more authorities, but no useful purpose will be served by multiplying citations, as the passages I have quoted sufficiently indicate the general principles of law to be applied.
After a full and elaborate argument, I am satisfied, first, that Lord Simon's third proposition does not exhaustively define the type of actionable wrong to which it refers, as there may, on the principles stated by Lords Macnaghten and Lindley in Quinn v. Leathern, be an actionable interference with contractual rights where other means of interference than persuasion or procurement or inducement, in the sense of influence of one kind or another, brought to bear on the mind of the contract breaker to cause him to break his contract, are used by the interferer; but, secondly, that (apart from conspiracy to injure, which, as I have said, is not in question so far as this notion is concerned) acts of a third party lawful in themselves do not constitute an actionable interference with contractual rights merely because they bring about a breach of contract, even if they were done with the object and intention of bringing about such breach.
The breach of contract complained of must be brought about by some act of a third party ( whether alone or in concert with the contract breaker), which is in itsself unlawful but that act need not necessarily take the form of persuasion or procurement of inducement of the contract breaker, in the sense above indicated.
Direct persuasion or procurement or inducement applied by the third party to the contract breaker, with knowledge of the contract and the intention of bringing about its breach, is clearly to be regarded as a wrongful act in itself, and where this is shown a case of actionable interference in its primary form is made out: (Lumley v. Gye).
But the contract breaker may himself be a willing party to the breach, without any persuasion by the third party, and there seems to be no doubt that if a third party, with knowledge of a contract between the contract breaker and another, has dealings with the contract breaker which the third party knows to be inconsistent with the contract, he has committed an actionable interference: (See, for example, British Industrial Plastics, Ltd, v. Ferguson (1938, 4, All England Reports, page 504), where the necessary knowledge was held not to have been brought home to the third party; and British Motor Trade Association v. Salvadori (1949, Chancery, page 556)). The inconsistent dealing between the third party and the contract breaker may, indeed, be commenced without knowledge by the third party of the contract thus broken; but, if it is continued after the third party has notice of the contract, an actionable interference has been committed by him: (See, for example, De Francesco v. Barnum (63 Times Law Reports, page 514, at page 515.)).
Again, so far from persuading or inducing or procuring one of the parties to the contract to break it, the third party may commit an actionable interference with the contract, against the will of both and without the knowledge of either, if, with knowledge of the contract, he does an act which, if done by one of the parties to it, would have been breach. Of this type of interference the case of G.W.K.Ltd. v. Dunlop Rubber Company Ltd. (42 Times Law Reports, page 376) affords a striking example.
Further, I apprehend that an actionable interference would undoubtedly be committed if a third party, with knowledge of a contract and intent to bring about its breach, placed physical restraint upon one of the parties to the contract, so as to prevent him from carrying it out.
It is to be observed that in all these cases there is something amounting to a direct invasion by the third party of the rights of one of the parties to the contract, by prevailing upon the other party to do, or doing in concert with him, or doing without reference to either party, that which is inconsistent with the contract; or by preventing, by means of actual physical restraint one of the parties from being where he should be or doing what he should do under the contract.
But here the acts complained of as constituting the actionable interference do not amount to a direct invasion of the plaintiffs' contractual rights. The plaintiffs' case as regards paper is that the defendants persuaded, induced or procured employees of Bowaters (that is, drivers employed by Bowaters Sales Company, Ltd., and loaders employed by Bowaters Mersey Mills, Ltd.) to break their contracts of employment by refusing to drive lorries loaded with, or to load lorries with paper destined for the plaintiffs, with the object and intention of causing Bowaters Sales Company, Ltd., to break, or making it impossible for them to fulfil, their contract for the supply of paper to the plaintiffs; and that the defendants did in fact by the means I have stated produce the intended result.
I have stated the plaintiffs' case in the only form in which (if made out on the facts) it can, in my view, be maintainable in law apart, from conspiracy to injure; for I reject as inconsistent with the authorities referred to at the beginning of this judgment Mr. Beyfus' submission that it is unnecessary for him in order to make out his case to show that any acts wrongful in themselves were done by the defendants in order to bring about the breach of Bowaters' contract with the plaintiffs, provided they were done with the intention of causing and did in fact cause such breach; and, so far as I can see, the only acts wrongful in themselves which there is any question of imputing to the defendants on the evidence must consist in their having persuaded, induced or procured the employees concerned to break their contracts of employment.
I have not overlooked Mr. Beyfus' submission that there is evidence of direct persuasion or procurement or inducement of Bowaters Sales Company, Ltd. (in the persons of Messrs. Botterill and Cassidy) to break the contract with the plaintiffs, but I do not agree that this is so, and will therefore deal with that part of Mr. Beyfus' argument when I come to examine the evidence.
Now, the plaintiffs' case, as I have stated it, does seem to me to involve an extension of the range of actionable interference with contractual rights beyond any actual instance of this type of wrong to be found in the decided cases. Here there is no direct invasion of the plaintiffs' rights under the contract. It was no part of their contract that these particular employees, or any particular employees, should be employed by Bowaters for the purpose of effecting deliveries of paper to them. Thus the breaches by these men of their contracts of service with Bowaters (if made out on the facts) did not in themselves involve any breach of Bowaters' contract with the plaintiffs. The breaches of the contracts of service (if made out) were, so to speak, at one remove from the breach of contract complained of. Nevertheless, I think that in principle an actionable interference with contractual relations may be committed by a third party who, with knowledge of a contract between two other persons and with the intention of causing its breach, or of preventing its performance, persuades, induces or procures the servants of one of those parties, on whose services he relies for the performance of his contract, to break their contracts of employment with him, either by leaving him without notice or by refusing to do what is necessary for the performance of his contract, provided that the breach of the contract between the two other persons intended to be brought about by the third party does in fact ensue as a necessary consequence of the third party's wrongful interference with the contracts of employment.
I take this view because I see no distinction in principle for the present purpose between persuading a man to break his contract with another, preventing him by physical restraint from performing it, making his performance of it impossible by taking away or damaging his tools or machinery, and making his performance of it impossible by depriving him, . in breach of their contracts, of the services of his employees. All these are wrongful acts, and, if done with knowledge of and intention to bring about a breach of a contract to which the person directly wronged is a party, and if in fact producing that result, I fall to see why they should not all alike fall within the sphere of actionable interference with contractual relations delimited by Lords Macnaghten and Lindley in Quinn v. Leathern.
But, while admitting this form of actionable interference in principle, I would hold it strictly confined to cases where it is clearly shown, first, that the person charged with actionable interference knew of the existence of the contract and intended to procure its breach; secondly, that the person so charged did definitely and unequivocally persuade, induce or procure the employees concerned to break their contracts of employment with the intent I have mentioned; thirdly, that the employees so persuaded, induced or procured did in fact break their contracts of employment; and, fourthly, that breach of the contract forming the alleged subject of interference ensued as a necessary consequence of the breaches by the employees concerned of their contracts of employment.
I should add that by the expression "necessary consequence" used here and elsewhere in this judgment I mean that it must be shown that, by reason of the withdrawal of the services of the employees concerned, the contract breaker was unable, as a matter of practical possibility, to perform his contract; in other words, I think the continuance of the services of the particular employees concerned must be so vital to the performance of the contract alleged to have been interfered with as to make the effect of their withdrawal comparable, for practical purposes, to a direct invasion of the contractual rights of the party aggrieved under the contract alleged, to have been interfered with, as for example (in the case of a contract for personal services) the physical restraint of the person by whom such services are to be performed.
I make the above reservations in regard to the scope of this newly propounded form of actionable interference with contractual rights for these reasons. It is now well settled that, apart from conspiracy to injure, no actionable wrong is committed by a person who, by acts not in themselves unlawful prevents another person from obtaining goods or services necessary for the purposes of his business, or who induces others so to prevent that person by any lawful means. It follows, in my view, that (again apart from conspiracy to injure) there is nothing unlawful, under the law as enunciated in Allen v. Flood and subsequent cases, in general appeals to others to prevent a given person from obtaining goods or services, for that is a purpose capable of being lawfully carried out, and there can therefore be nothing unlawful in advocating it, unless unlawful means are advocated. The result of such advocacy may well be that unlawful means are adopted by some to achieve the purpose advocated, but that is not to say that a person who advocates the object without advocating the means is to be taken to have advocated recourse to unlawful means. If by reference to the form of actionable interference with contractual rights now propounded, general exhortations issued in the course of a trade dispute, such as "Stop supples to x", "Refuse to handle X's goods", "Treat X as 'black", and the like, were regarded as amounting to actionable interference, because persons reached by such exhortations might respond to them by breaking their contracts of employment and thereby causing breaches of contracts between their employers and other persons, and because the person issuing such exhortations must be taken constructively to have known that the employers concerned must have contracts of some kind or other with other persons, and that his exhortations (general as they were) might lead to breaches of those contracts through breaches of contracts of employment committed by persons moved by his exhortations, then the proposition must be accepted that it is an actionable wrong to advocate objects which can be achieved by lawful means because they can also be achieved by unlawful means; and to that proposition I decline to subscribe.
Furthermore, as the learned judge in effect pointed out in his judgment, almost every strike, if to any extent successful, must cause breaches of contracts between the employer against whom it is directed and the persons with whom he is doing business, the very object of the strike being to bring his business to a standstill or himself to terms. Again, many a strike embarked on in support of a strike in progress in some other concern must have had for its immediate object the cutting off of supplies to, or prevention of distribution of the products of, or the application of similar pressure upon, that other concern.
Yet we have been referred to no case in which the persons inciting a strike have been held liable for actionable interference with contractual relations between the strikers' employers and the persons with whom they deal; and in principle I do not think that the inciters of the strike could be held so liable in the absence of proof that they knew of the existence of a particular contract, and, with a view to bringing about its breach, counselled action by employees in itself necessarily unlawful (as for example breach of their contracts of employment) designed to achieve that end.
To hold otherwise would, in my view, be to admit not only an addition to the means whereby actionable interference with contractual rights may be compassed (which addition, as I have said, I am in principle prepared to accept), but also an enlargement of the character and scope of the tort itself (which I cannot agree to).
Finally, not every breach of a contract of employment with a trading or manufacturing concern by an employee engaged in services required for the performance of a contract between his employer and some other person carries with it as a necessary consequence (in the sense above indicated) the breach of the last mentioned contract. For instance, A induces B, C's lorry driver, to refuse, in breach of his contract of employment, to carry goods which C is under contract to deliver to D, and does so with a view to causing the breach of C's contract with D. C could, if he chose, engage some other lorry driver, or arrange alternature means of transport, but does not do so, He fails to deliver the goods, telling D he is prevented from doing so by B's breach of contract. In such circumstances there has been no direct invasion by A of C's rights under his contract with D, and, although A has committed an actionable wrong against C, designed to bring about the breach of C's contract with D, and a breech has in fact occurred, it cannot be said that the breach has in fact been caused by A's wrongful act, and therefore D cannot, in my view establish as against A an actionable interference with his rights under his contract with C.
The defendants Briginshaw and Moncrieff are respectively the General Secretary and Northern District Secretary of NATSOPA, the union immediately concerned in the dispute with the plaintiffs. I am content to accept the learned judge's description of the part they played in the matter. Their concern was to put the maximum pressure on the plaintiffs in furtherance of NATSOPA's side of the dispute, end there is no doubt that they did advocate as a means of pressure the cutting off of the plaintiffs' supplies of paper and ink, and also (though this is not relied on for the purposes of the present motion) the prevention of the distribution of the plaintiff's publications. But the evidence does not appear to me to bring home to them anything more than general exhortations of the type to which I have already referred and which cannot, in my view, be properly regarded as amounting to persuasion, inducement or procurement of breaches of contracts of employment generally, still less of breaches by any particular employees of Bowaters or anyone else of their contracts of employment. There is no evidence that either of these defendants had knowledge of the existence of Bowaters' contract with the plaintiffs, or that they had in view the breach of that contract. As appears from what I have said above, it is not, in my judgment, enough to impute to them constructively knowledge that there must have been contracts of some kind or other between the plaintiffs and their suppliers of paper which or some of which might be broken in the event of employees of such suppliers breaking their contracts of service. Actual knowledge of the existence of a particular contract, an intention to bring about the breach of that contract, and unequivocal persuasion, inducement or procurement of the employees concerned to break their contracts of employment to the extent necessary to achieve that end, must, in my view, be shown; and, in my view, none of these things is shown so far as the defendants Briginshaw and Moncrieff are concerned. Moreover, Mr. Beyfus did not dispute that, gave as regards members of NATSOPA; the exhortations of these two defendants must be regarded as directed to securing support by other unions and inducing them to bring their members into action, rather than as directed to individual members of other unions with a view to securing independent action by them without instructions from the unions to which they respectively belonged.
I will next consider the cases of the defendants Deakin, Intin and Wood, who are respectively the General Secretary, the Regional Secretary (Region No. 6), and Trade Group Secretary (in the seme Region) of the Transport and General Workers Union, the union to which the lorry drivers employed by Bowaters Sales Company, Ltd., belong.
The evidence as regards these three defendants has been reviewed by my Lord and I will not take time by reading it over again. It is contained, on the plaintiffs' side, in the affidavit of Mr. Cassidy, Bowaters Sales Company Ltd's transport superviser at Ellesmere Port, and the affidavit of Mr. Botterill, Bowaters Sales Company Ltd's transport manager, and, on the defendants' side, the affidavit of the defendant Deakin, the affidavit of the defendants Intin and Wood and the affidavit of Mr. Lloyd, the shop-steward at Bowaters in charge of the drivers. In addition there are the two letters of the 25th April, 1952: one written by the Defendant Wood, to Mr. Botterill and the other by the defendant Wood to Mr. Lloyd, the shop-steward (a copy of the latter having been enclosed with the former); and there is also the exhibit to Mr. Lloyd on the 26th April, with Mr. Cassidy's permission.
The evidence of Messrs. Cassidy and Botterill might, if uncontradicted, conceivably suffice to make out a prima facie case for interlocutory relief against these three defendants; but it is not uncontradicted. An entirely different version of what took place is given by these three defendants and for the purposes of the motion I think that their evidence, which has not been replied to, must clearly be regarded as displacing any prima facie case which the evidence on the plaintiffs' side might otherwise have sufficed to establish, particularly as the evidence of these three defendants is supported by the letter and copy letter sent by the defendant Wood to Mr. Botterill and Mr. Lloyd's minute of what took place at the drivers' committee meeting.
Mr. Beyfus suggested that on these defendants' own evidence a case of persuading Bowaters (in the persons of Messrs. Botterill and Cassidy) to break the contract with the plaintiffs was made out. I cannot agree. The defendant Wood told Mr. Cassidy that in his (Wood's) opinion it would be unwise to send any more paper to the plaintiffs' works. The defendant Intin advised Mr. Botterill that he should not ask his men to load anything for Thomsons. Mr. Lloyd told Mr. Cassidy of the terms of the committee meeting's resolution, which was to the effect that, in view of what was happening it would be unwise to handle the plaintiffs' newsprint, the shop steward, Mr. Lloyd, being told to inform Mr. Cassidy to that effect. Messrs. Botterill and Cassidy accepted the view of the position taken by the defendants Intin and Wood and by the men's committee, and did not thereafter attempt to send any further loads to the plaintiffs or give any further orders for lorries to be loaded for or driven to the plaintiffs' works. It was not, so far as I can see, a case of yielding to persuasion or pressure; it was a case of avoiding a course of action which in circumstances by no means under the control of Bowaters' drivers was likely to cause trouble if pursued, and by no means necessarily trouble of the drivers' own making. The defendants Intin and Wood and Mr. Lloyd cannot fairly be said to have done any more than put the facts to Messrs. Botterill and Cassidy. Messrs. Deakin, Intin, Wood and Lloyd were not, as far as I can see on the evidence as it at present stands, concerned at all to bring about the breach of any contract between Bowaters and the plaintiffs, nor is there any evidence that they knew anything at all about any such contract. Their main object seems to have been to keep their union in general and Bowaters' drivers in particular out of trouble in what was plainly a difficult position for the latter, though no doubt it was also their wish to give such support as they properly could to NATSOPA in that union's dispute.
Further, it is not shown that the breach of Bowaters contract with the plaintiffs followed as a necessary consequence of the attitude of these particular drivers. Non constat that Bowaters could not have made other arrangements for delivery, had they thought it expedient to do so. But I find nothing in the evidence to suggest that they ever even attempted anything of the kind. Their passive attitude may well have been due to anxiety not to become embroiled in the dispute, but that is not to say that their breach of contract with the plaintiffs was caused by any unlawful action on the part of these three defendants.
There remains the case of the defendant Morrison, the Secretary of the National Union of Printing, Bookbinding and Paperworks, the union to which Bowaters' loaders belong. There is considerable force in Mr. Beyfus criticism of his evidence, and when the case comes to trial he may have some difficult questions to answer in cross-examination ; but on the evidence as it stands I cannot find even prima facie proof that he gave any instructions at all to Bowaters' loaders, still less any instructions to them amounting to persuading or procuring or inducing them to break their contracts of employment.
As to the supplies of ink, the employees concerned were NATSOPA members and as such under the aegis of the defendant Briginshaw; but the evidence as it stands on this part of the case to my mind leaves too much to the imagination to make it reasonably possible to infer that the defendant Briginshaw persuaded, induced or procured these employees to break their contracts of employment.
As regards Mr. Beyfus' allegation of a conspiracy amongst the defendants to do the various acts complained of as unlawful, I agree with my Lord that no such conspiracy is made out on the present evidence; and in any case I do not see how this allegation could assist the plaintiffs' claim for interlocutory relief, inasmuch as on the evidence as it now stands it does not appear to me that any unlawful act is brought home to any of the defendants individually or collectively.
Following my Lord's example, I do not propose to express any view on the effect of the defence based on section 3 of the Trade Disputes Act, 1906, which for the present purpose is, so far as I can see, the only point of substance arising under that Act. This is obviously a question of difficulty, which, having regard to the view I have formed of the position at common law on the facts at present available, it is unnecessary, for the purposes of the motion, to decide one way or the other.
LORD JUSTICE MORRIS: The decision in Lumley v. Gye, which was argued on demurrer, was that the principle governing an action for enticing away servants could be applied if it were proved that a defendant procured the breach of a contract to give professional services. In discussing the principle, Mr. Justice Erle expressed the view (see page 232) that the procurement of the violation of a right is a cause of action. In two of the counts of the declaration the word "maliciously" was used and in all three it was alleged that the defendant "enticed and procured" Miss Wagner.
When in Quinn v. Leathern Lord Macnaghten considered Lumley v. Gye he approved it, and did so not on the ground of malicious intention, which he said was not the gist of the action, but on the ground that a violation of legal right committed knowingly is a cause of action. He said that it is a violation of legal right to "interfere" with contractual relations recognised by law if there is no sufficient justification for the interference.
"But a person's liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffered from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact — in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified — the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done".
In tune with the opinions to which I have referred is the well established principle that an act which does not amount to a legal injury cannot be actionable because it is done with a bad intent. In his speech in Quinn v. Leathern Lord Macnaghten expressed the view that the headnote to Allen v. Flood might well have run in those words. In Allen v. Flood, at page 123, Lord Herschell said:
"It is certainly a general rule of our law that an act prima facie lawful is not unlawful and actionable on account of the motive which dictated it. I put aside the case of conspiracy, which is anomalous in more than one respect".
It is conceded in the present case that there is in existence a trade dispute. In so far as conspiracy is alleged, it is expressly disclaimed that there is any conspiracy or combination which has the injury of the plaintiffs as its real purpose. The motive or purpose of the defendants is to secure freedom for the employees of the plaintiffs to join a trade union and to dissuade the plaintiffs from continuing a ban on trade union membership, which the plaintiffs have for many years enforced,
With the competing viewpoints in regard to the controversy which is thus denoted this court is not and cannot be in any way concerned. Though no combination wilfully to injure the plaintiffs is alleged, so as to be actionable on the basis of Sorrell v. Smith, it is alleged that the defendants combined or conspired to commit the tort described in the writ as procuring a breach or breaches of contract.
When considering this part of the case it may be useful to have in mind the words of Lord Lindley at page 252 of his speech in the House of Lords in the case of South Wales Miners Federation v. Glamorgan Coal Company, when he said in reference to the law of conspiracy:
"But the possession of great power, whether by one person or by many, is quite as consistent with its lawful as with its unlawful employment; and there is no legal presumption that it will be or has been unlawfully exercised in any particular case. Some illegal act must be proved to be threatened and intended, or to have been committed, before any court of justice in the United Kingdom can properly make such conduct the basis of any decision".
Much debate took place during the hearing in regard to the nature and definition of the tort which the plaintiffs allege was committed by the defendants. The words used by Lord Macnaghten when expressing his reasons for approving the decision in Lumley v. Gye were adopted in this court by Lords Justices Romer and Stirling in the Glamorgan Coal Company case. Various words and phrases have been used at different times. Amongst them are the words "induce" and "procure". But the principle which underlies the matter is laid down by Lord Macnaghten and Lord Lindley. The tort is committed if a person without justification knowingly and intentionally interferes with a contract between two other persons. There must therefore be knowledge of the existence of contractual relations between others and the intentional commission without justification of some act which interferes with those contractual relations so as to bring about or procure or induce a breach resulting in damage. If A has a contract with B, the tort will be committed by X if there is a violation of the right B has under his contract by the intentional interference of X. If the contract between A and B is lawfully terminated, then there is no violation. In this context the notion of interference involves something wrongful. The breach of contract must be brought about or procured or induced by some act which a man is not entitled to do, which may take the form of direct persuasion to break a contract or the intentional bringing about of a breach by indirect methods involving wrongdoing. A clear illustration is furnished if X with knowledge persuades A to break his contract with B. The tort would also be committed if X with knowledge coerced A to break his contract. Infinite varieties of facts may occur calling for the application to them, when they are precisely ascertained, of the principles laid down. Thus if X with knowledge and intention forced A to break his contract with B by depriving A of his only possible means of performing the contract (as for example by removing the only available essential tools or by kidnapping a necessary or irreplaceable servant or by persuading a necessary and irreplaceable servant to break his contract) then probably in such cases the liability of X could be proved. In these illustrations I leave out of account the effect of the Trade Disputes Act, 1906.
Unless it is shown that some of the defendants combined and agreed together to do acts which included the commission of this tort, the enquiry resolves itself into considering how the matter stands in regard to each defendant separately. In my judgment, that enquiry does so resolve.
Two of the defendants were present at the meeting which took place on the 22nd April. Those present all agreed to do what they could to stop supplies for the plaintiffs and agreed to take what they regarded as common trade union action. I do not consider that the worst construction must be placed upon these resolves, so that it must be assumed that the objectives were to be reached by unlawful means. The purposes which the defendants sought to achieve were purposes which could be achieved by the adoption of lawful means.
The defendant Deakin states that after hearing that there had broken out a dispute between the National Society of Operative Printers and Assistants and its members, on the one side, and the plaintiffs, on the other, he asked the officials of the Transport and General Workers Union to give the employees' side to the dispute such assistance as they properly could, but he states that he gave no instructions that members were not to handle or move papers for delivery to the plaintiffs.
I cannot see that a case for interlocutory relief is made out. It cannot be assumed that this defendant knew of any contract between Bowaters Sales Company, Limited, and the plaintiffs or that he intended to bring about its breach. This defendant made no approach to the Bowater Company and did not ask anyone to make such an approach. It cannot be assumed that this defendant took steps to bring about a breach of the contract between the plaintiffs and Bowaters.
As regards the defendant Wood, he states that he spoke to Cassidy and expressed the view that, as the plaintiffs' works in Salford were being picketed, it would be unwise to send any more paper. The opinion of this defendant was that, whatever instructions the drivers received from their union, they would not have delivered the supplies when they found that the plaintiffs' works were picketed.
The defendant Intin states that he told Botterill that they intended to support the National Society of Operative Printers and Assistants where they properly could, but that they did not want Bowaters to be involved, and he advised Botterill not to ask the men to load anything for the plaintiffs.
In considering these matters it has to be remembered that, once the dispute had broken out relating to the plaintiffs and once the plaintiffs' premises were being picketed, there was a situation which was not of the creation of Deakin or Wood or Intin, but was one with which Bowaters had to reckon. If it be the case that the drivers would, apart from any advice or instruction to them from their union, refuse to deliver to picketed premises, then that also was a serious feature of the situation. Bowaters could have put the matter to the test by ordering the drivers to drive, but they did not. Bowaters may have feared interference with the vehicles and drivers from elsewhere if they sought to deliver paper.
It does not seem to me that Wood or Intin would have any knowledge of the contractual position between the plaintiffs and Bowaters, though they might guess or assume that a projected delivery would be pursuant to some contract. They would not necessarily know nor perhaps would they pause to speculate whether any projected future deliveries would be pursuant to some already existing contract.
The evidence of Wood as to the letter that he wrote to Lloyd cannot be disregarded, nor the evidence of Lloyd to the effect that the committee of the branch met. The decision was that, in view of what was happening, it would be unwise to handle the plaintiffs' newsprint.
In view of all these circumstances, I do not consider that it would be fitting on the present material to proceed on the basis that these defendants, Intin and Wood, had procured Bowaters to break their contract, either by way of some direct approach to Bowaters or by way of any persuasion of the drivers to break their contracts of employment.
In view of the conclusions which I have expressed, I do not find it necessary to deal with the question whether, if these defendants had induced the drivers to break their contracts of employment, the effect of Section 3 of the Trade Disputes Act, 1906, would be to exclude such conduct from the category of wrongful interference.
Mr. Gardiner took certain additional points. He submitted that it must be shown that there is not a mere breach of contract, but a repudiation of it. He submitted that, if the main elements of the tort were established, the defendants could show that there was justification for their interference; that before the tort can be committed the particular terms of the contract must be known; that Bowaters did not in fact break their contract with the plaintiffs.
I do not find it necessary for present purposes to deal with these contentions, it may be that the evidence in regard to the contractual position between the plaintiffs and Bowaters is not yet in all respects complete and, save to such extent as is unavoidable, it is undesirable in litigation to which Bowaters are not parties and in which they have not been heard to express views as to the contractual position.
As my Lords have fully analysed the evidence, I do not feel that any useful purpose would be served by my referring further to it. I have reached the same conclusions as my Lords and I am in accord with the reasoning they have expressed in their review of the facts.
MR. GARDINER: On behalf of the first three defendants, my Lords, I ask that the appeal may be dismissed with costs. Mr. Justice Upjohn ordered that the costs of the hearing before him be costs in the action. There was an application made at the time when nobody knew what exactly everybody's evidence was going to be; but this is an ordinary appeal from a decision of a learned judge, whose decision has been upheld, and I submit that it should be with the usual consequences.
MR. BEYFUS: It is a question for your Lordships' discretion. If in the action it should ultimately be held, when all the matters have been investigated, that my clients were right, it would be a little hard, would it not, that the defendants should receive the costs of this very necessary appeal on any aspect of the case? I ask your Lordships to make the costs costs in the action, in which case I shall only get them in the event of it turning out that I am right and that that which these defendants have sworn is not true.
(Their Lordships conferred).
MR. GARDINER: I would add in reply to what Mr. Beyfus has said that, if the plaintiffs succeed at the trial on the ground that the evidence put before the court by the defendants was not fully frank evidence, he will, quite rightly, get his costs before Mr. Justice Upjohn; but the fact will still remain, in my submission, that he ought not to get his costs of this appeal, because it would simply mean that he has wrongly appealed from a decision which on such materials as were before the learned judge was a correct decision.
THE MASTER OF THE ROLLS: We are all of opinion that the fair thing in this case would be that the defendants' costs of this appeal should be their costs in the action. If they win the action, they get them; but, if you win, you will not get yours, Mr. Beyfus.
Having regard to the very great importance of this case, not only to my clients, but its general importance, would your Lordships give my clients leave to appeal, so that they may consider whether to appeal or not?
THE MASTER OF THE ROLLS: We think it right to give leave to appeal, but to what extent you will be able to get the case dealt with in the House of Lords in the short time available is a matter about which I cannot help you.