England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.

		Royal Courts of Justice.
		30th July 1958.

(The Court did not call upon Mr. Harry Lester.)

LORD JUSTICE HODSON: This is an appeal by Plaintiffs who unsuccessfully applied for an injunction. The matter arises in this way: the Plaintiffs, who are the proprietors of the Scala Ballroom, are seeking to restrain the Defendants, who are officials of the Musicians' Union, from persuading or attempting to persuade any members of the Union not to perform at the Scala Ballroom, and from persuading or attempting to persuade any persons to refrain from employing any musicians on the ground that those musicians have played or agreed to play at the Scala Ballroom.

The ballroom was opened on 28th April 1958, by the Plaintiffs, who subsequently decided to deny admittance to coloured people. That was a course which they were entitled to adopt in their own business interests; but the reaction of the officials of the Musicians' Union was immediate as soon as the licence was granted by the licensing justices at Wolverhampton and publicity was given to that licence. The first defendant is the General Secretary of the Musicins' Union; the second defendant is the Assistant Secretary of the Union; and the third defendant is the Midland Area Organiser of the union. Some question arises in this case whether in any event the first Defendant is a party to the combination which has been alleged by the Plaintiffs, but it is unnecessary to discuss that matter further.

The second Defendant, who is, as I said, the Assistant Secretary, wrote to the Plaintiffs, saying on behalf of the union:

"Our attention has been drawn to press reports concerning your policy of racial discrimination as it will affect the clientele of your ballroom. According to these reports, coloured people are not permitted to enter the ballroom"

Then he challenged the use of the word "coloured".

The long-established policy of the Musicians' Union is strongly opposed to discrimination of any kind including, of course, racial discrimination, and, assuming the reports to be accurate, we hereby give you notice that members of the Musicians' Union will not be permitted to perform at the Scala Ballroom on any occasion so long as a policy of racial discrimination is maintained by its proprietors. Instructions are being issued accordingly, but, should you decide to abandon your policy of racial discrimination, please notify us immediately.

There were various contracts outstanding with the band leaders to perform at the ballroom. The question arose whether those contracts were being interfered with by the defendants, and on 2nd July the Plaintiffs issued their writ for damages for conspiracy and claiming an injunction restraining the Defendants from, inter alia, persuading or attempting to persuade any member of the Union not to perform at the Scala Ballroom, and with regard to existing contracts, an injunction was granted by Mr. Justice Havers on 9th July restraining the Defendants, their servants and agents, from procuring or attempting to procure any member of the Musicians' Union to break any contract to perform at the Scala Ballroom until the trial of the action or until further order. There was no appeal against that order, but the rest of the Summons was adjourned and came before Mr. Justice Diplock who refused to grant the injunction asked for, and in respect of that refusal this appeal has been brought.

This appeal calls for consideration of the law of conspiracy which was considered and very closely analysed by the House of Lords in the case of Crofter Hand Woven Harris Tweed Co Ltd v Veitch ([1942] AC 435). The claim in this case is that the Defendants have wrongly combined and conspired together to injure the plaintiffs in the way of their trade by preventing members of the union from playing at the Scala, and it has been necessary for the judges who have had to deal with this matter and for this court to consider the element of the tort of conspiracy as a civil wrong. Any decision arrived at on an application for an injunction is a provisional decision and it would be wrong to attempt to lay down in detail the law which is relevant to this case. I accept Mr. Le Quesne's submission that, if there is ia reasonable probability that he is entitled to the relief that he has claimed, this court would be ready to grant an injunction; and he submits, in support of his application, that the learned Judge's approach to this matter has not been correct. I must, therefore, refer to some extent to the Crofter case, where Lord Simon, pointed out, as indeed did Mr. Justice Diplock, that in order to make out their case Appellants "have to establish (a) agreement between the defendants (b) to effect an unlawful purpose (c) resulting in damage to the appellants.

The learned judge has found an agreement between the defendants, and he has also found resultant damage to the appellants. I think, as I read the affidavits, that there is prima facie evidence to support his finding. In doing so, he says, they - that is the defendants - "would necessarily injure the plaintiffs in their trade. But the remaining element is the one which always gives rise to difficulty in these cases, that which is under the heading (b), namely, ?to effect an unlawful purpose.

In one of the leading cases in the House of Lords, Sorrell v Smith ([1925] A.C. 700), Lord Cave, Lord Chancellor, at pages 711 and 712, after examining three cases in their Lordships' House, extracted certain principles and formulated two propositions, namely:

(1) A combination of two or more persons wilfully to injure a man in his trade is unlawful and, if it results in damage to him, is actionable. (2) If the real purpose of the combination is, not to injure another, but to forward or defend the trade of those who enter into it, then now wrong is committed and no action will lie, although damage to another ensues.

Their Lordships pointed out that those propositions do not necessarily cover the whole ground, and are in various cases difficult to apply. It is clear from the authorities and I accept the submission of Mr. Le Quesne that it is not necessary for him to prove malevolence. He submitted that there was here a combination to do acts which necessarily resulted in injury to the Plaintiffs' trade, and he submitted further that the combination was unlawful unless the real purpose was to protect the legitimate interests of the combiners. His argument was to the effect that one could equate interests with material interests, which might be described in other words as selfish interests, and he submitted that there was no real material selfish interest of the defendants to be safeguarded here.

In that connexion I will refer to some further language of Lord Simon. At page 444 he said:

However the origin of the rule may be explained, I take it to be clear that there are cases in which a combination of individuals to act in a certain way, resulting in deliberate damage to others, is actionable, even though the same thing, if done by a single individual without any element of combination, would not expose him to liability.

In dealing with what Mr. Le Quesne quite correctly called the legitimate interests of the Defendants, he said this:

I am content to say that, unless the real and predominant purpose is to advance the defendants' lawful interests in a matter where the defendants honestly believe that those interests would directly suffer if the action taken against the plaintiffs was not taken, a combination wilfully to damage a man in his trade is unlawful. Although most of the cases have dealt with trade rivalry in some form or other, I do not see why the proposition as to the conditions under which conspiracy becomes a tort should be limited to trade competition. Indeed, in its original sense, conspiracy as a tort was a combination to abuse legal procedure: WINFIELD, HISTORY OF CONSPIRACY, c. II. I have used the word 'directly' without seeking to define its boundaries as an indication that indirect gains, such as the subscriptions in the illustration above, would not provide a justification.

I think all their Lordships made it clear that there might be difficult cases for consideration where the interests which the defendants sought to protect were not business interests. We have been taken through a large part of the Speeches of all their Lordships and I think they all, or nearly all, touch on that aspect of the problem, and it is submitted by Mr. Le Quesne that the effect of the authority to which I have referred is that only in so far as what may be called in the narrow sense strictly material interests are concerned can the defendants say that they have lawful interests to protect.

Now, this question of a colour bar, of course, has very wide application, and it is submitted that there are no selfish or material interests for the Defendants to protect here. Their own employment is not, it is submitted on the evidence, in peril, and they are really seeking to prevent the Plaintiffs from carrying on their business in their own way by excluding from their ballroom people whom they wish to exclude. But I do not think that that is really the effect of the evidence. Mr Henry Francis Major, who was the second Defendant and was sued as Harry Francis, has sworn an affidavit in this matter, from which I quote:

A colour bar is a particularly dangerous form of discrimination in its effect on musicians since it tends to endanger their livelihood; it lowers the standards of the profession, and it creates friction in their relationship with one another. The fact that the colour bar is limited to the dancers in the 'public' dance hall and is not imposed on the musicians themselves is irrelevant because the insidious effects of the colour bar are the same. It is impossible for musicians to insulate themselves from their audience. The Musicians' Union has many coloured members some of whom are of great distinction and popularity. The feeling that they are welcome so long as they stay on the band platform, but that neither they nor their relatives would be permitted to go on to the dance floor is deplorable. In short it is considered by the Musicians' Union to be essential to the interests of its members that all manifestations of colour bar should be lawfully opposed as far as possible. The Plaintiffs recently achieved a degree of notoriety in connexion with their declared policy of excluding coloured people from their dance hall. In accordance with the declared policy of the Musicians' Union and with a view to the furtherance of the interests of its members, the third Defendant and myself sent the communications referred to in Mr. Wade's affidavit. In our view this is a trade dispute. We have no desire to injure the Plaintiffs in their business; on the contrary we wish them to prosper. The action we have taken has been directed solely to secure conditions of labour, vital to musicians. If we had done nothing, it would have appeared as though the colour bar policy of the plaintiffs was being condoned by the Musicians' Union and there would undoubtedly have been much bitterness amongst members and damage to the union.

I am not prepared, at any rate, for the purposes of this provisional opinion, to say that the interests which can lawfully be protected are confined to the material interests in the sense of interests which can be exchanged for cash. Lawful interests in my judgment may and I think do extend further than that; but, reading the affidavit, parts of which I have just read, it seems to me that prima facie, at any rate, the Defendants in this case, who represent the members of the Musicians' Union, which includes amongst its members a great many coloured people, have a lawful interest to protect in looking after their members' interests and, taking the long view, in looking after their livelihood as well.

Therefore I would agree, therefore, that the learned Judge was right. I have not referred to the particular way in which the learned Judge put the matter himself. It may be that he put the matter in a somewhat different way from the way in which I have put it; it may be that he was right and that his reasons are more satisfactory than mine, but at any rate, I come to the same conclusion.

Another matter was raised before the learned Judge and still remains open now, namely, the question whether the Trade Disputes Act of 1906 applies and whether the Defendants are in any event protected from any action by the provisions of that Act of Parliament. I express no opinion on that for we have not heard argument on that aspect of the case. The matter has been dealt with on the fundamental issue between the parties whether, apart altogether from the statutory defence which may be available to the Defendants, the Plaintiffs have made out a prima facie case on the merits entitling them to an injunction. I agree that they have not done so and I think therefore that this appeal should be dismissed.

LORD JUSTICE MORRIS: I agree.

In his speech in Crofter Lord Simon at page 445 said this:

If the predominant purpose is the lawful protection or promotion of any lawful interest of the combiners, it is not a tortious conspiracy, even though it causes damage to another person.

Assuming for present purposes that there was an agreement between the Defendants and that what was done pursuant to such agreement has resulted or will result in damage to the Plaintiffs, the question now to be considered is whether the agreement was in order to effect an unlawful purpose. It seems to me the evidence that is before us that it appears that the real purpose the real reason of any agreement or combination was to advance the interests of the Defendants and that the proof goes beyond showing that there was merely no purpose of injuring the Plaintiffs.

Mr. Le Quesne has forcibly submitted that it should be shown that the purpose of the defendants involved some material advantage to them. If the matter is approached on that basis, then it seems to me that passages in the affidavit of Mr Francis suggest that the Defendants honestly believe that material advantage to their members is involved. But it seems to me that if the Defendants honestly believe that a certain policy is desirable and that it is the wish of their members that that policy should prevail and that there should be no colour bar discrimination, it can be said that the welfare of the members is being advanced, even though it cannot be positively translated into or shown to be reflected in detailed financial terms.

It is unnecessary at the present stage to express final and concluded opinions in regard to these matters, but in my judgment, on the material before us, it would not be appropriate that the injunction which is sought should be granted.

LORD JUSTICE SELLERS: I agree. Notwithstanding the forcible and interesting argument of Mr Le Quesne, I do not think that a prima facie case has been made out and I have nothing to add to the reasons which my Lord has given.

Appeal dismissed with costs.