England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/01/2011

Mr Justice Holroyde :

1. The Claimant ("LUL") operates the London underground railway network. The majority of the persons whom it employs to operate (or drive) the underground trains are members of the Defendant union ("ASLEF"). A dispute arose between the parties as to the rates of pay for those working on Boxing Day 2010. As a result of a ballot taken between the 24^th November and 13^th December 2010 ("the ballot"), ASLEF intended that its members should strike on Boxing Day. On the morning of 23^rd December LUL issued proceedings against ASLEF claiming an injunction and damages as final relief. LUL also issued an application for an interim injunction restraining ASLEF from inducing, procuring or persuading LUL's employees to break their contracts of employment, and requiring ASLEF to take all reasonable steps to cancel any call for strike action on the 26^th December. I heard that application on the afternoon of 23^rd December. Despite the very limited time which had been available for preparation, the submissions of counsel on both sides were of the highest order, and were of great assistance to me. At the conclusion of the hearing I dismissed the application. It was then about 6pm, and it was not practicable to give my reasons at that stage. I indicated that I would do so in writing as soon as practicable. These are my written reasons.
2. relevant law is as follows. An employee who goes on strike, thereby showing a refusal to work, commits a breach of his contract of employment. In principle, a trade union which calls upon its members to strike induces them to act in breach of contract, and thereby commits a tort. However, the law has for a long time recognised legitimate industrial action by granting protection to a trade union which acts in accordance with statutory conditions. A trade union is immune from liability for the tort of inducing breach of contract if it (a) acts in furtherance of a trade dispute and (b) has complied with a number of statutory obligations. By virtue of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA") those obligations include obligations as to the proper notification of certain matters to the employer.
3. In the present case, it was common ground that the relevant actions of ASLEF were carried out in furtherance of a trade dispute. Thus there was no dispute before me as to the first of those conditions. The issue between the parties related to the second. LUL's submission was that ASLEF had failed to give the necessary notice and that accordingly the proposed Boxing Day strike would be unlawful.
4. Before considering that submission in detail, I must refer to two other parts of the legal framework within which the hearing was conducted. Firstly, it was common ground that this was an application for an interim injunction, to which s221(2) of TULRCA applied:

"Where –

(a) an application for an interlocutory injunction is made to a court pending the trial of an action, and

(b) the party against whom it is sought claims that he acted in contemplation or furtherance of a trade dispute,

the court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that party's succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219 …"

5. Secondly, in deciding whether LUL was entitled to an injunction, the court was not concerned with what might be referred to as the merits of the industrial dispute. LUL relied on a statement by Mr Howard Collins, its Chief Operating Officer, which set out very clearly the severe disruption of the underground service, and consequent severe inconvenience to passengers, which would inevitably result from a strike on one of the busiest days of the year. Understandably, Mr Segal did not seek on behalf of ASLEF to dispute that evidence. Nor did he seek to dispute LUL's submission that damages would not be an adequate remedy if ASLEF was unable to establish a defence. The focus of his argument was the submission that ASLEF was likely to establish a defence under s219, and that the application for an injunction should be refused for that reason. Implicit in his argument was the submission that if ASLEF would be likely to succeed in establishing its statutory immunity, those unhappy consequences for the travelling public must be regarded as the consequences of a lawful strike.
6. I turn now to the specific statutory provisions which were the focus of the submissions before me.
7. By s219 of TULRCA -

"(1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only—

(a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or

(b) …

(2) An agreement or combination by two or more persons to do or procure the doing of an act in contemplation or furtherance of a trade dispute is not actionable in tort if the act is one which if done without any such agreement or combination would not be actionable in tort.

…

(4) Subsections (1) and (2) have effect subject to sections 222 to 225 (action excluded from protection) and to sections 226 (requirement of ballot before action by trade union) and 234A (requirement of notice to employer of industrial action); and in those sections "not protected" means excluded from the protection afforded by this section or, where the expression is used with reference to a particular person, excluded from that protection as respects that person."

8. The effect of section 226 of TULRCA is that an act done by a trade union to induce a person to take part in industrial action is not protected unless the industrial action has the support of a ballot, and the trade union has complied with section 226A in relation to that person's employer.
9. Section 226A then sets out the requirements as to the union providing the employer with advance notice of the ballot and a sample voting paper. So far as is material for present purposes, and with my emphasis added, it reads –

"(1) The trade union must take such steps as are reasonably necessary to ensure that—

(a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2), and

(b) not later than the third day before the opening day of the ballot, the sample voting paper specified in subsection (2F),

is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.

(2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing—

(a) stating that the union intends to hold the ballot,

(b) specifying the date which the union reasonably believes will be the opening day of the ballot, and

(c) containing–

(i) the lists mentioned in subsection (2A) and the figures mentioned in subsection (2B), together with an explanation of how those figures were arrived at, or

(ii) where some or all of the employees concerned are employees from whose wages the employer makes deductions representing payments to the union, either those lists and figures and that explanation or the information mentioned in subsection (2C).

(2A) The lists are–

(a) a list of the categories of employee to which the employees concerned belong, and

(b) a list of the workplaces at which the employees concerned work.

(2B) The figures are–

(a) the total number of employees concerned,

(b) the number of the employees concerned in each of the categories in the list mentioned in subsection (2A)(a), and

(c) the number of the employees concerned who work at each workplace in the list mentioned in subsection (2A)(b).

(2C) The information referred to in subsection (2)(c)(ii) is such information as will enable the employer readily to deduce–

(a) the total number of employees concerned,

(b) the categories of employee to which the employees concerned belong and the number of the employees concerned in each of those categories, and

(c) the workplaces at which the employees concerned work and the number of them who work at each of those workplaces.

(2D) The lists and figures supplied under this section, or the information mentioned in subsection (2C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1)(a).

(2E) For the purposes of subsection (2D) information is in the possession of the union if it is held, for union purposes–

(a) in a document, whether in electronic form or any other form, and

(b) in the possession or under the control of an officer or employee of the union.

(2F) The sample voting paper referred to in paragraph (b) of subsection (1) is–

(a) a sample of the form of voting paper which is to be sent to the employees concerned, or

(b) where the employees concerned are not all to be sent the same form of voting paper, a sample of each form of voting paper which is to be sent to any of them.

(2G) Nothing in this section requires a union to supply an employer with the names of the employees concerned.

(2H) In this section references to the "employees concerned" are references to those employees of the employer in question who the union reasonably believes will be entitled to vote in the ballot.

(2I) For the purposes of this section, the workplace at which an employee works is–

(a) in relation to an employee who works at or from a single set of premises, those premises, and

(b) in relation to any other employee, the premises with which his employment has the closest connection …"

10. The category of employees mentioned in s226A(2)( c)(ii) was referred to by the parties before me as those employees who pay their union dues by check off. The practical significance of the distinction between check off and non-check off employees is that in relation to the former category an employer is to some extent able to cross-check information provided by the union, because the employer will necessarily have the information as to how many check off employees there are at a particular workplace. Hence the distinction between the two categories which is drawn in sub-section (2) ( c) for the purpose of the notice requirements. In the present case, however, the distinction did not give rise to any point on which either party relied, and it is therefore unnecessary for me to refer to it in further detail.
11. Once a ballot has taken place, and has resulted in a vote in favour of industrial action, section 234A sets out the requirements as to the union providing the employer with advance notice of that industrial action. So far as is material for present purposes, and again with my emphasis added, it reads –

"(1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action is not protected as respects his employer unless the union has taken or takes such steps as are reasonably necessary to ensure that the employer receives within the appropriate period a relevant notice covering the act.

(2) Subsection (1) imposes a requirement in the case of an employer only if it is reasonable for the union to believe, at the latest time when steps could be taken to ensure that he receives such a notice, that he is the employer of persons who will be or have been induced to take part, or continue to take part, in the industrial action.

(3) For the purposes of this section a relevant notice is a notice in writing which—

(a) contains–

(i) the lists mentioned in subsection (3A) and the figures mentioned in subsection (3B), together with an explanation of how those figures were arrived at, or

(ii) where some or all of the affected employees are employees from whose wages the employer makes deductions representing payments to the union, either those lists and figures and that explanation or the information mentioned in subsection (3C), and

(b) states whether industrial action is intended to be continuous or discontinuous and specifies—

(i) where it is to be continuous, the intended date for any of the affected employees to begin to take part in the action,

(ii) where it is to be discontinuous, the intended dates for any of the affected employees to take part in the action.

(3A) The lists referred to in subsection (3)(a) are–

(a) a list of the categories of employee to which the affected employees belong, and

(b) a list of the workplaces at which the affected employees work.

(3B) The figures referred to in subsection (3)(a) are–

(a) the total number of the affected employees,

(b) the number of the affected employees in each of the categories in the list mentioned in subsection (3A)(a), and

(c) the number of the affected employees who work at each workplace in the list mentioned in subsection (3A)(b).

(3C) The information referred to in subsection (3)(a)(ii) is such information as will enable the employer readily to deduce–

(a) the total number of the affected employees,

(b) the categories of employee to which the affected employees belong and the number of the affected employees in each of those categories, and

(c) the workplaces at which the affected employees work and the number of them who work at each of those workplaces.

(3D) The lists and figures supplied under this section, or the information mentioned in subsection (3C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1).

(3E) For the purposes of subsection (3D) information is in the possession of the union if it is held, for union purposes–

(a) in a document, whether in electronic form or any other form, and

(b) in the possession or under the control of an officer or employee of the union.

(3F) Nothing in this section requires a union to supply an employer with the names of the affected employees.

(4) For the purposes of subsection (1) the appropriate period is the period—

(a) beginning with the day when the union satisfies the requirement of section 231A in relation to the ballot in respect of the industrial action, and

(b) ending with the seventh day before the day, or before the first of the days, specified in the relevant notice.

…

(5C) In this section references to the "affected employees" are references to those employees of the employer who the union reasonably believes will be induced by the union, or have been so induced, to take part or continue to take part in the industrial action.

(5D) For the purposes of this section, the workplace at which an employee works is–

(a) in relation to an employee who works at or from a single set of premises, those premises, and

(b) in relation to any other employee, the premises with which his employment has the closest connection … "

12. Turning to the facts of this case, I was provided with copies of the notices which ASLEF sent to LUL in pursuance of those statutory obligations. The ballot notice - that is, the advance notice of the ballot - was sent on 16^th November 2010 in a letter which included the following paragraph (again, with my added emphasis):

"Members to be balloted:

(a) All train operators and instructor operator members of ASLEF employed by you and paying their membership subscription by check off at Acton …[there followed a list of the underground stations concerned]

(b) Members of ASLEF as detailed in the attached list which sets out

(i) The categories to which the employees concerned belong; and

(ii) The workplaces at which the employees concerned work.

The lists and figures accompanying this notice were arrived at by retrieving information from the union's membership database as to the categories and workplaces of members, and the numbers in and at each, the database having been audited and updated for the purpose of the statutory notification and balloting requirements to ensure accuracy. The lists and figures supplied are as accurate as is reasonably practicable in the light of the information in the possession of the union at the date this notice is given."

13. The attached "List of members to be balloted" indicated an intention to ballot 777 ASLEF members employed by LUL: 737 train operators, and 40 instructor operators. It then set out the numbers of members employed at each station, with an indication of how many were train operators and how many were instructor operators. By way of example: "42 are employed in total at Arnos Grove as follows: 39 train operators, 3 instructor operators".
14. LUL did not raise any objection to the form or content of that notice at the time of its receipt. Nor did LUL request any clarification or further detail of the explanation given, or suggest that any was necessary.
15. The ballot was thereafter conducted, and resulted in a vote for strike action. It was not suggested by LUL that there was any error or impropriety in the actual conduct of the ballot.
16. The strike notice – that is, the notification of that industrial action - was given by letter dated 14^th December 2010. This letter indicated that ASLEF intended to call upon "the members described below" to take part in industrial action. There followed a paragraph which was identical in all material respects to the paragraph which I have quoted in paragraph 12 above.
17. The strike notice was accompanied by a "List of members taking part in industrial action". This was in the same form as the list which had accompanied the ballot notice, and to which I have referred in paragraph 13 above. However, whereas the ballot notice had indicated an intention to ballot 777 ASLEF members, this strike notice indicated an intention to call upon a total of 775 members to take part in industrial action: 736 train operators and 39 instructor operators. From a simple comparison of the two letters it could be seen that the difference between the two lists was explained by changes in the numbers of members at 12 of the stations listed.
18. Again, LUL did not raise any objection to the form or content of that notice at the time of its receipt. Again, it neither sought clarification or greater detail, nor suggested that any was necessary. A few days later, however, Ramsey J gave judgment in an unrelated case, London and Birmingham Railway Ltd t/a London Midland v ASLEF. I shall refer below to the relevant aspects of what Ramsey J said in that case ("the London Midland case"), but its immediate significance was that it prompted LUL to issue proceedings in this case and to make this application for an interim injunction. Mr Segal, on behalf of ASLEF, was critical of what he submitted was an opportunistic reliance on the London Midland case by LUL to justify the making of this application at a time which was so close to the date of strike action as to give rise to real difficulties for ASLEF in opposing it. The fact that the application was made when it was undoubtedly did have consequences for the evidence which was available before me, as will become apparent. However, it seems to me that it is by no means unusual for a decision in one case to prompt an immediate reappraisal of their positions by the parties in another, unrelated case. Nor is it unknown in such circumstances for the conclusion to be reached that a valid point had simply been missed. I therefore rejected the submission that the timing of the application was in a pejorative sense opportunistic.
19. Both the ballot notice and the strike notice plainly did provide the lists and figures required by sub-sections (2A) and (2B), and (3A)and (3B), of sections 226A and 234A respectively. The principal issue between the parties was as to whether either or both notices also provided the required " explanation of how those figures were arrived at". The evidence on which LUL relied in this regard was contained in particular in paragraph 15 of Mr Collins' statement:

"The statement made by ASLEF tells London Underground nothing whatever about how the database has been compiled or maintained, how it was updated, or how the non-check off figures were derived from it."

20. Both parties referred me to passages in the judgments of three cases. I shall consider those cases in chronological order.
21. In Metrobus Ltd v Unite the Union [2010] ICR 173, [2009] EWCA Civ 829 the Court of Appeal heard an appeal by the trade union concerned against the granting of an interim injunction to restrain industrial action. In that case the union had supplied the employer with the figures required by the statute. It was however conceded that in relation to non-check off employees the ballot and strike notices had not provided any explanation of how those figures had been arrived at. The judge at first instance had concluded that the union had failed to comply with its statutory obligations under TULRCA, and was therefore unlikely to establish immunity from liability under s219. The union appealed on grounds which included the contention that the statutory restrictions presented obstacles for unions which precluded the effective exercise of rights of association under Article 11 of the European Convention on Human Rights. The appeal was unsuccessful.
22. In the course of his judgment, Lloyd LJ referred at para 69 to the evidence which had been before the judge as to the steps which had been taken in order to comply with the statutory notice requirements. The ballot and strike notices had not given any explanation of how the relevant figures had been arrived at. By the time of the hearing before the judge, however, a witness named Sandra Evans had made a statement in which she had said:

"3. With regard to the Metrobus postal ballot, approximately a month before the ballot commenced it was necessary for me to check membership details, so that members to be balloted could be identified. During this period numerous telephone calls were made between branches so that any queries with regard to the membership list could be dealt with. The membership list confirmed that 776 members paid by check-off and 69 members paid by other means.

4. Once the administration referred to in paragraph 3 above had been finalised, the postal ballot was held and it was successful "

23. At para 93 of his judgment Lloyd LJ said -

"One question which arises is what is the point of the explanation, and what is achieved for the employer by providing it. It could, no doubt, be provided in fairly anodyne terms, referring to having started with the membership records kept at whatever is the relevant level in the union, and having arranged for the data to be checked locally for any recent changes. [Counsel for Metrobus] made two points on this. First, in general terms, he said that the requirement to provide an explanation is a discipline for the union, so as to ensure that it has gone through the necessary processes. Secondly, as regards the particular facts of this case, he relied on the passages from Sandra Evans's evidence, to which I have referred at para 69 above, as indicating the steps in fact taken, which he submitted should have been described or summarised. More generally, the point of the information which has to be given to the employer is to enable it both to respond substantively to the proposed ballot and to an eventual strike call, if it wishes to do so, and to make preparations for the contingency of a number of its employees taking industrial action if there is a strike call. For the latter purpose, in particular, it needs to know as best it can what numbers of workers are likely to be affected, in what categories of employee and at which workplaces. For check-off employees it will have the necessary information but for others it will not, and it may be relevant for it to have some idea of how reliable the union's records are, so that it can allow for contingencies and variables in its preparations."

24. Lloyd LJ went on to state his conclusions as follows at paras 110 – 112:

"…it seems to me that, in principle, it is not unreasonable for a trade union, when supplying information derived from its own sources, to be obliged to say something about how the information supplied has been arrived at. The contrast with check-off employees, for whom the employer can refer to its own payroll records, is clear and legitimate. Paragraph 16 of the 2005 Code of Practice , quoted at para 91 above, illustrates the fact that there may well be a need for some explanation in order that an employer should be able to understand something about the degree of reliability of the data supplied. It also gives advice as to what should be provided by way of an explanation.

111 It is relevant in this context that the Employment Relations Act 2004 amendments included provisions, at section 226A(2D) and (2E) , and correspondingly in section 234A , which limit the obligation imposed on a union in this respect, by a reasonable practicability criterion and by defining restrictively the information which is deemed for this purpose to be in the possession of the union. The latter, in particular, bears on the obligation to provide an explanation, because it limits the process which has to be undertaken, and therefore has to be explained, to the information so defined, and makes it what might be called a reasonable endeavours process.

112 Assessing the requirement imposed by sections 226A and 234A in this light, and with regard to the particular problem identified in this case, it does not seem to me that the obligation to provide an explanation of the figures, understood as I have explained it, can be said to be unreasonable, excessively onerous or disproportionate. It is not difficult to comply with. In the present case the process described by Sandra Evans in her witness statement is what should have been explained. There are legitimate reasons for requiring an explanation. On the one hand, the employer cannot rely on its own information for non-check-off employees, and can reasonably expect some description of the process undertaken by the trade union to get at the figures, especially given the sort of problems that may exist with union membership records that are alluded to in the 2005 Code of Practice . On the other hand, it is reasonable to require the trade union to explain itself, in order to reinforce the obligation to undertake the process properly in the first place."

25. That Court of Appeal authority is of course binding upon me, and I have followed it in reaching my decision.
26. In Network Rail Infrastructure Ltd v The National Union of Rail, Maritime and Transport Workers [2010] EWHC 1084 (QB) – to which I shall refer as "the Network Rail case" - Sharp J had to consider an urgent application on 1^st April 2010 for an interim injunction to prevent strike action between 6^th and 9^th April. She granted the injunction, because she concluded that there was clear and convincing evidence that the union would be unlikely to establish their statutory immunity if the matter went to trial (see para 5). In that case, the employers had identified a number of deficiencies in the union's discharge of its statutory obligations. The lawfulness of the strike action had been challenged by the employer as soon as the result of the ballot was received from the union. Detailed material supporting that challenge had been provided to the union, before the strike notice had been served. Before the judge, one of the grounds of objection put forward by the employer related to the "explanation of how those figures were arrived at" which had been put forward in the ballot and strike notices. The explanation was in terms closely similar, if not identical, to those used in this case. Counsel for Network Rail (Mr Béar QC) submitted that the explanation did not set out the steps which the union had in fact taken; that the explanation did not explain why the workplaces of a number of union members had been listed as "unknown"; and that none of the steps which had been taken involved anything which could properly be described as an audit of the database. He submitted that the explanation was "a formulaic mantra" which fell short of the statutory requirement.
27. Sharp J's judgment in relation to this aspect of the case was expressed in the following terms at paras 59 – 60:

"I do not consider, as Mr. Béar has suggested, that the word 'audit' necessarily connotes that a process has been undertaken independently of the RMT. But nonetheless there is no suggestion in the evidence before me that the information in the Ballot Notice, or the Strike Notice for that matter, was in fact subjected to a separate and systematic scrutiny or, indeed, that this occurred even in relation to a sample by way of a spot check. The words used matter, as Lloyd LJ explained in Metrobus , because a union's obligation to explain itself serves a purpose — that is, to reinforce the obligation to undertake the process properly in the first place.

60. In my judgment, the information that was provided by way of explanation is such that Network Rail has a clear case (in addition to the other matters to which I have referred) on this discrete ground that the RMT is unlikely to succeed at trial in bringing itself within this statutory defence. What is an appropriate explanation obviously depends on the context. But I do not regard the information that was provided in the case as a proper explanation for the process that has been undertaken; and it seems to me there is considerable substance in Mr. Béar's submission that the information provided by the RMT and the process it described was a conclusion rather than an explanation."

28. Turning to the London Midland case, I was told that (unsurprisingly) the official transcript of the judgment of Ramsey J was not yet available. The parties were however able to provide me with a note of the judgment, albeit one which did not purport to be a verbatim record. On 21^st December 2010, London Midland had applied for an interim injunction against ASLEF in order to prevent a strike of train drivers on 23^rd December. The "explanation of how those figures were arrived at" with which Ramsey J was concerned was again in terms identical to those which I have to consider. Ramsey J referred to Sharp J's use of the phrase "a conclusion rather than an explanation". He summarised the authorities to which he had been referred as showing that the statutory requirement had a two-fold purpose: firstly, to indicate to the employer the reliability of the figures; and secondly, because the need to give a proper explanation makes it more likely that a proper process would be followed by the union.
29. The evidence before Ramsey J in that case included a statement by an ASLEF District Organiser Mr Whelan. A copy of that statement was made available to me in the present case. In paragraphs 23 – 29, Mr Whelan gave a detailed description both of the system by which ASLEF maintained and updated its membership records, and of the specific action taken before the ballot in that case. So far as the general system was concerned, Mr Whelan's statement referred in paragraphs 25 and 27 to particular processes being carried out on a monthly basis for "London Midland and the other train operating companies".
30. Ramsey J took the view, on the evidence before him in that case, that there were inaccuracies in the information which the union had provided, such as to indicate that there had been a lack of proper checking and auditing. He concluded that on the facts, the explanation which had been provided was not a proper explanation of the steps taken and the time required to take those steps, and that accordingly the union was unlikely to be able to establish the statutory immunity from liability.
31. As I understand it from the submissions in the present case, Ramsey J considered the use of the phrase "audited and updated", and took the view that an "audit" required a separate and systematic audit and some sort of checking on basic data. He felt it was clear that certain mistakes would not have occurred if such an audit had taken place, though he added that this point on its own would not have had great strength. However, an issue had been raised in correspondence as to the accuracy of this part of the note of the judgment which was provided to me. It seemed to me that on this particular point I had to be very mindful of the fact that the note was not taken down verbatim, and I did not feel able to rely on it as a complete and accurate record of what Ramsey J said.
32. As is apparent from those two recent decisions at first instance, the question whether a particular "explanation of how the figures were arrived at" satisfies the statutory requirement is one which depends on the evidence in the case under consideration.
33. In the present case, the principal submission of Mr Stafford QC on behalf of LUL was that in both the ballot notice and the strike notice, ASLEF had failed to provide "an explanation of how those figures were arrived at". He submitted that the paragraph common to both notices, which I have quoted in paragraph 12 above, was so bland that it was insufficient to fulfil the statutory requirement.
34. Mr Stafford's submissions also included the following:

i) Although the explanation given in the notices identified that the figures came from a database, it did not say anything about how and when that database had been complied or updated or audited.

ii) The reference to auditing was in any event incorrect, because that term connotes some sort of scrutiny or double-checking which had not in fact taken place.

iii) Further, if in reality the process was nothing more than the keeping of membership records, then is was misleading to speak of the figures being audited and updated "for the purpose of statutory notification and balloting requirements to ensure accuracy".

iv) For those reasons, the notices contained neither "an explanation" nor a true explanation. If the court were to accept such a bland formula as sufficient, it would defeat the important statutory purpose of providing a necessary discipline to ensure that unions comply with their obligations.

v) The very fact that an identical, or almost-identical, "explanation" had been given by RMT in the Network Rail case, and by ASLEF in the London Midland case and the present case, provided a clear indication that it was no more than a bland formula, and represented an impermissible "one size fits all" approach to the discharge of statutory obligations.

vi) In the present case, the "explanation" did not enable LUL to scrutinise the accuracy and reliability of the process by which ASLEF had arrived at the figures given in the notices. The basis of the process was nothing more than the membership records. It was not possible for LUL to ascertain what had been done, when it had been done, who had done it and what the results had been.

35. Mr Segal for ASLEF submitted to the contrary that ASLEF had complied with their statutory obligations and had given a sufficient explanation of how their figures were arrived at. He relied on the provision in both s226A(2G) and s234A(3F) of TULRCA which specifically provides that a union is not required to supply an employer with the names of the relevant employees. He pointed to the change in the total numbers of relevant employees between the dates of the two notifications, and the changes in the accompanying breakdown of those totals, as indicating that the explanation was not merely a bland formula. He also relied heavily on the evidential position at the hearing before me.
36. In order to understand that evidential position, it is necessary to repeat that LUL were prompted to bring this application by a consideration of the judgment in the London Midland case. Those advising LUL took the view that the evidence given by Mr Whelan in that case appeared to be evidence of a standard process likely to have been adopted for the purpose of the ballot in the present case. It was recognised that, mainly for historical reasons, LUL was not regarded as a "train operating company", but it was not thought that anything was likely to turn on that fact. Those advising LUL therefore felt that an inference could be drawn that the procedure adopted by ASLEF in relation to this strike was likely to have been the same as the procedure adopted by the same union in the London Midland case, and for that reason believed they could properly apply for an interim injunction on the basis of that suggested inference. Thus the application was made before me.
37. On behalf of ASLEF, Mr Segal complained that the union had received such short notice that it had not been able to obtain all the evidence it would have wished to put before me. He was however able to rely on a statement by Mr Steve Grant, a union organiser for the District which covers union members working on the London underground. Mr Grant's evidence included the following:

"22. We have a branch structure for meetings and democratic matters like elected delegates to our conference. The branch structure is location based. Due to the line based nature of LUL, members are also assigned to lines.

23. The vast majority of ASLEF members in District 8 work for LUL. Our Branches are nearly all one employer, ie LUL branches. This is very different from the situation in Mick Whelan's district, where there are multi-employer branches … This means that there are rare opportunities for members to be assigned on our membership database or records to the wrong employer.

24. Another important relevant difference between District 8 and other Districts in ASLEF is that historically there has been a two-union presence with RMT also having membership among train operators. Mr Collins says at para 7 of his statement that ASLEF has approximately 55-60% of drivers and I have no reason to challenge his figures.

25. At one time ASLEF's membership was less than this. What this competition means is that our representatives are acutely aware of maintaining regular checks on membership and are assiduous in checking the returns from head office and also undertaking spot checks to ensure that members are properly assigned to branch and line.

26. It is also important that we properly assign members to lines, as sometimes we have trade disputes which affect only one line. In the past we have had disputes on the Piccadilly and Northern lines, although these have not occurred this year. Obviously the possibility means that we need to spot check our records regularly."

38. Having described those differences between District 8 and other ASLEF Districts, Mr Grant at para 27 said this about the ballot in this case:

"Jane Pimlott in our industrial relations department is the contact for LUL and she is the person (rather than Tim Finch who performed a similar role in the London Midland case) who is responsible for taking the steps to ensure that our database is reviewed and then updated, for the purposes of this ballot."

39. It is unfortunate that that paragraph was not phrased as clearly as it should have been. However, Mr Segal told me on express instructions that its intended meaning was that Ms Pimlott did in fact take steps to ensure, for the purposes of this ballot, that the database was reviewed and updated. Mr Grant was able to give that evidence of his own knowledge, though he was not able to say precisely what steps Ms Pimlott took. I make it clear that in reaching my decision I accepted, and acted upon, Mr Segal's submission as to the intended meaning of paragraph 27 of Mr Grant's statement.
40. There was no statement from Ms Pimlott herself. Mr Segal explained to me certain practical difficulties which were said to have prevented any contact with her. I am bound to say that I was not greatly impressed by those difficulties, and did not feel that as much had been done as should have been done to contact her in the limited time available. It did however seem that she had left London for a Christmas holiday, and I did accept that ASLEF would for that reason have faced substantial difficulty in obtaining detailed evidence from her even if they had succeeded in contacting her.
41. It follows that paragraph 27 of Mr Grant's statement provided evidence that what might be referred to as a ballot-specific review and updating of ASLEF's database did in fact take place in relation to this ballot. There was no direct evidence to the contrary. Mr Segal emphasised that LUL had relied on an assumption that the process adopted by ASLEF in this case would have been the same as the process described by Mr Whelan in relation to train operating companies, but that assumption had been contradicted by Mr Grant's evidence. He submitted that LUL were in reality inviting the court to "read across" from the evidence in another case, merely because the wording of the statutory explanation was identical in each case. There could in his submission be no justification for doing so when the evidence in this case showed a different factual position.
42. From that starting point, Mr Segal made submissions which can be summarised as follows:

i) On the evidence, diligent efforts had been made to ensure that ASLEF's database was accurate and up to date.

ii) The explanation given in the ballot and strike notices was in fact accurate: ASLEF had provided LUL with information from its database; that database had been regularly and recently updated and checked in a manner which could fairly be described as an audit; and the main purpose of that auditing and updating had been to ensure compliance with the statutory notification requirements.

iii) LUL had not identified any respect in which the lists and figures were in fact inaccurate or incomplete. This case, accordingly, could be contrasted with each of the three cases to which reference has been made above: in the Metrobus case the relevant notices had provided no explanation at all; and in each of the two more recent cases the judge had found that on the facts the explanation was inaccurate and/or incomplete. There was nothing in this case to suggest that the explanation was "not a proper explanation" of the process which had in fact been undertaken.

iv) Although LUL sought support from the two recent decisions, the court had not found in either of those cases that an explanation in these terms was insufficient per se: in each case the finding was that the explanation was inaccurate on the facts, and therefore did not satisfy the statutory requirement. This was the first case in which a judge was being invited to find that the wording of the explanation was insufficient even if it were factually correct.

43. In reaching my decision on those competing submissions (cogently expressed on both sides), I came to the following conclusions:

i) The ballot notice and strike notice undoubtedly could have given more information than they did about how the figures had been arrived at. That, however, was not the question. The question was, whether ASLEF would be likely to succeed at trial in establishing that the explanation given was sufficient to satisfy the statutory requirement.

ii) The only direct evidence as to the process in fact adopted by ASLEF (as opposed to the process which LUL wrongly assumed had been adopted) showed that the explanation given in the notices was accurate in the circumstances of this case, and that there had in fact been a ballot-specific process of auditing and updating. In those circumstances, the fact that the explanation showed the process to have started with ASLEF's membership database did not provide a reason for regarding the explanation as insufficient.

iii) The fact that the explanation had not been shown to be inaccurate was not in itself determinative: a very bald explanation ("we checked") might well be accurate as far as it went, but nonetheless plainly insufficient to satisfy the statutory requirement. It was, however, a significant factor in ASLEF's favour.

iv) The purpose of the statutory requirement, as explained by Lloyd LJ in paragraph 93 of his judgment in the Metrobus case, shows that it is in the interests of an employer for the statutory requirement to be satisfied. That being so, the fact that LUL had neither complained when the notices were received that the explanation was unsatisfactory, nor subsequently shown any inaccuracy in the explanation, supported ASLEF's submission that the explanation was indeed sufficient to satisfy the statutory requirement in this case.

v) The fact that identical or near-identical wording had been found to be insufficient on different facts in other cases was not of itself a reason for regarding the explanation as insufficient in the circumstances of this case. I did not accept Mr Stafford's submission (para 34(v) above) to the effect that the giving of the same explanation in different circumstances was an indication that the explanation was too bland to be regarded as sufficient in any case. In my judgment, it was no more than an indication that the union concerned had been wrong to put forward that explanation in the circumstances of those other cases.

vi) As I have indicated in para 24 above, Lloyd LJ in the Metrobus case said at para 112 of his judgment that "the process described by Sandra Evans in her witness statement is what should have been explained". On a comparison of the explanation given in this case with the totality of the information provided by the evidence of Sandra Evans in that case, it seemed to me that the only potentially significant difference was that Sandra Evans mentioned that "numerous phone calls were made" during the period of "approximately one month before the ballot commenced". Notwithstanding Mr Stafford's forceful submissions, I concluded that that difference was not in the end so significant as to render the explanation insufficient in this case. It was not suggested that LUL would have been materially assisted by knowing whether the relevant checks involved telephone calls, face to face conversations or written communications. Given that the explanation in this case accurately referred to auditing and updating for the purpose of the statutory notification and balloting requirements, it clearly conveyed that the auditing and updating were recent. Moreover, the changes in the figures between the date of the ballot notice, and the date of the strike notice, also indicated very recent auditing and updating.

vii) More generally, it did not seem to me that Mr Stafford's submissions had identified any respect in which LUL would have wanted to make their own investigations but had been unable to do so because of the insufficiency of the explanation given in the notices. Nor had he identified any other action which LUL would have wanted to take but were unable to take because they had not been provided with a sufficient explanation. In my view, that was a feature of the case which gravely undermined his complaint that LUL had not been given a sufficient explanation of how the figures had been arrived at. If LUL had wished to make any further investigations or take any further action, it seemed to me that in the circumstances of this case they could reasonably have been expected to ask ASLEF immediately for the necessary further explanation.

viii) Adding to that last point the fact that LUL had made no complaint about the explanation in either notice until after Ramsey J had given his judgment in the London Midland case, it seemed to me that the inference to be drawn was that LUL had initially accepted the explanation as sufficient (notwithstanding the grave consequences of the proposed strike), and would have continued to do so but for a reappraisal of their position in the light of Ramsey J's judgment. If that reappraisal had given rise to a compelling point, the lateness of its emergence would not have been a necessary bar to the point succeeding; but the point which was taken proved to have been based on a mistaken assumption as to the facts.

ix) It was unfortunate that Ms Pimlott had not provided a statement setting out precisely what she did. However, I accepted Mr Segal's submission to the effect that it would be wrong to decide the case against ASLEF for that reason, given that so little time had been available to them in which to prepare, and given that the evidence of Mr Grant was able to cover a substantial proportion of the matters about which Ms Pimlott might have been asked to give evidence.

x) Although the nature of the hearing did not permit detailed submissions on this point, I was not persuaded that "auditing" was an inaccurate or misleading word to use in the circumstances of this case. The Oxford English Dictionary defines the verb "audit" as meaning "to make an official systematic examination of (accounts) so as to ascertain their accuracy". I respectfully agree with Sharp J's view (see para 27 above) that a union which refers to an audit does not necessarily imply thereby that some cross-checking has been carried out by a person or body independent of the union. It was my judgment that the use of the phrase "auditing and updating" was a fair description (though not the best description) of the process described in Mr Grant's evidence.

44. My overall conclusion was this. There were valid points to be made on each side, but the likelihood was that ASLEF would succeed at trial in showing that the explanation given in the notices was sufficient to comply with the statutory requirements, and so would succeed in establishing a defence under s219 of TULRCA. Thus it was likely that ASLEF would be able to show that their actions were lawful, whatever the resultant inconvenience to the travelling public. It would not have been right to grant an injunction to restrain a strike which was likely to be lawful. It was for those reasons that I concluded that the application for an interim injunction must be dismissed.
45. As will be apparent from all of the foregoing, I took the view that the sufficiency of the explanation depended on the evidence and could only be judged on an assessment of all the circumstances of the case. It follows that nothing I have said in this judgment should be regarded as determinative of the sufficiency of the same or a similar explanation in other circumstances.
46. At the conclusion of the hearing on the 23^rd December it was not practicable to consider any submissions as to costs, and neither party sought to address me on that or any other consequential order. If there are submissions to be made about any such matters, or if the court is to be asked to approve any consent order in that regard, I direct that submissions be made to me in writing within 28 days of the handing down of this judgment. I will then make an order without a hearing, or if necessary direct a further short hearing.