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
		16 February 2012

Mr Justice Eady :

1. On 7 and 8 February 2012 I heard an application by Balfour Beatty Engineering Services Ltd ("BBES") for an interim injunction against Unite the Union ("Unite"), seeking an order in the following terms:

"1. The Defendant must not, until trial or further order, whether by any official, officer, servant, agent or local Branch, or otherwise howsoever induce, call for, authorise or support any form of industrial action whether in the form of strike action or short of a strike in reliance upon the ballots it conducted between 19 January 2012 and 2 February 2012 of which notification was supplied to the Claimant on 12 January 2012;

2. The Defendant must not otherwise seek to induce its members employed by the Claimant to take [any form of] industrial action, whether in the form of strike action or short of a strike, unless and until it has properly complied with the balloting requirements contained within Part V of the Trade Union and Labour Relations (Consolidation) Act 1992."

2. It is unnecessary to go into the issues of the industrial dispute, but it relates to the organisation of the construction industry and the collective bargaining arrangements within it. These are complicated by a number of factors and, in particular, by the divide between the electrical and mechanical trades. For some time, the Joint Major Contractors Group (supported by the two major employers' bodies) has been concerned to effect changes to the industry in the interests of what it perceives to be modernisation. In July 2010 a working party was set up to draft an agreement that was supposed to fit the needs of major contractors with multi-skilled workforces. It produced the Building and Engineering Services National Agreement ("BESNA"), of which one of the main features is to introduce a new semi-skilled installer grade. This is regarded as contentious by Unite, which considers that it would mean a reduction in the work available for skilled electricians. At the risk of over-simplification, I can say that this is one of the principal topics in the current dispute.
3. Although the application is for interim relief, it has long been recognised that the usual test based on American Cyanamid Co v Ethicon Ltd [1975] AC 396 is inappropriate in such circumstances because the outcome can often be, in effect, determinative of the relevant union's opportunity to take industrial action. This recognition has been embraced in the provisions of s.221 of the Trade Union and Labour Relations (Consolidation) Act 1992 (as amended). It requires that the court take into account, on any such application, the likelihood of the union establishing a trade dispute defence following a full trial. It is not always easy to form a judgment about the outcome of a case at an early stage and, in particular, when the court is confined to only partial or inchoate evidence. Nevertheless, as with the provisions of s.12(3) of the Human Rights Act 1998, that is the test which Parliament has set. It is thus clear that no applicant in this Claimant's position can expect to succeed in obtaining interlocutory relief merely by showing (i) that there is a serious issue to be tried, (ii) that the balance of convenience lies in its favour and (iii) that it is likely otherwise to suffer harm which cannot be adequately compensated for in damages.
4. If the court concludes after such an inquiry, however difficult, that the union in question is likely to establish the trade dispute defence following a full trial, that does not necessarily conclude the issue of whether to grant an interim injunction. Nevertheless, it is likely to be in exceptional cases only that the court, having reached such a conclusion, will go on to grant relief: see e.g. Serco Ltd v National Union of Rail, Maritime & Transport Workers [2011] ICR 848, 854-855 at [13], per Elias LJ.
5. Almost all industrial action would be prima facie unlawful at common law: workers who withdraw their labour would usually be acting in breach of their contracts of employment. So too, those who call or organise a strike would be liable, in principle, for the tort of inducing a breach of contract. Because in modern times public policy recognises the importance of the "right to strike", it has been necessary to confer immunities from tortious liability, in certain circumstances, provided the action in question is intended to advance an industrial objective. The formula adopted is that protection will only be afforded if the industrial action is "in contemplation or furtherance of a trade dispute". In the current statute the relevant provision is contained in s.219.
6. The modern law requires that certain procedures be complied with before a trade union can obtain the benefit of the statutory immunity. The purpose is to try to ensure minimum standards of democratic legitimacy. Union members who are approached with a view to participating in strike or other industrial action must have the opportunity to vote in secret on whether they support it or not. The immunity only applies if, of those members voting, there is a simple majority in favour following a lawful ballot.
7. The 1992 Act was amended (by the Trade Union Reform and Employment Rights Act 1993) to impose an additional obligation on a trade union to give certain specified information to any employer likely to be affected by strike action concerning the scope of a proposed ballot, its outcome and any resulting call to its employees to take action. The effect of these statutory provisions is that a failure to comply with the obligations of notification would preclude any protection from tortious liability.
8. It was sometimes suggested in the past, because the protection for strike action in this jurisdiction was structured in terms of immunity from the general law, that the relevant legislation should be construed against those seeking to take advantage of it: see e.g. the observations of Lord Denning MR in Express Newspapers Ltd v McShane [1979] ICR 210, 218. On the other hand, it is now recognised since the advent of the Human Rights Act 1998, at least, that it is appropriate to construe the relevant statutory provisions in a way that is compatible with rights enshrined under the European Convention on Human Rights and Fundamental Freedoms. We have traditionally not recognised a right to strike, as such, but have adopted the mechanism of providing for immunities. On the other hand, the approach adopted in Strasbourg has been to recognise the right to strike as part and parcel of the right to freedom of association conferred under Article 11(1). Accordingly, the Court of Appeal in Serco Ltd v National Union of Rail, Maritime & Transport Workers, cited above, acknowledged that a presumption of adverse construction would be inappropriate. Thus, in the words of Elias LJ at [9], the legislation should simply be construed "in the normal way, without presumptions one way or the other". He referred to the words of Lord Bingham in P (A Minor) v National Association of School Masters/Union of Women Teachers [2003] ICR 386, at [7], who said that it was appropriate to give the provisions of the 1992 Act a "likely and workable construction".
9. Otherwise, it is probably an accurate statement of the law to say that the legislation on industrial action in this jurisdiction should be interpreted in accordance with our normal canons of construction and without any need to have resort to Article 11: see e.g. Metrobus v Unite [2010] ICR 173, CA.
10. Another aid to construction in this statutory context is brought to bear by reason of s.207 of the 1992 Act, which provides that the court needs to take into account any relevant code of practice. It is agreed by the parties, therefore, that it is appropriate to have regard to the 2005 Code of Practice on industrial action, ballots and notice to employers. My attention was drawn by Mr Carr QC, in particular, to the following paragraphs of this code:

"Ensuring secrecy of voting

39. Any list of those entitled to vote should be compiled, and the voting papers themselves handled, so as to preserve the anonymity of the voter so far as this is consistent with the proper conduct of the ballot.

40. Steps should be taken to ensure that a voter's anonymity is preserved when a voting paper is returned. This means, for example, that:

envelopes in which voting papers are to be posted should have no distinguishing marks from which the identity of the voter could be established; and

the procedures for counting voting papers should not prejudice the statutory requirement of secret voting."

11. As the Claimant's draft order records, a ballot was carried out of some Unite members between 19 January and 2 February of this year in order to see whether they wished for industrial action to be taken. This followed shortly after a balloting process which had begun in November 2011 and was later abandoned. The Claimant's challenge to the latest ballot in these proceedings is based upon allegations of non-compliance with the requirements of ss.226-232 of the 1992 Act and specifically with regard to s.230. Underlying these statutory requirements is Parliament's intention " … to ensure fair dealing between employer and union and to ensure a fair, open and democratic ballot": British Airways Plc v Unite [2010] ICR 1316, 1342 at [152], per Smith LJ. It is important to keep that principle in mind.
12. As emerges from a number of recent appellate authorities, it is also important not to approach the statutory requirements and disciplines of the balloting procedures in a way which leads to rigidity. It is clear that Parliament intended that the practical realities should be taken into account and, in particular, the difficulties from a trade union's point of view of maintaining records of members which are completely accurate and up to date. Indeed, this has been acknowledged in the drafting. For example, it is provided by s.230(2) that every person who is entitled to vote in the relevant ballot must have a voting paper sent to him at his home address, or any other address which he has requested the trade union to treat as his postal address. He must also be given a convenient opportunity to vote by post. It is necessary to note, however, that these requirements are expressly stated to be subject to what is "reasonably practicable".
13. The practical difficulties of record keeping were referred to in P (A Minor) v National Association of Schoolmasters/Union of Women Teachers, cited above, where Lord Walker made the following observations at [65]:

"Every trade union is required by law to maintain a register of its members (see section 24 of the 1992 Act). But it is a fact of life that no trade union of any size can keep completely full and accurate records of the names and addresses of its ever-changing body of members, still less their current places of work, trade categories and pay grades … "

This highlights the need to make due allowance for these realities by reference to what, in the particular circumstances, may be regarded as reasonably practicable.

14. Bearing in mind these provisions for flexibility, I must consider the nature of the primary criticisms made of the union's balloting procedures on the present application. It is submitted that, contrary to the provisions of s.230 of the 1992 Act, the opportunity to vote was not extended to all those entitled to do so; and/or that the ballot was not conducted so as to ensure that those voting were able to do so in secret.
15. The immediately relevant wording is as follows:

" …

(2) Except as regards persons falling within subsection (2A), so far as is reasonably practicable, every person who is entitled to vote in the ballot must –

(a) have a voting paper sent to him by post at his home address or any other address which he has requested the trade union in writing to treat as his postal address; and

(b) be given a convenient opportunity to vote by post.

…

(4) A ballot shall be conducted so as to secure that –

(a) so far as is reasonably practicable, those voting do so in secret, and

(b) the votes given in the ballot are fairly and accurately counted."

16. Parliament took further account of such factors in the provisions of s.232B, which were inserted by the Employment Relations Act 1999. These were relied upon in the alternative. They require that the court should disregard accidental failures in the process if they are on a scale which is unlikely to affect the result of the relevant ballot. That is obviously framed on a prospective basis, which would again require a judgment to be made as to the likelihood of a future outcome. On the other hand, if an outcome has become known by the time the court is deliberating upon the matter, the need for speculation would be eliminated. (When there was the possibility that the present application could be heard before the outcome of the ballot was known, Mr Hendy QC submitted that it was premature to resolve it. In the event, the hearing did not take place until after the votes were counted.)
17. It would perhaps have been clearer if the legislature had provided expressly for each situation; that is to say, both where an application is to be heard before balloting and where it is only heard after the outcome is known. But, meanwhile, it is necessary to apply "a likely and workable" interpretation. It would be unrealistic to exclude reference to the actual outcome, notwithstanding the prospective language used in the section.
18. What is the interrelationship between the different provisions of s.230(2) and s.232B? It is obvious that the insertion of the latter was intended to provide an additional qualification to the union's duty, since it comes into effect on the premise that the relevant union has failed the test of reasonable practicability: see again the judgment of Elias LJ in Serco at [56]-[57]. What is contemplated, therefore, is the possibility of breaches occurring in the light of that failure, but which are accidental and insignificant. There was some debate as to how this statutory intervention related to the operation of the de minimis principle and also that of "substantial compliance" (as discussed by Smith LJ in British Airways Plc v Unite (No 2) [2010] ICR 1316 at [146]-[149] and by Elias LJ in Serco at [87]). This is a largely semantic debate and it is not one in which I need to participate for the purposes of the present application as will, I hope, become clear in due course.
19. The procedural complaints of BBES on the present application are to be found in the witness statements of Mr Gerry Harvey, currently the HR Development Director for BBES. In a letter before action dated 17 January 2012, a series of quite different objections had been raised. It was made clear, however, shortly before the hearing that Mr Carr was going to focus particularly upon the alleged breach of s.230(2), in so far as Unite has failed (so it is alleged) to send a ballot paper to every person entitled to vote. To put it in context, however, I shall also refer briefly to the other complaints which were originally contained in the 17 January letter. These had diverted the attention of union officials from the principal task in hand just before the balloting process began and may be relevant, perhaps, on issues of costs and also when it comes to forming an assessment of the practical realities of what could be achieved at the material time.
20. It was said, first, that there had been a failure to specify the number of each category of worker at each of BBES' workplaces and that there were also muddles about job titles. Secondly, it was said that Unite had failed to categorise sites correctly or with sufficient precision. Thirdly, concern was expressed over the fact that the number of "non-check off" members (i.e. those whose union dues were not deducted at source) had (apparently inexplicably) increased from 308 in an earlier ballot, conducted in November 2011, to 639 for the purposes of the recent ballot. Fourthly, it was claimed that it was unreasonable for Unite to approach employees who had signed up to the controversial BESNA agreement, which would appear to be the casus belli of the current dispute.
21. Although not mentioned in the pre-action letters, there was a fifth point discussed in Mr Harvey's evidence (and in the Unite witness statements by way of response) to the effect that Unite had encouraged unofficial action at various sites before the ballot took place.
22. Although evidence and submissions had been directed to these other complaints, before the focus of the application before me was more closely defined, I need not address them any further for present purposes. I propose to turn, therefore, to the central criticisms turning upon the alleged failure to comply with the relevant terms of s.230. I have set out the wording, so far as necessary, above.
23. I have referred to Parliament's acknowledgment of the need for flexibility in order to take account of the practicalities and they need to be carefully considered. There is the original provision in s.230(2) for what is "reasonably practicable" followed by the supplementary safeguards inserted in s.232B. As to the latter, I would not accept the gloss put on them by Mr Hendy QC in his submissions:

"So long as the union, owing to human error or failings, failed to ballot the correct constituency, the section can bite."

He added that this was "plainly the case here". It seems to me that "human error or failings" could, in some circumstances, lead to a union's failure to ballot the correct constituency without the carefully worded provisions of either s.230(2) or s.232B coming to its aid. There might be a case where the democratic legitimacy of a process was so undermined by the errors in question that they simply could not be overlooked.

24. Mr Hendy QC submits that it is "overwhelmingly likely" that Unite will establish a trade dispute defence at trial – having clearly met its duty under s.230. As the evidence makes clear, there are particular difficulties in identifying Unite members employed by BBES. The construction sector is an industry in which workers regularly move on from site to site and also change employers. Moreover, there are more than 200 companies in the Balfour Beatty Group, which adds to the complication.
25. The evidence of Mr Harvey was that he had put in train research as to how many employees of BBES who were entitled to vote had actually received ballot papers. It is necessary first to identify which of its members Unite reasonably believed, at the time of the ballot (19-31 January 2012), would be induced to take part in industrial action. That is how the relevant "constituency" is defined: see s.227. Mr Hendy submits that it is important to note in this context that what matters is the class of persons whom Unite reasonably believed at the material time to be employed by BBES and whom it reasonably believed it would "induce" (i.e. encourage) to take part in industrial action. The class is thus definable in part by reference to a decision taken by Unite prior to the launch of the ballot (i.e. as to those whom it then intends to "induce") and in part also by reference to the information in its possession at the time (even though it may be, and almost certainly will be, incomplete and out of date). This may seem to be a somewhat arcane and artificial means of achieving democratic legitimacy, but that is what Parliament intended.
26. Mr Carr does not fully accept Mr Hendy's interpretation. He suggests that the cohort of members Unite intended to "induce" would be those actually employed by BBES at the material time; moreover, that the constituency should be defined for the purposes of s.227 as excluding any members who were not in fact so employed – even though Unite officers may have believed they were. I conclude that Mr Hendy's interpretation must be correct. Otherwise, the flexibility introduced by "reasonable practicability" would be seriously undermined.
27. Mr Harvey referred also to research carried out by a communications agency called Mass 1 on behalf of Unite. He combined the resultant figures and drew the tentative conclusion that a significant proportion of those employees had not received a ballot paper and that some people, not entitled to vote, had been sent one incorrectly. It is understandable that he should have been concerned.
28. Nevertheless, it is clear from the evidence of Unite, and in particular from the witness statements of Mr Nick Drysdale, that he and others at Unite have gone to painstaking (and no doubt also time-consuming and expensive) lengths to verify the information in their possession. The majority of those entitled to vote were contacted and given the opportunity to update the membership records relating to them and to obtain a ballot paper if required. In his third witness statement of 6 February, Mr Harvey takes the point that the ball should not have been left in their court. The obligation is to provide members with a ballot paper, rather than to produce one if asked. As I understand Unite's response, it is that it would not be appropriate to assume an entitlement to vote; it was necessary to try to verify the up to date position with each relevant member as to his or her employment status.
29. I note that it was in a letter dated 24 January that BBES pointed out, through its solicitors, that a significant number of Unite members were claiming not to have received a ballot paper. This was not a complaint made in the original letter of 17 January. Thus, by the time the complaint was made, the ballot process was well under way. Even then, however, no details were supplied to Unite with a view to the situation being corrected. The information was only provided in Mr Harvey's first witness statement of 27 January. Time was therefore uncomfortably tight if Unite was to rectify the problem by affording an opportunity to vote (by post). Nevertheless, it took such steps as it could to do so.
30. I am satisfied that these determined efforts mean that it would be likely, if the matter were ultimately to be tried, that Unite would be able to establish a trade dispute defence on the basis that its staff had complied with the test of "reasonable practicability" under s.230(2). Indeed, I think it fair to say that Unite went to considerable lengths to ensure democratic legitimacy which might be thought to exceed what would ordinarily be expected. I was told that more time, money and manpower had been expended on this ballot than in any comparable situation in the past. Whether this is so or not, the efforts made were formidable.
31. There was submitted a good deal of evidence detailing the lengths to which Unite went in order to legitimise the ballot and any consequent industrial action that may be taken. It is perhaps unnecessary for me to rehearse that in detail, but Mr Hendy in his final address summarised the principal steps taken. I do not believe it to be other than substantially accurate and it derives largely from Mr Drysdale's evidence. I gratefully borrow from it in justifying my own conclusions as to what was, in these circumstances, reasonably practicable:

i) In September 2011 Mr Drysdale printed off a list of all the members on the Unite database in respect of whom BBES was recorded as the employer.

ii) For the purpose of the first (November) ballot, it was checked against the information held by the Joint Industry Board over six days of visits by Unite staff.

iii) For the second (January/February) ballot, Unite checked its database against a BBES list of check-off payers (although not as informative as had been hoped). In December Mr Bell from the Unite subscriptions department (as he confirmed in evidence) found a list relating to check-off members who were weekly staff. Mr Drysdale identified that there were 25 check-off payers who had claimed to be employed by BBES but who did not appear on that list. Only 13 of them were found to be included on the list of monthly check-off payers (obtained on 9 January by another Unite official following enquiries made of Balfour Beatty Pensions Plc and also of the independent company which deals with the pay source). This list of monthly payers contained altogether 162 names, but it would have been inappropriate to send papers to all those individuals, since it was quite possible that it included people who were not actually employed by BBES and who would therefore be outside the constituency.

iv) On 6 December, Unite sent out questionnaires (2447 by post and 1065 by email) to those members recorded as working for any company within the Balfour Beatty Group asking them to identify, in each case, his or her particular employing company.

v) Mass 1 was engaged by Unite to contact every member who was recorded as working for any company within the Group and for whom a telephone number was available. Mass 1 managed to contact nearly 6000 of the telephone numbers and the information thereby obtained was used in order to update the details on Unite's database in relation to 572 members.

vi) The regional offices of Unite were sent lists based on the information yielded by these researches and asked to chase up, by telephone, information relating to any members recorded as working for BBES, Cruikshanks or Haden Young. It is common ground that because of a merger in 2009 it would now be appropriate to classify members recorded as working for Cruikshanks or Haden Young as falling under the BBES umbrella (assuming no subsequent departures).

vii) A yet further questionnaire was sent out with the Unite Christmas newsletter requesting that individual members should update the information on their current employer. This went out on 22 December to all those members recorded as working for a Balfour Beatty company or for any other company seeking to end existing collective bargaining arrangements.

viii) A further 3593 questionnaires were sent out at the same time to all Unite members who were recorded on its database under the "General Construction" code. Thus, it seems that a total of 8847 questionnaires were sent by post and 1065 by email.

ix) The information obtained was used under the supervision of Mr Drysdale to update membership records and this naturally included the information as to the individual's employing company.

x) Where there remained gaps in the information required, further attempts were made to contact the relevant member individually up to 9 January. This led to further updating.

xi) On the advice of the Unite legal department, yet further enquiries were made thereafter.

xii) Mr McAulay described how further steps were taken to alert Unite members to the imminent ballot.

The evidence indicates that these enquiries took some 500 hours or more of work on the part of the Unite staff involved.

32. Mr Carr says that additional or different checks should have been carried out, for example by seeking information from BBES itself based upon its internal employment records. Unite preferred, however, to obtain the details from their own members. Moreover, when they had been given information by BBES, in the form of a list, it had proved, according to Mr Drysdale's evidence, ambiguous and uninformative. This had been supplied by a Mr Jones. It referred to Balfour Beatty Pensions Plc and did not identify BBES. It seems to me that it is not the court's function to take sides on the merits of each and every argument of this kind. What matters is whether the steps taken to achieve compliance with s.227 and s.230(2) fell within the ambit of reasonableness (or, for present purposes, whether that is likely to be established at trial).
33. Very sensitive issues of policy arise in this context as to where the balance should be struck between striving for democratic legitimacy and imposing unrealistic burdens on unions and their officers. It is important in this context to take account of the standards recently contemplated by the Court of Appeal in the Serco case. It was there made clear that such officers will not ordinarily be expected to set up detailed inquiries and investigations before attempting to comply with the statutory ballot disciplines required by ss.226-230 of the 1992 Act. In general terms, they will be entitled to base themselves on the information in their possession without having to ensure that it is actually definitive: see especially at [69]-[72]. In that respect, therefore, it was argued that the officers in this case have sought to achieve a higher standard of accuracy and completeness than is strictly required, and that they should be given credit for doing so.
34. Where the balance should fall depends to an extent on the facts of the particular case. It would obviously not be right to regard the Serco decision as suggesting, in general terms, that the appropriate standard of democratic legitimacy can be achieved merely by doing one's incompetent best or by being lax about taking proper steps to obtain the most up to date information available. Nevertheless, it is right to pay due regard to the policy reflected in that judgment and the relatively relaxed interpretation which, it seems, the legislature intended the courts to apply. While "reasonable practicability" clearly introduces an objective test, there would need to be room for union officers to exercise their own judgment about what are the appropriate steps to take in a given situation. It cannot be right for a judge to hold that all reasonably practicable steps have not been taken merely because he or she would (as an outsider) have done something different. There must be leeway permitted for those who are familiar with the membership, and with their union's particular problems of record keeping, to take their own course in making genuine attempts to achieve the standards required of them by the legislature. In any event, the wording of the statute does not go so far as to impose on the union a positive duty "to take all steps that are reasonably practical".
35. I should add that Mr Hendy stated Unite's intention that any subsequent call to take industrial action will not be extended, on this occasion, to such of its members as were in fact employed by BBES at the relevant time but were not (for whatever reason) accorded the opportunity to vote.
36. In so far as Mr Harvey also had understandable concerns about the secrecy of the ballot and apprehended a lack of security, it seems to me that the explanation put forward by Mr Drysdale should be sufficient to allay them. He explained that the ballot papers were issued by the independent body engaged to organise the ballot (Electoral Reform Services). By the time of closing submissions, Mr Carr had realistically decided not to pursue the point any further.
37. In the light of the considerable amount of material put before me, I can state my conclusions as follows. First, I am satisfied that Unite is likely to establish a trade dispute defence if the matter goes to trial. It is not claimed that the system was foolproof or that it achieved a standard of perfection. Yet, having regard to the definition of the constituency in s.227, it seems to me that, so far as reasonably practical, every person entitled to vote had a voting paper sent to him/her and also was afforded a convenient opportunity to vote by post. Thus, the hurdle of s.230(2) is likely to be surmounted.
38. I would accept Mr Hendy's submission as to what the evidence has shown. Unite reasonably believed, at the material time, that it had identified the constituency, in accordance with s.227, of those members whom it would call upon to take industrial action (and thus those whom it was required to ballot). At the stage when the ballot papers were sent out, from 19 January, Unite reasonably believed that it would only be those recipients whom it would be "inducing". Later, as I have described, information came to its attention that there were other members whom it would wish to call upon to take industrial action. At that stage it took such reasonable steps as were open to it so as to afford them also the opportunity of voting. It is submitted, in the light of these facts, that since all reasonable steps were taken, and since the industrial action contemplated has been supported by a ballot, it would be lawful for Unite to "induce" even those who were in the event unable to do so: see e.g. London Underground v RMT [1996] ICR 170, CA. That seems to me to be right. As I have already mentioned, however, it is Unite's intention not to call upon those who did not have the chance to vote. In the end, I am not persuaded that Unite is threatening or intending to do anything that would be unlawful. There would be no ground, therefore, on which to grant an injunction.
39. In so far as I need to address s.232B, I would have to consider whether any failures were "accidental" and unlikely to affect the outcome of the ballot. As far as I can see, "accidental" in this context means no more than "unintentional". I do not understand the word to be connoting some extraneous occurrence outside the control of the union (as it may sometimes imply). I believe that to be consistent with the interpretation in Serco at [47]-[57]. Having regard to the history I have recited, it seems clear that any such failures would be unintentional.
40. I cannot in the light of the evidence come to a definitive conclusion, or even decide on a balance of probabilities, how many Unite members actually employed by BBES during the material period of time failed, in the event, to receive a ballot paper or to have an opportunity to cast a vote.
41. The result of the ballot is given in Mr Drysdale's third witness statement of 7 February. Out of 444 valid papers counted, 313 voters were in favour of industrial action short of a strike. Out of 440 valid papers, 295 were in favour of strike action. I cannot rule out the possibility that as many as 100 such persons were left out, but that is far from saying that I am persuaded that, at trial, there would be likely to be a holding under s.232B such as to vitiate the ballot. The evidence is not sufficient to come to a clear conclusion. It follows that I am not in a position to determine what proportion that unknown number of failures would represent of the total votes cast (or likely to be cast, if viewed through earlier spectacles).
42. In the light of my conclusions, I must refuse the relief sought.
ORDER

UPON reading submissions from leading counsel for the Defendant dated 22 February 2012

AND UPON reading the letter from the Claimant's solicitors dated 20 March 2012

IT IS ORDERED THAT:

43. Paragraph 18 of the judgment of Eady J dated 16 February 2012 be corrected to read:

" … It is obvious that the insertion of the latter was intended to provide an additional qualification to the union's duty, since it comes into effect on the premise that the relevant union has failed the test of reasonable practicability: see again the judgment of Elias LJ in Serco at [56]-[57]. What is contemplated, therefore, is the possibility of breaches occurring in the light of that failure, but which are accidental and insignificant. … "

44. The Claimant pay the Defendant's costs of this application, to be assessed on the standard basis if not agreed.

Dated: 26 March 2012