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
		02/06/2016

Mr Justice Warby:

The application

1. The claimant in this action, and the applicant before me, is a cleaning company. Among the premises to which it supplies cleaners is an office building in the City of London at 100 Wood Street, EC2 ("Wood St"). The claimant has a contract with the managing agents of the building, who are known as CBRE. The tenants of Wood St have included JP Morgan Chase, and continue to include Shroeders and other well-known organisations. The first defendant is a trade union ("the union") to which a number of cleaners belong, including some of those who are or were engaged by the claimants to work at Wood St. The second defendant ("Mr Elia") is the General Secretary of the union.
2. The claimant's application is for an order continuing an injunction granted by Garnham J on short and informal notice last Friday, 27th May. That order provides that the defendants must not:-

"procure, organise, and/or facilitate a picket at [Wood St] save to the extent the picket complies with (a) section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 [("TULRA")] and (b) the Code of Practice on Picketing 1992 [("the Code")]".

3. The period for which the injunction is now sought is a further 13 weeks. That is the expected duration of industrial action by cleaners, who are members of the union, which is currently under way.
4. In his skeleton argument for the claimant Mr Godfrey gave notice of an intention to seek in addition certain "ancillary orders only if, and to the extent, defendants threaten to: (i) enter into 100 Wood Street causing a trespass and/or actionable nuisance in order to intimidate C; and/or (ii) threaten a mass demonstration in support of the picket in Wood Street, which would have the practical effect of inflating the size of the picket."

Issues

5. There is a stark contrast between the parties' rival positions. The claimant asserts that the defendants have threatened to organise picketing which would involve unlawful acts, and that it is probable that they would act unlawfully if not restrained by injunction. Mr Godfrey puts it this way in his skeleton argument:

"C's principal concern is to prevent mass picketing at 100 Wood Street including the "threaten[ed] large and potentially violent picket where members of the public with no involvement in a trade dispute are encouraged to attend".

6. The defendants invite me to dismiss the application altogether on the basis that there is no need for any injunction. In his skeleton argument Mr Powell says this:

"The defendants submit that C has misunderstood and confused protest, which is lawful and is not picketing (proposed in the email dated 11 May 2016 [C's bundle pp 50-51]), with picketing; and that its application is an attempt to restrain lawful protest, freedom of speech and assembly. The defendants do not and have not proposed to picket unlawfully or to act unlawfully."

Facts

7. The claimant took over the cleaning contract at Wood St in March/April 2016. Mr Godfrey's summary of events thereafter is that, having undertaken to carry out the contract in a different way from before it entered into discussions about changes to working practices. These involved a number of full timers being offered alternative part-time employment. Those who did not accept were to be dismissed for redundancy.
8. Over the following weeks and months three areas of conflict arose between the claimant and the union: (i) a dispute over the planned redundancies; (ii) complaints about the wages paid by the claimant; these are said to be above the statutory minimum wage at £8.50 per hour, but below the London Living Wage of £9.40; (iii). A dispute over the claimant's recognition of the union, or its failure to do so. The London Living Wage is a non-statutory figure, set by the Living Wage Foundation.
9. The union balloted its members for a strike. The claimant criticised the procedures adopted for the ballot. At one stage there was a threat to seek an injunction restraining industrial action. However, I am not concerned with that today. The defendant's case is that the industrial action which is presently under way is in furtherance of a trade dispute within the meaning of s 219 of TULRA, and compliant with the statutory requirements and for present purposes the claimant accepts that I should assume this is so.
10. The claim with which I am concerned is a separate claim, based upon conduct which the claimant describes in its [draft] Particulars of Claim as "the Threatened Mass Picketing". The basis for that description lies in the pre-action correspondence.
11. On May Day a posting appeared on the union's Facebook page in these terms:

"In the spirit of International Workers' Day UVW is proud to confirm that as well as continuing to fight for trade union rights and a living wage at Top Shop, the cleaners at the Barbican Centre, the Science Museum and 100 Wood Street have all decided to take official strike action over proposed redundancies, refusal to pay a living wage and refusal to provide occupational sick pay.

The times are changing.

The time for justice has come.

Up the workers!"

12. On 4 May 2016 Mr Elia emailed Simon Judge of the claimant giving notice of a "potential trade dispute" over the proposed redundancies at Wood St. Mr Elia asserted that any dismissal for redundancy would be automatically unfair as a matter of law. He described the proposed redundancies as "unfair, unlawful and unnecessary", and gave notice that a trade dispute would ensue in the absence of a satisfactory response. The claimant replied through its solicitors that it "does not recognise a Trade Union" and as such would not be entering into negotiation with the union in relation to Wood St. Mr Elia responded at 17:13:

"Firstly, UVW were not seeking to negotiate. As such any reference to a negotiation is a red herring.

Secondly, the presence or absence of a recognition agreement is wholly irrelevant as to whether an employer talks, negotiates or consults with a trade union, all of which are always advisable for the sake of harmonious industrial relations…

… Fourthly, you have failed to provide a satisfactory response to our concerns regarding Thames Cleaning's proposed unlawful redundancies, and you are paying below the London Living Wage which currently stands at £9.40 per hour. This failure has led to a trade dispute situation…

… We will be balloting our members at 100 Wood Street for industrial action…

…I can confirm that UVW remains available for discussions, through the services of ACAS."

13. On 11 May 2016 at 18:51 Mr Elia emailed Mr Judge as follows, copying in personnel at Schroders and at two other corporate tenants of Wood St:

"Subject: URGENT: Cleaners to strike for a living wage and against unfair dismissals at 100 Wood Street (Notice of ballot for industrial action) …

… On behalf of the cleaners at 100 Wood Street, please find attached for your urgent attention notice of ballot under 226A of the Trade Union and Labour Relations (Consolidation) Act 1992…

…We will also be engaging in regular, disruptive and high profile direct actions at 100 Wood Street, in order to raise awareness amongst the many companies that have offices at 100 Wood Street, about Thames Cleaning's unfair, unnecessary and unlawful dismissal of over half the cleaners at 100 Wood Street and Thames Cleaning's refusal to pay the cleaners a wage they can live on, otherwise known as the London Living Wage which is only currently £9.40 per hour.

I can confirm that UVW remains available for discussions, through the services of ACAS. If you would like to pursue this please contact me directly.

In the meantime, please peruse the videos in the links below which show a small selection of some of our recent demonstrations against unfair redundancies, trade union victimisation and refusal to pay a living wage, amongst other things."

14. The links were to videos posted on YouTube showing, among other things, demonstrations organised by the union and Mr Elia at Topshop and the Barbican centre in London.
15. On 13 May 2016 the claimant's solicitors replied.

"Our client has also passed to us copies of your recent emails to them which you have chosen to copy to their client and the tenants at 100 Wood Street outlining threats of "regular, disruptive and high profile direct action at 100 Wood Street". The union's Facebook page also makes similar threats dating from 1^st May 2016 which predates any contact with our client when it is stated that "the cleaners at …100 Wood Street have all decided to take official strike action over proposed redundancies…" The union have throughout its communications with our client attempted to deliberately interfere with, intimidate, disrupt and damage our client's relationship with its client at 100 Wood Street and their respective tenants.

It is our view that the union's threats made to our client go beyond notice of or an intention to hold a lawful picket. Further, the activities of the union outlined above and which pre-date the notice will not have statutory immunity normally granted to trade unions.

In view of this, should the union proceed with the proposed ballot and/or any strike action, our client will not hesitate to seek an injunction without further notice to you in relation to any industrial action…"

16. Mr Elia's reply contained the following:

"… Your client's client … has a right to know if your client is making unnecessary and unlawful redundancies, and is creating an industrial dispute by doing so which will result in regular pickets and protests of your client's client's premises. It is not for an employer or an employer's lawyer, no doubt to your disappointment, to decide how and when a trade union may communicate with an employer's client or anyone else of that matter.

You allege that we have throughout our communication with your client attempted to "interfere with, intimate, disrupt and damage your client's relationship with its client at 100 Wood Street" This allegation is vague, unsubstantiated and vehemently denied.

You allege that our alleged threats to your client go beyond notice of or an intention to hold lawful picket. Firstly, no threats have been made. As such, your allegation is, again, founded on a fallacy.

Secondly, protest activity, either as part of a strike, or outside of formal industrial action, but nevertheless organised as part of the industrial dispute, is still lawful. Furthermore, if a worker is not picketing but protesting, then there is no distinction between a protester who acts in an industrial relations context and any kind of other protester, and as you will be aware the right for individuals to protest peacefully is guaranteed under the rights of freedom of expression and freedom of peaceful assembly that are enshrined in Articles 10 and 11 of the ECHR.

You mention a Facebook page from 1^st May. However, that post has no legal significance and therefore no response is warranted."

17. The reference in this email to "protest activity … organised as part of the industrial dispute" is to be noted, as is the reference to the ECHR rights of a worker who "is not picketing but protesting".
18. On 17 May 2016 its solicitors responded, advising the defendants that the claimant would refrain from seeking an injunction in relation to any proposed industrial action on the basis that certain undertakings were provided by the union on its members behalf by close of business the following day. The solicitors stated that it was not the claimant's intention to seek to prevent "peaceful and lawful industrial action" by employees, but it remained concerned that the union was seeking "to undermine and sabotage their business relations with their client and the tenants at 100 Wood Street." The undertakings sought were as follows:

"1. The union will comply with the Code of Practice in relation to industrial action;

2. Any picket is limited to the four employees involved in the dispute together with their official trade union representative;

3. That the union and/or picket will not trespass or cause obstruction at 100 Wood Street;

4. That the union and/or picket will not cause or create any public order offences pursuant to the Public Order Act 1986 (as amended.)"

19. No undertakings were offered on 18 May, or at all. What Mr Elia did on 18 May was to issue a press release, which was emailed to the claimant at lunchtime that day and posted on the union's Facebook page. It contained the following wording:

"Subject: PRESS RELEASE: Cleaners threatened with injunction over strike action for living wage at 100 Wood Street

PRESS RELEASE FOR IMMEDIATE RELEASE:

Cleaners being balloted for strike action over job cuts and the London Living Wage at 100 Wood Street have been threatened with an injunction unless they promise to turn away solidarity on their picket line…

… Realising UVW had, in fact, being fully compliant Thames Cleaning quickly turned to threatening to seek an injunction by the close of business today, Wednesday 28^th May, unless UVW agreed to provide an undertaking to restrict the picket solely to the workers on strike plus one trade union official.

The cleaners, therefore, have essentially being given an ultimatum to wither actively turn away solidarity from the public that they might receive on their picket line or risk an injunction which, if successful, might render the picket unlawful

Petros Elia, UVW's General Secretary, says "trying to make our members choose between a small lawful picket and a large unlawful picket is completely unacceptable. It is not for the employer to decide the size of a picket and it's a damning indictment of the growing arrogance and ruthlessness of employers, especially in the cleaning sector. It's outrageous that an injunction is even being contemplated…

…UVW members will not be bullied out of their human rights, and will not be bullied out of the fight for justice. The strike will go on."

20. One response to the press release can be seen on the union's Facebook page, where the press release was posted. A Daniel Stone wrote

"This is an attempt to undermine the right to protest. I and many other interested members of the public will no doubt be turning up on the day of the strike to speak to the cleaners and other employees in the building. No injunction can stop that."

21. On 25 May 2016 the claimant issued the application that is before me, seeking (so far as relevant) the following injunction:

"(1) That the Respondents be restrained forthwith whether by itself or by its employees, officers including the Second and third Defendants, agents or otherwise howsoever, from inciting, instructing, inducing, procuring, persuading, assisting, encouraging, organising, financing and/or facilitating picketing involving the commission of an unlawful act or acts at 100 Wood Street London EC2V 7VN or on any other premises of the Claimant (in particular interfering with contracts by unlawful means), and which is not rendered lawful by statute, lawful picketing being defined as picketing: (i) For the purpose of peacefully persuading any person employed by the Claimant to abstain from working; and (ii) only at the pickets' own place of work (or in the case of a trade union official at or near the place of work of a member of his trade union whom he is accompanying and whom he represents); (iii) by not more than six pickets at the entrance to 100 Wood Street and/or any other entrance to the respective work places of such person or persons picketing; and …"

22. The order granted by Garnham J, to "hold the ring" until this hearing (paragraph 2 above) was a modified and simplified version of this draft. It is an order in the same terms as were granted by Garnham J that Mr Godfrey was seeking at the start of the hearing before me, with the potential addition of the two forms of injunction identified in paragraph 4 above. (The third and fourth intended defendants have dropped out of this case.)

The legal framework

23. Industrial action in the form of a strike will usually involve a trade union through its officers encouraging workers to cease working, which is likely to involve an inducement to breach their contracts, or other conduct which might be actionable in tort. Actions such as picketing which are associated with strike action may also involve encouragement to break contracts of employment and conduct which would normally be tortious in other ways. In this case the defendants are alleged to have threatened conduct which would involve the torts of (i) Unlawful interference with trade or business; (ii) Unlawful interference with contracts; (ii) procuring breach of contract; (iv) unlawful means conspiracy; (v) intimidation; (vi) trespass; and (vii) nuisance.
24. Those engaged in industrial action have certain immunities, which are provided for by ss 219 and 220 of TULRA. Section 20 of TULRA governs the attribution of liability to a union for acts that are alleged to involve what are known as "the industrial torts". Section 219 affords qualified immunity from suit in certain torts for "an act done by a person in contemplation or furtherance of a trade dispute". Section 220 protects "peaceful picketing". It provides, so far as relevant, that:

"(1) It is lawful for a person in contemplation or furtherance of a trade dispute to attend—

(a) at or near his own place of work, or

(b) if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents,

for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.

…

(3) In the case of a worker not in employment where—

(a) his last employment was terminated in connection with a trade dispute, or

(b) the termination of his employment was one of the circumstances giving rise to a trade dispute,

in relation to that dispute his former place of work shall be treated for the purposes of subsection (1) as being his place of work.

(4) A person who is an official of a trade union by virtue only of having been elected or appointed to be a representative of some of the members of the union shall be regarded for the purposes of subsection (1) as representing only those members; but otherwise an official of a union shall be regarded for those purposes as representing all its members."

25. The defendants' case is that there are nine individuals who could claim the protection of these provisions: six workers falling within ss 220(1) and (3), and three union officials falling within s 220(4).
26. The Code is issued by the Secretary of State pursuant to TULRA. Its provisions do not have the force of law, but they are potentially relevant to the issues before me by virtue of s 207(3) TULRA which provides as follows:

"(3) In any proceedings before a court … any Code of Practice issued under this Chapter by the Secretary of State shall be admissible in evidence, and any provision of the Code which appears to the court, tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question."

27. The Code contains a number of provisions of potential relevance to the issues on this application. Of particular note area the following,

"§C49: No immunity from crimes: "Among other matters, it is a criminal offence for pickets (as for others):

to use threatening, abusive or insulting words or behaviour, or disorderly behaviour within the sight or hearing of any person - whether a worker seeking to cross a picket line, an employer, an ordinary member of the public or the police - likely to be caused harassment, alarm or distress by such conduct;

to use threatening, abusive or insulting words or behaviour towards any person with intent to cause fear of violence or to provoke violence;

to use or threaten unlawful violence;

to obstruct the highway or the entrance to premises or to seek physically to bar the passage of vehicles or persons by lying down in the road, linking arms across or circling in the road, or jostling or physically restraining those entering or leaving the premises;

…

to engage in violent, disorderly or unruly behaviour or to take any action which is likely to lead to a breach of the peace;

to obstruct a police officer in the execution of his duty.

§E48: Risk of excessive numbers: "Violence and disorder on the picket line is more likely to occur if there are excessive numbers of pickets. Wherever large numbers of people with strong feelings are involved there is a danger that the situation will get out of control, and that those concerned will run the risk of committing an offence, with consequent arrest and prosecution, or of committing a civil wrong which exposes them, or anyone organising them, to civil proceedings.

§E49: Numbers can give rise to intimidation or harassment: "This is particularly so whenever people seek by sheer weight of numbers to stop others going into work or delivering or collecting goods. In such cases, what is intended is not peaceful persuasion, but obstruction or harassment-if not intimidation. Such a situation is often described as "mass picketing". In fact, it is not picketing in its lawful sense of an attempt at peaceful persuasion, and may well result in a breach of the peace or other criminal offences.

§E50: Keep demonstration and picket separate: "Moreover, anyone seeking to demonstrate support for those in dispute should keep well away from any picket line so as not to create a risk of a breach of the peace or other criminal being committed on that picket line. Just as with a picket itself, the numbers involved in any such demonstration should be conducted lawfully. Section 14 of the Public Order Act 1986 provides the police with the power to impose conditions (for example, as to numbers, location and duration) on public assemblies of 20 or more people where the assembly is likely to result in serious public disorder; or serious damage to property; or serious disruption to the life of the community; or if its purpose is to coerce.

§E51: Pickets should be limited to six or less: "Large numbers on a picket line are also likely to give rise to fear and resentment amongst those seeking to cross that picket line, even where no criminal offence is committed. They exacerbate disputes and sour relations not only between management and employees but between the pickets and their fellow employees. Accordingly pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to, or exit from, a workplace; frequently a smaller number will be appropriate."

§E57: Functions of organiser of picket: "The other main functions of the picket organiser should include ensuring that:

the pickets understand the law and are aware of the provisions of this Code, and that the picketing is conducted peacefully and lawfully;

…

workers from other places of work do not join the picket line, and that any offers of support on the picket line from outsiders are refused;

the number of pickets at any entrance to, or exit from, a place of work is not so great as to give rise to fear and resentment amongst those seeking to cross that picket line (see paragraph 51 in Section E of this Code)."

28. Applications for injunctions against picketing have been rare in recent years, but in Gate Gourmet London Ltd v Transport and General Workers Union [2005] EWHC 1889 (QB), [2005] IRLR 881 Fulford J granted an order designed to impose restraint on picketing and associated activities at and around the premises of a company providing in-flight catering to airlines. The Judge acknowledged that Convention rights were in play. However, he found that the evidence made out a good arguable case that the union had authorised unlawful activity and granted orders limiting to six the numbers of pickets at one of the sites at issue, and prohibiting picketing at or near certain bus stops, "given the interference that has occurred with employees going to or leaving the premises."
29. The Convention rights at issue are those under Articles 10 and 11: the right to freedom of expression and the right to freedom of assembly. Both are qualified rights. Each may be restricted in ways which are in accordance with the law, necessary in a democratic society, and proportionate, for the prevention of disorder or crime, or the protection of the rights or freedoms of others. The Convention rights reflect freedoms which English law protected for centuries before the Convention was framed.
30. In deciding whether to grant any injunction and in what terms to grant one, if I do, I have to consider what would probably happen if this action went to trial. The first reason for that is that some of the actions that are said to be threatened involve speech or other forms of expression. The threshold for the grant of any injunction that would affect the exercise of the right to freedom of expression is proof that the claimants would probably succeed at a trial in establishing their right to the relief in question.
31. This is the threshold laid down by s 12 of the Human Rights Act 1998 ("HRA") for the grant of pre-trial relief that might affect the exercise of the Article 10 right. Section 12(2) provides that "no such relief is to be granted … unless the claimant is likely to establish that publication should not be allowed". In Cream Holdings Ltd v Banerjee [2005] 1 AC 253 [22] the House of Lords held that this wording should normally be treated as requiring proof that success at trial is "more likely than not". This is a jurisdictional threshold.
32. I must also take the probable outcomes at trial into account in relation to conduct which would not engage Art 10. The grant or refusal of the injunctions sought in this case will effectively represent a final decision, and in such a case the court should take into account the probable outcome at a trial.
33. Section 221(2) of TULRA provides:

"(2) 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 (protection from certain tort liabilities) or section 220 (peaceful picketing)."

34. The predecessor of this section (s 17 of TULRA 1974) was considered by the House of Lords in the interlocutory appeal of NWL v Woods [1979] 1 WLR 1294 ([1979] ICR 867). At 1307 (881) Lord Diplock said this:

"Where … the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.

… it was clearly prudent of the draftsman of [s 17] to state expressly that in considering whether or not to grant an interlocutory injunction the court should have regard to the likelihood of the defendant's succeeding in establishing that what he did or threatened was done or threatened in contemplation or furtherance of a trade dispute.

… Judges would, I think, be respecting the intention of Parliament in making this change in the law in 1975, if in the normal way the injunction were refused in cases where the defendant had shown that it was more likely than not that he would succeed in his defence of statutory immunity …"

35. In this case it seems to me right in principle to approach my decision on all issues by determining as best I can what would probably be the outcome at trial. I must however bear in mind the requirement of s 12(4) of the HRA that where Article 10 is engaged I must have "particular regard" to the right to freedom of expression. It is well established that this provision does not accord Article 10 any presumptive priority where other qualified Convention rights are engaged in opposition to Article 10. But that is not this case.

Discussion

36. The claimant accepts that the defendants are within their rights to organise picketing at Wood St "in accordance with the law and the Code providing guidance on the limits to a lawful picket". The complaint is that the defendants are threatening to go well beyond that, and to "encourage trespass, actionable nuisance, a breach of the peace, harassment or intimidation", for which statute provides no immunity. Conduct of these kinds has been characterised by the claimants as unlawful picketing. Hence the terms of the order which the claimants have been seeking, and which they persuaded the court last week to grant over a short period.
37. At this, more substantial hearing, it has become apparent that this approach has a number of flaws:

(1) It is axiomatic that any injunction must make clear to those at whom it is aimed precisely what they are prohibited from doing. The verbs used in the draft order are clear enough. Everyone knows what "organising" means. But the noun "picket" is not defined in law, nor in the draft order, nor have I been provided with any clear reference point by which a reader of this injunction could ascertain with clarity what is meant by it. This is not a theoretical or abstract point. A major strand of the defendants' case, reflecting the correspondence, is that they are entitled to encourage, facilitate or organise a "protest" or "demonstration". Each side has accused the other of confusing two different concepts in its approach to this case. On one view, something that is a demonstration is by definition not a picket. If that were right, the injunction sought would not achieve what the claimants wish it to achieve. Review of online definitions does not reveal a consensus on this issue. A government website states "A picket line is where workers and union reps ('picketers' or 'pickets') stand outside a workplace to tell other people why they are striking." Another online definition of "picket" does not confine it to workers, and embraces protest: "a person or group of people who stand outside a workplace or other venue as a protest or to try to persuade others not to enter during a strike."

(2) It is inherently undesirable for an injunction to define what is prohibited by reference to some external document. This is so even if that document is accessible to the public, as are TULRA and the Code. Ideally, the injunction will itself contain everything a person needs in order to guide their conduct and comply with the court's order.

(3) More importantly, perhaps, an injunction which prohibits conduct which is not in accordance with the Code lacks certainty. The Code is not law, nor does it contain "black letter" provisions. It is guidance, which is to be taken into account by decision-makers in specified situations. The point can be illustrated by taking the provisions of para E51 as an example. They set a maximum of 6 pickets, at any one entrance or exit. But the claimant's skeleton argument for this hearing suggest that the lawful limits for picketing include "up to 6 pickets in total including members and officials". The defendants say there are 9 qualifying individuals and three entrances to Wood St. Up to 18 pickets would in principle be legitimate. But the defendants could not be confident of compliance with the order if they encouraged as many as six to attend any one entrance, because the Code says that "frequently a smaller number will be appropriate."

38. The defendants have not in fact encouraged any picketing to date. There has been none. So there has been no opportunity for practical problems to arise. But these are important objections of principle to the form of order sought. For these reasons I would not have been prepared to continue relief in this form over a 13-week period.
39. In principle these objections as to the form of order could no doubt be addressed by alternative wording. For present purposes, a working definition of picketing could be the attendance at a workplace by those who are or used to be workers there, for the purpose of preventing or discouraging others from working. Adopting this definition, I would readily accept that it is possible to frame what could be called an anti-picketing injunction: one which specifies clearly the limits to be observed in practice on the numbers of workers and union representatives who may attend at or outside a workplace which is the centre of a trade dispute, and on the actions that those individuals may undertake at such a workplace. Fulford J appears to have achieved this in the Gate Gourmet case.
40. It is however important in my judgment to keep in mind that the starting point ought to be the identification of the conduct which it is sought to prevent, and what may be unlawful about it. That is particularly important in a case such as the present. The passages in the Code that I have quoted identify the numerous legal wrongs that can arise from activity within the concept of picketing, and associated activities. Worker who propose to attend outside their workplace or former workplace in the course of industrial action may benefit from the immunity from civil or criminal liability conferred by s 220. If there is evidence of a threat to breach the lawful limits of "peaceful picketing" as there defined the employer may properly seek an injunction that imposes limits on the numbers who can attend its premises, and the behaviour they can engage in when they attend.
41. But if third parties who are not and never have been workers at any relevant premises attend to support the workers they cannot benefit from the statutory immunity, whatever they do when they get there. Still less can they benefit from the immunity for "peaceful picketing", if what they do when they get there is to protest or demonstrate via banners or "direct action", rather than seek to persuade people not to work. So when, as here, the conduct which the claimant aims to prevent includes conduct which could not qualify as "peaceful picketing" within the meaning of TULRA s 220 it is unhelpful and confusing to seek an order prohibiting the organisation of "a picket", however that prohibition may be hedged around and qualified. It would be better to use other words to define the third party conduct which the defendants are prohibited from bringing about.
42. As it happens, the evidence in this case does not persuade me that there is any substantial risk that the defendants will, unless restrained, organise any activities by workers or former workers of the claimant which would amount to a "picket" (in the loose definition above), but would breach the limits set by s 220 and offend the Code. As already noted, the defendants' own case is they have no more than nine candidates for immunity under s 220. Of the nine, six are cleaners. In my view, there is nothing of substance to indicate a threat or intention to deploy these nine in a way that would be unlawful. I am certainly not persuaded that the claimants would be likely to establish at a trial a right to set limits, by injunction, on how the defendants may organise any picketing by workers that may take place. For those reasons I decline to grant any order that would restrain any of the nine from organising or attending a "picket" at Wood St (or any other premises of the claimant). Put another way, I refuse an anti-picketing injunction. That includes refusing the mandatory order more recently proposed by the claimant for the attendance at any picket of "a person responsible for discouraging members of the public from joining the picket."
43. It by no means follows that the claimant's application must fail. Its outcome should not turn on semantics. As I see it, the real target of the application is not activity that could be aptly described as picketing. What the claimant is really concerned to prevent is what Mr Elia called "regular, disruptive and high profile direct action". Put another way, what is at issue is the "threaten[ed] large and potentially violent [protest or demonstration] where members of the public with no involvement in a trade dispute are encouraged to attend". I have taken this wording from the witness statement of Mr Walker which is relied on by the claimants, but substituting the words "protest or demonstration" for "picket". Putting it this way removes all risk of confusion flowing from s 220. That section could not apply to the conduct of the "members of the public" concerned, or to any encouragement given to them by the defendants.
44. For the defendant, Mr Powell submits that this application is really about infringing the right to lawful assembly, and the right to demonstrate or protest. There should be no injunction to restrain anything in the way of protest or demonstration, he submits, because those are activities jealously protected by the law; and the claimant has failed to make out to the necessary standard any case that such activities, if encouraged by the defendants, would be unlawful. The claimant has no factual or legal basis, he argues, for restraining the defendant from trespass, or obstruction, or public order offences. These submissions reflect, in a more nuanced way, some of the points made by Mr Elia in correspondence. But in my judgment they also suffer from some of the flaws apparent in Mr Elia's reasoning.
45. A worker may demonstrate rather than picket. But the worker will have no statutory immunity if they do so. And not all protest or demonstration is lawful. Again, the Code provides some useful guidance. The creation of public disorder, putting people in fear, or harassment: all of these are unlawful means of protesting or demonstrating, whatever the legitimacy of the cause. In the course of argument Mr Powell was constrained to accept that if, in order to put pressure on the claimant to concede their demands, the union and Mr Elia were to whip up large numbers of third parties to attend outside Wood St, with the aim of physically preventing people getting to work there, or so harassing or intimidating them as to scare them away, they might be liable to be sued by the claimants for unlawful means conspiracy. The fact that the claimants may not have the proprietary or possessory rights necessary to ground an action in trespass, or nuisance, would be no obstacle.
46. In the end, it seems to me that the outcome today turns on the answers to two questions. First, has the claimant demonstrated that it would probably succeed at a trial in showing a risk, justifying an injunction, that unless restrained the defendant will cause protest or demonstration which is unlawful, and actionable at the suit of the claimant? Secondly, if so, can an injunction be framed which serves to restrain the encouragement of unlawful conduct, without straying into improper restraint of lawful protest?
47. My answer to the first question is that the claimant has established a case. The critical issue here is what a trial court would be likely to make of the correspondence, coupled with the YouTube videos and Mr Elia's evidence about all of this. In my judgment the court would probably conclude that what Mr Elia was quite deliberately threatening when he wrote to the claimant about "direct action" was noisy, intimidating, mass protest at or near Wood St by people who had no pre-existing connection with the workers who might be on strike, with the objective of harassing the claimant and embarrassing it into conceding the union's demands. In my view a trial court would probably not be persuaded by Mr Elia's more recent attempts to explain away the manner in which, in mid-May 2016, he presented to the claimant and to some of the tenants at Wood St (those whom he copied in on his email), what was likely to happen in future if the claimant did not concede.
48. I have viewed the video clips which Mr Elia wanted his addressees to view. The first clip is introduced by a screen shot referring to the "Topshop 2". The accompanying video shows a very noisy and disorderly protest involving, at an estimate, upwards of 40 people in a crowd occupying the whole pavement in front of a TopShop store during opening hours. The demonstration is clearly organised, with banners, and drumming, shouting, whistling and clapping. Red smoke billows around. It is quite impossible for members of the public to pass through the crowd without encountering substantial obstruction. At least one police officer is jostled. Mr Elia is clearly the organiser and leader of the event. He declaims at the crowd and passers by loudly through a megaphone. One of the "Topshop 2" is present, next to the second defendant. She might perhaps be said to be there to picket. But she does not address anyone with the aim of discouraging them from working. Mr Elia explains to the crowd that she has come to "face her oppressors and tell them to fuck off". Mr Elia encourages crowd members, saying: "Anyone who wants to express their disgust at this company using the megaphone feel free to do so."
49. Speech of this kind is not unlawful. Freedom of speech includes the right to embarrass or offend. It is not necessary in a democratic society to prevent people telling their alleged oppressors to "fuck off", or expressing their disgust at the employment practices of high street shops. It may be legitimate to do this noisily. If the word "picket" were given the broad meaning attributed to it by the claimants, the order they seek would have the effect of prohibiting the defendants from encouraging such behaviour "at Wood St". I would not grant such an injunction, which would go too far.
50. But such activities can tip into public disorder, harassment, intimidation, and other interferences with the rights of others which it is necessary and proportionate to prevent, for one of the legitimate aims identified in Articles 10(2) and 11(2). The more they involve physical confrontation at close quarters between the protesters and those seeking to go about their lawful daily activities of going to work or to the shops or places of entertainment the more likely they are to go beyond the lawful limits of protest. Mr Elia himself has referred to "the right for individuals to protest peacefully". The conduct shown in the video clips goes beyond that limit, in my judgment.
51. This is most clearly the case outside TopShop. But the video of events at the Barbican arts centre shows what is clearly an organised group of union staff and "supporters" engaged in an organised and prepared protest, again using banners, the chanting of slogans, banging and shouting, and again a megaphone is wielded by Mr Elia to denounce the employer loudly to all present. This is clearly an incursion onto private land, involving obstruction, and interference with lawful activities. It is clearly not an event which involves passers-by lending their support to a picket.
52. Mr Elia's witness statement, served since the hearing before Garnham J, seeks to minimise this activity or to put a gloss on it. He says the videos are condensed into 2-3 minutes, and are intended to give "a heightened sense of tension and drama and use emotive music in order to create atmosphere and portray emotions". I have not heard Mr Elia give evidence, and there has been no cross-examination. Doing the best I can, however, I do not think a trial court would find this evidence convincing. Mr Powell submits that the videos "do not portray the whole protest fully and, in that sense, accurately." But condensed material can be accurate. Mr Elia's evidence does not say, and I do not believe, that the videos contain a false or misleading portrayal of the events they depict. Mr Elia's evidence sits ill with the anger and aggression shown in the defendants' own publicity material, and smacks of an attempt to play things down after the event, when confronted with the threat of an injunction. Nor do I find persuasive Mr Powell's submission that these proceedings have themselves brought about a change of heart such that the court can conclude that there probably would be no unlawful conduct if the application was refused.
53. I had reached these conclusions before reading a further round of evidence served on behalf of the claimants, after the hearing. In view of its lateness I would perhaps have given this evidence less weight than if it had been served sooner. But as it is, I can say that it lends support to the views I had already reached. It has two elements. The first is a narrative on the union's Youtube page attached to the first video link describing "a 3 hour protest at Topshop and John Lewis on Sat 16^th April in which we managed to close two Topshop stores and John Lewis for the second time in a month …" This is said to show "the lengths to which we have to go" to protect members' rights. The second is a video link showing Mr Elia in physical confrontation with police.
54. The appropriate wording for an injunction is perhaps more difficult. The order sought by the claimants is clearly inapt. I made clear to Mr Godfrey at an early stage of the hearing that this was my view. I also said that it was not the task of the court to draft alternative wording for the claimant. Since the hearing, therefore, he has formulated alternative wording. This has generated a further round of written submissions, over the 24 hours since the hearing concluded. What is now proposed is a geographical restriction or "exclusion" zone for protest, defined by reference to streets around Wood St, and a Google map.
55. This seems to me in principle to be a legitimate approach. It is one which has been taken regularly over several years in cases concerned with striking a balance between the protest rights of animal rights campaigners and those of research organisations and their staff. Such an order sets no limit on the kinds of speech that may be used by those involved in a protest. It defines where protest may take place. It is possible to frame an order of this kind which sets clear boundaries, without destroying the essence of the right to protest, which does not depend on location, and without interfering disproportionately with Article 10 and 11 rights: see Appleby v United Kingdom (2003) 37 EHRR 38 [47], and Manchester Ship Canal Developments Ltd v Persons Unknown [2014] EWHC 645 (Ch) [37], where the court was concerned with a protest camp in the vicinity of a fracking site. I am prepared in principle to grant such an order.
56. For the defendant, Mr Powell makes three main points in response to this revised approach on behalf of the claimant: (1) it is quite different from the order which the claimants came to court to obtain; (2) there is no legal basis for such an order, because the claimants lack a cause of action to sustain one; their real purpose is to protect third parties in order to spare themselves embarrassment in the eyes of their contractual partners and the tenants of Wood St; (3) even if there were a basis for an order, this one is unacceptable because of its blanket nature, which means that it would intrude into lawful protest.
57. The first point is quite correct, but I do not see it as an obstacle to the just resolution of this dispute. The defendants have not been unfairly 'bounced' by the shift of position. It was evident at the hearing that something of this kind might emerge from the debate that was undertaken. If the claim succeeds on a basis advanced at a late stage that can be catered for by an appropriate costs order. The second point is sound in principle of course. No injunction can be granted where there is no cause of action over which the court has jurisdiction. Mr Powell reminds me of The Siskina (Siskina v Distos Compania Naviera SA [1979] AC 210). I have already dealt with the point, however, noting Mr Powell's concession. In summary, a trial court would in my view probably conclude that the claimants have demonstrated a risk of conspiracy to injure by unlawful means. The third point goes too far. It is well established that an injunction to restrain unlawful activity can be made in a form which risks incidentally impinging on lawful activity. The court will be careful to avoid such a risk. But the matter is one of fact and degree.
58. Mr Powell objects to the scope of the geographical restriction proposed, submitting that it creates far too large an exclusion zone. There is a dispute between the parties about how large the proposed zone really is. But I think Mr Powell is right to submit that it is not necessary to go so far as to place all protesters out of line of sight of any entrance to Wood St. I would accept the claimant's alternative proposal for a limit of 30 feet from any entrance or exit, expanding this modestly to 10 metres for the purpose of ease of application. The order will need to have a proviso which makes clear that the exclusion will not prevent any present or former member of the Wood St cleaning staff or any official of the union who represents such workers from attending at or near a Wood St entrance or exit for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working. It will be enough in the circumstances of this case to limit the numbers to six at any one entrance or exit.
59. Subject to that, for the reasons I have given am satisfied that a reasonable and workable "exclusion zone" injunction order can and should be formulated, by adaptation of the draft now presented by the claimants. I will hear Counsel on the finer detail.