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
		2 June 2016

Mr Justice Supperstone :

Introduction

1. GTR, a train operating company, applies for an interim injunction to restrain ASLEF, the train drivers' union, from inducing train drivers who are employed by GTR on the Gatwick Express and Southern Services to breach their contracts of employment by taking part in industrial action consisting of strike action or action short of a strike.
2. On 22 April 2016 Langstaff J granted an injunction against ASLEF in the following terms (together with specified requirements, which ASLEF complied with, to notify its members of the position):

"Until trial or further order or lawfully within the scope of sections 219-244 of TULRCA [that is the Trade Union Labour Relations (Consolidation) Act 1992], the Defendant must not whether by itself, its servants or agents, direct or indirectly, and by any means whatsoever, instruct, induce or encourage the Defendant's members who are drivers employed by the Claimant and who are required to drive on the Gatwick Express train service not to drive and operate twelve-car trains on a Driver Only Operation [passenger] ('DOO[P]') basis, when instructed to do so."

3. The parties agreed that there would be a speedy trial and a speedy trial has been listed for a three-day window beginning 27 June, with a time estimate of 4-5 days.
4. ASLEF applied to Langstaff J for permission to appeal against the injunction but permission was refused. An application for permission to appeal to the Court of Appeal was refused on 25 May by Christopher Clark LJ.
5. At the time of the hearing before Langstaff J ASLEF had not conducted a ballot for industrial action, but it was known that the union was intending to hold an industrial action ballot on the twelve-car DOO issue.
6. On 28 April Mr Whelan, ASLEF's General Secretary, wrote to Mr Evans, head of Employee Relations at GTR, giving notice of ASLEF's intention to conduct an industrial action ballot. The letter stated:

"Trade dispute. We are in dispute with you concerning the extension of Driver Only Operation (Passenger) without the agreement of ASLEF and contrary to our established procedures and all other matters arising out of and in consequence of the dispute."

7. The letter went on to specify the categories of members to be balloted as well as their depots. The ballot paper reiterated the nature of the dispute in the following terms:

"Trade dispute between ASLEF and GTR Southern/Gatwick Express concerning the extension of Driver Only Operation (Passenger) without the agreement of ASLEF and contrary to our established procedures and all other matters arising out of and in consequence of the dispute."

8. On 23 May, ASLEF members balloted voted in favour of industrial action.

The Statutory Framework

9. Section 20 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) provides, so far as is material:

"(1) Where proceedings in tort are brought against a trade union—

(a) on the ground that an act

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

(ii) consists in threatening that a contract (whether one to which the union is a party or not) will be broken or its performance interfered with, or that the union will induce another person to break a contract or interfere with its performance…

then for the purposes of determining in those proceedings whether the union is liable in respect of the act in question, that act should be taken to have been done by the union if, but only it, it is to be taken to have been authorised or endorsed by the trade union in accordance with the following provisions.

(2) An act shall be taken to have been authorised or endorsed by a trade union if it was done, or was authorised or endorsed—

(b) by the principal executive committee or the president or general secretary."

10. Section 219 provides a union with statutory protection from certain tort liabilities if various conditions are satisfied. Sections 219(1) and (4) provide that an act done by a person in contemplation or furtherance of a trade dispute is not actionable on the ground that it induces another person to break a contract, or consists of threatening to induce another person to break a contract, provided that the conditions relating to balloting and notification laid down in TURLCA are met.
11. Section 226 provides that:

"(1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action

(a) is not protected unless the industrial action has the support of a ballot…

(2) Industrial action shall be regarded as having the support of a ballot only if—

(a) the union has held a ballot in respect of the action

(ii) in relation to which the requirements of sections 227 to 231 were satisfied, and

(c) the requirements of section 233 (calling of industrial action with support of ballot) are satisfied.

(4) For the purposes of this section an inducement, in relation to a person, includes an inducement which is or would be ineffective, whether because of his unwillingness to be influenced by it or for any other reason."

12. Section 227 provides

"(1) Entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced [by the union] to take part or, as the case may be, to continue to take part in the industrial action in question, and to no others."

13. Section 228 provides for separate workplace ballots. Section 228(1) provides "Subject to sub-section (2), this section applies if the members entitled to vote in a ballot by virtue of section 227 do not all have the same workplace".
14. Section 228(3)(b) provides that subject to section 228A, a separate ballot shall be held for each workplace; and entitlement to vote in each ballot shall be accorded equally to, and restricted to, members of the union who have that workplace.
15. Section 228A allows for aggregate ballots in certain circumstances. Section 228A(1) provides that where section 228(3) would require separate ballots to be held for each workplace, a ballot may be held in place of some or all of the separate ballots if one of sub-sections (2)-(4) is satisfied in relation to it. Sub-section (2) states that this sub-section is satisfied in relation to a ballot if the workplace of each member entitled to vote in the ballot is the workplace of at least one member of the union "who is affected by the dispute". Sub-section (3)(a) provides that this sub-section is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who according to the union's reasonable belief have an occupation of a particular kind or have any of a number of particular kinds of occupation. Sub-section (4) provides this sub-section is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute. Sub-section (5)(a) provides that for the purposes of sub-section (2) members of the union affected by a dispute are, if the dispute relates (wholly or partly) to a decision which the union reasonably believes the employer has made or will make concerning a matter specified in, inter alia, sub-sections (1)(a)-(c) of section 244 (meaning of "trade dispute"), members whom the decision directly affects.
16. Sub-section (1)(a) of s.244 concerns terms and conditions of employment, or the physical conditions in which any workers are required to work; sub-section (1)(c) concerns allocation of work or the duties of employment between workers or groups of workers.
17. Statutory protection is also subject to section 233. Section 233(1) provides that industrial action shall not be regarded as having the support of a ballot unless it is called by a specified person and certain conditions are satisfied. Sub-section (3)(a) provides that "there must have been no call by the trade union to take part or continue to take part in industrial action to which the ballot relates, or any authorisation or endorsement by the union of any such industrial action, before the date of the ballot". Sub-section (3)(b) provides that there must be a call for industrial action by a specified person, and industrial action to which it relates must begin, before the ballot ceases to be effective in accordance with section 234.
18. Section 221(2)(a) provides that where an application for an interlocutory injunction is made to a court pending the trial of the action, and the party against whom the application is made 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 succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219. In London and Birmingham Railway Ltd v ASLEF (known as the SERCO case) [2011] ICR 848, Elias LJ (at para 18) interpreted this test as requiring the court to consider whether it is "more likely than not" that the union will succeed at trial in showing that the immunities will apply.

The Factual Background

19. On 21 January 2016 Mr Evans wrote to Mr Morris, ASLEF's district organiser, a letter headed "Re: Introduction of new Class 387 Rolling Stock to Gatwick Express":

"As you are aware GTR will be introducing new trains – Class 387s to the Gatwick Express Service to replace the old Class 442 trains currently in use. The roll out of new stock commences in March 2016 and as previously discussed and agreed the training for both Gatwick Express and Southern Drivers is signed off and progressing well.

…

It is our intention to operate these trains DOO, in line with the current Gatwick Express operating model and the Brighton mainline status as a DOO Scheme. I have raised this matter at the Southern and Gatwick Express Drivers Functional Council (DFC) to discuss implementation on 14 March 2016 and sort out any operational issues. However DFC has advised that this needs to be raised with you as District Organiser and declined to discuss implementation without you present. …"

20. On 10 Feburary Mr Whelan replied to Mr Evans:

"My Executive Committee have instructed me to advise you that the introduction of 12 car DOO services on Gatwick Express is an extension of DOO(p) and consequently not acceptable to ASLEF.

Further any implementation of this method of working will bring the company into dispute with ASLEF."

21. On 31 March Mr Evans wrote to Mr Morris in a letter headed "Re: DOO(P) 12 Car Operation on the Gatwick Express":

"I refer to my letter of 21 January 2016 inviting you to engage with us on the implementation of new rolling stock (Class 387s) in 12 car formation together with the extension of Gatwick Express services to Brighton. The reply from Mr Whelan, on behalf of ASLEF, stated that this was 'not acceptable' to ASLEF because it constituted 'an extension of DOO(P)'.

I am writing to you again in the hope that having considered the background and reasons for this improvement in service, which I lay out below, you will reconsider and engage with GTR. Unfortunately, failing that we will have little choice but to proceed with implementation shortly and without your involvement, which is a situation we would very much prefer to avoid.

…

As you are aware, GTR plans to implement extended Gatwick Express services using new Class 387 trains in 12 car formation. We first discussed this with ASLEF on 22 October 2015 and there has been ongoing dialogue."

Having noted that ASLEF's position is that it will honour existing arrangements and agreements, Mr Evans continued:

"It would appear… that ASLEF's current refusal to discuss DOO(P) is the product of an agreement with the RMT which is of no relevance whatsoever to Gatwick Express services." (RMT is the union that represents conductors on trains).

The letter concludes:

"Furthermore Drivers are contractually obliged to co-operate with the company in respect of the proposals outlined in this letter.

Based on the above I am writing as a courtesy to let you know that GTR intends to introduce 12 car operation on the Gatwick Express with the roll out of the new Class 387 units in early April 2016, as well as extend the Gatwick Express to run to Brighton. I trust that your union will co-operate fully with the new rolling stock introduction.

I would welcome your engagement on how we can close this out speedily; some guidance to DFC to commence discussion seems the obvious way forward.

If I do not hear from you by return then we will regretfully have to proceed without your involvement."

22. On the same day, 31 March Mr Evans wrote to Mr Morris a second letter headed "Re: Extension of DOO(P)", stating:

"I am writing to formally advise you that it is our intention to move to DOO(P) as the preferred method of operation for all trains which are fully in-cab CCTV equipped.

In respect of Southern, the impact of this is that all Class CL.377 and CL387 units will operate in DOO(P) from the end of July 2016."

The letter concludes:

"Given that DOO(P) is our main method of operation, we believe that there is no reason why the changes we propose should be unacceptable to you and we look forward to the full co-operation of all Drivers in this respect over the coming months, in line with their contractual obligations.

We will continue to work with local representatives on plans to implement new rolling stock, utilise technology, change dispatch methods and ensure risk assessments are in place.

We look forward to working with you on progressing these plans over the coming months."

23. On 4 April Mr Whelan sent a circular to all branches, reps and HS reps, GTR Southern and Gatwick Express stating that members are reminded that:

"There is no agreement with ASLEF for 12 car DOO for normal working on GTR Southern and Gatwick Express. (Underlined)

The circular continued in bold: "Please bring the contents of this circular to the attention of your members."

24. On 5 April Mr Whelan sent a text message to ASLEF members, as follows:

"Colleagues, please be aware there is no agreement with ASLEF for 12 car DOO for normal working on GTR Southern and Gatwick Express."

25. On the same day, 5 April, Mr Whelan wrote two letters to Mr Evans in reply to his two letters of 31 March to Mr Morris. The first one stated:

"I must advise you that we will be in dispute if the inherently unsafe 12 car DOO(P) proposals on Gatwick services are imposed."

In the second letter he wrote:

"I must advise you that ASLEF will not be agreeing to any extension of DOO(P), and we will be in dispute if any such DOO(P) proposals are imposed."

26. Mr Evans replied to Mr Whelan on 6 April in respect of the first letter relating to Gatwick Express. He wrote:

"In the interests of transparency I am writing to notify you that we intend to begin implementing 12 car DOO(P) operation with effect from Saturday 9 April, or shortly thereafter.

We will require all drivers – who have been trained on using the new Class 387s (the training being fully agreed with ASLEF) – to undertake these services when instructed to do so.

Whilst we acknowledge that ASLEF can enter into dispute over this matter, we expect ASLEF not to induce any drivers to breach their contracts by refusing to operate the new Class 387s when instructed to do so shortly."

27. On 8 April Mr Whelan sent a text message to ASLEF members:

"Southern and GEX to impose 12 car DOO working. ASLEF to ballot for industrial action. Details to follow." (A similar message appeared in the Bastille Times).

28. On the same day, 8 April, Mr Whelan wrote to Mr Evans in a letter headed "GTR: DOO(P) 12 car operation on the Gatwick Express – ASLEF ballot for industrial action":

"Further to your letter dated 6 April 2016 (received today, 8 April 2016) I write to advise that given the company's intention to impose 12 car DOO(P) operation on the Gatwick Express my Executive Committee has instructed me to inform you that it is ASLEF's intention to ballot our driver members employed by Southern and Gatwick Express for industrial action."

29. On 11 April Mr Evans wrote further to Mr Whelan in a letter headed "Extension of DOO(P)":

"Thank you for your letter of 5 April 2016, advising that you will not agree to any extension of DOO(P).

Obviously, this is disappointing, for all the reasons set out in our letter of 31 March 2016, (which you have not commented on) however, your actual agreement is not required, although we would welcome your engagement and co-operation. …"

30. Again on the same day, 11 April, Mr Evans wrote to Mr Whelan in a letter headed "DOO(P) 12 car operations on the Gatwick Express":

"As you will undoubtedly be aware on Saturday 9 April 2016 one of our drivers [that was Mr McNamara] booked on for duty but refused to drive the new Class 387 as a 12 car in DOO(P) from Victoria. …

When the driver was asked for his reasons he stated there was no agreement for 12 car DOO(P) and informed us that he had received a text message from ASLEF stating that he should not drive a train in 12 car DOO(P).

…

The driver also informed us that he had been told by ASLEF that they are in dispute with the company regarding 12 car DOO(P) operation on the Gatwick Express and will pursue strike action. Whilst I acknowledge that ASLEF is in dispute with the company over this matter I was clear in my letter of 6 April 2016 that I did not expect ASLEF to induce any drivers to breach their contracts by refusing to operate the new Class 387s when instructed to do so.

…

It is extremely concerning that ASLEF appear to have told their drivers not to co-operate with the company's implementation of 12 car DOO(P) operation on the Gatwick Express and have specifically instructed them not to drive 12 car trains in DOO(P). In the circumstances it seems clear to me that ASLEF are inducing drivers to breach their contracts by refusing to operate the new Class 387s when instructed to do so.

The company requires an immediate undertaking from you that ASLEF will not induce any drivers to breach their contracts by refusing to operate the new Class 387 rolling stock in 12 car formation in DOO(P) on the Gatwick Express when instructed to do so.

…

The company requires a further immediate undertaking that ASLEF will expressly tell its driver membership that they are contractually obliged to operate the new Class 387s in 12 car formation in DOO(P) on the Gatwick Express.

If you fail to provide these undertakings voluntarily by 5pm on Wednesday 13 April 2016, I will be left with no alternative but to consider all legal routes available to the company including an injunction if necessary."

31. The minutes of ASLEF's executive meeting on 11 April, chaired by Mr McDonald, ASLEF's president, (with Mr Whelan in attendance) record:

"Item: 394/2016 IR/GX/42 Correspondence from the head of employee relations, GTR Re Southern/Gatwick Express – 12 car DOO working.

The correspondence before the EC advises that the company intend to implement 12 car DOO on Gatwick Express from the 9^th April. The Executive Committee dealt with the matter by adopting the following resolution;

…

'That the report be noted and the general secretary be instructed to advise the head of employee relations, GTR, that their implementation of 12 car DOO is not acceptable to ASLEF.

Further, the general secretary be instructed to give the head of employee relations, GTR statutory notice of our intention to ballot our driver members employed by GTR on Southern and Gatwick Express, for strike action and for action short of a strike.' "

32. At a meeting attended by Mr Whelan and Mr Evans and others on 13 April Mr Whelan said that ASLEF's position is one of principle and it will not agree to any extension of DOO.
33. On 28 April GTR was served with notice of ASLEF's intention to conduct an industrial action ballot in the terms that I have referred to.

The Issues

34. Mr Cavanagh QC (together with Mr Milford) who appear for GTR, and Mr Hendy QC (together with Mr Brittenden) who appears for ASLEF, as they did before Langstaff J, agree that there are three issues for determination at this hearing:

i) First, whether in breach of s.233(3)(a) of the TULRCA, ASLEF has already called upon members to participate in industrial action "to which the ballot relates" before any call to take industrial action following the ballot in respect of which notice was given on 28 April. Mr Hendy accepts that if ASLEF has made such a "prior call", that any subsequent industrial action is deemed by s.233(1) as not having the support of a ballot, and as such is not lawful.

ii) Second, whether the ballot is invalid because entitlement to vote has been granted to ASLEF members at a workplace or workplaces at which no ASLEF member is affected by the trade dispute, for the purposes of s.228A(2) and (5) of the TULRCA.

iii) Third, whether the injunction granted by Langstaff J should be discharged by reason of the evidence now available which shows that there is no real prospect of GTR succeeding in proving at trial all the elements of the tort of inducement of breach of contract based upon the communications sent by ASLEF to its members on 4 and 5 April 2016.

35. I shall consider the three issues in turn, although Mr Hendy's submissions on issues 1 and 3 are closely interlinked. Before doing so I shall first consider a general issue that is relevant to both issues 1 and 2, namely what is the nature of the trade dispute.

The Parties' Submissions and Discussion

The Trade Dispute

36. The parties are agreed that there is a trade dispute. The issue is the nature of the dispute. GTR contend that the dispute is about the introduction of trains with 12 cars which operate on a "Driver Only Operation (Passenger)" (DOO) basis on the Gatwick Express service. ASLEF contend that the subject matter of the dispute is not so limited and that it concerns the operation of DOO trains with 12 cars on which there are no conductors or other staff on board the train on both Gatwick Express and Southern services.
37. In determining the subject matter of the dispute I have had particular regard to the contemporaneous documentation (see observations of Sir John Donaldson MR in Mercury Communications Ltd v Scott-Garner [1984] ICR 74 at 106H; and the recent judgment of Kerr J in Secretary of State for Education v NUT [2016] EWHC 812 (QB) at para 72).
38. Mr Hendy submits that, however the dispute first arose, it was GTR's two proposals in Mr Evans' letters of 31 March that led the union to say that what they disputed was the imposition of the extension of DOO without their agreement. That dispute was then formulated as such in the ballot paper (see second witness statement of Mr Whelan at paras 30-31; third witness statement of Mr Morris at para 43; and witness statement of Mr McDonald at paras 23-27).
39. I accept that considerable importance should be attached to the wording of the question posed in the ballot paper (see Neill LJ in Wandsworth LBC v NASUWT [1994] ICR 81 at 96). However the language in the ballot paper is, as is often the case, loose. Significantly, in my view, the resolution of the executive committee (which has exclusive responsibility for making decisions about the taking of industrial action) makes clear that the decision it made on 11 April to ballot was based on the decision of GTR to implement 12 car DOO on Gatwick Express. The issue at Southern did not relate to the introduction of new 12 car services, but to converting existing services with in-cab CCTV capacity to DOO.
40. That this is so is reinforced by ASLEF's website message of 8 April which states that there will be a ballot of drivers on Southern and Gatwick Express for industrial action "as a result of a threat to impose 12 car DOO(P) working, without agreement, from 9 April on Gatwick Express". Moreover, the covering letter that enclosed the ballot paper of 28 April started "Further to my letter dated 8 April 2016". The only letter of 8 April was from Mr Whelan to Mr Evans about 12 car DOO on Gatwick Express.
41. I consider GTR to have a strong case that the trade dispute was, as they contend, about the introduction of trains with 12 cars which operate on DOO basis on the Gatwick Express service.
42. I turn now to consider the three issues.

The First Issue: s.233(3)(a), a prior call to industrial action

43. Mr Hendy submits that in order to constitute a prior call to take industrial action for the purposes of s.233(3)(a) GTR need to establish that the alleged prior call amounted to an inducement to breach a driver's contract of employment such as to constitute industrial action.
44. Mr Cavanagh disagrees. He accepts it is arguable that a call has to be a call for industrial action which would amount to a breach of contract, but he submits that there is no need for the call to amount to the tort of inducing breach of contract. Section 233 uses the word "call" rather than the word "inducement". There is, he submits, no basis in the statutory language for the view that the other ingredients of the tort, such as knowledge, are required.
45. I am not satisfied Mr Cavanagh is correct. I consider it at the very least arguable that the proper interpretation of the word "call", read in the context of the material statutory provisions as a whole, is that the prior call does have to amount to the tort of inducing breach of contract.
46. Mr Hendy submits that Mr Whelan, the relevant officer, (1) did not possess the requisite knowledge that the communications he sent on 4 and 5 April would result in any driver breaching his contract of employment; (2) that he did not possess the requisite intention that they would do so; and (3) that the communications constituted the mere provision of information to members, and accordingly they were not actionable as a tort of inducement.
47. Logically the first requirement is that there be an inducement. Mr Hendy submits that the communications of 4 and 5 April were "advice" (meaning "a mere statement of, or drawing of the attention of the party addressed to, the state of facts as they were") and not "persuasion" (see distinction drawn by Lord Evershed MR in DC Thomson & Co Ltd v Deakin [1952] Chancery 646 at 686). Members are not told to do anything (or not to do anything). Mr Hendy contends that to the extent that those communications could be said to constitute inducements (which ASLEF denies), then the clear message on 8 April that ASLEF was to ballot for industrial action negates any such effect. The reference to a ballot is short-hand for explaining to members that they will only be asked to withdraw their labour once a lawful ballot has taken place (see London Borough of Newham v NALGO [1993] ICR 189, per Woolf LJ at para 18).
48. Langstaff J found that there was a serious issue to be tried as to whether the statements made by ASLEF amounted to an inducement to its members to decline to drive the 12 car DOO trains. Christopher Clarke LJ said that the judge was entitled to so hold. I agree with Mr Cavanagh that in the context of the highly disciplined and unionised environment in which these messages were sent and given their timing, it is strongly arguable that they were a clear message to the drivers to refuse to drive the trains.
49. I further agree with Mr Cavanagh that the fact that only one person, Mr McNamara, was induced on GTR's case, not to drive a train (Mr McNamara now challenges that contention) is immaterial. The requirement of s.233(3) is that there be a call, not that a particular number of union members withdraw their labour as a result of the call.
50. Mr Hendy accepts for the purposes of this hearing the refusal to drive 12 car DOO on the Gatwick Express service was a breach of contract.
51. However Mr Hendy and Mr Brittenden at paragraph 43 of their skeleton argument contend that:

"In order for the Claimant to succeed it must not merely show that, as a matter of law, the collective agreements did not debar it from instructing drivers to drive 12-car Gatwick Express trains DOO(P), it must go on to show that ASLEF's case to the contrary is dishonest. It must show a seriously arguable case that Mr Whelan and Mr Morris dishonestly asserted a belief that the collective agreements debarred the Claimant from instructing drivers to drive 12-car Gatwick Express trains DOO(P) and that ASLEF have put forward a knowingly false case both in these two interim hearings and in its Defence…"

52. This is not so. The relevant legal principles are summarised in the speech of Lord Hoffmann in OBG Ltd v Allan [2008] 1 AC 3 at paras 39-44 (the material parts of which read as follows):

"39. To be liable for inducing breach of contract you must know that you are inducing a breach of contract. It is not enough that you know that you are procuring an act which, as a matter of law or construction of the contract, is a breach. You must actually realise that it will have this effect…

40. The question of what counts as knowledge for the purposes of liability for inducing a breach of contract has also been the subject of a consistent line of decisions. In Emerald Construction Company Ltd v Lowthian [1966] 1 WLR 691… Lord Denning MR said at pp.700-701:

'Even if they did not know the actual terms of the contract, but had the means of knowledge – which they deliberately disregarded – that would be enough. Like the man who turns a blind eye. So here, if the officers deliberately sought to get this contract terminated, heedless of its terms, regardless whether it was terminated by breach or not, they would do wrong. For it is unlawful for a third person to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not.'

41. This statement of the law has since been followed in many cases and, so far as I am aware, has not given rise to any difficulty. It is in accordance with the general principle of law that a conscious decision not to enquire into the existence of a fact is in many cases treated as equivalent to knowledge of that fact: see Manifest Shipping Co. Ltd v Uni-Polaris Insurance Co. Ltd [2003] 1 AC 469…"

At paragraphs 42 and 43 Lord Hoffmann considered what counts as an intention to procure a breach of contract, an issue to which I will return.

53. Mr Hendy submits that it is evident from the witness statements, in particular of Mr Whelan, Mr McDonald, Mr Morris and Mr McNamara that they all genuinely believe that drivers are contractually entitled to refuse to operate more than 10 car DOO units in the absence of abnormal circumstances. It is, he submits, understandable from the documents why ASLEF believed its agreement was necessary for any extension of DOO working such as on the Gatwick Express and elsewhere. ASLEF officers therefore did not "know" that they were inducing breach of contract. It is equally clear, Mr Hendy submits, from the evidence that Mr Whelan (and other senior officers of ASLEF) did not intend that anyone reading the messages sent on 4 and 5 April would withhold their labour.
54. Mr Whelan, in his second witness statement said:

"35. For the avoidance of doubt, I make clear that I and ASLEF believe that there is no contractual duty on drivers to drive 12 car trains DOO(P) in normal circumstances.

36. I stress that the texts were statement of fact and were for information to our members. They did not instruct or even require our members to do anything nor did they encourage our members to refuse to work, or otherwise breach their contracts of employment as is suggested. I can totally, honestly, and genuinely confirm that neither I nor ASLEF intended that anyone reading these text messages would withhold their labour. I intended to ballot to take action in response. ASLEF never calls for industrial action without a ballot and always tries to keep within the law. I do not see how it is possible to read my messages as a call to members to engage in unofficial industrial action. They were certainly never intended as such. Whenever ASLEF calls for industrial action, it makes it abundantly clear to members what they are being asked to do. It cannot possibly be said of the messages on 4 an 5 April – that members were being asked not to drive trains. …

44. ASLEF members expect the union to provide them with updates as to what is happening, and what stance the union will take in the face of disputes or disagreements of this nature. I really do not see how or why a trade union should be prevented from telling members that no agreement had been reached with their union in relation to the matter in dispute, or that steps were being taken to arrange a ballot. …

57. I would only add that I am very well aware that industrial action can only be sanctioned by the executive committee. I do not have the authority to bypass the executive committee, and I am well aware that the minefield of provisions in the 1992 Act have to be complied with before industrial action is taken. This is essential to protect the union from injunctions and damages claims and to protect members against dismissal and disciplinary proceedings. I have never ever in all my tenure as general secretary acted outside the rules of the union as regards calling industrial action, let alone called unofficial action. It is simply something I would not countenance for one second. I admit to being conscious that not only might such a call lead to claims against the union and dismissal of my members, it could also lead to discipline against me and even my removal from office – a position I cherish."

(See also, in particular, witness statements of Mr McDonald at paras 15 and 16; third witness statement of Mr Morris at paras 19 and 35; and his fourth witness statement at aras 19-21).

55. Mr Hendy accepts that (as noted by Langstaff J at para 28 of his judgment) "absent a contractually enforceable restraint, the employees of Gatwick Express could be asked to drive 12 car DOO". That must be correct. The terms of the contracts of drivers who work on Gatwick Express are wide; and they have an implied duty to adapt to new technology and changes to working practices. ASLEF's position is that there are prohibitions in collective agreements, which have become incorporated in the employees' contracts of employment, which are to the effect that employees were entitled contractually to decline an instruction to drive 12 car DOO. For present purposes Mr Hendy is relying on the 2013 collective agreement.
56. Langstaff J considered GTR's case on this issue to be a strong one (see paras 40-42 of his judgment). I agree. It appears to be clear that the 2013 agreement (and its predecessor in 2009) was intended to govern what happens when a conductor is not available on a train that was due to travel with a conductor. It was not an agreement which determined which trains would travel with a conductor and which trains would travel DOO. The agreement states that it applies to Class 377 trains; Gatwick Express exclusively used Class 442 trains. The list of stations in the agreement includes many stations that are not on the Gatwick Express route; it was covering the Brighton main line, not the Gatwick Express service.
57. Mr Cavanagh submits that it is blindingly obvious to anyone who looks at the 2013 agreement that it does not prohibit the introduction of 12 car DOO on Gatwick Express.
58. On 27 November 2015 ASLEF and RMT issued a joint statement on DOO which reads:

"We are completely opposed to Driver-Only Operation and its forms, including Driver Controlled operation (DCO) and Driver Door Operation (DDO), throughout the network. We firmly believe this method of operation is less safe for passengers and the workforce and our unions will not agree to the extension of DOO or DCO/DDO under any circumstances."

Mr Cavanagh submits ASLEF was indifferent as to whether this policy would cut across contractual obligations.

59. Mr Evans in his letter of 31 March relating to Gatwick Express made clear that GTR were of the view that drivers are contractually obliged to drive 12 car DOO on Gatwick Express. Yet, as Mr Cavanagh observes, there is no suggestion that Mr Whelan or the union, sought legal advice as to the contractual position before the messages of 4 and 5 April were sent; nor did Mr Whelan's response to Mr Evans on 5 April assert that GTR had no contractual entitlement to instruct drivers to drive 12 car DOO on Gatwick Express or to extend DOO.
60. Having considered the terms of the collective agreement and the documentation to which I have referred, I have reached the conclusion that GTR have a strong case that Mr Whelan and other senior officers of ASLEF either wilfully blinded themselves to the possibility that Gatwick Express drivers were being induced to breach their contracts of employment or that they were indifferent to whether this was the case or not. GTR are not required, in my view, to establish that the union positively intended that their actions would have resulted in a breach of contract. The case of Millar v Bassey referred to at para 43 of Lord Hoffmann's speech on OBG was very different and does not assist the union.
61. The next question is, if there was a call, was it a call to which the ballot relates.
62. Mr Hendy submits that under s.233 industrial action does not have the support of a ballot where there has been a prior call to take the very industrial action to which the ballot relates. The prior industrial action must therefore be the very industrial action supported by the subsequent ballot.
63. Mr Hendy submits that there was no prior call for industrial action to which the ballot relates in the present case for three reasons. (1) First, industrial action by one individual driver or even the 53 employed on Gatwick Express is not the industrial action to which the ballot relates which will be of all members balloted. (2) Second, the industrial action which Mr McNamara was said to have been induced to take was that of refusing to drive 12 car DOO trains but otherwise to work normally. By contrast the industrial action to which the ballot relates is likely to consist of an all-out strike. (3) Third, on GTR's case the industrial action which Mr McNamara was said to have been induced to take was restricted to not driving in normal service 12 car Gatwick Express trains with passengers but without conductors. The industrial action to which the ballot relates will cover all trains of any length on Gatwick Express or on Southern routes.
64. I consider these submissions to be based on too narrow a reading of the words "industrial action to which the ballot relates". I am satisfied that it does not matter that the earlier call was for industrial action short of a strike, whilst the ballot is for industrial action short of a strike and for strike action. The type of industrial action contemplated by the ballot, on GTR's primary case, is the same industrial action, that is refusing to drive trains 12-car DOO(P) on Gatwick Express. Even if I am wrong about the scope of the trade dispute the fact remains that the ballot encompasses the industrial action relating to the 12 car DOO.
65. There is no requirement in s.233(3)(a) for the industrial action which was the subject of the prior call to be exactly the same as the industrial action which is the subject of a ballot. The only requirement is that the first industrial action is "industrial action to which the ballot relates". The word "relate" is, as Mr Cavanagh submits, a broad word and s.233(3)(a) does not use the definite article. If there was a requirement that the industrial action which is the subject of the ballot be exactly co-extensive with the industrial action which was the subject of the prior call, it would be very easy for a union to side-step it.
66. Mr Hendy submitted that the simple fact that there has been a call for industrial action before the ballot does not mean that a ballot is unlawful and that it is not every call for industrial action that will render subsequent industrial action unlawful. In support of this submission Mr Hendy relied on the decision in Newham LBC v NALGO.
67. In further support of his submission Mr Hendy referred to passages in Harvey headed "Endorsing unofficial industrial action" (paras 2858-2860) in which the editors appear to suggest that a union can after a ballot lawfully endorse previously unofficial action.
68. Mr Hendy submitted that unless this was so it would mean that a union would be precluded from taking lawful effective action in, for example, a factory closure situation, when shop stewards had unofficially instructed their members to walk out and the union executive ordered them to return to work so that proper notice could be given to the employer and a ballot take place before an all-out strike. That, Mr Hendy submits, would be unjust.
69. However, Mr Cavanagh submits that it cannot be assumed that s.233(3)(a), which was introduced in the Trade Union Act 1984 was not intended to have a far reaching effect. I accept Mr Cavanagh's submission that the trigger is the call, not any industrial action that follows. The Newham decision does not assist Mr Hendy; it shows that s.233(3)(a) will apply unless the prior call was "separate and distinct" from the industrial action to which the ballot relates, which is not the present case.
70. I conclude that GTR have a strong case that there was a prior call for industrial action to which the ballot relates.

The Second Issue: s.228A(2), the voting constituency

71. On the basis, as I find, that the trade dispute is about the introduction of trains with 12 cars which operate on DOO basis on the Gatwick Express service, only two groups of drivers are affected. First, the Gatwick Express drivers who are based at Victoria Gatwick Express; and second, the Southern drivers who are occasionally asked to provide cover who are based at Brighton, Barnham and Selhurst. Drivers based at the other Southern depots do not drive on the Gatwick Express service and so will not be affected by the decision to require drivers to drive 12 car DOO on Gatwick Express. Accordingly the ballot has been extended to workplaces at which there is no union member who is directly affected by the decision of GTR to which the dispute relates.
72. If, contrary to my view, the trade dispute is not limited to drivers on the Gatwick Express route, the issue concerns the inclusion of Caterham. 18 drivers are based at Caterham, of whom 11 are ASLEF members.
73. Mr Binden accepts that in relation to all drivers based at Caterham that "there is a small chance" that they may be asked to drive outside their permanent diagrams within their knowledge competence in exceptional circumstances. This would involve the prospect of them operating 12-car DOO(P) if GTR extends their operation as it has said it will from July 2016. For that reason Mr Hendy submits that it cannot be stated that no driver at Caterham will be affected. Further, given GTR's pleaded case that under the terms of employment drivers are simply employed as drivers "rather than drivers of any particular type of train" and that it can allocate duties as they reasonably determine, they have the right to require drivers to operate trains of any length on any route DOO(P) with or without the agreement of ASLEF. That being so Mr Morris suggests that as part of their normal duties there is no reason why a driver from Caterham might not be asked to drive a 12 car train on the Brighton main line to Purley from either London Bridge or London Victoria to cover for a displaced driver, and this train might be after July 2016 operated DOO.
74. Mr Grier, head of drivers for GTR Southern (previously head of operations main line and for two years head of control for the Southern network), accepts that in principle a driver from Caterham would be permitted to do this, but in practice it would be exceptionally unlikely to happen, he is not aware of it ever having happened when he was head of control and he says it is simply not a realistic possibility. In his witness statement he explains why this is so.
75. Having considered all the evidence on this issue it appears that there is no more than a remote possibility that a Caterham driver might be asked to drive a 12 car train operated DOO. However a remote possibility is not sufficient for ASLEF's purposes. The wording of s.228A(2) is concerned with a member of the union who "is affected" by the dispute; and sub-section (5) refers to members whom the decision directly affects. Contrary to Mr Brittenden's submission I do not accept that the requirements of s.228A are met if the union reasonably, though mistakenly, believed that at least one driver was directly affected at each of the depots that were balloted. I do not consider that the union are more likely than not to succeed on this issue.
76. Mr Hendy submits that if the Caterham drivers were wrongly included this was an error which is de minimis (amounting to less that 2% of those balloted) or excusable by reference to s.232B: see Serco, per Elias LJ at paras 78-86.
77. I reject this submission. First, the "Small accidental failures to be disregarded" exclusion in s.232B does not apply to breach of s.228A. Second, the breach here is not a "technical failure". Section 228A contains procedural requirements contained in an Act of Parliament which all trade unions must comply with if any call for industrial action is to be lawful and the union is to have immunity from suit (see British Airways plc v Unite the Union [2010] IRLR 423, per Cox J at para 82.
78. Third, the obiter statements in Serco, on which Mr Hendy relies, were made in a case concerning notification requirements where failure to notify would not have an adverse effect on the result (see Elias LJ at para 86). In the present case concerning the ballot constituency I accept Mr Cavanagh's submission that the consequences of including the Caterham drivers are not de minimis. The union chose to aggregate votes but failed to comply with the requirements of s.228A that permitted them to do so. Mr Cavanagh observes that if there had been a ballot for each workplace there may have been a vote against a strike at some workplaces. More importantly the correct way to hold an aggregate ballot would be to include all drivers across GTR (see s.228A(3) and (4)). This would have included drivers on Thameslink and Great Northern, some of whom already drive 12 car DOO trains, which might have led to a different result.

Conclusion on issues 1 and 2

79. In my judgment ASLEF is not more likely than not to succeed at trial in showing that the immunities will apply. Indeed on both issues I consider GTR to have a strong case.

Balance of convenience

80. Having found in GTR's favour on issues 1 and 2 there is a further issue that I need to consider, and that is balance of convenience.
81. At paragraph 92 of their skeleton argument Mr Hendy and Mr Brittenden submit that the balance of convenience does not favour the grant of an injunction. A union will often need, they submit, to "strike while the iron is hot" if industrial action is to be effected. However I am satisfied that damages would not be an adequate remedy, and that the balance of convenience lies in favour of granting the interim injunction. In reaching this conclusion I have had regard to the evidence of Mr Bindon, GTR's HR director, in his second witness statement at paras 156-185 and his third witness statement at paras 35 and 36. I consider that the potential disruption, inconvenience to the general public and damage likely to be caused by the industrial action significantly outweighs the suggested harm to the union, in particular as it is only a matter of weeks until the trial.

The Third Issue: discharge of Langstaff J's order

82. In the light of my conclusions on issues 1 and 2, this issue does not arise for determination.
83. However I should add that even if it had I would not have discharged the injunction granted by Langstaff J.
84. In their skeleton argument Mr Hendy and Mr Brittenden (at para 96) submit that the injunction is barely workable and is demonstrably oppressive. The evidence that Mr Hendy relied upon in his oral submissions is contained in Mr Whelan's second witness statement. At paragraph 60 Mr Whelan states:

"Every conversation with members, or any communication of fact or opinion made to members on the subject matter of the industrial dispute runs the serious risk of being construed as something it is not, as amounting to an inducement of breach of contract and hence a contempt of this court. This is oppressive and seriously inhibits ASLEF's ability to organise and communicate with members. I have never encountered this in all of my years as a trade unionist. That is a view shared by my colleagues collectively. We cannot really update members and say even something innocuous like we have not reached agreement with the Claimant on DOO working, or engage in frank discussion with our members."

85. I do not accept that there is the problem suggested. The injunction does not prevent the union from asserting to its members and to others that they do not believe that there is a contractual right to ask the drivers to refuse to drive 12 car DOO. At paragraph 9 of his judgment the judge said "Nothing which I have to say in this judgment affects the right and entitlement of ASLEF to conduct the ballot and to put forward its views to its members as forcefully as it thinks appropriate". The injunction is against the union inducing the drivers to refuse to drive 12 car DOO trains on the Gatwick Express service. Accordingly I reject the contention that the injunction is oppressive.
86. Further, I accept Mr Cavanagh's submission that in any event I have no jurisdiction in the present circumstances to discharge the order. Mr Hendy accepts that there is an arguable case for breach of contract by refusing to drive 12 car DOO, which is the standard of proof required for the injunction granted by Langstaff J. There is no material change in circumstances since the order was made.

General Conclusion

87. For the reasons I have given

i) GTR's application for an injunction is granted.

ii) ASLEF's application to discharge the injunction granted by Langstaff J is refused.

88. I will hear from counsel as to the terms of the order I should make.