1. Nolan Transport (Oaklands) Ltd (‘the company’) has carried on the business of haulage contractors from premises at Oaklands, New Ross, County Wexford since January 1981. Previously James Nolan (‘the father’) had carried on a similar business from the same premises. He discontinued the business carried on by him in 1980 as a result of financial and other difficulties.

2. The father and his wife, Joan, have thirteen children, namely, Elizabeth, Anne, Patricia, John, Raymond, Seamus, Noel, Brendan, Richard, Kevin, Joan, Oliver and Sally. The share capital of the company comprises 13 shares of £1 and each of the thirteen children is entitled to one such share. Before the company was formed Patricia had had four years experience working in the father’s business. Raymond and Seamus were younger and had little experience of the business at that stage. In order to run the haulage business and to obtain the appropriate Department of Transport licence it was necessary for one of the management team to hold a certificate of professional competence. When the company was formed only the father had such a certificate. He remained involved in the management of the company until Patricia obtained the necessary certificate. There is an express finding by the learned trial judge that since that time the father has taken no part in the management of the company. He is employed largely in a labouring capacity in the company’s yards with a particular responsibility for the lorry wash and the operation of a JCB which is used to spread gravel across the yard on the premises.

3. As the children obtained experience they undertook particular areas of expertise. Patricia Nolan became the chief executive and company secretary, Elizabeth had accountancy experience and is responsible for the accounts and management of the finances of the company. John manages the computer department. Seamus is the garage manager and his task is to manage the operation and to hire and fire drivers. Raymond, Noel and Kevin have responsibility for ensuring that work is carried out in different geographical areas. Brendan and Richard have particular areas of responsibility and others of the children work in the business during their school holidays. Joan Nolan, their mother, is the chairperson and non-executive director of the company.

4. James Halligan, the first defendant had been employed by the company as a driver and in other capacities from time to time from 1981. He returned to the company in about 1990 and about the end of 1991 resumed working as a driver. Henry Nolan, the second defendant, has been a driver with the company since June 1992. Anthony Ayton is a branch official with the fourth defendant (‘the union’). At all material times Mr. Ayton worked in the Waterford branch of the union where the secretary was Ms Margaret DeCourcey. Another official was Ms Maura Caddigan who joined the Waterford branch in January 1993.

5. The company employed approximately fifty-five drivers. In December 1992 some of those drivers wished to join a trade union. Apparently they had a grievance about their pay and conditions. In January 1993, union membership application forms were distributed. On 17 January 1993 a meeting of drivers as union members took place. James Halligan, Henry Nolan and five other drivers were present in addition to Mr. Ayton. Following that meeting Mr. Ayton wrote to the company on 18 January claiming that his union had accepted into membership ‘a large number of your company employees’ and seeking a meeting ‘to set in train the necessary steps to establish what we hope will he a good working relationship’. That letter was addressed to Mr. John Nolan.

6. On 19 January 1993 Messrs Halligan, Nolan and a third driver, Paddy O’Leary. in the course of their duties, met the father in the company’s yard. On the following day, 20 January 1993, all three drivers attended at the company’s premises where they had occasion to meet Mr. Seamus Nolan. Also on 20 January 1993 telephone conversations took place between Ms Margaret DeCourcey and Ms Patricia Nolan as well as a call between Mr. Henry Nolan and Ms Patricia Nolan. Finally, in relation to the events of that day, Ms Margaret DeCourcey wrote to Mrs. Nolan but no reply was received to that letter.

7. The appellants contended that they were dismissed from their employment with the company by the father on 19 January 1993 or alternatively that the conduct of the father and the other members of the Nolan family on 19 and 20 January 1993 led them to believe that they had been so dismissed. The learned trial judge in his judgment expressly rejected the claim that the defendants had been dismissed by the father. The learned judge held that the father did not have authority to dismiss employees and that the defendants recognised that this was so.

8. On 24 January 1993 a further meeting of the members of the union was held in Waterford. Whilst it appears that the relevant union membership had grown to twenty-three at that stage, those present comprised only five members and two union officials, that is to say, the first three defendants, three further drivers and Ms DeCourcey. A decision was made to hold a ballot for industrial action. That ballot was held over a number of days at the terminal in Rosslare, the terminal in Pembroke and on a boat plying between those terminals. In all, twenty-three members of the union voted.

9. By a circular letter dated 25 January 1993 the company informed its employees that they did not have to be a member of a union to work for the company and requested each employee to sign and return the letter to the company if he was satisfied with his conditions of employment. All of the office staff of the company signed the form and all but four, or perhaps five, of the drivers likewise signed.

10. At the meeting of the Waterford branch of the union held on 31 January 1993, seven driver members were present as was Mr. Ayton and Ms DeCourcey. The votes were counted and the result which was declared and circulated was that twenty had voted in favour of strike action and three against. A further meeting of the members was called for 7 February 1993. On the 2 February 1993 strike notice was served for 11 February 1993.

11. Between 2 and 10 February 1993 considerable activity took place. The union initiated a trenchant campaign in support of the planned industrial action whilst the overwhelming majority of the drivers expressed dissatisfaction with it. A petition disassociating themselves from industrial action and expressly refusing to withdraw their labour on 11 February 1993 was signed by forty-eight of the company’s drivers.

12. At the meeting of the trade union held on 7 February sixteen drivers were present. There was a considerable controversy as to what took place at the meeting but the stark fact is that eleven of the drivers gave evidence to the effect that they did not understand the result of the ballot because they were aware that they had themselves voted against industrial action. As the evidence of the drivers was accepted by the learned trial judge, it necessarily followed that the result of the ballot which had been declared on 31 January 1993 was dishonest and the inescapable conclusion reached that the ballot had been ‘rigged’. If a twelfth driver had voted against industrial action – and there was evidence that he did – then the vole would have been against industrial action.

13. Following the expiration of the strike notice, a picket was placed on the company’s premises on 11 February 1993. The picket comprised the first three defendants together with Billy Clarke and Patrick O’Leary. They were subsequently joined by Chris Halligan and David Jones. Notwithstanding the picket the business of the company has continued and indeed its turnover has increased. The relationship between the company and the union and between the striking and non striking employees has been a bitter one with each side making serious allegations against the other. The industrial action in the present case appears to have been particularly abrasive. Those who took up picket duty in February 1993, with the exception of Mr. David Hughes who is resident in Wales, continued with their picket. An application for an interlocutory order to restrain such picketing was made in March 1994. It was granted by Mr. Justice Keane only insofar as the picketing was otherwise than peaceful.

14. The plenary summons herein was issued on II February 1993. The relief claimed therein was as follows:-

15. The statement of claim was delivered on 22 June 1993. It was amended twice. The plaintiff claimed that the defendants embarked on a campaign of vilification against the plaintiff by the dissemination of circulars and bulletins containing malicious falsehoods in relation to the plaintiff. It was in the second amendment that the plaintiff sought to impeach the ballot for industrial action on the basis (a) that it was not secret, (b) that it was not carried out in accordance with the rules of the union and (c) that a majority had voted against the industrial action. The contention made by the plaintiff, which is of particular importance, is the plea that there was no bona fide trade dispute for the purposes of the Industrial Relations Act 1990, and that the defendants in promoting and maintaining industrial action had done so solely for the purpose of coercing the plaintiff’s work force into joining the union despite their concerted opposition thereto.

16. The action came on for hearing before Barron J in June 1994 and continued for some 28 days during which he heard nearly one hundred witnesses.

17. In his judgment reported at [1995] ELR 1 the learned trial judge identified the main issues in the case as follows:-

18. The learned trial judge found that there was no bona fide trade dispute. His conclusion can be summarised from the following excerpts (at 44):-

19. I do not believe that the union ever regarded this issue of dismissals as more than an event to use to its advantage. . . I do hold, however, that this aspect of the dispute was not pursued bona fide to get the two men to work but as part of the policy to take all the drivers into membership. . . [A] claim to negotiate on behalf of all the workmen in a particular employment is an attempt to deprive those who are not members of their right of free association. On the basis of the authorities to which I have referred this cannot form the basis of a trade dispute. Further, where what would be a trade dispute is put forward as a cloak for the real dispute, the element of bona fides is lacking and so even what would otherwise have been a genuine dispute ceases to be such.

20. In relation to the interpretation of Part II of the Industrial Relations Act 1990 the learned trial judge expressed his views on a number of important issues. In particular he said (at 39):-

21. Finally, it is essential before any industrial action is taken that those who are taking the industrial action shall first have had a secret ballot on the issue. If a majority is against industrial action then that is an end of the matter. If a majority is in favour of industrial action then that is a matter for the union concerned to determine whether or not the industrial action should take place.

22. The learned judge rejected the argument put forward on behalf of the union to the effect that members were not entitled to give evidence as to how they voted on the secret ballot but although he did have, as he pointed out, evidence which, if accepted, would show that thirteen out of twenty three voted against the industrial action he did not make an express finding to that effect. He expressed the view that it would not be material to do so. Instead he said:-

23. What is material is whether or not the declared result was false and was known to be false.

24. And he went on to conclude (at 35):-

25. Having regard to all the circumstances and in particular to my belief that they [the non-striking drivers] gave fair and honest evidence I am satisfied that the declared result did not reflect the votes actually cast and was deliberately false.

26. The learned trial judge concluded that a substantial loss in the turnover of the company in the dry freight sector of its business resulted ‘from the activities of the (appellants) in the prosecution of their industrial action’. He also held that damage had been caused to the company by the defamation and malicious falsehoods by the appellants. He awarded the company a sum of £601,000 damages against the defendants. Of that sum £25,000 was expressly attributed to the defamation and malicious falsehoods; £400,000 to loss of profits and £176,000 to additional fuel costs. In addition, an injunction was granted restraining the appellants from picketing the plaintiff’s premises at Oaklands, New Ross, County Wexford or otherwise engaging in industrial action against the company. It was from that judgment and order of Barron J that the appellants have appealed to this court.

27. In the course of his judgment the learned trial judge made a number of express and unequivocal findings of fact. For the greater part he accepted the evidence tendered on behalf of the plaintiff and rejected in forthright terms much of the evidence given on behalf of the defendants. The father did not give evidence but the learned trial judge evaluated the evidence of Patricia Nolan, Seamus Nolan and the non-striking drivers in the following terms (at 16):-

28. I am satisfied that Patricia Nolan was a reliable witness. She was clearly a competent business woman and gave clear evidence as to the effect which the strike was having on the company’s business. Seamus Nolan was also a reliable witness. I was impressed at his understanding of the characters of the men with whom he had to deal and in particular the character both of his father and of Jimmy Halligan. There were times when he reacted at the encroachment of the picket onto the company’s premises. However, this does not, in my view, effect the reliability of his evidence. I was impressed by the manner in which non-striking drivers gave their evidence and I am satisfied that they are doing their best to tell the truth and have substantially done so.

29. Unhappily it must be recorded that the learned trial judge found it necessary to make findings in relation to the evidence tendered on behalf of the appellants in the following terms (at 16):-

30. The main witnesses for the [appellants] were the three union officials and the striking drivers. Tony Ayton was the official most directly concerned with taking the drivers into membership of the union and with prosecuting the industrial action. He is an experienced trade union official with a good knowledge of employment law. I am unable to accept his evidence on a number of important aspects of the case and in general found his evidence to be unreliable. Margaret De Courcey as Branch Secretary is a highly qualified trade union official. She was not as involved as Tony Ayton and following the meeting on 7 February 1993 she was on maternity leave for four months. As with the evidence of Tony Ayton, I am unable to accept her evidence on a number of important aspects and in general found her evidence to be unreliable. Maura Cadigan only dealt with the voting on 25 January 1993, hut I regret that I cannot accept that she informed each of the drivers who voted that three issues were involved. So far as the striking drivers are concerned I regret that I find their evidence is in the main unreliable.

31. Whilst it was recognised that an appellate court dependant as it is on a written record of the oral evidence given at a trial would not normally reject a finding of fact merely because an alternative version of the oral testimony might seem more acceptable, the appellants contended that this was one of the exceptional cases in which a finding of primary fact should be set aside. It was contended that the allegation of ballot rigging was improbable to the highest degree and inconsistent with other established facts.

32. The argument that this finding of fact could be rejected was supported by a passage quoted from the judgment of Henchy J in Northern Bank Finance Corporation Ltd v Charlton [1979] IR 149 at 191 in the following terms:-

33. The court of appeal will only set aside a finding of fact based on one version of the evidence when on taking a conspectus of the evidence as a whole oral and otherwise, it appears to the court that notwithstanding the advantages which the tribunal of fact had in seeing and hearing the witnesses, the version of the evidence which was acted on could not reasonably be correct.

34. I would like to think that no trade union or other responsible body would engage in the misconduct of which the appellants were convicted. Even making every allowance for the bitterness and hostility which industrial action can engender, any court would and should be slow to reach such a conclusion. Apart from the legal and moral implications of such a condemnation the probability of detection, particularly in relation to the allegation of ballot rigging, would render such an action unlikely. On the other hand the learned trial judge had ample evidence before him on which to make his judgment. Not only that, he had the opportunity during a lengthy trial and over a variety of issues to judge the credibility of the witnesses. This was a case in which the advantage enjoyed by the learned trial judge in observing the demeanour of the witnesses and evaluating their credibility was inestimable. Furthermore it was a distasteful task which the learned trial judge clearly undertook with the greatest care.

35. In my view this is not a case in which this court would he justified in setting aside any of the findings of fact made by the learned trial judge based on the credibility of witnesses. It seems to me, therefore, that the function of this is effectively confined to reviewing the finding of the learned trial judge on the two issues identified by him.

36. In relation to the issue as to whether a trade dispute existed the vital question is whether James Halligan and Henry Nolan or their union believed that the three employees or some of them had been dismissed from their employment with the company in January 1993.

37. As already mentioned the father had, prior to the incorporation of the company, operated a road haulage business himself. The corporate business was, how ever, run by his wife and his children and he was employed merely as a labourer. Whilst Messrs Halligan, Nolan and their colleague Patrick O’Leary accepted that the father did labouring work they were emphatic that he ‘was the boss’ as far as they were concerned. Their evidence in that behalf was rejected by Barron J.

38. Messrs Halligan, Nolan and O’Leary gave evidence as to meetings which each of them had with the father on 19 January 1993. This was at the stage when efforts to recruit company employees into the union had been initiated and clearly the father and his children opposed and resented the attempted unionisation. Each of the three witnesses swore that in the course-of their meeting with the father he was excited and rude. His language to them was crude. Their evidence was to the effect that he criticised them for attempting to unionise the company and ridiculed the contribution which a union might make. Not untypical was the evidence given by Mr. Henry Nolan of his encounter with the father in the following terms (volume 23, question 581):-

39. James Nolan Senior came over. He started f. . . ing and blinding, who did I think I was by asking the lads to join a union why would I not f... off back to where I came from.

40. In relation to a burst tyre on Mr. Halligan’s vehicle it was said that the father inquired:-

41. Would SIPTU repair that?

42. The three employees who claim to have been dismissed gave evidence of the words used to them by the father which were essentially those which Mr. Halligan. says were spoken to him by the father (volume 22, question 278) namely:-

43. Just to f... off again and not to set my foot in the place again.

44. It is relevant to record what Messrs Halligan and Nolan themselves say as to the context in which those offensive remarks were made. It was Mr. Halligan's evidence that his initial discussion with the father related to a fire which had occurred in the home of another driver, Mr. John Cooney. Apparently the father had rather sensitively warned Mr. Halligan not to say anything to Mr. Cooney about the fire because arrangements had been made to have somebody belonging to Mr. Cooney’s family to come up to the yard to break the news to him. Subsequently there was some discussion about Mr. Halligan not turning off lights in his lorry and then a discussion about whether or not Mr. Halligan had a passport as there was some question of his taking a lorry to Spain. It was subsequently that the father raised the question about the union, became critical and, according to Mr. Halligan, told him to ‘f... off’. It was the evidence of Mr. Halligan that in those circumstances he concluded that he had been ‘sacked’.

45. The evidence of Mr. Henry Nolan and Mr. Patrick O’Leary as to their experiences on the night of 19 January 1993 was similar but not identical. In both cases there was a meeting with the father in which he was critical in one form or another of the trade union and the efforts made by the particular employee to involve trade unions in the business of the company. The evidence in each case was that the meeting concluded with the father telling the particular employee to ‘f... off’ which the employee interpreted as meaning he was being sacked. As the father was not called to give evidence, the accounts given by the employees of these meetings were uncontradicted.

46. Having regard to the findings of fact made by the learned trial judge it is clear that the father did not himself have power to dismiss employees. Nor could the purported dismissal have amounted to the implementation of an earlier decision by the management of the company. If such a decision had been taken prior to the heated exchanges it is inconceivable that Mr. Raymond Nolan would have given instruction, as undoubtedly he did, to each of the drivers as to their duties for the following day. Again the evidence given as to the conversation which took place between the father and Mr. Halligan in relation to the problems concerning Mr. Cooney would suggest that at the commencement of the meeting the father had no plans to sever the relationship between Mr. Halligan and the company. The question remains, however, as to what the employees reasonably understood as a result of the clear hut crude message given to them by a person who acted as a labourer in the employment of the company owned and managed by his family.

47. It is the evidence of the employees that they believed that they were dismissed. However, they did consult with the officials of the union on the evening of 19 January 1993, when they were advised to turn up for work the following day and ‘verify’ whether or not they had been dismissed.

48. Messrs Halligan and Henry Nolan and O’Leary did attend at the company’s premises the following day. In fact Mr. O’Leary worked normally on that day. Messrs Halligan and Henry Nolan met Seamus Nolan on their arrival. Apparently his first reaction was said to have been that he knew nothing about the dispute but when Henry Nolan got into his truck Seamus told him to ‘f... off out of the yard’ and to bring all his bits and pieces with him. A surprising feature of this unpleasant scene is that Mr. Seamus Nolan was said to have referred to the name ‘O’Rourkes’ as having been written on the top of the lorry although Mr. Henry Nolan could not explain the significance of this reference. It was Mr. Halligan’s evidence that when he encountered Mr. Seamus Nolan on the morning of 20 January 1993 and specifically asked him what was going on that Mr. Seamus Nolan said:-

49. You know well what is going on. There is nothing here for you.

50. The foregoing represents the substance of the evidence given by Messrs Halligan and Henry Nolan which they say satisfied them that they had been dismissed.

51. In fact Mr. Seamus Nolan had given his evidence before that of any of the defendants. In relation to the events of the morning of 20 January 1993, particularly his meeting with Mr. James Halligan, he said he was asked ‘Am I sacked or what?’. He said that his response to that question was to laugh and to add ‘You know well what you are doing’. Mr. Seamus Nolan explained why he laughed and why he said what he claims to have said but it was his own evidence that Mr. Halligan then turned away and walked out of the yard. Mr. Seamus Nolan went on to explain that as a matter of principle and policy he did not seek to dissuade Mr. Halligan from leaving. In relation to Mr. Henry Nolan, Mr Seams Nolan said that he saw him in his truck and heard him say ‘f... it. I don’t think it will work’. Mr. Seamus Nolan said that Henry Nolan then stopped the lorry, got out, hanged the door and walked out of the yard a hundred yards or so behind Mr. James Halligan. Also on 2 January 1993 certain phone calls and communications took place. Ms Margaret DeCourcey undoubtedly spoke on the telephone to Ms Patricia Nolan. The learned trial judge preferred the evidence of Ms Nolan as to what was said in the course of that conversation. It was her recollection that she was asked whether Mr. Henry Nolan had been dismissed and she said that he was not. Ms Nolan did not recall any inquiry about Mr. Halligan but did agree that the expression ‘bully boy’ had been used by her or a member of her family in relation to the conduct of Mr. James Halligan. There was another phone call between Mr. Henry Nolan and Patricia Nolan amid again it was her recollection of that phone conversation that she informed Mr. Nolan that he had not been dismissed. One matter about which there is no controversy is the letter written on the same day by Ms DeCourcey to Ms Patricia Nolan in which Ms DeCourcey set out her recollection of her earlier phone call and invited Ms Nolan to reply to the letter within one week to the allegation that both drivers, Messrs Halligan and Nolan, had been dismissed from the company for union activities. Some importance must he attached to the fact that no reply was made to that letter.

52. In those circumstances did the employees who subsequently went on strike believe that they had been dismissed from their employment with the company?

53. There is, I believe, an ambiguity in the conclusion expressed by the learned trial judge (at 44) on that issue. What he said is as follows:-

54. If I accept as I do, the evidence on behalf of the plaintiff, then no one was dismissed either on 19 or 20 January 1993. There was no more than a series of rows on the evening of the 19th followed by a refusal to work on the part of the first two defendants on the morning of 20 January. Nevertheless, if the union bona fide believed that they had been dismissed, a trade dispute would have existed until such time as the company had clearly and unequivocally made it clear to the men and to the union that there was no impediment to their return to work.

55. It seems to me that the inference to be drawn from the events of 19 January 1993 is that the father purported to dismiss the three employees although he had no authority so to do. On the other hand the events, or non-events, of the 20 January 1993 would appear to point strongly to the conclusion that Ms Patricia Nolan and Mr. Seamus Nolan were ratifying the attitude adopted by their father the previous day. Certainly the company did not at that stage ‘clearly and unequivocally’ inform the men and the union that there was no impediment to their return to work.

56. It is difficult to see how the events of 19 January 1993 could be dismissed as a ‘series of rows’. Whilst it is undoubtedly the case that the father was infuriated by the trade union activities of the particular employees, there is no suggestion that on the evening in question any of them did anything to provoke the father or to engage in any argument with him. If he had had the authority which he purported to exercise the words spoken would have constituted a dismissal. The contention made by the company that the dismissals were contrived by the employees does not seem to be supported by any version of the facts. Furthermore if the company had suspected that the three drivers or any of them were pretending to have been dismissed or taking advantage of a temperamental outburst by the father there were three distinct opportunities made available to them ‘to put the record right’. Mr. Seamus Nolan when asked the following day by Mr. Halligan the specific question – as he agreed he was asked – whether he had been sacked could easily have said ‘No. You are not sacked’. Patricia Nolan, whether or not asked by Ms DeCourcey, could likewise have said in her telephone conversation not only was Henry Nolan not sacked but ‘neither was James Halligan’. Again the letter of the 20 January 1993 afforded the company the specific opportunity of denying emphatically that any of the three drivers had been sacked and perhaps adding, if that was Ms Nolans’s view, that the allegations of dismissal were a complete fabrication. As the judge pointed out, there was no evidence tendered by any official of the union as to their belief: but there was sworn evidence by the employee/appellants as to their understanding of the position.

57. As I understand it, the learned trial judge did not find it necessary to reach any concluded judgment on the issue as to whether the parties believed that the employees had been dismissed. He dealt with the matter (at 44) in the following terms:-

58. The silence of the company (in reply to the letter of 20 January) would normally have led the union to believe that Jimmy Halligan and Henry Nolan had been dismissed, even though Margaret De Courcey had been told that Henry Nolan had not been dismissed.

59. However, these dismissals cannot be isolated from the other events taking place at that time. In relation to those events, I have found that the union acted improperly. I cannot divorce those matters from the issue of the dismissals. It seems to me that the union was following one overall strategy and that was to represent the entire workforce. I do not believe that the union ever regarded this issue of dismissals as more than an event to use to its advantage. Counsel for the plaintiff says that these dismissals were contrived. The rows which led to the allegations were not contrived. I do hold, however, that this aspect of the dispute was not pursued bona fide to get the two men back to work but as part of the policy to take all the drivers into membership:

60. I believe that the learned trial judge accepted that Mr. Halligan did have an honest belief that he had been dismissed from his employment. The learned judge held, however, that the existence of a trade dispute based on that belief did not in the circumstances provide the statutory defence or immunities ordinarily available to employees and trade unions. What Barron J decided was, first, that the dispute relating to the employment of Mr. Halligan and the other drivers was not in truth or in substance the injustice which the union sought to remedy by (he industrial action and secondly that the true purpose of that industrial action was to coerce all of the employees of the plaintiffs into the membership of the union.

61. I find myself in disagreement with Barron J as to the inferences which he drew in relation to the motivation and purpose of the union and the legal principles which are applicable where industrial action is undertaken with a view to achieving more than one objective. The trial judge adverted to a number of factors including the speed with which events unfolded; the absence of proper consultation for the purpose of considering industrial action; the publication of slanted and dishonest communications by the union officials; exaggerated statements as to the number of drivers who had joined the union, and the failure of previous efforts to organise the union within the company. These were the factors which the judge concluded supported the allegation ‘that the real purpose of the union’s actions was to represent the entire workforce’. I do not agree that those factors would justify the inference that a trade union was attempting or would attempt to institute industrial action for the purpose of coercing an employer and its employees into a closed shop agreement. I would readily accept that any trade union would wish to expand its membership and the extent of its representation in any industry or with any particular employer but I would be very slow indeed to infer that a trade union would, in the present state of the law, attempt to impose a closed shop.

62. The definition of trade dispute must be read as if there were attached thereto the words, “Provided that a dispute between employers and workmen or between workmen and workmen as to whether a person shall or shall not become or remain a member of a trade union or having as its object a frustration of the right of any person to choose with whom he will or will not be associated in any form of union or association shall not be deemed to be a trade dispute for the purposes of this Act.”

63. In that case it was argued that the dispute was being used ‘as an instrument or a cloak’ to defeat the rights of certain aggrieved workers. Those employees of the Educational Company, who were members of a trade union, voted to refuse to remain at work with fellow employees who were not members of that union. When the management of the plaintiff company declined to compel any of the employees to join the union concerned it was resolved by the executive committee of that union to serve strike notice in support of their demands. It was clearly and frankly asserted then, though it might be surprising now, that the union and its members had the right to engage in a trade dispute for the purpose of compelling fellow members to join the trade union. There was nothing secretive or underhand about the actions undertaken by the union or its members. Nor was there any real doubt hut that the dispute was or would have been a dispute within the meaning of the 1906 Act as enacted. The issue was whether the protection afforded by that Act could be availed of where the industrial action to he taken infringed the right of the non-union workmen’s constitutional right of free disassociation.

64. The judgment in the Educational Company case contained a number of references to a trade dispute being ‘genuine’ or ‘bogus’ and to ‘disputes being engineered for the aggrandisement of the union’ but there was never any doubt as to what the purpose of the strike was in that case. It was to compel particular employees who did not wish to do so to join a trade union.

65. The present case is almost totally the reverse of the Educational Company case. Here the trade union disavow any intention to recruit all the drivers in the company or to compel any of them to join the union or to pressurise their employer to achieve that result. The expressed aims of the industrial action and the mandate expressly sought by the union related to the reinstatement of employees who the union claimed had been dismissed. It could never be suggested that that purpose, if genuine, offended any constitutional provision.

66. The learned trial judge placed very considerable reliance on an extract quoted from the judgment of O’Daly J in the Silver Tassie Co. Ltd v Cleary [1958] ILTR 27 in the following terms (at 31):

67. The dispute must be genuine and not merely colourable. It is quite clear that the genuineness of a dispute does not depend upon what are the true facts of the dispute, but rather it depends on the bona fides of the parties.

68. In fact O’Daly J was dealing with two different concepts in those sentences. He had quoted Conway v Wade [1909] AC 506 as authority for the proposition that ‘a mere personal quarrel or grumbling or an agitation will not suffice; it must he fairly definite and of real substance’. It was in that context that he explained that ‘[t]he [trade] dispute must be genuine and not merely colourable.’

69. The entire basis of the Silver Tassie case was that an employee of the plaintiff company had been dismissed – allegedly on the grounds of redundancy – and his union demanded his reinstatement and took industrial action in pursuance of that demand. It was contended that the demand for reinstatement and its refusal simpliciter constituted a trade dispute. Neither Dixon J in the High Court nor O’Daly J in the Supreme Court dealt with the issue on that basis. They both held that there was a trade dispute where the employee bona fide believed that there were no proper grounds for his dismissal. Dixon J had expressed his views on the matter in the following terms (at 29):-

70. It was the function of the court to decide whether such a dispute existed but it was not the function or right of the court to decide whether the attitude or belief of the employee or Union was a well founded one, except insofar as the complete lack of any reasonable basis for the particular attitude or belief might lead to the conclusion that it was not a genuine or bona fide one. The absence of bona fides would involve the absence of any genuine dispute.

71. It was that view which O’ Daly J was upholding when he went on to say:-

72. It is quite clear that the genuineness of a dispute does not depend upon what are the true facts of the dispute, but rather it depends on the bona fides of the parties.

73. That sentence read independently of the facts under consideration can be misleading and perhaps misled the learned trial judge. Taken in context it does not authorise a review of the conduct of those engaged in industrial action to determine their motivation or ultimate ambitions. Applied to the facts of the present case the conclusions of the High Court and the Supreme Court in the Silver Tassie case would only justify the Court in the instant matter in considering whether any evidence existed to justify the belief of Mr. Halligan and his union that he had been dismissed, and more particularly wrongfully dismissed, from his employment with the company. Having regard to what the father said, and what Mr. Seamus Nolan and Ms Patricia Nolan did not say, as to Mr. Halligan’s employment with the company, provides at the very least a reasonable basis for the belief claimed by Mr. Halligan and his union. In the circumstances I believe that the dispute between the appellants and the company was bona fide in the sense that Mr. Halligan had an honest belief for which there were reasonable grounds and further that the dispute was genuine in the sense that it represented the immediate quarrel between the parties. I would hesitate to conclude that the particular factors identified by the learned trial judge in his judgment, however reprehensible they may have been, justified the inference of an intention on the part of the union to compel the company’s employees to join the union. Even if that could be identified as the ultimate goal of the union it did not represent the current dispute. In the very nature of the declared aims of the dispute I do not see how it could have achieved the ambitions which have been attributed to the appellant union. Perhaps successful industrial action would have enhanced the standing of the union with many of the employees but a gain in membership in that way could not be challenged as unconstitutional or improper. At worst it would seem to me that the irregular and improper conduct in which the union was engaged might suggest a willingness by it to take industrial action in the future for an improper purpose but no future plan could render unlawful a dispute which was protected by the relevant legislation nor, indeed, render lawful a current dispute which did not have the necessary statutory ingredients to gain such protection.

74. Part of the difficulty arises from the fact that lawyers and judges have used the words ‘bona fide trade dispute’ with different meanings and in different contexts. If employers and workers both acknowledge themselves to be engaged in a trade dispute there is no difficulty in describing it as a bona fide trade dispute. But a bona fide trade dispute may also exist where one party denies that there is any dispute and the other believes that he has been wronged and is in dispute as a result. On the other hand an outside party or ‘meddler’ who had no legitimate interest of his own to protect but who stirred up trouble in a business for reasons of malice or spite could not claim to be engaged in a bona fide trade dispute. This kind of case, which must surely be rare, was referred to by Lord Loreburn in Conway v Wade, where he said (at 512):-

75. If, however, some meddler sought to use the trade dispute as a cloak beneath which to interfere with impunity in other people’s work or business, a jury would be entirely justified in saying that what he did was done in contemplation or in furtherance, not of the trade dispute, but of his own designs, sectarian, political, or purely mischievous, as the case might be. These words do, in my opinion, in some sense import motive, and in the case I have put a quite different motive would be present.

76. If however a bona fide trade dispute does exist between an employer and workers, some of whom happen to be members of a trade union, the trade union is entitled, within the constitution and the law, to support its members who are in dispute. That, in doing this, it may be partly motivated by the aim of impressing its members and other workers and enhancing its own reputation and membership appears to me to he quite irrelevant as long as it acts within the law and does not attempt to infringe the constitutional right of each worker to join or not to join a trade union as he himself thinks best.

77. It follows that the appellants were entitled to the statutory immunities conferred on those engaged in activities in furtherance of a trade dispute save in so far as those privileges were removed or restricted by the Industrial Relations Act 1990.

78. Perhaps the most revolutionary provision of the 1990 Act (Part H) was section 14 which provides as follows:-

79. It has been said that section 14 requires that industrial action should be authorised by a secret ballot but such a statement is misleading. The statute requires that the rules of the trade union should contain provisions in relation to such ballots and imposes sanctions for the failure either to have such rules or to observe them. On the face of it, the participation by a trade union in or its support for a strike or other industrial action without the authority of a secret ballot of its members would he a matter of internal management of the affairs of the union and constitute a breach of contract between the executive of the union and the membership rather than a breach of statutory duty. This interpretation is confirmed by section 14(3) which expressly provides that the rights in relation to a ballot are ‘conferred on the members of the trade union concerned and on no other person’.

80. However, that important distinction in principle having been made, it must be recognised that the legislature can, and in the 1990 Act did, confer particular rights and duties on ‘outsiders’ in consequence of or by reference to the holding of a secret ballot. An express provision to this effect is contained in section 17 of the 1990 Act which provides as follows:-

81. It is the excluded sections which confer immunity on persons who might otherwise be liable for conspiracy criminally, picketing civilly or inducing breach of contract or interfering with trade or business.

82. Whilst, however, individuals may lose these valuable protections where they engage in industrial action ‘in disregard of or contrary to the outcome of a secret ballot,’ unions themselves are not penalised in that way. The statutory protection conferred upon a trade union is set out in section 13 in the following terms:

83. I 3.—(1) An action against a trade union, whether of workers or employers, or its trustees or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act committed by or on behalf of the trade union in contemplation or furtherance of a trade dispute, shall not be entertained by any court.

84. If a union were to engage in industrial action in disregard of the wishes of its members expressed in a secret ballot it would not forfeit the immunity conferred upon it by section 13. Instead it would risk the loss of its negotiating licence in accordance with the provisions of section 16 of the 1990 Act.

85. Where employees engage in industrial action ‘in disregard’ of or contrary to ‘the outcome of a secret ballot’ their activities do not enjoy the statutory protections. In the present case either no secret ballot was held or else the secret ballot ‘in its outcome’ authorised the industrial action so that there is no question of the individual appellants acting in disregard of the resolution of their colleagues. Even if the evidence justified the conclusion that the majority of the employee/members of the union voted against industrial action the reconstruction of the resolution in pursuance of the decision of the court could hardly be regarded as ‘the outcome’ of the ballot and certainly it could not be suggested that the striking members acted in disregard of it. From the point of view of the union the holding or not holding of the secret ballot or the manner in which it was held does not impinge in any way on the rights of the union, vis-à-vis the company employers. Their immunity under section 13 of the 1990 Act would remain unaffected.

86. The provisions of section 19, which are novel and designed to safeguard the interests of those engaged in industrial action were not directly material to any matter in issue in the present case. Reference was made to that section only for the purpose of identifying the purpose and proper interpretation of the Act as a whole.

87. The position with regard to an interlocutory injunction is dealt with in section 19(2) which provides that:-

88. The express reference in both subsections (1) and (2) of section 19 to a secret ballot ‘held in accordance with the rules of a trade union as provided for in section 14, particularly in the absence of any similar reference in section 17 do suggest that those engaged in industrial action cannot rely on the protection afforded by the section if it is established that a purported secret ballot was not held in accordance with the provisions of section 14. In principle this is unexceptional. Where a significant statutory benefit is conferred on one litigant at the expense of another upon express statutory terms, the benefit should not be available if the terms are not fulfilled. The question has arisen in this case on the interlocutory application before Mr. Justice Keane in the High Court on 22 March 1994 and in G & T Crampton Ltd v Building & Allied Trades Union [1998] ELR 4 as to the party on whom the onus falls of proving or disproving the performance of the statutory conditions precedent and more particularly the nature and extent of the proof to be adduced in that behalf. In his judgment Keane J was dealing with the facts the subject matter of these proceedings and examining in relation thereto the novel provisions of section 19(2) of the 1990 Act. Having quoted that section the learned judge commented as follows (at 3):-

89. The object of that subsection is relatively clear. Prior to its enactment it was quite a common occurrence for employers to apply to the court for an interim hut not always an interlocutory injunction restraining picketing, in particular on the ground that there was a serious question to be tried as to whether there was any dispute in existence and that the plaintiff would suffer irreparable damage if the picketing continued and for which damages would not be an adequate remedy. It is a matter of common knowledge that the frequent use of that procedure by employers meant that the use of what were otherwise legitimate methods sanctioned by the law by trade unions of advancing their interests were effectively neutralised by the way in which the law operated.

90. On the interpretation of section 19(2) Keane J said as follows (at 4):-

91. I pause here to say that whilst there appears to he no authority on the section, it seems to me as a matter of first impression that the onus must be on the person resisting the injunction to establish that the provisions of section 14 have been complied with, which seems to me to be crucial to the operation of the section.

92. In fact Keane J went on to say that there was not evidence before him of sufficient weight to indicate that section 14 had been complied with and accordingly refused the benefit of section 19(2) to the trade union. Clearly the learned judge made that determination on the balance of probabilities. In relation to the substantive issue between the parties he was merely concerned as to whether ‘there was a serious issue to be tried’. In the Crampton case Laffoy J agreed that the onus of the conditions precedent to the operation of section 19(2) fell on the party resisting the injunction. Laffoy J analysed the statutory conditions and in particular referred to the requirements of section 14(2)(f) relating to the proposals voted upon and pointed out that there was no evidence before her in relation to compliance with such conditions. Accordingly, she rejected the particular defence or restriction claimed by the trade union under section 19 of the 1990 Act. The judgment of Laffoy J was appealed to this Court and was upheld in an ex tempore judgment delivered by the Chief Justice reported at [1998] ILRM 4. In particular the Chief Justice concluded at 18 that:-

93. It is proper, however, to note that the Supreme Court appeared to have had before it evidence which was not available in the High Court. At 16 the Chief Justice commented:-

94. I am very conscious of the fact that in her recital of the relevant facts, [the judge] did not have the benefit of the affidavits sworn by Mr. Lamon dealing in detail with the circumstances in which the secret ballot was held, the voting thereon and of such like.

95. Again the Chief Justice raised without resolving the issue whether a proposal put before a secret ballot for the purposes of section 14 of the 1990 Act must particularise the nature of the industrial action for which the trade unions sought the support of their members.

96. In the circumstances it may be said that there has not been a definitive interpretation of section 19(2) of 1990 Act but I would find it difficult to escape the conclusion reached by Keane J and accepted by Laffoy J that the onus lies upon the party resisting an application for an interlocutory injunction to show that a secret ballot as envisaged section 14 has been held. Moreover it could hardly be sufficient to establish the existence of a stateable case in relation to the compliance with the rules required to be adopted by a union pursuant to section 14 aforesaid. The decision of a court on an interlocutory application as to whether or not the particular immunity granted by section 19(2) is available is itself a final decision and determines finally whether that statutory benefit is available to the trade union. Concern must exist, as to how decisions of that nature could be made in practice. There maybe serious difficulty, and even a degree of unreality, in requiring the court to make an actual determination on the balance of probabilities as to whether all of the requirements of the secret ballot have been complied with when the substantive issue itself is dealt with at that stage on the basis of ‘a serious issue to he tried’. The demands which such a requirement could impose are illustrated by the urgency with which the interlocutory proceedings in the Crampton case were dealt with in both the High Court and this Court and to which the Chief Justice drew attention in his judgment.

97. I am confident that the trade union movement will, if it has not already done so, arrange that the rules of all unions are amended so as to comply with the requirements of section 14 and, of equal importance, that secret ballots will he conducted not merely in accordance with the terms of such rules hut also under professional and independent guidance which will guarantee that all appropriate conditions are complied with and facilitate the union in proving that such was the case. Clearly the events which the learned trial judge found to have happened in the present case must never occur again. The difficulties which emerged in the Crampton case must be avoided. No doubt trade unions will comply with their own regulations. Furthermore, they owe it not only to themselves but also to their members and to the public to be in a position where they can comfortably demonstrate such compliance. When such steps have been taken perhaps the problems in relation to the interpretation of section 19 will become irrelevant. In any event I would prefer to reserve a final decision as to the proper interpretation of that section until a case directly involving it comes before the Court.

98. The conclusion that a trade dispute exists and that the statutory immunities are available to appellants means that the judgment of the learned trial judge cannot be upheld. The injunctions granted must be discharged. Whether any finding of wrong doing by any of the defendants or any part of the award against them can be sustained is a matter on which the parties must be heard before a final order can be made.

99. I agree with the judgment of Murphy J on the two issues in the case:-

100. The evidence is clear that there was a trade dispute. The men, at the very least, had good grounds for thinking themselves dismissed. I am afraid that both employers and striking employees conducted themselves in a manner best calculated to bring about the maximum degree of misunderstanding as to their respective positions. Any form of conciliation, arbitration, or dispute resolution was zealously avoided.

101. The finding that the union was conducting affairs with the sole purpose or motive to get a foothold in the company and unionise the whole workforce cannot stand. If that had been the union’s motive, it went about it in the worst way possible.

102. This tedious litigation dragged itself out for 28 days in the High Court. There had been a pit stop by way of an application for an interlocutory injunction, brought with no excessive haste – twelve months after the beginning of hostilities – which was refused by Keane J.

103. On reading through the sorry saga unveiled in these papers, I could not help hut think that I was living in another era, at about the turn of the century. We have surely advanced from the culture that then prevailed. Unions arc now very powerful bodies, with highly trained professional staff. The days of the ‘class struggle’ should be regarded as long gone. On the other hand, employers have an obligation to accord trade unions a measure of respect representing as they do the rights of the workers.

104. An unfortunate aspect of the present case is that the employers appear to have approached it on the basis that either all the workers joined the trade union or none of them joined and that the decision was to be made by the majority of the workers. But the constitutional right of each worker to join or not to join a trade union is well established in Irish law. No worker can he forced to join a trade union against his will and likewise no worker can be denied his right to join a trade union which is prepared to accept him. These are matters of constitutional right and are not capable of being resolved by a majority vote unless all the workers have freely agreed to have the matter so resolved.

105. The State, representing the rest of us ordinary citizens and taxpayers, has a very keen interest in seeing to the harmonisation of industrial relations. We all stand to lose too much where there is strife and conflict. We should now have advanced sufficiently in our respect for democracy and the rule of law in all its refinements to work out a better way. At this stage of our development, this country should he an example to other countries on how to avoid industrial conflict, and when conflict does arise on how to resolve it speedily. That is good for everyone; it will lead to more employment and increased trade.

106. The whole point of the Industrial Relations Act 1990 was to streamline this area of the law and copper-fasten the special privileges of trade unions in many respects and to give them additional rights. Indeed, it is the whole point of section 14 of the Act which provides for the necessity of having in the rules of a trade union a requirement to hold a secret ballot before a strike is called. This is primarily designed to strengthen the role of union management against the actions of maverick members, and to reverse the construction placed on the then existing law by the decision of this Court in Goulding Chemicals Ltd v Bolger [1977] IR 211.

107. This is clear from the wording of subsection (3) which provides:-

108. The rights conferred by a provision referred to in subsection (2) are conferred on the members of the trade union concerned and on no other person. (emphasis added)

109. Counsel for the appellants went too far, however, in saying that we should have no regard to a breach of the ‘secret ballot’ provisions as far as this litigation is concerned. They submitted that the requirement of the legislation was that there should be provision in the union rules for the holding of secret ballots. If the rules did not so provide, then the sanction was that the union would be deprived of its negotiating licence. While the necessity for secret ballots is not a direct requirement of the legislation, for my part I do not regard this as an important distinction. The purpose of this part of the legislation is clear: it is to strengthen the hand of union management by having a proper secret ballot before a strike is called. The ballot in this case, whether it was rigged or not, was certainly something of a shambles. The learned trial judge has detailed the various irregularities that occurred. The big fault with the whole operation, in my belief, is that there was not an impartial person in charge who would have made sure that a proper ballot was held with a due sense of decorum and correctness.

110. If there is one lesson that can be learned from this litigation it is surely that the requirements for having a proper secret ballot should always be observed. The experience of the integrity that returning officers bring to their task in conducting Dáil Éireann elections is instructive. In any case where a secret ballot is required there should be correct ballot papers with the issue set forth clearly, and, ideally, an independent person should be brought in to supervise the whole operation and adopt much the same role as a returning officer does in the case of a Dáil Éireann election. He or she should be impartial, and be seen as such, strict in seeing that the rules are observed and clear in the rulings made.

111. Therefore, while I agree that the legislation touching the holding of secret ballots is there primarily as a matter of internal trade union management, I reject the submission that once such a shambles as is disclosed as regards the ‘ballot’ that was held here occurs that we should simply turn a blind eye to it. The duty to observe the law devolves on everyone – I have already said that simply because the obligation comes through the rules rather than directly from the legislation is of no great importance – so there is a serious obligation on union management to give proper example to the rest of the people by ensuring that the requirements concerning the holding of a proper secret ballot are always observed. Once that is done, then there need be no repetition in the course of judicial proceedings of the circumstances surrounding the holding of the ballot. Things should be manifestly correct, so that time need never again be taken up with a long debate as to the rights and wrongs of the holding of any ballot.

112. After all, as I already indicated, the legislation solidifies and, indeed, expands the privileged position afforded by the law to trade unions. Privileges carry duties as well as rights.

113. That said, however, the essential position is that there was here a trade dispute and those engaged in it are protected, and the union has its statutory immunity from suit. This irregular ballot led to a lot of trouble, nonetheless, and many days were spent on it in the High Court. The union cannot avoid blame for that. This will have to be dealt with in deciding on the proper order that should be made on costs.

114. I would allow the appeal but with the same qualification that Murphy J has set forth in the course of his judgment as to certain matters on which we should hear further submissions.