Die Lunae, 15° Decembris,
1941
Parliamentary
Archives,
HL/PO/JU/4/3/966
Lord
Chancellor
Viscount
Maugham
Lord
Thankerton
Lord
Wright
Lord
Porter
CROFTER HAND WOVEN HARRIS TWEED
COMPANY,
LIMITED, AND OTHERS
v.
VEITCH AND ANOTHER.
The Lord
Chancellor
MY LORDS,
The Appellants are seven
producers of tweed cloth in the Island
of Lewis in the Outer
Hebrides. Their business is carried on by
purchasing yarn, which
they give out to crofters for weaving in
their own homes, so that
the Appellants may sell the tweed so
woven. The Respondent, Mr.
Veitch, is the Scottish Area Secretary
of the Transport and
General Workers' Union, which is a trade
union, and the
Respondent, Mr. Mackenzie, is the Stornoway
Branch Secretary of
the Union.
The Appellants are seeking
interdict against the two Respondents
in order to stop what is
called an " embargo " imposed by their
order or
inducement upon all yarn arriving for the Appellants at
the port
of Stornoway, which is the main port on the island and is
connected
by a service of steamers with the mainland, and upon
certain
tweeds despatched by the Appellants from that port.
In argument before this House it
was conceded that no issue is
involved which might bring into the
case any provision of the
Trades Disputes Act, 1906. The
Respondents are sued as indi-
viduals and not in any
representative capacity. The question is
whether the Appellants
have established that the Respondents have
committed a delict or
tort at common law against them by thus
interfering with their
trade. It was not suggested that, as regards
the law applicable to
the present action, there was any material
difference between the
Scottish law of delict and the English law
of tort.
The dockers at Stornoway are all
members of the trade union,
and as from January 24th, 1938, they
refused to handle yarn
imported from the mainland and consigned to
the Appellants, and
also cloth made by the Appellants which the
Appellants wished to
export. This refusal was in accordance with
the instructions of the
Respondent, Veitch, which were
communicated by him to the
Respondent, Mackenzie, and were passed
on by the latter to the
dockers, who at once complied. The embargo
against the exporta-
tion of finished tweeds was raised four days
later, but in other
respects the embargo continued, both as
regards the importation
of yarn for the Appellants, and as regards
the exportation of their
unfinished tweed, despatched for "
finishing" on the mainland,
until interim interdict was
granted on February 24th, 1938. On
the trial of the cause in
March, 1939, the Lord Ordinary (Lord
Jamieson) gave judgment for
the present Respondents and recalled
the interim interdict. On
appeal to the Second Division this decision
was affirmed
(dissentiente Lord Mackay). The matter now comes
before
this House, and we have been much assisted in examining
what is
undoubtedly a difficult case by the arguments of counsel
on both
sides.
The evidence is voluminous and
gave rise to a large number of
questions as to the effect of it
and as to the inferences to be drawn
from it. For much of this
detail I would refer to the full and careful
judgments that have
been delivered in Scotland. I accept, broadly
speaking, the
account given by Lord Jamieson, and the majority
in the Court of
Session, of the facts derived or deduced from that
evidence. On
one conclusion, however, which is apparently
reached by the
majority of the Inner House, I must express my
hesitation later
on. For the purposes of laying the basis of fact
upon which my
view of the legal consequences rests, it is sufficient
to
summarise the ascertained situation thus.
2 [2]
The description " Harris
Tweed" was originally applied to
woollen cloth, which was not
only woven by hand-looms in the
cottages of the Outer Hebrides,
but was so woven out of yarn spun
by hand in the islands. (The
trade-name " tweed " is not, it appears,
derived from
the river near which the cloth-weaving industry of
Galashiels and
neighbouring towns is established: it is a trans-
formation, now
nearly a century old, of the word " twill") More-
over,
" Harris Tweed " was hand-finished in the islands. It
was
thus a hand-produced and island-produced product throughout,
and
in 1911 a Company limited by guarantee was registered under
the
name of the Harris Tweed Association Limited, which obtained
a
Trade Mark (referred to as the " Stamp ") under
section 62 of the
Trade Marks Act, 1905, to apply to Harris Tweed
which satisfied
these conditions. After a time, the hand-spinning
of wool into yarn
ceased to be commercially practicable and in
1934 the conditions of
the Trade Mark were varied, with the result
that it could apply to
tweed hand-woven by the islanders in their
own homes out of yarn
spun in island spinning-mills, and finished
in the island-mills instead
of by hand.
Five such spinning-mills have
been established in Lewis. They
do not use weaving machinery, but
by placing their yarn in the
hands of the hand-weaving crofters,
cloth is produced which the
mill-owners, after " finishing "
it, can sell under the " Stamp."
Ninety per cent, of the
spinners in the mills are members of the
Transport and General
Workers' Union—the same trade union as
that to which all the
Stornoway dockers belong. The percentage
of trade-unionists among
the weavers in the cottages is much
smaller. The officials of the
Union desired that none but members
of their Union should be
employed, but when this was asked of the
mill-owners in 1935,
together with a rise in spinners' wages, the
answer of the mills
was that this was in existing circumstances
impossible, and that a
reduction in wages was more likely, owing
(as was alleged) to the
cut-throat competition of independent pro-
ducers of cloth such as
the Appellants, who obtained their supplies
of yarn from the
mainland at a cheaper price than that charged by
the mills. Cloth
made out of mainland yarn could not carry the
" Stamp,"
though it could be sold as Harris Tweed as having been
woven in
the Island.
How far there really was
injurious competition may be seriously
questioned, but there is no
evidence that the Union officials did not
believe it and what is
clear is that the Union official then mainly
concerned, a Mr.
Buchan, set himself to assist in establishing a
minimum selling
price for island cloth, and that he, and after him
Veitch,
conceived that it would benefit their Union members if
conditions
of collective bargaining could be established in the
Island
between employers and employed. To this end, Mr. Buchan
in 1935
proposed to Mr. Skinner, the Secretary of the
Mill-Owners'
Association, a scheme whereby the Trade Union could "
provide
" definite safeguards to the successful operation of
a minimum
" selling price," and added that "the
only argument that price-
" cutters will ever understand and
appreciate will be the joint
" power of the employers and
this Union to put them out of business
" if they
refuse loyally to abide by minimum selling prices as fixed
"
from time to time by the Harris Tweed Producers Association."
Mr. Skinner
and the Mill-Owners' Association did not wish to
avail themselves
of Mr. Buchan's proposals at that time, and indeed
throughout
would seem to have preferred, if it had been possible,
to get a
settlement as to prices without trade union pressure. There
remained
on the side of the trade-union a constant desire to secure
100 per
cent, trade-union membership. A long and complicated
story of
discussions and interviews followed, at the end of which
the
effort to secure by negotiation minimum prices and the use of
none
but island-spun yarn failed, Mr. Skinner informed Mr. Veitch
[3] 3
that a settlement had not been
reached, and an interview between
them in Edinburgh took place
five days before Mr. Veitch gave
orders for the embargo. The
Appellants have strenuously argued
that there was a combination
between Mr. Veitch and Mr. Skinner
to impose the embargo, and in
particular rely on Mr. Veitch's letter
to Mr. Mackenzie of January
19th, 1938, requesting the latter to
give instructions to the
dockers, which contains the significant
sentence " This
action will complete our deal with the employers
" and we
will have 100 per cent, membership, not only in the mills
"
but also in the weaving section." My own view is in accord
with
that of the Lord Ordinary (with which at least one member of
the
Inner House, Lord Wark, was disposed to agree) that,
suspicious
as the circumstances are, there is not sufficient
evidence to establish
that Mr. Skinner was combining with the
Respondents to impose
the embargo: he was aware of the intention
to impose it and he
approved of it and was apparently willing to
concede 100 per cent,
membership to the Union if his trade rivals
were put out of business
or compelled to buy yarn from the mills,
but I am not prepared to
hold that the Respondents struck at the
Appellants because of a
bargain so to do between Mr. Skinner and
themselves.
Such being the facts of this
case as I take them to be, the question
to be decided is whether
the Appellants have proved that the
Respondents are liable to them
for illegal conspiracy. In other
words, is it proved that the two
Respondents combined together
" to injure " the
Appellants in the way of their trade, and that the
Appellants have
suffered damage from the Respondents' illegal
action ? Conspiracy,
when regarded as a crime, is the agreement
of two or more persons
to effect any unlawful purpose, whether as
their ultimate aim, or
only as a means to it, and the crime is com-
plete if there is
such agreement, even though nothing is done in
pursuance of it. (I
am omitting consideration of those cases on the
borderland of
illegality, where the combination was held to amount
to a criminal
conspiracy because the purpose aimed at, though not
perhaps
specifically illegal, was one which would undermine prin-
ciples
of commercial or moral conduct.) The crime consists in the
agreement,
though in most cases overt acts done in pursuance of
the
combination are available to prove the fact of agreement. But
the
tort of conspiracy is constituted only if the agreed combination
is
carried into effect in a greater or less degree and damage to
the
Plaintiff is thereby produced. It must be so, for, regarded as
a civil
wrong, conspiracy is one of those wrongs (like fraud or
negligence)
which sounds in damage, and a mere agreement to
injure, if it was
never acted upon at all and never led to any
result affecting the
party complaining, could not produce damage
to him. The distinc-
tion between the essential conditions to be
fulfilled by the crime and
the tort respectively are conveniently
set out by Lord Coleridge C. J.
in his judgment in Mogul
Steamship Co. v. McGregor, Gow & Co.
21
Q.B.D. 544 at p. 549. ' In an indictment it suffices if the com-
"
bination exists and is unlawful, because it is the combination
itself
" which is mischievous, and which gives the public an
interest to
" interfere by indictment. Nothing need be
actually done in
" furtherance of it. In the Bridge-water
case, referred to at the Bar,
" in which I was counsel,
nothing was done in fact; yet a gentleman
" was convicted
because he had entered into an unlawful combina-
" tion from
which almost on the spot he withdrew, and withdrew
"
altogether. No one was harmed; but the public offence was com-
"
plete. This is in accordance with the express words of Bayley J.
"
in Rex v. de Berenger, 3 M. & S. 67 at p. 76. It is
otherwise in a
" civil action: it is the damage which results
from the unlawful
" combination itself with which the civil
action is concerned. .
" Once more, to state the proposition
somewhat differently with a
" view to some of the arguments
addressed to me, the law may be
" put thus. If the
combination is unlawful, then the parties to it
4 [4]
" commit a misdemeanour and
are offenders against the state; and
" if, as the result of
such unlawful combination and misdemeanour,
" a private
person receives a private injury, that gives such person
" a
right of private action."
There is nothing, I think, in
the majority judgments in the Mogul
case in the Court of
Appeal (23 Q.B.D. 598), or in the speeches
delivered on the appeal
in that case to this House, [1892] AC 25,
which conflicts in any
way with the above propositions, which
indeed are now
well-established.
The Appellants, therefore, in
order to make out their case have to
establish (a) agreement
between the two Respondents (b) to effect
an unlawful
purpose (c) resulting in damage to the Appellants. As
regards
(c), there can here be no doubt. Instructing or persuading
the
dockers at Stornoway to refuse to handle imports of mainland-
spun
yam arriving for delivery to the Appellants was an inter-
ference
with the Appellants' normal source of supply, which was
bound to
damage their business. Still more, perhaps, was it an
injury to
the Appellants to prevent by these means the sending of
their
unfinished cloth to the mainland. Indeed, it is one of the
most
serious aspects of this case, and an aspect that I deplore,
that the
action taken against the Appellants not merely put
pressure on
them to adopt new arrangements, but might well destroy
their busi-
ness altogether without offering any locus
poenitentiae. Whether
this consideration affects the ultimate
conclusion must be considered
hereafter.
I am equally satisfied about
(a). It was argued that the Respon-
dent Mackenzie should
not be regarded as acting in combination
with the Respondent
Veitch, so as to establish the element of agree-
ment between them
in the tort of conspiracy, because Veitch held
the responsible
position of Scottish Area Secretary to the Union,
whereas
Mackenzie was only Branch Secretary for Stornoway.
This, I think,
is an unsound contention. The respective position
of the two men
in the hierarchy of Trade Union officials has
nothing to do with
it. Even if Mackenzie could be regarded as
only obeying orders
received from his superior, the combination
would still exist if
he appreciated what he was about. But his
share in the matter was
more than this. Mackenzie is the represen-
tative of the Union in
the Island of Lewis; he took the principal
part in securing that
the dockers at Stornoway should not handle
the Appellants' goods;
there is no ground for supposing that he did
not approve of the
course taken, and he appears to have co-operated
willingly. The
Lord Ordinary, after a full and careful hearing,
came to the
conclusion of fact that " the immediate purpose of Mr.
"
Veitch and Mr. Mackenzie was to force producers to come to an
"
agreement regarding the selling price of tweed and the exclusive
"
use of island-spun yarn. The means adopted necessarily inflicted
"
injury on the petitioners." Lord Jamieson went on to
hold
expressly that Mackenzie was a party with Veitch to the
combina-
tion, on the grounds which I have indicated above.
Questions (a)
and (c) are, therefore, conclusively disposed
of.
The only
difficulty in the case arises under (b). What exactly
is
meant, in this branch of the law, by a combination to effect
an
unlawful purpose? Lord Cave L.C., in Sorrell y. Smith
[1925]
A.C. p. 700, when what he called " the famous
trilogy of cases in
" Your Lordships' House: Mogul S.S.
Co. v. McGregor, Gow & Co.
" [1892] AC 25; Allen v. Flood [1898] AC 1; and Quinn
v.
" Leathern [1901] AC 495 " were
submitted to a close examination
in order to extract from them the
principles involved, formulated
as a result two propositions of
law which he stated as follows: " (1)
" A combination of
two or more persons wilfully to injure a man
" in his
trade is unlawful and, if it results in damage to him, is
"
actionable. (2) If the real purpose of the combination is, not to
[5] 5
" injure another, but to
forward or defend the trade of those who
" enter into it,
then no wrong is committed and no action will lie,
" although
damage to another ensues." It should be observed that
these
two propositions, as the then Lord Chancellor said, were
formulated
as material for the decision of the case then before the
House,
and they may not turn out to be either as complete or as
easy to
apply in some other cases involving widely different circum-
stances.
At any rate, I find it necessary, for the purpose of deciding
the
present Appeal, to enter upon some further analysis.
It seems to me that the subject
may be usefully approached by
beginning with some preliminary
propositions, not in themselves I
think open to challenge at this
time of day. In stating these propo-
sitions I shall try to
distinguish between " damage " and "
injury,"
following the stricter diction, derived from the
Civil Law, which
more especially prevails in Scottish
jurisprudence. So used,
" injury " is limited to
actionable wrong, while " damage ", in con-
trast with
injury, means loss or harm occurring in fact, whether
actionable
as an injury or not. " An intent to injure, in strictness,"
said
Lord Justice Bowen in the Mogul case, 23 Q.B.D. at p. 612,
"
means more than intent to harm. It connotes an intent to do
"
wrongful harm."
First, then, apart from the
effects of combination, it is clear that
(1) if A is damaged by
the action of B, A nevertheless has no
remedy against B, if B's
act is lawful in itself and is carried out
without employing
unlawful means. In such a case A has to endure
damnum absque
injuria. (2) It makes no difference to the above
proposition
that B in so acting had the purpose of damaging A. A
bad motive
does not per se turn an individual's otherwise lawful
act
into an unlawful one. (3) If C has an existing contract with
A and
B is aware of it, and if B persuades or induces C to break
the
contract with resulting damage to A, this is, generally speak-
ing,
a tortious act for which B will be liable to A for the injury
he
has done him. In some cases, however, B may be able to justify
his
procuring of the breach of contract, e.g. a father may persuade
his
daughter to break her engagement to marry a scoundrel. (This
is
not, of course, to say that the scoundrel would not have an
action
against the daughter for breach.) The father's justification
arises
from a moral duty to urge C that the contract should be
repudiated.
So far there is, I apprehend,
little to dispute about. But if the
act which damages A is not
that of a single individual, but is due
to a combination of two or
more persons, then it is no longer
possible to say that motive or
purpose is immaterial. If, to use
Lord Cave's language, the real
purpose of the combination is the
inflicting of damage on A as
distinguished from serving the bona
fide and legitimate
interests of those who so combine, then if
damage results to A,
the act is tortious.
Lord Halsbury observed in the
Mogul case [1892] A.C. p. 25 at
p. 38: "' I do not
deny that there are many things which might be
" perfectly
lawfully done by an individual, which, when done by a
"
number of persons, become unlawful," and many citations to
the
same effect might be made from speeches delivering judgment
since
then in Your Lordships' House. The proposition itself as to
a
wider range of liability for acts done in combination is now
well
established, though the legal reason for it may not be so
easy to
state. Lord Bramwell in the Mogul case observed
that it had been
objected that it was strange that that should be
unlawful if done by
several which is not unlawful if done by one.
and he offered some
suggestions as an explanation; [1892] A.C. at
p. 45. The view that
the explanation is to be found in the
increasing power of numbers
to do damage beyond what one
individual can do is open to the
obvious answer that this depends
on the personality and influence
6 [6]
of the individual. In the play,
Cyrano de Bergerac's single voice
was more effective to drive the
bad actor Monttleury off the stage
than the protests of all the
rest of the audience to restrain him.
The action of a single
tyrant may be more potent to inflict suffer-
ing on the continent
of Europe than a combination of less power-
ful persons. Lord
Justice Bowen, when the Mogul case was before
the Court of
Appeal, observed: 'The distinction is based on
" sound
reason, for a combination may make oppressive or
" dangerous
that which if it proceeded only from a single person
" would
be otherwise, and the very fact of the combination may
" show
that the object is simply to do harm, and not to exercise
"
one's own just rights." There is, however, another possible
line
of explanation which legal history suggests. Conspiracy, like
libel,
may be a crime. As a crime it was developed by the Court
of Star
Chamber, and, on the abolition of that Court, the crime
as thus
developed became a common law misdemeanour. Hence,
according to
Professor Holdsworth (History of English Law, Vol.
VIII, p. 392),
just as the courts came to the conclusion that if the
defamation
was written, so that the crime of libel had been com-
mitted, an
action of tort lay at the suit of the injured party (in this
instance
without the need to allege and prove special damage), so,
in the
case of conspiracy an action in the nature of an action on the
case
would lie for damages at the suit of the party suffering, though
here
the gist of the action is that damage was inflicted by defendants
who
combined together for the purpose of inflicting it.
However the origin of the rule
may be explained, I take it to be
clear that there are cases in
which a combination of individuals
to act in a certain way,
resulting in deliberate damage to others, is
actionable, even
though the same thing, if done by a single
individual without any
element of combination, would not expose
him to liability. In the
present case, the evidence did not support
an allegation that the
Defendants, or either of them, had procured
a breach of contract,
and if one of them, acting alone, had without
employing unlawful
means induced the dockers to refuse to handle
the Appellants'
goods, I cannot see that any action would have
lain against him.
Everything turns, therefore, on whether the two
Respondents were
engaged in a combination " to injure," in the
sense in
which that phrase is employed when liability results; it
is to
this question that I now address myself.
On this question of what amounts
to an actionable conspiracy
" to injure " (I am assuming
that damage results from it), I would
first observe that some
confusion may arise from the use of such
words as " motive "
and " intention." Lord Dunedin in Sorrell v.
Smith
(ubi cit. at p. 724) appears to use the two words
interchange-
ably. There is the further difficulty that, in some
branches of
the law, " intention " may be understood to
cover results which
may reasonably flow from what is deliberately
done, on the prin-
ciple that a man is to be treated as intending
the reasonable
consequence of his acts. Nothing of the sort
appears to be involved
here. It is much safer to use a word like "
purpose " or " object."
The question to be
answered, in determining whether a combination
to do an act which
damages others is actionable, even though it
would not be
actionable if done by a single person, is not " did the
"
combiners appreciate, or should they be treated as
appreciating,
"that others would suffer from their action",
but "what is the
" real reason why the combiners did it
? " Or, as Lord Cave puts
it, " what is the real purpose
of the combination ? " The test is not
what is the natural
result to the Plaintiffs of such combined action,
or what is the
resulting damage which the Defendants realise or
should realise
will follow, but what is in truth the object in the
minds of the
combiners when they acted as they did. It is not con-
sequence
that matters, but purpose; the relevant conjunction is not
wore,
" so that ." but iva, " in order that."
[7] 7
Next, it is to be borne in mind
that there may be cases where
the combination has more than one "
object" or " purpose." The
combiners may feel that
they are killing two birds with one stone,
and, even though their
main purpose may be to protect their own
legitimate interests
notwithstanding that this involves damage to
the Plaintiffs, they
may also find a further inducement to do what
they are doing by
feeling that it serves the Plaintiffs right. The
analysis of human
impulses soon leads us into the quagmire of
mixed motives, and
even if we avoid the word " motive," there
may be more
than a single " purpose " or " object." It is
enough
to say that if there is more than one purpose actuating
a
combination, liability must depend on ascertaining the
predomi-
nant purpose. If that predominant purpose is to damage
another
person and damage results, that is tortious conspiracy. If
the pre-
dominant purpose is the lawful protection or promotion of
any
lawful interest of the combiners (no illegal means being
employed),
it is not a tortious conspiracy, even though it causes
damage to
another person.
It will be observed that the
above analysis tends to show that
Lord Cave's two propositions in
Sorrell v. Smith are not necessarily
exhaustive. He
contrasts a combination wilfully to injure a man
in his trade with
a 'combination, the real purpose of which is not
to injure another
but to forward or defend the trade of those who
enter into it. It
is possible to imagine a combination, the purpose
of which does
not fall within either of these two classes—a combina-
tipn,
for example, to demonstrate the power of those combining to
dictate
policy or to prove themselves masters in a given situation.
In
such a case the purpose or object might well be neither wilfully
to
damage a man in his trade, on the one hand, nor to forward
or
defend trade interests in a situation where they would
otherwise
suffer on the other. If, for example, the mill-owners in
the present
case had promised a large subscription to the trade
union funds
as an inducement to bribe the Respondents to take
action to smash
the Appellants' trade, I cannot think that the
Respondents could
excuse themselves for combining to inflict this
damage merely by
saying that their predominant purpose was to
benefit the funds of
the union thereby.
It may well be that in this
corner of the law it is not possible to
lay down with precision an
exact and exhaustive proposition like
an algebraical formula which
will provide an automatic answer in
every case that may arise by
substituting the actual instance for
a generalisation. There is an
interesting passage in the recently
published correspondence
between Mr. Justice 0. W. Holmes of
the United States Supreme
Court and Sir Frederick Pollock which
in discussing some earlier
cases suggests as much (see Holmes-
Pollock Letters, vol. 1, p.
65). Lord Dunedin, I think, had the same
view in mind when, in his
speech in Sorrell v. Smith, he referred
to the test
furnished by " that inner standard of right and wrong."
([I925]
A.C. at p. 717.) Lord Sumner's disclaimer, in the same
case, of an
ability to draw any definite line " between acts, whose
"
real purpose is to advance the defendants' interest, and acts,
"
whose real purpose is to injure the plaintiff in his trade " (p.
742)
points in the same direction. The exoneration provided by "
justiri-
" cation " or " just cause " to which
Lord Cave refers as an alterna-
tive way of indicating the limit
between combinations that are
lawful and combinations that are
unlawful (see, for a further
illustration, the language of Romer
L.J. in Giblan v. National
Amalgamated Labourers' Union
of Great Britain and Ireland
[1903] 2 KB 600) is another
indication of the difficulty in the way
of abstract precision.
I am content to say that, unless
the real and predominant purpose
is to advance the Defendants'
lawful interests in a matter where
the Defendants honestly believe
that those interests would directly
8 . [8]
suffer if the action taken
against the Plaintiffs was not taken, a
combination wilfully to
damage a man in his trade is unlawful.
Although most of the cases
have dealt with trade rivalry in some
form or other, I do not see
why the proposition as to the conditions
under which conspiracy
becomes a tort should be limited to trade
competition. Indeed, in
its original sense, conspiracy as a tort was
a combination to
abuse legal procedure: see Winfield's History of
Conspiracy, ch.
ii. I have used the word " directly " without seek-
ing
to define its boundaries as an indication that indirect gains,
such
as the subscription in the illustration above, would not provide
a
justification.
In the present case, the
conclusion, in my opinion, is that the
predominant object of the
Respondents in getting the embargo
imposed was to benefit their
trade-union members by preventing
under-cutting and unregulated
competition, and so helping to
secure the economic stability of
the Island industry. The result
they aimed at achieving was to
create a better basis for collective
bargaining, and thus directly
to improve wage prospects. A com-
bination with such an object is
not unlawful, because the object
is the legitimate promotion of
the interests of the combiners, and
because the damage necessarily
inflicted on the Appellants is
not inflicted by criminal or
tortious means and is not " the
" real purpose " of
the combination. I agree with Lord Fleming
when he says in his
judgment that it is not for a Court of Law to
consider in this
connection the expediency or otherwise of a policy
adopted by a
Trade Union. Neither can liability be determined
by asking whether
the damage inflicted to secure the purpose is
disproportionately
severe: this may throw doubts on the bona fides
of the
avowed purpose, but once the legitimate purpose is estab-
lished,
and no unlawful means are involved, the quantum of damage
is
irrelevant. I move that this appeal be dismissed with costs.
Lord
Chancellor
Viscount
Maugham
Lord
Thanker-
ton
Lord
Wright
Lord
Porter
CROFTER
HAND WOVEN HARRIS TWEED COMPANY,
LIMITED, AND OTHERS
v.
VEITCH AND ANOTHER
Viscount Maugham
MY LORDS,
I have had the advantage of
reading the Opinion of my noble
friend on the Woolsack and, except
in one matter which I regard
as of importance, I agree with his
summary of the facts. With
the greatest respect I am of opinion
that the embargo is proved
to have been imposed in pursuance of a
combination between Mr.
Veitch and the millowners. My grounds for
this view are pre-
cisely those set put in the Opinion of Lord
Fleming in the Second
Division, to which I find I cannot usefully
add anything. I also
find myself in substantial agreement with
what my noble friend has
said as to the law in so far as it
relates to combinations resulting
in injury to others, that being
the only subject with which I for my
part think it necessary to
deal on this Appeal. If I add some
remarks of my own, it is partly
because of the great importance of
this case and partly as a
recognition of the able and candid argu-
ments which were
addressed to us. I will add by way of preface
that it seems to me
beyond dispute that Lord Macnaghten's state-
ment as to a
conspiracy to injure giving rise to civil liability in
Quinn v.
Leathern, 1901 AC 495 at p. 510, is now well-settled law.
I
have never myself felt any difficulty in seeing the great
difference
between the acts of one person and the acts in
combination of two
or of a multitude.
As appears from the statement of
facts which is contained in the
Opinion referred to, there is a
peculiarity in the case which
should be remembered. The
Appellants, who are small producers,
carried on their somewhat
humble businesses in the Isle of Lewis
where they were weaving a
tweed called Harris Tweed from yarn
spun on the mainland. The
Respondents were officials of the Trans-
port and General Workers'
Union, a duly registered Trade Union.
The only shipping services
between the mainland and the Isle of
Lewis are provided by Messrs.
David MacBrayne Limited, and
Coast Lines Limited. They ply to and
from Stornoway. The
dockers at that port are all members of the
Trade Union and it is
admitted that they act on the instructions
of the Respondents, who
are or were the Scottish Area Secretary
and the Stornoway Branch
Secretary of the Trade Union. Orders were
given on the 20th and
21st January, 1938, by the Respondents to
the dockers at Stornoway
to refuse to handle any consignments of
yarn from the mainland to
the Appellants and any consignments of
tweed from the Appellants
to the mainland. These orders were
carried out (without any breach
of contract) and the business of
the Appellants was thus brought to a
complete standstill. It is
evident that the power of the Trade Union
officials in the
circumstances which exist in the Island is so great
that the
business and the means of subsistence of everyone who
resides
there is at the mercy of the Trade Union officials. If they
should
be so disposed, an event which I hope is unlikely, a tyranny
of
the most serious character might follow unless the case happened
to
be one in which the Court could properly interfere.
It
accordingly seems to me to be very desirable that the reasons
which
determine the conclusion of this House on the present Appeal
should
be stated with great clearness.
The Lord Ordinary and some of
the Lords in the Inner House
have used phrases which seem to
suggest that once it is found that
the infliction of injury on the
Petitioners was not the real purpose
or object of the embargo that
is the end of the matter. I must say
16904 A5
2 [10]
plainly that I disagree with
this view and I do not think the decision
in Sorrell v. Smith
justifies it. To suppose that it follows from an
absence of
malice or ill-will that the true motive of the acts done
in
combination was to further the legitimate interests of the parties
to
the combination seems to me to be a non sequitur. For
example,
there was a possibility that the Respondents were taking
the action
they did merely to demonstrate the power of the Trade
Union to
control the trade of the Island in every detail, or again
because they
had been induced by some valuable consideration
coming from the
millowners on the Island to put the Petitioners
out of business in
order to secure for the millowners a complete
monopoly in relation
to the spinning and finishing of Harris
tweed. I will give some
other illustrations later. Moreover, there
are the cases of mixed
motives which might have to be considered.
My Lords, Lord Cave, L.C., in
delivering [his judgment in
Sorrell v. Smith remarked
as follows: —" I deduce as material for
" the
decision of the present case two propositions of law which
"
may be stated as follows: (1) A combination of two or more
"
persons wilfully to injure a man in his trade is unlawful and, if
it
" results in damage to him, is actionable. (2) If the real
purpose
" of the combination is, not to injure another, but
to forward or
" defend the trade of those who enter into it,
then no wrong is
" committed and no action will lie, although
damage to another
" ensues. The distinction between the two
classes of case is some-
" times expressed by saying that in
cases of the former class there is
" not, while in cases of
the latter class there is, just cause or excuse
"for the
action taken." I do not think there is any doubt
that Lord
Cave's two propositions are sound, and they were
accepted as
correct by Lord Atkinson and also, as I read his
judgment in the
same case, by Lord Sumner.
In Sorrell
v. Smith in my opinion no new law was laid down
by this
House. It was merely in the view of their Lordships an
unusual
illustration of the proposition decided in the Mogul case
that
a combination to do acts the purpose and object of which is
to
forward or defend the trade or business interests of the
Defendants
is not actionable even though the necessary effect is
to cause damage
to the Plaintiffs (Sorrell v. Smith,
1925, A.C. 700, per Lords Cave
and Atkinson at pp. 715, 716,
and per Lord Sumner at pp. 733 and
743, and per Lord Buckmaster at
p. 746). If I correctly understand
Lord Dunedin's opinion, he took
a somewhat different view from
that of the majority, and disputed
the accuracy of the opinion
so often expressed and still more
often assumed by various judges
that a just cause or excuse must
be shown and that if the real
purpose of the combination is not to
forward or defend the trade
or the interests of those who enter
into it, the Defendants generally
speaking must show some other
just cause or excuse for the action
taken in combination. Lord
Cave after stating the two proposi-
tions of law above cited
proceeded to classify the more important
of the judgments on which
he relied for his propositions, in several
of which the reference
to " just cause or excuse " will be found
I need not
repeat these authorities; but I think it is desirable
to point out
that it is implicit in the Mogul case both in the Court
of
Appeal and in this House that the acts done in combination
by the
shipowners who were Defendants were done (to use the
language of
Lord Watson) "with a single view to the exten-
" sion of
their business and the increase of its profits." The head-
note
to that case, which in my opinion is accurate, is in these
terms:
—"Held, that since the acts of the Defendants were done
"
with the lawful object of protecting and extending their trade
"
and increasing their profits, and since they had not employed any
"
unlawful means, the Plaintiffs had no cause of action."
The
speeches of the seven noble lords who attended are directed
to
[11] 3
showing that any form of
competition in trade is legitimate
and lawful, that is, formed a
just excuse, provided that illegal
means are not used. No one
suggested that it malevolence was not
in question, the action must
necessarily fail, and I agree with my
noble mend Lord Wright in
thinking that malevolence as a mental
state is not the test of
liability. It was implicit as I think that lawful
competition was
the true and the necessary answer to the action in
Sorrell v.
Smith. Moreover general approval was expressed of the
opinions
of Lord Justice Bowen and Lord Justice Fry in the Court
of Appeal
(see 1892 A.C. at pp. 37, 43, 47, 51 and 57). I can see no
reason
for doubting the correctness of the well-known statements
of Lord
Justice Bowen in the Court of Appeal (23 Q.B.D. at
pp. 613, 617).
His judgment is essentially devoted to the inquiry
whether the
acts of the Defendants were done " without any just
"
cause or excuse." If, adopting another mode of approach, it
is
said that the acts in combination must in law be "
malicious " if,
being acts which necessarily injure the
Plaintiff, they are done
without just cause or excuse, we are
reduced to a mere question of
words. Qudcunque via the
acts in combination are unlawful unless
there is just cause or
excuse. For myself on this point, which
Lord Dunedin describes
as " hypercritical," I must say that I prefer
Lord
Justice Bo wen's method of dealing with the matter, approved,
as I
think it is, by the majority of the. noble Lords who decided
Sorrell
v. Smith. I must add that I do not think it possible
(as
Lord Dunedin seems to have thought) that Lord Justice
Bowen
was influenced in using his phrases by Bowen v. Hall
(6 QBD 333)
which related to the different case of the
inducing of a person under
personal contract to break it; nor do
I think that the judgments in
Allen v. Flood (1898 AC 1) would have altered his view since that
case had nothing to
do with a question of combination.
It seems to me, therefore, and
with the greatest deference to
those who perhaps think otherwise,
a mistake to hold that combina-
tions to do acts which necessarily
result in injury to the business or
interference with the means of
subsistence of a third person are
not actionable provided only
that the true or predominant motive
was not to injure the
Plaintiff and that no unlawful means are used.
For instance, the
object of the combination may be a dislike of the
religious views
or the politics or the race or the colour of the
Plaintiff, or a
mere demonstration of power by busybodies. Again
the persons
joining in the combination may have been induced so
to act by
payment of money or by some other consideration.
There is I think
no authority to be found which justifies the view
that a
combination of such a character, causing damage to the
Plaintiff,
would be lawful. Since there are many cases of combina-
tions
which directly result in injury to others, but do not fall
within
either of those two categories mentioned by Lord Cave,
one
question is whether in the present case we are not confronted
with
facts which, admittedly not within the first proposition, are
or
are not within the second. We may formulate the question
thus:
Was the real or predominant purpose of the combination to
forward
or defend the trade or business interests of the Trade
Union and
its members and of the millowners ? If the answer is in
the negative
it would be necessary very carefully to examine "
the real purpose "
or " the true motive " (which I
think is the same thing) of the com-
bination and to consider
whether there was in the eyes of the law a
just cause or excuse
for taking or directing acts in combination
which will destroy the
present means of subsistence of the Appel-
lants. On this point
if it arises there is little authority to guide us,
but I will add
that when the question of the real purpose is being
considered it
is impossible to leave out of consideration the principle
that men
are in general to be taken as intending the direct conse-
quences
of their acts (see the summing up of Fitzgibbon, L.J., in
Quinn
v. Leathem, 1901 A.C. at p. 499, which was approved in
this
16904 A6
4 [12]
House). It may be worth noting
that in the days of Erle, J., there
was often no other way of
ascertaining the purpose of a con-
spiracy. I should add that "
motive " is clearly not the same thing
as " intention ",
but in many cases the one is the parent of the
other, and they are
so closely related that they cannot be separated.
(See for some
interesting remarks on this subject Wills on Circum-
stantial
Evidence, 7th Edn., pp. 62 to 64.) If there are mixed
purposes or
motives the difficulties that arise on the question of
fact may be
very great and it may be impossible to answer the
question above
stated in the affirmative.
It is worth while to note that
Quinn v. Leathem is an
example of a mixed motive;
for there the Defendants, being officials
and members of a Trade
Union, combined to call out the Union
workmen of the Plaintiff
Leathem if he would not discharge some
non-Union men in his
employ, and also to call out the Union work-
men of a customer of
Leathem called Munce if he did not cease to
deal with Leathem. It
is true that there was the finding of the
Belfast jury that what
the Defendants had done was done with
malice in order to injure
the Plaintiff; but it can scarcely have been
in doubt that one at
least of the motives actuating the Defendants
was the benefit of
their Trade Union. As Lord Lindley remarked
(1901 A.C. at p. 536):
" That they (the Defendants) acted as they
" did in
furtherance of what they considered the interests of Union
"
men may probably be fairly assumed in their favour." The
facts
as set out in detail in Lord Brampton's speech show clearly
that the
whole dispute between Leathem and the Trade Union
originated
in Leathem's refusal to dismiss non-Union workmen. It
must, how-
ever, be assumed from the findings of the jury that the
main object
or purpose of the Defendants was to punish or injure
Leathem and
that this was " malicious," whatever the
precise evidence of malice
may have been. It was never suggested
by anyone that if the
Defendants' acts were at least partly in
furtherance of Trade
Union interests that would be a defence to
the action. The case of
Conway v. Wade (1909 AC 506) may usefully be referred to in this
connexion.
An obvious difficulty arises at
the outset if we accept, as I do
(as above stated), the view that
the combination was between the
Respondents and the millowners.
The interests of these two groups
were very different and indeed
they were in some respects conflict-
ing. If it is proved, as the
Lord Ordinary held, that the object of the
Respondents was to
benefit the Trade Union and its members and
if it is to be
inferred that the object of the millowners was to benefit
themselves
by obtaining a species of monopoly in the matter of
milling, is
that sufficient to bring the case within the principle of
the
Mogul case ? It was argued with force that, accepting the
doc-
trine laid down in Sorrell v. Smith, you must look at
the joint object
of the parties combining, and if they have
substantially different
objects, the decision in the Mogul case
will not apply. I have care-
fully considered this point, which is
not unattractive, and I cannot
find it has ever been precisely
dealt with in any of the cases. On the
whole, however, I have come
to the conclusion that following the
principle of the Mogul
case, it is sufficient if all the various com-
bining parties
have their own legitimate trade or business interests
to gain,
even though these interests may be of differing kinds.
If indeed
some of these parties were actuated merely by hate or
vindictive
spite or with no just excuse at all, I should doubt
very much
whether the defence would succeed. But I think
reasonable
self-interest in trade or business is " a just cause or
"
excuse " for those combining even though each of them " has
his
" own axe to grind." For instance, I cannot think
that the Mogul
case would have had a different result if
tea merchants had joined
in the combination of shipowners. And it
is easy to imagine a case
where shipowners and railway companies
might wish to combine to
[13] 5
get business though their
interests were in some respects conflicting;
and other examples
will occur to everyone with a knowledge of
competitive trade. In
my opinion the principle of the Mogul case
will protect
persons who combine for their respective business
interests if
there is a certain identity of object, that whether they
do or not
is a question of motive or object, and that the circum-
stance
that their business interests are by no means the same is
not a
ground for holding that the combination is illegal.
My Lords, in my opinion, when it
is proved or admitted that
the Respondents had no personal
ill-will towards the Appellants,
the difficulties of this case
begin. I do not propose to recapitulate
the facts, but it is to be
remembered that there are a number of
circumstances which might
have justified a very adverse view of
the Respondents' motives. I
will summarise the most important
of them. First, what was done
was not " in furtherance of " or
" in contemplation
of " a trade dispute. Secondly, as I have said,
I accept the
view of Lord Fleming and, I should add, very forcibly
expressed by
Lord Mackay, that there was a combination between
Mr. Veitch and
Mr. Skinner and some at least of the millowners
to procure the
embargo. Thirdly, the acts complained of were
obviously in the
interests of the millowners on the Island since
they secured a
species of monopoly. Fourthly, Mr. Veitch's letter
of the 19th
January to Mr. Mackenzie is, I think, only consistent
with the
view that there was a " deal" between Mr. Veitch,
Mr.
Skinner, and some at least of the millowners with regard to
the
laying-on of the embargo, the general understanding being that
if
an embargo were to be imposed by Mr. Veitch, the
millowners
would concede the Union demand for 100 per cent. Union
member-
ship in the mills of the Island. Fifthly, Mr. Veitch
apparently
accepted as true certain statements of Mr. Skinner as
to the con-
dition of the industry and as to the effect of the
importation of
mainland yarn, which the least inquiry would have
shown to be
inaccurate. Sixthly, Mr. Veitch's elaborate report to
Mr. Bevin
(the General Secretary of the Union at that time) as to
his grounds
for imposing the embargo is so extravagant, abusive
and in-
accurate in its terms that I find it difficult to
understand how it
can have been written with a legitimate purpose.
It was a carefully
considered document composed between the 14th
January and the
3rd February. It suggested (untruly) that the
Appellants were
evading the stamp, deceiving the public, ruining
the industry, and
bringing distress to the Outer Hebrides, that
they were " get-rich-
" quick merchants " who cared
nothing about the distress on the
Islands, that the importation of
mainland yarn was " killing the
" industry," and
that they were an " unscrupulous lot" who were
importing
"blackleg yarn." There was nothing said in the letter
about
the "deal" with the millowners; indeed, it was
asserted
(inaccurately) that in the mills they already had 100 per
cent,
"organisation." The document was completely
misleading, and
in fact it misled the General Council of the Union
when it was
read on the 8th March, 1938. Seventhly, it should be
observed
that no notice was given to the Appellants as to the
intention
to apply the embargo and no opportunity given to them to
cease
using mainland yarn if they were so advised. Lastly, it is
a
strange feature in the case that one at least of the avowed
purposes
of the acts of the Respondents was to secure the 100 per
cent,
membership of the Union in the mills, whilst the Appellants,
who
were attacked, were completely unable to secure or to
influence
such a result, since they had nothing whatever to do
with the
management of the mills, and the result was to be
secured, if at all
by the " deal " with the millowners.
My Lords, there are certain
explanations offered as regards
these facts and no doubt some
other circumstances to be borne in
16904 A7
6 [14]
mind, but I must confess that,
if I were entitled to form a con-
clusion simply from the
documents and the shorthand notes of
the trial, I should find it
impossible to hold that the Respondents
had established that they
and the millowners had combined simply
or mainly for the purpose
of promoting their own interests, that is,
those of the Trade
Union and of the millowners respectively. This
House, however, is
always most reluctant to differ from the findings
of the trial
judge on a question of fact and a fortiori when the
Appellate
Court has come to a like conclusion. The question here
is mainly
one of the objects or motives of the Respondents, both
of whom
were called as witnesses and elaborately cross-examined.
It has
been well observed that if they were, as seems probable
from the
shorthand notes, both stupid and wrong-headed, the cir-
cumstance
may afford an explanation of acts and writings which in
the case
of persons of greater acuteness would tend strongly in
favour of a
sinister motive. The Lord Ordinary appears to have
believed these
persons, though he was not very pleased with them
as witnesses.
The majority of the Inner House agreed with him.
I do not feel at
liberty to differ.
My conclusion therefore must be
based on these facts: On the
one hand it is proved that the
Respondents and the millowners
were not actuated by an intention
to injure as a predominant
motive in their minds. On the other
hand they were acting, or
must be taken to have been acting, with
the main object of benefit-
ing themselves in this sense, that the
Respondents were seeking to
advance what they conceived to be the
interests of their Trade
Union and their members, and the
millowners were seeking to
obtain an obvious trade advantage for
themselves, and no doubt in
a rather general sense they all had a
common interest in the
prosperity of the Harris Tweed industry.
The case, therefore, is
brought, though I think with difficulty,
within the principle of the
Mogul case, as explained in
later cases, and the Appeal must fail.
As regards the ultimate result,
I must add this warning. The
only question before the Lord
Ordinary was as to whether the then
Petitioners were entitled to
have the Respondents interdicted from
instructing members of the
Trade Union at Stornoway to refuse to
load or unload consignments
of yarn or unfinished tweeds consigned
to or despatched by the
petitioners. The original embargo was
directed on the 19th
January, 1938, and extended to the loading of
finished and
unfinished tweeds despatched by the petitioners, but
on the 25th
January, 1938, it was modified by permitting the ex-
portation of
finished tweeds. An interim interdict was granted to
the
Appellants on the 24th February, 1938, and the embargo then
dropped.
When the interim interdict was recalled on the 8th March,
1939, it
appears that the embargo was not re-imposed. The only
question on
appeal to the Inner House and to this House has
necessarily been
as to whether the interdict should have been con-
tinued by the
Lord Ordinary. On that matter the Courts were
bound to consider
the propriety of the action of the Respondents
and the millowners
in the light of the views honestly entertained
by them at that
time as to their respective interests and as to the
actions and
conduct of the Appellants. In so far as those views
have since
been shown to have been ill-founded, they would not
now justify
the re-imposition of the embargo. If such a step as
that is
contemplated, the matter ought to be reconsidered in view
of the
circumstances and facts as they are now known to exist.
My Lords, for the reasons above
stated I concur in the proposed
motion.
Lord
Chancellor
Viscount
Maugham
Lord
Thanker-
ton
Lord
Wright
Lord
Porter
CROFTER HAND WOVEN HARRIS TWEED
COMPANY,
LIMITED AND OTHERS
v.
VEITCH AND ANOTHER.
Lord Thankerton
MY LORDS,
The Appellants are seven out of
the original petitioners in a
petition and complaint by nine small
producers of Harris Tweed
in the Isle of Lewis, presented on the
24th February, 1938, seeking
to have the present Respondents
interdicted from interference with
the consignments of yarn or
unfinished tweeds consigned to or
despatched by the petitioners at
the port or harbour of Stornaway.
The petition and complaint was
dismissed, after proof, on the merits
by the Lord Ordinary (Lord
Jamieson) on the 8th March, 1939,
and his interlocutor was adhered
to by the Second Division (Lord
Mackay dissenting) on the 22nd
December, 1939, and the reclaim-
ing motion by the nine
petitioners was refused, but, in respect of
an undertaking by the
Respondents not to continue the embargo
against the Petitioners
William MacLeod and Donald Campbell
the latter were awarded the
expenses incurred by them in the re-
claiming motion. The
remaining petitioners appeal against these
interlocutors.
While the Respondents are cited
as individuals, they are respec-
tively the Scottish Area
Secretary and the Stornaway Branch Secre-
tary of the Transport
and General Workers' Union at Stornaway,
and the terms of the
interdict sought for are " to interdict, prohibit
" and
discharge the Respondents from instructing, procuring, per-
"
suading or inciting, or continuing to instruct, procure, persuade
"
or incite members of the Transport and General Workers' Union
"
at Stornaway, to refuse to load or unload on to or from vessels in
"
the port or harbour of Stornaway consignments of yarn or un-
"
finished tweeds consigned to or despatched by the petitioners, or
"
any of them, or from interfering in any manner or way with the
"
consignment to or despatch by the petitioners, or any of them,
"
of consignments of yarn or unfinished tweeds consigned to or
"
despatched by them at the port or harbour of Stornaway ".
In the record the Appellants
plead two grounds of action in their
first and fourth
pleas-in-law, which are as follows,
" 1. The Respondents having
illegally conspired together
" to interfere with and damage
the petitioners' legitimate
" rights to trade as condescended
upon, interdict should be
" granted as craved.
" 4. Separatim, and,
in any event, the Respondents
" having by their actings
wilfully interfered with and
" obstructed the petitioners'
contractual relations and liberty
" to exercise their trade,
and having thereby caused injury
" to the petitioners,
interdict should be granted as craved."
Any evidence bearing on the
fourth plea was negligible, and the
Appellant made no case on it
before this House, but confined his
contentions to the first plea.
The Lord Ordinary says, " The
" petitioners aver on
record that the laying on of the embargo was
" the result of
a conspiracy between the Respondents and repre-
" sentatives
of companies owning spinning mills on the Island to
" injure
the Petitioners' trade and unlawfully to force them to use
"
Island spun yarn in the manufacture of their tweed. Alternatively
"
they aver that the Respondents were acting in concert for the
"
purpose of injuring their legitimate trade. Their plea is that the
"
Respondents conspired together. The plea is not very happily
2 [16]
" expressed, but in my view
it is sufficient to cover the wider con-
" spiracy and the
case was argued on both alternatives." I may
say at once
that, in my opinion, the first plea is quite inapt to cover
the
wider conspiracy, and should have been amended, which could
have
been done, without difficulty, as the case on the wider con-
spiracy
has been fully dealt with, apparently without objection on
this
point. The Lord Ordinary held that the narrower conspiracy
had
been proved in the sense of joint action by the Respondents,
but
he held that the wider conspiracy had not been proved, and
that
the alleged intent of the Respondents to injure the
Petitioners'
trade had not been proved. In the Inner House, the
learned Judges
of the Second Division held that the wider
combination had been
proved, but (Lord Mackay dissenting) that the
intent to injure had
not been established. Before your Lordships
the Appellants con-
fined their case to the wider combination, as
regards which they
had the favourable decision of the Second
Division. The evidence
was very fully dealt with in the opinions
of the learned
Judges, and I find it unnecessary to deal with it
in detail.
My Lords, as regards the proof
of the wider combination, I am
prepared—using the words of
the late Lord Justice Clerk—" to hold
" that there
was some kind of understanding more or less defined
" between
Mr. Veitch and Mr. Skinner that, if the Union took action
"
and imposed an embargo against the importers of yarn, the Union
"
in turn would be assisted by the millowners to get their 100 per
"
cent, membership. But I am not satisfied by the evidence that
"
there was any decision taken by Mr. Skinner and Mr. Veitch that
"
deprived Mr. Veitch of the liberty to decide for himself in con-
"
sultation with his own officials whether and when an embargo
"
should be imposed. I shall, however, take the case on the assump-
"
tion that a definite arrangement to impose an embargo was
"
reached."
This leaves the crucial question
as to whether the Appellants have
proved that the Respondents'
intention was to injure the Appellants'
trade, as to which the
Appellants have the findings of both the lower
Courts against
them. The reluctance of this House to interfere with
such
findings, and in particular with the findings of the trial Judge,
who
has had the advantage of seeing the witnesses, which has
repeatedly
been expressed, is all the stronger in a case such as the
present,
in which the intention of the Respondents, both of whom
gave
evidence, was in issue. That Veitch, for instance, was stupid
or
wrongheaded, or acted without making proper enquiries may be
quite
consistent with the absence of any intention to injure, and
the
Lord Ordinary has so found; indeed, stupidity or wrongheaded-
ness
might tend to disprove any such intention. The Lord Ordinary
sums
up the evidence thus, " In the present case the immediate
"
purpose of Mr. Veitch and Mr. Mackenzie was to force producers
"
to come to an agreement regarding the selling price of tweed and
"
the exclusive use of Island spun yarn. The means adopted neces-
"
sarily inflicted injury on the Petitioners. But was the infliction
"
of injury Mr. Veitch's motive ? Lord Dunedin in Sorrell v.
Smith,
" (1925). A.C., at p. 717, suggested a test as
follows:—'Was such
"' a purpose the real root of
the acts that grew from it, or was the
"' true motive of the
acts something else, such as, for instance,
"' the
furtherance of the defendants' own business ? ' Applying
"
this test the answer must be in the negative. There is no evidence
"
that Mr. Veitch had evinced anv malice or ill will towards anv
"
of the Petitioners or that he was prompted by a desire to
destroy
" the trade of any persons who were employing
weavers and paving
" them the Union rate of wages. The
purpose at the root of his
" action was to advance the
position of the Union and its members,
" however mistaken he
may have been in the means he adopted
[17] 3
" to secure that end. It
may be that the benefits hoped to be obtained
" would have
been an ultimate and not an immediate consequence
" of the
action taken, but I do not think it would have been any
"
more remote than in the cases of Sorrell v. Smith and Ware
and
" DeFreville."
My Lords, the critical
examination of the evidence by the Appel-
lants' counsel and his
able argument, have entirely failed to satisfy
me that I am in a
position to set aside the conclusion of the Lord
Ordinary; on each
point of criticism in regard to which there
appeared to be ground
for argument, I felt satisfied that a personal
observation of the
witness under examination would have been a
material help to the
solution of the point, and this is the very founda-
tion of the
reluctance of an appellate court to interfere in such
circumstances.
In this view of the facts I find
it unnecessary to deal further with
the previous decisions on this
branch of the law, as there can be
no doubt that the Appeal fails.
But I desire to refer to one
aspect of this case in order to make
clear that, in my opinion,
this case does not raise a question of
law which is of im-
portance and may come up for consideration in
the future, and
that is as to what limit is to be placed as to the
means by which
the pressure is operated in these cases. In the
present case the
pressure was applied by means of action by the
dockers, who were
in no sense employees in, or directly connected
with, the trade in
Harris tweed; but employees in this trade were
members of the
same Union, and the interest of the dockers and the
trade employees
in the Union and its welfare were mutual, and I
can see no ground
for holding that it was not legitimate for the
Union to avail itself
of the services of its docker members to
promote the interests of
the Union. On the other hand, I doubt if
it would be legitimate
for a Union to use a means of pressure with
which it had no con-
nection except that which was constituted by
a money payment,
for instance. However, I have referred to this
question only in
order to make clear that, in my opinion, it does
not arise for decision
in this case, and that I express no opinion
on it.
Lord
Chancellor
Viscount
Maugham
Lord
Thanker-
ton
Lord
Wright
Lord
Porter
CROFTER HAND WOVEN HARRIS TWEED
COMPANY,
LIMITED, AND OTHERS
v.
JOHN VEITCH AND
ANOTHER.
Lord Wright
MY LORDS,
I had prepared a statement of
the facts of this case, but sub-
sequently I had the opportunity
of considering in print the account
of the facts which my noble
and learned friend the Lord Chancellor
has given in his Opinion.
That account, which I agree with and
adopt, renders a separate
narrative from myself superfluous. I
should, however, observe
that, in regard to the issue whether
certain millowners, in
particular Mr. Skinner, were parties to the
combination, I am
prepared, like the Lord Justice Clerk, for pur-
poses of this case
to assume that they were. This view was strongly
pressed in
argument by counsel for the Appellants. It is obviously
the
assumption which is most favourable to them. Lord Mackay,
in his
dissenting judgment, forcibly relied on his conclusion that
there
was a compact between the Respondents and the millowners.
On the
whole I think it is fairer to the Appellants to proceed on
that
assumption. In the end it does not appear to me to affect the
issue.
There was clearly, in any case, combination between the
two
Respondents, who were both responsible Trade Union officials.
The cause of action set out in
the Appellants' claim is for a
conspiracy to injure which is a
tort. The classical definition of
conspiracy is that given by
Willes J. in advising the House of Lords
in Mulcahy v. R.,
L.R. 3 H.L. 306 at p. 317. " A conspiracy con-
"
sists not merely in the intention of two or more, but in the agree-
"
ment of two or more to do an unlawful act, or to do a lawful act
"
by unlawful means." This must be supplemented by observing
that
though the crime is constituted by the agreement, the civil right
of
action is not complete unless the conspirators do acts in
pursuance
of their agreement to the damage of the Plaintiffs.
The question
is then what were the unlawful acts with which the
Respondents
were charged, or what were the unlawful means which
they employed
to do acts otherwise lawful, in other words, what
is the legal
right of the Appellants which is infringed, or what is the
legal
wrong committed by the Respondents. The concept of a
civil
conspiracy to injure has been in the main developed in the
course
of the last half century, particularly since the great case of
the
Mogul Steamship Co. v. McGregor, 23 Q.B.D. 598 and
1892
A.C. 25. Its essential character is described by Lord
Mac-
naghten in Quinn v. Leathem, 1901 AC 495 at
p. 510,
basing himself on Lord Watson's words in Allen v.
Flood,
1898 AC 1 at p. 108, " a conspiracy to injure
might give
" rise to civil liability even though the end were
brought about
" by conduct and acts which by themselves and
apart from the
" element of combination or concerted action
could not be
" regarded as a legal wrong." In this sense
the conspiracy is the gist
of the wrong, though damage is
necessary to complete the cause of
action. The opposite view had
been expressed by Palles C.B. in
Kearney v. Lloyd, 26
L.R.I. 268. He held that the gist of the action
was not the
conspiracy itself, but the particular wrongful acts done
in
pursuance of it, and that the cause of action must exist if the
alle-
gation of conspiracy were struck out. Later cases, however,
have
decisively held the contrary, as I shall show. The rule may
seem
anomalous, so far as it holds that conduct by two may be
actionable
if it causes damage, whereas the same conduct done by
one, causing
the same damage, would give no redress. In effect the
Plaintiff's
right is that he should not be damnified by a
conspiracy to injure
[19] 2
him, and it is in the fact of
the conspiracy that the unlawfulness
resides. It is a different
matter if the conspiracy is to do acts in
themselves wrongful, as
to deceive or defraud, to commit violence,
or to conduct a strike
or lock-out by means of conduct prohibited by
the Conspiracy and
Protection of Property Act, 1875, or which
contravenes the Trade
Disputes and Trade Unions Act of 1927.
But a conspiracy to injure
is a tort which requires careful
definition, in order to hold
the balance between the Defendant's
right to exercise his
lawful rights and the Plaintiff's right
not to be
injured by an injurious conspiracy. As I read the
authorities,
there is a clear and definite distinction which runs
through them
all between what Lord Dunedin in Sorrell v. Smith,
[1925]
A.C. 700 at p. 730, calls " a conspiracy to injure " and "
a set
" of acts dictated by business interests." I
should qualify " busi-
" ness " by adding " or
other legitimate interests," using the con-
venient adjective
not very precisely. It may be a difficult task in
some cases to
apply this distinction. It depends largely on matters
of fact,
but also on a legal conception of What is meant by " inten-
"
tion to injure." The Appellants contend that there was here
an
intention to injure even though it is negatived that the
Respondents
were actuated by malice or malevolence. In substance
what the
Appellants say is that the issue between the millowners
and the
yarn importers was one between two sets of employers, in
which
the men were not directly concerned, and that the
Union's
action was an unjustifiable and meddlesome interference
with the
Appellants' right to conduct their own businesses as they
pleased,
and that the Union were pushing into matters which did
not
concern them. The Appellants further say, as I understand
their
case, that this unjustifiable intrusion was due to the
Union's desire
to secure the assistance of the millowners towards
the Union's
object, which was to get 100 per cent, membership in
the textile
workers, and thus there was no common object among the
two main
parties to the combination; each set had its own selfish
object. In
effect, it was said, the Union were bribed by the
millowners to
victimize the Appellants in their trade by the
promise of help in the
matter of the Union membership, which was
entirely foreign to the
question of the importation of yarn.
These considerations, it was
said, constituted "malice"
in law, even if there was no malevolence,
and prevented the
Respondents from justifying the injury which
they wilfully did to
the Appellants' trade, because they could not
assert any
legitimate interest of their Union which was relevant to
the
action taken. Actual malevolence or spite was, it was said,
not
essential. There was no genuine intention to promote Union
interests
by the stoppage of importation. The interference with
the Appel-
lants' trade by stopping import of yarn was wilful and
ultroneous
action on the part of the Union supported by no
relevant Union
interest. It was malicious or wrongful because
it was intentionally
and unjustifiably mischievous, even though
not malevolent.
Before I refer to the
authorities, there are some preliminary
observations which I
desire to make. I shall avoid the use of what
Lord Bowen described
as the " slippery " word " malice " except
in
quotations. When I want to express spite or ill will, I shall
use the
word malevolence. When I want to express merely
intentional for-
tious conduct I shall use the word wrongful. As
the claim is for a
tort, it is necessary to ascertain what
constitutes the tort alleged.
It cannot be merely that the
Appellants' right to freedom in con-
ducting their trade has been
interfered with. That right is not an
absolute or unconditional
right. It is only a particular aspect of the
citizen's right to
personal freedom, and like other aspects of that
right is
qualified by various legal limitations, either by statute or
by
common law. Such limitations are inevitable in organised
societies
where the rights of individuals may clash. In commercial
affairs
each trader's rights are qualified by the right of others to
3 20]
compete.
Where the rights of labour are concerned, the rights of
the
employer are conditioned by the rights of the men to give or
withhold
their services. The right of workmen to strike is an
essential
element in the principle of collective bargaining. It is true
that
under the Combination Act of 1800 it was a criminal offence
for
workmen to combine together for the purpose of securing
higher
wages or shorter hours of work or of controlling employers
on the
conduct or management of their business. That Act was
repealed
by the Acts of 1824 and 1825, but these Acts introduced
various
restrictions on the conduct of strikes. But as Lord
Bramwell
said in Mogul Steamship Co. v. McGregor
(supra), at p. 47, " a
" combination of workmen, an
agreement among them to cease
" work except for higher wages,
and a strike in consequence, was
" lawful at common law;
perhaps not enforceable inter se, but not
"
indictable." In the report of R. v. Rowlands, 17 Q.B. 671
(1851),
(a criminal case, but the same principles apply in a
civil
suit), Erle J. (at p. 686, note (b) 2) directed the
jury 'The
" law is clear that workmen have a right to combine
for
" their own protection and to obtain such wages as they
choose
" to agree to demand. I say nothing at present as to
the legality
" of other persons, not workmen, combining with
them to assist in
" that purpose. As far as I know there is
no objection in point of
" law to it." He added that
while the law allowed them to com-
bine for the purpose of
obtaining a lawful benefit for themselves, it
gave no sanction to
combinations which had for their immediate
purpose the hurt of
another. I attach great value to that clear and
simple statement,
which has not been superseded but confirmed by
the more elaborate
later discussions. It is clear that this right of
workmen cannot
be generally exercised without interfering with
the employers'
free conduct of their own business. Erle J. added
that either side
had the right to study to promote their own advan-
tage and to
combine with others for that purpose. His summing up
was quoted
with approval by Lord Justice Bowen in the Mogul
Steamship
Co.'s case, 23 Q.B.D. 598 at pp. 618, 619, as applying
equally
to traders as to employers and workmen. It was also
approved in
the same case by Fry L.J. at p. 625. The same
principle is again
stated in Allen v. Flood (supra), Quinn v.
Leathem
(supra), Ware and de Freville, Ltd. v. Motor Trade
Association,
1921, 3 K.B. 40, and in Sorrell's Case (supra). The
language
of Erle J. is certainly a clear statement of a
far-reaching
principle. The same idea is more elaborately
enunciated by
Lord Herschell in Allen v. Flood (1898) AC 1 at p. 129: " I
" understood it to be admitted at
the Bar and it was indeed
" stated by one of the learned
Judges in the Court of Appeal,
" that it would have been
perfectly lawful for all the ironworkers
" to leave their
employment and not to accept a subsequent en-
" gagement to
work in the company of the Plaintiffs. At all
" events I
cannot doubt that this would have been so. I cannot
" doubt
either that the Appellant [the Trade Union official] or
" the
authorities of the union would equally have acted within
"
his or their rights if he or they had ' called the men out.' They
"
were members of the union. It was for them to determine
"
whether they would follow or not follow the instructions of its
"
authorities, though no doubt if they had refused to obey any in-
"
structions which under the rules of the union it was competent
"
for the authorities to give, they might have lost the benefits they
"
derived from membership. It is not for your Lordships to express
"
any opinion on the policy of trade unions, membership of which
"
may undoubtedly influence the action of those who have joined
"
them. They are now recognised by law; there are combinations
"
of employers as well as of employed. The members of these
"
unions, of whichever class they are composed, act in the interest
"
of their class. If they resort to unlawful acts they may be
indicted
" or sued. If they do not resort to unlawful acts
they are entitled
[21] 4
" to further their
interests in the manner which seems to them best
" and most
likely to be effectual." This statement was criticised
adversely
by Lord Lindley in Quinn's Case at p. 537, but in my
opinion
it states the law correctly.
It is thus clear that employers
of workmen or those who like the
Appellants depend in part on the
services of workmen, have in the
conduct of their affairs to
reckon with this freedom of the men and to
realise that the
exercise of the men's rights may involve some
limitation on their
own freedom in the management of their busi-
ness. Such
interference with a person's business, so long as the
limitations
enforced by law are not contravened, involves no legal
wrong
against the person. In the present case the Respondents
are sued
for imposing the " embargo," which corresponds to
calling
out the men on strike. The dockers were free to obey or
not to
obey the call to refuse to handle the Appellants' goods.
In
refusing to handle the goods they did not commit any breach
of
contract with anyone; they were merely exercising their own
rights.
But there might be circumstances which rendered
the action
wrongful. The men might be called out in breach
of their contracts
with their employer, and that would be clearly
a wrongful act as
against the employer, an interference with his
contractual right,
for which damages could be claimed not only
as against the
contract-breaker, but against the person who coun-
selled or
procured or advised the breach. This is the principle laid
down in
Lumley v. Gye, 2 E. & B. 216, which Lord Macnaghten
in
Quinn v. Leathem (supra), at p. 510, defined to be that
" a violation
" of legal right committed knowingly is a
cause of action and it is
" a violation of legal right to
interfere with contractual relations
" recognised by law if
there be no sufficient justification for the
" interference."
That is something substantially different from a
mere interference
with a person's qualified right to exercise his free
will in
conducting his trade. A legal right was violated and
needed
justification, if it could be justified. This distinction
was drawn
by the majority of the Lords in Allen v. Flood
(supra), who dis-
approved of the dicta in Bowen v. Hall, 6 QBD 333, and Temper-
ton v. Russell, 1893, 1 Q.B.
715, that every person who persuades
another not to enter into a
contract with a third person
may be sued by that third person if
the object were to
benefit himself at the expense of such person.
But in Allen v.
Flood (supra) this House was considering a
case of an individual
actor, where the element of combination was
absent. In that case,
it was held, the motive of the Defendant is
immaterial. Damage
done intentionally and even malevolently to
another, thus, it was
held, gives no cause of action so long as no
legal right of the other
is infringed. That I take to be the
English rule laid down by this
House in Bradford Corporation v.
Pickles (1895) AC 587, and in
Allen v. Flood (supra),
though in Sorrell v. Smith (supra), at p. 713,
Lord
Cave doubts the proposition and says that in general what is
unlawful
in two is not lawful in one. But this seems to be incon-
sistent
with the express rulings in Allen v. Flood (supra). Though
eminent
authorities have protested against the principle, it must,
I
think, be accepted at present as the law in England. The
precise
issue does not arise in this case, which is concerned with
combina-
tion or conspiracy. I need not consider whether any
qualification
may hereafter be found admissible.
Thus for purposes of the present
case we reach the position that
apart from combination no wrong
would have been committed.
There was no coercion of the dockers.
There were no threats to
them. They were legally free to choose
the alternative course
which they preferred. In Quinn v.
Leathem (supra) a wide meaning
was given to words like
threats, intimidation or coercion, especially
by Lord Lindley, but
that was not the ratio decidendi adopted by
the House.
These words, as R. S. Wright pointed out in his book on
5 [22]
Criminal Conspiracy, are not
terms of art and are consistent either
with legality or
illegality. They are not correctly used in the
circumstances of a
case like this. In Allen v. Flood, Ware's
case, and
Sorrell's case, a more accurate definition was given. I
should
also refer to the admirable discussion by Peterson J. in
Hodges
v. Webb (1920), 2 Ch. 70. There is nothing unlawful in
giving
a warning or intimation that if the party addressed pursues
a
certain line of conduct, others may act in a manner which he
will
not like and which will be prejudicial to his interests, so long
as
nothing unlawful is threatened or done. In Lord
Buckmaster's words
in Sorrell v. Smith (supra), at p. 747, " A
threat
" to do an act which is lawful cannot create a cause
of action
" whether the act threatened is to be done by many
or by one."
No doubt the use of illegal threats or the
exercise of unlawful
coercion would create by itself a cause of
action, but there was
nothing of the sort in this case.
The only ground in this case on
which the Appellants could
establish a cause of action in tort is
by establishing that there
was a conspiracy to injure, which would
take the case out of the
general ruling in Allen v. Flood
(supra) and bring it within the
exception there reserved, e.g.
by Lord Herschell at p. 123, when he
said, "It is certainly a
general rule of our law that an act prima
" facie
lawful is not unlawful and actionable on account of the
"
motive which dictated it. I put aside the case of conspiracy, which
"
is anomalous in more than one respect." Lord Watson, at p.
108,
made a similar reservation. Lord Macnaghten, at p. 153, said
that
the decision in Allen v. Flood (supra) could
have no bearing on any
case which involved the element of
oppressive combination. These
reservations were acted upon in
Quinn v. Leathem (supra) to which
I shall refer later. That
the decision in that case turned on con-
spiracy cannot now be
doubted, especially after Ware's case (supra)
and
Sorrell's case (supra).
The distinction between conduct
by one man and conduct by
two or more may be difficult to justify.
Lord Sumner in Sorrell's
case (supra) puts the very
artificial case of the owner of a large busi-
ness who gave a
small share to a partner and " conspired " with him.
For
practical purposes the position there is the same as if he
had
remained a sole trader. The fact that the sole trader
em-
ployed servants or agents in the conduct of his business
would
not in my opinion make these others co-conspirators
with him. The
special rule relating to the effect of a com-
bination has been
explained on the ground that it is easier
to resist one than two.
That may appear to be true if a
crude illustration is taken, such
as the case of two men attacking
another, but even there it would
not always be true if, for instance,
the one man was very strong
and the two very weak. And the
power of a big corporation or
trader may be greater than that of
a large number of smaller fry
in the trade. This explanation of
the rule is not very
satisfactory. The rule has been explained on
grounds of public
policy. The Common Law may have taken the
view that there is
always the danger that any combination may be
oppressive, and may
have thought that a general rule against
injurious combinations
was desirable on broad grounds of policy.
Again any combination to
injure involves an element of deliberate
concert between
individuals to do harm. Whatever the moral or
logical or
sociological justification, the rule is as well established
in
English law as I here take to be the rule that motive is
immaterial
in regard to the lawful act of an individual, a rule
which has been
strongly criticised by some high legal authorities
who would solve
the apparent antinomy by holding that deliberate
action, causing
injury, is actionable, whether done by one or by
several.
[23] 6
A conspiracy to injure involves
ex vi termini an intention to
injure, or more accurately, a
common intention and agreement to
injure. Both " intention
" and " injure " need definition. The
word "
injure " is here used in its correct meaning of "
wrongful
harm," damnum cum injuria, not damnum
absque injuria. That
obviously raises the question, when is
the harm wrongful ? " Inten-
tion " is generally
determined by reference to overt acts and to the
circumstances in
which they are done. It is in this way that an
intention to
deceive, which is an essential element in the action of
deceit is
ascertained. Lord Watson in Allen v. Flood (supra) at
p. 98
warns against the " loose logic which confounds
internal feelings
" with outward acts, and treats the motive
of the actor as one of
" the means employed by him."
Erle J., in the passage I have
referred to in R. v. Rowlands
(supra) at p. 686, seems to have in
mind an external object
when he distinguishes combinations for the
purpose of obtaining a
lawful benefit for the combiners from com-
binations which have
for their immediate purpose the hurt of
another. I do not think
that Erle J., in these words intends a con-
trast between what is
immediate and what is remote. If he so
intended, the later
authorities would, I think, contradict such a
view. A
competitive combination of traders to undercut prices
may be said
to have the immediate result of excluding rivals from
the trade,
but if its real object is the ultimate increase of business
and
profits by the traders it is lawful (Mogul case, supra).
A per-
fectly lawful strike may aim at dislocating the
employer's business
for the moment, but its real object is to
secure better wages or
conditions for the workers. The true
contrast is, I think, between
the case where the object is the
legitimate benefit of the combiners
and the case where the object
is deliberate damage without any
such just cause. The Courts
have repudiated the idea that it is
for them to determine whether
the object of the combiners is reason-
ably calculated to achieve
their benefit. The words " motive,"
" object,"
" purpose," are in application to practical matters
diffi-
cult strictly to define or distinguish. Sometimes mere
animus, such
as spite or ill will, malevolence or a wanton desire
to harm without
any view to personal benefit is meant. But
motive is often used
as meaning purpose, something objective and
external, as con-
trasted with a mere mental state. "
Object" is, I think, the most
appropriate word. How far
malevolence is to be regarded as an
essential element in the law
of conspiracy has led to differences of
opinion, particularly in
Sorrell's case (supra). Proof of malevolent
feelings,
coupled with proof that the combiners had in view no
tangible
benefit to themselves would clearly I think be enough to
show that
the combination was wrongful. But it does not follow
that
malevolence is a necessary element to constitute the tort. Lord
Cave
in Sorrell's case at p. 712 stated the law, at least for
purposes
of that case, in two propositions. " (1) A
combination of two or
" more persons wilfully to injure a man
in his trade is unlawful
" and, if it results in
damage to him, is actionable. (2) If the real
" purpose of
the combination is not to injure another but to forward
"
or defend the trade of those who enter into it, no wrong is
com-
" mitted and no action will lie although damage to
another ensues."
This double proposition, seems to me to be
substantially complete
and accurate, though it is no doubt in need
of qualification; for
instance, it is limited to trade and does
not in terms refer to mixed
objects. But while it seems to me to
emphasise the contrast
I have found throughout the cases, it does
not mention
malevolence. I do not think it differs in substance
from Lord
Dunedin's view in the same case. At p. 730 he states
the contrast
between a conspiracy to injure on the one hand and on
the other
a set of acts dictated by business interests. When he
emphasises
that a conspiracy to injure involves mens rea, the
guilty intention,
he does not necessarily mean that malevolence is
essential. Lord
Buckmaster takes the same contrast between the
case where the
7 [24]
purpose of the combination is
the deliberate injury of a third person
and where it is the
promotion of legitimate trade interests: Lord
Sumner, however,
seems, at least in part of his opinion, to regard
proof of actual
spite, malevolence or ill will as essential
the cause of action
for conspiracy to injure. At p. 737 he draws
a parallel from the
law of defamation. " Just as defamatory words
" uttered
on a privileged occasion cease to be words which the
"
speaker is entitled to utter if he is actuated by express malice,
so
" the pursuit of one's own interests at a rival's expense
which pure
" commercial selfishness would justify passes the
limit of legal right
" and enters the field of actionable
wrongdoing, if for that purity
" there is substituted
independent malevolence towards others."
On the other hand at
p. 741 he says, " I incline to agree that the
" object
or purpose of the aggressive action of a combination is the
"
principal thing to be considered," though he adds doubts
and
qualifications principally in reference to mixed motives.
On this question whether
malevolence is a necessary element in
conspiracy to injure there
appears to be some opposition between
Lord Sumner and Lord Cave,
who not only leaves out that element
in stating his two
propositions, but in express terms says that a
motive of spite is
not an essential element of the offence. Lord
Atkinson agreed with
Lord Cave. Lord Dunedin does not in terms
expressly mention it. He
is content to rest upon mens rea, a desire
to injure. Lord
Buckmaster agrees generally with Lord Dunedin
though in one place
he says that the onus is on the Plaintiff to prove
that the act
was spiteful and malicious.
I do not read these opinions as
differing on the essential point
that where the acts are per se
lawful, the presence or absence of
intention to injure is the
determining feature, and that such an in-
tention is rebutted by a
finding that the combiner's real object was to
advance their
interests. On principle I am of opinion that malevo-
lence is no
more essential to the intent to injure, the mens rea, than
it
is to the intent to deceive. On practical grounds also I prefer
that
view. To leave to a jury to decide on the basis of an internal
mental
state, rather than on the facts from which intent is to be
inferred,
may be to leave the issue in the hands of the jury as clay
to
mould at their will. After all, the Plaintiff has to prove
actual
damage which can only result from things done. Mere
malevolence
does not damage anyone. I cannot see how the pursuit
of a legiti-
mate practical object can be vitiated by glee at the
adversary's
expected discomfiture. Such glee, however deplorable,
cannot
affect the practical result. I may add that a desire to
injure does
not necessarily involve malevolence. It may be
motivated by
wantonness or some object not justifiable.
As to the authorities, the
balance, in my opinion, is in favour of
the view that malevolence
as a mental state is not the test. I accord-
ingly agree with the
Appellants' contention that they are not con-
cluded by the
finding that the Respondents were not malevolent. It
thus becomes
necessary to consider the further arguments on which
the
Appellants base their claim to succeed.
I approach
the question on the assumption that the Appellants
have to prove
that they have been damnified by tortious action,
they do not
prove that by showing that they have been harmed
by acts done by
the Respondents in combination, these acts being
apart from any
question of combination otherwise within the
Respondents' rights.
It is not then for the Respondents to justify
these acts The
Appellants must establish that they have been
damnified by a
conspiracy to injure, that is, that there was a wilful
and
concerted intention to injure without just cause, and
consequent
damage. That was the view accepted by Lords Dunedin
and
Buckmaster in Sorrell s case (supra). Lord
Sumner proposes the
question without deciding it. But the form in
which he states it
[25] 8
seems to me to suggest the
answer. It is not a question of onus of
proof. It depends on what
is the cause of action. The Plaintiff
has to prove the
wrongfulness of the Defendant's object Of course,
malevolence may
be evidence tending to exclude a legitimate object
or to establish
a wrongful object.
I have been attempting to define
the legal background of the
tort, a conspiracy to injure, before I
seek to express my opinion on
the Appellants' contentions. I have
not sought to reconcile all
that has been said on the question in
the authorities. For various
reasons, perhaps obvious enough, some
due to the earlier combina-
tion laws, some perhaps influenced by
personal predilections of
some judges in the earlier years of this
century, reconciliation of
all the observations is impossible. But
after all, law does not
depend on balancing expressions, as R. S.
Wright in his
Law of Criminal Conspiracy at p. 51 wisely observed.
I have
attempted to state principles so generally accepted as to
pass into
the realm of what has been called jurisprudence, at
least in English
Law, which has for better or worse adopted the
test of self-interest
or selfishness as being capable of
justifying the deliberate doing of
lawful acts which inflict harm,
so long as the means employed are
not wrongful. The Common Law in
England might have adopted a
different criterion and one more
consistent with the standpoint of a
man who refuses to benefit
himself at the cost of harming another.
But we live in a
competitive or acquisitive society, and the English
Common Law may
have felt that it was beyond its power to fix
by any but the
crudest distinctions the metes and bounds which
divide the
rightful from the wrongful use of the actor's own freedom,
leaving
the precise application in any particular case to the jury or
judge
of fact. If further principles of regulation or control are to
be
introduced, that is matter for the Legislature. There are not
many
cases in which the Court has had to consider these problems.
Actions
of this character are not of everyday occurrence like actions
for
negligence. I must howeverYefer to the details of certain cases.
I shall first refer to Quinn
v. Leathem (supra), decided by this
House on appeal from
Ireland. In outline the facts were very
simple. Leathem, a
butcher, had been employing non-Union
labour. The policy of the
Union was that only its members should
be employed. Leathem was
willing that his men should join the
Union and offered to pay
their fines and entrance money.
The Defendants, the Union
officials, refused that offer and said
the men could not be
admitted to the Union but must walk the
streets for twelve months.
Leathem refused to discharge the men.
A few months later he was
warned that if he continued to
employ non-Union men, the men who
worked for Munce, one
of Leathem's customers, would be called out
unless Munce ceased
to take his meat from Leathem. Munce thought
it more prudent
to cease to get his meat from Leathem, who lost
the benefit of his
customer's trade. This was the damage claimed
in the action in
which a conspiracy to injure was alleged. I
disregard the case of the
man Dickie who was called out in breach
of his contract with
Leathem.
Apart from the savage
expressions used by the defendants and
perhaps the desire of the
defendants that the men should walk the
streets for twelve months,
and the circumstance that Leathem had
offered to satisfy the
Union's demands, the case might well have
been regarded as one in
which ordinary measures had been taken
to promote the Union's
interests by excluding non-Union labour. In
Ware's case
(supra) at p. 68 Scrutton L.J. pointed out the close
parallel
with the Glasgow Fleshers' case, 35 S.L.R. 645, a
striking
case of " exclusive dealing " in trade affairs
enforced by threats or
warnings by the defendants in concert that
they would withhold
their custom from the salesmen if they sold
meat to the plaintiff.
9 [26]
The object was to limit
competition. The decision in the Glasgow
Fleshers case
(supra) was approved by this House in Sorrell's
case
(supra) and also by Lord Lindley in Quinn's
case at p. 539. But
there was in Quinn's case the
special evidence of vindictive purpose.
It was thus a question for
the jury to decide whether there was an
intention to injure or an
intention to promote the Union's objects,
or perhaps more exactly
what was the predominant object.
Fitzgibbon L.J., who tried the
case, put to the jury the questions:
Did the Defendants or any two
or more of them maliciously con-
spire to induce the Plaintiff's
customers or servants named in the
evidence or any of them not to
deal with the Plaintiff or not to
continue in his employment, and
were such persons so induced not
to do so. The jury answered, Yes.
The Judge told the jury that
acts done with the object of
increasing the profits or raising the
wages of any combination of
persons, such as the society to
which the Defendants belonged, by
reasonable and legitimate
means were perfectly lawful and were not
actionable so long as no
wrongful acts were maliciously—that
is to say intentionally—done
to injure a third party. He put
the usual and correct alternative
between acts done to secure or
advance the combiners' own interests
and acts intended and
calculated to injure the Plaintiff in his trade.
He told the jury
that intention was to be inferred from acts and
conduct proved.
There is no report of the summing up as a whole.
It is useless to
speculate whether the jury might not have
properly found that if
the objects or motives were mixed the pre-
dominant motive or
object was to advance the Union's policy
while the malevolent
desire to punish Leathem was subordinate.
It was for the jury to
decide; they decided against the Defendants,
and there was
evidence to support their verdict. Some may ques-
tion whether
they fully appreciated what were the actual interests
or objects
of a Trade Union. But this is fact, not law.
In the Irish Court of Appeal,
where the case is entitled Leathem
v. Craig, 1899, 2
I.R. 667, the judgment which most appeals to me
is that of Holmes
L.J., which Lord Robertson adopted in toto
in his speech in
this House, and Lord Macnaghten approved.
Holmes L. J. said that
if there was illegality in a combination it must
be looked for in
the object proposed. He treated the finding of
the jury as
decisive.
It seems to me that much of the
discussion which has centred
round Quinn's case (supra)
merely deals with the issue of fact, and
either approves or
disapproves of the justness of the jury's finding.
But the
decision of the House is of great importance as giving the
authority
of this House to the principle that a conspiracy to injure
gives a
cause of action. That rule was well established and had been
applied
in Temperton v. Russell (supra), and approved by
this
House in Allen v. Flood (supra). Quinn's case (supra)
was in fact
the complement of Allen v. Flood
(supra). The latter case gave
effect to the rule where there
was no combination, the former to the
rule where there was
combination. Of the six Lords of Appeal who
took part in the
debate in Quinn's case (supra) the ratio
decidendi
of five was based upon a conspiracy to injure. I
refer to Lord
Halsbury (loc. cit.) at p. 505, Lord
Macnaghten (p. 511), Lord
Shand (p. 513), Lord Robertson (p. 532),
where he adopts Holmes
L.J.; Lord Brampton at pp. 527 and 528. The
views of these Lords
are enough to decide what is the ratio
decidendi adopted in this
House. Lord Lindley (at p. 539)
seems to base his judgment on
coercion and threats by numbers, but
without clearly defining what
he means by these neutral terms
which have since been elucidated
in this House. I do not think it
necessary further to consider the
cross currents and observations
which are found in some of the
speeches. Lord Shand sums up his
view (and, as it appears to me,
the ratio decidendi of the
House) very clearly and accurately at
p. 515. ' Their [the
Defendants'] acts were wrongful and malicious
[27] 10
" in the sense found by the
jury, that is to say, they acted by con-
" spiracy, not for
any purpose of advancing their own interests as
" workmen,
but for the sole purpose of injuring the Plaintiff in his
"
trade." So understood, Quinn's case (supra) does
not help the
Appellants here unless they can get rid of the
findings of the Courts
below. Before I examine the grounds on
which they seek to do
this I ought to refer to some other cases.
One is Giblan v. National
Amalgamated Labourers' Union, 1903,
2 K.B. 600, where the jury
found that the Defendants' acts in pre-
venting the Plaintiffs
from getting employment were done in the
case of the one to
prevent him from getting or retaining employ-
ment, and in the
case of the other to compel him to pay arrears of
defalcations of
which he was guilty. The facts were somewhat
complicated. As Lord
Herschell pointed put in Allen v. Flood
(supra) at
p. 131, the use of the word " punishment " may be
mis-
leading; it may mean mere vindictive vengeance or it may mean
an
intention to deter others from similarly offending. Equally
the
desire to enforce repayment of defalcations may be actuated
by
either of the same motives, to say nothing of desire to get the
money.
It is clear that the jury took the view more adverse to the
Defen-
dants. Much that was said by the Lords Justices in the case
would
require careful consideration in view of earlier and later
decisions
of this House. Romer L.J., however, wisely observes at
p. 618
that in determining whether the injurious action is "
justified"
regard must be had to the circumstances of each
case as it arises
and that it is not practically feasible to give
an exhaustive definition
of the word to cover all cases. The facts
in Giblan's case (supra)
were so peculiar that I
cannot derive any general guidance from it.
I may note in
particular that the jury found that the trouble did not
arise
because the Union men objected to work with the Plaintiffs.
I
cannot find any analogy between the facts in that case and the
facts
as found in the present case.
On the other hand, two later
cases show how far the Courts have
gone in upholding the rights of
persons to freedom to pursue their
own interests in their trade
even at the cost of seriously impeding
the freedom in a practical
sense of other persons in their trade.
Perhaps the most striking
case of this nature is Ware's case (supra),
approved
by this House in Sorrell's case (supra) and later
applied
in Thorne v. Motor Traders' Association, 1937 A.C.
797. The
Defendants were an Association of motor car manufacturers
who
adopted a scheme and rules for maintaining fixed prices for
their
goods. These prices were published. If any person departed
from
these published prices his name was put on a " stop
list" and there-
upon no member of the Association was to
supply him. Further,
if any person did supply him, that person's
name would also be
placed on the " stop list" and he
would be similarly pilloried.
Persons on the " stop list"
were, however, allowed to purge their
offence by paying a fine if
the Association accepted it. The Plaintiff,
a motor dealer who was
not a member of the Association, had been
placed on the "
stop list" in accordance with the scheme. The
scheme was a
most ruthless and efficient system aimed at securing
the mutual
benefit of the associated traders at whatever loss or incon-
venience
to outsiders. The Plaintiff complained that all he wanted
was to
exercise his lawful freedom to buy and sell cars as
he desired. It
was contended that the system adopted by the
Defendants went
beyond any previous decision. The Defendants,
it was submitted,
were saying, " If you continue to deal with the
"
Plaintiff you shall not only cease to deal with us but we shall
take
" steps to prevent others from dealing with you."
But the Court
of Appeal held that no legal wrong was committed,
because the
Defendants had done nothing unlawful, and the
combination was
not a wrongful conspiracy because its object was
not to injure,
but was the lawful object of promoting their
business interests, as
11 [28]
they understood them, by
preventing price cutting and securing
price maintenance. The
elaborate system was devised solely with
that object. The Court of
Appeal rejected the contention that the
method adopted amounted to
coercion or threats. On this latter
topic much the same opinion
was expressed by this House in Sorrell
v. Smith (supra),
already referred to by me. Apart from the
general exposition
of the law of civil conspiracy to injure which
it contains it is
important in dealing with the present Appellant's
submissions
because it placed on a wide basis the business
interests,
protection or advancement of which would prevent it
being held
that the Defendants had acted with intention to injure
the
Plaintiff. The Defendants, an Association of newspaper pro-
prietors,
in the course of a dispute between two rival Associations
of
newspaper dealers, had intervened to support the policy of
one
Association by stopping supplies to the Plaintiff, a retail
dealer
who had adhered to the side of the other. Russell J., as he
then
was, the trial Judge, held that the Defendants had no
justification
for interfering with the Plaintiffs' freedom of
trade, because they
had no direct interest in the conflict between
the two Associations.
In Lord Sumner's words at p. 731, the
Judge's view was that the
Defendants were well meaning busybodies
who intimidated third
parties, and so meddled with the Plaintiffs'
business in a matter
which was no business of theirs because, as
he held, they wanted a
controlling decision in the dispute. The
Court of Appeal and this
House reversed the decision of the Judge
on the short ground that
the real purpose of the newspaper
proprietors was to promote the
circulation of their papers, and
that they did so by lawful means.
I think this line of reasoning
applies here to answer the Appel-
lants' contention that the
Respondents or the Union had no direct
interest in the importation
of yarn. On the facts found, rightly
as I think, they were of
opinion that the prosperity of the industry
in Harris Tweed was
jeopardised by the importation. It is not
for the Court to
decide whether this opinion was reasonable
or not. It was a
genuine opinion. It cannot be said that it was
a mere sham
intended to cloak a sinister desire to injure the im-
porters. The
Respondents had no quarrel with the yarn importers.
Their sole
object, the Courts below have held, was to promote their
Union's
interests by promoting the interest of the industry on which
the
men's wages depended. On these findings, with which I agree,
it
could not be said that their combination was without
sufficient
justification. Nor would this conclusion be
vitiated, even
though their motives may have been mixed, so
long as the real or
predominant object, if they had more than one
object, was not
wrongful. Nor is the objection tenable that the
Respondent's real
or predominant object was to secure the
employer's help to get
100 per cent, membership of the Union among
the textile workers.
Cases of mixed motives or, as I should prefer
to say, of the presence
of more than one object, are not uncommon.
If so, it is for the
jury or judge of fact to decide which is
the predominant object,
as it may be assumed the jury did in
Quinn's case (supra) when
they decided on the basis
that the object of the combiners was
vindictive punishment, not
their own practical advantage. A
curious instance of mixed
motives or objects is taken by Andrews J.,
in his interesting
judgment in the Divisional Court in Leathem v.
Craig (supra)
(loc. cit. at p. 674), from Kearney v. Lloyd (supra),
where
the Defendants were parishioners who had combined to
withhold
their subscriptions from the incumbent, partly, as the
jury found,
with the intention of promoting the religious interests
of the
parish, and partly with the intention of obliging the incum-
bent
to resign. Andrews J. expressed the view that the former
was
the main and ultimate object. The case however was eventu-
ally
decided on other grounds.
I may here note that the
doctrine of civil conspiracy to injure
extends beyond trade
competition and labour disputes. Thompson
[29] 12
v. British Medical
Association, 1924 AC 764, shows that it may
extend to the
affairs of a profession, as was expressly stated in
that case at
p. 771 in the judgment of the Privy Council. By
way of contrast,
Gregory v. Duke of Brunswick, 6 M. & G.
953, may be
regarded as a striking illustration of what might be
held to
constitute a conspiracy to injure; what was alleged was a
conspiracy
to hiss an actor off the stage in order to nun him. To
what
legitimate interests other than those mentioned the general
doctrine
may extend I do not here seek to define, since beyond
question it
extends to the present case, whether the object of the
action were
the prosperity of the industry or the obtaining 100 per
cent,
membership. But the objects or purposes for which combina-
tions
may be formed are clearly of great variety. It must be left
to the
future to decide on the facts of the particular case, subject
to
the general doctrine, whether any combination is such as to
give
rise to a claim for a conspiracy to injure.
But the object of securing 100
per cent. Union membership, if
it were operative in inducing the
Respondents to combine with the
employers, was relied on by the
Appellants on other grounds as
vitiating the combination. It was
objected that there could be no
combination between the employers
and the Union because their
respective interests were necessarily
opposed. I think that is a
fallacious contention. It is true that
employers and workmen are
often at variance because the special
interest of each side conflicts
in a material respect as, for
instance, in questions of wages, con-
ditions of hours of work,
exclusion of non-Union labour. But
apart from these differences in
interest, both employers and work-
men have a common interest in
the prosperity of their industry,
though the interest of one side
may be in profits and of the other
in wages. Hence a wider and
truer view is that there is a com-
munity of interest. That view
was acted upon in the present case
in regard to the essential
matter of yarn importation. As to the
separate matter of the Union
membership, while that was something
regarded as important by the
Respondents it was probably regarded
by the employers as a matter
of indifference to them. It was, in any
case, a side issue in the
combination even from the Respondents'
point of view. I may add
that I do not accept, as a general propo-
sition, that there must
be a complete identity of interest between
parties to a
combination. There must, however, be sufficient identity
of
object, though the advantage to be derived from that same object
may
not be the same.
The Appellants have further
contended that the " deal" referred
to in the Respondent
Veitch's letter was a bargain by which the
Union sold to the
employers the dockers' aid in return for the
employers' aid in
regard to Union membership. In other words,
the contention was
that the Respondents or the Union were bribed
and were
mercenaries, not interested in the embargo except for the
reward
which was in its nature unrelated to the embargo. The
facts,
however, were not as the contention assumes, so that I need
not
discuss whether a party to a combination whose interest was
merely
separate and mercenary, could ever be held to have a
legitimate
interest or justification for harm done in pursuance of
the
combination. I need add merely a few words on the objec-
tion that
the embargo was the act of the dockers for the benefit,
not of
themselves, but of the textile workers. It is enough to say
that
both sections were members of the Union, and there was in my
opinion
a sufficient community of interest even if the matter is
regarded
from the standpoint of the men, as individuals, and not
from the
standpoint of the Respondents, who were the only parties
sued.
Their interest, however, was to promote the advantage of the
Union
as a whole.
In my opinion, the judgment
appealed from should be affirmed
and the appeal dismissed.
Lord
Chancellor
Viscount
Maugham
Lord
Thanker-
ton
Lord
Wright
Lord
Porter
CROFTER HAND WOVEN HARRIS TWEED
COMPANY,
LIMITED AND OTHERS
v.
VEITCH AND ANOTHER.
Lord Porter
MY LORDS,
The circumstances relevant to be
considered in this case extend
over a considerable period and the
conclusions to be drawn from
them demand a close scrutiny of the
evidence.
I need not state the facts; that
has already been done, but I
must set out the inferences which
have been drawn from them and
consider whether those arrived at by
the Courts below and particu-
larly by the Lord Ordinary, have
been shown to be wrong.
Apart however from the facts,
the arguments have ranged over
a wide area of somewhat obscure law
as to which so far as it is
necessary your Lordships must find a
solution.
In a matter so difficult,
however, I should not feel justified in
expressing a concluded
opinion upon any matter which is not
essential for the
determination of the case. I propose therefore to
state with what
accuracy I can the exact findings upon which I
think a conclusion
of law has to be pronounced.
It is unnecessary to emphasize
the principle so often recognised
by your Lordships, that in all
cases where facts have to be reviewed,
it is undesirable that the
findings of the Courts below should be
disturbed by a Court of
Appeal unless it appears that those findings
are clearly wrong,
and more especially that it is undesirable to do
so where the
conclusions reached must to a large extent depend
upon the
demeanour of the witnesses and the impression formed by
a tribunal
which has seen them and can judge of their honesty and
accuracy.
In the present case the Court
had to determine the purpose,
motive, intention, call it what you
will, of Mr. Veitch and Mr.
Mackenzie.
I cannot find that the Lord
Ordinary, or indeed the Inner House,
thought either of them
untruthful or dishonest. It would have been
possible to judge them
to be men who clearly foresaw the injury
which their acts would
produce and to have intended that injury, or
to have thought them
muddle-headed, obstinate and prejudiced,
but still honestly
desirous of doing what they considered beneficial
to their Trade
Union and anxious only to promote its interests, even
though their
acts might be prejudicial to some or all of the employers
of the
labour which they represented. Both Courts took the latter
view.
One cannot be too logical in these matters or expect a
defender to
have an exact apprehension of the consequences of his
acts or
clearly to appreciate how the methods he adopts for effecting
the
end at which he aims, will work. His action may inevitably
cause
injury, yet that may not be his object.
The case which is under
consideration seems to me to be pre-
eminently one in which an
appellate tribunal should be guided by
the opinion of the judge
who saw and heard the witnesses, and I do
not find myself
qualified to criticize or correct his conclusions as to
the
purpose which the defenders had in mind in following the path
along
which they travelled.
I should allow myself more
latitude in dealing with the question
whether there was a
combination between the mill-owners or some
of them and the two
defenders sued, because the material for judg-
ment is, I think,
more abundant and because the Inner House has
taken a view
contrary, it is true, to that of the Lord Ordinary, but
still one
which must be shown to your Lordships to be wrong before
it is
interfered with.
[31] 2
Having these considerations in
mind, I find myself unable to
differ from the Lord Ordinary when
he concludes that there was no
conspiracy to injure, and if for my
own part I had to decide the
further question whether a
combination between millowners and
defenders had been proved, I
should not feel justified in forming
an opinion contrary to his,
but in agreement with the opinion
already expressed by the Lord
Chancellor should not consider this
combination established. I am
the more emboldened to express
this view as I think it has the
support of the Inner House of the
Lord Justice Clerk and that Lord
Wark, if he had himself had
to determine it, would have been of
the same opinion, though
undoubtedly Lord Fleming and Lord Mackay
take the other view.
But the Lord Justice Clerk thought there was
some kind of under-
standing more or less defined between Mr.
Veitch and Mr. Skinner
to the effect that ii the Union took action
and imposed an embargo
against the importers of yarn, the Union in
turn would be assisted
by the mill-owners to get their 100 per
cent, membership, and I
understand some of your Lordships to agree
that the wider com-
bination has been established. I am therefore
prepared to treat the
case upon that footing.
If the meaning of a combination
to injure were plain and if a
finding that it had not been proved
were enough, the view that
there had been no combination to injure
would be conclusive of
the case. But as both the meaning of the
phrase and the question
whether a mere absence of intention to
injure is all that is required
to absolve the defenders from
liability, are both in dispute, it is
first of all necessary to
state exactly what I believe the finding of
the Lord Ordinary to
have been. It is, I think, set out succinctly in
the following
paragraph:
" In the present case the
immediate purpose of Mr. Veitch
" and Mr. Mackenzie was to
force producers to come to an agree-
" ment regarding the
selling price of tweed and the exclusive use
" of Island spun
yarn. The means adopted necessarily inflicted
" injury on the
Petitioners. But was the infliction of injury Mr.
" Veitch's
motive ? Lord Dunedin in Sorrell v. Smith (1925 A.C.
"
at p. 717) suggested a test as follows. ' Was such a purpose the
"'
real root of the acts that grew from it, or was the true motive
"'
of the acts something else, such as for instance, the furtherance
"'
of the defendant's own business ?' Applying this test the answer
"
must be in the negative. There is no evidence that Mr. Veitch
"
had evinced any malice or ill will towards any of the Petitioners
"
or that he was prompted by a desire to destroy the trade of any
"
persons who were employing weavers and paying them the Union
"
rate of wages. The purpose at the root of his action was to
"
advance the position of the Union and its members, however
"
mistaken he may have been in the means he adopted to secure
"
that end. It may be that the benefits hoped to be obtained would
"
have been an ultimate and not an immediate consequence of the
"
action taken, but I do not think it would have been any more
"
remote than in the cases of Sorrell v. Smith and Ware
and De
" Freville."
There is ample evidence for this
finding and although Mr.
Veitch's testimony was at times confused
and inconsistent, its effect
was a matter for the learned judge. I
find no attack upon the sub-
stantial honesty of this witness
either by him or by the Inner House
though the lack of
consideration shown is severely criticized by
both.
The views of the Inner House are
not dissimilar. I may quote
from the Lord Justice Clerk and from
Lord Fleming. The former
says: " Moreover, there are a number
of circumstances that point
" to Mr. Veitch having acted in
good faith. He was a trusted and
" responsible official. He
had no quarrel with any of the petitioners;
3 [32]
" there is nothing to
suggest that he had illwill towards anyone. I
" regard the
suggestion that he was out to ruin the importers as
"
entirely ill-founded. His letter to Mr. Mackenzie of 28th January
"
shows that he was prepared to meet them and discuss the position.
"
There is not the slightest trace of personal ill-will or spite; I
doubt
" if he knew any of them personally. The attainment of
100 per
" cent. Trade Union Membership was the declared
policy of his
" Trade Union. From 1935 onwards the Officials
of the Union had
" made it clear that they regarded
price-cutting as something that
" would be hurtful to the
interests of the workers in the industry,
" and that they
would not hesitate to take direct action to prevent
" it. I
attach the greatest weight to the fact that Mr. Veitch
"
instructed an embargo against Mr. Macdonald, the largest, or one
"
of the largest millowners in the Island—there is no suggestion
that
" this was a conspiracy to injure—as showing that
he genuinely
" believed that price-cutting would be gravely
prejudicial to the
" interests of his men. Also it had been
represented to Mr. Veitch
" by Mr. Skinner, particularly in
his letter of 6th January, that the
" continued importation
of yarn was responsible for the reluctance
" of many yarn
purchasers to bind themselves to a price agreement
" and that
the price of yarn as affected by the importation would
" '
seriously affect' their ability to maintain existing wage rates.
"
There is no suggestion that the dockers were coerced or intimi-
"
dated into taking action. They were consulted and were unani-
"
mous in their decision—presumably because they were satisfied
"
where their true interests lay.
" Taking all these facts
together, I find it impossible to draw the
" conclusion that
Mr. Veitch was acting with an intent to injure.
" On the
contrary, I am satisfied, and I hold in fact, that he was
"
acting in the honest belief that the step was justified in
furtherance
" of the interests of his own members and the
industry as a whole."
Lord Fleming's words are: "
Then there is the circumstance
" that both the parties had
the same interest in the matter. To
" exclude mainland yarn
would give the Island millers a monopoly
" of the supply of
yarn, and Mr. Veitch's view was that the prohibi-
" tion of
mainland yarn would be to the benefit of the workers in
" the
industry."
And again: " I feel
satisfied that Mr. Veitch held sincerely and
" strongly the
view that the continuance of unrestricted importation
" of
Mainland yarn would, sooner or later, prove harmful to the
"
members of the Union, and that in the absence of an agreement
"
between the millowners and the importers, the best policy for the
"
Union to adopt was to exclude it from the Island if it could. Mr.
"
Macrae, who knew the whole history of the industry, and was
"
interested in it because it involved the welfare of many members
"
of his congregation, also held this view, and I do not think it can
"
be said to be an unreasonable view. At all events it cannot be
"
said that it was so unreasonable as to justify an inference that
"
there was some other ulterior reason for Mr. Veitch's decision.
"
What lay at the root of the opposition to the importation of Main-
"
land yarn on the part of Mr. Veitch and Mr. Macrae seems to have
"
been the idea that the whole process of making wool into Harris
"
Tweed should be retained as far as possible as an Island monopoly
"
for the benefit of the workers on the Island. The exclusion of
"
Mainland yarn would not only give the Island a monopoly of the
"
whole process of manufacture, but would also tend to make the
"
practice of price-cutting more difficult. All tweed manufactured
"
on the Island would qualify for the ' Stamp,' and would not have
"
to face competition from Harris Tweed woven in the Island, but
"
from yarn not spun on the Island. If, as I think, Mr. Veitch
"
sincerely held views of that kind, I find it difficult to attribute
"
his actings to anything else than a bona fide desire to
advance
" the interests of the members of his Union."
[33] 4
Lord Wark's reasoning does not
differ from that of his brethren.
His conclusion is expressed as
follows: —
" Taking the respondents in
turn, I begin with Mr. Mackenzie.
" I cannot find anything in
the evidence to show, or even to
" suggest, that he was
inspired by any motive other than the desire
" to forward
what he bona fide believed to be the interests of the
"
members of his Union. The same is true of Mr. Veitch. There
"
is no evidence that I can find of any ill-will against any of the
"
petitioners. It does not appear that he had ever met any of
"
them. His sole concern with them, in my view, was to prevent
"
them acting in such a way as would, in his honest opinion and
"
belief, injure the interests of the members of the Union: and, in
"
my judgment, his only motive in acting as he did was to advance
"
these interests, or at least to prevent injury to them. I cannot
"
doubt, upon the evidence, that Mr. Veitch honestly believed that
"
a continuance of the importation of Mainland yarn would bring
"
down tweed prices and, with them, the wages of the spinners and
"
weavers."
As I am discussing the case on
the footing that there was a
combination to which Mr. Skinner at
least and possibly also some
of the millowners were parties, I
omit to stress the still stronger view
expressed by Lord Fleming
as to Mr. Mackenzie's activities: " The
" latter,"
he says, " was throughout a mere servant, his function
"
being in the main limited to carrying out Mr. Veitch's instructions
"
and doing routine work. The grounds for holding him guilty of
"
any intention to injure are much weaker than in Mr. Veitch's case."
I have quoted somewhat fully
from the opinions expressed
because having regard to the arguments
addressed to your Lord-
ships I think it necessary to ascertain
exactly what purpose the
Courts below imputed to those who have
been held to have
combined.
Both I think found that the
stoppage of the importation of Main-
land yarn was effected
because Veitch and Mackenzie at any rate
thought it in the
interest of their workers to do so. Both also, I think,
believed
each of the defenders to hope that the manufacturers,
millowners
and non-millowners, would come to an agreement
amongst themselves,
and when that hope failed, put the strongest
pressure they could
upon the dissentient employers by refusing to
handle their
material, whether in the shape of yarn or the finished or
unfinished
product.
The immediate purpose of the
combination in this view was to
prevent the importation of
Mainland yarn and to bring about an
agreement amongst the
employers to use only that spun upon the
Island, the motive of the
defenders being thereby to prevent the
danger of competition which
they feared might cause a diminution
of wages and to bring about a
state of affairs in which a 100 per
cent, membership of the Union
would be attained in the ranks of
the spinners and of the
weavers—the motive of the millowners to
increase their
profits and perhaps to eliminate competition in
spinning.
No doubt the result of the
embargo was necessarily to injure
those against whom it was
exercised, but that was not found to be
its purpose. Its object as
found by the Lord Ordinary was to further
the defendants' own
legitimate business, and if that was their intern-
tion I should
not consider them participants in an actionable
conspiracy even
though the inevitable result of the action which
they took would
be to ruin the importers of Mainland yarn.
This is the
view of Holmes J. in Vegelahn v. Guntner (1896)
167
Mass, 92 when he says: " The fact that the immediate
object of the
" act by which the benefit to themselves is to
be gained is to injure
5 [34]
" their antagonists does
not necessarily make it unlawful any more
" than when a
great house lowers the price of certain goods for the
"
purpose and with the effect of driving a smaller antagonist from
"
the business." These observations are no less weighty
though
delivered in a dissentient judgment. They were approved by
Lord
Cave in Sorrell v. Smith (1925) A.C. 700 at p.
714 and by Scrutton
L. J. in Ware and De Freville Ltd, v.
Motor Trade Association (1921)
3 K.B. 40, and are in
conformity with the principles expressed in
the Mogul v.
Macgregor (1892) AC 25 which preceded it and are
supported
by the view of the majority of your Lordships" House in
Allen
v. Flood (1898) AC 1, which was decided two years
later.
In the latter case Lord Herschell speaking of the former,
said at
p. 140: " In that case the very object of the
defendants was to
" induce shippers to contract with them and
not to contract with
" the plaintiffs, and thus to benefit
themselves at the expense of the
" plaintiffs, and to injure
them by preventing them from getting a
" share of the
carrying trade. Its express object was to molest
" and
interfere with the plaintiffs in the exercise of their trade. It
"
was said that this was held lawful because the law sanctions acts
"
that are done in furtherance of trade competition. I do not think
"
the decision rests on so narrow a basis, but rather on this,
"
that the acts by which the competition was pursued were all
"
lawful acts."
The general proposition has been
summed up by Scrutton L.J.
in Ware and De Freville Ltd. v.
Motor Trade Association (1921)
3 K.B. 40 at p. 67 as
follows: " I take Allen v. Flood (supra) and
"
Bradford Corporation v. Pickles (1895) AC 587 to
decide that
" an act otherwise lawful though harmful does not
become action-
" able by being done maliciously in the sense
of with a bad motive
" or with intent to injure another. ...
I take the Mogul case
" as deciding that a combination
to do acts, the natural consequence
" of which was to injure
another in his business, was not actionable
" if those acts
were not otherwise unlawful, such as assaults or
" threats of
assaults, and were done in furtherance of the trade
"
interests of those combining. I understand Quinn v. Leathem
"
(1901) AC 495 to decide that a combination to injure another
in
" his trade and business not in furtherance of the trade
interests of
" those combining but out of spite against the
person injured is
" actionable."
This is a summing up of the
principles to be deduced from the
so-called trilogy of cases upon
conspiracy, and I think it is a correct
one. It has since received
support from the reasoning upon which
your Lordships' House
decided Sorrell v. Smith (1925) A.C. 700.
If this be their result Mogul
v. Macgregor (supra) and Allen
v. Flood
(supra) are consistent and easily comprehensible. More
difficulty
is to be found in explaining Quinn y. Leathem [1901]
A.C.
495. Why should a combination to injure be actionable,
whilst
action taken by a single person for that purpose and that
purpose
only is permissible?
In Sorrell v. Smith
(supra) Lord Cave L.C. thought the point
an open one and Lord
Sumner considered it at least not free from
doubt, but the view
that a combination to do acts injurious to
others is actionable,
whereas the act of a single individual is not,
is, I think,
supported by the greater weight of authority. Lords
Field and
Hannen in the Mogul case are of this opinion and in
Allen
v. Flood (supra) Lords Watson at p. 108, Herschell at p.
129,
Macnaghten at p. 153, Lord Shand at p. 168, Lord Davey at p.
172
—who with Lord James constituted the majority of the
House—
all indicated that a conspiracy to injure might give
a good cause
of action, where similar action on the part of an
individual
would not.
[35] 6
Scrutton LJ. in the Ware case
finds difficulty in accounting
for the difference. One not
uncommon explanation is that a com-
bination may exert undue
pressure where one person will not, but
it is not very
satisfactory. In the first place it is not necessarily
true and,
in the second, to exert pressure is not unlawful.
But there is an earlier
question. Whether there be combina-
tion or not, it may be a
criminal offence and an actionable wrong
to induce another to do
what is unlawful or to do what is lawful
by unlawful means. The
phraseology is first to be found in R.
v. Jones (1832)
4 B. and Ad. 345 and has again and again been
repeated both in
criminal and civil cases though in the former
it may be a
limitation and not a definition. In criminal cases
Fitzgerald J.
puts the principle in R. v. Parnell, 14 Cox C.C. 508,
in
the following words: " Conspiracy is divisible into three
heads:
" (1) When the end to be
obtained is in itsejf a crime;
" (2) When the object is
lawful but the means to be resorted
"to are unlawful;
" (3) Where the object is
to do an injury to a third party or
" to a class, though if
the wrong were inflicted by a single
" individual it would be
a wrong but not a crime."
And in Mogul v. Macgregor
(supra) Lord Watson says: " I
" apprehend that in
order to substantiate their claim the Appel-
" lants must
show either that the object of the agreement was un-
" lawful
or that illegal methods were resorted to in its prosecution."
In Fitzgerald J.'s definition
even the third heading postulates the
existence of a civil wrong,
and in recent times I do not think that
it has been held criminal
merely to combine to injure a third party
provided no unlawful
means are used or contemplated and it is
doubtful whether such a
combination ever was criminal (see
Wright on Criminal Conspiracy
(1873) p. 41). It is true that in
certain classes of case, e.g.
where masters and workmen or trade
are concerned, it was at one
time held criminal to agree not to
sell under fixed prices or not
to work under certain prices (see R.
v. Eccles, 1
Leach 274), but the doctrine is not one to which, apart
from
statutory prohibition, any court to-day is likely to subscribe.
There may, however, be
combinations which are criminal,
though entered into for purposes
which would not be criminal
if done by an individual, but whether
this be so or not it is now
established that a conspiracy, the
object of which is to injure a
third person, is an actionable
wrong. Quinn v. Leathem (1901)
A.C. 495 and Sorrell v.
Smith (supra] in your Lordships' House
are sufficient
authority for this proposition. Why it has been
so held is not, I
think, clear. That such a combination may be
actionable had, as I
have indicated, already been recognized by
at least five of the
members of your Lordships' House who were
amongst the majority in
Allen y. Flood (supra) and has again
been recognized in
Sorrell v. Smith (supra). The point is now too
well
established to be the subject of controversy.
In Lord Dunedin's view as
expressed in the last men-
tioned case a conspiracy to injure is a
criminal offence and
therefore either the object aimed at or the
means used (the
noble Lord uses both expressions) were illegal. It
may be
so or it may be, as Lord Sumner suggests, that a
combi-
nation to injure is a form of intimidation or again it
may
be that the doctrine is a survival of the view formerly held
as to
the illegality of combinations to raise wages or interfere
with trade
or of the more paternal view expressed on a different
matter by
Lord Mansfield in Jones v. Randall Lofft 383: "
Whatever is con-
" trary, bonos mores est decorum, the
principles of our law prohibit
" and the King's Court, as the
general censor and guardian of
" the public manners, is bound
to restrain and punish." In any
case it is undoubted law.
7 [36]
Whether it is necessary that the
object of the defenders should
be solely to gain an advantage for
themselves of whether their
motives may be mixed provided the main
or substantial motive
is their own gain is not so clear.
Lord Dunedin in Sorrell v.
Smith (supra) apparently thought
it enough that the dominating
motive should be to benefit oneself.
On the other hand in Mogul
v. Macgregor (supra) Lord Han-
nen at p. 59 raises the
question as to what would happen
if the evidence had shown that
the object of the Defendants was
a malicious one, namely to injure
the Plaintiffs, whether the Defen-
dants should be benefited or
not, but since in that case as in this
their sole motive was to
secure certain advantages for themselves,
leaves the question
unanswered.
Lord Watson, in the latter case,
says at p. 42: " If the Respond-
" ents' combination had
been formed not with a single view to the
" extension of
their business and the increase of its profits but with
" the
main or ulterior design of effecting an unlawful object a very
"
different question would have arisen."
Lord Parker in Alt. Gen. of
the Commonwealth of Australia
v the Adelaide S.S. Coy., Ltd.
[1913] AC 781 at p. 797 speaks
of " the right of
combining with others in a common course of
" action provided
such common course of action is undertaken
" with a single
view to the interests of the combining parties and
" not with
a view to injure others "; and in Sorrell v. Smith
(supra)
at p. 742 Lord Sumner expresses himself as not
prepared to admit
that the addition of personal animosity to a
desire to benefit one-
self makes actionable that which without
the animosity would not
be so, but confesses himself unable to say
at what point the in-
tention to injure overweights the scale so
as to render the con-
federates liable for the damage which they
do in spite of the
private advantage which they hope to obtain.
The answer may be that given by
Lord Dunedin in Sorrell
y. Smith, viz., that one
must judge broadly as a jury would
judge, and so determine the
predominant purpose. After all,
the task is no more difficult than
that which faces them in
every criminal case—to determine
whether there is mens rea or
not. Nevertheless if I thought
that in the present case the object
of the parties to the
combination was to ruin the Appellants, even
though they hoped
thereby each to gain an advantage for him-
self, I should desire
to consider the matter further before deciding
that the
Respondents were not liable, but I do not think
that such a case
has been proved. The Lord Ordinary and Inner
House have not so
found. The direct object was to force an agree-
ment and to stop
the importation of Mainland yarn, both of which
were, as found by
the Courts below, honestly believed to be of
direct benefit to the
defender's Trade Union. No question of in-
direct purpose comes in
issue. The result of the action taken
might be to ruin the
importers of Mainland yarn, and it might
be recognized that this
was a possible or even probable outcome,
but that was not the
purpose of those who combined. Each
desired only to further his
own interests.
If this view of the facts
prevails, and it is recognized, as I think
it must be since the
decision in the Mogul case, that men are en-
titled to pursue
their own advantage even though the natural and
inevitable result
be the ruin of others, the pursuers' case is at an
end, but in
deference to the forcible arguments addressed to us
on behalf of
the Appellants and in view of the difficulties of the
subject, I
must add some further observations and qualifications
to the views
I have expressed.
One of the difficulties in the
law of actionable combination is
to decide what purposes are to be
looked at in determining whether
the combination is illegal or
not.
[37] 8
This problem is perhaps touched
upon by Lord Cave in
Sorrell v. Smith [1925] A.C.
700 at p. 714 when he speaks of the
purpose of a threat being to
forward trade interests and not wil-
fully and ultroneously to
injure the trade of another, by which
I think he means not
wilfully to injure the trade of another save
for the purpose of
forwarding one's own.
In other words, is it enough
that the substantial object of the
defenders was not to injure the
pursuer, or must they go further
and must it be established in
some way, either by positive evidence
on behalf of the defenders
or lack of evidence on behalf of the
pursuer, that they were
following some interest of their own ? In
Sorrell v. Smith
(supra) Lord Sumner left the question open,
though he suggests
that the defenders must not be intermeddling
busybodies. Lord
Dunedin took the view that it was enough if
they did not set out
to injure the pursuer and regarded evidence
that their own
advantage was involved merely as tending to prove
that their
object was not to injure. Lord Cave did not in terms
deal with the
question, but the framework of his first proposi-
tion, which I
quote below, suggests that the defenders must have
their own end
to gain.
It is, I think, true to say that
in all the cases which have dealt
with this subject the contrast
is drawn beween a desire to injure
on the one hand and the pursuit
of the defenders' interests on the
other. Nowhere except in Lord
Dunedin's speech in Sorrell v. Smith
is the mere fact that
the Defendant's object was not found to be
a desire to injure held
to exonerate them from liability. It is, I
think, always added
that their purpose was to gain an advantage
for themselves.
Lord Sumner indeed asks at p.
739 what other motive can
there be in such a matter beyond
selfishness and malice except,
indeed, mere irresponsible
wantonness. So far, however, no case
has decided, and it has not
been necessary to decide, whether con-
federates who have combined
not for the purpose of doing an
injury but with no object of their
own to gain are or are not liable
to those against whom they have
combined.
The present case, like those
which preceded it, does not require
a solution of this problem.
Throughout the defenders acted in what
they believed to be the
interest of their Trade Union. But assuming
that the defenders
would only be justified in pressing their own
selfish aims, is
every personal advantage which accrues to them by
reason of their
action a sufficient excuse or is something more
intimately and
directly connected with their business interests
required—something
which will help their trade or improve the
position of their Trade Union ?
Must it be something, as Scrutton
L.J. says in Ware and De
Freville v. Motor Trade Association
[1921] 3 K.B. 40 at
p. 71, " intended to secure the interests of the
"
confederates in their trade by reasonable and legitimate means "
—by
which I understand him to mean by lawful means ?
That business in this connection
is not confined to trade has
been insisted upon in Allen v.
Flood (supra), and in Bradford v.
Pickles [1895] AC 587 the principle was said not to be confined
to rights of
property but to be equally applicable to the exercise
by an
individual of his other rights.
The quotation most frequently
made in this connection is the
well-known passage in the speech of
the Lord Chancellor in
Sorrell v. Smith (supra) at
p. 712.
" I deduce as material for
the decision of the present case two
" propositions of law
which may be stated as follows:
" (1) A combination of two
or more persons wilfully to injure
" a man in his trade is
unlawful, and, if it results in damage
" to him, is
actionable.
9 [38]
" (2) If the real purpose
of the combination is not to injure
" another, but to forward
or defend the trade of those
" who enter into it, then no
wrong is committed and no
" action will lie, although damage
to another ensues. The
" distinction between the two classes
of case is sometimes
" expressed by saying that in cases of
the former class
" there is not, while in cases of the latter
class there is,
" just cause or excuse for the action
taken."
This statement of principle is, I think, apt to be
used a,s if it
resolved the many difficulties in a difficult
department of the law.
Too often it is forgotten that the Lord
Chancellor himself intro-
duced it by saying that he deduces as
material for the decision of
the present case two
propositions of law—the italics are mine.
In that case the combination was
not to injure but to forward
or defend the trade of those who had
entered into the combination,
as in this it was to increase the
membership of the Trade Union
and protect the wages of its
members, and Lord Cave's statement
does not seek to comprehend all
circumstances.
Cases in which the action of the
confederates is to compel the
Plaintiff to pay a debt as in Giblan
v. National Amalgamated
Labourers' Union (1903) 2 KB 600
have been held not to be
within the principles, perhaps on the
grounds stated by Buckley
L.J. at p. 619 that the intent was to
prevent the plaintiff from
obtaining or retaining employment in
order to compel him to pay
a debt due from him " and from
this the intent to injure the Plain-
" tiff appears to
follow."
But what of the case where the
Defendants desire neither their
own business advantage nor the
injury of the Plaintiff, e.g., where
they combine to compel him to
subscribe to an extraneous chari-
table fund?
No answer to this question has
yet been given, and perhaps
it is enough for the purposes of the
present case to say that the
benefit is sufficiently direct if it
be to increase the effective strength
of a Trade Union, and to
quote Hodges v. Webb (1920) 2 Ch. at
p. 89 and White
v. Riley (1921) 1 Ch. 1 as illustrating this
conclusion.
The broad proposition was put by
Lord Phillimore, then
Phillimore J. in his dissenting judgment in
Boots v. Grundy (1900)
82 L.T. 769, in a way which will
comprehend most cases. " If," he
says, " a number
of persons, because of political or religious hatred,
" or
from a spirit of revenge for previous real or fancied injury,
"
combine to oppress a man and deprive him of his means of
"
livelihood for the mere purpose of so-called punishment, I think
"
the sufferer has his remedy. If the combination be to further
"
their own prosperity, if it be constructive, or destructive only
"
as a means to being constructive, the case is otherwise."
It was argued, however, that
where you get a combination
of persons such as masters and workers
who are apt to be opposed
in trade disputes, and when you find
them joined in an endeavour
on the one hand to eliminate
competition and on the other to gain
100 per cent, trade union
membership, the only common object
must be 1o injure, since the
masters could only rid themselves
of competitors by injuring their
opponents, and the workmen
could only obtain a 100 per cent, trade
union membership from
masters with whom they were agreed and
therefore could not
attain their object until all others were
driven out of the trade
The only common object therefore
was to injure, though each
party to the combination might have a
separate ultimate aim of
his own which would promote his own
interests.
An argument
against the right of a combination of employers
acting in
conjunction with a Trade Union to refuse to employ
anyone not
possessed of that Trade Union's ticket was urged
[39] 10
before Sargant J. as he then
was, in Reynolds v. Shipping Fede-
ration, Ltd. [1924]
1 Ch. D. 28, a case in which a combination
of masters and Trade
Union officials agreed that only members
of a particular Trade
Union should be employed on the ships of
the Federation. The
learned Judge rejected the argument.
" Indeed," he says
at p. 39, a decision in favour of the
" Plaintiff would lead
to a strange anomaly. For many years past
" no one has
questioned the right of a trade union to insist, if they
"
are strong enough to do so, under penalty of a strike, that an
"
employer or a group of employers shall employ none but members
"
of the Trade Union, and the result of any such effective combina-
"
tion of workmen has, of course, been to impose on the other work-
"
men in the trade the necessity of joining the Union as a condition
"
of obtaining employment.
" Here the employers,
instead of being forced against their wills
" into employing
Union men only, have recognized that advantages
" may arise
from adopting such a course voluntarily and have
"
accordingly made an agreement with the Trade Union to that
"
effect. The incidental result to the other workmen in the trade
"
is the same as if the employers had yielded against their wills
"
instead of agreeing voluntarily. But I fail to see that workmen
"
who are unwilling to join the Union have any greater reason
"
to complain of a violation of their legal rights in the second
"
case than in the first."
In that case the action was
against the masters' federation, the
trade union, its president
and one of its representatives.
It is true that the complaint
came from the members of another
trade union and not from another
set of employers, but if the
argument is sound, as I think it is,
it cannot be confined to one
class of confederates and be held
inapplicable to another.
In the present case also masters
and workmen combined. The
common object was not to injure but to
promote agreement be-
tween the two sets of employers, even though
incidentally the
immediate effect of the common purpose might be
to bring a
measure of injury upon the masters who were not
millowners,
but the ultimate aim was to protect and improve the
interests
of those who combined. The injury was but a step to an
end.
The combination was therefore not to injure but was to defend
the
interests of the parties to it and it becomes unnecessary to
consider
a case of mixed motive where the object was in part to
injure and
in part to benefit those who have combined, and equally
unneces-
sary to lay down the principles applicable to a case
where the object
is neither to injure nor to promote the interests
of the parties but
some extraneous good or evil object with which
they are not directly
concerned. But apart from these
considerations I am not myself
prepared to accept the view that
the joint object of the parties
combining is necessarily alone to
be looked at. Each party may
well have its own private end to
gain. The joint aim may at any
rate be no more than a desire for
prosperity or peace in the industry,
and yet the combination may
be justified. If, however, one of
the parties had no purpose but
to vent his own vindictive spite and
if the other knew of and
countenanced that purpose by giving his
assistance to the
malicious acts of the first, it may be that the other
would then
be a participant in the wrong planned by the first to
which he
gave his assistance.
I have so far dealt with Lord
Cave's proposition as first stated,
but he put it in an
alternative form, viz.: —was there just cause
or excuse for
the action taken? So framed it furnished, as he
intended it to
furnish, a test for the solution of the case which he
was
considering, but it was not, nor did it purport to be, a
general
formula for universal use.
11 [40]
As Lord Dunedin pointed out in
the same case, there is an
earlier question: " Is there any
wrong to be justified ? " If the
defendants have done no
injury they do not require justification.
The alternative
proposition suggests that action which is neces-
sarily injurious
to the interests of others is in itself actionable unless
it is
defensible on some ground.
It is true that the alternative
method of approach is sometimes
helpful in ascertaining whether
the purpose of the combination is
to injure others or to promote
the interests of those in combination,
but I should not myself
regard it as the same question or decisive
of the rights of the
parties.
The true position is, I think,
that some proceedings are not
actionable because neither the end
nor the means are wrongful but
there are others in which either
the end or the means are wrongful
and yet those acting in
combination are excused because they have
just cause for what they
have done. To induce the breach of a
contract which may lead to
immorality (see Brimelow v. Casson
(1924) 1 Ch. 302) or of
a contract which is an infringement of the
right of the breaker
(see Smithies v. National Association of Opera-
tive
Plasterers (1909) 1 KB 310 (C.A.)) has been held to
be
justified. These however are only examples, and afford little
assist-
ance in determining the circumstances which will
constitute
sufficient justification. I doubt whether it is
possible to define
what those circumstances are. Perhaps one
cannot safely go
further than the statement to be found in
Glamorgan Coal Coy. v.
South Wales Miners' Federation
(1903) 2 KB 545, Smithies
v. National Amalgamation
of Operative Plasterers (supra) and
Conway v. Wade
(1909) AC 506 per Lord Loreburn at p. 511),
that they are
not matters for definition but for a consideration of
the
individual circumstances of each case.
Whatever the limits within which
just cause or excuse are con-
fined, this class of case is, I
think, an exception to the general rule
that a combination to do
what is unlawful or to do what is lawful by
unlawful means is
actionable, and is not an alternative expression
of the principle
itself. It may indeed be more meritorious to induce
the breach of
a contract contra bonos mores than merely to pursue
one's
own selfish ends, but the one requires justification in law and
the
other does not.
I have ventured to add these
observations not because the
questions raised in them demand
solution in the present case, but
in order to show the limits of
the present decision, and lest it should
be thought that the
decision is authority for wider and more com-
prehensive
principles than the actual circumstances require.
For my own part I am content,
following the opinions of the
Lord Ordinary and the Inner House,
to say that whatever the effect
of their action might be the
confederates, millowners and defenders,
had a common object of
benefitting themselves and not of injuring
the plaintiffs and so
must succeed in their defence.
(16904) Wt. 8142—33 20
12/41 D.L. G. 338
