United Kingdom House of Lords Decisions

Die Martis, 21° Januarii 1964

Parliamentary Archives,
HL/PO/JU/4/3/1122

Dates of hearing: 1st, 2nd, 3rd, 4th, 8th, 9th, 10th, 11th, 15th, 16th July,
4th, 5th, 6th, 7th and 11th November, 1963

HOUSE OF LORDS

Tuesday, 21st January, 1964

ROOKES (A.P.) - - - - - - - - - - - Appellant.

v.
BARNARD and ors. - - - - - - - - - Respondents.

Lords Present :
lord reid
lord evershed
lord hodson
lord devlin
lord pearce

Counsel for the Appellant:
the hon. S. C. silkin, Q.C. and mr. A. de piro

Solicitors:

Messrs. Lewis Silkin & Partners, 225/229, Rye Lane. Peckham,

London, S.E.15.

Counsel for the Respondents :
mr. gerald gardiner, Q.C. and mr. P. colin duncan. Q.C.

Solicitor :
Mr. W. H. Thompson, 1, Serjeants' Inn, Fleet Street, London. E.C.4.

CONSIDERATION OF REPORT FROM THE APPELLATE

COMMITTEE

Lord Reid

MY LORDS,

I beg to move that the Report of the Appellate Committee be now
considered.

Question Put:
That the Report of the Appellate Committee be now considered.

The Contents have it.

HOUSE OF LORDS

ROOKES

v.

Lord Reid
Lord Evershed
Lord Hodson
Lord Devlin
Lord Pearce

BARNARD and Others

Lord Reid

MY LORDS,

The Appellant was employed for many years by B.O.A.C. as a skilled
draftsman in their drawing office at London Airport. He was a member of,
a Trade Union, the Association of Engineering and Shipbuilding Draughtsmen
(A.E.S.D.) to which all who were employed in that drawing office belonged.
He and another man, Unwin, became dissatisfied with the conduct of the
Union and resigned from it. The Union were very anxious to preserve
the position that no non-member should be employed in that office and they
took energetic steps to get these two men to rejoin. Unwin agreed to
rejoin, but the Appellant refused. As a result of steps taken by the Union
and its members, B.O.A.C. were induced first to suspend the Appellant
and then to terminate his employment after giving him due notice. The
Appellant has no remedy against B.O.A.C. They neither broke their
contract with him nor committed any tort against him. In this action the
Appellant seeks a remedy against two members and an official of the Union
on the ground that they wrongfully induced B.O.A.C. to act as they did.
The action was tried by Sachs J. with a jury, and the Appellant was awarded
£7,500 damages. The Court of Appeal held that the Respondents had not
committed any tort, and the first question in this appeal is whether the
Respondents' actions were tortious. If that question is answered in the
affirmative, a second question arises whether the Respondents are absolved
from liability by the provisions of the Trade Disputes Act, 1906: it is
admitted that the Respondents' acts were done in furtherance of a trade
dispute.

Certain agreed questions were put to the jury and their answers are not
challenged. The questions are not entirely free from ambiguity and, in
order to understand them, we can look at the summing-up of the learned
judge. But we cannot go beyond the questions so explained and the jury's
answers. The questions are as follows: —

Questions Answers

1. Was there a conspiracy to threaten strike action
by the members of A.E.S.D. against B.O.A.C. to
secure the withdrawal of the Plaintiff from the

Design Office ... ... ... ... ... ... ... ... … There was

If so:

1. Was Barnard a party? ... ... ... ... ... ... He was

2. Was Silverthorne a party? ... ... ... ... ... He was

3. Was Fistal a party? ... ... ... ... ... ... ... He was

2. Was a threat to take strike action against

B.O.A.C. to secure the withdrawal of the Plaintiff
from the Design Office made by

1. Barnard ... ... ... ... ... ... ... ... … It was

2. Silverthorne? ... ... ... ... ... ... ... ... It was

3. Fistal? ... ... ... ... ... ... ... ... … It was

3. Did threats of strike action by members of
A.E.S.D. cause

(a) the suspension of the Plaintiff was his work

at B.O.A.C.? ... ... ... ... ... ... ... ... ... They did

2. The dismissal of the Plaintiff from B.O.A.C. They did




2

Questions Answers

4. (a) What damages should be awarded to the
Plaintiff if the threats of strike action caused
the Plaintiff's dismissal £7,500

(b) What damages should be awarded to the
Plaintiff if the threats of strike action caused
the Plaintiff's suspension (but not his

dismissal)? ... ... ... ... ... (Not answered)

Barnard was the chairman of the local branch of the Union and Fistal
was a shop steward. Silverthorne was an official of the Union but not a
member of it. There was negotiations which I need not deal with. The
matter was brought to a head by a meeting of the members on 10th January,
1956, which resolved unanimously: " We, the members of the A.E.S.D.,
" inform B.O.A.C. that if the Non-Unionist Mr. D. E. Rookes is not removed
" from the Design Office by 4 p.m., Friday, 13th January, 1956, a withdrawal
" of labour of all A.E.S.D. Membership will take place ". If the Members
had ceased work or come out on strike at that time they would have done
so in breach of their contracts with B.O.A.C. An agreement had been made
in 1949 between the Employers' and Employees' sides of the Draughtsmen's,
Planners' and Tracers' Panel of the National Joint Council for Civil Air
Transport which contained an undertaking that no lockout or strike would
take place, and provided that any dispute should be dealt with as provided
for in the constitution of the Joint Council. It is admitted that the provisions
of that agreement had been made a term of all the contracts of employment
of the men who took part in the meeting of 10th January, and that if they
had withdrawn their labour on 13th January they would have been in breach
of their contracts with B.O.A.C.

When this resolution was presented to B.O.A.C. they suspended the
Appellant land removed him from the Design Office, as the resolution
required. There was considerable argument about the parts played by the
three Respondents but we must take it from the jury's answers that the
presentation of this resolution to B.O.A.C. was in pursuance of a conspiracy
to which the three Respondents were parties, that it was a threat of strike
action, and that this threat caused B.O.A.C. first to suspend and then to
dismiss the Appellant. This was not a case of the Respondents merely
informing B.O.A.C. that the men would strike if their terms were not
accepted ; no questions were put to the jury suggesting any defence based
on that ground.

This case, therefore, raises the question whether it is a tort to conspire to
threaten an employer that his men will break their contracts with him unless
he dismisses the plaintiff, with the result that he is thereby induced to
dismiss the plaintiff and cause him loss. The magnitude of the sum awarded
by the jury shews that the Appellant had every prospect of retaining his
employment with B.O.A.C. if the Respondents and other conspirators
had not interfered: leaving the Trade Disputes Act out of account, if
B.O.A.C. had been induced to dismiss the Appellant in breach of their
contract with him then there is no doubt that the Respondents would have
committed a tort and would have been liable in damages (Lumley v. Gye
2 E. & B., 216). Equally, there is no doubt that men are entitled to threaten
to strike if that involves no breach of their contracts with their employer,
and they are not trying to induce their employer to break any contract with
the plaintiff. The question in this case is whether it was unlawful for them
to use a threat to break their contracts with their employer as a weapon to
make him do something which he was legally entitled to do but which they
knew would cause loss to the plaintiff.

The first contention of the Respondents is very far reaching. They say
there is no such tort as intimidation. They would mean that, short of com-
mitting a crime, an individual could with impunity virtually compel a third
person to do something damaging to the plaintiff which he does not want to
do but can lawfully do the wrongdoer could use every kind of threat to
commit violence, libel or any other tort, and the plaintiff would have no



3

remedy. And a combination of individuals could do the same, at least if
they acted solely to promote their own interests. It is true that there is no
decision of this House which negatives that argument. But there are many
speeches in this House and judgments of eminent judges where it is assumed
that that is not the law and I have found none where there is any real
support for this argument. Most of the relevant authorities have been
collected by Pearson, L.J. and I see no need to add to them. It has often
been stated that if people combine to do acts which they know will cause
loss to the plaintiff, he can sue if either the object of their conspiracy is
unlawful or they use unlawful means to achieve it. In my judgment, to
cause such loss by threat to commit a tort against a third person if he does
not comply with their demands is to use unlawful means to achieve their
object.

That brings me to the second argument for the Respondents which raises
a more difficult question. They say that there is a distinction between threats
to commit a tort and threats to break a contract. They point out that a
person is quite entitled to threaten to do something which he has a legal
rieht to do and they say that breach of contract is a private matter between
the contracting parties. If the plaintiff cannot sue for loss to him which
results from an actual breach of a contract to which he is not a party, why,
they ask, should he be entitled to sue for loss which results from a threat
to break a contract to which he is not a party?

A somewhat similar argument failed in Lumley v. Gye. The defendant
had induced a singer to break her contract with the plaintiff and he knew
that this would cause loss to the plaintiff. The plaintiff had his action
against the singer for breach of contract and he was held also to have a
cause of action against the defendant for the tort of unjustifiably interfering
so as to cause him loss. The fact that the direct cause of the loss was a
breach of the contract to which the defendant was not a party did not matter.
So. too, the plaintiff's action in the present case does not sound in contract:
in fact there was no breach of contract because B.O.A.C. gave in.

The Appellant in this case could not take a benefit from contracts
to which he was not a party or from any breach of them. But his ground
of action is quite different. The Respondents here used a weapon in a
way which they knew could cause him loss, and the question is whether
they were entitled to use that weapon—a threat that they would cause
loss to B.O.A.C. if B.O.A.C. did not do as they wished. That threat was to
cause loss to B.O.A.C. by doing something which they had no right to do,
breaking their contracts with B.O.A.C. I can see no difference in principle
between a threat to break a contract and a threat to commit a tort. If a third
party could not sue for damage caused to him by the former I can see no
reason why he should be entitled to sue for damage caused to him by the
latter. A person is no more entitled to sue in respect of loss which he suffers
by reason of a tort committed against someone else, than he is entitled to sue
in respect of loss which he suffers by reason of breach of a contract to
which he is not a party. What he sues for in each case is loss caused to
him by the use of an unlawful weapon against him—intimidation of another
person by unlawful means. So long as the defendant only threatens to
do what he has a legal right to do he is on safe ground. At least if there
is no conspiracy he would not be liable to anyone for doing the act, what-
ever his motive might be, and it would be absurd to make him liable for
threatening to do it but not for doing it. But I agree with Lord Herschell
(Allen v. Flood [1898] AC 1 at p. 121) that there is a chasm between doing
what you have a legal right to do and doing what you have no legal right
to do, and there seems to me to be the same chasm between threatening
to do what you have a legal right to do and threatening to do what you have
no legal right to do. It must follow from Allen v. Flood that to intimidate
by threatening to do what you have a legal right to do is to intimidate by
lawful means. But I see no good reason for extending that doctrine.
Threatening a breach of contract may be a much more coercive weapon
than threatening a tort, particularly when the threat is directed against a
company or corporation, and, if there is no technical reason requiring a



4

distinction between different kinds of threats, I can see no other ground
for making any such distinction.

I have not set out any of the passages cited in argument because the
precise point which we have to decide did not arise in any of the cases
in which they occur, and it does not appear that any of the authors of these
passages had this point in mind. Sometimes the language seems to point
one way and sometimes another and it would, I think, be wrong in such
circumstances to use a judge's language as authority for a proposition which
he did not have in mind. The Court of Appeal in this case were unwilling
to go beyond existing authorities. Sellers L.J. said " Unless authority
" requires it, I would resist enlarging the tort of intimidation in the manner
" sought before and accepted by the judge ", and Pearson L.J. said " Should
" this obscure, unfamiliar and peculiar cause of action, which has its roots
" in cases of physical violence and threats of violence, be extended to
" cover a case in which there is only a threat to break a contract? ". I
am afraid I take a different view. Intimidation of any kind appears to
me to be highly objectionable. The law was not slow to prevent it when
violence and threats of violence were the most effective means. Now that
subtler means are at least equally effective I see no season why the law
should have to turn a blind eye to them. We have to tolerate intimidation
by means which have been held to be lawful but there I would stop.
Accordingly, I would hold that on the facts found by the jury the Respon-
dents' actions in this case were tortious.

It is now necessary to consider whether the Respondents are absolved from
liability by any of the provisions of the Trade Disputes Act, 1906. The
sections on which the Respondents rely are sections 1 and 3, which are as
follows: —

" 1. The following paragraph shall be added as a new paragraph
" after the first paragraph of section three of the Conspiracy and Pro-
" tection of Property Act, 1875:—

" ' An act done in pursuance of an agreement or combination by
" ' two or more persons shall, if done in contemplation or furtherance
" ' of a trade dispute, not be actionable unless the act, if done without
" ' any such agreement or combination, would be actionable.'"




... ... ... ... ... ...

" 3. An act done by a person in contemplation or furtherance of a
" trade dispute shall not be actionable on the ground only that it induces
" some other person to break a contract of employment or that it is
" an interference with the trade, business or employment of some other
" person, or with the right of some other person to dispose of his capital
" or his labour as he wills."

Before dealing with these sections I must say a word about what the
law was, or was thought to be, in 1906. The older law bore very heavily
on workmen who combined to seek concessions from employers, and Acts
passed to amend it had been strictly construed. Matters were brought
to a head by two decisions of this House, the Taff Vale case, [1901] AC 426,
and Quinn v. Leathem, [1901] AC 495. These were followed by a Royal
Commission over which Lord Dunedin presided. The main objects of the
1906 Act are clear enough, to protect Trade Union funds and to exclude
conspiracy from being an element in future cases. The former does not
arise in the present case.

One of the difficulties facing Parliament was the uncertain state of the
law with regard to liability for interfering with a person's trade or employ-
ment. It is exceedingly difficult to determine just what was decided in
Quinn v. Leathem, and I neither need nor intend to embark on that vexed
subject. But there were at least two theories about what the law really
was. One was that an individual was free to take any steps he chose so
long as he used no means to achieve his end which were not unlawful for
some reason other than that they interfered with some other person's trade



5

or employment; and that a combination had the same freedom, provided
that their conduct was not dictated by a desire or intention to injure the
Plaintiff. The other theory was that any action intended or known to be
likely to interfere with the trade or employment of another person was
unlawful unless it could be justified in some way. I might note that so
late as 1908 Sir F. Pollock wrote in his Law of Torts (8th edition pp. 325-6)—
" The present writer confesses to great difficulty in understanding why in
" Quinn v. Leathem before the House of Lords ... it was necessary to say
" so much about conspiracy: for the cause of action was in effect ruining
" the Plaintiff's business by coercing his customers not to deal with him
" which is well within a line of old authorities .... It is submitted that the
" discussions would be materially simplified if it were understood that all
" damage wilfully done to one's neighbour is actionable unless it can be
" justified or excused." So it is reasonable to suppose that the intention
was to draft the 1906 Act so that it would be equally effective whichever
theory ultimately prevailed.

The only difficulty about section 1 is to discover what is meant by " unless
" the act, if done without any such agreement or combination, would be
" actionable ". In the present case, and I have no doubt in many others,
the precise act complained of could not have been done without previous
agreement. The act complained of in this case was presenting to B.O.A.C.
a resolution of all the members of the Union to which the Respondents were
parties. There was an argument that the section requires us to suppose
that each Respondent merely told B.O.A.C. that he would himself cease
work if they did not get rid of the Appellant. But that would have been
an entirely different act and probably quite ineffective as a threat. The
section cannot reasonably be held to mean that no action can be brought
unless the precise Act complained of could have been done by an individual
without previous agreement or combination. In my view, the section
requires us to find the nearest equivalent act which could have been so done
and see whether it would be actionable. In the present case I think we
must suppose that one of the Respondents had said to B.O.A.C. " I am
" acting alone but I think I can and I intend to induce the men to break
" their contracts and strike if you do not get rid of Mr. Rookes ". If the
opinion which I have already expressed is right, that would have been
actionable if B.O.A.C. had succumbed to that threat and got rid of the
Appellant in the way they did. So section 1 does not help the Respondents.

Section 3 deals with two classes of acts done by individuals, and, by
virtue of section 1, the immunity given by section 3 to individuals must also
extend to combination or conspiracies. The classes of acts permitted (if
done in contemplation or furtherance of a trade dispute) are, (1) inducing a
breach of a contract of employment and, (2) interfering with a person's
trade, business or employment or right to dispose of his capital or labour
as he wills. The facts in this case fall within the second class: if B.A.O.C.
had not safeguarded themselves by giving notice to the Appellant but had
dismissed him summarily the case would have come within the first class.

In considering the proper construction of this section I think it makes for
clarity to take the first class first. The first class of acts are those within
the principle in Lumley v. Gye, and there can be no doubt that if no more
than mere persuasion is used to induce a breach of contract this section ousts
the principle in Lumley v. Gye. But suppose that the Defendant had to go
further than mere persuasion and told deliberate lies or used intimidation
to induce the breach of contract—is he then still protected by section 3?
Section 3 provides that the act complained of shall not be " actionable on
" the ground only " that it induces a breach of contract. That is a very
difficult phrase to construe. An Act which induces one party to a contract
to break it is never actionable at the instance of the other party to the
contract merely on that ground. In addition, the Plaintiff must at least
allege and prove that the Defendant intended to cause him loss, or at least
knew that his intervention would cause him loss, and that he has suffered
loss. In this context it appears to me that " actionable on the ground only "
can only have one or other of two meanings. It could mean shall not be



6

actionable if the Plaintiff cannot succeed in his action without alleging and
proving inducement of breach of contract. Or it could mean shall not be
actionable if the act done by the Defendant is only unlawful or actionable
because, or " on the ground " that, it induces the breach of contract. These
two meanings lead to entirely different results. Whether the weapon used
to induce the third party to break his contract with the Plaintiff be mere
persuasion or an extreme form of deceit, slander or intimidation the Plaintiff
cannot succeed without proving that it caused or induced the breach of his
contract. So if the first meaning be the right one this section gives a general
immunity or licence however illegal the means used to induce the breach of
contract. That was not and could not be denied by the Respondent's
counsel. But, on the other hand, if the second meaning is correct, then
the immunity or licence only applies so long as the Defendant has not used
any unlawful means to induce the breach. If the Defendant had used
slander or intimidation, which are in themselves tortious, the Plaintiff would
sue on that ground, although he would still have to prove the damage
resulting from his dismissal.

It was argued for the Respondents that Parliament must have intended
to extend immunity to all ordinary methods of inducing breach of contract
used in strikes or other trade disputes, and that the use of methods such as
these Respondents used were commonplace. But it was not suggested that
the use of deceit, slander or more extreme methods of intimidation were or
are in general use, and it was hardly suggested that Parliament must be
supposed to have intended to license them. And I cannot find any general
indication of intention favourable to the Respondents in other sections of
the Act. Section 2 licenses picketing merely for the purpose of peacefully
persuading, so there is no extensive licence there. Section 4 does give
general immunity to trade unions, as distinct from their members. But there
the language is very different—" an action against a trade union ... in
" respect of any tortious act. . . shall not be entertained by any court".
The protection of individual members is left to section 3. So we are
thrown back to the language of section 3 itself without any very clear guid-
ance either from the nature of the mischief which Parliament had to remedy
by the Act or from other sections of the Act.

The only important authority is in the speech of Lord Loreburn in
Conway v. Wade [1909] AC 506. I shall have to deal with this case at
some length when I come to the second half of section 3. He said: "It is
" clear that, if there be threats or violence, this section gives no protection

" . . . If the inducement be to break a contract without threat or violence,
" then this is no longer actionable ". Counsel had to argue that this was
wrong, and he was quite entitled so to argue because the whole passage
was obiter. But there was no dissent from this by any other member of the
House, and, as Lord Loreburn was Lord Chancellor when the 1906 Act
was passed, he must have been well acquainted with its provisions. His
speech has been quoted with approval in a number of later cases but I
do not set great store by that because the matter never seems to have been
fully argued.

I would hold that what I have called the second meaning of this part
of section 3 is the right one—that it does not protect a person who induces
a breach of contract by tortious means—both on the authority of Lord
Loreburn and because it appears to me to be the better construction. The
words " on the ground only " are clearly intended to limit the scope of the
section, and if the first meaning for which the Respondents contend were
right, there would be hardly any limit to its scope. It would give immunity
in almost every case of inducing a breach of contract that seems likely
to arise in connection with a strike or threatened strike. Section 4 makes
it quite clear that there is complete immunity for the trade union itself,
and I cannot believe that the very guarded language of section 3 would
have been used if it had been intended to give in addition almost com-
plete immunity to all individuals acting in contemplation or furtherance of
a trade dispute.

7

I have dealt at some length with the interpretation of the first part of
section 3 because I have come to think that it throws a great deal of light
on the second part. The second part is much more difficult to construe. I
must admit that on a consideration of the second part by itself I was
inclined to think that it was applicable to the present case. If the second
part of the section had to be construed in light of the law as we now know
it to be and without reference to the first part I would still be inclined to
construe it in the way for which the Respondents contend. But I do not
think that it is proper to approach the problem in that way. In construing
an Act of Parliament we are attempting to find the intention of Parlia-
ment. We must find that intention from the words which Parliament has
used but these words must be construed in the light of the facts known
to Parliament when the Act was passed. One assumes that Parliament
knows the law, but if the law is notoriously uncertain we must not attribute
to Parliament prescience of what the law will ultimately be held to be. In
1906 the law with regard to lawful and unlawful interference with a person's
trade, business or employment was quite uncertain. By 1925 Lord Dunedin
was able to speak of one view as " the leading heresy " (Sorrell v. Smith
[1925] A.C. 700 at p. 719). But there were still some doubts. As Lord
Maugham pointed out in Crofters Harris Tweed v. Veitch [1942] AC 435
at p. 450, Lord Dunedin had taken a somewhat different view from that
of the majority in Sorrell v. Smith. It often takes a long time to determine
what is heresy and what is orthdoxy, and there can be no better witness
about what was thought to be the law in 1906 than Lord Loreburn who
was Lord Chancellor when the Trade Disputes Act was passed. He said
in Conway v. Wade [1909] A.C. 506 at p. 510—" It is necessary to consider
" how the law stood before 1906 ... it is material to see in what circum-
" stances an individual could be sued for inducing someone not to employ
" or not to serve another ... I think on that point the law stood as follows.
" If the inducement was accompanied by violence or threats (always remem-
" bering that a warning is one thing and a threat is another) there was a
" good ground of action. I next suppose there was no violence and no
" threat, and yet the inducement involved a breach of contract. There also
" it was established, after a long controversy beginning with Lumley v. Gye
" in 1853 that an action could be maintained, unless at all events some suffi-
" dent justification could be made good. But suppose one person simply
" induced someone not to employ another or not to serve another, without
" violence or threat or breach of contract, would an action lie, and in what
" circumstances, in such a case? I believe there has not been an exhaustive
" answer to that question. The further difficulty arises, what is a sufficient
" justification? Is it supplied by self-interest, or by trade competition, or
" by what other condition or motive? No answer in general terms has ever
" been given, and perhaps no answer can be given. A parallel difficulty
" arises where the inducement is by two or more persons acting together."

If that is a correct statement of the position in 1906—and I think it is—
there were three classes of inducement which Parliament had to consider,
(i) inducement accompanied by violence or threats (ii) inducement involving
a breach of contract, and (iii) mere inducement alone. As regards (i) and (ii)
the law was thought to be clear, as regards (iii) it was not. Section 3 is
silent as to (i), so one might think that it leaves the existing liability unaltered.
It deals with (ii) and (iii). I have stated my opinion as to how it deals
with (ii); it confers immunity, provided that there is no further element of
illegality, such as intimidation. The question is how it deals with (iii).
Does it there go farther and confer immunity even where there is intimida-
tion. The general plan of the section appears to be to treat (ii) and (iii) in
precisely the same way, and it would seem a strange result if the liability
of the present defendants depended on the method which B.O.A.C. adopted
in acceding to their demands that the Appellant should be removed from
the Design Office within a few days. If they had summarily dismissed him
the case would have fallen under head (ii), and the defendants would have
been liable. But can it be said that the fact that B.O.A.C. chose only to
suspend him and then give him notice, which puts the case within head (iii),



8

makes all the difference and saves the Respondents from any liability to
him? That may be the necessary result of the way in which the section
is drafted, but it could hardly have been the intention of Parliament.

I must now return to what Lord Loreburn said in Conway v. Wade. It is
true that all this was obiter as regards section 3, because it was held that
there was no trade dispute. Until the case reached this House there were
only two issues—whether the jury's findings could be supported, and what
was meant by " in contemplation or furtherance of a trade dispute ". Wade
had " acted as mischief-maker in order to injure the plaintiff from unworthy
" motives " (per Lord Loreburn at p. 509) by procuring his dismissal. He
had threatened that he would call out the other men when he had neither
the power nor the right to do that, and the employers gave way to this
deceitful threat. It was argued for the first time in this House that, apart
from the statute, Wade was guilty of no actionable wrong. This House
had no difficulty in holding that he was, and they held, reversing the Court
of Appeal, that he had not acted " in contemplation or furtherance of a
" trade dispute." So Conway won his appeal. Lord Loreburn, after
quoting section 3, said :

" Let me see how this alters the pre-existing law. It is clear that, if
" there be threats or violence, this section gives no protection, for then
" there is some other ground of action besides the ground that' it induces
" ' some other person to break a contract,' and so forth. So far there
" is no change. If the inducement be to break a contract without
" threat or violence, then this is no longer actionable, provided always
" that it was done ' in contemplation or furtherance of a trade dispute '.
" What is the meaning of these words I will consider presently. In this
" respect there is a change. If there be no threat or violence, and no
" breach of contract, and yet there is ' an interference with the trade,
" ' business or employment of some other person, or with the right
" ' of some other person to dispose of his capital or his labour as he
" ' wills' there again there is perhaps a change. It is not to be action-
" able, provided that it was done ' in contemplation or furtherance of
" ' a trade dispute.' So there is no longer any question in such cases,
" whether there was ' sufficient justification ' or not. The condition
" contained in these words as to trade dispute is made sufficient."

Lord Loreburn had no doubt that section 3 affords no protection if there
are threats or violence. If a threat to break a contract amounts to unlawful
intimidation, that covers the present case, for he draws no distinction
between the two classes of acts covered by section 3. His opinion was
obiter and he may have been wrong, but Lord MacNaghten and Lord Gorell
concurred with him and I find no suggestion in other speeches to the con-
trary. It can be argued that the reason which he gave is wrong in part.
The argument is that, although he may have been right in saying that where
there are threats or violence, there is some other ground of action when
the act complained of is inducing a breach of contract, he was wrong
when the act complained of is mere interference with the plaintiff's trade,
business or employment.

But Parliament had to provide for the possibility that mere interference,
if no legal justification were proved, would be held to be a tort, and I think
that what Parliament did in enacting the second part of section 3 was to
put in a provision which would be necessary to achieve their object if the
law should go one way but unnecessary if it went the other way. So I
would hold that section 3 means that if mere interference is or can be a
tort then there shall be no liability, where a trade dispute is involved, " on
" the ground only " of that interference.

If that is right then the protection given by section 3 is no wider in scope
as regards acts within the second half than it is with regard to acts within the
first half. Parliament might have enacted that the protection given by
section 3 shall only apply so long as no illegal means such as intimidation
are used to achieve the breach of contract or interference with trade, business
or employment, or Parliament might have enacted that the protection shall

9

extend to all cases, no matter how illegal may have been the means
employed. But to draw a distinction and restrict protection of inducement
of breach of contract to cases where no illegal means are employed, but
extend protection of interference to all cases no matter how unlawful the
means employed is something that I cannot think Parliament could have
intended and therefore a construction of the section which I would only
accept if its words are incapable of any other.

In my judgment, it is clear that section 3 does not protect inducement
of breach of contract where that is brought about by intimidation or other
illegal means and the section must be given a similar construction with
regard to interference with trade business or employment. So, in my
opinion, the section does not apply to this case because the interference
here was brought about by unlawful intimidation. I would therefore allow
this appeal.

But that does not end the case, because the Respondents maintain that,
by reason of misdirection of the trial judge in the matter of damages, the
jury's award of £7,500 cannot stand and there should be a new trial on
amount of damages. There is no doubt that the jury were directed that it
was open to them to award punitive or exemplary damages, and indeed they
might fairly assume from the summing up as a whole that that would be
their proper course if they did not accept the Respondents' case on provoca-
tion. As they awarded a single sum we do not know how much they intended
10 award in respect of financial loss or how much they added on as punitive
damages, but it is fairly obvious that they must have added a considerable
sum. The Respondents contend that there is nothing in the facts of this
case to justify any award of punitive damages and that the trial judge
ought to have directed the jury to that effect.

It appears that at the trial counsel for the Respondents did not take the
point that exemplary damages could not be awarded in this case: he merely
argued to the jury that for various reasons they should not award any. So
the Appellant now submits that it is too late to take the point now. In
many cases it would be wrong to allow a new and belated point to be argued.
But here there is no question of the point not being open on the pleadings
and I have been unable to see that the Appellant can have been in any way
prejudiced in the presentation of his case by the point not having been
taken. It is not a case in which it can be said that the course of examination
and cross-examination of witnesses might have been different. This seems
to me to be a pure point of law which we could properly admit in our
discretion.

I have read and considered the speech of my noble and learned friend
Lord Devlin and I am in full agreement with his treatment of the subject
ot exemplary damages. I would therefore allow this appeal and order a new
trial on the question of damages. In the whole circumstances I think that
the costs of the previous trial ought to abide the result of the new trial
and be dealt with by the trial judge, and that the Appellant should now
be awarded his costs in this House and in the Court of Appeal.

Lord Evershed

MY LORDS,

As I begin to apply myself to the task of formulating my opinion in this
important and difficult case, I have much in mind the observations of
Scrutton L.J. when delivering his judgment in the Court of Appeal in the
analogous case of Ware and de Freville, Ltd. v. Motor Trade Association
[1921] 3 K.B. 40 at p. 66. That most learned Judge then referred to the
mass of authorities and dicta, many of them contradictory, contained in
ten House of Lords cases and many cases in the Court of Appeal and to the
" able and conscientious attempts" by judges of first instance "to state
" the results of decisions by which they are bound, and by which they



10

" should be enlightened "; and he went on to state that the only tribunal
which could bring order into chaos was your Lordships' House. There have
since been the two important decisions of the House in Sorrell v. Smith
[1925] A.C. 700, and Crofter Hand Woven Harris Tweed Company, Ltd. v.
Veitch [1942] AC 435 ; and so in the present case the attention of your
Lordships has been drawn to the important speeches in these two cases
as well as to all the speeches and dicta in the earlier cases to which Scrutton
L.J. referred, and I cannot maintain any confident hope that in the present
case order will have been so brought into chaos that, upon some future
occasion, it will not be found necessary to refer to the opinions now being
expressed in addition to all those that have gone before. Such, indeed, is
the importance of the questions now presented to your Lordships and such
is the difficulty which the history of the relevant law and the language of
the Trade Disputes Act, 1906, has attached to their solution.

The essential facts of the present case may be shortly stated. The Appellant
before your Lordships' House, the Plaintiff in the present proceedings, having
been for some years employed by British Overseas Airways Corporation
(hereafter called B.O.A.C. in the year 1955 quarrelled with the Trade Union
known as the Association of Engineering and Shipbuilding Draughtsmen
(hereafter called A.E.S.D.) to which he had belonged and of which indeed
he had been an officer. In the result, he resigned from the Union, and efforts
made at the end of the year to make him rejoin were without effect. In
the result, in the month of December, 1955, and January, 1956, the three
Defendants to the action—the Respondent, Mr. Barnard, Mr. Silverthorne
and the Respondent, Mr. Fistal—(of whom the second, Mr. Silverthorne,
died since the proceedings commenced and has been replaced by his personal
representative, the second Respondent)—being all officials of the A.E.S.D.
proceeded to make communications to B.O.A.C. to the effect that, unless
the services of Mr. Rookes were determined by B.O.A.C. all their other
employees in the same department, in number about 70 and all members of
the A.E.S.D., would come out on strike—and possibly other servants of
B.O.A.C. as well. I have so far deliberately used imprecise language; but
the effect was that (as has been conceded throughout by the Appellant) a
"trade dispute" within the meaning of the Trade Disputes Act, 1906, had
arisen. B.O.A.C. thereupon at first suspended the Appellant and later, by
appropriate notice, determined his contract of service. It is to be noted that
there was no breach by B.O.A.C. of the Appellant's service agreement.

If the matter rested only upon the facts as I have stated them, the answer
to the Appellant's claim would have been short and simple. As I have
said there was no breach of the Appellant's contract and it has long
been recognised that strike action or threats of strike action (however
those terms be interpreted—and I have in mind what fell from Donovan
L.J. in his judgment in the Court of Appeal) in the case of a trade dispute
do not involve any wrongful action on the part of the employees, whose
service contracts are not regarded as being or intended to be thereby
terminated. So much was stated by Lord Watson in his speech in Allen
v. Flood [1898] AC 1 at p. 99 and has, as I believe, been since consistently
followed—see e.g. per Lord Sterndale, M.R. in White v. Riley [1921]
1 Ch. 1 at p. 15. Moreover, such action on the part of the members of
the A.E.S.D. would, to say the least, not be surprising since there was a
recorded understanding between B.O.A.C. and the several unions, members
of which were in the service of B.O.A.C., that if in any section of B.O.A.C.'s
work 100 per cent, membership of the relevant union was achieved, then
B.O.A.C. would not employ in that section any non-union labour.

But the circumstances of the present case are distinguished by one very
important fact. On the 1st April, 1949, an agreement in writing was made
between the Employers' and Employees' sides of the Draughtsmen, Planners
and Tracers Panel, clause 4 of which provided that in the event of any
relevant trade dispute, there should not be a strike or a lock out but that
the dispute should be resolved in the manner therein indicated. It has
been conceded throughout these proceedings on the part of the Defendants
and Respondents that the terms of this clause should be regarded as



11

incorporated in and forming part of the contract of service with B.O.A.C.
of every member of the A.E.S.D. It follows accordingly that strike action
or threats of strike action by employees of B.O.A.C. who were members
of the A.E.S.D. would constitute breaches or threats of breaches by them
of their service contracts. So it is of the essence of the Appellant's case
that the acts of which he has complained constituted threats of wrongful
acts, that is, of breaches of contract, aimed and directed at the Appellant's
employment, so as to cause, as they did, its determination; and that such
acts were therefore actionable at the Appellant's suit.

I was for myself somewhat troubled in the course of the argument by
the question, what precisely were the " threats " on the part of the three
Defendants of which the Appellant complained. The answer to the question
is, however, as I conceive, to be found in the form of the second question
put to the jury by Sachs J. and the jury's answer thereto—the form of
such question having, as your Lordships were informed, been agreed by
the learned counsel appearing on both sides before the learned Judge. The
question was as follows: " Was a threat to take strike action against
" B.O.A.C. to secure the withdrawal of the Plaintiff from the Design Office
" made by " each of the three Defendants?—and the jury gave an affirmative
answer in each case. I am satisfied that the form of the question and
the answer given must be taken to have meant that each Defendant
threatened that strike action would in fact be taken by all the members
of the A.E.S.D. unless the Appellant's services were terminated. The
Ihreat, therefore, made by each Defendant was not merely that he himself
would go on strike (for the coercive effect of such a threat standing by
itself would be negligible—and the second Defendant Mr. Silverthorne
was not himself in fact in the service of B.O.A.C.); nor was it, on the
one hand, mere information that a strike would or might occur or, on
the other, a threat to procure such strike action. It was, as the words
of the question implied, a threat that strike action on the part of all the
A.E.S.D. men would in fact occur unless the Plaintiff were withdrawn
from the Design department. And since all three Defendants were officials
of the Union there can be no doubt that they could effectively so threaten
and were understood by B.O.A.C. so effectively to threaten. It may,
moreover, be added that on the 10th January, 1956, a resolution to that
effect had been passed by the Union men and a written copy of the
resolution was immediately afterwards handed by the third Defendant to
a representative of B.O.A.C.

Assuming, therefore, (1) that each Defendant did so threaten and effec-
tively threaten, (2) that, because of the special term deemed to be incor-
porated in each union man's service contract, the threat was of unlawful
action on the part of all these men in the sense of constituting a threat
to commit a breach of their service contracts and, (3) that the threats were
directed at the Appellant, being designed to cause an end of his employ-
ment with B.O.A.C.; can the Appellant successfully sue the Defendants
for the damage he thereby suffered? This single problem has inevitably
been dissected into three separate questions, viz., (1) Is there a tort or
wrong known to the English law as the tort of intimidation such that,
although the party intimidated is not the party claiming to recover, the
last mentioned party can sue the persons who did the intimidating on the
ground that their object was to damnify him, as they did? (2) If so, are
the wrongful acts which the person or persons threatened, by way of
intimidation, to do confined to acts in themselves criminal or tortious
or do they extend to other so-called " wrongful " acts including particularly
breaches of contract? (3) If the tort of intimidation does so extend, then
is the Appellant's common law right of action defeated by the terms of
either section 1 or section 3 of the Trade Disputes Act, 1906, seeing
that, as is here conceded, the acts of intimidation of which the Appellant
complains were done in the course of furtherance of a Trade Dispute within
the meaning of that Act?

Upon the first of these three questions which I have formulated all the
members of the Court of Appeal, after a careful consideration of the many
authorities and dicta upon the subject, agreed with Sachs J. in giving to



12

it an affirmative answer. My Lords, it seems to me that in the year 1963
it is not sensible or possible to deny such a wrong, at any rate where the
illegal acts threatened are criminal or tortious in character and where the
threats are sufficiently substantial and coercive to cause real damage to
the person against whom they are aimed and directed ; and the person
entitled to recover may be either the party intimidated or may be a third
party where the intention and effect of the threat is to injure such third party.
I do not in the circumstances propose for myself to go again through
all the authorities. I am content to start with the citation (quoted by
Pearson L.J. in the Court of Appeal) from the well-known judgment of
Bowen L.J. in the case of the Mogul Steamship Co., Ltd. v. McGregor, Gow
& Co., 23 Q.B.D. 598, and to add only citations from the speech of Lord
Watson in Allen v. Flood (sup.) and from the speech of Lord Dunedin in
Sorrell v. Smith (sup.).

In the Mogul Steamship case, Bowen L.J. said (see p. 614): "No man,
" whether trader or not, can, however, justify damaging another in his
" commercial business by fraud or misrepresentation. Intimidation, obstruc-
" tion and molestation are forbidden ; so is the intentional procurement
" of a violation of individual rights, contractual or other, assuming always
" that there is no just cause for it. The intentional driving away of
" customers by shew of violence . . . the impeding or threatening servants
" or workmen; the inducing persons under personal contracts to break
" their contracts ; all are instances of such forbidden acts ".

My citations from Lord Watson are as follows (see [1898] A.C. pp. 96,
97 and 98):

" There are, in my opinion, two grounds only upon which a person
" who procures the act of another can be made legally responsible for
" its consequences. In the first place, he will incur liability if he
" knowingly and for his own ends induces that other person to commit
" an actionable wrong. In the second place, when the act induced is
" within the right of the immediate actor, and is therefore not wrongful
" in so far as he is concerned, it may yet be to the detriment of a
" third party ; and in that case, according to the law laid down by the
" majority in Lumley v. Gye, the inducer may be held liable if he can
" be shewn to have procured his object by the use of illegal means
" directed against that third party." Again later: "Assuming that the
" Glengall Iron Company, in dispensing with the further services of
" the respondents, were guilty of no wrong, I am willing to take it
" that any person who procured their act might incur responsibility
" to those who were injuriously affected by it, if he employed unlawful
" means of inducement directed against them. According to the
" decision of the majority in Lumley v. Gye, already referred to, a
" person who by illegal means, that is means which in themselves are
" in the nature of civil wrongs, procures the lawful act of another,
" which act is calculated to injure, and does injure, a third party,
" commits a wrong for which he may be made answerable. So long
" as the word ' means' is understood in its natural and proper sense
" that rule appears to me to be intelligible ; but I am altogether unable
" to appreciate 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."

I turn finally to the speech of Lord Dunedin in Sorrell v. Smith (sup.).
The noble Lord first quoted (see pp. 718, 719) from a judgment which he
had delivered in the Scottish case of Mackenzie v. Iron Trades Employers'
Insurance Association, 1910 S.C., 79, and which he thereby affirmed Then,
after referring to numerous other cases, including that of Ware and de
Freville, Ltd. v. Motor Trade Association (sup.), he said, at p. 730 of the
Report :

" Expressing the matter in my own words, I would say that a threat

" is a pre-intimation of proposed action of some sort. That action must

" be either per se a legal action or an illegal, i.e., a tortious action.

" If the threat used to effect some purpose is of the first kind it gives

13

" no ground for legal proceeding; if of the second, it falls within the
" description of illegal means, and the right to sue of the person injured
" is established."

I shall have something to say hereafter about the use by Lord Dunedin
of the phrase " i.e., a tortious action ". But for the purpose of answering
the first of the questions which I have posed, I think that the citations which
I have made must now be accepted as correctly stating the law; and I add
only my acknowledgment of the judgments and reasoning upon this question
of Sellers, Donovan and Pearson L.JJ., in the Court of Appeal, and par-
ticularly the analysis of the growth of the tort of intimidation stated in
Pearson L.J.'s judgment, which I respectfully and gratefully adopt.

I therefore agree with the view expressed by the Court of Appeal that
there has been established as a wrong and as part of the English law the
tort of intimidation. I am willing to concede that the tort is one of relatively
modern judicial creation (though Pearson LJ. in the course of his analysis
referred to some authorities of respectable antiquity) and that its full
extent and scope have not (at least before the present case) been authori-
tatively determined and may well, indeed, even by your Lordships' judg-
ments in this case, still not have been finally stated. But that is, after all,
in accordance with the well-known principles of our law, one of the charac-
teristics of which is (as has been pointed out by many eminent legal scholars,
including Cardozo, C.J.) that its principles are never finally determined
but are and should be capable of expansion and development as changing
circumstances require, the material subject matter being " tested and re-
" tested " in the law's laboratories, namely the courts of justice.* Moreover,
as observed by Professor Holdsworth in his history of the Law of England,
volume 8, pages 392ff, the tort of conspiracy, as now understood, is also
one of relatively modern exposition differing from the ancient tort of
conspiracy (which as Professor Holdsworth points out is in reality now
equivalent to malicious prosecution) and has arisen out of the circumstances
of modern industrial relations. So also, as I conceive, has the tort of
intimidation. Mr. Gardiner forcibly argued, upon an analysis of the various
cases in which the alleged tort has arisen, that it was in truth originally
and still is no more than an aspect of the law or tort of nuisance. According
to Mr. Gardiner, it was in truth invented by Sir John Salmond.

But, with all respect to Mr. Gardiner's argument, it is now, as I have
said, in my opinion too late to deny the reception of the tort of intimidation
into the company of English wrongs. So far, I have agreed with the Court
of Appeal. But I respectfully differ from the Court of Appeal in thinking
[hat the wrong of intimidation must stop short so as to comprehend
only threats of criminal or tortious acts and thus to exclude threats of
breaches of contract. I am aware that the only direct authorities for such
an extension of the wrong are the two Irish cases of Cooper v. Millea and
others, 1938 I.R. 749 before Gavan Duffy, J. and Riordan v. Butler and
others, 1940 I.R. 347 in which O'Byrne, J. followed Gavan Duffy, J. I am
aware also that in the former case the learned Judge erred in attributing
a dictum in support of his view to Lord Dunedin in Sorrell v. Smith and
that in fact the noble Lord in that case used the words which I have
quoted "... that action must be either per se a legal action or an illegal,
" i.e., a tortious action". I cannot, however, think that by his use of
the formula " id est" Lord Dunedin was intending to lay it down that only
threats of tortious actions would constitute the wrong of intimidation. The
attention of your Lordships was also properly drawn to all the relevant
dicta that have fallen from the judges since that of Bowen, L.J. in the
Mogul Steamship case down to the present time, and I would concede that
upon the face of them these dicta may tend more to support the restriction

of the tort than its extension so as to include threats of breach of contract-
though they cannot be said in that respect to be uniform; see, for example,
the use of the word " unlawful " by Lord Lindley in South Wales Miners'
Federation v. Glamorgan Coal Company, Limited, [19051 A.C. 239, at 253.
"To break a contract is an unlawful act, or, in the language of Lord



* Nature of the Judicial Process (published by Yale University Press) p.23.

32227 A 8

14

" Watson in Allen v. Flood, ' a breach of contract is in itself a legal wrong'.
"... A breach of contract would not be actionable if nothing legally
" wrong was involved in the breach". To this last citation Lord Justice
Donovan referred in his judgment in the present case. I venture, like
Lord Lindley, to refer to Lord Watson's speech in Allen v. Flood where
(at page 94 of the report) the noble Lord cited and adopted the language
of Bowen, L.J. in the Mogul Steamship case "... the term ' wrongful'
"imports in its term the infringement of some right". But in none of
the reported cases (except the Irish cases) was the question with which
your Lordships are now concerned raised as relevant for decision, and the
language in the many judgments to which your Lordships have been
referred was, as I conceive, intended to be but illustrative and was in any
event upon the present question obiter.

I feel therefore free to approach the question as a matter of principle;
and so approaching it, I cannot for my part see any persuasive basis
for drawing the line so as to exclude from the wrong of intimation threats
of breaches of contract. I cannot find in accordance with logic, reason or
common sense anything between threats to do tortious or criminal acts,
on the one hand, and threats to break contracts, on the other, which amounts
in the simile used by Lord Herschell in Allen v. Flood (sup. at page 121),
to a chasm. It is no doubt true that in attempting to extract the principle
from the present case there is some obscurity caused by the circumstances
with which we are concerned, first, by the actual nature of the alleged threats
and, second, by the presence in the background of the Trade Disputes
Act, 1906. I therefore consider other illustrations of threats to break
contracts. Suppose the case of one who carries on upon premises which
he has leased from another a business or profession, and that the landlord,
intent on damaging his tenant's business or profession, threatens to commit
breaches of his covenant of quiet enjoyment; or suppose the case of one
whose business depends upon the exploitation of a licence granted by a
patentee and the patentee (let us say) out of spite for the licensee or dislike
of his methods threatens him with breaches or revocation of the licence.
I find, for my part, great difficulty in thinking that in such cases as I
have mentioned there would be no cause of action based on intimidation
whereas such a cause of action would arise if the landlord or the patentee
threatened personal assault or other tortious act. Nor, for my part, can
I regard as conclusive the argument which clearly appealed strongly to
Pearson, L.J. that if threats of breaches of contract amounted to intimida-
tion there would be an unnatural and anomalous distinction between threats
to break a contract, on the one hand, and breaches of the contract, on
the other. It is an undoubted but established and perhaps peculiar feature
of the English law that only parties to a contract can sue for breaches
of that contract notwithstanding that some third party may be damnified
by the breach and intentionally so damnified. Such, however, has long
been the established rule in English law though (as some have thought)
the restriction now should be somewhat relaxed. Let it, however, be
supposed that A breaks his contract with B and that B, under the pressure
of the breach of contract, dispenses with the services of C—dispenses,
that is to say, without breaking his contract with C. If those are the
only facts, then it is no doubt true that C cannot prefer any claim against A.
But as a practical matter of fact what in truth in such a case happens?
If (as we are to suppose) the object of A's breach of contract with B was
to cause B to dispense with the services of C, then, B having done so,
does A proceed to renew his contractual relations with B? And, if so,
does he do so upon the terms, well understood by B, that, if B should
attempt again to re-engage C, A would once more break his contract?
If such were the true facts, then it would appear to me not seriously in
doubt that C could maintain a cause of action against A for continuing
to threaten further breaches of his contract. It seems, therefore, to me
that the cases in which the employment of one party is interfered with
by a breach of the contract with his employer by another but without
any further threats expressed or implied must indeed be rare. Indeed,
in practice I conceive a parallel would not be other than close with the

15

case of one who, instead of breaking a contract with the employer, in fact
assaulted him and as a result (as was intended by the assaulting party)
the employer disposed of the services of his servant. As in the case of
the broken contract, the inference would no doubt be that unless the
employer permanently severed his relations with his servant the third party
would assault the employer again: and so a cause of action would fairly
arise from the implied intimidation rather than from the actual assault.
But however that may be, for reasons which I have given, I cannot be
persuaded that there is in the constitution of the tort of intimidation an
essential difference between tortious or criminal acts, on the one hand,
and unlawful acts consisting of breaches of contract, on the other, or
threats of such breaches which make it necessary for us now to say that
the tort of intimidation can never extend to cover threats of breaches of
contract. So far, therefore, I agree with the learned Judge, Sachs J., in my
answer to the second question which I have above formulated, and think
that the plaintiff here had established a good cause of action at law unless
his rights are defeated by sections 1 and 3 of the Trade Disputes Act, 1906.

It becomes then necessary, as it was strictly unnecessary for the Court
of Appeal, for the House to reach a conclusion upon the third of the questions
which I have formulated, namely, upon the effect in the present case of
sections 1 and 3 of the Trade Disputes Act, 1906. Section 1 reads as

follows: —

" The following paragraph shall be added as a new paragraph after
" the first paragraph of section three of the Conspiracy and Protection
" of Property Act, 1875:—'An act done in pursuance of an agreement
" ' or combination by two or more persons shall, if done in contemplation
" ' or furtherance of a trade dispute, not be actionable unless the act, if
" ' done without any such agreement or combination, would be action-
" ' able ' ".

I believe that all your Lordships are agreed that, in the circumstances of
the present case, section 1 cannot be successfully invoked by the Respondents.
I am also of that opinion although, as later appears, I am not sure that my
concurrence with your Lordships' conclusion upon this point rests upon a
complete concurrence of reasoning. To my mind, the essential question
may be thus stated: was the quality of the acts done by each of the Defendants
such that those acts (being, as it is conceded, done in furtherance of a trade
dispute), would give to the Appellant a cause of action if done by each
Defendant upon his own, without collaboration with the other Defendants?
For reasons already given, I have concluded that a threat to do an act
unlawful in the sense of constituting a breach of contract may qualify as
falling within the tort of intimidation. No doubt if all that Mr. Barnard
did (to take his case as an example) was to threaten B.O.A.C. to break
his own contract of service unless B.O.A.C. gave notice to Mr. Rookes,
its coercive effect would (as I have earlier indicated) be negligible, if indeed
at all existent. But Mr. Barnard was an official of the Union and his
threat was (and clearly understood to be) that he in common with all his
Union colleagues would break their service contracts unless Mr. Rookes'
services were determined. Although therefore the threat was not one to
procure breaches of their service contracts by the other Union men, never-
the less the threat, properly understood as it was intended to be understood
In the light of the resolution of the 10th January, 1956, had a real and
substantial coercive force. As such, and apart from the combination with
him of the other Defendants, such threat itself constituted a cause of action
on the Appellant's part. It follows therefore, in my opinion, that section 1
of the Act provides no answer to the Appellant's claim.

Section 3 however has caused far greater difficulty. Its language is as
follows:—.

" An act done by a person in contemplation or furtherance of a trade
" dispute shall not be actionable on the ground only that it induces
" some other person to break a contract of employment or that it is an
" interference with the trade, business, or employment of some other



32227 A 9

16

" person, or with the right of some other person to dispose of his capital
" or his labour as he wills ".

Nothing in the present case turns upon the first part of the section, since
there was here no breach of the Appellant's contract " procured " by the
acts of the Defendants. It is with the second part of the section that your
Lordships are concerned and it will, I hope, be useful to repeat the relevant
words. They are: " An act done by a person in ... furtherance of a trade
" dispute shall not be actionable on the ground only that ... it is an
" interference with the . • . employment of some other person ".

I believe that all your Lordships have in the end reached the conclusion
that upon their true construction and in light of the relevant law as it was
understood at the date of the passing of the Trade Disputes Act the words
which I have repeated cannot protect the Respondents in the present case.
The problem, upon its face, is simple enough: what is meant by the few—
and the simple—words " An Act . . . shall not be actionable on the ground
" only that . . . "? As I believe all your Lordships are agreed, the answer
to the problem is to be found by enquiring whether " the acts " complained
of are, as such, wrongful only upon the ground (in such a case as the present
that they constitute or result in an interference with some person's employ-
ment. If this be the correct nature of the enquiry, then the answer in this
appeal is that the acts complained of are not wrongful only upon the ground
that they interfered with the Appellant's employment; for they are also
wrongful on the ground of constituting the tort of intimidation. The
alternative analysis which has, I confess, appealed to me places perhaps
greater emphasis upon the word " actionable " so that the essential question
posed by the statutory language is, whether the acts complained of are
actionable on the part of some particular person on the ground only that
they interfered with that person's employment. Applying such a test to the
present case the question then is resolved thus: were the acts of the
Defendants actionable at the suit of the Plaintiff upon the ground (and only
upon the ground) that they interfered with his employment? And if that
be the right question then, as I conceive, the answer must be in the
affirmative since the Plaintiff was not himself intimidated and the only
ground upon which he can complain of the Defendants' acts is that they
resulted (as they were intended to do) in an interference with his (the
plaintiff's) employment with B.O.A.C.

Let me say at once that I do not at all differ from your Lordships in
thinking that the same principle of interpretation must be applied to the first
part as to the second part of section 3 ; for the essential formula—" shall
" not be actionable on the ground only that " —is equally applicable to
both parts of the section. So if the test which has appealed to me is applied
where the first part of the section is involved, that is in a case where there
has been a breach of the contract of service of someone in the Plaintiff's
position, it would follow that protection is equally given, where there exists
a trade dispute, whether the acts which brought about the breach of contract
were as regards the employer wrongful (e.g. constituted the tort of intimida-
tion) or consisted merely of persuasion without any threat or any other
unlawful act. It is, however, as I understand, the view of all your Lordships
that if the case supposed were one where the breach of contract of service
were brought about by threats or other unlawful acts, then no protection
would be afforded by the first part of the section.

My Lords, I am indeed conscious of the fact that the view upon the sup-
posed case entertained by your Lordships appears to have the support of
no less an authority than that of Lord Loreburn, who was Lord Chancellor
at the time of the passing of the Trade Disputes Act, 1906.

I have in mind the celebrated passage in his speech in Conway v. Wade,
[1909] AC 506 at p. 511.

" It is clear that, if there be threats of violence, this section gives
" no protection, for then there is some other ground of action besides
" the ground that ' it induces some other person to break a contract',
" and so forth. So far there is no change. If the inducement be to



17

" break a contract without threat or violence, then this is no longer
" actionable, provided always that it was done ' in contemplation or
" ' furtherance of a trade dispute '. . .. In this respect there is a change.
" If there be no threat or violence, and no breach of contract, and
" yet there is ' an interference with the trade, business, or employment
" ' of some other person, or with the right of some other person to
" ' dispose of his capital or his labour as he wills', there again there
" is perhaps a change. It is not to be actionable, provided that it
" was done ' in contemplation or furtherance of a trade dispute'."

I shall, I hope, be excused from quoting further at length from Lord
Loreburn's speech.

It is said indeed with force that the first part of the language which I
have quoted shows that Lord Loreburn's view was that no protection would
be given by the section where the wrong of intimidation done to an employer
had the effect of inducing him to break his service contract. It is therefore
said that (in Lord Loreburn's view) the first part of the section was only
intended to give relief where the breach of contract was procured by per-
suasion unaccompanied by any wrongful acts—in other words, to give relief
only in cases which were in the year 1906 thought to fall strictly within
the scope and authority of Lumley v. Gye 2 E & B. 216: though as regards
the second part of the section, Lord Loreburn was careful to express no
concluded view. I must also add that in no subsequent case has there been
any doubt or qualification expressed in regard to Lord Loreburn's statement
of the effect of the first part of the section ; though it is also true that the
particular point which your Lordships are now asked to resolve has never,
in fact, come before the courts for decision.

Having regard to the unanimity of your Lordships' view upon this matter
I have not thought it right formally to dissent. Nonetheless, I have not felt
able to resolve the doubts which I have felt in favour of your Lordships'
views and in case the section should hereafter come before Parliament
for review I have thought it right to express more fully the argument which
has appealed to me in favour of the alternative view of the construction
of section 3, namely that the acts of the defendants of which the Appellant
complains are actionable at his suit because (and only because) they have
constituted and resulted (as they were intended to do) in an interference
with the Appellant's employment by B.O.A.C. I do not forget that in
construing the material language of section 3 regard should properly be had
to the state of the law as it should be taken to have been (and to have
been understood by Parliament to be) in 1906. It is also no doubt true
that in 1906 the " leading heresy" in Lord Dunedin's language—see
Sorrell v. Smith at page 719—had not been exposed and dissipated, viz.,
that acts which were in themselves lawful might nonetheless be actionable
if it were shewn that they were " maliciously " directed against another
person, i.e., were deliberately intended to damage such other person par-
ticularly in his employment; and it may indeed be that such heresy has
been entertained until the present time. I here make the point, however,
that the first part of the citation from Lord Loreburn may have been
directed to the position of the person who (unlike the Appellant in the
present case) is himself intimidated and who may well therefore (like one
who sues another for the tort of negligence) have a cause of action against
the wrong-doer altogether distinct from the damage by way of loss of employ-
ment which he may suffer from the wrong.

I do not, however, fail to appreciate the point that Parliament may,
in enacting the second part of section 3 of the Act of 1906, have intended
to resolve the " heresy " above mentioned in favour of the Trade Union
when the (lawful) acts complained of were done in furtherance of a trade
dispute; though the result would be, in light of later judicial decisions, to
make that part of the section (unlike its initial part) merely declaratory of
the law and therefore, in effect, nugatory. But whatever may have been
(or may be assumed to have been) the Parliamentary intention in 1906 the
question before your Lordships must be to construe, according to the



32227 A10

18

ordinary sense of the language used, the terms of the enactment. So much
has been forcibly and authoritatively stated by Lord Macnaghten (and
the other noble Lords) in the case of Vacher & Sons Ltd. v. London Society
of Compositors [1913] AC 107. Lord Macnaghten at pp. 117 and 118 of
the Report said:

" Now it is 'the universal rule', as Lord Wensleydale observed in
" Grey v. Pearson, that in construing statutes, as in construing all other
" written instruments ' the grammatical and ordinary sense of the word is
" ' to be adhered to, unless that would lead to some absurdity, or some
" ' repugnance or inconsistency with the rest of the instrument, in which
" ' case the grammatical and ordinary sense of the words may be
" ' modified, so as to avoid that absurdity and inconsistency, but no
" ' further'. Acts of Parliament are, of course, to be construed
" ' acording to the intent of the Parliament' which passes them. That
" is ' the only rule ' said Tindal C.J., delivering the opinion of the
" judges who advised this House, in the Sussex Peerage Case. But his
" Lordship was careful to add this note of warning: ' If the words of
" ' the statute are in themselves precise and unambiguous, then no more
" ' can be necessary than to expound those words in their natural and
" ' ordinary sense. The words themselves alone do, in such case, best
" ' declare the intention of the lawgiver'. Nowadays, when it is a
" rare thing to find a preamble in any public general statute, the field
" of inquiry is even narrower than it was in former times. In the
" absence of a preamble there can, I think, be only two cases in which
" it is permissible to depart from the ordinary and natural sense of the
" words of an enactment. It must be shewn either that the words taken
" in their natural sense lead to some absurdity or that there is some
" other clause in the body of the Act inconsistent with, or repugnant to,
" the enactment in question construed in the ordinary sense of the
" language in which it is expressed."

Applying then this test, the question persists, notwithstanding any heresy
formerly entertained, what acts are actionable at the suit of any person,
" only on the ground " that they interfere with that person's employment?
And if that test is applied to the present case the conclusion would be that
the acts of which the Appellant here complains are not otherwise, at his suit,
actionable

We are here concerned with acts, that is to say " unlawful " threats
constituting intimidation not of the Appellant himself but of the Appellant's
employers aimed and intended to interfere with the Appellant's employment.
As I have more than once observed, the Appellant was not himself
intimidated ; but if I am right in thinking that the " unlawful " acts com-
plained of comprehend threats of breaches of contract as well as threats of
tortius actions, then, according to the law as I think it has emerged, the
Appellant would undoubtedly have a good cause of action, unless the acts
complained of had been done in furtherance of a trade dispute. It is
however relevant, upon this view of the effect of section 3 of the Act of 1906,
to consider also the case of the person who is directly intimidated. The
attempt to extract the relevant principles from the present case is, as I
have already intimated, to some extent bedevilled by the circumstances of
the case, including the possible difficulty in properly stating the nature of the
" threats " of the defendants and the admitted fact that whatever was done
by the defendants was done in truth in furtherance of a trade dispute. I
take, therefore, by way of example the simple case of one who intimidates
another by threats of personal violence. I take the case of A, engaged
in some profession or business. I assume that B, from motives of intense
personal dislike of A, uses threats of personal violence to A of real coercive
force intended (and effective) to interfere with A's business. If, as a result
of B's threats, A is compelled to abandon his business or profession he will,
according to the view of the Court of Appeal as well as of your Lordships,
have a cause of action against B and such cause of action will be founded
upon the tort of intimidation. If the only effect of the intimidation is to
"interfere" with A's business—if, that is to say, the only "damnum"



19

suffered by A from B's injuria is damage to A's business—then the question
remains whether, if the acts of intimidation were done in furtherance of a
trade dispute, section 3 of the Act of 1906 would provide a good defence
to A's claim. Upon this question I express no view. But clearly the damage
to A might not be so confined—he might well, as a consequence of B's
intimidation, suffer in many ways including health, and, if he did, then, as
I conceive, his cause of action against B would be founded on the tort of
intimidation and would not be confined, by reference to the damage suffered,
to interference with his business. I take by way of analogy the case where B,
by careless driving of his motor car, seriously injures A. In such a case
the damage suffered by A may comprehend the fact that, as a result of his
injuries, he is unable to continue to carry on his business or profession.
Nonetheless his cause of action against B would be founded on B's negli-
gence and plainly it could not fairly be said that the " only ground " upon
which, at A's suit, B's acts were actionable was that they interfered with A's
business. Does not similar reasoning apply in the case where the person
complaining of the tort of intimidation is the person himself intimidated?
In a case therefore in which, pursuant to a trade dispute, threats were made
—say by members or officials of a trade Union—direct to one who was not
a member of the Union, it should follow that the person threatened could
properly claim redress on the ground of intimidation since the damage
suffered by him was not limited to and dependent upon interference with
his employment. That question if and when it arises will be decided upon
the particular facts of the case. Where, however, as in the present case,
the complainant has not himself been -intimidated, his cause of action must
depend, and must depend exclusively, upon his claim that the threats to a
third party (namely, his employers) were made with the deliberate intent
of affecting his own job. If they were, then (apart from section 3 of this
Act of 1906) he would have a cause of action; but if the threats were made
in fact in furtherance of a trade dispute the result is, upon the alternative
view of construction which has appealed to me, that his cause of action,
his right to complain, is necessarily and inevitably destroyed by what I take
to be the plain meaning of the words of the section.

I should add here that I have been somewhat troubled by the words
"... is an interference ..." in the section ; since the acts complained of
may fairly be said not themselves to be, but rather to have resulted in, such
an interference. But the difficulty arises whichever view is taken of the
construction of section 3, and I have felt bound to conclude that the word
" is" must in its context mean and comprehend the effect of the acts of
which complaint is made. Were it otherwise, indeed, the section would be
incompetent to cover the case of acts in themselves lawful but by their
effect intended to damage the business or employment of the complainant.
In other words, if by the use of the word " is " Parliament intended to confine
the operation of the section to cases in which the " acts " in question of
themselves operated as an interference with the business or employment
of another, the section would, so far as I can see, have been inevitably without
practical effect. I therefore have felt compelled to the view that by the
word " is " Parliament meant and intended " is by its effect or intention ".

I should add that, with all respect to the opposite view, it does not seem to
me that any assistance one way or the other is to be derived from section 4
of the Act, which in terms gives absolute immunity to Trade Unions them-
selves ; for, on the alternative view of its effect which has appealed to me,
section 3 falls far short of giving a corresponding immunity to those whose
acts procure a breach of some person's contract or interfere with his employ-
ment. Nor does it seem to me that the alternative view can be said to
involve giving wholly unreasonable licence to persons doing wrongful acts
in contemplation of furtherance of a trade dispute: for as I have endeavoured
to illustrate, the person (i.e., in the ordinary case, the employer) is not
deprived of the right to invoke the jurisdiction of the courts where he has
been the victim of the wrongful acts except at any rate in a case where his
only ground for complaining of the wrongful acts—the only " damnum "
suffered by him as their result—was that they interfered with his business.




32227 A 11

20

After all, on any view the only persons against whom proceedings could
be taken by anybody in respect of acts done in contemplation or furtherance
of a trade dispute would (except perhaps in very rare cases indeed) be
individuals like the defendants in the present case whose ability to pay
damages would be greatly limited. Moreover, in cases of the kind which
I have in mind I hope and believe that the Trade Unions in our country
are sufficiently responsible and influential to see that acts done by their
members in the course of trade disputes are not wholly irresponsible.

I have, for the reasons earlier stated, attempted to set down fully the
grounds which appear to me to support the alternative view of the construc-
tion of section 3. I add only that, as I have felt, the vital word may be
said to be " actionable " and not, for example, " wrongful " or " capable of
" giving rise to a cause of action ". The use of the word " actionable "
inevitably provokes the question "actionable on whose part?": and the
alternative answer to the question involves only that there should be read
into the section such words as " on the part of any person " which the use
of the word " actionable " may be said inevitably to require. Nonetheless,
having attempted to express my doubts and the reasons for them I do
not upon this matter formally dissent from your Lordships.

There remains the final question fully argued upon the resumed hearing
of the appeal, namely, whether, assuming the Appellant to be entitled to
succeed in his action, he could claim what are called " exemplary damages ".
Upon this difficult question, falling how to be considered for the first time
by your Lordships' House, I have had the advantage of reading the opinion
prepared by my noble and learned friend, Lord Devlin, who, at the end
of it, dealt exhaustively with this subject. For the reasons which Lord Devlin
gives, I agree entirely with his conclusion that awards of exemplary damages
ought to be strictly limited to the two classes of case specified by him, neither
of which comprehends the present case ; and I share my noble friend's
opinion that your Lordships should now overrule the decision of the C.A.
in the case of London v. Ryder [1953] 2 Q.B. 202.

In all the circumstances I agree that the House should now make an
order in the form proposed by my noble and learned friend Lord Reid.

Lord Hodson

MY LORDS,

The Appellant worked as a draughtsman for B.O.A.C. at London Airport
where, from 1951, the Union called the Association of Engineering and
Shipbuilding Draughtsmen (A.E.S.D.) had an informal " 100 per cent,
"membership" agreement with the employers. On 1st April, 1949, the
employers' and the employees' sides entered into an agreement in writing,
which provided by clause 4 that no lock-out or strike should take place
and that, if a dispute occurred, arbitration procedure should be followed.
In 1955 the Appellant, who had disapproved of the policy of the Union,
resigned his membership. The Respondents Barnard and Fistal, branch
chairman and local shop steward, and Silverthorne, who was a paid official
of the Union, advocated strike action if the Appellant remained in his
employment as a draughtsman.

A resolution was passed and communicated to B.O.A.C. " that if the Non-
" Unionist Mr. D. E. Rookes is not removed ... a withdrawal of labour
" of all A.E.S.D. Membership will take place ". In face of this threat
B.O.A.C. first suspended and later dismissed the Appellant, after giving him
due notice which expired on the 16th March, 1956. The Appellant brought
his action on the 25th June, 1957, for damages for the injury which the
Respondents had caused him by threatening B.O.A.C. in the manner
indicated, so that B.O.A.C. had been induced to terminate his services.

It was agreed by both sides that the terms of the 1949 agreement formed
" so far as applicable part of the contract employment" of A.E.S.D.



21

members at the London Airport office. It was also agreed that a trade
dispute existed at all material times concerning the continuation of the
Appellant in the employment of B.O.A.C. while he was not a member of
A.E.S.D., and that all the acts of the Respondents were done in furtherance
of that trade dispute.

The jury found that there was a conspiracy to threaten strike action to
secure the withdrawal of the Appellant and that all three Respondents were
parties, that all three had threatened to take strike action directed to the
same end, and that, their threats having caused the dismissal of the Appellant,
he should be awarded £7,500 damages. The learned Judge held that the
tort of intimidation had been committed by each defendant, that the threats
to do unlawful acts, i.e., to break contracts of employment by departing
from the terms of the 1949 agreement, resulted in reasonably foreseeable
damages to the Appellant.

The Respondents have throughout maintained that the action is mis-
conceived, in that there is no such tort as intimidation and, further, that if
(here is such a tort it does not extend to cover this case involving, as it
does, no threat of violence or of any criminal or tortious act, but a mere
threat to break a contract, that is, a breach of obligations undertaken by
private treaty between two persons. Such a threat, it is said, ought not to
give a remedy to an outsider.

The Court of Appeal reversed the decision of the learned Judge, holding
that, although the tort of intimidation existed, it did not cover the case of
a threat to break a contract.

No doubt many of the old cases in which a plaintiff has been held entitled
to recover damages from a defendant who has intimidated a third party
can be explained on the ground of nuisance, or some other recognized tort,
but some cannot, and I think that, of these, Garret v. Taylor (Cro. Jac. 567)
and, more particularly, Tarleton v. M'Gawley (1 Peake 270) cannot be so
explained, and I agree with your Lordships that the existence of this tort
is established by authority.

The main argument of the Respondents has been directed to persuade
your Lordships that this tort is of a restricted nature, having its roots in
violence and threats of violence, and should not be extended to cover the
case of workmen who threaten to break their contract with their employers
if they, the employers, refuse to terminate the employment of an individual
workman, as happened in this case. It cannot be disputed that the limited
view of the tort which commended itself to the Court of Appeal finds support
in authority which does not appear to have contemplated that breach of
contract was within the field of unlawful acts giving rise to the tort of
intimidation. Donovan L.J., pertinently referred to the Criminal Law
Amendment Act, 1871, which makes it an offence to use violence, threats,
intimidation, molestation or obstruction with a view, among other things,
to coercing an employer into ceasing to employ a workman. The threats
and intimidation had to be acts such as would justify a justice of the peace
in binding over the person so threatening or intimidating to keep the peace.
This Act did not accordingly make it unlawful to threaten to strike. It
was repealed in 1875 by the Conspiracy and Protection of Property Act,
1875, and in 1891 is was decided, in two cases cited by the learned Lord
Justice, that the word " intimidation " could not be construed more severely
than as defined by the Act of 1871 (see Gibson v. Lawson [1891] 2 QB 545
and Curran v. Treleaven [1891] 2 Q.B. 553). Subject to specific exceptions,
such as breaches of contracts of service by employees of municipal gas and
water undertakings and breaches of contract involving danger to life, risk
of serious bodily injury and destruction of or serious injury to valuable
property, a threat to break a contract is no longer unlawful in the sense
of being criminal.

In the past there has been much discussion in the conspiracy cases about
the word " threat", but there is now no necessity to be careful to distinguish
between a threat and a warning on the basis that one is a threat to do an
illegal act and the other a warning to do something lawful. As Lord



22

Dunedin put it in Sorrell v. Smith [1925] A.C. 700 at p. 730 "A threat is
" a pre-intimation of proposed action of some sort. That action must be
" either per se a legal or an illegal, i.e., a tortious, action. If the threat
" used to effect some purpose is of the first kind, it gives no ground for
" legal proceeding; if of the second, it falls within the description of illegal
" means, and the right to sue of the person injured is established." This
language, while making clear that the word " threat" of itself is neutral,
does nothing to support the contention of the Appellant that breach of
contract was the kind of unlawful act which could be envisaged by the
tort of intimidation. Illegal is treated as equivalent to tortious by the use
of the link " id est". In the Crofter's case [1942] AC 435, Lord Wright
said: " 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. It is clear
that the threat must be a threat to do something independently unlawful.
Breach of contract is unlawful and Sachs J., in rejecting the Respondents'
contention that this was outside the scope of intimidation, followed the per-
suasive authority of two Irish cases, Cooper v. Millea and others 1938 I.R.
749 and Riordan v. Butler and others 1940 I.R., 347, in the earlier of which
reliance was placed by Gavan O'Duffy on the speech of Lord Dunedin in
Sorrell v. Smith which does not, however, support the propostion that a
threat to strike in breach of contract is unlawful and constitutes unlawful
means.

In Huntley v. Thornton [1957] 1 W.L.R. 321 at p. 344, Harman J. said,
in relation to employees who threatened to strike: "If, however, their
" actions amount to threats of illegal strike action—that is to say, action
" to withdraw labour in breach of contract—then those acts were tortious
" and illegal". As Sachs, J. pointed out, this observation of Harman, J.
was obiter.

The argument which seems to have carried the greatest weight in the
Court of Appeal in this case is that which may be called the privity of
contract argument. As Pearson L.J. put it if the extension contended for
by the Appellant were made it would overturn or outflank the elementary
principles of contract law. These, speaking broadly, exclude the jus tertii
and restrict the rights and obligations of a contract to the parties thereto.
See two decisions of your Lordships' House, viz., Dunlop Pneumatic Tyre
Co., Ltd. v. Selfridge & Co., Ltd. [1915] AC 847 and Midland Silicones,
Ltd. v. Scruttons, Ltd. [1962] AC 446. Various examples have been given
shewing the apparent absurdity of giving relief to someone in the position
of the Appellant when breach of contract is threatened and denying relief
when the contract is in fact broken.

As my noble and learned friend, Lord Devlin, points out in the speech
which I have had the privilege of reading, there is really no absurdity in
the instances given. The vice of the Respondents' action is the threat to
break and not the breach itself, which would not have the adverse effect
on the Appellant which was caused by the threat to break. Much of
the argument which seeks to restrict the rights under a contract to the
parties to it in a situation such as the present can be found in the power-
ful dissenting judgment of Coleridge C.J., in Lumley v. Gye, but this judg-
ment does not represent the law, and the view of the majority that a party
injured by breach of contract has his remedy against one who has induced
the breach is now part of our law—subject to any defence there may be
by way of justification or under the Trade Disputes Act, 1906, to which I
must refer later. I would therefore reject the privity of contract argument.

It would, I think, to-day, be more anomalous to draw the line short of
breach of contract than beyond it. In the old days the question of breach of
contract by workmen simply did not arise for the reason that they did not
have contracts of employment, as a rule, to break. Now the situation is
different, and in this case the employees not only agreed to a fixed period
of notice on either side for termination of the employment but also not



23

to strike, which I take it means not to take part in any concerted withdrawal
of labour, with or without notice.

It would be strange if threats of violence were sufficient and the more
powerful weapon of a threat to strike were not, always provided that the
threat is unlawful. The injury and suffering caused by strike action is very
often widespread as well as devastating, and a threat to strike would be
expected to be certainly no less serious than a threat of violence. That
a breach of contract is unlawful in the sense that it involves the violation
of a legal right there can be no doubt. Lord Herschell in Allen v. Flood
[1898] AC 1, at p. 121, emphasized this point in the passage where he
expressed the opinion that there was a chasm between maliciously inducing
a breach of contract and maliciously inducing a person not to enter into a
contract. The one is unlawful and the other is lawful.

I do not think your Lordships are laying down any new principle in
including a threat to break a contract under the head of intimidation. It
is no more than an application of the existing principle to a case which
has not been before considered, and I would therefore accept the Appellant's
argument that the tort of intimidation would be available to him but for the
effect of the Trade Disputes Act, 1906. Section 1 of the Act reads —

" An act done in pursuance of an agreement or combination by two
" or more persons shall, if done in contemplation or furtherance of a
" trade dispute, not be actionable unless the act, if done without any
"such agreement or combination, would be actionable."

I agree with the learned Judge that, once it is accepted that the threat to act
in breach of the 1949 agreement constitutes intimidation and is actionable
as a tort, if it is likely to harm the Appellant and is followed by reasonably
foreseeable damage, it is not open to the Respondents to rely on this section
by saying in effect that the damage cannot be attributed to any particular
act of the Respondents and therefore the act done is not actionable without
the element of combination. Section 1 therefore provides no defence.

Section 3, however, is in a different category. It reads:—

" An act done by a person in contemplation or furtherance of a
" trade dispute shall not be actionable on the ground only that it induces
" some other person to break a contract of employment or that it is an
" interference with the trade, business, or employment of some other
" person, or with the right of some other person to dispose of his capital
" or his labour as he wills."

It is upon the construction of this section that the most difficult question
falls to be decided.

There is a material contrast between sections 3 and 4.

The latter prevents actions of tort being instituted against Trade Unions
in any circumstances, and may be said to place Trade Unions outside the
law. The former is not so framed as to give " carte blanche " to those
acting in contemplation or furtherance of a trade dispute. Actions are not
forbidden to be entertained but certain acts done are not to be " actionable
" on the ground only that" etc. If the end result of both limbs of the
section, inducement of some other person to break a contract on the one
hand, interference with the trade, business or employment of some other
person or with the right of some other person to dispose of his capital or his
labour as he wishes on the other hand, had alone to be taken into con-
sideration, a result not unlike that reached by section 4 would follow, for
whatever the nature of the tort the ground of action would be either the
" inducement " or the " interference ".

It would seem therefore at any rate very unlikely that in wording section 3
in the way it did, in contrast to the general words conferring immunity to
be found in section 4, Parliament could have intended to go so far as to
give protection to members of a trade union in every case where the con-
sequences of the act, whether the act itself is lawful or unlawful, were that a
breach of contract has been induced or that a person's employment had been
interfered with.

24

Further support for what I may term the limited, as opposed to the
licentious, scope of section 3 is to be found in section 2 of the Act, which
licenses picketing but only for the purposes of peaceful persuasion.

As my noble and learned friend, Lord Reid, has pointed out, the general
plan of section 3 is to treat both limbs in the same way, and I will not detain
your Lordships by repeating in my own language the reasons which he
gives, and with which I respectfully agree, for holding that on principle
and authority section 3 affords no protection if there are threats or violence
and if, as your Lordships all hold, the threat to break a contract amounts to
unlawful intimidation. The dictum of Lord Loreburn in Conway v. Wade
[1909] AC 506 has strong persuasive authority and has been accepted, I
think rightly, in a number of cases to which your Lordships have been
referred down to the present time.

The intimidation is actionable, and the Plaintiff is entitled to sue on that
ground, not " on the ground only " that his employment has been interfered
with. This last is the damage which he has suffered, it is not the only
ground of his action. I would allow the appeal, but there must be a new
trial on the question of damages for the reasons to be given by my noble
and learned friend. Lord Devlin.

Lord Devlin

MY LORDS,

On 16th March. 1956, the Appellant's employment, which had lasted
nine years with B.O.A.C., was lawfully determined by notice. The reason
why it was terminated was because on 10th January, 1956, the members
of the A.E.S.D.. a trade union to which the Appellant belonged and from
which he had resigned, served notice on B.O.A.C. " that if the non-unionist
" Mr. D. E. Rookes, is not removed from the Design Office by 4 p.m.
" Friday, 13th January, 1956. a withdrawal of labour of all A.E.S.D. member-
" ship will take place". On 13th January the Appellant was suspended
from his employment and the strike thereby averted ; and thereafter notice
terminating his employment altogether was given to him, as I have said.
The three Respondents were officials of the union and two of them were
employed by B.O.A.C.

It is not disputed that the notice constituted a threat of breach of contract
by the members of A.E.S.D. It is true that any individual employee could
lawfully have terminated his contract by giving seven days notice and if
the matter is looked at in that way, the breach might not appear to be a very
serious one. But that would be a technical way of looking at it. As
Donovan, L.J. said in the Court of Appeal, the object of the notice was not
to terminate the contract either before or after the expiry of seven days.
The object was to break the contract by withholding labour but keeping the
contract alive for as long as the employers would tolerate the breach without
exercising their right of rescission. In the second place, there was an
agreement in force between A.E.S.D. and B.O.A.C. in which the former
undertook that no strike of its members would ever take place; and it is
admitted that that term formed part of the contract of service of each
member with B.O.A.C. I agree with the submission made by Mr. Silkin
for the Appellant that a strike means a concerted withdrawal of labour in
furtherance of a trade dispute, whether or not the withdrawal is effected
after proper notice has been given. It is common ground that the issue
whether a non-unionist should continue to be employed creates a trade
dispute.

It is not therefore denied that the service of the notice was an infringement
of B.O.A.C.'s rights. But the question is whether the Respondents thereby
infringed any right of the Appellant. Since all that the Respondents did
was admittedly done in the furtherance of a trade dispute, it is idle to
enquire what possible causes of action there are available to the Appellant

25

at common law without enquiring at the same time to what extent they are
curtailed by statute.

Conspiracy, which suggests itself at once as a possible cause of action,
is covered by section 1 of the Trade Disputes Act, 1906. There are, as is
well known, two sorts of conspiracies, the Quinn v. Leathem type which
employs only lawful means but aims at an unlawful end, and the type
which employs unlawful means. Section 1 of the Act contains the formula
which negatives the first type as a cause of action where there is a trade
dispute. In the latter type, which in my opinion is not affected by the
section, the element of conspiracy is usually only of secondary importance
since the unlawful means are actionable by themselves.

Section 3 provides a second barrier for the Appellant to surmount. It
grants immunity in respect of certain acts which include, it is said, (I shall
have later to examine carefully the language in which the immunity is
granted) an inducement of "some other person to break a contract of
" employment " and " an interference with the trade business or employment
" of some other person ".

The Appellant's choice of remedies being restricted in this way, the only
wrong which he asserts as having been committed by the Respondents is
the tort of intimidation. On this the Respondents say, first that there is
no such tort; secondly, that if there is, the Respondents did not commit it;
and thirdly, that if they did commit it, they are given immunity by section 3
because the intimidation resulted in an interference with the employment of
the Appellant by B.O.A.C.

My Lords, in my opinion there is a tort of intimidation of the nature
described in chapter 18 of Salmond on Torts, 13th edition, page 697. The
tort can take one of two forms which are set out in Salmond as follows:

" (1) Intimidation of the Plaintiff himself

" Although there seems to be no authority on the point, it
" cannot be doubted that it is an actionable wrong intentionally
" to compel a person, by means of a threat of an illegal act, to do
" some act whereby loss accrues to him: for example, an action
" will doubtless lie at the suit of a trader who has been compelled
" to discontinue his business by means of threats of personal
" violence made against him by the Defendant with the intention."

" (2) Intimidation of other persons to the injury of the Plaintiff

" In certain cases it is an actionable wrong to intimidate other
" persons with the intention and effect of compelling them to act in a
" manner or to do acts which they themselves have a legal right to
" do which cause loss to the Plaintiff: for example, the intimida-
" tion of the Plaintiff's customers whereby they are compelled to
" withdraw their custom from him, or the intimidation of an
" employer whereby he is compelled to discharge his servant, the
" Plaintiff. Intimidation of this sort is actionable, as we have said,
" in certain classes of cases; for it does not follow that, because
" a Plaintiff's customers have a right to cease to deal with him if
" they please, other persons have a right as against the Plaintiff
" to compel his customers to do so. There are at least two cases
" in which such intimidation may constitute a cause of action: -

" (i) When the intimidation consists in a threat to do or procure

" an illegal act;

" (ii) When the intimidation is the act, not of a single person,
" but of two or more persons acting together, in pursuance of a
" common intention."

As your Lordship are all of opinion that there is a tort of intimidation
and on this point approve the judgments in both courts below, I do not
propose to offer any further authorities or reasons in support of my con-
clusion. I note that no issue on justification was raised at the time and
there is no finding of fact upon it. So your Lordships have not to consider
what part, if any, justification plays in the tort of intimidation.

26

Your Lordships are here concerned with the sort of intimidation which
Salmond puts into the second category, and with the first of Salmond's two
cases. The second case is, so Salmond later observed, " one form of the
" tort of conspiracy ". That form is the Quinn v. Leathem type, so that it
is no use to the Plaintiff here. He relies upon "a threat to do or
" procure an illegal act", namely, a breach of contract. Doubtless it would
suit him better if he could rely on the procuring of a breach of contract,
for that is a tort; but immunity from that is guaranteed in terms by section 3.
So he complains only of the threat to break the service contracts and the
breach would undoubtedly be an act actionable by B.O.A.C. though it is
neither tortious nor criminal. He does not have to contend that in the tort
of intimidation, as in the tort of conspiracy, there can be, if the object is
injurious, an unlawful threat to use lawful means. I do not think that
there can be. The line must be drawn according to the law. It cannot be
said that to use a threat of any sort is per se unlawful; and I do not see
how, except in relation to the nature of the act threatened, i.e., whether it is
lawful or unlawful, one could satisfactorily distinguish between a lawful
and an unlawful threat.

This conclusion, while not directly in point, assists me in my approach to
the matter to be determined here. It is not, of course, disputed that if the
act threatened is a crime, the threat is unlawful. But otherwise is it enough
to say that the act threatened is actionable as a breach of contract or must
it be actionable as a tort? My Lords, I see no good ground for the latter
limitation. I find the reasoning on this point of Professor Hamson (which
Sellers, L.J. sets out in his judgment though he does not himself accept it)
very persuasive. The essence of the offence is coercion. It cannot be said
that every form of coercion is wrong. A dividing line must be drawn and
the natural line runs between what is lawful and unlawful as against the
party threatened. If the defendant threatens something that that party
cannot legally resist, the Plaintiff likewise cannot be allowed to resist the
consequences ; both must put up with the coercion and its results. But if
the intermediate party is threatened with an illegal injury, the Plaintiff who
suffers by the aversion of the act threatened can fairly claim that he is
illegally injured.

Accordingly, I reach the conclusion that the Respondents' second point
fails and on the facts of this case the tort of intimidation was committed.
I do not share the difficulties which the Lords Justices felt about the idea of
admitting breach of contract into the tort of intimidation. Out of respect
to them I must state what those difficulties are and how in my opinion
they can be satisfactorily resolved.

I think that in one form or another they all stem from the error that
any cause of action by the third party, that is the Appellant, must in some
way be supplemental to or dependent upon a cause of action by B.O.A.C.
Thus, it is said to be anomalous that on the facts of this case the Appellant
should be able to sue the Respondents when B.O.A.C. could not. The best
way of answering that is to grant that B.O.A.C. would not be able to sue
and to assert, as I shall seek to show, that there is nothing anomalous about
it. But there were introduced into the argument a suggestion that B.O.A.C.
could in fact have sued because although there was no actual breach of
contract, one was threatened and therefore there was an anticipatory breach.
Against that, it was said that B.O.A.C. could not have sued for an antici-
patory breach unless they first elected to rescind, which they never did.
I dare say that is right, but I do not think it matters at all whether B.O.A.C.
could sue or not. The two causes of action—B.O.A.C.'s and the Appellant's
—are in law quite independent; and in fact they are virtually alternative
because it is difficult to visualise (except in one case) a set of facts on which
both could sue.

This last statement is best examined in relation to a threat of physical
violence which would unquestionably constitute intimidation. If A threatens
B with physical violence unless he harms C, B can either resist or comply.
If he resists, B might obtain an injunction against A (as he could also in the



27

case of a threatened breach of contract if the contract were of a kind that
permitted that remedy); or if A carries out his threat, B can sue for assault
and obtain damages. In neither case can C sue because he has suffered no
harm. If B complies with the threat, B cannot sue for damages because
ex hypothesi there has been no assault; and he is not likely to obtain an
injunction against the execution of a threat which he has already taken other
means to avoid. But C will be able to sue because through B's compliance
he has been injured. There is no anomaly about this; and if one substitutes
" breach of contract" for " physical violence ", the position is the same.
The only case in which B and C are both likely to sue is if they both sue
for the tort of intimidation in a case in which B has harmed himself by
also harming C.

Then it is said that to give C a cause of action offends against the rule
that one man cannot sue on another's contract. I cannot understand this.
In no circumstances does C sue on B's contract. The cause of action arises
not because B's contract is broken but because it is not broken; it arises
because of the action which B has taken to avert a breach.

Then it is asked how it can be that C can sue when there is a threat to
break B's contract but cannot sue if it is broken without a threat. This
means, it is argued, that ,if A threatens first, C has a cause of action; but if
he strikes without threatening, C has no cause of action. I think that this
also is fallacious. What is material to C's cause of action is the threat and
B's submission to it. Whether the threat is executed or not is in law quite
immaterial. In fact it is no doubt material because if it is executed (whether
it be an assualt or a breach of contract) it presumably means that B has not
complied with it; and if B has not complied with it, C is not injured; and
if C is not injured, he has no cause of action. Thus the reason why C can
sue in one case and not in the other is because in one case he is injured
and in the other he is not. The suggestion that it might pay A to strike
without threatening negatives the hypothesis on which A is supposed to be
acting. It must be proved that A's object is to injure C through the instru-
mentality of B. (That is why in the case of an " innocent" breach of
contract, which was remarked upon by Sellers, L.J., that is, one into which
A was forced by circumstances beyond his control, there could never be
the basis of an actionable threat.) If A hits B without telling him why, he
can hardly hope to achieve his object. Of course A might think it more
effective to hit B first and tell him why afterwards. But if then B injures
C, it would not be because B had been hit but because he feared that he
might be hit again. So if in the present case A.E.S.D. went on strike
without threatening, they would not achieve their object unless they made
it plain why they were doing so. If they did that and B.O.A.C. then got
rid of the Appellant, his cause of action would be just the same as if
B.O.A.C. had been threatened first, because the cause of the injury to the
Appellant would have been A.E.S.D.'s threat, express or implied, to continue
on strike until the Appellant was got rid of.

Finally, it is said that if a threat of breach of contract constitutes intimida-
tion, one party to a contract could be sued for intimidation if he threatened
reprisals. Suppose, for example, A has agreed to deliver goods to B in
monthly instalments but has not made payment for the first a condition
precedent to delivery of the second. If he threatens to withhold the second
until payment has been made for the first, is he intimidating B? I doubt
it But the case introduces questions not in issue here—whether a threat
in such circumstances would be justifiable and whether it is intimidation
to try to force a man into doing what the law, if invoked, would compel
him to do.

I find therefore nothing to differentiate a threat of a breach of contract
from a threat of physical violence or any other illegal threat. The nature
of the threat is immaterial, because, as Professor Hamson points out, its
nature is irrelevant to the plaintiff's cause of action. All that matters to
the plaintiff is that, metaphorically speaking, a club has been used. It does
not matter to the plaintiff what the club is made of—whether it is a physical
club or an economic club, a tortious club or an otherwise illegal club. If an



28

intermediate party is improperly coerced, it does not matter to the plaintiff
how he is coerced.

I think therefore that at common law there is a tort of intimidation and
that on the facts of this case each of the Respondents has committed it, both
individually (since the jury has found that each took an overt and active
part) and in combination with others. I must add that I have obtained no
assistance from the numerous dicta cited to show what constitutes " unlawful
" means " in the action of conspiracy. In some of the dicta the language
suggests that the means must be criminal or tortious and in others that
breach of contract would do; but in no case was the point in issue. More-
over, while a decision on that point might have been most illuminating, it
is not the point I have been considering. I have not been considering what
amounts to unlawful means in the tort of conspiracy. I am not saying
that a conspiracy to commit a breach of contract amounts to the tort of
conspiracy ; that point remains to be decided. I am saying that in the tort
of intimidation a threat to break a contract would be a threat of an illegal
act. It follows from that that a combination to intimidate by means of
a threat of a breach of contract would be an unlawful conspiracy; but it
does not necessary follow that a combination to commit a breach of contract
simpliciter would be an unlawful conspiracy.

I have now reached the Respondents' third defence and must consider
whether the Trade Disputes Act provides them with a good defence. The
Respondents have advanced two separate statutory defences, the first based
on section 1 and the second on section 3.

The argument on section 1 is that in order to find on the facts of this
case sufficient proof of the tort of intimidation, it is necessary, so it is said,
to bring in agreement or combination by the back door; and that is for-
bidden by section 1. The argument is applied in particular and in general.
In particular, it is applied in the case of Silverthorne, the Respondent who
is not an employee. He had therefore no contract to break ; he cannot
be sued (this is admittedly plain from section 3) for procuring a breach
by others; therefore the only cause of action against him is conspiracy
or joint intimidation, involving either agreement or combination. In general,
the argument is applied in the following way. To sustain the tort of
intimidation, it must be shown that there was an operative threat. Damage
is an essential part of the cause of action and it must be shown that the
damage was caused by the threat. The threat of any single man to stop
work would not have influenced B.O.A.C. It was the power of the com-
bination that did that; and that makes proof of the combination (which
section 1 will not allow) an essential part of the Appellants' cause of
action against all three Respondents.

The first part of this argument, i.e. its application in particular to
Silverthorne, in my opinion reads too much into section 1. To estab-
lish a cause of action of any sort a Plaintiff must show an injurious act.
If the act that injures him is not by itself actionable, the Plaintiff can succeed
at common law only if he shows that it was " done in pursuance of an
" agreement or combination" to injure him. He is then setting up a
Quinn v. Leathem cause of action and if that is his position, section 1
prevents him from suing. But if the injurious act is actionable without
the allegation of conspiracy, that is, if it is by itself unlawful, section 1 does
not apply at all. It does not prevent the Plaintiff from suing the doer
of the act and the conspirators, if any, as well. Section 1 does not
prevent actions of conspiracy altogether; it restricts them.

I turn now to the second part of the argument. It is true that the tort
of intimidation cannot be committed unless the intimidator has or is
believed by the party threatened to have the coercive power which is
of the essence of the tort. It may be that the power belongs to someone
else who has placed it at the disposal of the intimidator and will himself
do what the intimidator says: it is then the intimidator who is in control.
Or it may be that an intimidator will employ an agent to convey the
threat and then such a person may be a tortfeasor as well. Or it may be
that the coercive power is dispersed among many, no single man being



29

strong enough by himself. All these three alternatives involve agreement
or combination and then, however the act is done, it is done pursuant to
an agreement or a combination. When the tort is committed by a single
man, that man must be a man with enough coercive power to achieve his
object. If the necessary coercive power is dispersed, there must be agreement
or combination before it can be effectively used.

If this is accepted, as I think it should be, as a correct analysis of the
tort, the question becomes one of the true interpretation and effect of the
language of section 1. It turns on what exactly is meant by "actionable "
and what is the test of actionability to be imposed. The section may
mean that in the particular case to which it is being applied, the action
will fail unless the Plaintiff can prove that a single person has in fact
committed the tort of intimidation. Or it may mean that the nature
of the act must be such as to make it actionable even if done without any
agreement or combination. If the former view is right, then on the
assumption of fact that, as is probable, B.O.A.C. would not have been
coerced by any individual threat, this appeal must fail. If the latter is
right, it is sufficient that intimidation is not of its nature a tort that
cannot be committed by a single person and therefore it is of its nature
actionable if done without agreement or combination. After doubt and
hesitation I have reached the conclusion that the second interpretation
should be preferred. This is consistent with the view I have already
expressed about this section, namely, that its object is to exclude Quinn v.
Leathem conspiracies in trade disputes. It is distinguishing between wrongs
that can be committed singly and those that cannot.

The defence based on section 3 is also one about which I have had
much doubt and hesitation. It also turns on the interpretation and effect
of the section, the material words being " actionable on the ground only
" that ". There are two limbs in the section and I agree that " only "
covers both. The second limb can for the purposes of this case be
expressed shortly as an interference with employment. Thus the effect
of the section can be stated as follows: an act is not to be actionable
on the ground only (a) that it induces a breach of contract of employ-
ment, or (b) that it interferes with employment.

The problem of interpretation to which this section gives rise is, I
think, broadly similar to the problem created by section 1. Is it dealing
with the requisites of a cause of action in a given case or is it dealing
with the nature of the tort which it is designed to exclude? I invite your
Lordships to consider this problem first in relation to the first limb of
section 3. What are the requisites for a cause of action for inducing
a breach of contract? There must be, besides the act of inducement, know-
ledge by the defendant of the contract in question and of the fact that
the act induced will be a breach of it; there must also be malice in
the legal sense, that is, an intention to cause the breach and to injure the
plaintiff thereby and an absence of justification ; and there must be special
damage, i.e. more than nominal damage, caused to the plaintiff by the
breach. These three elements or requisites are the grounds on which an
action for inducing a breach of contract must be based. If any one of them
is missing, there is no cause of action.

If then one treats the section as dealing with the requisites of a cause
of action, one finds oneself in difficulties with the cardinal phrase " action-
able on the ground only that", This speaks of a sole ground. The
tort of inducing a breach of contract—and this is true of most torts-
is not based on a single ground. An act of inducement is not by itself
actionable. One man may induce another to take a certain course without
the least idea that the other had pledged himself not to take it: that is not
actionable at common law and needs no absolution from the statute.

What are the ways around this difficulty? One way is to refuse to recognise
it at all and to insist upon the statute being taken literally. No one would
suggest that in the present state of the common law mere inducement could
be actionable. It might perhaps be suggested, not very convincingly, that
at one time it was thought that it might be. At any rate it can be argued



30

that on its literal construction this is what the statute clearly implies. From
this it would follow that if you can add any other element to inducement,
such as knowledge or intention or malice, the act is not brought only on
the ground of inducement and therefore is not barred by the section. This
would have the startling result that an action for inducing a breach of
contract in a trade dispute could be brought notwithstanding the section.

This is an approach to the section which would certainly suit the Appellant
in the present case. For then he could say that if the addition of an element
such as knowledge, intention or malice excluded the operation of the section,
so must the addition of an element of intimidation. But if the addition
of intimidation to inducement excludes the operation of the first limb, it must
follow that the addition of intimidation to interference excludes the operation
of the second limb; and that is the result the Appellant wants to achieve.
I do not think the Appellant can succeed as easily as that because I do not
think that, If the section is dealing with the requisites of a cause of action,
it can possibly be given a literal meaning.

What alternative is there,—still on the assumption that the section is
dealing with the requisites of a cause of action? An alternative is to treat
the only ground as meaning an essential ground. This reading means that if
a plaintiff cannot establish a cause of action without setting up as part of
it an act of inducement, the action is barred by the section. If this reading
is applied to the second limb, it is fatal to the Appellant here since an
essential part of his cause of action is injury done to him by interference
with his employment.

If the section has to be interpreted on the assumption that it is dealing
with the requisites of a cause of action, this reading of it is, I think, preferable
to a literal reading. But undoubtedly it is straining the language to read
the section as if for the words " on the ground only " there was substituted
" if it is an essential ground ". The two phrases are quite different in their
import and would produce quite different results in their application to the
first limb. Suppose that a defendant slandered a plaintiff so as to induce the
plaintiff's employer by that means to dismiss him. It seems extremely unlikely
that Parliament intended to authorise the use of foul means in the furtherance
of a trade dispute. It is natural to think that the use of slander would enable
the plaintiff to sue. But if the only ground means an essential ground the
action would be prevented. For unless by chance there were some other
and unintended item of special damage arising from the slander, it would
in 1906 have been an essential ground of the plaintiff's claim that the words
used by the defendant had caused or induced his dismissal.

In the light of these considerations and having found that the proper
construction of section 1 requires one to read it as dealing with the nature
of the act and not with the requisites of a cause of action in a given case, it
is natural to ask whether " actionable " should not be given the same sort of
meaning in both sections; and whether section 3 also should not be
interpreted as dealing with the nature of the tort.

On such a reading " the ground" is not used to define an
ingredient in a tortious cause of action but to define the whole
tort by reference to the essential ground by which the tort is
usually described. Inducing a breach of contract is descriptive of a
tort which comprises all the elements of knowledge, malice, inducement
and damage. If the means of inducement are honestly persuasive and
nothing more, the inducer commits the tort of inducing a breach of contract
and nothing more. But if the means are slanderous or deceitful, he may
commit also the tort of defamation or of deceit. Then if an action is brought,
it will not be only on the ground of inducing a breach of contract but
also on the ground of slander or deceit, and the section will not prevent it.
So if the means used are intimidatory, and since it is now clear that there
is in law a tort of intimidation which is just as much separate from the tort
of inducing a breach of contract as are slander and deceit, an action is not
prevented by the section. This is the meaning that was clearly given to the
section by Loreburn L.C. in Conway v. Wade [1909] AC 506 and although



31

the passage is obiter, it is entitled to great weight. He said: " It is clear
" that, if there be threats or violence, this section gives no protection, for
" then there is some other ground of action besides the ground that 'it
" ' induces some other person to break a contract', and so forth. So far
" there is no change. If the inducement be to break a contract without
" threat or violence, then this is no longer actionable, ... In this respect
" there is a change."

I think that this is the way in which the section in its first limb deals
with the tort of inducing a breach of contract. Standing alone the tort is
insufficient where there is a trade dispute; but if the defendant has also
committed the tort of intimidation, he can be sued. It does not matter that
what was achieved by the intimidation was a breach of contract.

The same reasoning must, I think, be applied to the second limb, if it
is assumed (as I shall start by assuming) that there is a tort of malicious
interference with trade, business or employment. The section must be
designed to deal with both torts in the same way. If as a result of the
Respondents' action B.O.A.C., instead of giving the Appellant lawful notice
had dismissed him summarily, it would follow that he could have sued the
Respondents for intimidation, though not for inducing a breach of contract,
and it would be no answer to say that the damage was done by means of
a breach of the contract of employment. As they gave him lawful notice,
it must follow that the Appellant can sue for intimidation, though not for
malicious interference; and likewise it is no answer to say that the damage
was done by means of interference with his employment.

What is said to be fatal to this reasoning is that there is in law no such
tort as the tort of malicious interference done by a single person. Parlia-
ment, it is argued, cannot have intended to take away by statute a right of
action that does not exist at common law. So the second limb, notwith-
standing that there is no hint in the section of any different approach to it,
cannot be construed in the same way as the first, and some other meaning
must be found for it. What is suggested is, that since interference is not by
itself actionable at common law, you must find some other element that
added to interference makes it actionable at common law, and then you
must give effect to the section by construing it as taking away that right
of action. This other element is intimidation. One might comment that
the other element might as well be said to be deceit or slander. For since
your Lordships have decided that intimidation is as much an independent
tort as deceit or slander, there seems no reason for selecting it alone as the
cause of action that is negatived. But perhaps because it is more closely
connected with interference than deceit or slander is, it is the one that the
argument in fact selects.

In order to weigh the merits of this argument, I do not think that it is
necessary for the House to decide whether or not malicious interference by
a single person with trade, business or employment is or is not a tort known
to the law. But I must at least say what I mean by such a tort. I mean,
putting it shortly, Quinn v. Leathem without the conspiracy. If one man,
albeit by lawful means, interferes with another's right to earn his living or
dispose of his labour as he wills and does so maliciously, that is, with intent
to injure without justification, he is, if there is such a tort, liable in just
the same way as he would undoubtedly be liable if he were acting in com-
bination with others. The combination aggravates but is not essential.

As I say, I do not think your Lordships need decide this point. You
are considering the construction of a statute passed in 1906 and endeavouring
to interpret it in the light of what Parliament must be taken to have intended.

If men were to be fully protected when they acted in furtherance of a trade
dispute, they must be protected against what might well happen to them if
they acted in a certain way as well as against what inevitably would happen
to them. Your Lordships do not therefore have to consider what the law
is but what in 1906 Parliament might reasonably have thought it to be.
Parliament, there can be no doubt at all, intended that Quinn v. Leathem
should not apply to trade disputes. If it was perfectly clear in 1906 that the
decision in Quinn v. Leathem depended on the element of conspiracy,



32

section 1 of the Act got rid of it. But if conspiracy was not essential to the
decision, something more was necessary: and that something more is supplied
by the second limb of section 3. Moreover, the method chosen is that
which one would expect Parliament in such circumstances to use. Statutes
are not in this respect expressed conditionally. The draftsman cannot be
expected to say by way of preface: " If it be held that interference is wrong-
" ful ". He would assume for the purpose of the enactment that it was.
If it was not, the enactment would be otiose but harmless; if it was, the
enactment would achieve the object desired.

I am not at all sure that it can be said even now with certainty what
Quinn v. Leathem decided ; but I am quite sure that in 1906 the matter was
still in doubt. This can be shewn by citations from three cases in this
House, Conway v. Wade, Sorrell v. Smith [1925] A.C. 700, and Crofter Hand
Woven Harris Tweed Co., Ltd. v. Veitch [1942] A.C.

In Conway v. Wade Loreburn L.C., speaking of the second limb of
section 3 and following on the passage I have already cited from his speech,
said: " If there be no threat or violence, and no breach of contract, and yet
" there is ' an interference with the trade, business, or employment of some
" ' other person, or with the right of some other person to dispose of his
" ' capital or his labour as he wills,' there again there is perhaps a change.
" It is not to be actionable, provided that it was done ' in contemplation or
" ' furtherance of a trade dispute '." The material words in this passage are
" perhaps a change". Lord Loreburn is there saying that interference
without threat or violence or breach of contract, might perhaps have been
actionable at common law ; and if so, the statute takes the right of action
away.

In Sorrell v. Smith three of your Lordships treated the point as doubtful.
Cave, L.C., with whom Lord Atkinson concurred, said at p. 713 :—" It does
" not necessarily follow that the existence of a combination is essential to
" the commission of the offence. There is some authority for the view that
" what is unlawful in two is not lawful in one.". Lord Sumner at p. 739
said: —" As to the part which combination or concerted action plays in an
" alleged tort of this kind, I think that this is not the occasion for expressing
" any decided opinion ". He went on to indicate that there was a good deal
to be said for thinking that combination in such a connection was really
only a particular form of intimidation.

Lord Dunedin on the other hand at 719. approving what Atkin, L.J.
had said in Ware & de Freville v. Motor Trade Association [1921] 3 K.B. 40
was quite clear that a lawful act done by one did not become
unlawful if done with intent to injure, whereas an otherwise lawful act done
by two or more did become unlawful if done with that intent. He said
that conspiracy was " the very gist and essence of the decision " in Quinn
v. Leathem. But, he said, the contrary view had not only been stated but
had gained many adherents ; and indeed he described it as " the leading
" heresy ".

In the Harris Tweed case at 487 Lord Porter said: —" More difficulty is
" to be found in explaining Quinn v. Leathem. Why should a combination
" to injure be actionable, whilst action taken by a single person for that
" purpose, and for that purpose only, is permissible? In Sorrell v. Smith,
" 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 ".

I have therefore reached the conclusion that the true effect of section 3
is that in a trade dispute it deprives the Plaintiff of any cause of action he
may have on the facts for inducing a breach of contract and any cause of
action he may have on the facts or in law for interference with his employ-
ment by lawful means; but that in neither case does it countenance the use
of tortious means. So the Plaintiff's cause of action in intimidation is not
barred by the statute.

33

This leads to the conclusion that this appeal should succeed. But there
is one argument, or at least one consideration, that remains to be noticed.
It is that the strike weapon is now so generally sanctioned that it cannot
really be regarded as an unlawful weapon of intimidation; and so there
must be something wrong with a conclusion that treats it as such. This
thought plainly influenced quite strongly the judgments in the Court of
Appeal. To give effect to it means either that illegal means ought not to
include a breach of contract; or that the statute ought to be construed as
wide enough to give protection. The Court of Appeal tended, I think, to
apply the argument to both points indiscriminately.

I see the force of this consideration. But your Lordships can, in my
opinion, give effect to it only if you are prepared either to hobble the common
law in all classes of disputes lest its range is too wide to suit industrial
disputes or to give the statute a wider scope than it was ever intended to
have.

As to the former alternative, I cannot doubt that the threat of a breach
of contract can be a most intimidating thing. The present case provides
as good an example of the force of such a threat as could be found. A
great and powerful corporation submits to it at once, for it was threatened
with the infliction of incalculable loss and of grave inconvenience to the
public which it serves. The threat is made by men who are flagrantly
violating a pledge not to strike, at least until constitutional means of
resolving the dispute have been exhausted. It is not just a technical
illegality, a case in which a few days longer notice might have made the
difference. Because of the damage that would ensue from a strike, B.O.A.C.,
no doubt in return for corresponding benefits, secured the pledge not to
strike; and it is that pledge that is being broken. Granted that there
is a tort of intimidation, I think it would be quite wrong to cripple the
common law so that it cannot give relief in these circumstances. I think it
would be oldfashioned and unrealistic for the law to refuse relief in
such a case and to grant it where there is a shake of a fist or a threat to
publish a nasty and untrue story.

I said that I thought it would be wrong to cripple the common law
in such a case, but that does not mean that I am necessarily criticising
the policy of the Trades Disputes Act. It is easy now to see that Parlia-
ment in 1906 might have felt that the only way of giving labour an
equality of bargaining power with capital was to give it special immunities
which the common law did not permit. Even now, when the scales have
been redressed, it is easy to see that Parliament might think that a strike,
whether reprehensible or not, ought not to be made a ground for litigation
and that industrial peace should be sought by other means.

It may therefore as a matter of policy be right that a breach of contract
should not be treated as an illegal means within the limited field of industrial
disputes. But can your Lordships get that out of the words of the Act?
Section 3 gives immunity from action for procuring a breach of contract but
not for the breach itself. In the Court of Appeal Donovan L.J. said with
great force: —" If one may procure the breach of another's contract with
" impunity in a trade dispute, it is certainly odd if one cannot even threaten
" to break one's own ". The section could easily have read—" shall not
" be actionable on the ground only that it is a breach of contract or induces
"some other person" etc.; but it is not so written. It may be that, as
Mr. Gardiner suggests, Parliament thought it very unlikely that an employer
would resort to action against workmen individually for breaches of contract
and that he would get very little from it if he did: see on this point National
Coal Board v. Galley [1958] 1 W.L.R., 16, at 27. Or it may be that
Parliament did not anticipate that a threat of breach of contract would be
regarded as an intimidatory weapon. Whatever the reason, the immunity
is not in the Statute; the section clearly exempts the procurer or inducer
and equally clearly does not exempt the breaker. It is not suggested
that the House can remove the oddity by reading words into the Act that
are not there.

34

So your Lordships cannot construe the Act to give protection in the ease
of a threat of a breach of contract unless you also make it wide enough to
protect the threatener of physical violence. The Act was no doubt intended
to give immunity for all forms of peaceful persuasion, but I am sure—and
Loreburn, L.C. in the passage I have cited from Conway v. Wade says as
much—that it was not intended to give protection from violent persuasion.
I do not think it would be right so as to construe it. It would mean that
under the licence of a trade dispute one man could force another out of his
job by threats of violence; and since such threats would not be actionable,
I doubt if an aggrieved party could even get an injunction to restrain their
constant repetition.

The essence of the difficulty lies in the fact that in determining what
constitutes the tort of intimidation your Lordships have drawn the dividing
line not between physical and economic coercion but between lawful and
unlawful coercion. For the universal purposes of the common law, I am
sure that that is the right, natural and logical line. For the purpose of the
limited field ot industrial disputes which is controlled by statute and
where much that is in principle unlawful is already tolerated, it may be
that pragmatically and on grounds of policy the line should be drawn
between physical and economic pressure. But that is for Parliament to
decide. What the House said in Vacher & Sons, Ltd. v. London Society of
Compositors [1913] AC 107, especially per Lord MacNaghten at 118, is
a very clear warning, if one be needed, against the interference of the courts
in matters of policy in this branch of the law.

In my opinion therefore the appeal should succeed and the judgment of
Sachs. J. on liability should be restored. Mr. Gardiner has submitted
that it ought not to be restored in its entirety. He asks for a new trial
on damages on the ground that the learned judge misdirected the jury on
this issue. The cardinal feature of the summing-up on this part of the case
was a direction to the jury that they might (Mr. Gardiner submits that it
amounted almost to " must") award exemplary damages and your Lordships
have therefore listened to a very penetrating discussion about the nature
of exemplary damages and the circumstances in which an award is appro-
priate. The Court of Appeal, having found for the Respondents on
liability did not consider this issue, so your Lordships must begin at the
beginning.

Exemplary damages are essentially different from ordinary damages. The
object of damages in the usual sense of the term is to compensate. The
object of exemplary damages is to punish and deter. It may well be thought
that this confuses the civil and criminal functions of the law; and indeed,
so far as I know, the idea of exemplary damages is peculiary to English law.
There is not any decision of this House approving an award of exemplary
damages and your Lordships therefore have to consider whether it is open
to the House to remove an anomaly from the law of England.

It must be remembered that in many cases of tort damages are at large,
that is to say, the award is not limited to the pecuniary loss that can be
specifically proved. In the present case, for example, and leaving aside any
question of exemplary or aggravated damages, the Appellant's damages
would not necessarily be confined to those which he would obtain in an
action for wrongful dismissal. He can invite the jury to look at all the
circumstances, the inconvenience caused to him by the change of job and
the unhappiness maybe by a change of livelihood. In such a case as this,
it is quite proper without any departure from the compensatory principle
to award a round sum based on the pecuniary loss proved.

Moreover, it is very well established that in cases where the damages are
at large the jury (or the judge if the award is left to him) can take into
account the motives and conduct of the defendant where they aggravate the
injury done to the plaintiff. There may be malevolence or spite or the
manner of committing the wrong may be such as to injure the plaintiff's
proper feelings of dignity and pride. These are matters which the jury can
take into account in assessing the appropriate compensation. Indeed, when



35

one examines the cases in which large damages have been awarded for
conduct of this sort, it is not at all easy to say whether the idea of compensa-
tion or the idea of punishment has prevailed.

But there are also cases in the books where the awards given cannot be
explained as compensatory, and I propose therefore to begin by examining
the authorities in order to see how far and in what sort of cases the exemplary
principle has been recognised. The history of exemplary damages is briefly
and clearly stated by Professor Street in his recent work on the law of
damages at page 28. They originated just 200 years ago in the cause
celebre of John Wilkes and the North Briton in which the legality of a
general warrant was successfully challenged. Mr. Wilkes' house had been
searched under a general warrant and the action of trespass which he
brought as a result of it is reported in Wilkes v. Wood (1763) Lofft, 1.
Serjeant Glynn on his behalf asked at page 3 for " large and exemplary
" damages" since trifling damages, he submitted, would put no stop at
all to such proceedings. Pratt, C.J., in his direction to the jury said at 18:—
" Damages are designed not only as a satisfaction to the injured person, but
" likewise as a punishment to the guilty, to deter from any such proceeding
" for the future, and as a proof of the detestation of the jury to the action
" itself ". The jury awarded £1,000. It is worth noting that at page 19 the
Chief Justice referred to " office precedents " which, he said, were not
justification of a practice in itself illegal, though they might fairly be
pleaded in mitigation of damages. This particular direction exemplifies
very clearly his general direction, for a consideration of that sort could have
no place in the assessment of compensation.

In Huckle v. Money (1763) 2 Wils. K.B. 205 the plaintiff was a journeyman
printer who had been taken into custody in the course of the raid on the
North Briton. The issue of liability having already been decided the only
question was as to damages and the jury gave him £300. A new trial was
asked for on the ground that this figure was " most outrageous ". The
plaintiff was employed at a weekly wage of one guinea; he had been in
custody for only about 6 hours and had been used " very civilly by treating
" him with beefsteaks and beer ". It seems improbable that his feelings of
wounded pride and dignity would have needed much further assuagement;
and indeed the Chief Justice said that the personal injury done to him
was very small, so that if the jury had been confined by their oath to
consider mere personal injury only, perhaps £20 would have been thought
sufficient. But they had done right in giving exemplary damages. The
award was upheld.

In Benson v. Frederick (1766) 3 Burr. 1845 the Plaintiff a common
soldier, obtained damages of £150 against his Colonel who had ordered
him to be flogged so as to vex a fellow officer. Mansfield C.J. said that
the damages " were very great, and beyond the proportion of what the man
" had suffered ". But the sum awarded was upheld as damages in respect
of an arbitrary and unjustifiable action and not more than the defendant
was able to pay.

These authorities clearly justify the use of the exemplary principle; and
for my part I should not wish, even if I felt at liberty to do so, to diminish
its use in this type of case where it serves a valuable purpose in restraining
the arbitrary and outrageous use of executive power.

Some considerable time elapsed thereafter before the principle eo nomine
was extended in other directions. Six cases, decided in the course of the
next century, have been cited to your Lordships but in none of them was
there any clear ruling. They are Tullidge v. Wade (1769) 3 Wils. K.B. 18,
Leith v. Pope (1779) 2 Black. W. 1327, Merest v. Harvey (1814) 5 Taunton
442, Sears v. Lyons (1818) 2 Stark. 317, Williams v. Curry (1845) 1 C.B.
841 and Emblen v. Myers (1860) 6 H & N 54. They cover seduction,
malicious prosecution and trespass.

It is only in the first and last of these six cases that there is any express
reference to the exemplary or punitive principle. In the first of them, the
seduction case, Wilmot, C.J. said that actions of this sort were brought for



36

example's sake. In the last of them, Wilde, B. at the trial directed the
jury that they might find exemplary damages; and in the argument
on the rule nisi a dictum of Church, J. in the Supreme Court of the United
States was used in which he said: —" There is no principle better estab-
" lished, and in practice more universal, than that vindictive damages or
" smart money may be and is awarded by the verdict of juries." But the
verdict was upheld without recourse to the principle. The other four
cases are cited because they show that the jury was permitted to consider
matters which would not ordinarily be admissible in assessments of
compensation; and in at least two of them, Leith v. Pope and Merest v.
Harvey, the sums awarded were so large as to suggest that they were intended
to be punitive.

It is not until Bell v. Midland Railway Company (1861) 10 C.B. (N.S.)
287, that there is a clear dictum. The plaintiff brought an action against
the railway company for wrongful obstruction of access from the railway
to his wharf. It does not appear that at the trial exemplary damages were
asked for, and it appears at 295 that Erle C.J. at the trial told the jury to
confine the damages to pecuniary loss proved. The jury appears to have
gone beyond that and awarded £1000. In the argument on the rule nisi
Erle C.J. said at 304 that when the company's conduct was looked at, care-
less whether they were doing right or wrong, they prevented all access to
the plaintiff's wharf for the purpose of extinguishing his trade and advancing
their own profit. He was therefore entitled to ample compensation and
£1000 was very temperate. Willes J. said at 307:—"I must say, that, if
" ever there was a case in which the jury were warranted in awarding
" damages of an exemplary character, this is that case. The defendants
" have committed a grievous wrong with a high hand and in plain violation
" of an Act of Parliament; and persisted in it for the purpose of destroying
" the plaintiff's business and securing gain to themselves. If it were neces-
" sary to cite any authority for such a position, it will be found in the case
" of Emblen v. Myers which I cite only for illustration."

In more recent times there are three obiter dicta of importance in the
Court of Appeal in which the principle has been recognised, namely, Bowen
L.J. in Whitham v. Kershaw (1885) 16 Q.B.D. 613 at 618 and in Finlay
v. Chirney (1888) 20 QBD 494 at 504 and by Scott L.J. in Dumbell v.
Roberts [1944] 1 All E.R., 326, at 330. McCardie J. in Butterworth v.
Butterworth [1920] p. 126 also obiter, expounded the principle. There are
three cases in the Court of Appeal in which the principle has been stated
and applied.

In Owen v. Reo (1934) 151 L.T. 274 the plaintiff, a motor dealer, had on
his premises for display a chassis belonging to the defendants which they
were at liberty to remove at any time except that it was specially provided
that if the plaintiff had constructed a body on the vehicle he should be at
liberty to dismantle it before removal. The defendants without notice to the
plaintiff entered his garage, took the chassis and dismantled the body in the
street, the process being observed by some members of the public including
one of the plaintiff's creditors. It does not appear that any injury was done
to the plaintiff's property but the Court of Appeal said it was a case for
exemplary damages and awarded £100.

Loudon v. Ryder [1953] 2 Q.B. was a case of trespass and assault.
The plaintiff was a young girl and the defendant broke into her flat and tried
to turn her out. Her injuries were comparatively trivial but his behaviour
was outrageous. The jury awarded her £1500 damages for trespass, and a
£1000 for assault; and £3000 as exemplary damages, making £5500 in all.
This award was upheld in the Court of Appeal.

In Williams v. Settle [1960] 1 W.L.R. 1072 the defendant was a professional
photographer who had taken photographs of the plaintiff's wedding, the
copyright being vested in the plaintiff. Two years later, when an event had
occurred which caused the plaintiff to be exposed to publicity, the defendant
sold the photographs to two national newspapers and their publication
caused the plaintiff great distress. The County Court judge awarded the



37

plaintiff £1,000 damages for breach of copyright. This award was upheld
in the Court of Appeal and in both courts it was described as one of
exemplary damages. The Court of Appeal considered that exemplary
damages could have been awarded at common law but they relied also
on the Copyright Act, 1956, sec. 17 (3) which provides that the court may
have regard to the flagrancy of the infringement and to any benefit shewn
to have accrued to the defendant by reason of the infringement and if
satisfied that effective relief would not otherwise be available to the plaintiff
may award such additional damages as it considers appropriate.

My Lords, I express no view on whether the Copyright Act authorises
an award of exemplary, as distinct from aggravated, damages. But there
are certainly two other Acts of Parliament which mention exemplary
damages by name. The law Reform (Miscellaneous Provisions) Act, 1934,
sec. 1 (2) (a) provides that where a cause of action survives for the benefit
of the estate of a deceased person, the damages recoverable shall not include
any exemplary damages. The Reserve and Auxiliary Forces (Protection of
Civil Interests) Act, 1953, sec. 13 (2) provides that in any action for
damages for conversion in respect of goods falling within the statute the
court may take into account the defendant's conduct and award exemplary
damages.

These authorities convince me of two things. First, that your Lordships
could not without a complete disregard of precedent, and indeed of statute,
now arrive at a determination that refused altogether to recognise the
exemplary principle. Secondly, that there are certain categories of cases
in which an award of exemplary damages can serve a useful purpose
in vindicating the strength of the law and thus affording a practical
justification for admitting into the civil law a principle which ought
logically to belong to the criminal. I propose to state what these two
categories are ; and I propose also to state three general considerations
which in my opinion should always be borne in mind when awards of
exemplary damages are being made. I am well aware that what
I am about to say will, if accepted, impose limits not hitherto expressed
on such awards and that there is powerful, thought not compelling, authority
for allowing them a wider range. I shall not therefore conclude what I
have to say on the general principles of law without returning to the
authorities and making it clear to what extent I have rejected the guidance
they may be said to afford.

The first category is oppressive, arbitrary or unconstitutional action by
the servants of the government. I should not extend this category,—I say
this with particular reference to the facts of this case,—to oppressive action
by private corporations or individuals. Where one man is more powerful
than another, it is inevitable that he will try to use his power to gain his
ends ; and if his power is much greater than the other's, he might perhaps be
said to be using it oppressively. If he uses his power illegally, he must of
course pay for his illegality in the ordinary way ; but he is not to be punished
simply because he is the more powerful. In the case of the government it
is different, for the servants of the government are also the servants of the
people and the use of their power must always be subordinate to their duty
of service. It is true that there is something repugnant about a big man
bullying a small man and very likely the bullying will be a source of humilia-
tion that makes the case one for aggravated damages, but it is not in my
opinion punishable by damages.

Cases in the second category are those in which the Defendant's conduct
has been calculated by him to make a profit for himself which may well
exceed the compensation payable to the plaintiff. I have quoted the dictum
of Erle C.J. in Bell v. The Midland Railway Company. Maule J. in
Williams v. Curry, at page 848, suggests the same thing; and so does
Martin B. in an arbiter dictum in Crouch v. Great Northern Railway Com-
pany, [1856] 11 Ex. 742, at 759. It is a factor also that is taken into account
in damages for libel; one man should not be allowed to sell another man's
reputation for profit. Where a Defendant with a cynical disregard for a



38

Plaintiff's rights has calculated that the money to be made out of his wrong-
doing will probably exceed the damages at risk, it is necessary for the law
to show that it cannot be broken with impunity. This category is not con-
fined to moneymaking in the strict sense. It extends to cases in which the
Defendant is seeking to gain at the expense of the Plaintiff some object,—
perhaps some property which he covets,—which either he could not obtain
at all or not obtain except at a price greater than he wants to put down.
Exemplary damages can properly be awarded whenever it is necessary to
teach a wrongdoer that tort does not pay.

To these two categories which are established as part of the common
law there must of course be added any category in which exemplary damages
are expressly authorised by statute.

I wish now to express three considerations which I think should always
be borne in mind when awards of exemplary damages are being considered.
First, the Plaintiff cannot recover exemplary damages unless he is the victim
of the punishable behaviour. The anomaly inherent in exemplary damages
would become an absurdity if a Plaintiff totally unaffected by some oppres-
sive conduct which the jury wished to punish obtained a windfall in
consequence.

Secondly, the power to award exemplary damages constitutes a weapon
that, while it can be used in defence of liberty, as in the Wilkes cases, can
also be used against liberty. Some of the awards that juries have made in
the past seem to me to amount to a greater punishment than would be likely
to be incurred if the conduct were criminal ; and moreover a punishment
imposed without the safeguard which the criminal law gives to an offender.
I should not allow the respect which is traditionally paid to an assessment of
damages by a jury to prevent me from seeing that the weapon is used
with restraint. It may even be that the House may find it necessary to
follow the precedent it set for itself in Benham v. Gambling, and place some
arbitrary limit on awards of damages that are made by way of punishment.
Exhortations to be moderate may not be enough.

Thirdly, the means of the parties, irrelevant in the assessment of com-
pensation, are material in the assessment of exemplary damages. Every-
thing which aggravates or mitigates the Defendant's conduct is relevant.

Thus a case for exemplary damages must be presented quite differently
from one for compensatory damages ; and the judge should not allow it to
be left to the jury unless he is satisfied that it can be brought within the
categories I have specified. But the fact that the two sorts of damage
differ essentially does not necessarily mean that there should be two awards.
In a case in which exemplary damages are appropriate, a jury should be
directed that if, but only if, the sum which they have in mind to award as
compensation (which may of course be a sum aggravated by the way in
which the Defendant has behaved to the Plaintiff) is inadequate to punish
him for his outrageous conduct, to mark their disapproval of such conduct
and to deter him from repeating it, then it can award some larger sum. If a
verdict given on such direction has to be reviewed upon appeal, the appellate
court will first consider whether the award can be justified as compensation
and if it can there is nothing further to be said. If it cannot, the court must
consider whether or not the punishment is in all the circumstances excessive.
There may be cases in which it is difficult for a judge to say whether or not
he ought to leave to the jury a claim for exemplary damages. In such
circumstances and in order to save the possible expense of a new trial, I see
no objection to his inviting the jury to say what sum they would fix as
compensation and what additional sum, if any, they would award if they
were entitled to give exemplary damages. That is the course which he
would have to take in a claim to which the Law Reform Act, 1934 applied

I must now return to the authorities I have already reviewed and make
quite plain what it is that I have not accepted from them. As I have said,
damages that are at large can always be fixed as a round sum. Some juries
have in the past been very liberal in their ideas of what a round sum should



39

be and the courts which have always been very reluctant to interfere with
awards of damages by a jury, have allowed very liberal awards to stand.
Williams v. Curry might on one view be regarded as a rather extreme example
of this. It would not be right to take the language that judges have used
on such occasions to justify their non-intervention and treat their words as a
positive formulation of a type of case in which exemplary damages can be
awarded. They have used numerous epithets—wilful, wanton, high-handed,
oppressive, malicious, outrageous—but these sorts of adjectives are used in
die judgments by way of comment on the facts of a particular case. It would
on any view be a mistake to suppose that any of them can be selected as
definitive and a jury directed, for example, that it can award exemplary
damages whenever it finds conduct that is wilful or wanton.

But when this has been said, there remains one class of case for which the
authority is much more precise. It is the class of case in which the injury
to the plaintiff has been aggravated by malice or by the manner of doing the
injury, that is, the insolence or arrogance by which it is accompanied. There
is clear authority that this can justify exemplary damages, though (except in
Loudon v. Ryder) it is not clear whether they are to be regarded as in addition
to, or in substitution for, the aggravated damages that could certainly be
awarded.

It is not, I think, authority of great antiquity. The older group of six
cases which I have cited, beginning with Tullidge v. Wade, discloses no
statement of principle. In my opinion all these cases can best be explained
in principle as cases of aggravated damage, though I am not saying that in all
the cases the sums awarded can be taken as an example of what compensatory
damages ought to be. The direct authority for exemplary damages in this
category of case lies in the three modern decisions of the Court of Appeal.
I think that your Lordships, if you agree with my conclusion, are bound to
express your dissent from most of the reasoning in all of them. Owen v.
Reo and Williams v. Settle, even if the latter is considered apart from the
Copyright Act, can be justified in the result as cases of aggravated damage ;
and indeed the sums awarded could, to my mind, more easily be justified on
that ground than on the ground that they were exemplary. Loudon v. Ryder
ought, I think, to be completely overruled. The sums awarded as com-
pensation for the assault and trespass seem to me to be as high as, if not
higher than, any jury could properly have awarded even in the outrageous
circumstances of the case ; and I can see no justification for the addition of an
even larger sum as exemplary damages. The case was not one in which
exemplary damages ought to have been given as such.

This conclusion will, I hope, remove from the law a source of confusion
between aggravated and exemplary damages which has troubled the learned
commentators on the subject. Otherwise, it will not, 1 think, make much
difference to the substance of the law or rob the law of the strength which
it ought to have. Aggravated damages in this type of case can do most, if
not all, of the work that could be done by exemplary damages. In so far
as they do not, assaults and malicious injuries to property can generally be
punished as crimes, whereas the objectionable conduct in the categories in
which I have accepted the need for exemplary damages are not, generally
speaking, within the criminal law and could not, even if the criminal law
was to be amplified, conveniently be defined as crimes. I do not care for the
idea that in matters criminal an aggrieved party should be given an option
to inflict for his own benefit punishment by a method which denies to the
offender the protection of the criminal law.

Finally on this point I think that the conclusion which I have expressed
obtains strong support from the speech of Lord Atkin in Ley v. Hamilton
(1935) 153 L.T. 384 at 386. Speaking of damages for defamation Lord Atkin
said that they were not arrived at " by determining the ' real' damage and
" adding to that a sum by way of vindictive or punitive damages. It is
" precisely because the ' real' damage cannot be ascertained and established
" that the damages are at large. It is impossible to track the scandal, to
" know what quarters the poison may reach; it is impossible to weigh at all



40

" closely the compensation which will recompense a man or a woman for
" the insult offered or the pain of a false accusation. No doubt in newspaper
" libels juries take into account the vast circulations which are justly claimed
" in present times. The ' punitive ' element is not something which is or can
" be added to some known factor which is non-punitive ".

I do not think that Lord Atkin means that a sum awarded as punishment
can be arrived at in just the same way as a sum awarded as compensation.
Clearly they are different and, as the authorities I have cited on means and
mitigation show, must be arrived at in different ways. Lord Atkin puts
" punitive" in inverted commas. " So-called punitive" is what I think
he means ; and read in that way the passage is strong authority for the view
that insult offered and pain given are matters for compensation and not
for punishment.

I turn at last to the summing-up in this case. In the light of the general
principles which I have endeavoured to state, I think it is plain that the
summing-up can be extensively criticised. This is not the fault of the
learned judge. It does not appear that any argument was addressed to him
about the principles on which exemplary damages ought to be awarded and
anyway he would have felt himself bound by authorities which do not tie
your Lordships. It may be that the judge who presided at the trial of
Loudon v. Ryder can be exculpated on the same ground. In this House the
submissions have been so far ranging that I think your Lordships might
well have refused to have listened to them. But there were also submissions
about points of detail which the defendants was undoubtedly entitled to
make. If they succeeded, the House could give effect to them only by
ordering a new trial on the issue of damages. In that event the House
would have had to have given some guidance to the judge at the new trial
as to the principles on which he should direct the jury. Your Lordships
therefore thought it wise to open up the whole matter for argument and to
deal by means of an appropriate order as to costs with the plaintiff's
complaints that the defendants' submissions of law before the House were
far wider than anything that was addressed to the learned judge. I may
observe that the House is dealing only with points of law. Your Lordships
have not had to consider the evidence. The question is simply whether or
not on the facts so far as they emerge from the summing-up the learned
judge misdirected the jury in law.

The basis of the summing-up was a direction that any deliberate illegality
might be punished by exemplary damages. Here the defendants had
deliberately and knowingly broken their contracts with B.O.A.C. The case
against them was that they had sought to achieve their ends by a wildcat
strike—a flagrant use of illegal force. Their answer was that they were
provoked into this by the conduct of the plaintiff in endangering their
closed shop understanding with B.O.A.C.

It is unnecessary to quote numerous extracts from the summing-up. The
direction to the jury is crystallised in one passage at the end of it as follows.
" There it is. You have to consider, in relation to exemplary damages,
" whether this was a deliberately engineered unofficial ' wildcat' strike,
" forced by these three to use, at all costs, an illegal pressure, and whether
" on the other hand there was provocation, which could be reasonably
" regarded as provocation for that line of conduct."

My Lords, it must be plain from what I have said already that I regard
this direction as far too wide. If it does not mean that exemplary damages
can be given for every act of deliberate illegality, it certainly means that
the tort of intimidation is always punishable in that way. Mr. Gardiner
has submitted that it was virtually a direction to the jury that, the tort
of intimidation having been proved, the jury was bound to give exemplary
damages unless they thought that the Appellant by his provocative conduct
had brought it all on himself. I think that this criticism is substantially
justified.

There is nothing to bring the case within the first category I have men-
tioned. In my opinion, the facts disclosed in the summing-up do not



41

show any case for exemplary damages. It may be said by those who have
no sympathy with their actions that the Respondents and their supporters
acted oppressively but, for the reasons I have given, this is not the sort
of oppression that comes within the first category.

I doubt whether the facts disclosed in the summing-up show even a case
for aggravated damages ; a different impression may be obtained when
the facts are fully displayed upon a new trial. At present there seems to
be no evidence that the Respondents were motivated by malevolence or
spite against the Appellant. They wronged him not primarily to hurt him
but so as to achieve their own ends. If that had not been their dominating
motive, then what they did would not have been done in furtherance
of a trade dispute and the whole case has been fought on the basis that
it was. It is said that they persisted in believing that their closed shop
position was endangered by the Appellant's conduct even when their
official leaders told them that it was not. Be it so; pig-headedness will
not do. Again, in so far as disclosed in the summing-up there was no
evidence of offensive conduct or of arrogance or insolence. It was, I think,
suggested that some impolite observations were made about the Appellant,
but that is not enough ; in a dispute of this sort feelings run high and
more than hard words are needed for aggravated damages. Mr. Silkin
relied strongly on the flagrant breach of contract with B.O.A.C., and the
Respondents' open disregard of their pledges and their lack of consideration.
But this was not conduct that affected the Appellant. He was no more
distressed or humiliated by it than any of B.O.A.C.'s passengers whose
convenience, it might be said, and interests were brushed aside by the
Respondents in their determination to secure their object.

In short, I think it might very well be that if your Lordships had had
the whole of the evidence in front of you, you would have been able
to declare that on a new trial the judge should direct the jury to give
no more than that rounded figure which I have already described. I have
said as much as this because I feel that saying it may help the parties
at the end of these protracted proceedings to agree upon a figure of
damage. But I have not intended to say anything that would in any way
prejudge the character of the directions about aggravated damages which
the judge upon a new trial, if there has to be one, thinks it right to give
when he has all the material before him.

I agree with the order proposed by the noble lord on the Woolsack.

Lord Pearce

My lords,

I agree with your Lordships and with the Courts below that the tort of
intimidation has been shewn to exist both on principle and on the authorities
which are fully set out in the judgment of Pearson L.J. There would be a
strange gap in the Common Law if it provided no such remedy.

The more difficult problem is whether the threat of a mere breach of
contract can suffice to support that tort. Lord Dunedin in Sorrell v. Smith
[1925] A.C. 700, at 718 resolved certain disharmonies of the famous trio of
cases as follows :—

" In the first place, everyone has the right to conduct his own business
" upon his own lines, and as suits him best, even although the result
" may be that he interferes with other people's business in so doing.
" That general proposition. I think, may be gathered from the Mogul
" case. Secondly, an act that is legal in itself will not be made illegal
" because the motive of the act may be bad. That is the result, I think,
" of Allen v. Flood. Thirdly, even although the dominating motive in
" a certain course of action may be the furtherance of your own business
" or your own interests, as you conceive those interests to lie, you are
" not entitled to interfere with another man's method of gaining his



32227 A 12

42

" living by illegal means, and illegal means may either be means that
" are illegal in themselves or that may become illegal because of con-
" spiracy where they would not have been illegal if done by a single
" individual. I think that is the result of Quinn v. Leathem ".

The question whether " means that are illegal in themselves" include
threats of breach of contract is not directly covered by authority except in
the two Irish cases Cooper v. Millea 1938 I.R 749 and Riordan v. Butler
1940 I.R 347, which held that a threatened breach of contract constituted
illegal means. In your Lordships' House there have been dicta which each
side has called in aid but there has been no dictum which was, I think,
intending to give an answer to this particular question.

In Allen v. Flood [1898] AC 1 at 121 Lord Herschell pointed out thai
there was a " chasm " between cases where the act induced was a breach of
contract and cases where that act was the not entering into a contract.
If a breach of contract must be classified as either lawful or unlawful in this
context, it lies less uneasily in the latter class than in the former. As
between the parties a breach of contract is an unlawful act and creates a
legal wrong ; a party has no right to break his contract even if he offers to
pay damages (unless, of course, the contract so provides). See per Lord
Lindley in South Wales Miners' Federation v. Glamorgan Coal Company
([1905] AC 239 at 253) and Lord Watson in Allen v. Flood ([1898] A.C.l
at 96).

Somewhere one must draw the line between pressure or coercion that may
be permitted and that which may not. It is logical for the law to say that
while a man may threaten to use all the means to which he is strictly entitled
by law in order to encompass another's injury deliberately, yet he shall not
threaten to use any means to which he is not so entitled. It is less logical
to say that in order to injure another he may with impunity use all means
to which he is strictly entitled and may with impunity also threaten to break
a contract which he is not by law entitled to do, but that he shall not
threaten to commit any tort. Moreover, to draw the line at that point,
namely between contract and tort, seems to me inconsistent with the principle
that underlies Lumley v. Gye (2 E. and B. 216).

Businesses are run on the basis of contracts. The threat by an important
supplier to withhold the supplies under a long term contract on which a
manufacturer relies might be tantamount to a threat of ruin and compel
him to accede to the supplier's demands. It would seem strange if the lav,
should disregard intimidation by such potent contractual weapons, while
taking cognisance of intimidation by less potent tortious weapons. Nor do
I think that the principle of Dunlop v. Selfridge ([1915] AC 847) leads to
such a conclusion. To sue in respect of a contract to which the Plaintiff is
not a party is very different from suing for injury deliberately caused to the
Plaintiff by improper pressure and abuse of such a contract. In estimating
whether pressure by a threat is permissible or not it is the relationship
between the threatened and the threatener which has to be considered
although it is the Plaintiff who will suffer by the wrong if the threats are
effective. In my opinion, therefore, a threat to break a contract may, like
a threat to commit a tort, be the foundation for an action of intimidation.

In the case of trade disputes, section 1 of the Trade Disputes Act, 1906.
was intended to give immunity to concerted action which, though it used
means which would be lawful if done by an individual might yet be held to
be conspiracy within the principles of Quinn v. Leathem. The present case,
however, was not founded on Quinn v. Leathem, and I agree with your
Lordships that if, on other grounds, the Plaintiff can succeed in this case,
section 1 gives no protection to the Defendants.

Does section 3 protect the Defendants'?

Certain intentions of the Act as a whole with regard to acts done in
contemplation or furtherance of a trade dispute are clear. To the Trade
Unions themselves it gave, by section 4, total immunity from actions in
tort. To the members it gave only a partial protection. No general



43

immunity in tort was given to them; nor were they protected from breaches
of their own contract. One cannot start with any assumption that they
were or were not intended to be protected from tortious abuse of their
own contracts.

Partial protection in the area covered by Quinn v. Leathem was pro-
vided by section 1; and section 3 was clearly intended to give partial
protection in a different area. Unfortunately the limits of the protection
in section 3 are far from clear. Did it intend to protect all tortious acts
that might result in inducement of breach of a contract of employment or
interference with employment, or did it intend to protect only the tort of
inducing a breach of contract of employment and the tort (on the assumption
that it existed) of interfering with employment? According to the Respond-
ents it intended the former, and protects all tortious conduct of whatever
kind, provided that it needs special damage to support it and that the only
special damage arising is damage by an induced breach of contract of
employment or by interference with trade, business or employment. It may
be said that since interference with employment is not as such actionable,
the latter half of the section would be pointless unless it protected tortious
acts which resulted in such interference. But that argument must go to the
length of holding that the section intended to frank all tortious conduct,
however grave, provided that it caused no actionable damage other than
interference with employment. It would be surprising if Parliament so
intended. And if it did so intend, it would be strange that the intention
is not more clearly expressed. Moreover, such a reading would make the
word " only " otiose whereas the impression is created by the section that
the word " only " is intended to have some definite limiting effect.

At first sight, there is compelling force in the Respondents' argument
that Parliament cannot have intended the second limb to be merely declara-
tory that interference with employment (which is not a tort) shall not be
actionable. But at the date when the Act was passed the law was in some con-
tusion. It was thought by some well informed opinion that there was a
tort of mere unjustifiable interference with trade. This appears from the
Report of the Royal Commission which preceded the Act. On this view
of the law (which was subsequently shewn to be wrong) it would be reason-
able for Parliament to enact the second limb of section 3 for the purpose
of ensuring that no conduct should be unlawful on the ground only that it
interfered with trade—meaning that it was protected if it was tortious for
that reason and for no other reason. The section would then have the effect
of limiting the protection to conduct which was not tortious in any other
respect save that it induced a breach of contract or interfered with employ-
ment. Lord Loreburn, who was the Lord Chancellor at the time of the
passing of the Act, thought that this was the intention of the Act. His dicta
in Conway v. Wade ([1909] AC 506 a 510) which my noble and learned
friend, Lord Reid, has cited are, in my opinion, inconsistent with any other
view. The textbook writers and the two Irish cases have taken a similar
view of the section's meaning. The reading for which the Respondents
contend would be an extension of the meaning which has hitherto been
given to the section.

A strong argument (to which Donovan L.J. in his forceful judgment sub-
scribed) is urged on the Respondents' behalf to the effect that threats of
lawful action (i.e. by giving notice) as opposed to threats of unlawful
action (i.e. by stopping work in breach of contract) are inconvenient and
unsuited to modern industrial disputes, since neither side wishes the con-
tracts to be determined and the termination of contracts would give rise
to confusion in respect of superannuation schemes and other matters. I see
the force of this, as a matter of convenience, but I feel some doubt as
to how far it is a useful argument as to what Parliament intended in
1906 under the then existing conditions. It is further contended by the
Respondents that to limit the protection of section 3 to the torts specifically
referred to in the section, namely, the tort of inducing a breach of con-
tract and the tort (as it was then thought) of interference with trade or em-
ployment would be to drive a coach and four through the protection afforded



44

to trade unionists by the Act. The Appellant retorts that the opposite con-
struction would, by licensing all forms of tort, contrary to the views of the
Act expressed by Lord Loreburn and textbook writers alike, drive a coach
and four through the protection of the common law which the Act intended
to retain for the community. I do not find such an argument helpful.
The Act was intending to give a partial protection, holding a balance between
conflicting interests, and the question before us is where Parliament intended
the boundary of protection to run.

One cannot read the words of the section literally as defining the com-
ponents of a cause of action since in that case the protection against an
action " on the ground only that it induces some other person to break
" a contract of employment" is meaningless. For no action could ever lie
on that " ground only" ; it would need the addition of knowledge and
damage. I see the attractions of paraphrasing the section as referring to
the substantial essential requirements of an action. One might, for instance,
so read a section that said no spoken words shall be actionable on the
ground only that they refer to a man in the way of his trade. True, the
additional grounds of publication and defamation would be needed, but
one might well argue that the statute assumed their existence. This would,
however, be a very loose and unsatisfactory method of expression in a
statute where one would expect precision in drafting the dividing line between
what may or may not be done with impunity, and I find myself unable to
accept it.

I have felt considerable difficulty in this case, but having had the advantage
of reading the opinions of my noble and learned friends, Lord Reid and Lord
Devlin, I agree with their observations on the construction of the section. I
would allow the appeal.

On the cross appeal as to damages I agree with the opinion of my noble
and learned friend Lord Devlin.

ROOKES v. BARNARD and ors.

Lord Reid

MY LORDS,

I beg to move that the Report of the Appellate Committee be agreed to.

Questions Put:
That the Report of the Appellate Committee be agreed to.

The Contents have it.
That the Order appealed from be Set Aside.

The Contents have it.

That the Judgment of Mr. Justice Sachs be Set Aside except so far as
regards damages and costs.

The Contents have it.

That the Cause be remitted to the Queen's Bench Division with a
direction that a new trial be had on the question of damages only.

The Contents have it.

That the Respondents do pay to the Appellant his Costs here and in the
Court of Appeal.

The Contents have it.

That the Costs already incurred before Mr. Justice Sachs, and the costs
to be incurred in the new Trial be disposed of by the trial Judge after
the further Trial in the Queen's Bench Division.

The Contents have it.

That the Costs of the Appellant here and in the Court of Appeal be
taxed in accordance with the provisions of the Third Schedule to the Legal
Aid and Advice Act, 1949, as amended by the Legal Aid Act, 1960.

The Contents have it.







(P/32227) Wt. 8097—186 100 11/64 St.S./PA/19