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Published online by Cambridge University Press: 16 January 2009
What forms of economic coercion should the law permit in the conflict between labour and capital? This is a fundamental question to ask in any developed economy. It is also hotly disputed, particularly in Britain where, in the last ten years especially, successive governments have attempted to redefine the legality of strike action to reflect their own views of what society should tolerate. As every student of labour law knows, the liberty to strike in Britain has been created by Parliament giving unions and workers a series of immunities from judge-made liabilities, and the scope of that liberty can be altered by expanding or restricting the immunities accordingly. This perhaps suggests a simple control mechanism for adjusting at will the boundary between lawful and unlawful industrial action. But the description is deceptively simple and any such conception is grossly misleading.
1 See Trade Union and Labour Relations Act 1974 (hereafter T.U.L.R.A.), ss. 13 and 14.
2 [1892] A.C. 25.Google Scholar
3 [1898] A.C. 1. The case affirmed the decision which the House of Lords had reached three years earlier in Bradford Corporation v. Pickles [1895] A.C. 587, where it was held that a lawful use of property did not become unlawful because it was prompted by a malicious or improper motive.Google Scholar
4 [1901] A.C. 495.Google Scholar
5 (1889) 23 Q.B.D. 598, 625–626. These words were specifically adopted by Baron Bramwell in the House of Lords.Google Scholar
6 [1901] A.C. 495, 536. 7Google Scholar
7 It was precisely because of this uncertainty that Parliament passed the second limb of s. 3 of the 1906 Trade Disputes Act: see the note by Elias, Patrick on Hadmor Productions Ltd. v. Hamilton [1982] I.R.L.R. 102 at p. 249 of this Journal.Google Scholar
8 See, e.g., Ware and de Freville Ltd. v. Motor Trade Assn. [1921] 3 K.B. 40, 90–91Google Scholarper Atkin L.J.; and Smith, Sorrell v. [1925] A.C. 700, 723 per Lord Dunedin; and 748–749 per Lord Buckmaster.Google Scholar
9 See Quinn v. Leathern, op. cit., at pp. 531, per Lord Brampton and 537–538 per Lord Lindley. Even before this decision Mr. Justice Holmes had trenchantly criticised this simplistic analysis: see Vegelahn v. Guntner (1896) 44 N.E. 1077, 1080.Google Scholar
10 [1981] 2 All E.R. 456. See Elias and Tettenborn [1981] C.L.J. 230.Google Scholar
11 At p. 464.
12 Ibid.
13 See now T.U.L.R.A., s. 13 (4).
14 Crofter Hand Woven Harris Tweed Co. Ltd. V. Veitch [1942] A.C. 435. Earlier cases include Reynolds v. Shipping Federation [1924] 1 Ch. 28 and Sorrelt v. Smith [1925] A.C. 700.
15 Lord Diplock, at p. 464. There had been uncertainty on this point in the earlier House of Lords' conspiracy decision, Crofter Hand Woven Harris Tweed Co. v. Veitch [1942] A.C. 435: contrast Lord Thankerton at p. 459 et seq. with Lord Maugham at p. 449et seq.Google Scholar
16 On which, see especially Viscount Maugham at p. 451. See also Hunlley v. Thornton [1957] 1 W.L.R. 321.Google Scholar
17 See Scala Ballroom (Wolverhampton) Ltd. v. Ratcliffe [1958] 1 W.L.R. 1057, where an attempt by the defendants to break a colour bar was held to be a legitimate object. And see the case-note by O. Kahn-Freund (1959) 22 M.L.R. 69Google Scholar
18 The protection afforded to pursuing legitimate interests will sometimes be wider than that given by the statutory immunity (see, e.g., Stratford v. Lindley [1965] A.C. 269), but it is difficult to envisage the converse.Google Scholar
19 Possibly a caveat has to be entered in relation to the law of economic duress (on which see for a valuable, if slightly dated discussion, Goff and Jones, Law of Restitution, 2nd ed., pp. 176–186). That this doctrine has a role to play in labour relations is now clear from the House of Lords' decision in Universe Tankships Inc. of Monrovia V. International Transport Workers' Federation [1982] I.R.L.R. 200. The precise effects of the doctrine are not yet clear, but in certain limited cases it seems that property or money passed under an agreement signed by an employer as a result of economic duress may be recovered by that employer. However, the pressure exerted must be illegitimate. But this need not always involve threatening to do something unlawful: see especially the comments of Lord Scarman: “Duress can, of course, exist even if the threat is one of lawful action: whether it does so depends upon the nature of the demand” (p. 212). So what is lawful in connection with the law of tort may nevertheless vitiate consent in the law of contract.
20 This is clear from Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) [1982] A.C. 173.
21 (1966) 40 A.L.J.R. 211. For a trenchant criticism of the decision, see Dworkin, and Harari, , “The Beaudesert Decision—Raising the Ghost of the Action upon the Case” (1967) 40 A.L.J. 296.Google Scholar
22 At p. 463. See further Kitano v. Commonwealth of Australia (1974) 129 C.L.R. 151 and Dunlop v. Woollahra Municipal Council [1981] 1 All E.R. 1202.Google Scholar
23 (1853) 2 E. –Rogers (1979), Chap. 20. For further analysis,Google Scholarsee Wedderburn, The Worker and the Law, 2nd ed. (1971), pp. 345–371;Google ScholarHeydon, The Economic Torts, 2nd ed. (1978); and Burns, “Tort Injury to Economic Interests: Some Facets of Legal Response” (1980) 58 Can. Bar Rev. 103. See also Hughes, “Liability for Loss Caused by Industrial Action” (1970) 86 L.Q.R. 181Google Scholar
25 [1969] 2 Ch. 106. See the note by Grabiner (1969) 32 M.L.R. 435.Google Scholar
26 See Russell L.J. at p. 143, and Winn L.J. at p. 147. It is admittedly a matter of construction whether an exclusion clause modifies the primary obligation to perform or the secondary obligation to pay damages: see the House of Lords' decision in Photo Production Ltd. v. Securicor Transport Ltd. [1980] 1 All E.R. 556. Nevertheless the construction by their Lordships of the particular clause in the Torquay case does seem odd.Google Scholar
27 See, e.g., Greig v. Insole [1978] 1 W.L.R. 302Google Scholar and Brekkes v. Cattel [1972] Ch. 105.Google Scholar
28 See his Casebook on Tort, 4th ed., p. 531.
29 [1972] Ch. 630.Google Scholar
30 Trade Disputes Act 1906, s. 3.Google Scholar
31 T.U.L.R.A., s. 13 (1), as amended by the Trade Union and Labour Relations (Amendment) Act 1976, s. 3 (2).Google Scholar
32 T.U.L.R.A., s. 13 (1).
33 (1853) 2 E. & B. 216, 232.Google Scholar
34 (1971) 11 K.I.R. 78Google Scholar
35 See especially pp. 84–85.Google ScholarSee further Royal London Mutual Insurance Society Ltd. v. Williamson (1921) 37 T.L.R. 742.Google Scholar
36 It might even be contended that this is an equitable rather than tortious action and that consequently the union itself could be sued since its immunity in tort (T.U.L.R.A., s. 14) would be inapplicable. If one describes the union officials as parties to a breach of trust, this suggests an equitable liability; but if they are seen as inducers of a breach of duty then, by analogy with inducing a breach of contract, liability ought to be tortious. In Prudential Assurance v. Lorenz itself Plowman J. seemed to assume it was tortious and the policy behind the union immunity suggests that it should be so treated and that technical distinctions ought not to be drawn between equitable and common law liabilities (though arguably this is in fact what Prudential Assurance did). And see in this connection the House of Lords' decision in United Scientific Holdings Ltd. v. Burnley Borough Council [1978] A.C. 904 where they observed that, to use Lord Diplock's phrase, “ the waters of the confluent streams of law and equity have surely mingled now ” (p. 925).Google Scholar
37 Fire Services (Discipline) Regulations S.I. 1948 No. 545. Neglect of duty for this purpose includes failing to attend to this duty properly and diligently; carelessness or neglect causing loss, damage or injury; and leaving his place of duty without permission or sufficient cause.Google Scholar
38 See the Dock Workers' Employment Scheme 1967, reg. 8 (5).Google Scholar
39 See especially s. 30.
40 [1955] 2 Lloyd's Rep. 247Google Scholar
41 Ss. 221 and 236. Both of these provisions have since been repealed.
42 [1975] A.C. 396.Google Scholar
43 Though see the discussion by Christine Gray who argues that the Cyanamid case has had little effect on the practice of granting interlocutory injunctions: “ Interlocutory Injunctions Since Cyanamid ” [1981] C.L.J. 307.Google Scholar In this connection it should also be noted that s. 17 (2) of the T.U.L.R.A., which sought to modify the Cyanamid principles in trade disputes, has no relevance where a breach statutory duty is alleged. That subsection requires the courts to have regard to the likelihood of the defendants being able to rely upon the statutory immunities before granting the injunction. But since the immunities clearly do not apply to breaches of statutory duty, the judges will not be prevented from applying Cyanamid in the normal way.
44 Under the Employment Act 1980, s. 10 only the employer can join third parties in proceedings in this way: see the discussion by Patrick Elias, “ Gosing in on the Closed Shop ” (1980) 9 I.L.J. 201, 205. But the Employment Bill 1982 which, at the time of writing, has not yet been enacted, proposes to permit the dismissed employee to join third parties also.Google Scholar
45 As occurred in Rookes v. Barnard [1964] A.C. 112Google Scholar
46 For a recent example see Belmont Finance Corpn. Ltd. v. Williams Furniture Ltd. [1979] Ch. 250 and ibid. (No. 2) [1980] 1 All E.R. 393. And cf. the Canadian cases Gagnon v. Foundation Maritime Ltd. [1961] S.C.R. 435 and McKinnon v. (F. W.) Woolworth & Co. Ltd. (1968) 70 D.L.R. (2d) 280. See also Williams v. Hursey (1959) 103 C.L.R. 30.
47 Furthermore, the scope of conspiracy to use unlawful means has been very significantly limited by the House of Lords in the Lonrho case [1982] A.C. 173. Their Lordships surprisingly held that even for conspiracy to use unlawful means there is no liability if the predominant purpose of the defendants is to protect their own interests. In this respect, conspiracy to use unlawful means has been equated with conspiracy to injure.Google Scholar
48 [1952] Ch. 646.Google Scholar
49 These include J. T. Stratford & Son Ltd. v. Lindley [1975]Google Scholar A.C. 269 and Torquay Hotel Co. Ltd. v. Cousins [1969] 2 Ch. 106.Google Scholar Following the latter case, liability will attach not merely to indirectly procuring a breach of contract but also to indirectly interfering with its performance, providing unlawful means are used. In Daily Mirror Newspapers Ltd. V. Gardner [1968] 2 Q.B. 762, Lord Denning even flirted with the idea of imposing liability where the means employed are lawful, but in Torquay Hotel he subsequently reasserted the orthodox position that unlawful means are required.Google Scholar
50 [1964] A.C. 1129. For comment, see Hamson [1964] C.L.J. 159; Weir [1964] C.L.J. 225; Wedderburn (1964) 27 M.L.R. 257.Google Scholar
51 See especially Salmond on the Law of Torts, 13th ed. (1961), p. 697. See also Hamson [1962] C.L.J. 189.Google ScholarSee further Cooper v. Miller [1938] I.R. 749Google Scholar and Riordan v. Butler [1940] I.R. 347.Google Scholar
52 See especially Wedderburn (1964) 27 M.L.R. 257, 263–267.Google Scholar
53 Furthermore, although a specific immunity was provided in 1974 to prevent a breach of contract from constituting unlawful means (see T.U.L.R.A., s. 13 (3) (b)) this has since been repealed by the Employment Act 1980, s. 17 (8).Google Scholar
54 See, e.g., Lord Lindley in Quinn v. Leathern [1901] A.C. 495, 537–538;Google Scholar Romer L.J. in Giblan V. National Amalgamated Labourers' Union [1903] 2 K.B. 600, 619;Google Scholar and Lord Sumner in Sorrell v. Smith [1925] A.C. 700, 737.Google Scholar
55 [1964] A.C. 1129, 1168–1169.Google Scholar
56 [1968] 2 Q.B. 762.Google ScholarFor a critique of this decision, see Winfield and Jolowicz, op. cit., pp. 494–495. See further Guest and Hoffman (1968) 84 L.Q.R. 310.Google Scholar
57 Ibid., at p. 783. See also Torquay Hotel Co. Ltd. [1969] 2 Ch. 106, 139.
58 [1971] 1 W.L.R. 1676.Google Scholar
59 [1972] Ch. 105.Google Scholar
60 [1982] I.C.R. 114.Google Scholar
61 [1925] A.C. 700.Google Scholar
62 Ibid., at p. 719.
63 [1964] A.C. 1129, 1210.Google Scholar
64 See further Winfield and Jolowicz, op. cit, Chap. 8. See also, Friche, “ The Juridical Nature of the Action upon the Statute ” (1970) 76 L.Q.R. 240Google Scholar and Glanville Williams “ The Effect of Penal Legislation in the Law of Tort ” (1960) 23 M.L.R. 233.Google Scholar
65 [1982] A.C. 173.Google Scholar
66 Ibid., at pp. 185–186.
67 [1968] 2 Q.B. 762.Google Scholar
68 [1972] Ch. 105.Google Scholar
69 [1971] 1 W.L.R. 1676.Google Scholar
70 [1908] 1 Ch. 335.Google Scholar
71 [1979] I.C.R. 664.Google Scholar
72 There are also various dicta suggesting that the unlawful means need not be independently actionable. A notable observation in the context of labour law is that of Lord Wright in the Crofter case when he said at p. 462 that unlawful means would include breaches of the Conspiracy and Protection of Property Act 1875 and the now repealed Trade Disputes and Trade Unions Act 1927.Google Scholar In addition, there is Commonwealth authority where liability has rested upon means not independently actionable. See International Brotherhood of Teamsters v. Therien (1960) 22 D.L.R. (2d) 1.Google Scholar
73 [1969] 2 Ch. 106, 139.Google Scholar
74 [1959] 1 Q.B. 45.Google Scholar
75 [1905] A.C. 480Google Scholar
76 See ss. 62 and 53 respectively.
77 See, e.g., Prices and Incomes Act 1966, s. 16 (5).Google Scholar
78 On this basis Lord Diplock is surely correct in Lonrho to say that the availability of an action in tort for breach of statute must “ depend on the scope and language of the statute ” [1982] A.C. 173, 187.Google Scholar
79 [1973] I.C.R. 339.Google Scholar
80 [1968] 2 Q.B. 710.Google Scholar
81 At p. 738.
82 At p. 739
83 [1964] A.C. 1129, 1218–1219.Google Scholar
84 This does not satisfactorily explain all the cases where certain unlawful acts have been held not to constitute unlawful means. In Chapman v. Honig [1963] 2 Q.B. 502 the Court of Appeal (with Lord Denning dissenting) held that a contempt of court would not constitute unlawful means but this decision conflicts with the later case of Acrow Automation Ltd. v. Rex Chainbelt Inc. (in which it was not cited) and might now be considered to be wrong. Again, it has been held in the Mogul case, op. cit., that actions in restraint of trade are not unlawful means, but possibly this can be explained on the basis that such acts are void and unenforceable rather than unlawful.Google Scholar
85 Trade Disputes Act 1906, ss. 1 and 3 respectively.Google Scholar
86 [1964] A.C. 1129.Google Scholar
87 [1963] 1 Q.B. 623. See especially Lord Donovan (pp. 684–685) with whom Sellers L.J. agreed (p. 675).Google ScholarSee further Wedderburn (1964) 27 M.L.R. 257.Google Scholar
88 [1964] A.C. 1129, 1174–1178, per Lord Reid; 1203, per Lord Hodson; 1212–1218, per Lord Devlin; and 1235–1237, per Lord Pearce.Google Scholar
89 See Wedderburn, K. W., “ Intimidation and the Right to Strike ” (1964) 27 M.L.R. 257, 275–279.Google Scholar
90 See in particular the comments of the Attorney-General, Sir John Walton, who specifically stated that the provision was inserted to meet the suggestion that it would be well to give legislative effect to Allen v. Flood: Parl.Deb. Vol. 162, ser. 4, cols. 1675–1676 (3 August 1906). For a different view of the legislative policy see Wedderburn “ The Right to Threaten Strikes ” (1961) 24 M.L.R. 572, 589–590.Google Scholar
91 Indeed in Rookes v. Barnard Lord Devlin left open the question “ whether or not malicious interference by a single person with trade, business or employment is or is not a tort known to the law ” ( [1964] A.C. 1129, 1215).Google Scholar
92 [1982] 2 W.L.R. 322.Google Scholar
93 Ibid., at pp. 333–334.
94 Ibid. His Lordship seems to have taken Allen v. Flood for granted and simply assumed that there could be no liability for the commission of otherwise lawful acts save in relation to conspiracy to injure which is specifically protected by s. 13 (4).
95 [1982] I.R.L.R. 198.Google Scholar
96 [1982] 2 W.L.R. 322, 337 confirming David v. Johnson [1979] A.C. 264.Google Scholar
97 This was the conclusion of the Court of Session in the Plessey case [1982] I.R.L.R. 198, 199.Google Scholar
98 as See, e.g., J. T. Stratford v. Lindley [1965] A.C. 269, 336, per Lord Pearce for authority for this obvious construction.Google Scholar
99 e.g., ibid., per Lord Pearce; Thomson (D. C.) Ltd. v. Deakin [1952] Ch. 646, 687, per Lord Evershed; and Torquay Hotel Co. Ltd. v. Cousins [1969] 2 Ch. 106, 147, per Winn L.J.
1 See, e.g., Lord Denning's judgments in Morgan v. Fry [1968] Q.B. 710, 728–729Google Scholar and Torquay Hotel Co. Ltd. v. Cousins [1969] 2 Ch. 106, 139–140.Google Scholar And see now Lord Diplock's observations in Hadmor [1982] 2 W.L.R. 322, 335–336.Google Scholar
2 [1976] I.C.R. 274, 290.Google Scholar
3 [1982] 2 W.L.R. 322, 335–336.Google Scholar
4 S. 17 (8).
5 [1981] 3 W.L.R. 139.Google Scholar
6 See the note by Elias [1981] C.L.J. 234 for critical analysis of this judgment.Google Scholar
7 [1982] 2 W.L.R. 322, 336. This observation, it should be noted, is true of s. 13 (3) (a) but not of s. 13 (3) (6), which prevented breaches of contract from constituting unlawful means, and has also been repealed. However, the narrowing of the scope of conspiracy to use unlawful means in the Lonrho case (see n. 47 above) makes this less significant than it might have been.Google Scholar
8 (1868) L.R. 6 Eq. 551, 558–559.Google Scholar
9 See Dixon v. Holden (1869) L.R. 7 Eq. 488.Google Scholar
10 (1875) 10 Ch.App. 142.Google Scholar
11 Ibid., at p. 147.
12 [1896] 1 Ch. 811, 826.Google Scholar
13 [1978] A.C. 435.Google Scholar
14 See, at pp. 492–493, per Viscount Dilhorne; and 506, per Lord Edmund-Davies.
15 Contrast Lord Diplock's judgment in Gouriet where he appears to accept that an individual can restrain the infringement of a private right but limits his comments to a situation where the right is created by the statute itself (p. 499).
16 e.g., both Viscount Dilhorne and Lord Edmund-Davies refer to the Springhead Spinning case, which uses the language of proprietory rights as authority for the view that private rights are protected.
17 [1978] 3 All E.R. 824.Google Scholar
18 Ibid., at p. 830.
19 Ibid., at p. 836.
20 Ibid., at p. 834.
21 Ibid., at p. 830.
22 [1982] A.C. 173, 187.Google Scholar
23 This was in the context of approving and explaining Buckley L.J.'s comments in Boyce v. Paddington Borough Council [1903] 1 Ch. 109: see pp. 185–186.Google Scholar
24 See the case note by Elias and Tettenborn [1981] C.L.J. 230, 232–233.Google Scholar
25 [1982] 2 AH E.R. 455.Google Scholar
26 [1982] 2 All E.R. 468.Google Scholar
27 Ibid., at p. 479.
28 Some of the authorities cited by Lord Denning did not apparently involve the deliberate infliction of harm on the defendant, e.g., njamin v. Storr (1874) L.R. 9 C.P. 400 and Chamberlaine V. Chester and Birkenhead Rlwy Co. (1848) 1 Exch. 870.Google Scholar
29 For a stimulating discussion of the circumstances in other contexts where injunctions may be available even though damages are not, see A. Tettenborn, “ Covenants, Privity of Contract and the Purchaser of Personal Property ” [1982] C.L.J. 58.Google Scholar
30 Their duties are found in such Acts (together with subsequent amendments) as the Gas Act 1948, Electricity Act 1947, Transport Act 1947 and Civil Aviation Act 1946.Google Scholar
31 Coal Industry Nationalisation Act 1946, s. 1 (1) (a).Google Scholar
32 Education Act 1944, s. 8 (1).Google Scholar
33 See, e.g., National Health Service (Appointment of Consultants) Regulations S.I. 1974 No. 361.Google Scholar And see Associated Newspapers Group v. Wade [1979] I.C.R. 664.Google Scholar
34 [1979] I.C.R. 494.Google Scholar
35 Ibid., at pp. 504–505, per Lord Denning; 507–508, per Eveleigh L.J.: and 512, per Sir Stanley Rees.
36 Ibid., at p. 505.
37 Liability for mere interference was suggested by Lord Denning in Meade at p. 505 and in Associated Newspapers Group v. Wade [1979] I.C.R. 664, 696.Google Scholar
38 [1922] 1 K.B. 431.Google Scholar
39 Hackney Electric Lighting Order 1893, cl. 26.Google Scholar
40 At p. 437.
41 See R. v. Inland Revenue Commrs., ex p. National Federation of Self Employed [1981] 2 W.L.R. 722 for an illustration of the readiness with which the courts will examine the merits of a case in an application for judicial review.Google Scholar
42 See, e.g., R. v. Bristol Corporation, ex p. Hendy [1974] 1 W.L.R. 498.Google Scholar
43 [1977] 1 W.L.R. 1172.Google Scholar
44 The Post Office Act 1969, s. 9 provides a general duty on the P.O. to provide postal services throughout the country.Google Scholar
45 [1977] 1 W.L.R. 1172, 1180. The prime reason for his decision was that “it can only be in very rare circumstances and in the most extreme circumstances that this court should interfere by way of mandatory injunction in the delicate mechanism of industrial disputes and industrial negotiations.” And see the comments of Lord Wilberforce in Gouriet [1978] A.C. 435, 481.Google Scholar
46 [1979] I.C.R. 494, 516.Google Scholar
47 Ibid., at p. 505. See also Associated Newspapers Group Ltd. v. Wade, supra, at p. 695.
48 [1979] I.C.R. 664, 696.Google Scholar
49 See Universe Tankships Inc. of Monrovia V. International Transport Workers Federation [1982] I.R.L.R. 200.Google Scholar
50 See, e.g., the Post Office Act 1969, s. 9 (4); the Iron and Steel Act 1975, s. 2 (1); and the Aircraft and Shipbuilding Industries Acl 1977, s. 2 (10).Google Scholar
51 See, e.g., the Education Act 1944, s. 99.Google Scholar
52 In the latter type of case, the courts will permit an action to be brought where, notwithstanding the existence of the separate remedy, the plaintiff alleges malfeasance or ultra vires in the performance of the duty. See, e.g., Bradbury v. Enfield London Borough Council [1967] 1 W.L.R. 1311.Google Scholar
53 See the suggestion by Davies and Freedland, Cases and Materials in Labour Law, pp. 607–608.
54 The most recent consideration was in the Government's Green Paper, Trade Union Immunities, Cmnd. 8128 (1981).Google Scholar
55 See Wedderburn, “ Industrial Relations and the Courts ” (1980) 9 I.L.J. 65. See further, Wedderburn, The Worker and the Law, 2nd ed., pp. 401–406.Google Scholar
56 Wedderburn (1980) 9 I.L.J. 65, 82–83.Google Scholar
57 Lewis and Simpson, Striking a Balance: The Employment Act 1980 (1981), pp. 226–229.Google Scholar
58 Though of course it may well be thought desirable to introduce a principle that individual employment contracts are not broken when the right to strike is exercised.
