Relationships Interference
Cases
Hynes v Conlon
[1939] Ir Jur Rep 49 (HC) (Hanna J)
Hanna J: I am satisfied that this decree cannot stand. It is obvious to me that there were two agreement entered into between the representatives of the union and the contractors. The first of these agreements was that the contractors would not employ non-union labour. That was contained in the agreement which had been signed by Messrs Kilcawley, Maloney and Taylor as members of the Federation of Building Trade Employers and the union. The second agreement was a verbal agreement which was given by Mr Taylor to the union deputation after the four workmen – Mattimoe, Moore, Devins and Oates – had been discharged. That second agreement was that the four would get preference for re employment subject to there being suitable work for them.
It is clear, and is in fact admitted, that at the time of this trouble, 31st December or 1st January, Hynes was forty-eight weeks in arrears with his subscriptions to the union, and, accordingly, on the face of agreement the contractors were not entitled to employ him – infact it was a breach of their agreement with the union to employ him. The mere fact of the union giving grace from time to time to workmen who at the date of employment were lapsed members and giving them an opportunity of becoming qualified does not affect the legal position of the union, because the contract was made and signed that non-union men were not to be employed. The contractors did employ Hynes, and they did so under the impression that he was a union member. However, as soon as the representatives of the union heard of that they, of course, took the matter up not only on the ground that he was a lapsed member, but also on the ground that he was given preference to some other men who had been relieved of their employment and for whom the union had been working. The facts are that the defendants as representatives of the union went and saw the representatives of the contractors, and on the discussion that took place the question of Hynes being a lapsed member of the union, and therefore, a non-union member, was discussed or mentioned, and also the fact that three or four men should be given preference in accordance with the agreement made by Mr Taylor with the union.
It is a matter for congratulation that relations between the contractors and the union were friendly and the relations between the union and its members were the same. Trade unions are now recognised institutions in the law, and they have certain powers that must be exercised for the good of workmen and for the good of the community they represent. As long as they keep within their rules and the law, it is the duty of the court to recognise their rights when they have to carry out duties which are sometimes unpleasant. I am quite sure it is very unpleasant for any member of the committee who has to go and say that a man has to be dismissed or that there is a breach of any conditions.
I am satisfied that two questions arose – that he was a lapsed member and they had a complaint against the employer becuase there was to be preference given to men who had previously been dismissed. I am satisfied on the evidence which has been very frankly given by Mr Conlon, that when he was talking to Mr Taylor and Mr Pilkington he intimated to them that by reason of these matters they would have to get rid of this man in pursuance of the agreement made. But I am satisfied that there was nothing improper in anything these gentlemen did and that they were all well within the law. There was nothing in the nature of a threat to the employer or in the nature of a severe warning that might be construed into a threat, and the view I take of what took place was that it was no more than telling the employer the attitude which the union was taking up. If union officials could not do what was done in this case, they would be of little use. There was conflict between the witnesses as to who was to take the responsibility. The workman was left with whatever remedy he had in law against the union if they acted illegally, but in order to do that they had to do something illegal. So far as I can see in this case there were no threats, no warnings and no violence.
In the view I take of the case the questions can be decided on common law. A person is not entitled to induce another person to break a contract of service by unlawful means. It seems to me that the question which arose in this case about Hynes was brought to the notice of the union, and the chairman, secretary, and Mr Lynch, a member of the committee, knowing the view of the committee, went on the deputation to the contractors. I have come to the conclusion that they did not exceed their authority and I am also of the opinion that they did not use any threats or warnings of an illegal character nor was there any unlawful interference. For these reasons I think that the decree that the jury gave against the defendants should be reversed and the action should be dismissed.
So far as Hynes is concerned he is now a member of the union, and as they mention in one of their resolutions protesting against victimisation, I hope that they will remember that when they come to deal with him. I have to make an order for costs against Hynes, in this court and in the court below, but I hope they will be lenient withhim.
Appeal allowed.
Talbot Ireland Ltd v ATGWU
Supeme Court (30 April 1981) SC,Irish Times,1 May 1981
The Supreme Court yesterday dismissed with costs an appeal by the executive council of the Irish Congress of Trade Unions and Matthew Merrigan, district secretary of the Amalgamated Transport and General Workers Union, against an interlocutory injunction granted by Mr Justice McWilliam in the High Court on April 10th.
The injunction granted to Talbot (Ireland) Ltd restrained the defendants from inducing or attempting to induce a breach of contract between the company and its dealers, and between the company and its parent company, Talbot (UK) Ltd, or attempting to interfere with their economic relations.
The Supreme Court, dismissing the appeal with costs, varied the order of the High Court to an order restraining the defendants or any person who has notice of the order, until after judgment in the action, or until further order, from inducing or procuring any breach ofa commercial contract between the company and any third party and in particular between the company and Talbot (UK) Ltd and between the company and itsdealers.
The judgment was delivered by Mr Justice Henchy (presiding) with whom Mr Justice Griffin and Mr Justice Kenny agreed. Mr Justice Kenny said that the Trade Disputes Act 1906, had no application in the case. Earlier this month Mr Merrigan was committed to prison for contempt of court for failing to obey the High Court order, but that order was not implemented so the appealcould be taken to the Supreme Court.
Mr Justice Henchy (with whom Mr Justice Griffin and Mr Justice Kenny agreed)
said it appeared that the executive council of the ICTU at a meeting on March 27th endorsed the embargo and as a result Mr Merrigan issued two documents. These two documents, read together, showed that the purpose was that all members of unionsaffiliated to the Congress would lend their support to a total embargo throughout Ireland, North and South, on the importation and movement of Talbot cars, spare parts and other components and also on services in connection with the company’s activities. The court knew from the uncontradicted affidavit before it that those two documents were implemented.
It was clear that the effect of the embargo was that there had been a breach of contract and of more than one contract between the company and those with whom it did business, particularly dealers, not to speak of 2,900 people who bought Talbot vehicles which were within the guarantee period.
The court learned of other effects of the embargo, including the effect on the company’s premises relating to ancillary commercial contractual relationships dealing with the servicing and maintenance of machinery; post not being delivered; petrol and oil firms refusing to supply the company; and refuse not being collected.
Mr Justice Henchy said he instanced those matters to indicate that the effect of the embargo as circulated had been no mere empty request, but had been an implemented direction which in effect had procured the breach of many contracts between the company and third parties.
The case had been made by the defendants that the predominant object of the action taken by them had been to advance the cause of the workers represented by the union, and he had no doubt that that was a correct view. They had relied on the Harris Tweed case as supporting the proposition that once the object was lawful, even though the result may be disastrous, if the predominant object was legitimate in the sense of helping the workers, it was sufficient to defeat the plaintiff’s claim. That submission would be correct if the case were laid in conspiracy, but the tort relied on in this case was not the tort of conspiracy.
It was well-established that where a defendant, knowing of a contract between the plaintiff and a third party, intentionally induced a third party to break the contract and thereby cause loss to the plaintiff, a tort was committed unless there was justification for the defendant’s action.
In this case Mr Justice McWilliam found in effect that the effect of the embargo was that the defendants, knowing that contracts were in existence, executory or otherwise, between the company and its parent company in England; between the company and its suppliers; between the company and the Post Office etc., nevertheless chose to extend the effect of the industrial action to the stage where they induced breaches of contract with third parties.
Consequently a tort was committed. Subsequent events had shown that the inducement resulted in an actual procurement of breaches of contracts with third parties. Whether there was a trade dispute or not, a body or bodies must operate within the constitutional framework and the constitutional guarantees in Article 40, and it would have to be borne in mind that innocent persons could not be damnified – and when he spoke of innocent persons he was not referring to the union or the company but to persons such as dealers who had no dispute with anybody, or the owners of vehicles who had no dispute with anybody but who, because of this embargo, could not get their vehicles serviced – a service they were entitled to under their contract.
In this case it was clear that there had been an inducement of the various workers in the various unions affiliated to the Congress to procure breaches of contract between the company and the persons and bodies mentioned, and that was a tort, and that it had not been done with any lawful excuse. For that reason he would support the conclusion that was reached in the High Court that there had been a tort.
It was quite clear that the legitimacy of the trade dispute that existed was not in question. It had been suggested that what had happened was an embargo only in name and that the effect was no more than an all-out strike.
But what had happened had gone far beyond that – far beyond any picket; far beyond
any strike, far beyond any legitimate industrial action. He had no doubt that the ICTU, which wasa reputable and honourable body, acted inadvertently in placing this total embargo, and no doubt once this matter had been determined by the order, they would abide by the decision given. For those reasons he would dismiss the appeal but he would vary the order made in the High Court in the manner stated.
When the hearing was resumed yesterday, Mr Feargus Flood SC (for Mr Merrigan)
replying to the submissions of Mr Niall Fennelly (for Talbot), asked was it to be said in that court that the ICTU had sat down for the purpose of surgically carving up and closing Talbot (Ireland), or was it that it has as its purpose the consideration of how it could assist its member organisations in the conduct of a dispute with the company?
Mr Flood submitted that it was beyond all doubt that the whole purpose and object was not the dismembering of Talbot (Ireland), but had the advancement and assistance ofa member union as its primary purpose, and that the object was a lawful object.
In this country, or any civilised country, one was entitled to say: ‘This isa legitimate purpose: it should receive the support of all right-thinking people.’ If they were not entitled to say that, the freedom of expression of opinion was certainlya very limited
freedom in this country.
“I know that throughout this case your Lordships have had an unholy fascination for
the fact that if we maintain the embargo Talbot would close, but that fascination is also
true of any strike”, said Mr Flood.
If everybody was going to be pig-headed then somebody was going to go to the wall.
That was the whole object of striking or picketing – all the forces that brought people to the negotiation table. That was why it was ridiculous to say that the ICTU had sat down to dismember a source of employment.
Cooper v. Millea and Others
[1938] IR 749
Gavan Duffy J.
The plaintiff, John Cooper, is a widower, aged 54; his home at all material times was and is at Waterford; he joined the railway service in 1916 as a porter and under the Railways Act (No. 29 of 1924), became a servant of the Great Southern Railways; for a few years he was a member of the National Union of Railwaymen (the “N.U.R.”) and then for some years a member of no Union, until 1934, when, upon the formation of a new trade union, the Federation of Road and Rail Workers, registered under trade union law, he became a pioneer for that Union in Waterford, where a branch was established. In March, 1935, that Union declared a strike on the railway and the plaintiff went out on strike; the strike collapsed after a week, and most, but not all, of the men on strike were taken back by the Railway Company, the plaintiff being assigned to duty at the North Wall, Dublin. The Federation continued to function as a trade union, but the Waterford branch ceased to exist; the plaintiff continued to be a member of that Union. At the North Wall he was asked several times to join the N.U.R., but he put off the canvassers until September, 1935, when an organiser for the N.U.R. urged him to join; he replied that he was a member of the Federation and, at the organiser’s request, produced his paid up card to the secretary of the local branch of the N.U.R. The local branch thereupon decided that it would not work with plaintiff, refusing to recognise the Federation as a trade union, and a very few men at the North Wall stopped work; the stoppage did not last more than half an hour; the Company’s local agent had immediately sent for the plaintiff and suggested that he should apply for a transfer from Dublin; he applied for a transfer to Waterford, his home town, and he was transferred to Waterford next day, the 17th of September, 1935. There Mr. Brewer, the local superintendent, directed him not to resume duty until further orders, telling him that he would receive full pay in the meantime. On the 20th of September he was instructed to report for duty next morning at the Waterford Goods Store; he did so, but had hardly begun work when he was summoned by Mr. Brewer, who told him that, because the Waterford men would not work with him, the Company offered him a transfer to Belturbet (a very long way from Waterford). In vain plaintiff protested; he was told that he must take the transfer or go; he refused Belturbet and was discharged with a week’s wages in lieu of notice. He now claims damages from the men whom he regards as mainly responsible for his dismissal; he has failed to obtain any but the most casual employment since. His amended claim charges the defendants with having procured his dismissal by illegal means. Mr. Brewer testifies that plaintiff had always been a satisfactory employee.
The defendant, Peter Millea, was in 1935 and still is secretary of the Waterford No. 1 Branch of the N.U.R.; the defendant, William McBride, was the chairman of the branch in September, 1935, and the defendant, John Drohan, its vice-chairman. On the morning of the 21st of September these three men called upon Mr. Brewer, Millea acting as spokesman, and informed him that they were a deputation from the No. 1 Branch and that, if plaintiff were allowed to take up duty, the men had decided that they would withdraw their labour; they meant, and were understood to mean, an immediate withdrawalthere is no dispute about that. Consequently Mr. Brewer, acting upon instructions from Dublin, where some trouble of this kind had been feared, took the action that he did against the plaintiff. He says that he understood that a general strike, involving the whole line, was threatened, because, if the strike were sanctioned by the N.U.R., it would be general so far as their members, who were very numerous, were concerned; the defendants had stated that they represented the branch, but he took them, he says, to represent the Union; perhaps he was not justified in so understanding them, but that is a side issue. It is material to note that the threatened strike would have involved a breach of their contracts by the men concerned, who had weekly contracts. I use the word “threat” in this judgment for convenience, but “pre-intimation” would serve equally well, if anyone prefers it.
The defendants say that Millea and McBride had been in Dublin on Union business on the 17th of September, when they learned of the stoppage at the North Wall, due to plaintiff’s refusal to join the N.U.R. and were told that it was thought that he was to be transferred to Waterford; Mr. Watters, the Irish Secretary and Chief Organiser in Ireland of the N.U.R., sent for them; he saw them next day, and in their presence he telephoned to the Company, when he was able to tell them that he had got an assurance that plaintiff would not be transferred to Waterford. They went home, having first wired to one of the Waterford members to convene a special meeting of the branch for 9 o’clock that night for important business. The meeting was called in the usual way for special meetings by posting notice of it in three places where the men at Waterford work, but, whereas two or three days’ notice was sometimes given, only a few hours’ notice was given on this occasion, so that there is little doubt even some of the men working in Waterford did not hear of the meeting; this course was adopted on the ground of urgency. The No. 1 Branch covers a large area extending to Tipperary and Clonmel, but members in outlying places were not notified; the defendants say that these men were not in the habit of attending meetings and could not afford to do so. It appears that the chairman and secretary told the meeting about the strike at the North Wall, and its success, and about the assurance obtained by Mr. Watters; it was decided to await events, the secretary being instructed to convene another special meeting if he learnt that plaintiff was taking up duty at Waterford. A second special meeting was convened for 9 p.m. on the 20th of September, by notices posted as before on the afternoon of the same day. The meeting was told that plaintiff was to take up duty in Waterford next morning; it was resolved that immediate strike action be taken in the morning if he did take up duty and the defendants were appointed as a deputation to wait on Mr. Brewer. No one had asked the plaintiff to join the N.U.R. since his return to Waterford; perhaps it was assumed that any such request would be quite useless. The policy of refusing to work with a man who was not a member of the N.U.R. was a very grave departure from the existing practice on the line; the policy was quite new, except for the irregular action taken at the North Wall against the plaintiff; the new policy had not received the sanction of the Executive Council of the N.U.R., as required by the rules of the Union, nor had the sanction of that Council, required by the rules, been obtained for the contemplated strike.
In a case of this kind the apparent antinomy between the rights of organised labour and the rights of the private citizen may easily lead to confusion. It is the duty of the Courts firmly to uphold the legal rights of workingmen to combine; the right of combination, recognised by statute in 1824 (when a repressive code, elaborated through three centuries in England, was repealed), has now been securely established, but only after a very severe struggle during the 19th century and through the indomitable courage and perseverance of workingmen against heavy odds; and the right to form unions, subject to control in the public interest, is expressly recognised by the Constitution. At the same time, as a matter of national social policy, every citizen is declared to have the right to adequate means of livelihood and, as a matter of law, every man is entitled to be protected against unlawful interference with his means of living, and that protection he is entitled to seek and obtain from the Courts. In the social conflict there will often be an apparent clash between these rights and, if there be any such clash in the present case, it must be resolved on principle; the rule of law in this country would be gravely impaired if sympathy (for I have been invited to shed tears) or other extraneous considerations were allowed to influence a decision. The interests of the individual and of organised labour must frequently collide; if the union wins, the victim may be crushed; yet his ruin may be as irrelevant in a Court of law as the failure or success of a trade union’s policy, for the injured man must prove that the law has been broken before the Courts can give him any redress. It is regrettable that conflicting rights in this sphere of law are not more extensively regulated by statute; the inevitable result under the jurisprudence of this country and of England has often been that important questions as to how far organised labour may go have had to be decided by the conceptions of individual Judges as to what may or may not be lawful in the milky way of the common law, and some such judgments are by no means a certain guide. In the present case, however, I hope that it will be possible to find solid ground in the common law without resorting to juristic speculation and to confine my judgment to principles that are not seriously controverted. The governing principle is that trade unionists may lawfully combine for lawful common purposes, even though their action inflict irreparable harm upon an individual, so long, and so long only, as they confine their activities to lawful methods.
Some of the circumstances attending the defendants’ campaign are worth noting. The defendants acted rather recklessly, but with a considerable measure of good faith; apart from a minor question as to whether plaintiff should be allowed to return to Waterford before certain other men, they were forcing the pace in favour of a new policy by reason of an objection, strongly felt by a number of the Waterford men, to the return of plaintiff as an active worker for a rival Union, whose strike had in fact proved very unfortunate for some of the men involved. The defendants, greatly encouraged, no doubt, by the success of the irregular action at the North Wall and by the assurance given to Mr. Watters, were entitled to press their views on this question of policy, but there is a right way and a wrong way of asserting one’s convictions and plaintiff’s opponents blundered badly; first, since there are no rules as to length of notice for special meetings, any reasonable practice must be supported, but there was no such urgency in the new departure as could justify the precipitate summoning of the vital second meeting without adequate notice; the defendants say that it was intended to call out only the men working at the depot in Waterford, but even these local men were not duly notified and the meeting purported to be a meeting of the branch and to speak for the branch as a whole. Secondly, there is no doubt that the defendants professed to be delegates from the branch, on whose behalf they warned Mr. Brewer of a withdrawal of labour, if plaintiff were allowed to work in Waterford, but, as the branch had not been properly convened, the branch had come to no such decision and the branch had appointed no deputation to Mr. Brewer. Thirdly, no minutes were recorded of the two important meetings until 18 months later, when this action was begun, whereas other meetings generally seem to have been regularly recorded in the minute book. Worse still, at least two of the defendants and probably all three knew that according to their rules the branch had no right to take strike action without the prior sanction of the Executive Committee of the N.U.R., and a strike by the Waterford men alone would have paralysed an important section of the line. Sect. 55 of the Railways Act, 1924 (No. 29 of 1924) may be important in this connection; it requires the conditions of service of railway employees to be regulated in accordance with agreements between the trade unions and the railway companies, thus giving to the unions concerned, of which the N.U.R. is one of the principal, a statutory participation in the government of the railways, and it is admitted that the unions making such agreements do so on behalf of the men in the grades covered by the agreements, whether members of the signatory unions or not. It may be that one effect of sect. 55 is in appropriate cases to give to the companies and the men affected a specific interest in the faithful observance of a union’s strike regulations by the members of these unions. Again, agreements as to conditions of service affect status, and it may be that the existing agreements affect the right of the railways to discharge summarily a satisfactory servant, for the object of the section and of the unions must be (among other things) to provide for the men at least such a degree of security of tenure as the railway companies may feel safe in conceding. These important questions have only been touched upon in the course of this case; they have not been argued. Moreover, I am not satisfied that all the agreements governing the plaintiff’s conditions of service have been proved, nor has the question of the burden of proof of those conditions been discussed, nor is any reliance placed on any rights derived from sect. 55 in the pleadings; accordingly, while I think that it is necessary to call attention to the section, I must decide this case without regard to it. I have placed it among the surrounding circumstances which it seemed necessary to note in drawing a picture of this case, but in my view of the position a clear and simple ratio decidendifor this case is to be found without regard to these incidentals.
The main question to which I shall address myself is the question whether or not the action taken by the defendants was lawful or unlawful at common law; to that question I think the common law gives a clear answer; the answer to that question of law must, of course, depend upon the relevant conclusions of fact to which the evidence leads me, and those findings, together with some others that are necessarily interwoven with them, I shall now summarise as briefly as the circumstances allow.
The defendants’ purpose was to drive the plaintiff out of the service at Waterford; that meant securing his removal or dismissal. Their motive was to further their trade union interests, as they saw them; it was not malicious in the popular sense of the word, and their combination adds nothing to the plaintiff’s cause of action. Their methods were these:being officials of a local branch of a powerful Union, they called on the local superintendent as a deputation authorised by that branch to threaten an immediate withdrawal of their labour by the members if plaintiff were allowed to work in Waterford; they had no such authority, but the plaintiff, while complaining in general terms of the use of illegal means, refrains from suing for injurious falsehood; had that been the cause of action, I should probably have found that the defendants believed that they had the authority of the branch, though they knew that the rules of the Union as to strikes were being broken; I should then have had to determine whether in this state of affairs they had a lawful excuse for representing themselves as a deputation from the branch. However, that issue does not arise. The threat was calculated to make a powerful impression on its recipient and, since it was to be expected that plaintiff in the circumstances would refuse to leave Waterford, its direct and proximate result was his discharge. The essential fact is that that result was obtained by the threat of a strike in breach of their contracts with the Company by the men concerned.
This civil bill belongs to the elusive category of actions for intentional interference with a man’s employment by illegal means; see Digest of English Civil Law, 3rd ed., par. 984. It is incontestable that the defendants interfered with the plaintiff’s employment by illegal means; for a strike in breach of contract is unlawful and a threat or pre-intimation of unlawful action constitutes illegal means; the right of action is thus established, see Lord Dunedin’s speech in Sorrell v. Smith (1). The fact that plaintiff could have retained his employment by going to the West is no defence; the Company’s instructions to Mr. Brewer, upon which Mr. Brewer acted, in effect gave plaintiff the option and its one concern was to pacify the men by getting him out of the service in Waterford. Nor, in view of the unlawful threat, can sect. 3 of the Trade Disputes Act, 1906, afford a defence, even if there was an actual or contemplated trade dispute; to find any such dispute here would be to ignore the serious irregularities in the creation of the dispute, but the trade dispute question does not arise on my view of that Act and of the facts.
The plaintiff, apart from any improvement which may have been made in his tenure under sect. 55 of the Act of 1924, was at the time of his discharge employed at a weekly wage; when taken back into the service after the strike he had suffered a loss of status: in the event of dismissals for redundancy he would, I am told, have been liable to dismissal before many men who, prior to the strike, would have had to go before him; no written agreement governing this matter of precedence was put in, nor have I seen any seniority lists showing the precise position of precedence of the plaintiff before and after the strike of March, 1935, but I have no doubt that the loss of status in fact occurred and that it was correctly represented to me by Mr. Watters at the trial; before the strike the plaintiff and large numbers of other men had been excepted from the payment of unemployment insurance upon a certificate of the Minister for Industry and Commerce (see the Unemployment Insurance Act, 1920, Schedule I, Part II) to the effect that they were not liable to dismissal except for misconduct or neglect of duty or unfitness; on rejoining the service after the strike the plaintiff lost this immunity and he was not likely to regain it for at least three years; hence, upon dismissals for redundancy, he would be liable to discharge before the excepted men. On the evidence given before me in July last it is reasonably clear that, as matters stood in September of 1935, the plaintiff could legitimately look forward to being retained indefinitely in the Company’s service during good behaviour, unless a time should come when the Company had to discharge him for redundancy, and upon the evidence before me that was not likely to happen; it is notorious that extensive reductions of staff for redundancy have been made in earlier years under the Act of 1924 and an amending Act of 1926, and the question before me is not affected by any developments in the railway position which may have occurred since the trial.
I come now to the question of damages. The plaintiff does not allege that the Railway Company committed any breach of its contract with him in paying him off with a week’s wages, and I shall assume that he suffered no breach of contract at the hands of the Company, but this assumption does not help the defendants, since the plaintiff is not suing them for breach of contract, but for a tort, claiming compensation for a wilful invasion of his employment through illegal interference between himself and his employers, whereby he has been gravely injured. Damage, the temporal loss actually sustained, is the gist of this action, where no contractual right has been disturbed, and I have carefully considered the case law as to the damages which the plaintiff may recover; as, however, this aspect of the matter has not been discussed, I need only say that it is no new law that “in all cases where a man has a temporal loss or damage by the wrong of another, he may have an action on the case, to be repaired in damages” (Com. Dig., tit. “Action on the Case”A). It is quite clear that the fact that the plaintiff might, as between himself and the Company, have been thrown out of the service at any moment on a week’s notice will not prevent him from recovering the damage that he has actually suffered by the loss of his livelihood through the wrongful act of the defendants. The law is that every reasonable presumption should be made as to the benefits likely to have accrued to the plaintiff but for his dismissal. The insecurity of the plaintiff’s tenure must, of course, be taken into account, but it cannot loom large as an element in reducing damages where there is no evidence whatever before the Court that this satisfactory workman was likely to be discharged; the plaintiff’s prospect before the dismissal of retaining his employment for a considerable time was good, but it depended on his continuance in life and health and on various hazards, while his prospect after dismissal, as an unskilled worker, in the fifties, of finding employment was, and remains, remote. As a regular employee of the Company he was earning 45s. a week; in nearly three years since his discharge he says that he has earned less than £10 at casual work; he has therefore suffered serious loss as the direct consequence of the wrongful conduct of the three defendants, and he has given me particulars of that loss, as he sees it. I have carefully considered what sum a jury should and would give him by way of damages for the wrong inflicted upon him, and on a review of all the facts I am of opinion that the sum of £250, which the plaintiff recovered before the learned Circuit Court Judge who first tried the case, represents the just measure of his damages. I shall accordingly enter judgment for him against the defendants in that amount, with costs in the High Court and the costs already awarded to him in the Circuit Court.
Meskell v. Coras Iompair Eireann
[1973] IR 121
Walsh J
On the 29th October, 1960, the defendants dismissed the plaintiff from his employment as a bus conductor in their service. He had been employed in that capacity for a period of 15 years and this action arose out of his dismissal. At all times during his employment the plaintiff had been a member in good standing of a trade union. For seven or eight years preceding his dismissal he had been a member of the Workers Union of Ireland and prior to that he had been a member of the Irish Transport and General Workers Union. When the plaintiff joined the service of the defendants, trade-union membership was not an obligatory term of his employment and it was not required that he should remain a member of a trade union. Trade-union membership was made a condition of contracts of employment of persons joining the defendants’ service as from the year 1958.
During the following years complaints were made by trade unions and by their members that some of their members in the employment of the defendants were falling into arrears with their union dues, and the other members resented working with them. The plaintiff was one of those who expressed this resentment. The trade unions endeavoured to put pressure upon the defendants to do something about it and specifically suggested to the defendants that they should withhold from such defaulting persons the benefits obtained by the unions for their workers in the defendants’ employment. On this point the defendants were advised by counsel that it would not be possible to debar trade-union defaulters from the benefits of agreements made by the defendants with the trade unions, or from local practices and arrangements where introduced by the management with or without the concurrence of the trade unions. This legal view was expressed in relation to those employees who were engaged before union membership became a condition of employment. It is unnecessary to decide in this case whether this could or could not have been done but it is of interest to draw attention to the fact that this very question has been the subject of decisions in other jurisdictions in relation to its impact upon the constitutional rights of the individuals involved. The defendants were also advised that they could not dismiss such men or compel them to join a trade union under threat of dismissal. It does not appear that the trade unions ever asked directly for the dismissal of the men concerned but in the course of many negotiations the trade unions indicated that there was an obligation upon the defendants to take such action as would in effect compel the non-union employees or the defaulting ones to join a union or to put themselves into good standing with the unions of which they were nominally members. There was even a threat of a strike on the part of the union members to compel the defendants to take such a step. The legal opinion which the defendants had obtained was made known to the trade unions concerned.
The final result of all the negotiations between the trade unions and the defendants was that an agreement was arrived at between them whereby all the workers, about 3,000 in all, would be dismissed and at the same time would be offered new contracts of employment on all the terms and conditions existing before plus one addition. The additional condition was that each worker would bind himself to be at all times a member of a representative trade union. It is clear beyond all doubt that the object of this agreement between the trade unions and the defendants was not merely to compel all the persons in their employment to become members of a representative trade union but to remain such while they were in the employment. The plaintiff, who was at all material times a member in good standing of a representative trade union, refused to accept this arrangement. His refusal was indicated by his refusal to accept re-employment with the added condition.
The notice of dismissal to the plaintiff, after setting out the address from which it emanated, namely, the Road Passenger Manager’s Office, and the name, number, grade and depot of the plaintiff, was as follows:”
“Agreement has been reached with the trade unions representative of the road passenger operative grades that it will be a condition of employment of each person employed in those grades that he shall be at all times a member of a union representative of such grades. It was further agreed with the unions to give effect to this agreement by terminating the employment of the employees concerned and at the same time offering them immediate re-employment on the same terms and conditions as heretofore with the added condition that each employee will agree to be a member of a trade union representative of the said grades. Accordingly your services with the Board will terminate on the 29th October, 1960, and you will be re-employed on that date if you have completed and returned the attached application for re-employment to your Garage Superintendent.”
The attached application referred to was in the following terms:”
“To Manager, Road Passenger Section, Amiens Street. I apply for employment by the Board on the same terms and conditions as hitherto with the added condition of employment which I hereby accept that I shall be at all times a member of a trade union representative of the road passenger operative grades.”
This was then followed by the name, grade, depot, staff number of the applicant, together with his signature and date. Pursuant to the arrangement made between the trade unions and the defendants, approximately 3,000 employees had their employment terminated in this form and all the employees, with two exceptions, appeared to accept this arrangement because they applied for re-employment on the new terms and were accepted. The plaintiff was one of the exceptions. According to the memorandum furnished to the personnel manager of the defendants the plaintiff, when approached by a supervisor, stated that on principle he had no intention of signing such a form under duress. It also appeared that when the matter had been discussed before this at a meeting of the members of the plaintiff’s trade union, the Workers Union of Ireland, a majority of those present had voted by a show of hands in favour of adopting the procedure of dismissal and re-employment, but that the plaintiff abstained on the grounds that the proposal was a violation of the individual’s freedom of choice. In the result, the plaintiff’s notice of dismissal became effective; he ceased to be in the employment of the defendants and forfeited such benefits as might accrue to him from continued employment with the defendants and he was compelled to seek employment elsewhere.
On the 25th January, 1962, the plaintiff instituted proceedings against the defendants seeking a declaration that his dismissal on the 29th October, 1960, was effected for the purpose of wrongfully coercing him to be at all times a member of one of the trade unions designated and was an unlawful interference with his rights under the Constitution. He also claimed a declaration that his dismissal was in pursuance of a conspiracy and a combination between the defendants and the Irish Transport and General Workers Union and the Workers Union of Ireland and other bodies and persons who had agreed together with the defendants that the plaintiff should be dismissed from his employment for the purpose of wrongfully coercing him to undertake at all times to be a member of one of the designated trade unions, and that his dismissal was a denial and violation of and an unlawful interference with his rights under the Constitution. He also claimed damages. The defendants denied that the plaintiff’s dismissal was effected for any of the purposes alleged. They also claimed that, by virtue of his membership of the Workers Union of Ireland, the plaintiff had agreed to submit these new conditions of employment to the defendants and that the plaintiff had authorised the said union as his agent to enter into the agreement to which the defendants were parties, and that he is now estopped by his conduct from saying the agreement is unlawful or malicious or amounted to a conspiracy.
The learned trial judge, Teevan J., made no finding and did not base any part of his judgment on the claim of estoppel. In my opinion, on the evidence in this case he could not have done so because, while the plaintiff was a member of the Workers Union of Ireland, there is no evidence whatever to indicate that the plaintiff authorised the union on his behalf to have his employment terminated on the basis of an offer of re-employment on the conditions complained of, nor did he acquiesce in that course; this is borne out by the evidence which points to the fact that the notice of termination was given personally to the plaintiff and that the application for re-employment was to be made personally by him. Nothing in this appeal turns upon that question.
The learned trial judge dismissed the plaintiff’s action. First, he said that he knew of no right of action such as that claimed for damages for what was described as the positive duty of the defendants to abstain from interfering with the plaintiff’s rights and freedom, by which I presume he meant the constitutional rights claimed by the plaintiff to have been infringed. In my view, the learned judge was incorrect in this. It has been said on a number of occasions in this Court, and most notably in the decision in Byrne v. Ireland 16, that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it. Therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that right. As was pointed out by Mr. Justice Budd in Educational Company of Ireland Ltd.v. Fitzpatrick (No. 2) 17, it follows that “if one citizen has a right under the Constitution there exists a correlative duty on the part of other citizens to respect that right and not to interfere with it.” He went on to say that the Courts would act so as not to permit a person to be deprived of his constitutional rights and would see to it that those rights were protected.
The learned trial judge went on to treat the action as one for damages for conspiracy. In the course of dealing with this aspect he said:” “Even were I to assume that the plaintiff suffered damage as a result of the action of the defendants and the unions (and I am far from concluding that he did) the case must fail, for the object or purpose of the agreement was not to injure the plaintiff. The test is ‘what is in truth the object in the minds of the combiners when they acted as they did?'” That test was stated by Viscount Simon L.C. in Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch 18, which the trial judge said had been incorporated into the law of this country by the judgment of the Supreme Court in McGowan v.Murphy (Supreme Court, 10th April, 1967). The learned trial judge was not quite correct in this reference to McGowan v. Murphy. The only reference in that decision to the Crofter Case 18 was as an authority for the proposition that a combination of persons was in a less favoured position than an individual when the sole or main purpose of the combination was the injuring of a person and that person suffers damage. In other words that there can be conspiracy when the object of the agreement is unlawful even when the means are not unlawful. The passage the learned trial judge may have been thinking of was one which was based on the decision in Sorrell v. Smith 19 and which appeared in the judgment delivered in the Supreme Court as follows:” “If, however, the real purpose of the combination was not to injure the plaintiff but to defend the interests of the trade union by maintaining discipline then no wrong was committed and no action will lie even though damage to the plaintiff resulted provided that the means used were not in themselves unlawful.” The key phrase there are the words “provided that the means used were not in themselves unlawful.”
In the present case one may assume for the purpose of the decision that the object of the agreement between the defendants and the trade unions was the well-being of the defendants and of the unions, and even of the members of the unions. The complaint made here is that the means adopted to achieve this end were unlawful. If that is so, then there was a conspiracy. To infringe another’s constitutional rights or to coerce him into abandoning them or waiving them (in so far as that may be possible) is unlawful as constituting a violation of the fundamental law of the State; in so far as such conduct constitutes the means towards an end which is not in itself unlawful, the means are unlawful and an agreement to employ such means constitutes a conspiracy. If damage results, it is an actionable conspiracy. It is not necessary in this judgment to decide whether or not it amounts to a criminal conspiracy. The decision in the Crofter Case 20does not in any way indicate that, because the predominant purpose of an agreement is not unlawful, the agreement cannot amount to a conspiracy even if unlawful means are used. In the present case the learned trial judge concenttrated entirely upon the object or purpose of the agreement, and he overlooked the means employed which were the matters complained of in the action.
The plaintiff’s case rested upon the provisions21 in Article 40, s. 6. sub-ss. 1 (iii) and 2, of the Constitution, and upon the decision of the former Supreme Court of Justice in Educational Company of Ireland Ltd. v.Fitzpatrick. (No. 2) .22 That case decided that the right of citizens to form associations and unions conferred also the implicit right to abstain from joining associations or unions, which might be called the right of dissociation.
One of the questions which was argued in detail in the present appeal was the effect of the constitutional right to form an association, or the constitutional right not to belong to an association, on the ordinary common-law rights of an employer to engage or dismiss his workers when, in doing so, he was not in breach of contract. If an employer threatens an employee with dismissal if he should join a trade union, the employer is putting pressure on the employee to abandon the exercise of a constitutional right and is interfering with his constitutional rights. If the employer dismisses the worker because of the latter’s insistence upon exercising his constitutional right, the fact that the form or notice of dismissal is good at common law does not in any way lessen the infringement of the right involved or mitigate the damage which the worker may suffer by reason of his insistence upon exercising his constitutional right. If the Oireachtas cannot validly seek to compel a person to forgo a constitutional right, can such a power be effectively exercised by some lesser body or by an individual employer? To exercise what may be loosely called a common-law right of dismissal as a method of compelling a person to abandon a constitutional right, or as a penalty for his not doing so, must necessarily be regarded as an abuse of the common-law right because it is an infringement, and an abuse, of the Constitution which is superior to the common law and which must prevail if there is a conflict between the two. The same considerations apply to cases where a person is dismissed or penalised because of his insistence upon, or his refusal to waive, his right to dissociate. In each of these cases the injured party is entitled, in my view, to recover damages for any damage he may have suffered by reason of the dismissal or penalty resulting from his insistence upon exercising his constitutional right, or his refusal to abandon it or waive it. As there is no claim in the present case for reinstatement, I do not need to consider that matter.
The present case is one relating to dismissal only. The defendants, in their submissions in this Court, claimed that neither the constitutional rights mentioned nor the other Articles of the Constitution guarantee to any citizen the right to any particular employment or class of employment, irrespective of membership or non-membership of a trade union. In my view, that point does not arise for consideration in this case and could arise only if this action arose out of a refusal to engage or hire a person seeking employment on the grounds that he was a member of a trade union or on the grounds that he was not, or on the ground that he had refused to given an undertaking either way. I do not wish to express any view on such a case until there is one brought to this Court.
In my view, upon the facts proved in this case the plaintiff is entitled to a declaration that his dismissal was a denial and a violation of and an unlawful interference with his constitutional rights, and that the agreement between the trade unions concerned and the defendants to procure or cause that dismissal was an actionable conspiracy because the means employed constituted a breach or infringement of the plaintiff’s constitutional rights. In my view, the plaintiff is entitled to such damages as may, upon inquiry, be proved to have been sustained by him.
Lastly, the defendants relied upon s. 10 of the Railways Act, 1933, as applied by s. 46 of the Transport Act, 1950. Those sections provide that the rates of pay, the hours of duty and other conditions of service of the road transport employees shall be regulated in accordance with agreements made or to be made from time to time between the trade union representatives of such employees on the one part and the defendants on the other part. The defendants say that the agreement, the subject matter of the present litigation, was such an agreement and was expressly provided for by statute and, as such, could not constitute an actionable conspiracy. In effect, therefore, the defendants say that the statute contemplates that an agreement between the trade unions and the defendants could contain a condition requiring trade-union membership, or membership of a particular trade union, to be a condition of a contract of service between the defendants and their workmen. Article 9 of the Constitution of Saorstát ireann guaranteed the right to “form associations or unions.” For the reasons already given by the former Supreme Court of Justice in the Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) 23, I am of opinion that this guarantee also carried with it the implicit guarantee of the right of dissociation. Bearing in mind the observations of the Chief Justice in The State (Quinn) v. Ryan 24at p. 119 and my own observations at p. 125 of the report, it follows that s. 10 of the Act of 1933 would be construed on the presumption that it was in accordance with the Constitution of the day and that the Oireachtas of the day did not intend it to be otherwise. If s. 10 of the Act of 1933 had purported to give power to the trade unions concerned and the railway company to do what was done in the present case, it would clearly have been in breach of the guarantee contained in Article 9 of the Constitution of Saorstát ireann , 1922.
I do not think that s. 10 of the Act of 1933 is capable of any such interpretation. On the ordinary rules of construction the reference to other conditions of service, being preceded by the express reference to rates of pay and hours of duty, could not be held to include matters so different in kind from the ones mentioned as compulsory membership of trade unions or of some particular trade union or trade unions. In my view, what the statute did aim at was uniformity of rates of pay, hours of duty, and similar conditions of service of the road-transport employees irrespective of whether they were members of trade unions or not.
Section 10 of the Act of 1933 applied to road-transport employees of a railway company identical provisions as those applicable to certain railway employees under s. 55, sub-s. 1, of the Railways Act, 1924. The class of railway employees referred to in the Act of 1924 was set out in the eighth schedule to that Act. Both of these statutory provisions were the subject of a decision in this Court in Transport Salaried Staffs Association v. Córas Iompair ireann . 25 In my own judgment in that case at p. 200 of the report I used the following words which are applicable to both s. 55, sub-s. 1, of the Act of 1924 and s. 10 of the Act of 1933: “That Act, among its other objects, provided for the amalgamation of various railway companies then in existence and one of the objects of the section was quite clearly to achieve a degree of uniformity in the conditions of employment and the rates of pay of the employees of the same or similar classes or grades employed in the various companies. As employees were not necessarily represented by what one might call ‘house unions’ in these particular companies but were catered for by one or more trade unions whose membership covered some or perhaps all of the companies, it was clearly a practical way of achieving uniformity to permit or authorise the companies and the unions to agree on the matters referred to without regard to the size or area of any particular company. Furthermore, it appears to me that the object of the section was to enable this uniformity to be achieved for grades of employees as such rather than the particular members of these grades who happened to be members of a trade union. The object of the section was not to have these agreements negotiated on behalf of employees in the sense that the trade unions might be taken to be the negotiating agents with the power to contract on behalf of each individual member, but rather to set up a uniform standard of rates of wages, conditions of service, hours of duty, etc., which would, by virtue of the statutory provision, be required to be contained in each individual contract of employment between an employee in the grades concerned and his employing railway company.”In my view there is nothing in s. 10 of the Act of 1933 on which the defendants can rely to justify the step they took against the plaintiff in the present case.
It is also of interest to note that Transport Salaried Staffs Association v. Coras Iompair ireann 26 clearly established that those who have an interest in enforcing a statutory duty have a right of action even where the statute itself provides no penalty for breach of the obligations imposed by it and does not indicate any way in which the duty was to be enforced. A fortiori, a person whose constitutional rights have been infringed may sue to enforce them or he may sue for damages suffered by reason of the infringement.
In my opinion the order of the High Court should be set aside and and order made in the terms I have already indicated.
Taylor v. Smyth
[1991] IR 142
Finlay C.J.
5th July 1990
I agree with the judgment to be delivered by McCarthy J.
Hederman J.
I agree.
[McCarthy J.
In his judgment in the High Court, Lardner J. detailed the somewhat complicated facts underlying these proceedings. Whilst the notices of appeal challenge in detail many of the inferences drawn from the facts as he found them, it is not suggested therein nor in the course of the hearing itself that any of the primary facts found by him are not open on the evidence. I therefore gratefully accept the summary of facts set out in his careful and comprehensive judgment delivered on the 20th December, 1988.
By agreement between the parties, the arguments on the hearing of this appeal were first presented on behalf of Kape. Mr. Brady S.C. submitted that Lardner J. was wrong in:
(1) the finding of conspiracy;
(2) the finding of breach of contract;
(3) the assessment of damages;
(4) the order over for costs.
In supporting these submissions, in part, Mr. Callanan, counsel for Philip Smyth, stated that his client is sensitive to what is termed the opprobrium of being found party to a civil conspiracy. This, I think, springs from an understandable but mistaken belief that the word “conspiracy” in this context has overtones of the criminal law. This is not so. If a tort or a breach of contract be committed by two or more persons or bodies who agree to do the particular act or to do it in a particular way, who act, as it is said, in concert, then there is a conspiracy which may, in circumstances that I shall later outline, be an actionable wrong. If opprobrium there be, it derives more from the nature of the wrong agreed to be done rather than from the agreement to do it; this is all the more so where, as here, the conspiracy is alleged between Mr. Smyth as an individual and one or other or more of the companies which he controls, a question to which I now turn. It is argued that since, apart from the banks, the several companies involved in the transaction where wholly controlled by Mr. Smyth, he cannot, in law, so to speak, conspire with himself. He, it is said, is “the sole controlling agent and mind”.
1. Conspiracy
(a) The legal fiction. The principle defined in Saloman v. Saloman & Co. [1897] A.C. 22, which was a case of a “one man” company, has been qualified on many occasions but, as I understand it, remains the law – that a company legally incorporated does not cease to be an independent legal entity, separate and distinct from the individual members of the company, simply because it is wholly controlled by one individual. But, it is said, Mr. Smyth cannot conspire with himself, which is the reality of the allegation insofar as it is said that he conspired with Kape, with Calla, or with Calder all of which companies he controls; reliance is placed upon a decision on trial made by Nield J. in Reg. v. McDonnell [1966] 1 Q.B. 233 where a criminal charge of conspiracy was brought against the defendant and it was contended that there could be no conspiracy because there were not two persons and two minds involved. Nield J. emphasised that it was not a company which was being proceeded against but an individual defendant and, of course, that it was a criminal trial. He concluded at p. 246 that, whilst an indictment for a common law conspiracy to defraud would lie against a limited company, “the true position is that a company and a director cannot be convicted of conspiracy when the only human being who is said to have broken the law or intended to do so is the one director, and that is the situation in the present case.”No authority was cited in support of extending this proposition to an action for civil conspiracy. In principle, it would seem invidious, for example, that the assets of a limited company should not be liable to answer for conspiracy where its assets had been augmented as a result of the action alleged to constitute the conspiracy. Essentially, it would be permitting the company to lift its corporate veil as and when it suits. The matter is not devoid of authority. In Belmont Finance (No. 1) v. Williams Furniture [1979] Ch. 250, Williams Furniture owned City Industrial Finance which owned Belmont, whose majority directors were the seventh and eighth defendants. Four other defendants owned Maximum and wanted to purchase Belmont. They agreed to sell Maximum to Belmont for £500,000 and to purchase Belmont from City Industrial for £489,000. The Belmont directors resolved to implement this agreement and the transaction was completed. Belmont went into liquidation and its receiver sued alleging that the value of Maximum was only £60,000 but that the price of £500,000 for Maximum had been arrived at to enable those four defendants to purchase Belmont with money provided by Belmont, in contravention of the Companies Act. It was held that since Belmont was a victim of the alleged conspiracy and the essence of the agreement was to deprive it of a large part of its assets, the knowledge of its directors that the agreement was illegal was not to be imputed to Belmont merely because they were directors of Belmont. Therefore, Belmont was not a party to the conspiracy. The trial judge had held that the claim in conspiracy failedin limine on the ground that one party to a conspiracy to do an unlawful act cannot sue a co-conspirator in relation to that act. In the course of his judgment, Buckley L.J. said at p. 260:
“I shall deal first with the conspiracy claim. The plaintiff company’s argument is to the following effect: on the allegations in the statement of claim, the agreement was illegal, and they say that an agreement between two or more persons to effect any unlawful purpose, with knowledge of all the facts which are necessary ingredients of illegality, is a conspiracy; and we were referred to Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [1942] A.C. 435 and Reg. v. Churchill (No. 2) [1967] 2 A.C. 224. The agreement was carried out, and damaged the plaintiff company.
In the course of the argument in this court counsel for the first and second defendants conceded that the plaintiff company is entitled in this appeal to succeed on the conspiracy point, unless it is debarred from doing so on the ground that it was a party to the conspiracy, which was the ground that was relied on by the judge.
The plaintiff company points out that the agreement was resolved on by a board of which the seventh and eighth defendants constituted the majority, and that they were the two directors who countersigned the plaintiff company’s seal on the agreement, and that they are sued as two of the conspirators. It is conceded by Mr. Miller for the plaintiff company that a company may be held to be a participant in a criminal conspiracy, and that the illegality attending a conspiracy cannot relieve the company on the ground that such an agreement may be ultra vires; but he says that to establish a conspiracy to which the plaintiff was a party, having as its object the doing of an illegal act, it must be shown that the company must be treated as knowing all the facts relevant to the illegality; he relies on Reg. v. Churchill (No. 2) [1967] 2 A.C. 224.
The plaintiff in its reply denies being a party to the conspiracy and, says Mr. Miller, it would be for the defendants to allege the necessary knowledge on the part of the plaintiff company. But he further submits that even if the plaintiff company should be regarded as a party to the conspiracy, this would not debar it from relief; and he relies on Oram v. Hutt [1914] 1 Ch. 98.”
The point now under consideration in this appeal did not expressly arise in Belmont Finance (No. 1) v. Williams Furniture [1979] Ch. 250, but it must underlie the entire of the argument and judgment in it. The basis of that case was that the separate legal entity of the company may, in law, conspire with those directors who, in effect, control it. In Lennard’s Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. [1915] A.C. 705 Viscount Haldane L.C. said at p. 713:
“. . . a corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.”
That was in the context of the company seeking to take advantage of the limitation of liability under s. 502 of the Merchant Shipping Act, 1894. It is much quoted with particular emphasis upon the subsequent words “his action must, unless a corporation is not to be liable at all, have been an action which was the action of the company itself within the meaning of s. 502.” But the controlling director cannot, in law, be the only director, and all of the directors are responsible for what the company does. Apart from authority, in principle I see no reason why the mere fact that one individual controls the company of limited liability, should give immunity from suit to both that company and that individual in the case of an established arrangement for the benefit of both company and individual to the detriment of others. If such were the case, it would follow that a like arrangement to the advantage of two companies of limited liability, both controlled by the same individual would give an equal immunity from suit to both companies, and so on. I recognise the force of the reasoning by Nield J. in Reg. v. McDonnell [1966] 1 Q.B. 233; I express no view in regard to his conclusion save to point out the obvious – it was a criminal case.
In the course of argument on the hearing of the appeal counsel for Kape expressly contended that it, Kape, was “independent of Mr. Smyth”. His amended defence denies “that he conspired with the second and third defendants or either of them, or with any other person, and each particular of conspiracy alleged is hereby denied as if set forth and traversed seriatim.” No plea was made to the effect that there could not be a conspiracy between this defendant and any or all of the companies which he controls, two of them being the second and third named defendants; such a contention is not reflected in any part of the judgment of Lardner J.; nor does it surface in the detailed notice of appeal save that ground no. 16 alleges “that the learned trial judge erred in fact and in law in holding that the first and second defendants conspired together for an unlawful purpose and in holding that there had been a conspiracy between the first and second defendants and in awarding the plaintiff damages for such conspiracy.” In my view, although this point was not taken on behalf of the respondent, it is not now open to the first defendant to found an argument such as I have sought to outline. In any event it is unsound in principle.
(b) The intent of the conspirators. Kape contends that unless the intention was to harm the plaintiff, rather than to protect the legitimate interests of Mr. Smyth under his personal and varied corporate hats, there can be no actionable conspiracy.
In order to set the scene for consideration of this submission, it is necessary to refer to the decision of this Court, (Henchy, Hederman and McCarthy JJ.) in Smyth v. Taylor heard on the 24th and 25th January, 1984, and in respect of which evidence was given on the trial of this action by Mr. John Blayney S.C. (now Mr. Justice Blayney). This evidence was summarised in his judgment by Lardner J.; I have the advantage of my notes of the argument and of the judgment delivered by Henchy J. Suffice it to say that it was held that rescission could only be granted when it was possible to restore the status quo – in effect, that the consent of the 20th June, 1980, could not be subdivided, rescinding part and leaving the balance in existence, and further, part of the contract had already been performed by Mr. Taylor by his giving consent on the 18th July, 1980, to the assignment of the leasehold. It had, therefore, to be accepted that the consent dated the 20th June, 1980, had to be construed as a single agreement with a number of different provisions; if it were to be rescinded at all it had to be rescinded as a whole, and, in the circumstances, this could not be done. Further, the letters in August and September, 1980, purporting to make time of the essence of the contract did not lawfully have that effect.
In Dillon v. Dunne’s Stores (Georges Street) Ltd. (Unreported, Supreme Court, 20th December, 1968), a case of alleged false imprisonment, Ó Dálaigh C.J. said at p. 10 of the transcript:
“It was moreover submitted on behalf of the Dunnes and the company that conspiracy to commit a tort is not an independent tort. The plaintiff’s submission that it is a tort is novel and without precedent. If one considers the difference between conspiracy in criminal law and the tort of conspiracy it will, in our opinion, become clear why there is no room in civil law for the independent tort of conspiracy to commit a tort.”
[The Chief Justice then quoted a passage from Lord Simon in Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [1942] A.C. 435, at pages 439 – 440. He went on to say:
“The ‘conspirators’ would, in effect, have committed the tort. It is therefore easy to see why the common law has not found the need to find a place for conspiracy to commit a tort as an independent tort. Instead of having ‘conspirators’ the common law has been satisfied with joint tortfeasors. . . . On such argument we have heard we favour the view that there is not a tort of conspiracy to commit a tort; but in the circumstances of this appeal it is not necessary to express a concluded view on the matter.”
In their text book, Irish Law of Torts, Messrs. McMahon and Binchy, in reviewing Dillon v. Dunne’s Stores (Georges Street) Ltd. (Unreported, Supreme Court, 20th December, 1968), comment that “in the light of subsequent decisions in which proceedings for conspiracy have been litigated without any discussion as to the existence of the tort, it is safe to assume that the view tentatively favoured by the Supreme Court in Dillon’s case has been quietly interred.” In McGowan v. Murphy (Unreported, Supreme Court, 10th April, 1967), Walsh J. stated:
“If the defendants combined to procure the expulsion of the plaintiff from the trade union and in so doing had as their sole or main purpose or object the injuring of the plaintiff and the plaintiff suffered damage by reason of it, the defendants would be guilty of the actionable tort of conspiracy, even if the expulsion was not in breach of the rules of the union. To that extent a combination of persons in such circumstances is in a less favoured position than an individual doing the same act. . . . If, however, the real purpose of the combination was not to injure the plaintiff but to defend the interests of the trade union by maintaining discipline then no wrong was committed and no action will lie even though damage to the plaintiff resulted provided that the means used were not in themselves unlawful.”
Much reliance was placed by this appellant upon the English decisions in Lonrho Ltd. v. Shell Petroleum (No. 2) [1982] A.C. 173 and Lonrho Plc v. Fayed [1990] 2 Q.B. 479; the defendants, it is said, were in the present case solely motivated to protect their own interests, in this instance their financial interests and the intoxicating liquor licence – that the damage caused, if damage was caused, was incidental to their conduct motivated in that fashion. In Lonrho Plc v. Fayed it was held, on a preliminary point of law, that where conspiracy is not alleged, the tort of unlawful interference in the trade of another does not require proof that the defendant acted with the predominant purpose to injure the plaintiff rather than to further his own financial ends.
“Until the decision in Lonrho Ltd. v. Shell Petroleum (No. 2) [1982] A.C. 173 it was, we think generally believed than an agreement to do an unlawful act or to use unlawful means was actionable at the suit of any party at whom it was aimed and who suffered foreseeable damage as a result of the agreement being put into effect.”
See the judgment of Slade L.J., in Mettall & Rohstoff v. Donaldson Inc. [1990] 1 Q.B. 391 at p. 452. The English Court of Appeal there examined the history of the tort of conspiracy, so called, and, after an exhaustive review of authority, including the observation at p. 602 that “[e]ven a speech of Lord Diplock is not to be construed like a statute”, concluded that it makes no difference if the acts which A and B agree to perform, and pursuant to the agreement do perform, would if done by either of them alone be lawful or tortious or criminal. There can in English law be no tortious conspiracy actionable at the suit of C unless the sole or predominant purpose of A and B in making the agreement and carrying out the acts which caused damage to C is to injure C. There is no tortious conspiracy if A and B’s sole or predominant purpose is to protect their own commercial interests even if the means employed to that end are tortious or criminal: (see the cited submission for the defendant at p. 595). As appears from a note in 106 Law Quarterly Review 223 (1990), leave to appeal was granted in Mettall & Rohstoff [1990] 1 Q.B. 391 but the case was settled. Lord Diplock’s speech in Lonrho Ltd. v. Shell Petroleum (No. 2) [1982] A.C. 173 upon which the appellant Kape placed such reliance, is much criticised in the L.Q.R. note where the author, John Eekelaar, comments at p. 224:
“it would be hard to defend an outcome in which conspirators who have caused injury by unlawful means are allowed to escape liability for conspiracy if they show that they were predominantly motivated by intention to further their own interests, but are caught if each conspirator is sued as an individual tortfeasor under the tort of unlawful interference in trade. It would be a strange reversal of the common perception that combination strengthens the hands of wrongdoers. Nor can the distinction be defended on the ground that the wrong in conspiracy is inchoate, for the plaintiffs can sue only for damage actually inflicted. The major advantage in framing the action in conspiracy when unlawful means are used is evidential.”
In any event the law in Ireland is clear. In Connolly v. Loughney and McCarthy (1952) 87 I.L.T.R. 49, Dixon J. stated at p. 51:
“A conspiracy, that is the agreement or combination of two or more people . . . was actionable if its object was unlawful or, even though its object was lawful, unlawful means were contemplated or used to attain it.”
In Mcgowan v. Murphy (Unreported, Supreme Court, 10th April, 1967) Walsh J. said at p. 4 of the transcript:
“If, however, the real purpose of the combination was not to injure the plaintiff but to defend the interests of the trade union by maintaining discipline then no wrong was committed and no action will lie even though damage to the plaintiff resulted provided that the means used were not in themselves unlawful.” (emphasis added)
In Meskell v. Coras Iompair Éireann [1973] I.R. 121 Walsh J. said at p. 134:
“In the present case one may assume for the purpose of the decision that the object of the agreement between the defendants and the trade unions was the well-being of the defendants and of the unions, and even of the members of the unions. The complaint made here is that the means adopted to achieve this end were unlawful. If that is so, then there was a conspiracy. To infringe another’s constitutional rights or to coerce him into abandoning them or waiving them (in so far as that may be possible) is unlawful as constituting a violation of the fundamental law of the State; in so far as such conduct constitutes the means towards an end which is not in itself unlawful, the means are unlawful and an agreement to employ such means constitutes a conspiracy. . . . The decision in the Crofter Case [1942] A.C. 435 does not in any way indicate that, because the predominant purpose of an agreement is not unlawful, the agreement cannot amount to a conspiracy even if unlawful means are used.”
Meskell v. Coras Iompair Éireann [1973] I.R. 121 was a case where the unlawful means derived from the infringement of the constitutional rights of the plaintiff; that circumstance does not affect the principle related to the use of unlawful means amounting to an actionable conspiracy. If the observations of Lord Diplock in Lonrho Ltd. v. Shell Petroleum (No. 2) [1982] A.C. 173 as construed in Mettall & Rohstoff v. Donaldson Inc. [1990] 1 Q.B. 391 correctly state English law, then I would hold that our legal paths must in this regard go their separate ways. In McMahon and Binchy, Irish Law of Torts, the authors cite (pp. 444, 445 and 446) the passages from Connolly v. Loughney and McCarthy (1952) 87 I.L.T.R. 49, Meskell v. Coras Iompair Éireann [1973] I.R. 121 and McGowan v. Murphy (Unreported, Supreme Court, 10th April, 1967) to which I have referred and under the heading of “Unlawful Means” state that even though a combination does not get together to commit an unlawful act it may still be guilty of the tort of conspiracy if it adopts unlawful means. In the second edition to this valuable work, having cited from Lonrho Ltd. v. Shell Petroleum (No. 2) in the context of an unlawful means conspiracy, the authors refer to the role of the Constitution as recognised in Meskell v. Coras Iompair Éireann [1973] I.R. 121. In my opinion if there be a combination to use unlawful means to achieve a particular aim, that is an actionable conspiracy, whether or not such means amount to an infringement of constitutional rights. I would emphasise that it is the very combination itself that strengthens the hands of the wrongdoers. It is entirely logical that what is actionable when done by unlawful means such as procuring a breach of contract, is actionable against an individual, even though his purpose be solely one of self interest; it should not cease to be actionable when done in combination by a group with a like purpose. In my view the law is correctly stated in McGowan v. Murphy (Unreported, Supreme Court, 10th April, 1967). If conspiracy be inchoate it is difficult to see how it can have caused damage, a necessary ingredient of every tort. If it be executed, then the cause of action derives from the execution whether it be because of the unlawful nature of the act done or the unlawful means used. Neither of these circumstances, however, would warrant condemning the existence of the tort itself if for no other reason than because of its evidential features. Here, the damage caused is primarily alleged to be due to the unlawful means used – procuring a breach of contract. The issue of conspiracy seems to be one more related to the supposed opprobrium than to its effect on Mr. Smyth’s pocket or the assets of the companies which he controls. I turn to the contractual issue.
2. Breach of Contract.
Kape was not a party to the vendor and purchaser summons; the letter of the 19th August, 1980, purporting to make time of the essence of the contract was sent on behalf of Calder Investments Ltd., the nominated purchaser; the purported rescission was only of the contract for the sale of the freehold which was to be transferred to Calder. Therefore Kape in September and October, 1980, was on serious risk about its security if the intoxicating liquor licence was lost and Kape, as well as the others, it is argued, were then entitled to treat the contract as at an end. There was unreasonable delay but Lardner J. in the court below rejected the idea that that delay in completing the sale of the freehold should by itself properly be regarded as a repudiation of the entire consent; indeed the defendants did not so contend. He concluded that during the two months in question (September and October, 1980) the position in regard to the licence had not significantly deteriorated from what it had been since 1975 and, at p. 156: “It certainly does not seem to me to justify Mr. Smyth or Kape treating the contract of sale as repudiated.” It followed that since Mr. Smyth and Kape had elected to treat the agreement for sale as having been repudiated, they themselves were in breach of contract; as a result of the series of events, the defendants, by transactions involving breaches of contract, have acquired substantially the full consideration to which they were entitled under the contract. Neither of these two defendants have claimed that they suffered loss or damage as a result of the plaintiff’s breach of contract and such a claim by Calla was dismissed with their consent during the course of the trial.
The key is the conclusion by Lardner J. that these defendants were not entitled to treat the contract as repudiated – that the plaintiff’s conduct did not amount to a repudiation. Whilst grave criticism may be expressed of the plaintiff’s conduct, indeed of his misconduct, of his arrogant failure to carry out his obligations under the consent, in my view there is ample support for the learned trial judge’s conclusion that his conduct, however unreasonable on its face, did not entitle these defendants to treat as repudiated a contract which obliged them to pay £95,000 for the lands of which their nominee is the fee simple owner and for which they have only paid a deposit of 25%, the repayment of which is part of Calla’s counterclaim. Since the 18th December, 1980, Calla has been registered as full owner in fee simple of the lands and the plaintiff does not seek to set aside this sale; the defendants, as Lardner J. held, have received substantially the full consideration to which they were entitled under that contract. These proceedings had commenced on the 28th April, 1981, but the statement of claim was amended in November, 1987, and the amended defence was delivered thereafter. Since unlawful means, a breach of contract, was used by the defendants the tort of conspiracy was established. This disposes of the appeal on liability.
3. Quantum
No issue arises as to the plaitniff’s entitlement to the balance of the purchase price save that the property was subject to the mortgage to Barclays Bank and, consequently, it is said the plaintiff would have only received £51,500. The short answer to that proposition was that it is the plaintiff’s business in his relationship with Barclays. Lardner J. analysed the claim for interest including, in particular, clause 2 of the consent. Whilst the plaintiff was prima facie entitled to interest over the eight year period that had elapsed between December, 1980, and December, 1988, when judgment was delivered, and the defendant Smyth through Calla has been in possession of the property, in all the circumstances he restricted the awarded interest to a period of five and a half years but at the rate specified in the consent. I can find no error in the approach made by the learned trial judge and I would affirm the assessment accordingly.
4. The order for costs
In the High Court it was ordered that the plaintiff recover against the first and second defendants, Smyth and Kape, the costs when taxed and ascertained such costs to exclude the costs of the claim for specific performance, and that Kape pay the plaintiff the costs reserved by orders made on application for security for costs and for an extension of time concerning delivery of a reply, and that Calla recover from the plaintiff the costs of the action when taxed and ascertained and that Northern Bank Ltd. recover against the plaintiff its costs of the action when taxed and ascertained with an order over in favour of the plaintiff against the first and second defendants, Smyth and Kape.
Mr. Smyth appealed against the order for costs made against him and against the order over; Kape appealed against the order for costs against it and in particular against the order concerning the two applications of that defendant for security for costs and also appealed against the order over. The plaintiff appealed against the order awarding costs to Calla against the plaintiff.
(a) There is no arguable ground against the plaintiff being awarded the general costs of the action against the first and second defendants.
(b) The costs of the motions for security: the Court has not been provided with any note of any reason stated by the learned trial judge in respect of the award of these particular costs; there is before the Court material by way of affidavit concerning the applications for security.
.
None of this material nor any of the brief arguments advanced in this regard appear to me to warrant interference with the order made.
(c) The order over: It was entirely necessary that Northern Bank Ltd. be named as a party and be bound by the result. That being so and the plaintiff having succeeded in the action the order over must stand.
(d) Calla’s costs: Here the argument is that the defendant, Mr. Smyth, in effect, is each of the other defendants. It was not, it is said, for the plaintiff to try to identify under which thimble the forensic pea was to be found. At the end of the evidence, when Mr. Comyn successfully applied to strike out the allegation of fraud against Calla, Lardner J. dismissed the action against that defendant and reserved the question of its costs until later. Calla was not a party to the consent of June, 1980; in the original statement of claim as filed it was alleged that Calla was at all material times aware that under the terms of the consent Kape had agreed to release the mortgage. In the amended statement of claim it was alleged at paragraph 20:
“In contracting to purchase Taylor’s Grange and in taking a conveyance of it from Kape, Calla dealt with Kape in a manner which it knew was inconsistent with the agreement of Mr. Smyth and Kape with the plaintiff as contained in the consent, and was thereby guilty of inducement of breach of contract whereby the plaintiff has suffered damage and loss in the amount set out in paragraph 18 above.
Further and in the alternative Mr. Smyth, Kape and Calla wrongfully conspired to deprive the plaintiff of his title to Taylor’s Grange by arranging for it to be sold by Kape to Calla in breach of the agreement contained in the consent, and the plaintiff has thereby suffered damage and loss in the amount set out in paragraph 18 above.”
As I have already mentioned, it was only this defendant who claimed damages in his counterclaim. In the reply to that defendant’s defence and counterclaim it was alleged that the registration of the transfer had been procured by fraud. In the light of such an allegation it is difficult to see how this defendant could fail to secure an order for costs against the plaintiff, unless there was some underlying impropriety. This defendant was separately represented by solicitor and counsel and the plaintiff must bear the costs of it.
(e) The question of an order over in respect of Calla’s costs: It cannot be raised here.
Nolan Transport (Oaklands) Ltd. v. Halligan
[1998] IESC 5
Murphy J. (Denham, Barrington and Lynch JJ concurring)
Background
1. Nolan Transport (Oaklands) Ltd (‘the company’) has carried on the business of haulage contractors from premises at Oaklands, New Ross, County Wexford since January 1981. Previously James Nolan (‘the father’) had carried on a similar business from the same premises. He discontinued the business carried on by him in 1980 as a result of financial and other difficulties.
2. The father and his wife, Joan, have thirteen children, namely, Elizabeth, Anne, Patricia, John, Raymond, Seamus, Noel, Brendan, Richard, Kevin, Joan, Oliver and Sally. The share capital of the company comprises 13 shares of £1 and each of the thirteen children is entitled to one such share. Before the company was formed Patricia had had four years experience working in the father’s business. Raymond and Seamus were younger and had little experience of the business at that stage. In order to run the haulage business and to obtain the appropriate Department of Transport licence it was necessary for one of the management team to hold a certificate of professional competence. When the company was formed only the father had such a certificate. He remained involved in the management of the company until Patricia obtained the necessary certificate. There is an express finding by the learned trial judge that since that time the father has taken no part in the management of the company. He is employed largely in a labouring capacity in the company’s yards with a particular responsibility for the lorry wash and the operation of a JCB which is used to spread gravel across the yard on the premises.
3. As the children obtained experience they undertook particular areas of expertise. Patricia Nolan became the chief executive and company secretary, Elizabeth had accountancy experience and is responsible for the accounts and management of the finances of the company. John manages the computer department. Seamus is the garage manager and his task is to manage the operation and to hire and fire drivers. Raymond, Noel and Kevin have responsibility for ensuring that work is carried out in different geographical areas. Brendan and Richard have particular areas of responsibility and others of the children work in the business during their school holidays. Joan Nolan, their mother, is the chairperson and non-executive director of the company.
4. James Halligan, the first defendant had been employed by the company as a driver and in other capacities from time to time from 1981. He returned to the company in about 1990 and about the end of 1991 resumed working as a driver. Henry Nolan, the second defendant, has been a driver with the company since June 1992. Anthony Ayton is a branch official with the fourth defendant (‘the union’). At all material times Mr. Ayton worked in the Waterford branch of the union where the secretary was Ms Margaret DeCourcey. Another official was Ms Maura Caddigan who joined the Waterford branch in January 1993.
5. The company employed approximately fifty-five drivers. In December 1992 some of those drivers wished to join a trade union. Apparently they had a grievance about their pay and conditions. In January 1993, union membership application forms were distributed. On 17 January 1993 a meeting of drivers as union members took place. James Halligan, Henry Nolan and five other drivers were present in addition to Mr. Ayton. Following that meeting Mr. Ayton wrote to the company on 18 January claiming that his union had accepted into membership ‘a large number of your company employees’ and seeking a meeting ‘to set in train the necessary steps to establish what we hope will he a good working relationship’. That letter was addressed to Mr. John Nolan.
6. On 19 January 1993 Messrs Halligan, Nolan and a third driver, Paddy O’Leary. in the course of their duties, met the father in the company’s yard. On the following day, 20 January 1993, all three drivers attended at the company’s premises where they had occasion to meet Mr. Seamus Nolan. Also on 20 January 1993 telephone conversations took place between Ms Margaret DeCourcey and Ms Patricia Nolan as well as a call between Mr. Henry Nolan and Ms Patricia Nolan. Finally, in relation to the events of that day, Ms Margaret DeCourcey wrote to Mrs. Nolan but no reply was received to that letter.
7. The appellants contended that they were dismissed from their employment with the company by the father on 19 January 1993 or alternatively that the conduct of the father and the other members of the Nolan family on 19 and 20 January 1993 led them to believe that they had been so dismissed. The learned trial judge in his judgment expressly rejected the claim that the defendants had been dismissed by the father. The learned judge held that the father did not have authority to dismiss employees and that the defendants recognised that this was so.
8. On 24 January 1993 a further meeting of the members of the union was held in Waterford. Whilst it appears that the relevant union membership had grown to twenty-three at that stage, those present comprised only five members and two union officials, that is to say, the first three defendants, three further drivers and Ms DeCourcey. A decision was made to hold a ballot for industrial action. That ballot was held over a number of days at the terminal in Rosslare, the terminal in Pembroke and on a boat plying between those terminals. In all, twenty-three members of the union voted.
9. By a circular letter dated 25 January 1993 the company informed its employees that they did not have to be a member of a union to work for the company and requested each employee to sign and return the letter to the company if he was satisfied with his conditions of employment. All of the office staff of the company signed the form and all but four, or perhaps five, of the drivers likewise signed.
10. At the meeting of the Waterford branch of the union held on 31 January 1993, seven driver members were present as was Mr. Ayton and Ms DeCourcey. The votes were counted and the result which was declared and circulated was that twenty had voted in favour of strike action and three against. A further meeting of the members was called for 7 February 1993. On the 2 February 1993 strike notice was served for 11 February 1993.
11. Between 2 and 10 February 1993 considerable activity took place. The union initiated a trenchant campaign in support of the planned industrial action whilst the overwhelming majority of the drivers expressed dissatisfaction with it. A petition disassociating themselves from industrial action and expressly refusing to withdraw their labour on 11 February 1993 was signed by forty-eight of the company’s drivers.
12. At the meeting of the trade union held on 7 February sixteen drivers were present. There was a considerable controversy as to what took place at the meeting but the stark fact is that eleven of the drivers gave evidence to the effect that they did not understand the result of the ballot because they were aware that they had themselves voted against industrial action. As the evidence of the drivers was accepted by the learned trial judge, it necessarily followed that the result of the ballot which had been declared on 31 January 1993 was dishonest and the inescapable conclusion reached that the ballot had been ‘rigged’. If a twelfth driver had voted against industrial action – and there was evidence that he did – then the vole would have been against industrial action.
13. Following the expiration of the strike notice, a picket was placed on the company’s premises on 11 February 1993. The picket comprised the first three defendants together with Billy Clarke and Patrick O’Leary. They were subsequently joined by Chris Halligan and David Jones. Notwithstanding the picket the business of the company has continued and indeed its turnover has increased. The relationship between the company and the union and between the striking and non striking employees has been a bitter one with each side making serious allegations against the other. The industrial action in the present case appears to have been particularly abrasive. Those who took up picket duty in February 1993, with the exception of Mr. David Hughes who is resident in Wales, continued with their picket. An application for an interlocutory order to restrain such picketing was made in March 1994. It was granted by Mr. Justice Keane only insofar as the picketing was otherwise than peaceful.
14. The plenary summons herein was issued on II February 1993. The relief claimed therein was as follows:-
1. A declaration that the actions of the defendants in endorsing industrial action against the plaintiff were (and are) unlawful in that they constitute a wrongful inducing of breaches of the plaintiff’s commercial contracts and an interference in the plaintiff’s business relations;
2. A declaration that the industrial action as initiated by the defendant trade union is unlawful in that it is in contravention of the rules of the trade union as stipulated at section 14(2) of the Industrial Relations Act 1990;
3. An injunction restraining the defendants, their servants and agents from:
(a) committing acts of intimidation against the plaintiff’s employees, their servants or agents;
(b) imposing or seeking to impose an embargo on the plaintiff’s business, whether by communicating with the plaintiff’s customers, business associates, consignors, consignees or otherwise;
(c) disseminating or otherwise publishing falsehoods concerning the plaintiff calculated to damage the plaintiff in its business and in its relations with its employees;
unlawfully conspiring to damage plaintiff in his business relations; and
(e) unlawfully inducing breaches of the plaintiffs commercial contracts.
4. Damages as against the defendants for unlawful interference with the plaintiff’s trade and business and for inducing breaches of the plaintiff’s commercial contracts;
5. Damages for interfering with the plaintiff’s business relations and economic interests;
6. Damages in defamation and or malicious falsehoods;
7. Further and other relief; and
Costs.
15. The statement of claim was delivered on 22 June 1993. It was amended twice. The plaintiff claimed that the defendants embarked on a campaign of vilification against the plaintiff by the dissemination of circulars and bulletins containing malicious falsehoods in relation to the plaintiff. It was in the second amendment that the plaintiff sought to impeach the ballot for industrial action on the basis (a) that it was not secret, (b) that it was not carried out in accordance with the rules of the union and (c) that a majority had voted against the industrial action. The contention made by the plaintiff, which is of particular importance, is the plea that there was no bona fide trade dispute for the purposes of the Industrial Relations Act 1990, and that the defendants in promoting and maintaining industrial action had done so solely for the purpose of coercing the plaintiff’s work force into joining the union despite their concerted opposition thereto.
….
55. It seems to me that the inference to be drawn from the events of 19 January 1993 is that the father purported to dismiss the three employees although he had no authority so to do. On the other hand the events, or non-events, of the 20 January 1993 would appear to point strongly to the conclusion that Ms Patricia Nolan and Mr. Seamus Nolan were ratifying the attitude adopted by their father the previous day. Certainly the company did not at that stage ‘clearly and unequivocally’ inform the men and the union that there was no impediment to their return to work.
56. It is difficult to see how the events of 19 January 1993 could be dismissed as a ‘series of rows’. Whilst it is undoubtedly the case that the father was infuriated by the trade union activities of the particular employees, there is no suggestion that on the evening in question any of them did anything to provoke the father or to engage in any argument with him. If he had had the authority which he purported to exercise the words spoken would have constituted a dismissal. The contention made by the company that the dismissals were contrived by the employees does not seem to be supported by any version of the facts. Furthermore if the company had suspected that the three drivers or any of them were pretending to have been dismissed or taking advantage of a temperamental outburst by the father there were three distinct opportunities made available to them ‘to put the record right’. Mr. Seamus Nolan when asked the following day by Mr. Halligan the specific question – as he agreed he was asked – whether he had been sacked could easily have said ‘No. You are not sacked’. Patricia Nolan, whether or not asked by Ms DeCourcey, could likewise have said in her telephone conversation not only was Henry Nolan not sacked but ‘neither was James Halligan’. Again the letter of the 20 January 1993 afforded the company the specific opportunity of denying emphatically that any of the three drivers had been sacked and perhaps adding, if that was Ms Nolans’s view, that the allegations of dismissal were a complete fabrication. As the judge pointed out, there was no evidence tendered by any official of the union as to their belief: but there was sworn evidence by the employee/appellants as to their understanding of the position.
57. As I understand it, the learned trial judge did not find it necessary to reach any concluded judgment on the issue as to whether the parties believed that the employees had been dismissed. He dealt with the matter (at 44) in the following terms:-
58. The silence of the company (in reply to the letter of 20 January) would normally have led the union to believe that Jimmy Halligan and Henry Nolan had been dismissed, even though Margaret De Courcey had been told that Henry Nolan had not been dismissed.
59. However, these dismissals cannot be isolated from the other events taking place at that time. In relation to those events, I have found that the union acted improperly. I cannot divorce those matters from the issue of the dismissals. It seems to me that the union was following one overall strategy and that was to represent the entire workforce. I do not believe that the union ever regarded this issue of dismissals as more than an event to use to its advantage. Counsel for the plaintiff says that these dismissals were contrived. The rows which led to the allegations were not contrived. I do hold, however, that this aspect of the dispute was not pursued bona fide to get the two men back to work but as part of the policy to take all the drivers into membership:
60. I believe that the learned trial judge accepted that Mr. Halligan did have an honest belief that he had been dismissed from his employment. The learned judge held, however, that the existence of a trade dispute based on that belief did not in the circumstances provide the statutory defence or immunities ordinarily available to employees and trade unions. What Barron J decided was, first, that the dispute relating to the employment of Mr. Halligan and the other drivers was not in truth or in substance the injustice which the union sought to remedy by (he industrial action and secondly that the true purpose of that industrial action was to coerce all of the employees of the plaintiffs into the membership of the union.
61. I find myself in disagreement with Barron J as to the inferences which he drew in relation to the motivation and purpose of the union and the legal principles which are applicable where industrial action is undertaken with a view to achieving more than one objective. The trial judge adverted to a number of factors including the speed with which events unfolded; the absence of proper consultation for the purpose of considering industrial action; the publication of slanted and dishonest communications by the union officials; exaggerated statements as to the number of drivers who had joined the union, and the failure of previous efforts to organise the union within the company. These were the factors which the judge concluded supported the allegation ‘that the real purpose of the union’s actions was to represent the entire workforce’. I do not agree that those factors would justify the inference that a trade union was attempting or would attempt to institute industrial action for the purpose of coercing an employer and its employees into a closed shop agreement. I would readily accept that any trade union would wish to expand its membership and the extent of its representation in any industry or with any particular employer but I would be very slow indeed to infer that a trade union would, in the present state of the law, attempt to impose a closed shop.
The Educational Company of Ireland Ltd v Fitzpatrick & Ors (No. 2) [1961] IR 345 is long established authority for the proposition that the Trade Disputes Act 1906 could not be relied upon to justify picketing in aid of a dispute concerned with an attempt to deprive persons of the right of association (or disassociation) guaranteed by the Constitution. As Kingsmill Moore J said (at 398):-
62. The definition of trade dispute must be read as if there were attached thereto the words, “Provided that a dispute between employers and workmen or between workmen and workmen as to whether a person shall or shall not become or remain a member of a trade union or having as its object a frustration of the right of any person to choose with whom he will or will not be associated in any form of union or association shall not be deemed to be a trade dispute for the purposes of this Act.”
63. In that case it was argued that the dispute was being used ‘as an instrument or a cloak’ to defeat the rights of certain aggrieved workers. Those employees of the Educational Company, who were members of a trade union, voted to refuse to remain at work with fellow employees who were not members of that union. When the management of the plaintiff company declined to compel any of the employees to join the union concerned it was resolved by the executive committee of that union to serve strike notice in support of their demands. It was clearly and frankly asserted then, though it might be surprising now, that the union and its members had the right to engage in a trade dispute for the purpose of compelling fellow members to join the trade union. There was nothing secretive or underhand about the actions undertaken by the union or its members. Nor was there any real doubt hut that the dispute was or would have been a dispute within the meaning of the 1906 Act as enacted. The issue was whether the protection afforded by that Act could be availed of where the industrial action to he taken infringed the right of the non-union workmen’s constitutional right of free disassociation.
64. The judgment in the Educational Company case contained a number of references to a trade dispute being ‘genuine’ or ‘bogus’ and to ‘disputes being engineered for the aggrandisement of the union’ but there was never any doubt as to what the purpose of the strike was in that case. It was to compel particular employees who did not wish to do so to join a trade union.
65. The present case is almost totally the reverse of the Educational Company case. Here the trade union disavow any intention to recruit all the drivers in the company or to compel any of them to join the union or to pressurise their employer to achieve that result. The expressed aims of the industrial action and the mandate expressly sought by the union related to the reinstatement of employees who the union claimed had been dismissed. It could never be suggested that that purpose, if genuine, offended any constitutional provision.
66. The learned trial judge placed very considerable reliance on an extract quoted from the judgment of O’Daly J in the Silver Tassie Co. Ltd v Cleary [1958] ILTR 27 in the following terms (at 31):
67. The dispute must be genuine and not merely colourable. It is quite clear that the genuineness of a dispute does not depend upon what are the true facts of the dispute, but rather it depends on the bona fides of the parties.
68. In fact O’Daly J was dealing with two different concepts in those sentences. He had quoted Conway v Wade [1909] AC 506 as authority for the proposition that ‘a mere personal quarrel or grumbling or an agitation will not suffice; it must he fairly definite and of real substance’. It was in that context that he explained that ‘[t]he [trade] dispute must be genuine and not merely colourable.’
69. The entire basis of the Silver Tassie case was that an employee of the plaintiff company had been dismissed – allegedly on the grounds of redundancy – and his union demanded his reinstatement and took industrial action in pursuance of that demand. It was contended that the demand for reinstatement and its refusal simpliciter constituted a trade dispute. Neither Dixon J in the High Court nor O’Daly J in the Supreme Court dealt with the issue on that basis. They both held that there was a trade dispute where the employee bona fide believed that there were no proper grounds for his dismissal. Dixon J had expressed his views on the matter in the following terms (at 29):-
70. It was the function of the court to decide whether such a dispute existed but it was not the function or right of the court to decide whether the attitude or belief of the employee or Union was a well founded one, except insofar as the complete lack of any reasonable basis for the particular attitude or belief might lead to the conclusion that it was not a genuine or bona fide one. The absence of bona fides would involve the absence of any genuine dispute.
71. It was that view which O’ Daly J was upholding when he went on to say:-
72. It is quite clear that the genuineness of a dispute does not depend upon what are the true facts of the dispute, but rather it depends on the bona fides of the parties.
73. That sentence read independently of the facts under consideration can be misleading and perhaps misled the learned trial judge. Taken in context it does not authorise a review of the conduct of those engaged in industrial action to determine their motivation or ultimate ambitions. Applied to the facts of the present case the conclusions of the High Court and the Supreme Court in the Silver Tassie case would only justify the Court in the instant matter in considering whether any evidence existed to justify the belief of Mr. Halligan and his union that he had been dismissed, and more particularly wrongfully dismissed, from his employment with the company. Having regard to what the father said, and what Mr. Seamus Nolan and Ms Patricia Nolan did not say, as to Mr. Halligan’s employment with the company, provides at the very least a reasonable basis for the belief claimed by Mr. Halligan and his union. In the circumstances I believe that the dispute between the appellants and the company was bona fide in the sense that Mr. Halligan had an honest belief for which there were reasonable grounds and further that the dispute was genuine in the sense that it represented the immediate quarrel between the parties. I would hesitate to conclude that the particular factors identified by the learned trial judge in his judgment, however reprehensible they may have been, justified the inference of an intention on the part of the union to compel the company’s employees to join the union. Even if that could be identified as the ultimate goal of the union it did not represent the current dispute. In the very nature of the declared aims of the dispute I do not see how it could have achieved the ambitions which have been attributed to the appellant union. Perhaps successful industrial action would have enhanced the standing of the union with many of the employees but a gain in membership in that way could not be challenged as unconstitutional or improper. At worst it would seem to me that the irregular and improper conduct in which the union was engaged might suggest a willingness by it to take industrial action in the future for an improper purpose but no future plan could render unlawful a dispute which was protected by the relevant legislation nor, indeed, render lawful a current dispute which did not have the necessary statutory ingredients to gain such protection.
74. Part of the difficulty arises from the fact that lawyers and judges have used the words ‘bona fide trade dispute’ with different meanings and in different contexts. If employers and workers both acknowledge themselves to be engaged in a trade dispute there is no difficulty in describing it as a bona fide trade dispute. But a bona fide trade dispute may also exist where one party denies that there is any dispute and the other believes that he has been wronged and is in dispute as a result. On the other hand an outside party or ‘meddler’ who had no legitimate interest of his own to protect but who stirred up trouble in a business for reasons of malice or spite could not claim to be engaged in a bona fide trade dispute. This kind of case, which must surely be rare, was referred to by Lord Loreburn in Conway v Wade, where he said (at 512):-
75. If, however, some meddler sought to use the trade dispute as a cloak beneath which to interfere with impunity in other people’s work or business, a jury would be entirely justified in saying that what he did was done in contemplation or in furtherance, not of the trade dispute, but of his own designs, sectarian, political, or purely mischievous, as the case might be. These words do, in my opinion, in some sense import motive, and in the case I have put a quite different motive would be present.
76. If however a bona fide trade dispute does exist between an employer and workers, some of whom happen to be members of a trade union, the trade union is entitled, within the constitution and the law, to support its members who are in dispute. That, in doing this, it may be partly motivated by the aim of impressing its members and other workers and enhancing its own reputation and membership appears to me to he quite irrelevant as long as it acts within the law and does not attempt to infringe the constitutional right of each worker to join or not to join a trade union as he himself thinks best.
77. It follows that the appellants were entitled to the statutory immunities conferred on those engaged in activities in furtherance of a trade dispute save in so far as those privileges were removed or restricted by the Industrial Relations Act 1990.
Was the union entitled to authorise strike action?
Clearly the Industrial Relations Act 1990 is of historic importance. It repealed in whole the Trade Disputes Act 1906 which had for nearly a century provided the legal framework by which industrial action had been governed. Whilst many of the concepts enshrined in the 1906 Act were preserved and much of the detail reenacted, significant amendments have been made to the previous legislation. Clearly the legislature sought to achieve a greater degree of responsibility by unions and their members in pursuing industrial action; additional protections for trade unions which acted with that sense of responsibility and a degree of discipline within the trade union movement which would ensure that settlements negotiated with employers would he observed by all trade unionists.
78. Perhaps the most revolutionary provision of the 1990 Act (Part H) was section 14 which provides as follows:-
14—(l) This section shall come into operation two years after the passing of this Act (“the operative date”).
(2) The rules of every trade union shall contain a provision that
(a) the union shall not organise, participate in, sanction or support a strike or other industrial action without a secret ballot, entitlement to vote in which shall be accorded equally to all members whom it is reasonable at the time of the ballot for the union concerned to believe will be called upon to engage in the strike or other industrial action;
(b) the union shall take reasonable steps to ensure that every member entitled to vote in the ballot votes without interference from, or constraint imposed by, the union or any of its members, officials or employees and, so far as is reasonably possible, that such members shall be given a fair opportunity of voting;
(c) the committee of management or other controlling authority of a trade union shall have full discretion in relation to organising, participating in, sanctioning or supporting a strike or other industrial action notwithstanding that the majority of those voting in the ballot, including an aggregate ballot referred to in paragraph (d), favour such strike or other industrial action;
(d) the committee of management or other controlling authority of a trade union shall not organise, participate in, sanction or support a strike or other industrial action against the wishes of a majority of its members voting in a secret ballot, except where, in the case of ballots by more than one trade union, an aggregate majority of all the votes cast, favours such strike or other industrial action;
(e) where the outcome of a secret ballot conducted by a trade union which is affiliated to the Irish Congress of Trade Unions or, in the case of ballots by more than one such trade union, an aggregate majority of all the votes cast, is in favour of supporting a strike organised by another trade union, a decision to take such supportive action shall not be implemented unless the action has been sanctioned by the Irish Congress of Trade Unions;
(f) as soon as practicable after the conduct of a secret ballot the trade union shall take reasonable steps to make known to its members entitled to vote in the ballot:
(i) the number of ballot papers issued;
(ii) the number of votes cast;
(iii) the number of votes in favour of the proposal;
(iv) the number of votes against the proposal; and
(v) the number of spoilt votes.
(3) The rights conferred by a provision referred to in subsection (2) are conferred on the members of the trade union concerned and on no other person.
(4) Nothing in this section shall constitute an obstacle to negotiations for the settlement of a trade dispute nor the return to work by workers party to the trade dispute.
(5) The First Schedule to the Trade Union Act, 1871, is hereby extended to include the requirement provided for in subsection (2).
79. It has been said that section 14 requires that industrial action should be authorised by a secret ballot but such a statement is misleading. The statute requires that the rules of the trade union should contain provisions in relation to such ballots and imposes sanctions for the failure either to have such rules or to observe them. On the face of it, the participation by a trade union in or its support for a strike or other industrial action without the authority of a secret ballot of its members would he a matter of internal management of the affairs of the union and constitute a breach of contract between the executive of the union and the membership rather than a breach of statutory duty. This interpretation is confirmed by section 14(3) which expressly provides that the rights in relation to a ballot are ‘conferred on the members of the trade union concerned and on no other person’.
80. However, that important distinction in principle having been made, it must be recognised that the legislature can, and in the 1990 Act did, confer particular rights and duties on ‘outsiders’ in consequence of or by reference to the holding of a secret ballot. An express provision to this effect is contained in section 17 of the 1990 Act which provides as follows:-
17.—(1) Sections 10, 11 and 12 shall not apply in respect of proceedings arising out of or relating to a strike or other industrial action by a trade union or a group of workers in disregard of or contrary to the outcome of a secret ballot relating to the issue or issues involved in the dispute.
81. It is the excluded sections which confer immunity on persons who might otherwise be liable for conspiracy criminally, picketing civilly or inducing breach of contract or interfering with trade or business.
82. Whilst, however, individuals may lose these valuable protections where they engage in industrial action ‘in disregard of or contrary to the outcome of a secret ballot,’ unions themselves are not penalised in that way. The statutory protection conferred upon a trade union is set out in section 13 in the following terms:
83. I 3.—(1) An action against a trade union, whether of workers or employers, or its trustees or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act committed by or on behalf of the trade union in contemplation or furtherance of a trade dispute, shall not be entertained by any court.
(2) In an action against any trade union or person referred to in subsection (1) in respect of any tortious act alleged or found to have been committed by or on behalf of a trade union it shall be a defence that the act was done in the reasonable belief that it was done in contemplation or furtherance of a trade dispute.
84. If a union were to engage in industrial action in disregard of the wishes of its members expressed in a secret ballot it would not forfeit the immunity conferred upon it by section 13. Instead it would risk the loss of its negotiating licence in accordance with the provisions of section 16 of the 1990 Act.
85. Where employees engage in industrial action ‘in disregard’ of or contrary to ‘the outcome of a secret ballot’ their activities do not enjoy the statutory protections. In the present case either no secret ballot was held or else the secret ballot ‘in its outcome’ authorised the industrial action so that there is no question of the individual appellants acting in disregard of the resolution of their colleagues. Even if the evidence justified the conclusion that the majority of the employee/members of the union voted against industrial action the reconstruction of the resolution in pursuance of the decision of the court could hardly be regarded as ‘the outcome’ of the ballot and certainly it could not be suggested that the striking members acted in disregard of it. From the point of view of the union the holding or not holding of the secret ballot or the manner in which it was held does not impinge in any way on the rights of the union, vis-à-vis the company employers. Their immunity under section 13 of the 1990 Act would remain unaffected.
86. The provisions of section 19, which are novel and designed to safeguard the interests of those engaged in industrial action were not directly material to any matter in issue in the present case. Reference was made to that section only for the purpose of identifying the purpose and proper interpretation of the Act as a whole.
Section 19 alters the law in relation to the circumstances in which an interlocutory injunction may be granted to restrain a strike or other industrial action. The right to obtain, or even to apply for, an interim injunction to restrain industrial action is restricted by subsection (1) which provides:-
19.—(l) Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, that employer shall not be entitled to apply to any court for an injunction restraining the strike or other industrial action unless notice of the application has been given to the trade union and its members who are party to the trade dispute.’
87. The position with regard to an interlocutory injunction is dealt with in section 19(2) which provides that:-
(2) Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, a court shall not grant an injunction restraining the strike or other industrial action where the respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute.
88. The express reference in both subsections (1) and (2) of section 19 to a secret ballot ‘held in accordance with the rules of a trade union as provided for in section 14, particularly in the absence of any similar reference in section 17 do suggest that those engaged in industrial action cannot rely on the protection afforded by the section if it is established that a purported secret ballot was not held in accordance with the provisions of section 14. In principle this is unexceptional. Where a significant statutory benefit is conferred on one litigant at the expense of another upon express statutory terms, the benefit should not be available if the terms are not fulfilled. The question has arisen in this case on the interlocutory application before Mr. Justice Keane in the High Court on 22 March 1994 and in G & T Crampton Ltd v Building & Allied Trades Union [1998] ELR 4 as to the party on whom the onus falls of proving or disproving the performance of the statutory conditions precedent and more particularly the nature and extent of the proof to be adduced in that behalf. In his judgment Keane J was dealing with the facts the subject matter of these proceedings and examining in relation thereto the novel provisions of section 19(2) of the 1990 Act. Having quoted that section the learned judge commented as follows (at 3):-
89. The object of that subsection is relatively clear. Prior to its enactment it was quite a common occurrence for employers to apply to the court for an interim hut not always an interlocutory injunction restraining picketing, in particular on the ground that there was a serious question to be tried as to whether there was any dispute in existence and that the plaintiff would suffer irreparable damage if the picketing continued and for which damages would not be an adequate remedy. It is a matter of common knowledge that the frequent use of that procedure by employers meant that the use of what were otherwise legitimate methods sanctioned by the law by trade unions of advancing their interests were effectively neutralised by the way in which the law operated.
. . . Be that as it may, whilst [the subsection] does afford an important protection to trade unions, there is also a specific and very important requirement that the subsection only comes into place, as it were, where there has been a secret ballot held in accordance with the rules of the trade union, as provided for in section 14. The other factor which the Oireachtas clearly took into account is that the protection of this section should only be available to trade unions who ensure that the action undertaken has the support of union members and that it has their support as demonstrated in a secret ballot.
90. On the interpretation of section 19(2) Keane J said as follows (at 4):-
91. I pause here to say that whilst there appears to he no authority on the section, it seems to me as a matter of first impression that the onus must be on the person resisting the injunction to establish that the provisions of section 14 have been complied with, which seems to me to be crucial to the operation of the section.
. . . Before a trade union is afforded the protection of section 19 and, conversely, an employer is deprived of the protection that he would normally have at common law in relation to the obtaining of an interlocutory injunction in circumstances where his business is or could be affected, I would take the view that the court must be satisfied on the evidence before it that section 14 has been complied with.’
92. In fact Keane J went on to say that there was not evidence before him of sufficient weight to indicate that section 14 had been complied with and accordingly refused the benefit of section 19(2) to the trade union. Clearly the learned judge made that determination on the balance of probabilities. In relation to the substantive issue between the parties he was merely concerned as to whether ‘there was a serious issue to be tried’. In the Crampton case Laffoy J agreed that the onus of the conditions precedent to the operation of section 19(2) fell on the party resisting the injunction. Laffoy J analysed the statutory conditions and in particular referred to the requirements of section 14(2)(f) relating to the proposals voted upon and pointed out that there was no evidence before her in relation to compliance with such conditions. Accordingly, she rejected the particular defence or restriction claimed by the trade union under section 19 of the 1990 Act. The judgment of Laffoy J was appealed to this Court and was upheld in an ex tempore judgment delivered by the Chief Justice reported at [1998] ILRM 4. In particular the Chief Justice concluded at 18 that:-
the learned trial Judge was entitled to come to the conclusion that the condition precedent to the implementation of section 19 was not established.
93. It is proper, however, to note that the Supreme Court appeared to have had before it evidence which was not available in the High Court. At 16 the Chief Justice commented:-
94. I am very conscious of the fact that in her recital of the relevant facts, [the judge] did not have the benefit of the affidavits sworn by Mr. Lamon dealing in detail with the circumstances in which the secret ballot was held, the voting thereon and of such like.
95. Again the Chief Justice raised without resolving the issue whether a proposal put before a secret ballot for the purposes of section 14 of the 1990 Act must particularise the nature of the industrial action for which the trade unions sought the support of their members.
96. In the circumstances it may be said that there has not been a definitive interpretation of section 19(2) of 1990 Act but I would find it difficult to escape the conclusion reached by Keane J and accepted by Laffoy J that the onus lies upon the party resisting an application for an interlocutory injunction to show that a secret ballot as envisaged section 14 has been held. Moreover it could hardly be sufficient to establish the existence of a stateable case in relation to the compliance with the rules required to be adopted by a union pursuant to section 14 aforesaid. The decision of a court on an interlocutory application as to whether or not the particular immunity granted by section 19(2) is available is itself a final decision and determines finally whether that statutory benefit is available to the trade union. Concern must exist, as to how decisions of that nature could be made in practice. There maybe serious difficulty, and even a degree of unreality, in requiring the court to make an actual determination on the balance of probabilities as to whether all of the requirements of the secret ballot have been complied with when the substantive issue itself is dealt with at that stage on the basis of ‘a serious issue to he tried’. The demands which such a requirement could impose are illustrated by the urgency with which the interlocutory proceedings in the Crampton case were dealt with in both the High Court and this Court and to which the Chief Justice drew attention in his judgment.
97. I am confident that the trade union movement will, if it has not already done so, arrange that the rules of all unions are amended so as to comply with the requirements of section 14 and, of equal importance, that secret ballots will he conducted not merely in accordance with the terms of such rules hut also under professional and independent guidance which will guarantee that all appropriate conditions are complied with and facilitate the union in proving that such was the case. Clearly the events which the learned trial judge found to have happened in the present case must never occur again. The difficulties which emerged in the Crampton case must be avoided. No doubt trade unions will comply with their own regulations. Furthermore, they owe it not only to themselves but also to their members and to the public to be in a position where they can comfortably demonstrate such compliance. When such steps have been taken perhaps the problems in relation to the interpretation of section 19 will become irrelevant. In any event I would prefer to reserve a final decision as to the proper interpretation of that section until a case directly involving it comes before the Court.
98. The conclusion that a trade dispute exists and that the statutory immunities are available to appellants means that the judgment of the learned trial judge cannot be upheld. The injunctions granted must be discharged. Whether any finding of wrong doing by any of the defendants or any part of the award against them can be sustained is a matter on which the parties must be heard before a final order can be made.
O’Flaherty J. (Denham, Barrington and Lynch JJ concurring)
99. I agree with the judgment of Murphy J on the two issues in the case:-
(1) Whether or not a trade dispute existed.
(2) Whether or not the union was entitled to authorise strike action having regard to the manner in which the ‘secret ballot’ was conducted and the manner in which those voting actually voted.
100. The evidence is clear that there was a trade dispute. The men, at the very least, had good grounds for thinking themselves dismissed. I am afraid that both employers and striking employees conducted themselves in a manner best calculated to bring about the maximum degree of misunderstanding as to their respective positions. Any form of conciliation, arbitration, or dispute resolution was zealously avoided.
101. The finding that the union was conducting affairs with the sole purpose or motive to get a foothold in the company and unionise the whole workforce cannot stand. If that had been the union’s motive, it went about it in the worst way possible.
102. This tedious litigation dragged itself out for 28 days in the High Court. There had been a pit stop by way of an application for an interlocutory injunction, brought with no excessive haste – twelve months after the beginning of hostilities – which was refused by Keane J.
103. On reading through the sorry saga unveiled in these papers, I could not help hut think that I was living in another era, at about the turn of the century. We have surely advanced from the culture that then prevailed. Unions arc now very powerful bodies, with highly trained professional staff. The days of the ‘class struggle’ should be regarded as long gone. On the other hand, employers have an obligation to accord trade unions a measure of respect representing as they do the rights of the workers.
104. An unfortunate aspect of the present case is that the employers appear to have approached it on the basis that either all the workers joined the trade union or none of them joined and that the decision was to be made by the majority of the workers. But the constitutional right of each worker to join or not to join a trade union is well established in Irish law. No worker can he forced to join a trade union against his will and likewise no worker can be denied his right to join a trade union which is prepared to accept him. These are matters of constitutional right and are not capable of being resolved by a majority vote unless all the workers have freely agreed to have the matter so resolved.
105. The State, representing the rest of us ordinary citizens and taxpayers, has a very keen interest in seeing to the harmonisation of industrial relations. We all stand to lose too much where there is strife and conflict. We should now have advanced sufficiently in our respect for democracy and the rule of law in all its refinements to work out a better way. At this stage of our development, this country should he an example to other countries on how to avoid industrial conflict, and when conflict does arise on how to resolve it speedily. That is good for everyone; it will lead to more employment and increased trade.
106. The whole point of the Industrial Relations Act 1990 was to streamline this area of the law and copper-fasten the special privileges of trade unions in many respects and to give them additional rights. Indeed, it is the whole point of section 14 of the Act which provides for the necessity of having in the rules of a trade union a requirement to hold a secret ballot before a strike is called. This is primarily designed to strengthen the role of union management against the actions of maverick members, and to reverse the construction placed on the then existing law by the decision of this Court in Goulding Chemicals Ltd v Bolger [1977] IR 211.
107. This is clear from the wording of subsection (3) which provides:-
108. The rights conferred by a provision referred to in subsection (2) are conferred on the members of the trade union concerned and on no other person. (emphasis added)
Section 13 stands unaffected by whether there has or has not been a ballot. It provides:-
(1) An action against a trade union, whether of workers or employers, or its trustees or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act committed by or on behalf of the trade union in contemplation or furtherance of a trade dispute, shall not be entertained by any court.
(2)In an action against any trade union or person referred to in subsection (1) in respect of any tortious act alleged or found to have been committed by or on behalf of a trade union it shall be a defence that the act was done in the reasonable belief that it was done in contemplation or furtherance of a trade dispute.
109. Counsel for the appellants went too far, however, in saying that we should have no regard to a breach of the ‘secret ballot’ provisions as far as this litigation is concerned. They submitted that the requirement of the legislation was that there should be provision in the union rules for the holding of secret ballots. If the rules did not so provide, then the sanction was that the union would be deprived of its negotiating licence. While the necessity for secret ballots is not a direct requirement of the legislation, for my part I do not regard this as an important distinction. The purpose of this part of the legislation is clear: it is to strengthen the hand of union management by having a proper secret ballot before a strike is called. The ballot in this case, whether it was rigged or not, was certainly something of a shambles. The learned trial judge has detailed the various irregularities that occurred. The big fault with the whole operation, in my belief, is that there was not an impartial person in charge who would have made sure that a proper ballot was held with a due sense of decorum and correctness.
110. If there is one lesson that can be learned from this litigation it is surely that the requirements for having a proper secret ballot should always be observed. The experience of the integrity that returning officers bring to their task in conducting Dáil Éireann elections is instructive. In any case where a secret ballot is required there should be correct ballot papers with the issue set forth clearly, and, ideally, an independent person should be brought in to supervise the whole operation and adopt much the same role as a returning officer does in the case of a Dáil Éireann election. He or she should be impartial, and be seen as such, strict in seeing that the rules are observed and clear in the rulings made.
111. Therefore, while I agree that the legislation touching the holding of secret ballots is there primarily as a matter of internal trade union management, I reject the submission that once such a shambles as is disclosed as regards the ‘ballot’ that was held here occurs that we should simply turn a blind eye to it. The duty to observe the law devolves on everyone – I have already said that simply because the obligation comes through the rules rather than directly from the legislation is of no great importance – so there is a serious obligation on union management to give proper example to the rest of the people by ensuring that the requirements concerning the holding of a proper secret ballot are always observed. Once that is done, then there need be no repetition in the course of judicial proceedings of the circumstances surrounding the holding of the ballot. Things should be manifestly correct, so that time need never again be taken up with a long debate as to the rights and wrongs of the holding of any ballot.
112. After all, as I already indicated, the legislation solidifies and, indeed, expands the privileged position afforded by the law to trade unions. Privileges carry duties as well as rights.
113. That said, however, the essential position is that there was here a trade dispute and those engaged in it are protected, and the union has its statutory immunity from suit. This irregular ballot led to a lot of trouble, nonetheless, and many days were spent on it in the High Court. The union cannot avoid blame for that. This will have to be dealt with in deciding on the proper order that should be made on costs.
114. I would allow the appeal but with the same qualification that Murphy J has set forth in the course of his judgment as to certain matters on which we should hear further submissions.
James McMahon Ltd. v James Dunne and Patrick Dolan
High Court
9 November 1964
[1965] 99 I.L.T.R 45
Budd J.
October 26th, 27th, 28th, 29th, 30th, 1964; November 9th, 1964
Budd J.:
The plaintiffs in these proceedings are timber merchants and builders’ providers carrying on business in Limerick. The first named defendant is the general secretary of the Marine, Port and General Workers’ Union (hereinafter generally referred to as the Union) The second named defendant is a member of the union and is the head checker employed by Messrs George Bell and Company, stevedores.
The plaintiffs issued proceedings on the 20th October last against the defendants claiming an injunction to restrain the defendants or their servants or agents, in combination or otherwise, from interfering with, or preventing, the performance of certain contracts between the plaintiffs and certain firms stated and named in the plenary summons, or procuring, or inducing breaches of such contracts There was also a claim for damages for conspiracy to procure breaches of contract and for damages for wrongfully procuring the same The summons contained the usual claim for further or other relief.
The plaintiffs having obtained an interim injunction from Henchy J. on October 20th, 1964, then served the notice of motion now before me seeking an interlocutory injunction restraining the defendants, and each of them, and their respective servants and agents, until after the trial of this action from preventing, or interfering with, or authorising the prevention or interference with, the delivery or removal of goods consigned to the plaintiffs which are now in the port of Dublin The plaintiffs have sought an amendment to this notice of motion to cover further consignments of goods expected shortly to arrive The plaintiffs state that they accidently confined themselves in their application to seeking an injunction that only covered goods at present in the port of Dublin Since further cargoes are due to arrive it will obviously lack all reality in the circumstances if any injunction to be given was confined to cargoes at present in the port. Such a course would lead to an utterly unnecessary expenditure in costs, because, if an injunction with regard to the goods at present in the port were to be granted, the plaintiffs could obviously come in tomorrow and obtain an injunction with regard to future cargoes. In my view it is therefore right and proper to grant the amendment sought The application to amend was opposed but it was agreed that if the amendment was to be granted the form of the amendment should be to insert in the notice of motion after the word “now” the words “or may arrive in the port of Dublin pending the trial of the action by doing any act tending to further or promote any interference with the removal or movement of the said goods” in lieu of the words originally in the notice of motion after the word “now” Accordingly I will grant the amendment in that form The allegations of conspiracy were not pursued at this stage of the proceedings.
The proceedings arise out of the following circumstances. The plaintiffs had of recent times entered into contracts with the companies or firms specified in the plenary summons. foreign suppliers of timber, for the sale to them of certain quantities of timber to be delivered to the plaintiffs in Dublin Ten lots of the timber so ordered arrived in the port of Dublin during the months of August, September and October of this year, were discharged over the ship’s side and duly paid for The plaintiffs are also expecting the arrival of these further cargoes of timber in the near future The plaintiffs say that they have been prevented and impeded from removing the aforesaid cargoes from the port of Dublin to their business premises and that the vendors have been prevented from delivering the timber in question to the plaintiffs in breach of their contracts, as a result of an embargo placed on all building materials lying at the port of Dublin by reason of a trade dispute between workers employed by builders’ providers in the Dublin area and their employers They say that this embargo has been implemented by the Union directing the “checkers” in the port, who are members of the Union, to withdraw their labour in connection with the said building materials and other goods consigned to builders’ providers, including the above-mentioned cargoes. This the plaintiffs say resulted in the employees of the plaintiff *46 company being unable or unwilling to carry out their employers’ instructions with regard to taking delivery of the said timber.
From what the plaintiffs say it would appear that it is necessary in order to complete the delivery of the said timber that it should be examined by a “checker”, who is an employee of the shipping agent or stevedore or other persons in similar positions concerned with the ship in which the goods have arrived and its unloading They also say that it is the duty of a “checker” having examined the cargo when unloaded to issue to the consignee a delivery note to enable the timber to be removed by the consignee from the dock in order that the contract between the vendor and the consignee may be completed. The withdrawal of the “checkers” labour in the above connection they say has resulted in the vendors not delivering the said goods in breach of their contracts. That breach the plaintiffs say was procured inter alia, by the first named defendant as regards all the contracts and by the second named defendant with regard to some.
An alleged instance of failure to issue the necessary delivery note on the part of the second named defendant is referred to in the affidavit of Mr. Fennessey, the secretary of the plaintiff company, used in support of the application It is alleged that, when employees of the plaintiffs attended at the docks on September 7th, 1964, for the purpose of taking delivery of the timber referred to, they were informed by the second named defendant that the plaintiff company had been included on a list, compiled by the Union, of firms whose goods would not be handled at the port owing to such firms being involved in a trade dispute in progress with building workers in the Dublin area The checkers were thereupon. it is said, directed to withdraw their labour in connection with the above-mentioned cargoes, which they did, resulting in the employees of the plaintiff company being unable or unwilling to carry out their employers’ instructions regarding the timber It is further alleged that the second named defendant gave as the reason for this inclusion of the plaintiff company in the said list (referred to by the plaintiffs as a “black” list) the fact that the plaintiff company held a controlling interest in a firm of builders’ suppliers in Dublin named James McMahon (Dublin) Ltd., a fact disputed.
The second named defendant demes these allegations and says that in fact no embargo existed on the date mentioned at the instigation of the Union and that no withdrawal of labour in relation to the checking out of materials to the plaintiff company took place until after September 11th. There is thus a disputed question of fact which cannot however be resolved at this stage. The allegations are however there even though disputed. It is perhaps of more importance that it appears from Mr. Dunne’s affidavit that the embargo was implemented as from September 11th against the plaintiffs. No doubt the facts will be further illuminated at the trial if the injunction is granted.
Apart from the above matter I should point out at this stage that the second named defendant himself states that a lorry driver of the plaintiffs did approach him to obtain delivery of timber on October 13th, 1964, that he was at first authorized by the Union to release it and proceeded to do so, but that the officials of the Union came down to the docks and countermanded the order for its release. He stops short there, but the plaintiffs say that the implication is that the second named defendant must in the circumstances have positively refused to release the timber as distinct from doing nothing It is common case, however, that an embargo of the kind mentioned was imposed by the Union and implemented as stated. Further, it is conceded that the first named defendant, as secretary of the union, conveyed directions to the “checker” members of his union, to withdraw their labour in connection with the type of goods above-mentioned and the cargoes referred to There is no question but that the embargo covered goods consigned to the plaintiffs passing through the port from some time in early September.
None of the plaintiffs’ employees are members of the Marine, Port and General Workers’ Union The plaintiffs have no trade dispute with their employees and allege that none exists between them and the defendants or the union.
As soon as the plaintiffs ascertained that the embargo applied to them they commenced these proceedings and obtained the interim injunction mentioned from Henchy J. on the 20th October, 1964, which was in similar terms to that sought in the notice of motion as unamended.
A short reference to the background of the situation may serve to clarify the position. On or about August the 18th of this year, consequent upon a trade dispute which had arisen between the Federation of Builders, representing a number of Dublin building *47 firms, on the one part and a group of trade unions representing workers in the said firms, on the other part, a strike commenced which resulted in the withdrawal of labour from the said employers and other industrial action. This strike continued until on or about the 16th October. Neither the plaintiffs nor the defendants were directly concerned with this strike, though affected by it in certain ways The strike, however, had repercussions and towards the end of August certain members of the Timber, Cement and Fireclay Branch of the Federated Union of Employers, who were builders’ providers, issued protective notice to their employees that their employment might be terminated if the building strike continued. On or about the 7th September last the union served on the member firms of the said Timber, Cement and Fireclay Branch of the Federated Union of Employers a notice on behalf of the members of the union employed by the said firms claiming a reduction in their hours of labour. On the 10th September the said firms gave notice to their employees that they were closing down from that evening. The union regarded this as an unjustified lock out. Arising out of this state of affans and the union’s view thereon the labour of the checkers on the docks, who were members of the union, was withdrawn to the extent that such labour was required to obtain the release of the supplies in the docks to firms which had shut down and the union say that a trade dispute either then or shortly afterwards came into existence between the aforesaid parties. According to the plaintiffs’ this dispute cut across deliveries to them, and they took up the matter with the union. The building strike was settled, apparently, on the 16th October. On the same date the union gave notice to the Federated Union of Employers, Timber, Cement and Fireclay Branch, that on and from the 19th October a trade dispute would exist between the union and the branch, in relation to the claim for the forty hours week. Also on the same date the Executive Committee of the union resolved that instructions should be given to “checker” members on the Dublin docks to withdraw their labour insofar as it was required for securing the release of materials for the building industry or in any way concerned with it or required for firms of builders’ providers in any part of the country, unless the union should authorise them to do otherwise. According to the affidavits sworn by the first-named defendant the purpose of this resolution was to place a total embargo on the release of any building materials or anything in the nature of building materials from the docks pending the settlement of the trade dispute. It is relevant to note that the embargo was in fact in existence before this resolution was passed. Mr. Dunne in his first affidavit says that it applied at all material times to the plaintiffs as well as to the firms above referred to but from what he says this must mean after September 10th.
The first named defendant claims that these actions were taken in furtherance of the said trade dispute and for the purpose of bringing pressure to bear on the firms directly concerned and also upon all firms in any way connected with the trade or industry of builders’ providers to use their influence to bring about a settlement of the dispute.
On October 19th Mr. Dunne informed the plaintiffs through their solicitor that the embargo extended to their goods.
The plaintiffs allege that the tort of inducement of a breach of contract has been committed against them by the first named defendant. They say that the actions of the first named defendant in communicating the resolution of the Executive Committee of the union to the “checker” members of the union and his giving them directions as to the withdrawal of their labour, pro tanto, as regards the delivery of the plaintiffs’ goods to them, resulted in such withdrawal of labour. That withdrawal of labour they say resulted in the consgnors of the goods, parties to the various contracts referred to, being unable fully to perform their contractual obligations to the plaintiff company in that they were unable to deliver the goods to the plaintiffs as the plaintiffs maintain the various contracts required. This then resulted in the procurement of a breach of these commercial contracts and an unlawful interference with the plaintiffs’ trade or business. Such breaches of contract they further say, were brought about by unlawful means, that is to say, by procuring the checkers to commit a breach of their contracts with their respective employers in failing to carry out the normal duties of their employment, which they say are sufficiently indicated in Mr. Fennessey’s affidavit to support this allegation.
They also say that the actions of the second named defendant in refusing to release the goods in the manner alleged constituted the procuring of breaches of two or *48 more of the contracts by the commission of unlawful breaches of his contract of employment and therefore by unlawful means.
The tort of intentionally procuring a breach of contract by one party thereto, without legal justification, and resulting in damage to the other party thereto, is now well established. It had its origin in Lumley v. Gye (1853) 2 E. & B. 215, a decision so familiar to lawyers as to make it unnecessary to expatiate on it. It is also true to say that it is also authoritatively accepted that the tort extends in its ramifications to the case of the procurement of a breach of contract by unlawful means, such as the procuring of a breach of a contract of employment on the part of an employee of the contract breaker. That this ingredient may also extend to the case of procuring a breach of the contract of employment of an employee of a third party appears to have grounds of support will appear later. The difficulty however exists of stating, in the first instance, precisely what the ingredients of the tort are. That is not fully and authoritatively decided here. Furthermore the application of the law to the facts, and deciding whether established facts bring any particular case within the scope of the ingredients of the tort, established or thought likely to be established, is not without difficulty. It has only to be stated that recently the House of Lords reversed the Court of Appeal in England in a case bearing a good deal of analogy to this case, after a lengthy hearing for an interlocutory matter, and after taking time for consideration, for it is to be seen that a formidable task confronts any Judge of first instance charged with the matter of dealing with the various facets of law and fact touched on in this case. I turn to an examination of the relevant law and matters in issue.
Salmond on Torts (1961 Edition) at page 657 describes the tort as follows:—“Intentionally and without lawful justification to induce or procure anyone to break a contract made by him with another is a tort actionable at the suit of that other, if damage has resulted to him.”
It is pointed out at page 659 of the work above referred to, adopting in this respect the pronouncements of Jenkins, L.J., in Thomson v. Deakin [1952] Ch. at 693, that, apart from cases of conspiracy to injure, “Acts of a third party lawful in themselves do not constitute an actionable interference without contractual rights merely because they bring about a breach of contract, even if they were done with the object and intention of bringing about such a breach”. Certain instances of cases where the necessary ingredients of an actionable interference-with contractual rights exist are then, however, cited. No. 5 at page 660 is as follows.— “When a third party, with knowledge of the contract and intent to secure its breach, definitely and unequivocably persuades, induces, or procures the servant of one of the parties to break his contract of employment, provided that the breach of contract forming the alleged subject of interference in fact ensues as a necessary consequence of the breach of the contract of employment.” This is in fact a paraphrase of the views of Lord Justice Jenkins in the same case at page 696, relating to the necessary ingredients, in his view, of the tort of procuring of a breach of contract by unlawful means. The author goes on to say that it must be clearly shown that the effect of the withdrawal of the services of the particular servant concerned was to render it quite impracticable for the contract breaker to perform his contract, and that it must be distinctly shown that unlawful means were advocated with the intent of interfering with the performance of a particular contract A prima facie reasonable and logical argument can be made, in my view, for the extension of the ingredient of procuring by unlawful means to the case of the procuring of the servants of a person, not one of the parties to the contract, to break their contracts of employment. Such a view appears to be implicit in the speeches in the House of Lords in Stratford v. Lindley [1964] 3 All E.R. 102.
Having made reference to the views of Jenkins L.J., stated in the case of Thomson v. Deakin it would only be right and proper to state them fully, especially since they were much relied upon by the defendants. He says that he would hold the form of actionable interference, dealt with in Salmond above as strictly confined to cases where it is clearly shown, “first, that the person charged with actionable interference knew of the existence of the contract and intended to procure its breach; secondly, that the person so charged did definitely and unequivocally persuade, induce or procure the employees concerned to break their contracts of employment with the intent (he had mentioned), thirdly, that the employees so persuaded, induced or procured did in fact break their contracts of employment; and, fourthly, that breach of the contract forming the alleged subject of interference ensued *49 as a necessary consequence of the breaches by the employees concerned of their contracts employment”.
He also had some observations to make with regard to the expression “necessary consequence” which I also quote:
“I should add that by the expression ‘necessary consequence’ used here and elsewhere in this judgment I mean that it must be shown that, by reason of the withdrawal of the services of the employees concerned, the contract breaker was unable, as a matter of practical possibility, to perform his contract, in other words, I think the continuance of the services of the particular employees concerned must be so vital to the performance of the contract alleged to have been interfered with as to make the effect of their withdrawal comparable, for practical purposes, to a direct invasion of the contractual rights of the party aggrieved under the contract alleged to have been interfered with, as, for example (in the case of a contract for personal services), the physical restraint of the person by whom such services are to be performed.”
The facts of the case of J. T. Stratford & Son Limited v. Lindley, to which I have referred as appearing to extend the nature of the ingredient relating to unlawful means, are briefly as follows. In 1963 a company named Bowker and King Limited, having previously rejected joint invitations of the Transport and General Workers’ Union and of the Watermen, Lightermen, Tugmen and Bargemen’s Union to negotiate terms and conditions of employment, came to agreement in negotiation with the Transport Union alone, the Watermen’s Union not being informed of the negotiations. The agreement covered the terms and conditions of service of all Bowker and King’s union employees. These were forty-eight in number, forty-five of whom belonged to the Transport Union and three belonged to the Watermen’s Union. The respondents were officers of the Watermen’s Union. Having learnt of this agreement and knowing that Mr. Stratford was chairman of J. T. Stratford & Sons Limited (hereinafter sometimes referred to as Stratfords) a company that controlled Bowker and King Limited, as well as chairman of Bowker and King Limited, the union struck at Stratfords by placing an embargo on their union’s members handling barges of Stratfords. That latter company did not employ members of either union. Stratfords owned and hired out barges and repaired barges. The hirers of the barges employed lightermen to take charge of the barges, to deliver cargo and return the barges to Stratfords. Master lightermen had dock workers allocated to them pursuant to certain dock regulations made in England. As a result of the embargo Stratfords were caused heavy financial loss, their barges being immobilised, mainly by being tied up by the watermen to the nearest buoy after having been used for the hirer’s business and not returned to Stratfords. Barges also were not brought in for repair. If damages were recoverable the respondents would in fact be unable to pay, so that damage would be irreparable. J. T. Stratford & Sons Limited brought an action against the respondents and obtained an interlocutory injunction which was discharged on appeal. An interlocutory injunction was however granted by the House of Lords.
The House of Lords took the view that Stratfords had made out a prima facie case that the respondents, with sufficient knowledge of the barge hiring contracts, had either induced breaches by the barge-hirer customers of their contracts with Stratfords by failing to return barges to Stratfords at the conclusion of hirings, and had induced such breaches by unlawful means, that is to say by procuring breaches of their contracts of employment with the master lightermen by the union members’ refusal to handle Stratfords’ barges or had induced such breaches without lawful justification. On either view loss had thereby been inflicted on Stratfords and they were accordingly. prima facie, entitled to recover, on the principle of Lumley v. Gye (1859) E. & B. 216, damages for the wrong done to them by the respondents.
I should say with regard to the above synopsis of the facts of the case that it was the view of Lord Upjohn that the contracts of employment of the bargemen was with the master lightermen and that my reading of what Lord Reid and Lord Radcliffe said leads to the view that they came to the same conclusion. On this basis the procuring of a breach of a contract of employment existing between a servant and an employer. not a party to the contract, the breach of which is complained of, constitutes the use of unlawful means sufficient so far as that ingredient is concerned to support the tort.
The interlocutory injunction was granted to preserve the status quo pending the hearing because the respondents would suffer no loss therefrom whereas Stratfords would suffer heavy financial loss if the embargo continued, which the respondents would be unable to make good. *50
With reference to the breaches of their contracts of employment by the bargemen there is a passage in the speech of Viscount Radcliffe to which I think it is useful to refer. He says at page 108:—“The immediate thing that the embargo was intended to achieve was that the union’s order to ‘black’ the appellants’ barges was to be imposed on a dock worker’s normal duty to carry out his employers’ lawful directions in his job To that extent they were to obey the union, not the employer, I regard that as a direct instruction to the dockers not to obey their employers’ orders pro tanto. ” The plaintiffs in these proceedings say that the embargo placed by the Marine, Port and General Workers’ Union had the same result with regard to a “checker’s” normal duty to carry out his employer’s lawful directions in his job It resulted in the checkers refusing and failing to carry out the normal duties of their employment with regard to the issue of delivery notes and the release of the goods of the plaintiffs and their is thus a similar position here to that existing in the above case. the plaintiffs contend They say also that the decision is authority, prima facie at any rate, for the proposition that inducing the breach of a contract of employment with a third party, as distinct from procuring a breach of a contract of employment existing between one of the parties to a contract and his employees, would be a use of unlawful means assuming that a breach of contract was procured thereby. Furthermore they claim that the decision shows, prima facie again, that it is unnecessary to prove actual knowledge on the part of the intervener of the existence of any specific contract of which the procuring of the breach is alleged on the part of the intervener or its precise terms. It is sufficient if the intervener can be fixed with implied or constructive knowledge of the existence of such a contract containing terms of the kind of which it is alleged a breach was procured The analogy which the plaintiffs draw with regard to the knowledge of the defendants of the contracts of which a breach is alleged to have been procured I deal with later.
While I have touched upon certain matters involved in the above decision relevant to the facts of the present case it should be stated that it was the view of the House of Lords that a trade dispute did not exist between the respondent’s union and the appellants so as to enable the respondents to rely on such protection as the Trade Disputes Act, 1906, might afford them in the circumstances. The position in this case is somewhat different in that the defendants say that a genuine trade dispute of the nature outlined above exists between their members employed by the builders’ providers above mentioned and the members of the defendant’s union employed by them, and, they further claim that the existence of such trade dispute entitled them lawfully to take industrial action against persons not actually parties to that dispute for the purpose of bringing pressure on them so that they in their turn might be moved to bring pressure on the employers of the defendants’ union members to persuade them to come to terms on the matter of the existing trade dispute and it is claimed that their actions are protected by the provisions of the Trade Disputes Act, 1906.
So far I have referred in a general way to the facts of the case and to some relevant matters of law claimed by one party or the other to be relevant thereto. Certain particular submissions still remain to be dealt with, but, before proceeding to consider them it is appropriate to remark that this is an interlocutory application on which no final determination is made on the facts at issue or as to the correct interpreation of the law to be applied to them, unless in a very clear case. Such observations as I make on both matters are to be read in that light The correct approach in dealing with an application of this kind is set out in the decision of the Supreme Court in the case of the Educational Company of Ireland Limited v. Fitzpatrick and Others 96 I.L.T.R. 161, [1961] I.R. 323. It is convenient at this stage to refer briefly to portions of the judgments therein.
Lavery J., in the course of his judgment quoted with approval from Kerr on Injunctions. Paraphrasing these quotations as far as relevant in the present proceedings the following principles emerge. An interlocutory injunction does not conclude a right but is merely provisional in its nature, the effective object being to keep matters in status quo until the hearing. The Court does not, in general, profess to anticipate the determination of rights but merely gives its opinion that there is a substantial question to be tried and that until trial a case has been made out for the preservation of the property in status quo. It is sufficient for a person seeking an interlocutory injunction to show that he has a fair question to be raised as to the existence of the right which he alleges and for the preservation of the *51 property meantime. A fair prima facie case must be made in support of the title which he asserts and he must show that there are substantial grounds for doubting the existence of the alleged legal right the exercise of which he seeks to prevent. The Court must, before disturbing any man’s legal rights, or stripping him of legal rights, be satisfied that the probability is in favour of his case ultimately failing. The mere existence of a doubt as to the plaintiff’s right, interference with which he seeks to restrain, does not of itself constitute a sufficient ground for refusing an injunction, though it is always a circumstance which calls for the attention of the Court.
It is highly relevant to point out that Lavery J. said that the case then before the Court raised questions which had not been decided in any Court whose decision bound the Supreme Court. It had been submitted that the decision of the Court of Appeal in England in the case of White v. Riley [1921] 1 Ch. 1 had been accepted and that so far as interlocutory relief was concerned it should be accepted. The learned Judge having pointed out that the plaintiffs had to establish that there was a fair question to be decided at the trial, took the view that the arguments heard indicated that there was such a fair question and in his view a difficult one. He then proceeded to consider what Order should be made on the basis that a fair question for trial had been established. He quoted with approval some passages of the article on Injunctions in the Hailsham edition of Halsbury’s Laws of England. In the first part of the quotation is contained the statement “in the absence of very special circumstances (the Court) will impose only such restraint as will suffice to stop the mischief and keep things as they are until the hearing” The quotation continues —
“Where any doubt exists as to the plaintiff’s right, or if his right is not disputed, but its violation is denied, the Court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the inqury which the defendant, on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the defendant will suffer, if it is granted, lies on the plaintiff.”
Some other passages in the judgment were submitted to be relevant to the facts of the present case and I think that they are. The injunction sought was to restrain picketing and the plaintiffs claimed that the damage might be caused by the continuance of the picketing pending the trial would be serious and in the sense in which the word is used in this connection, “irreparable”. Lavery J. said: “Clearly it would be very difficult, if not impossible, for the plaintiffs to show that loss of trade or diminution of their profits, if sustained, should be attributed to the picketing and not to other circumstances or combination of circumstances.” Having pointed out that the defendants were in that case asserting what they considered to be a fundamental principle and agreeing that it was of very great importance, the learned Judge took the view that in that particular case no serious damage could be caused to them if, by order of the Court, the picketing was restrained until the trial of the action. He further stated his view that the case came to be decided under the principle which Smyth v. Beirne and Anr. was decided by the Supreme Court, the grounds of the decision being twofold. First, that the facts might be in dispute and second, that a serious question of law arose as to whether there was a trade dispute in existence. He was also of opinion that further facts might well be elicited at the trial. Kingsmill Moore J. also stated that he was not convinced that all the relevant facts were established or admitted. He was of opinion that a plaintiff was entitled to have his case fully investigated in the ordinary course of legal procedure and that it would be undesirable in the absence of consent to decide a legal question of the magnitude there involved merely on the affidavits filed for the purpose of the interlocutory motion.
Have the plaintiffs then shown that they have raised a fair question or questions to be decided at the trial?
First of all there arises what may be described as a preliminary point. The plaintiffs in the first instance rely on the procuring of breaches of the contracts referred to The defendants say that on the true construction of the contracts in question no breach of contract ever occurred. Accordingly the action is unsustainable and interlocutory relief sought should not be granted. *52
The contracts were produced and appear, with a possible exception, to provide for delivery in Dublin. The plaintiffs say that on their true construction, viewed in the light of the surrounding circumstances this must mean delivery to them in Dublin. They cannot be delivered in vacuo so to speak This construction is not agreed to by the defendants who say that the contracts were completed by delivery over the ship’s side and that thus no breach of contract was procured. The plaintiffs’ construction would appear however to be reasonably open. The opposite contention does not appear to me to be so clearly correct as would justify a ruling in favour of the defendants’ contention at this stage. The true construction would appear to be a matter for determination at the trial if it is otherwise thought proper to grant the injunction sought.
On the matter of the knowledge of the contract (the procurement of the breach of which is alleged) on the part of the intervener, a good deal of debate took place. It was contended on the one side at first that before the intervener could be fixed with liability he must be shown to have known of the existence of the particular contract the breach of which he is charged with procuring. It was said that there was no room for “ought to know” or “should be presumed to know”. It was however then conceded, as I understood it, that it need not be shown that the intervener had a knowledge of the particular contract in fact existing between the parties thereto, the breach of which is alleged to have been procured It would suffice if the intervener had actual knowledge that a contract existed between these parties, without full knowledge of its terms and, I take it, from what was said, that the intervener had sufficient knowledge of it to know that what he was doing or causing to be done or not done, would result in a breach thereof. There is, I think, involved in this, some departure from the nature of the ingredient of knowledge laid down by Jenkins L.J. in Thomson v. Deakin, which would appear to require knowledge of the contract.
The plaintiffs contended that it was unnecessary to support their action in respect of this particular tort to show that the de-defendants had actual knowledge of any of the particular contracts involved. That it was sufficient if the defendants could be fixed with constructive, as distinct from actual knowledge, that a contract existed either between the actual contracting parties or between the party injured and some other party, the important thing was that the intervener would know that his intervention would procure a breach of contract, which would result in injury to a known party to the contract. They say that as regards the law they have raised a fair question be tried as to what precise degree of knowledge the law requires in this way. They say that there is no reason, in principle, why a plaintiff should be held in any straight jacket as regards the requirements as to knowledge. If he is entitled to obtain damages in a case where he can show that the intervener had knowledge of an actual contract between known parties is there any reason in principle, they ask, for refusing him compensation where the wrongdoer knows full well that a contract exists with the plaintiff of such a nature that his actions will procure a breach of it, to the plaintiffs’ damage. They thus rely on constructive or implied knowledge of the contract.
With regard to the law on the matter of knowledge certain observations relative to the matter of the sufficiency of constructive knowledge were made in the case of Stratford v. Lindley. Lord Reid thought it reasonable to infer, at that stage at any rate, that the respondents were sufficiently aware of the terms of the contracts between the appellants and the barge hirers by reason of the fact that they knew that the barges were always promptly returned at the completion of the job and it must have been obvious to them that this was done under contract between the appellants and barge hirers. The evidence before the House also satisfied Viscount Radcliffe that the defendants should be treated as having sufficient knowledge of the existence and notice of the hiring contracts Lord Pearse took the view that the hiring contracts were to be implied from an established course of dealing and under them the hirers were under an obligation to return the barges to the appellants when finished with It was in his view no answer to a claim based on wrongly inducing a breach of contract to assert that the defendants did not know with exactitude all the terms of the contract. The relevant question was whether they had sufficient knowledge of it to know that they were inducing a breach of contract The evidence, at the trial, he said would illuminate this point further Lord Upjohn also did not agree with a limited view on this matter and was satisfied that a prima facie case had been made of knowledge of a prima facie breach of the hiring contracts on the part of the respondents, though the matter might have to be explored more fully at *53 the trial. These observations made by whom they were and on a matter where the law of England and Ireland is in most respects similar, entitles the plaintiffs in my view to say that so far as the law is concerned they have strong support for the proposition that constructive knowledge is sufficient knowledge in the context. Just what type of constructive knowledge is sufficient is a new point yet to be decided here. If we have moved to the stage where constructive knowledge is sufficient is there any reason for confining the ingredient of knowledge to knowledge of a specific contract between specific parties or actual knowledge of any particular contract In many instances in modern life it must be obvious to the ordinary onlooker that some transaction is taking place on foot of some contract, particularly where matters of payment and delivery are concerned. This applies a fortiori where the intervener has special knowledge of the course of dealing, the customs prevailing and the surrounding circumstances.
Where a contract is obvious there must also be many instances in which the terms or at least some of the terms of the contract are likewise obvious If some term, such as one requiring delivery to someone, clearly a party to the contract, is itself clearly discernible in the particular circumstances to a person to whom the existence of the contract is obvious, and that person procures a breach of that particular term of the contract, to the detriment of one of the parties is there any valid reason in principle for exempting him from liability for what he has done, merely because he did not know who the other party was or of the existence of any particular form of contract or its exact conditions. I would think that, prima facie, a reasonable argument could be made for fixing such a person with liability on the basis of his constructive knowledge.
It may be decided that strict proof will be required of knowledge of some particular contract or it may be that it will be held sufficient if it is proved that in fact a breach of a contract or of some contract was in fact procured and that the intervener had, from the surrounding facts and circumstances, sufficient knowledge of that contract or of some contract to know that his actions would result in a breach of contract injurious to one of the parties to the contract.
These are matters on which I can come to no decision on an interlocutory application. I am satisfied, however, that a fair question has been raised as to these matters which should be decided at the trial of the action.
On the questions of fact with regard to the matter of knowledge of the contract Mr. Finlay made certain submissions. He was prepared to agree that the defendants might know of the existence of a contract between the actual parties from their work, gleaning it from a course of dealing. He pointed out, however, that neither defendant could have known of the contracts produced and, moreover, submitted that it had not been adequately shown that the defendants had sufficient knowledge of any contract between the plaintiffs and the vendors as would show that they had sufficient knowledge to know that their actions would lead to a breach of contract injurious to the plaintiffs. How could the plaintiffs know, he said, that the particular type of contracts here involved existed as distinct from any other type of contract. There were many contracts relative to these goods which could have been entered into between the vendors and the plaintiffs. There might have been contracts whereby the plaintiffs would have been responsible for the carriage of the goods. The plaintiffs might have had contracts with carriers to carry the goods. There might well have been many other sorts of contracts entered into between the plaintiffs and yet other persons for the collection and delivery of the goods. How were the defendants he said to know in these circumstances what particular type of contract the plaintiffs had entered into.
The plaintiffs say, in reply, that they have made a sufficient prima facie case on the facts with regard to knowledge. They say that the defendants were in a position, from the nature of their work and the everyday knowledge gained therein, to know in a well informed way, as to what goes on with relation to commercial contracts relating to the import of goods. They could scarcely, in Mr. McKenna’s words, think that the timber came to the plaintiff company like “manna from heaven”. They would know that a commercial dealing was involved. The plaintiff company would not be importing timber save under contract, being a commercial firm and sending their lorries for it would indicate also that they were parties to commercial contracts. All this shows, the plaintiffs say, that they have made a good, prima facie, case to fix the defendants with constructive knowledge of a contract. It can, at least, be said that a vendor and purchaser contract was almost certainly involved Evidence in *54 future to be given at the trial may also very well show that the documents in the hands of checkers or even the markings on the goods would show who the vendors were, thus establishing the other parties to the contracts. It is not going too far to say that there would be constant communications between members of the union on the docks and the general secretary of the union as to which particular lots of goods came under the embargo in the course of which he would hear of the whole nature of the traffic and the parties involved, in such fashion at least, as would fix hun with constructive knowledge of the established mode of dealing. That applies, a fortiori, to a “checker”. Then the communications with the plaintiffs and their solicitors, relating to these goods would apprise him of the fact that they in particular were concerned as parties to the contract particularly having regard to the incident that took place on October 13th. All this, it may be reasonably said, would lead him to the inevitable conclusion that the plaintiffs were involved in a commercial dealing and that it would be naive to suggest that he would not know that a contract was involved with whomever they were buying from. The same remarks apply to any other contract likely to be involved such as for the carriage of the goods. All would have the common factor that delivery of the goods to the plaintiffs would be part of the terms of the contract.
It all depends of course on what species of knowledge is required in law before one can say just what must be proved in order to show that the intervener had the requisite degree of knowledge. The plaintiffs submit that they have placed before the Court sufficient material to show, prima facie, that the defendants had sufficient knowledge of the contracts involved to know that their actions would produce a breach of the contracts involved or at least that their actions would procure a breach of a contract to which the plaintiffs were parties, along with another. It cannot, they say, really matter whom the contract is with provided that its existence is evident to the intervener Again, in so far as the facts are concerned it is impossible, they say, to cover every point fully on an interlocutory application, based on affidavits, and that a much fuller investigation of the facts will take place at the trial which will enable a finding to be made as to whether or not the defendants had such knowledge of the existence of the contract or a contract as the law requires.
In any event I am satisfied that a sufficient prima facie case as to the knowledge of the defendants of the contracts or a contract has been made out.
There is also another point with regard to the actual contracts which the plaintiffs had which may be conveniently dealt with at this stage. The form of the contracts with regard to the goods in question is known. They contain clauses exempting the seller from liability in case of force majeure. It was suggested that where such a clause exists and delivery in such a case as I am dealing with is prevented by reason of industrial action taken by persons outside the control of the seller resulting in the frustration of the contract, no breach of contract ensues and that it cannot therefore be said that a breach of contract has been procured by the intervener. I do not very well follow this reasoning because it would seem that such a clause predicates a right to delivery and merely exempts the seller from liability in the case of the intervention of force majeure. In any event I am quite satisfied that there is a fair question to be tried on this matter.
As regards certain other matters of law argued the plaintiffs say that they have established fair questions. The defendants concede that the tort of inducement of a breach of contract is well established but as I understood them took their stand on the ingredients of the tort as stated by Jenkins L.J. in Thomson v. Deakin already referred to Unless there is strict proof of these ingredients they say that the plaintiffs must fail and that prima facie proof of the facts necessary to constitute the required ingredients is not forthcoming. But the plaintiffs say that they do not accept the nature of some of these ingredients stated by that learned Judge and they point out that while Jenkins L.J is a Judge to whom the greatest respect is due on any pronouncement of the law, the precise ingredients of the tort have not been authoritively decided in our Courts, which seems to be the fact.
His views as to some of the necessary ingredients of the tort as laid down by him might not now be followed in England or here, it was pointed out. He appears to confine the ingredient of a procurement of a breach of contract by unlawful means to the instance of a procurement of a breach of the contract of employment existing between one of the parties to the contract, the breach of which is induced, and an employee of that party. The plaintiffs say that the *55 case of Stratford v. Lindley indicates that a wider view is clearly open and that that case indicates that proof of the procuring of a breach of contract of employment between a third party and his employees is sufficient to sustain the tort. I agree with that to the extent that a most arguable proposition on the point is shown and it follows that a fair question to be tried has been raised on this point.
It was further submitted by the defendants that it is a necessary ingredient of the tort to show that the person charged with procuring the breach of contract alleged intended to procure the breach and did procure it by unlawful means. Granted that this is so but a person is presumed to intend the ordinary and necessary consequences of his acts. If the ordinary and probable consequences of the actions of either defendant would be such as to cause a breach of contract then the intent would ordinarily be presumed.
Since I have found that there is a fair question to be tried on the point that the procuring of the employees of a third party to break their contract of employment constitutes the procuring of a breach of contract by unlawful means, the point arises first as to whether or not a prima facie case has been made out that a breach of the contracts of employment between the checkers and their employers, be they shipping agents or stevedores or other persons employing the checkers, has been made out. The suggestion is that the stevedores or shipping agents may have acquiesced in the conduct of the checkers. This is not substantiated in any way so far. There does not however seem to be any question but that it is a normal part of the checkers’ work to check out deliveries and give a delivery note to the consignee A prima facie case is thus made out that the checkers are in breach of contract with their employers. The second question is did the first named defendant, prima facie, procure the breach of the commercial contracts by unlawful means. Admittedly the procuring of the checkers to withdraw their labour pro tanto was procured, inter alia, by the first-named defendant and again, prima facie, that constitutes an unlawful act. Failure to take the necessary steps to enable consignees to take delivery of goods from the port would, prima facie, involve a breach of a contract which involved delivery to the consignee.
It all depends, of course, on the ultimate finding as to what degree of knowledge of the contract or a contract the law requires and whether the facts ultimately found show that the defendants had what ever degree of knowledge is required in law. Admittedly the question of intent is bound up with that of knowledge. If the plaintiffs fail on the knowledge point they will fail on the intent point also. However since I have found that a fair question has been raised as to knowledge of the contract it would seem to me that there is a fair question also to be tried on the question of intent.
There is thus it would seem to me also sufficient prima facie evidence that a breach of the commercial contracts was procured by unlawful means by the first named defendant. There is also I think, prima facie, evidence that the second named defendant by his actions already related procured a breach of the commercial contract by the unlawful means of breaking his own contract of employment.
As to intent, there is before me the terms of the resolutions passed by the general committee of the union relating to the embargo It is in wide terms. Its object has also been stated I have already referred to both. It has been communicated to the plaintiff company that the embargo applies to them and their goods. I have also referred to what occurred on October 13th when an order to release the plaintiffs’ goods was countermanded. The embargo has been implemented against the plaintiffs by both defendants. If knowledge of a contract is assumed for the moment, there is thus prima facie evidence of an intent to procure its breach since the actions of the defendants would, prima facie, at any rate necessarily breach since the actions of the defendants have that result. I am not overlooking Mr Finlay’s point that you cannot have the intention of breaking a contract that you do not know of.
It was next submitted by the defendants that it must be shown that the breach of the commercial contracts ensued as a necessary consequence of the breach of contract by the employees concerned. The suggestion is that some way around might have been found to get delivery of the goods. I think that a reasonable interpretation of the second-named defendant’s affidavit is that he did not release the goods by reason of the embargo. Mr. Fennessy also swears in his affidavit that by reason of the withdrawal of their labour by the checkers the plaintiffs’ employees were unable or unwilling to collect the goods. All the evidence with regard to what happens when a trade dispute takes place cannot of course be put on affidavit *56 but it may be safely assumed that when the case is fully investigated evidence will be before the Court with regard to the practicability of giving delivery on the part of the vendor and taking it on behalf of the purchaser. At the moment it seems to me that to suggest that it was practicable for the plaintiff company to get these goods when an industrial dispute existed and an embargo has been placed on their goods is somewhat unreal. For the present I think that sufficient has been shown to indicate, prima facie, that it is not practicable to give or obtain delivery of these goods. With regard to all these matters I have just dealt with relating to the facts I think that the plaintiffs have established that there are fair questions raised to be decided at the trial.
I now turn to deal with two other formidable questions that arise under the Trade Disputes Act, 1906. Since these two questions largely turn on the wording of section 3 of the Act I quote it herewith:—“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 the right of some other person to dispose of his capital or labour as he wills.” In connection with the Trade Disputes Act Mr. Finlay says that even if the defendants have done what is alleged against them and committed the tort with which we are concerned the defendants are nevertheless protected by the provisions of Trade Disputes Act.
First he relies on the latter portion of the definition of a trade dispute which is contained in sub-section 3 of section 5 of the Act. The expression trade dispute is defined as follows:—“The expression ‘trade dispute’ means any dispute between employers and workmen or between workmen and workmen which is connected with employment or nonemployment or the terms of employment or with the conditions of labour of any person, and the expression ‘workmen’ means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises.” That means, he says, by reason of the effect of the words “whether or not in the employment of the employer with whom the trade dispute arises,” coupled with the second limb of section 3 excepting acts done in furtherance of a trade dispute from actionable liability on the grounds only that they constitute an interference with the trade business or employment of some other person, establishes the right of industrial action such as has occurred in this case taken against employers other than those concerned in the actual dispute. He says that he is supported in this contention by certain observations of Lord Loreburn in Conway v. Wade [1909] A.C. pages 511 and 512, and by the decision by Dixon J. in the Roundabout Limited v. Walter H. Beirne and Ors. [1959] I.R. 523 at pages 528 and 529. What Lord Loreburn and Dixon J. said on the point in these two cases whether it be obiter dicta or otherwise, I think supports him but I do not propose to discuss this point further because I think that there are other reasons for supposing that a fair question arises as to whether the Trade Disputes Act can be relied on as a defence by the defendants.
Mr. McKenna says that whatever grounds may be stated for supporting the proposition that where a trade dispute exists industrial action may be taken against persons not parties to the dispute the point remains open for decision by the Supreme Court and in any event there is persuasive authority that it does not apply to the case of acts done in the alleged contemplation or furtherance of a trade dispute involving the procuring of breaches of commercial contracts by unlawful means. He says that the point is specifically dealt with by Kingsmill Moore J. when dealing with the construction and effect of section 3 of the Trade Disputes Act 1906, in Sherriff v. McMullen and Ors. [1952] I.R. 236 at page 247 as follows:—“It will be seen that procurement of a breach of contract is only protected when the contract is one of employment. The wording cannot be mere accident. Procurement of the breach of any contract other than a contract of employment is not protected, even if the acts which procure the breach are done in pursuance or contemplation of a trade dispute.” Russell J. in Brimelow v. Casson [1924] 1 Ch. 302 gave a similar opinion on the section Upjohn J. in Thomson v. Deakin at p. 664 and Lord Pearce (at p. 113) and Viscount Radcliffe (at p. 109) in Stratford v. Lindley also expressed similar opinions on this section. Gavan Duffy J. in the Supreme Court on the appeal in Sherriff v. McMullen took the same view as Kingsmill Moore J. in the Court below but it is right to say that the majority of the Supreme Court had doubts on the point and preferred to reserve their decisions thereon. These two points raise issues to be decided not yet authoritatively determined by the Supreme Court. They certainly in my view raise difficult *57 questions on the construction of section 3 and sufficient statements of high judicial opinion have been adduced, be they obiter or otherwise, to show that the plaintiffs have raised a fair question to be tried in respect of them.
I must say a word with regard to the matter of status quo. The defendants suggested that the status quo in this case was the state of affairs at present existing in the docks. To say the least of it this somewhat startled me. The object of the interlocutory injunction is to keep things as they were before the alleged wrongful act took place, in other words to stop the alleged mischief, assuming of course that a proper case was otherwise made out justifying the granting of the injunction. I have no doubt that the status quo here is the state of affairs that existed before the embargo was placed on goods in the port consigned to builders’ providers when the plaintiffs were able to obtain their goods freely.
It was also suggested that the granting of an injunction in the present case might be futile. If I thought that the granting of the injunction would be absolutely futile I would not of course grant it. I am not convinced of its entire efficacy. It may be that many more people would have to be drawn within the net to obtain a completely effective order. However, I think that the practical difficulties of a situation such as the present have to be considered. A plaintiff in a case such as the present is faced with great difficulties in deciding as to whom is the proper person to proceed against. If, however, he selects a particular person and succeeds in establishing a sufficient prima facie case against him I think that he is entitled to his order and it is not an answer to say “Oh! you ought to have brought in somebody else too if you want a completely effective order”. An injunction in the terms sought will prevent at least any further directions being given by Mr. Dunne and anyone properly described as his servants or agents, designed to implement the embargo. As regards Mr. Dolan it was alleged against him that he in reality took positive steps by refusing to release the plaintiffs’ goods and by informing the plaintiffs’ employees that the plaintiffs’ company was black listed and subject to the embargo, the result of which was to make it impracticable for the plaintiff company to obtain its goods. It is right to repeat that Mr. Dolan denies having made the statement As to whether he did or not cannot be determined now and I think that there is sufficient prima facie evidence so far as he is concerned to justify an order preventing him from taking any positive action pending the trial of the action.
On the matter of deciding whether a fair question has been raised to be decided at the trial I have found that there is a fair question to be tried on certain matters specifically touched on at the hearing. I wish, however, to add this observation of a general nature on this question. The exposition of the tort of procurement of a breach of contract without legal justification of a compartively recent origin. The frequency of industrial disputes of recent times has led to increased research and continually developing decisions as to the true nature of the tort and the principles to be properly applied according to the circumstances of each case. I take the overriding view also that a fair question has been raised for decision at the trial as to the entire nature and ingredients of this tort and consequently also as to what factual proof is required to sustain an action for procuring a breach of contract. There is at present before me such evidence of a general nature as to enable me to say that a sufficient prima facie case has been made of the procuring of a breach of contract and such as to raise a fair question to be tried.
Having thus come to the conclusion that there is a fair question raised to be tried, what should be the order on the application for the injunction. Finding a fair question predicates some uncertainty and doubt. The balance of convenience must then be taken into consideration. The burden of proof is on the plaintiffs to show that the inconvenience which the plaintiffs will suffer by the refusal of the injunction is greater than that which the defendants will suffer if it is granted.
The plaintiffs have stated that the total cost of the timber present in the port is £11,000 approximately and that by reason of the matters they complain of that their business is being interfered with and that they will be prevented from carrying out their contracts with their customers. It would obviously be difficult for the plaintiffs to show precisely what their loss of trade or diminution of profits would be owing to the embargo. To segregate loss if sustained between that which springs from embargo and other commercial circumstances would be impossible. In the sense in which the word is used in connection with applications of this nature irreparable loss is thus shown.
With regard to the defendants a state of affairs somewhat analogous to that existing *58 in the case of the Educational Company of Ireland Limited v. Fitzpatrick arises. The defendants are likewise here asserting what they consider to be a fundamental principle and there can be little doubt that the right which they claim to take industrial action, where a trade dispute exists, against persons not parties to that dispute, is one of very great importance. The right to picket to compel employers to bring pressure on their employees to join a certain union, recognised in White v. Riley is analogous to the position here. Similarly in this case it appears to me that no serious damage can be caused to the defendants if, by order of the Court, they are prevented from taking steps to implement the embargo. In my opinion the plaintiffs have discharged the onus of proof on them of showing that the inconvenience which they will suffer by the refusal of the injunction is greater than that which the defendants will suffer if it is granted.
Following the views of the Supreme Court as stated in the Educational Company of Ireland Limited v. Fitzpatrick my view is that an injunction should go in this case in the terms of the amendment granted and I shall so order. The plaintiffs must give the usual undertaking as to damages and also an appropriate undertaking to expedite the hearing of the action.
Flogas Ltd v Ergas Ltd and Irish National Gas Ltd
1982 No. 8733 P
High Court
31 July 1984
[1985] I.L.R.M. 221
(Barrington J)
BARRINGTON J
delivered his judgment on 31 July 1984 saying: In this case the plaintiffs claim against the defendants damages for allegedly procuring a breach or breaches of contract.
The facts of the case are as follows.
On 13 January 1982 Flogas entered into a contract with Shannon Dairies Ltd whereby Flogas agreed to supply, and Shannon Dairies Ltd agreed to take, its total requirements of liquified petroleum gas for a period of five years from that date. On 11 March 1982 Flogas entered into a similar contract with Crosstown Services Ltd.
The second named defendants — Irish National Gas Ltd — are an associate company of the first named defendants, Ergas Ltd. On 2 February 1982 Shannon Dairies Ltd entered into an agreement with Irish National Gas Ltd under which Irish National Gas Ltd agreed to sell, and Shannon Dairies Ltd agreed to buy, Shannon Dairies Ltd’s total requirements of liquified petroleum gas from Irish National Gas Ltd for a period of five years from 1 February 1982.
On 27 May 1982 Crosstown Services Ltd entered into an agreement with Irish National Gas Ltd under which Crosstown Services Ltd agreed to take, and Irish National Gas Ltd agreed to supply, Crosstown Services Ltd’s total requirements of liquified petroleum gas for a period of three years on 1 June 1982.
Irish National Gas Ltd and Ergas Ltd represent the same interest and, at the hearing of the action before me, it was found convenient to refer to the plaintiffs as ‘Flogas’ and to the defendants collectively as ‘Ergas’.
Flogas on hearing that its customers, Shannon Dairies Ltd and Crosstown Services Ltd, had entered into inconsistent contracts with Ergas Ltd naturally assumed that Ergas Ltd, who are their competitors in trade, had poached two of their customers from them and it was this suspicion on the part of Flogas Ltd which led to their instituting these proceedings against Ergas for procuring a breach of contract. On 2 June 1982, Flogas, having heard from Mr Kinsella, a director of Crosstown Services Ltd, that he had been offered better terms by Ergas, telexed Ergas informing them that Flogas had a binding written contract with Crosstown Services Ltd and requested Ergas to withdraw any offer it had made to Crosstown Services Ltd.
On 4 June 1982 Flogas sent a similar telegram to Ergas in respect of their contract with Shannon Dairies Ltd.
*223
On 23 June 1982 Ergas sent a telex to Flogas in which they stated:
Crosstown Service Station: Customer is adamant that he has not contract with Flogas. Please submit documental evidence.
Shannon Dairies: Customer has Ergas contract for over six months. Please submit documental evidence.
On 14 July 1982 Flogas wrote to Ergas sending them copies of extracts from their contracts with Crosstown Services Ltd and Shannon Dairies Ltd. They added:
As a consequence of our company furnishing you with this information we must now insist that you will acknowledge in writing within seven days from the date of this letter that you will withdraw all offers to the above contracted customers, and in addition, in the case of Shannon Dairies Ltd, that you will uplift your equipment within four days.
Should you not give us this undertaking in the manner requested we will have no alternative but to institute legal proceedings against your company.
On 22 July 1982 Ergas replied to Flogas in a letter which contained the following paragraph:
I wish to inform you that our sales personnel have advised both Crosstown Service Station and Shannon Dairies Ltd, regarding your allegation, but both of them are adamant that they did not sign contracts or give the go ahead to instal equipment. The matter now as far as we are concerned is between yourselves and the above-mentioned people.
It was quite wrong of Messrs Ergas to state in their telex of 23 June 1982 that Shannon Dairies had ‘Ergas contract for over six months’. The contract between the second named defendants and Messrs Shannon Dairies Ltd was dated 2 February 1982. This error or misstatement naturally added to the plaintiffs’ suspicions.
I have however heard the evidence of the defendants’ sales representatives, Mr Louis Campion and Mr Denis O’Riordan who negotiated the respective contracts with Messrs Shannon Dairies Ltd and Messrs Crosstown Services Ltd on behalf of the defendants and I am quite satisfied that both Mr Campion and Mr O’Riordan negotiated in good faith and without any knowledge of any prior or inconsistent contract between these two companies and the plaintiffs. There is no question therefore of the defendants having induced these two companies to break their contracts with the plaintiffs.
I should also state that both Shannon Dairies Ltd and Crosstown Services Ltd maintained at all times (including at the hearing before me) that they had not any binding contracts with the plaintiffs. Mr Kinsella, on behalf of Crosstown Services Ltd, maintained that he never intended to enter into a binding legal agreement with the plaintiffs and that he had not in fact done so. Mr Madden, junior, on behalf of Shannon Dairies Ltd maintained that, though he signed a contract with the plaintiff company, he did not realise what he was doing and that he had not authority to bind his company.
*224
As to how the contracts between the plaintiffs on the one hand and Messrs Shannon Dairies Ltd and Messrs Crosstown Services Ltd came to be negotiated, I fully accept the evidence of the plaintiffs sales representatives Mr Stapleton and Mr Morley. I am satisfied that both these men negotiated in good faith and that they were led to believe that they were dealing with persons who had authority to negotiate on behalf of the two companies and that they did in fact enter into binding contracts with the two companies.
I am satisfied that what happened was that Messrs Shannon Dairies Ltd and Messrs Crosstown Services Ltd were shopping around among the various suppliers of liquified petroleum gas to obtain the best terms they could. This they were, of course, perfectly entitled to do. Unfortunately, they continued to negotiate with Messrs Ergas after they had already become contractually committed to Messrs Flogas and ultimately entered into mutually inconsistent contracts.
Under these circumstances the problem arises of what are the respective rights of Messrs Flogas and Messrs Ergas — both of them being innocent parties in the situation which has arisen.
I am quite satisfied that, on the facts of this case, there is no question of Messrs Ergas having ‘induced’ or ‘procured’ a breach of contract as those terms are usually understood, but the question arises of what duty, if any, Messrs Ergas owed Messrs Flogas after Messrs Ergas had become aware of the prior inconsistent contracts with Messrs Flogas.
Mr Shanley SC, on behalf of the plaintiffs, relied in particular on a passage from the judgment of Jenkins LJ in Thompson v Deakin [1952] All ER 378 which reads as follows:
The inconsistent dealing between the third party and the contract breaker may, indeed, be commenced without knowledge by the third party of the contract thus broken, but, if it is continued after third party has notice of the contract, an actionable interference has been committed by him.
This passage from Jenkins LJ was quoted, with apparent approval, by Hamilton J in his judgment in Reno Engrais et Produits Chimiques SA v Irish Agricultural Wholesale Society Ltd and Potash and Continental Ltd High Court 1976, 8 September 1976 and in his judgment on an application for an interlocutory injunction in the present case, which judgment was delivered on 18 August 1982. Both these judgments were, however, interlocutory in nature and Hamilton J was merely concerned with the question of whether the plaintiff had produced a fair prima facie case in support of his rights. In each case Hamilton J held that the plaintiff had produced a fair prima facie case and in each he refused an injunction on the balance of convenience. In each case it appears to me that Hamilton J’s judgment was the correct judgment at the interlocutory stage.
At the present stage in this case, however, a full plenary hearing has been held and the innocence of both plaintiff and defendant has been established. Mr Shanley, however maintains, that the correct law to be applied to the present circumstances is the law as stated in the passage quoted from the judgment of Jenkins LJ. Once the defendants had been informed, he maintains, of the prior *225 inconsistent contracts with the plaintiffs, their duty was to cease to supply the two companies referred to. Any further supplies delivered by the defendants to the said companies, even though delivered in accordance with the defendants own contracts with those companies, was a dealing ‘inconsistent’ with those companies’ contracts with the plaintiffs and was therefore an actionable wrong.
Mr Keane, on the other hand, on behalf of the defendants, submitted that the defendants contracts with the two companies referred to were entered into by the defendants without notice of the plaintiffs’ prior inconsistent contracts; that the defendants contracts with the companies referred to were valid contracts and that the defendants could not be said to be committing any tort by carrying out their contracts in accordance with their terms.
It appears to me that there is much force in Mr Keane’s submission. It appears to me also that Jenkins LJ when he referred to an ‘inconsistent dealing’ must have been referring to a deal which was ‘voluntary’ in the sense that the third party was free to engage in it or not to engage in it. He can hardly have been referring to a dealing to which the third party had, in all innocence, become contractually committed. Even if he was, it appears to me that the present case raises special problems of its own.
In the case of Shannon Dairies there was, what appears on its face to be, a binding contract between that company and the plaintiffs. But Shannon Dairies Ltd maintained at all times that the officer who had signed that contract on behalf of the company had no authority to bind the company. It persisted in that attitude up to and including the hearing before me. Likewise, in the case of Crosstown Services Ltd there was a contract which appeared on its face to be a valid contract but Crosstown Services Ltd maintained that it had not intended to enter into a binding legal agreement and that no contract in fact existed.
It appears to me that, in the circumstances of this case, Messrs Ergas were placed in an impossible position. They knew what their own contractual commitments to the two companies referred to were. But they could not know, with certainty, what the true contractual position between the plaintiffs and those two companies was. This problem could not be resolved by examining documents. The defendants are innocent parties and the law can hardly place them in a position where they must, on inadequate information, make a decision as to the respective rights of Messrs Flogas on the one hand or of Messrs Shannon Dairies Ltd and Messrs Crosstown Services on the other. Neither can it leave them in a situation where if they make one decision they can be sued by Messrs Flogas and if they make the other decision they can be sued by Messrs Shannon Dairies Ltd and Messrs Crosstown Services Ltd. In these circumstances it appears to me that the only safe and proper course for the defendants is to observe their own contracts and to decline to take sides on issues to which they are strangers. Whether Messrs Shannon Dairies Ltd and Messrs Crosstown Services Ltd are, or are not, in breach of their contracts with the plaintiffs is essentially a matter between them and the plaintiffs.
Mr Shanley relied on a long line of authorities stretching from Lumley v Gye (1853) 2 E & B 216, 22 LJQB 463 to De Francesco v Barnam (1890) 45 Ch 430, McMahon v Dunne 99 ILTR 45, the decisions of Hamilton J above referred to, *226 Swiss Bank Corporation v Lloyds Bank and Others [1979] Ch 548; [1979] 2 All ER 853, to RCA Corp and Another v Pollard [1982] 3 All ER 771. What effect, if any, these decisions have on the position of a person who has innocently entered into a contract with another without knowledge, actual or constructive, of a prior inconsistent contract between that other and a third party, is problematical. But in the present case there is a further and additional element. Not only did the defendants enter into contracts with the two companies referred to without knowledge, actual or constructive, of the prior and inconsistent contracts between those companies and the plaintiffs, but never, at any time prior to the institution of proceedings, was the binding nature of the plaintiffs’ contracts with the two companies referred to clearly established. This matter was at all times in dispute between the plaintiffs and those two companies. In these circumstances it appears to me that the defendants were in an impossible position and that the only safe course for them to follow was to observe the terms of their own contracts which they knew to be valid and legally binding contracts.
Under these circumstances I am not satisfied that the defendants committed any tort against the plaintiffs and I would dismiss the plaintiffs action.
Engrais v IAWS
Reno Engrais et Produits Chemiques S.A. v Irish Agricultural Wholesale Society Ltd and Potash and Continental Ltd
1976 No. 1494P
High Court
8 September 1976
[1976-7] I.L.R.M. 179
(Hamilton J)
8 September 1976
Subject: Contracts
HAMILTON J
delivered his judgment on 8 September 1976 saying: This is an application brought by the second named defendant herein for an order discharging the said defendants from its undertaking pursuant to a consent entered into by them and dated 5 April 1976.
This consent was entered into between the plaintiff and both defendants and contains certain undertakings given by each party to the consent and these proceedings.
The consent provided that the undertakings given by the defendants at paragraph 1(a) and (b) and 2 of the consent might be discharged by the court on the application of the defendants or either of them giving ten clear days notice of such application to the court and to the solicitors for the plaintiffs and shall be so discharged by the court if satisfied that the plaintiffs are not entitled to an interlocutory injunction or if there has been unreasonable delay by the plaintiffs in prosecuting the action herein.
There has been no unreasonable delay by the plaintiffs in prosecuting the action herein. Indeed such delay as there has been in this regard has been occasioned by the defendants who had not at the date of the hearing of the application herein delivered their defence to the statement of claim delivered *181 herein by the plaintiffs. Having regard to the complexities of this matter, I do not consider that their delay in so doing has been unreasonable.
Consequently the matter for consideration be me in this application is whether or not the plaintiffs are entitled to an order pending the hearing of the action restraining the defendants from purchasing, importing, distributing or otherwise dealing in any manner whatsoever with the ‘contract products’ more specifically described in the statement of claim herein and further restraining them from distributing or marketing any of the said contract products already imported, and restraining the defendants from acting in a manner inconsistent with the obligations of ‘Granuphos’ (more particularly described in the statement of claim) under the contract dated 29 May 1974 referred to in the statement of claim and from inducing or continuing to induce any breach of the said contract.
As pleaded in the statement of claim, the plaintiffs’ claim is briefly this.
1. By contract in writing dated 29 May 1974 and made between the plaintiffs of the one part and Granuphos Societe Anonyme Tunnisienne (hereinafter called Granuphos) of the other part it was agreed that Granuphos would sell to the plaintiffs and that the plaintiffs would purchase from Granuphos the whole of the granulated phosphatic products and ground phosphatic products manufactured by or otherwise dealt with by Granuphos (other than such of these products manufactured for consumption in Tunisia) hereinafter referred to as the contract products.
2. That the defendants and each of them were aware that the plaintiffs had the exclusive right under the said contract to purchase all the contract products sold and exported by Granuphos.
3. That the defendants and each of them wrongfully induced or procured the breach of the said contract by entering into an agreement with Granuphos for the purchase by them or either of them of quantities of the said contract products and in particular granulated ground rock phosphate for direct import from Tunisia into Ireland without the permission or licence of the plaintiffs.
4. That this agreement made between Granuphos and the defendants is inconsistent with the contract between the plaintiffs and Granuphos and constitutes a breach of it.
5. That the defendants and each of them have wrongfully imported into the State via the port of New Ross a quantity of the said contract products comprising 1350 tons of granulated phosphate.
6. That the importation by the defendants of the said contract products is in breach of the contract between the plaintiffs and Granuphos.
7. That the sale within the State of the said contract products by persons other than the plaintiffs and their agents on different terms from those offered by the plaintiffs and their agents would diversely affect and damage the plaintiffs business in Ireland and abroad and that their custom and goodwill would be *182 irreparably damaged.
I have read and carefully considered the affidavits filed in this matter on behalf of all the parties and the documents and letters therein exhibited.
No useful purpose would be served by me in reviewing the contents of these affidavits because where there is a conflict of evidence contained therein, I have been unable to resolve that conflict even by reference to the exhibits which in this regard I find to be inconclusive.
The admitted or uncontroverted facts as appear from the affidavit are as follows:
1. By an agreement dated 29 May 1974 made between Granuphos of the one part and the plaintiffs of the other part Granuphos agreed to sell exclusively to the plaintiffs and the plaintiffs agreed to buy from Granuphos the whole of the granulated phosphatic products and ground phosphatic products manufactured by Granuphos or otherwise dealt with by Granuphos and therein described other than those intended for actual consumption in Tunisia subject to the terms and conditions contained in the said agreement.
2. The duration of the said contract was for a period of ten years from 1 January 1974 subject to the rights of renewal and termination contained in the said agreement.
3. By a telex dated 15 March 1976 addressed to the plaintiffs Granuphos alleged that the plaintiffs were in breach of the said agreement and apparently purported to determine the said agreement.
4. On 15 March 1976 Granuphos and the second named defendants entered into an agreement the terms of which are undoubtedly inconsistent with the agreement made 29 May 1974 hereinbefore referred to and if this latter agreement were on that date a valid and subsisting agreement constituted a breach of the terms thereof by Granuphos.
5. That in or about the month of February 1976 the second named defendants decided to place an order with Granuphos for one cargo of granulated rock phosphate and the first named defendants agreed to purchase the said cargo from them for distribution to retail outlets.
6. It is not clear whether the said cargo was ordered by the second named defendants prior to the execution of the agreement dated 15 March 1976 or not but the said cargo was shipped pursuant to a bill of lading dated 26 March 1976.
7. By a telex dated 1 April 1976 the plaintiff company informed the second named defendants of the existence of the alleged exclusive contract between the plaintiff company and Granuphos.
It is alleged by the plaintiffs that the defendants were at all relevant times aware of the nature of the contract between the plaintiffs and Granuphos. This is strenuously denied by the defendants in the affidavit sworn by Mr Cronin, Mr Perilhou and Mr Darlan.
This is a question of fact crucial to the determination of this case and without *183 the deponents being subject to cross examination and my having an opportunity to assess the witnesses I am unable to resolve this conflict at this stage.
However it is quite clear that on receipt of the telex sent by Mr Salleran on 1 April 1976 and received on 2 April 1976 the defendants and each of them were aware of the alleged agreement between the plaintiffs and Granuphos.
Mr Flood on behalf of the second named defendants submitted that the facts alleged by the plaintiffs, if true, would constitute a tort in the law of the land where the breach of contract was induced namely Tunisia and is not actionable here.
He also submitted that for the plaintiff to establish that his clients had been guilty of the tort of inducing a breach of contract the plaintiffs would have to establish that
1. There was in existence a valid and existing contract.
2. That his clients at all relevant times were aware of its contents.
3. His clients did some act to procure the breach and
4. His clients’ conduct resulted in a breach, and that they had so failed to establish, particularly the fact of the existence of the valid and existing contract with Granuphos and his clients’ knowledge of the existence of the terms of the said contract at the time of the alleged breach.
Mr Murphy on behalf of the plaintiff company has submitted that any act committed by the defendants in Ireland which is or would be inconsistent with the terms of the contract between the plaintiff company and Granuphos and the rights of the plaintiff company thereunder constituted an actionable interference by them with the said contract and is restrainable.
He submitted that the importation, sale or distribution of the said granulated ground rock phosphate by the defendants constituted an actionable interference with the said contract.
If this were so it would certainly be done with knowledge by the defendants of the alleged contract.
In the course of his judgment in D.C. Thomson and Co. Ltd v Deakin [1952] Ch 646 Jenkins LJ stated that
The inconsistent dealing between the third party and the contract breaker may indeed be commenced without knowledge by the third party of the contract thus broken but if it is continued by the third party after knowledge of the contract an actionable interference has been committed by him.
It is also submitted on behalf of the second named defendants that the ownership of the goods has passed to them and that they cannot be restrained from dealing with them.
These submissions by counsel which I have summarised raised many interesting questions of law which I do not have to finally determine at this stage.
*184
I have to deal with this application and apply the principles to be applied on an application for an interlocutory injunction.
In order to succeed the plaintiff company must be able to show
1. A fair prima facie case in support of its rights,
2. That damages are not an adequate remedy and
3. That the balance of convenience lies with the granting of an injunction rather than with the refusal thereof.
I would be doing less than justice to Mr Murphy’s submissions if I were to hold that he had failed to show a fair prima facie case in support of his claim.
However the matter does not end there. I have carefully considered the affidavits filed in this matter and have come to the conclusion that even if there were a violation of the plaintiffs’ rights in this matter by the defendants or either of them, that damages are an adequate remedy. It may be that the ascertainment of these damages may create problems but that of itself is no reason why an injunction should be granted.
I am also satisfied that the balance of convenience having regard to the large quantity of these products imported by the defendants and now in storage lies with the defendants.
For these reasons I am satisfied that if the plaintiff company had in the first instance applied for an interlocutory injunction in this matter I would have refused same.
Consequently the second named defendant, the moving party herein, is entitled to be discharged from the undertakings given by them in the hereinbefore referred to consent.
Riordan v. Butler and Others
[1940] IR 347
O’Byrne J. 347
O’BYRNE J. :
At the outset of my judgment I think it well that I should refer to the parties to the action and the positions which they occupied.
The three defendants were all qualified plasterers, and, at the time of the occurrence complained of in this action, they were all engaged as plasterers by Thomas McGrath. They were working on his housing scheme, the work of which lasted for a period of sixteen or seventeen months after the date of the said occurrence. They were all members of a Trade Unionthe Operative Plasterers Trade Societybut that seems to me an irrelevant circumstance, having regard to the facts in the case.
This was a case in which the threat (if I may use that expression) by the defendants was that they would withdraw their labour and cease worknot that they would induce others to cease work, but that they themselves would cease work.
The communication which was made to McGrath, and which was the basis of this action, was made by the defendant Butler, but it was alleged that he was acting as spokesman on behalf of himself and the other two defendants. So far as the defendant Humble is concerned, this was admittedly a fact, because, according to Humble’s own evidence, Butler had spoken to him before he communicated with McGrath. The position with regard to the other defendant, Power, is somewhat different. Power said that no prior communication was made to him; that when he arrived at the place where the work was being carried on, he saw the plaintiff, Riordan, walking away, that any communication that had been made was made prior to that time, and that he (Power), was not a party to it. That evidence was contradicted by all the other evidence in the case. It was contradicted by the evidence of the plaintiff, and by the evidence of McGrath, and by the evidence of Butler. I am satisfied that that evidence was not accurate. I do not for one moment suggest that Power was telling me what he believed to be untrue. Far from it, I accept him as a truthful, an absolutely truthful witness, but I think that in that respect he is inaccurate. I am satisfied on the evidence as a whole, that Power had been spoken to before the communication to McGrath, that he authorised Butler to make the statement which he did make, and that, accordingly, he was in exactly the same position as the other two defendants.
All three defendants had been employed as plasterers, and the exact terms of their employment had been left somewhat vague. They said they were employed “for the job” which, as I have stated, continued for a period of sixteen or seventeen months after the date of the occurrence complained of. They were paid weekly, and the amount of the payment was ascertained at a certain rate per hour.
I am satisfied on the evidence, that the men were employed by the week, and that their contract of employment could be terminated by a week’s notice on either side. So much for the defendants.
The plaintiff was a man who had been acting as a plasterer. He said himself he had served his full apprenticeship as a plasterer with the defendant, Power. Power said he had not served his full apprenticeship; that the full period was five years, and that the plaintiff only served two or two and a half years. The plaintiff was not at the time of this occurrence, or for a considerable time prior to it, a member of a trade union. That there was an objection to the plaintiff on the part of the defendants and the other plasterers, was obvious, and what the objection was has been referred to in the evidence: First, that he was not a qualified plasterer; secondly, that he had been accustomed to work with handy men, in other words, with men who were not qualified, and thirdly, that he was not a member of a trade union. It seems to me that the last named was the real ground of objection, and I think the other two were only thrown in to make weight, because, notwithstanding all that had been said, it was quite clear from the evidence that on several occasions efforts were made by some of the defendants to induce the plaintiff to join this trade union; a trade union which could only be joined by qualified men. Power and others tried to get the plaintiff to join, and no satisfactory explanation was given to the Court as to why that effort should have been made if the facts were as suggested that the plaintiff was not properly qualified. Accordingly, I take it, that the real cause of objection to the plaintiff was that he did not belong to a trade union. He had referred to trade unions in general, and to this trade union in particular, in anything but complimentary terms.
He sought employment from McGrath. The first occasion on which he did so was on Sunday, 26th March, and on that occasion McGrath told him that he thought the other plasterers on the job had some grievance against him, and that it would be better to leave the matter over for a day or two in order to find out what was the cause of the grievance, and what was the real position. On the following day, March 27th, McGrath spoke to Butler, and he said that Butler gave him no specific reason for objecting to the plaintiff. There was some confusion about that interview, because Butler’s recollection of the interview was that it was some time at the end of the week he was to communicate with McGrath as to the objection against the plaintiff. But at any rate no specific objection was mentioned, and on the night of the 27th March the plaintiff again came to McGrath, and McGrath, not having received any reply from Butler or any of the other men, told the plaintiff to come along to work in the morning. The evidence of the plaintiff, and the evidence of McGrath both coincide in that respect.
On that Monday night the plaintiff was, according to my finding, definitely employed; a contract was entered into that night. That was the evidence of the plaintiff, and that was the evidence of McGrath, and that was borne out by the fact that on the following morning, Tuesday morning, the plaintiff attended at the site with his kit and ready to start work. I am satisfied on the evidence that he was employed on the same terms as the other plasterers; that he was employed by the week, and that his employment could only be properly terminated by a week’s notice. That was the position as I find it.
On the Tuesday morning it was necessary for the plaintiff to see McGrath in order to ascertain from him where exactly he was to work and what his work was to be, and he remained on the site until he got instructions on those matters. In the meantime the other men arrived, and they saw the plaintiff on the place with his tools. The evidence was somewhat conflicting as to what happened next. McGrath said he met Butler, and he asked him if he were going to allow the plaintiff to work, and that Butler said he would go and see the other plasterers. Butler’s evidence was that there was no such communication on that morning: he said that McGrath did not speak to him, that nobody approached him, but that he saw the plaintiff there, spoke to the other plasterers, and that somebody said they would leave the job immediately if the plaintiff worked. Whether or not there was any prior communication by McGrath on that morning, one thing emerged: that after consultation with the other plasterers, Butler came to McGrath, and told him that the plasterers would walk off the job if the plaintiff went to work.
Thereupon McGrath told the plaintiff that he was sorry, and that he would have to go. These were the facts which led up to the cessation of work by the plaintiff.
I have to consider their effect in law. In the first place I am satisfied that there was a contract of employment between McGrath and the plaintiff. I am further satisfied that that contract was broken by the plaintiff being dismissed in this summary manner without any notice. I have to ask myself what was the cause of that. The cause of it was obviously the communication by Butler, and the threat made by him that the plasterers would cease work if the plaintiff were allowed to work on the job. Did the defendants adopt illegal means for the purpose of effecting their purpose? This was not a case in which there was anything in the nature of intimidation, or a threat of violence. But there was, as it seems to me, the clearest intimation that the defendants would break their contracts with McGrath. They were employed by the week, and they were bound to give one week’s notice for the purpose of terminating their employment. They could, as it seems to me, have arrived at substantially the same result, at which they did arrive, in a perfectly lawful way. Any individual there was entitled to give notice to his employer a week’s notice terminating his employment. The three defendants could have adopted that course, and, if they did so, it seems to me that the plaintiff would not have any right of action against them. But they did not. Their threat, and I use the word in its broadest sense, was that they would walk off the job, that they would cease work immediately in breach of their contract. Was that an unlawful means? It seems to me, having regard to the decision of Mr. Justice Gavan Duffy in the case of Cooperv. Millea (1) that I am bound to hold that it was. The case of Cooper v. Millea (1) seems to cover this case entirely, and I follow it.
Mr. Barry, counsel for the defendants, relied strongly on the case of White v. Riley (2). It is rather like this case, but differs in two respects, as follows:1. The defendants agreed that they would find the money to enable the employers to give the plaintiff a week’s wages in lieu of notice. 2. The workmen gave a week’s notice of their intention to cease work.
I find that there was a “trade dispute” in this case, but it does not, in my opinion, affect the result.
The only question then left is the question of damages.
I have very little doubt that the plaintiff is entitled to substantial damages. He was employed, and I consider that, but for the interference of the defendants, that employment would have been continued for a period of in or about fifteen or seventeen months, until this job had been completed. The amount which has been fixed by the Circuit Court Judge is £150, and I think on the whole that was a fair and reasonable amount, and I see no reason why I should vary it.