Bonsor v Musicians' Union
| Jurisdiction | UK Non-devolved |
| Judge | Lord Morton of Henryton,Lord Porter,Lord MacDermott,Lord Keith of Avonholm,Lord Somervell of Harrow |
| Judgment Date | 07 November 1955 |
| Judgment citation (vLex) | [1955] UKHL J1107-1 |
| Date | 07 November 1955 |
| Court | House of Lords |
[1955] UKHL J1107-1
Lord Morton of Henryton
Lord Porter
Lord MacDermott
Lord Keith of Avonholm
Lord Somervell of Harrow
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Bonsor against Musicians' Union, that the Committee had heard Counsel, as well on Monday the 27th, Tuesday the 28th, Wednesday the 29th and Thursday the 30th days of June last, as on Monday the 4th day of July last, upon the Petition and Appeal of Mary Claire Bonsor, of 53 Surrenden Road, Brighton, in the County of Sussex, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 16th of February 1954, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed case of the Musicians' Union lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 16th day of February 1954, complained of in the said Appeal, be, and the same is hereby, Reversed: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Chancery Division of the High Court of Justice with a Direction that damages be assessed on the basis that the Respondent Union has been guilty of a breach of contract, and that the High Court of Justice has jurisdiction to award damages for that breach: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by her and by Harry Bonsor deceased in the Courts below: And it is further Ordered, That the question of Costs in any further proceedings in the Chancery Division be within the discretion of the said Court: And it is also further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by her in respect of the said Appeal to this House, such Costs to be taxed in the manner usual when the Appellant sues in formâ pauperis, and the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This appeal arises out of an action in which Mr. Harry Bonsor was Plaintiff and the Respondent Union was Defendant.
Mr. Bonsor joined the Respondent Union, which is a registered trade union, some time before the year 1947. In the year 1949 the Union purported to expel him from its membership. The results of that expulsion were described by Upjohn, J., in his judgment as follows:—
"The Plaintiff is aged some 50 years and has all his life been a professional musician. He joined the Musicians' Union through the Liverpool Branch sometime before 1947. The Musicians' Union is what is familiarly known as a 'closed shop union'. That is to say, it is virtually impossible to get employment or engagement as a musician unless the musician is a member of the Union. That, indeed, has been strikingly illustrated in this case, for after his expulsion the Plaintiff was unable to obtain any employment except at Cheltenham for a short time with a non-union orchestra. He was, apart from that, unable to get any employment and he has had to seek his livelihood in entirely different spheres. He was at one time even reduced to accepting employment to remove rust from a Brighton pier, and he is now earning a wage of some £6 a week in some engineering works, whereas formerly, earning his livelihood as a musician, he was earning sums certainly well in excess of £10 a week".
On the 8th October, 1952, Mr. Bonsor issued the writ in the present action, claiming a declaration that his expulsion was wrongful, null and void, an injunction restraining the Respondent, its servants and agents, from acting on the purported expulsion, damages and costs.
Upjohn, J., granted the declaration and injunction and costs, but dismissed the claim for damages, holding himself bound so to do by reason of the decision of the Court of Appeal in 1915 in the case of Kelly v. National Society of Operative Printers and Assistants 113 L.T. 1055, 84 L.J.K.B. 2236.
The Respondent Union appealed against the part of the judgment which granted the declaration and injunction, and Mr. Bonsor cross-appealed against the dismissal of his claim for damages.
The Court of Appeal dismissed the Union's appeal and dismissed the cross-appeal by a majority (Sir Raymond Evershed, M.R., and Jenkins, L.J., Denning, L.J., dissenting). The Master of the Rolls and Jenkins, L.J., were of opinion, rightly, in my view, that Kelly's case was binding on the Court, but Denning, L.J., felt himself entitled to disregard that case and delivered a judgment in favour of Mr. Bonsor, which I have found of great assistance. It is the dismissal of the cross-appeal which gives rise to the appeal now before your Lordships' House.
Mr. Bonsor died on the 4th March, 1954, and the present Appellant is his widow and legal personal representative. On the 5th August, 1954, it was ordered that these proceedings should be carried on between the present Appellant and the Respondent Union.
It is convenient to turn at once to Kelly's case. The Plaintiff was a printer's assistant, and the Defendant was a trade union registered under the Trade Union Acts. The Plaintiff claimed a declaration that a resolution expelling him from membership of the Union was ultra vires and void, an injunction restraining the Union from enforcing the said resolution, and damages. The case was first heard in the County Court and there the Plaintiff obtained a declaration and injunction as asked and £68 damages for loss of employment owing to his expulsion from the Union. It is unnecessary for the present purpose to refer to the proceedings on appeal in the Divisional Court, but when the case reached the Court of Appeal that Court upheld the grant of the declaration and injunction but held that the Plaintiff could not recover any damages. The Union was ordered to pay the costs of the appeal.
My Lords, I can see no ground upon which Kelly's case can be distinguished from the present case, but I am of opinion that Kelly's case was wrongly decided in so far as the Plaintiff's claim for damages was rejected.
I think the basis of the decision appears most clearly in the following passage from the judgment of Phillimore, L.J. (as he then was):—
"Damages for tort cannot be given since the Trade Disputes Act, 1906. These damages can only be supported as damages for breach of contract. With whom did the Plaintiff contract? Not, I think, with the trade union which, as Lord Macnaghten says in Russell's case, is merely an unincorporated society of individuals. I think that the Plaintiff contracted with each and every of the members, and if anybody has broken any contract with him it is each and every member. Further, the officers of the society are agents for him quite as much as for the other members. And if he sues the trade union for what it has done, he is suing himself among others. I am not sure whether according to the very loose form in which the judgment is drawn up there is any judgment against the trade union as such. But if there is it is open to these objections. I also think that there can be no charge upon the funds of the society for any breach of contract …"
My Lords, in my opinion the action in Kelly's case was an action by a member against his union as an entity recognised by the law and distinct from the individual members thereof, for breach of a contract between the Plaintiff and his Union. If this is so, the foundation for the refusal to award damages is gone.
I base the view which I have just expressed upon a line of authorities of which the first is the well-known case of The Taff Vale Railway Company v. The Amalgamated Society of Railway Servants [1901] A.C. 426. In that case it was held by this House that a trade union registered under the Trade Union Acts, 1871 and 1876, could be sued in tort for the wrongful conduct of its servants in the course of a strike. I find it unnecessary to set out the relevant provisions of these Acts, since they are sufficiently summarised for the present purpose in passages which I am about to quote from the judgment of Farwell, J. (as he then was) in the Taff Vale case.
That learned Judge said ( [1901] A.C. at page 427)—
"The defendant Society have taken out a summons to strike out their name as defendants, on the ground that they are neither a corporation nor an individual, and cannot be sued in a quasi-corporate or any other capacity … Now it is undoubtedly true that a trade union is neither a corporation, nor an individual, nor a partnership between a number of individuals; but this does not by any means conclude the case."
After referring to section 16 of the Trade Union Act, 1876, and to an argument advanced on behalf of the Defendant, the learned Judge continued—
"The questions that I have to consider are what, according to the true construction of the Trade Union Acts, has the Legislature enabled the trade unions to do, and what, if any, liability does a trade union incur for wrongs done to others in the exercise of its authorized powers? The Acts commence by legalising the usual trade union contracts, and proceed to establish a registry of trade unions, give to each trade union an exclusive right to the name in which it is registered, authorize it through the medium of trustees to own a limited amount of real estate, and unlimited personal estate 'for the use and benefit 'of such trade union and the members...
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