Bonsor v Musicians' Union
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DENNING,LORD JUSTICE JENKING |
| Judgment Date | 05 March 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0305-7 |
| Court | Court of Appeal |
| Date | 05 March 1954 |
[1954] EWCA Civ J0305-7
The Master of the Rolls,
(Sir Raymond Evershed)
Lord Justice Denning, and
Lord Justice Jenking.
In the Supreme Court of Judicature
Court of Appeal
Counsel for the Appellant: Mr H. LESTER, instructed by Mr Cecil Altmen.
Counsel for the Respondents: MR L. B. SCHAPIRO, instructed by Messrs Hall, Brydon, Egerton & Nicholas.
I have already given my reasons for upholding the judgment of Mr Justice Upjohn in so far as he declared that the Plaintiff had been wrongfully excluded, or expelled, from the Defendant Union. It becomes accordingly now necessary to consider the Plaintiff's cross-appeal against the rejection by the Judge of his claim for damages.
In the Court below the Plaintiff, by his Counsel, conceded that the cases was covered by the decision in this Court of Kelly v. National Society of Operative Printers' Assistants, reported in 84 Law Journal, Volume 2, at page 2236, and 113 Law Times Reports at page 1025. Mr Justice Upjohn therefore rejected this part of the claim without given any reasons of his own.
Since Kelly's case was a decision of the Court of Appeal, prime, facie, and having regard to the rule established in Young v. Bristol Aeroplane Company, LTD., reported in 1944 King's Bench Division at page 718, it would be binding upon up no less than upon Mr Justice Upjohn. Mr Lester has, however, adapted a somewhat bolder course before us. He has argued that Kelly's case ought no longer to be regarded as binding in the Court of Appeal, and that we, being free to reject Kelly's case, should proceed to do so and decide the present question in the Appellant's favour. Mr Lester advanced two grounds for his submission (of there of them sufficient, if made good, for his purpose according to the judgment in Young v. Bristol Aeroplane Company, Ltd., namely (1) that later pronouncements in the House of Lords are inconsistent mitt, the reasoning on which the decision in Kelly's case was based; and (2) that the legal basis for the decision in Kelly's case has been destroyed by Statute; namely, by section 82 of the Law of property Act, 1925.
I shall have occasion at a later stage, end for the purpose of considering Mr Lester's second point, to examine carefully the rationes of the three judgments in Kelly's case. For present purposes, particularly in relation to Mr Lester's first point, it is sufficient to state that in Kelly's case (as in this case) the Plaintiff alleged that he had been expelled from his Union wrongfully and in breach of the union's Rules; and he claimed, accordingly, a declaration to that effect, an injunction to restrain the Defendants, their officers, etc., from excluding him from membership, and also damages.
The action was brought in the County court where the Plaintiff was wholly successful, obtaining a declaration and an Injunction as sought by him, and £68 damages. The Defendants appealed to the Divisional Court, where the Judges (Mr Justice Norridge and Mr Justice Rowlatt), being divided in opinion, the appeal was dismissed. The Defendants appealed again to this Court, which unanimously dismissed the appeal so far as it related to the declaration and the injunction, but discharged the award of damages, holding the Plaintiff's claim in that respect to be incompetent.
It is Mr Lester's contention that the Speeches in the House of Lords in Braithwaite's case ( Amalgamated Society of Carpenters, Cabinet Makers and joiners v. Braithwaite, and General Union of Operative Carpenters and Joiners v. Ashley, reported in 1922 2 Appeal Cases at page 440) containing approval of the decision of this Court in Osborne's case ( Osborne v. Amalgamated Society of Railway Servants, reported in 1911 1 Chancery Division at page 540) by necessary implication disapproved Kelly's case, particularly so much of the judgments of the Court of Appeal in the last-mentioned case as related to the Plaintiff Kelly's claim for damages.
I am unable to accept this argument.
In Osborne's case the Plaintiff, a member of the Defendant Union, sought rescission of a resolution purporting to expel him from membership on the ground that suchresolution was ultra vires and otherwise wrongful, and he sought also an Order for his reinstatement as a member of the Union. The Defendants, by way of preliminary objections in their Defence, alleged, first, tat they were an unlawful association and, consequently, that the contract constituted by the Rules was incapable of enforcement in a Court of law; and, second, that, in any event, the Plaintiff's claim involved the enforcement of an agreement for the application of the funds of a Union for providing benefits to members–an agreement expressly made unenforceable by Section 4 of the Trade Act, 1871.
Both these objections were rejected by the Court of Appeal. The point raised by the second objection was again directly raised in Braithwaite's case, and was answered both in the Court of Appeal and in the House of Lords in the same sense as it had been answered in Osborne's case, the decision in which was, accordingly, expressly approved by the House, (see, for example, the Speech of Lord Atkinson, reported in 1922 2 Appeal Cases at pages 463 and 464.) It is true that Kelly's a case was referred to in the course of the argument for the Appellants (see page 445 of the report), but it is not clear to what precise matter the citation was directed. In my Judgment, it is Impossible to contend that the House, in rejecting the argument of the Appellants, by implication disapproved the decision in Kelly's case upon the claim for damages; for that claim and the reasons for the Court's rejection of it were not involved in, or relevant to, the issues in Braithwaite's case. Kelly's case is nowhere referred to in any of the Speeches in the House of Lords. The question, the decision of which in Osborne's case was approved by the House of Lords in Braithwaithe's case, was whether a claim by a Union member that his expulsion was ultra vires the Rules of the Union involved an attempted enforcement of an agreement of a kind specified in Section 4of the Trade a Union Act, 1871. That question was not involved in any way in Kelly's case or this Court's decision in Kelly's case. Indeed, apart from the language of Lord Justice Scruttion in Malone's case (later mentioned), I should have thought it reasonable clear that there was no conflict between Osborne's case and Kelly's case. In my judgment, therefore, Mr Lester's first point cannot be sustained.
I turn to Mr Lester's second point based on Section 82, sub-section (1), of the Low of Property Act, 1925. That section is in the following terms (so far as material): "Any … agreement entered into by a person with himself and one or more other persons shall be construed and be capable of being enforced in like manner as if the … agreement had been entered into with the other person or persons alone." The section was enacted to get over the kind of difficulty which sometimes arose on transfers of mortgages by trustees. It would, to my mind, by surprising if a section contained in what may fairly be called conveyancing legislation had the oblique effect of altering at a stroke the rights of members of registered Trade Unions to recover damages from their Unions for breaches of the Union Rules. Still, if such is the effect of the enactment fairly construed, so it is.
In order to invoke the section it is essential for Mr Lester to establish that the ratio decedent in Kelly's case was that the contract constituted by the Rules of the Union was contrast between each member and the Union, that is, the whole aggregate of the members including himself; and also that by seeking to enforce such contract he was suing all the member so the Union, including himself.
In my judgment, Mr Lester fails to make good the essential premise to his argument. In my judgment, the decision proceeded upon the view (expressed most clearly by Lord Justice Bankes) that the material contract was a contractbetween the Plaintiff Kelly and all the other members of the Union except himself. And if the union is not itself a "persons juridice" distinct from the members who in the aggregate constitute the union, as the Members of this Court in Kelly's case clearly thought it was not, (a matter to which I shall have later to return) this view seems inevitable. When a new member joins "The Union" he is, ex hypothesi, not already a member. He contracts (on the basis stated) with all the other members, and he and each of them remains contractually bound to each other under, and in accordance with, the Rules during their respective memberships. But the Court further proceeded upon the view that the Committee, of whose acts the plaintiff had complained, were, under the constitution of the Union, as much the Plaintiff's agents as the agents of the other members, or (as Lord Justice Bankes observed) if they did not act as such agents, then the Plaintiff had no complaint against the Union at all. Further, whatever was the nature of the contract, by suing" the Union" the Plaintiff was suing all the members, including himself, a class of action for which there was no warrant in authority, So in this case the plaintiff by suing the Union (unless the Union is a persona juridics) is suing all the members of the Union, including himself.
I set out the materiel passages from the judgments, and I do so more fully than might otherwise have been necessary by reason of their bearing upon the general matter later dealt with in this judgment.
Lord justice Swinfen Eady said: "I m not aware of any authority for the proposition that a member off a voluntary unincorporated association can recover general damages against the association as such for a breach of the Rules, or of the contract contained in the rules. The...
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