Contempt of Court and the Enforcement of Labour Injunctions
| Author | Catherine O'Regan |
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb00892.x |
| Date | 01 May 1991 |
| Published date | 01 May 1991 |
Contempt
of
Court and the Enforcement
of
Labour
Injunctions
Catherine O’Regan
*
The scope and effectiveness of a legal remedy will be substantially determined by
the method of its enforcement. Labour injunctions’ are enforced by contempt of
court proceedings. The legal principles governing contempt
of
court are uncertain
and the sanctions for contempt of court
in
labour injunction cases are severe,
so
that labour injunctions may well restrict a wider range of activities than their wording
would suggest because of the fear of contempt proceedings. This article is divided
into two sections. The first contains an outline of the present uncertainties in the
law and procedure of contempt. The second section contains a consideration of the
nature
of
judicial discretion in contempt cases and the forms
of
sanction for contempt
that a court can employ within the context of the labour injunction.
The Law and Procedure Governing
Contempt
The law of contempt is
in
a state of uncertainty. Clearly established principles are
being overturned and as yet a new synthesis has not emerged. Nowhere
is
this more
clear than
in
relation to the obligations imposed by injunction orders on parties not
named
in
those orders. The voluminous
Spycatcher
litigation’ has contributed to
the uncertainty
in
this area of the law.
In
this outline of these principles,
I
seek
to describe the implications of
the
current state
of
the law for labour injunctions.
The Distinction between Civil and Criminal Contempt
The common law has long recognised a distinction between civil and criminal
c~ntempt.~
In
Comet Products
UK
Ltd
v
Hawkex
Plastics Ltd,4
Lord Denning
MR
neatly characterised the difference between the two:
~~ ~
*
Senior Lecturer, Department of Criminal and Procedural Law, University
of
Cape Town. The material
contained
in
this article formed part
of
my doctoral thesis.
I
am grateful to Bob Simpson, Professor
Wedderburn and Alec Freund for their comments and assistance.
I
The term ‘labour injunction’ originated
in
the USA
in
the first decade of this century, when courts
granted
a
large number
of
injunctions effectively restraining trade unions and their officials from
supporting industrial action taken by their members. See F Frankfurter
&
N
Greene.
The
Labor
Ittjuticiioti
(New York: MacMillan,
1930).
This is the sense
in
which the term is used in this article.
It
has. however, also heen used to refer to other forms of injunction, see
K
Ewing
&
A
Grubb ‘The
Emergence of
a
New Labour Injunction’
(1987)
16
Industrial Law Journal
145.
For an important
recent account of the role of labour injunctions
in
American labour history, see William
E
Forbath
‘The Shaping
of
the American Labor Movement’
(1989)
102
Hurvard Law Review
1109.
2
The publication
of
Spycurcher
gave rise,
inter ah,
to the following litigation:
Aii
Gen
v
Observer
Lid
(1986)
New
1J
799
(CA);
Aff
Get1
v
Guardian Newspapers
119871 3
All
ER
316
(HL);
Aff
Gen
v
Newspaper PitOlishirig
[
19871
3
All
ER
276
(Ch)
&
(CA);
Aii
Gen
v
;The
Observer Lfd
(HL)
The
Times
14
October
1988;
Aff
Gen
v
Titnes Newspapers Lrd
(HL) The Times
14
October
1988.
For
discussion of the litigation, see E Barendt ‘Spycatcher and Freedom of Speech’
1987
Public
taw
29;
Y
Cripps ‘Breaches of Copyright and Confidence
-
The Spycatcher Effect’
1989
Public Law
13;
Gareth Jones ‘Breach of Confidence after Spycatcher’
(1989) 42
Currettf Legal Problems
49.
3
Lord Hailsham
of
St Marylebone (ed)
9
Halsbury’s
Laws ofEnglattd
(London: Butterworths. 4th
ed,
1974) 9,
para
2.
4 119711
I
All
ER
1141, 1143
(CA).
385
The Moderti
LAW
Review
[Vol.
54
The difference is well-known.
A
criminal contempt is one which takes place in the face of
the court, or which prejudices a fair trial and
so
forth.
A
civil contempt is different.
A
typical
case
is
disobedience to an order made by the court in a civil action.
The distinction has become blurred. Originally, its underlying rationale was thought
to lie
in
the
fact that judges seek to punish contemnors
in
criminal contempt whereas
they merely seek to coerce contemnors in civil proceedings to comply with the court
order. However, courts often seek both to punish and to coerce.’ Thus although
civil contempt originally related to cases concerned with the rights of plaintiffs,
and criminal contempt dealt
with
the public interest in the authority of the court,
in
some civil contempt cases judges felt that the defendant’s behaviour
in
failing
to comply with a court order was
so
flagrant as to border on
the
criminal.
Accordingly, the distinction between civil and criminal contempt became eroded
and
in
Scott
v
Scott,6
the House of Lords identified a third form of contempt,
contumacious civil contempt which is a hybrid of criminal and civil contempt. The
proceedings are launched
by
the
plaintiff as in civil contempt, but the character
of
the
contempt has a criminal aspect
so
that the provisions of criminal contempt
attach to
it.
These developments have led judges, at least since the early
1970s,
to express
their dissatisfaction with the distinction between civil and criminal contempt. In
Jennison
v
Baker,
Salmon
LJ
stated that he found the distinction ‘an unhelpful and
almost meaningless clas~ification’~ and in
Att
Gen
v
Newspaper Publishing
Ltd,
Sir John Donaldson
MR
stated that the distinction ‘tends to mislead rather than
assist’
The distinction between civil and criminal contempt has been particularly tenuous
in
labour injunction matters for two reasons. First, courts have often seen the
circumstances of the breach of labour injunction orders as containing an aspect of
criminal contempt, In a leading Canadian case,
Poje
v
Aft
Gen, British Col~rnbia,~
Kellock
J,
held that:
the large numbers of men involved and the public nature of the defiance of the order
of the Court transfer the conduct here in question from the realm of a mere civil contempt,
such as an ordinary breach of injunction with respect to private rights in a patent or trade
mark, for example, into the realm of a public depreciation of the authority of the Court tending
to
bring the administration of justice into scorn.
Secondly, some judges have felt that the ‘practical realities’ of industrial relations
are such as to require a departure from the ordinary rules
of
contem
t
of court.
So,
in
Con-Mech (Engineers)
Ltd v
AUEW (Engineering Section)?’
Sir John
Donaldson (then President of the National Industrial Relations Court”) held that
5
6
7
8
9
10
I1
As Salmon
U
noted
in
Jentiisoii
v
Baker
[
19721
1
All
ER
997,
1001 (CA) contempt proceedings
aim both at ‘vindicating (a) the rights of plaintiffs (especially the plaintiff
in
the action) and
(b)
the
authority of the court. The two objects are,
. . .
inextricably intermixed.’
119131
AC
417
(HW.
i1972j
1
All
ER-997,
1001
(CA).
I19871
3
All
ER
276. 294
KA).
Sir
John
Donaldson
MR
oroposed
a
different classification of contempt
bf
coirt; those which involve, or assist
in,
a breach
oi
a ‘court order; and those which hinder
the
due administration of justice. See also Lloyd
W
at
306;
and the Report of the Phillirnore Committee
(1974)
Cmnd
5795
paras
168-176.
[I9531
Dominion LR
785
(Supreme Court),
795-6.
[I9731
IRLR
333,
para
19
(NIRC).
The National Industrial Relations Court (NIRC)
had
the
same ‘powers, rights, privileges and authority’
as the High Court
in
respect of contempt of court,
(s
99
of
the Industrial Relations Act,
1971)
see
Lord Denning
MR
in
Churchnrati
v
Joinr
Shop
Stewards’
Committee
offlie
fort
of
Lotidon
119721
ICR
222
(CA).
386
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