D. C. Thomson & Company, Ltd v Arthur Deakin and Others
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE JENKINS,LORD JUSTICE MORRIS |
| Judgment Date | 26 June 1952 |
| Judgment citation (vLex) | [1952] EWCA Civ J0626-1 |
| Court | Court of Appeal |
| Date | 26 June 1952 |
[1952] EWCA Civ J0626-1
THE MASTER OF THE ROLLS (Sir Raymond Evershed),
LORD JUSTICE JENKINS and
LORD JUSTICE MORRIS.
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
MR. GILBERT H. BEYFUS, Q.C., MR. M. D. VAN OSS and MR. PATRICK BENNETT (instructed by Messrs. Neish, Howell & Haldane) appeared on behalf of the Appellants (Plaintiffs).
MR. GERALD A. GARDINER, Q.C., and MR. M. R. NICHOLAS (instructed by Messrs. Pattinson & Brewer) appeared on behalf of the Respondents (Defendants) Deakin, Wood and Intin.
SIR HARTLEY SHAWCROSS, Q.C., and MR. I. J. LINDNER (instructed by Messrs. Shaen, Roscoe & Co.) appeared on behalf of the Respondents (Defendants) Briginshaw and Moncrieff.
SIR FRANK SOSKICE, Q.C., MR. JOHN THOMPSON and MR. COLIN FAWCETT (instructed by Messrs. W. H. Thompson) appeared on behalf of the Respondent (Defendant) Morrison.
The appeal in this case from Mr. Justice Upjohn's order has involved a consideration of many important, novel and difficult questions. In the ordinary way, therefore, I should have wished and thought it right to reserve my judgment, but it has been made plain that the case is one of considerable urgency for the parties concerned, who may indeed desire to take this matter further; and it is moreover an interlocutory application. In those circumstances, having reached my conclusion on these matters, I have thought it right and in the best interests of the parties that I should deliver my judgment, with such inelegancies as it may contain, at once.
I have said that the matter comes before us upon an interlocutory application. The courts have long exercised beneficial powers of granting interlocutory relief by way of injunction pending the trial of an action and in proper cases they have thereby prevented undoubtedly what otherwise might have been grave injury to the plaintiff - injury which could not have been put right or effectively remedied by any order made on the trial.
So indeed the learned judge in the present case has formed the view that the acts of which the plaintiffs complain, if allowed to continue, will cause what he called irreparable injury to the plaintiffs in their business. That is not to say that on that ground alone the court will grant injunctions; nor has Mr. Beyfus so argued. He must indeed, as he concedes, at least show that he has got a prima facie case or, if you will, a strong prima facie case that the plaintiffs are entitled to the remedy they seek. If they go so far, then I have no doubt that the courts will, where necessary, grant an injunction in mandatory form.
The question then is: Have the plaintiffs established on the facts proved in the case a prima facie right (at least) to the injunctions which they seek? In ordinary cases it may not be a difficult matter for the courts to determine whetherinjunctions of this character should be granted, for the court in ordinary cases will not investigate at length and fully all the matters of law which may be involved. If it appears that the plaintiffs have a real and serious case to argue and that they have a prima facie right to some relief, then the court will not investigate the matter further upon the motion. But in the present instance we have heard long arguments upon these difficult questions, and I would like to express my appreciation to the learned counsel in the case for the great assistance which the court has received. In those circumstances, I think that I must now express my view upon the matters of law involved, stating what I conceive the law to be, and then decide the matter now before us on that basis of the law.
The result may perhaps be in some degree unsatisfactory, because of necessity the facts have not been yet fully investigated. In the course of his forceful reply, Mr. Beyfus supposed that questions were put to a jury: Did this, that or the other defendant do this, that or the other thing, or intend such and such a result? It is impossible at this stage to treat the matters of fact in that way.
The questions of fact are raised upon affidavit evidence. To the affidavits made on the plaintiffs' behalf, sworn testimony by affidavit has been put in by the defendants, to which in the nature of things, perhaps, it has not been practicable to reply; and it is the fact that the plaintiffs have made no reply. In those circumstances, the court cannot, as the learned judge pointed out, disregard the sworn assertions of the defendants unless they are shown from other material in the case clearly to be wrong. On the other hand, the court will not, I conceive, decline to draw from the whole material before it the natural and reasonable inferences which should be drawn.
It will plainly be necessary for me at a later stage to examine closely the facts as they relate to each of the individual defendants. For my immediate purposes, however, the narrativemay be stated thus.
It appears that since the year 1926, during which year occurred the so-called general strike, the plaintiffs have maintained the view that they would conduct their business upon the basis that none of those they employed should belong in any circumstances to any union. Thus, all their employees were required to sign and, as I understand, did in fact sign an undertaking in this form: "I undertake not to become a member of any union as long as I am in your employment." But during recent years it seems that many of the plaintiffs' employees, no doubt in disregard of this written undertaking, had become members of a union known as the National Society of Operative Printers and Assistants, commonly referred to as NATSOPA, of which the fourth and fifth defendants are officers, the fourth being its general secretary.
Early in the present year, the plaintiffs determined the employment of one of their employees, one McKay, who had been in their service for a great many years, but who had for some time, as I gather, been a member of NATSOPA. It is said on the part of the defendants and others concerned in this matter that the contract of employment was determined in fact for that reason, namely, that he belonged to the union, and for that reason alone. Mr. McKay accordingly sought help from NATSOPA. His appeals were not in vain. NATSOPA, through its officers, rallied strongly to his support. On 19th April they called out upon strike those members of their union who were in the service of the plaintiffs. It is said - and this is a matter to which I must later refer - that the works of the plaintiffs at Glasgow and Manchester were picketed by members of the union out on strike.
Moreover, the officers of the union, NATSOPA, particularly Mr. Briginshaw, sent out cries and exhortations for support from union labour all over the country. As will appear, he called for support in the way of cutting off the supplies ofraw material to the plaintiffs, and he also called upon persons capable of doing so to take steps to prevent the distribution of the papers which the plaintiffs' business it is to publish and distribute.
We are not in these proceedings concerned with the latter question of distribution. We are concerned with the supply of the raw material, particularly paper and ink, to the plaintiffs and to their premises which I have mentioned at Glasgow and Manchester. It is specially in regard to Manchester that we have to concentrate our attention.
The supplies of paper, so far as is relevant to this case, came from one or more companies associated with the name Bowater. I put it in that way, for it appears that there is more than one limited liability company forming part of what has been called the Bowater organisation. That fact is, however, immaterial, and for the purposes of this judgment I shall use the name "Bowaters" as indicating the actual suppliers of the paper to the plaintiffs and as also constituting the employers of the loaders and drivers who would in the ordinary course have loaded the paper and driven it to the plaintiffs' premises.
On 22nd April, three days after the start of the strike, there was a meeting in London of the Executive Council of another body, known as the Printing and Kindred Trades Federation, that being a body constituted by a number of trade unions, including NATSOPA, and also another union, which has been called for short in this case the Paperworkers Union, of which the full name is the National Union of Printing, Bookbinding and Paper Workers. Of that latter union the last defendant, Mr. Morrison, is the general secretary. For present purposes, and adhering deliberatly to imprecise language, the Executive Council then (that is, on the morning of 22nd April) resolved to support the dispute which had arisen between NATSOPA and the plaintiffs.
The next matter of fact in this short but somewhat turbulent history occurs on 25th April, which was a Friday. Onthat day, according to the evidence – I again adhere for the moment to imprecise terminology - it came to the attention of the management of Bowaters that the drivers of Messrs. Bowaters had expressed reluctance in regard to driving paper to the plaintiffs' premises in Manchester. Those drivers were members of a third union, the Transport and General Workers Union, of which the first three defendants are officers.
In the ordinary course, the lorries would, as I understand, have been loaded on the Friday and the Saturday and would have set forth on Monday, the 28th April. But on the Monday it also became known to the management that the loaders, who were members of the Paperworkers Union had likewise expressed unwillingness or reluctance to load the paper destined for the plaintiffs.
The result of those intimations was that the management came to the conclusion, no doubt in order to preserve the best interests of Bowaters and so that they should not...
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