Dimbleby & Sons Ltd v National Union of Journalists
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Fraser of Tullybelton,Lord Scarman,Lord Bridge of Harwich,Lord Brandon of Oakbrook |
| Judgment Date | 01 March 1984 |
| Judgment citation (vLex) | [1984] UKHL J0301-5 |
| Date | 01 March 1984 |
| Court | House of Lords |
[1984] UKHL J0301-5
Lord Diplock
Lord Fraser of Tullybelton
Lord Scarman
Lord Bridge of Harwich
Lord Brandon of Oakbrook
House of Lords
My Lords,
This is an appeal against a judgment of the Court of Appeal (Sir John Donaldson M.R., Griffiths and Stephen Brown L.JJ.), refusing to set aside an interlocutory injunction against the appellant trade union, the National Union of Journalists ("N.U.J.") that had been granted on 18th November 1983 by Sir Neil Lawson ("the judge") sitting as a deputy High Court judge a few months after his retirement from the High Court Bench.
The action in which the interlocutory injunction was granted was brought by the respondent company ("Dimbleby") who are publishers of several local weekly newspapers circulating in suburban areas to the west of London ("the Dimbleby newspapers"). The cause of action alleged in the writ issued against the N.U.J. was the common law tort of inducing or procuring breaches of or interference with the performance of contracts ("the advertising contracts") between Dimbleby and a number of advertisers in the Dimbleby Newspapers, and of a contract between Dimbleby and a printing company in Nottingham, T.B.F. (Printers) Ltd. ("T.B.F."), for the printing of the Dimbleby Newspapers by T.B.F. The method of inducement or procurement alleged to have been adopted by the N.U.J. was instructing, under threat of disciplinary sanctions, thirteen journalists employed by Dimbleby who were members of the N.U.J. ("the N.U.J. journalists") to break their contracts of employment with Dimbleby by refusing to supply copy and material for publication in the Dimbleby newspapers. The relief claimed in the writ was damages for the common law torts alleged and injunctions to restrain the N.U.J. from continuing to commit them.
By notice of motion of 25th October 1983, Dimbleby applied for interlocutory injunctions, (1) to restrain the N.U.J. from continuing to instruct or otherwise encourage the N.U.J. journalists to refuse to assist or participate in the production of copy or other material for publication in the Dimbleby newspapers; and (2) to withdraw forthwith any such instructions or encouragement already given.
In the exercise of his discretion, the judge granted interlocutory injunctions to this effect on 18th November 1983; and on an appeal from this interlocutory order the exercise of his discretion in this manner was upheld by the Court of Appeal. It was because this was the first action to reach this House in which, as a result of the withdrawal of immunity of trade unions from actions in tort that was effected by sections 15 to 17 of the Employment Act 1982 ("the Act of 1982"), damages and injunctions interlocutory and final were sought against a trade union itself and not merely personally against one or more of its individual office-holders, that an Appeal Committee of this House gave the N.U.J. leave to appeal here despite the fact that this is only an interlocutory appeal.
My Lords, this case is not one in which there is before this House, or was before the Court of Appeal, any evidence that had not been before the judge when he granted the injunctions; so, as was pointed out in Hadmor Productions Ltd. v. Hamilton [1983] A.C. 191, 220, the function of your Lordships in this appeal, initially at any rate, is one of review only. You may set aside the judge's exercise of his discretion on the ground that it was based upon a misunderstanding of the law or of the evidence before him, or because, even though no error of law or fact can be identified, the judge's decision to grant the injunctions was so aberrant that it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially could have reached it.
The general principles to be applied by a judge in deciding whether or not to grant an interlocutory injunction were laid down by this House in American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396. It is enough to quote a few sentences from the unanimous opinion of the House:
"The use of such expressions as 'a probability,' 'a prima facie case,' or 'a strong prima facie case' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.
It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration. These are matters to be dealt with at the trial."
To the first of the sentences from American Cyanamid v. Ethicon that I have cited, a statutory modification was made by subsection (2) of section 17 of the Trade Union and Labour Relations Act 1974 ("The Act of 1974"), which was added to that section by paragraph 6 of Part III of Schedule 16 to the Employment Protection Act 1975. In effect this subsection provides that in exercising its discretionary power to grant an interlocutory injunction in an action to which it would be a defence that the acts complained of were done in contemplation or furtherance of a trade dispute, the court shall take into consideration the likelihood of such defence succeeding at the trial.
Section 17(2) of the Act of 1974 remains in force although the definition of what constitutes a trade dispute has been much narrowed by section 18 of the Employment Act 1982 ("the Act of 1982"). It applies to interlocutory injunctions against trade unions now that their immunity from a suit in tort has been removed by sections 15 to 17 of the Act of 1982; and it applies in cases in which the plaintiff claims that the acts of the trade union that are complained of constitute "secondary action" that is rendered actionable by section 17 of the Employment Act 1980 ("the Act of 1980") notwithstanding that such secondary action is taken in contemplation or furtherance of a trade dispute.
These changes in the law which have been made by the Acts of 1980 and 1982, took place after the decision of this House in N.W.L. Ltd. v. Woods [1979] 1 W.L.R. 1294, where there is a passage which refers to what were the practical realities in an action brought by a plaintiff against an individual office-holder of a trade union who had been acting on his trade union's behalf. These practical realities, I said there at p.1305, were:
"(1) that the real dispute is not between the employer and the nominal defendant but between the employer and the trade union that is threatening industrial action; (2) that the threat of blacking or other industrial action is being used as a bargaining counter in negotiations either existing or anticipated to obtain agreement by the employer to do whatever it is the union requires of him; (3) that it is the nature of industrial action that it can be promoted effectively only so long as it is possible to strike while the iron is still hot; once postponed it is unlikely that it can be revived; (4) that, in consequence of these three characteristics, the grant or refusal of an interlocutory injunction generally disposes finally of the action; in practice actions of this type seldom if ever come to actual trial."
As a result of the passing of the Acts of 1980 and 1982, however, what in 1979 were practical realities, no longer apply in 1983 to a suit against a trade union claiming damages for an injunction to restrain it from secondary action which is actionable. If the suit succeeds, the trade union will be liable not only in damages up to a substantial maximum (£125,000 in the case of the N.U.J.), but also for costs without any maximum limit, and to unlimited fines or sequestration of its assets if, by breaching an injunction, it should commit contempt of court.
In the paragraph of my speech in N.W.L. Ltd. v. Woods which precedes the reference to the practical realities, I had pointed out that if the plaintiff continued the action to a successful conclusion, it was unlikely that damages on the scale that the plaintiff would have sustained would be likely to prove recoverable from the individual defendant or defendants who alone, at that time, could be made defendants to the suit. That was what lay at the root of the "reality" that I numbered (4). At so early a stage in the action as that at which an injunction is generally sought (as it was in the instant case), there is no reason for a judge to exercise his discretion on the assumption that the case will never proceed to trial and final judgment where the defendant is the trade union itself and not a mere individual office-holder in it.
The statutory requirement of section 17(2) of the Act of 1974, that in exercising his discretion whether or not to grant an interlocutory injunction, the judge shall have regard to the likelihood of the defendants succeeding in establishing a defence under sections 13, 14( 2) or 15 of the Act of 1974, on the ground that the acts complained of were done in contemplation of a trade dispute, applies as I have already mentioned, also...
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