Express Newspapers Ltd v McShane
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BRANDON,LORD JUSTICE LAWTON |
| Judgment Date | 21 December 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J1221-3 |
| Docket Number | 1978 E. No. 2092 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 1978 |
[1978] EWCA Civ J1221-3
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice Queen's Bench Division
(Mr. Justice Lawson)
The Master of the Rolls
(Lord Denning)
Lord Justice Lawton and
Lord Justice Brandon
MR. D.R.M. HENRY. Q.C. and MR. T.R.A. MORISON (instructed by Messrs, Lovell White & King, Solicitors, London; appeared on behalf of the Plaintiffs (Respondents).
MR. J. MELVILLE WILLIAMS, Q.C. and MR. J. HENDY (instructed by Messrs. Vizards, Solicitors, London) appeared on behalf of the Defendants (Appellants).
There are about 1,000 local newspapers A published in this country. They are served by about 9,000 journalists of whom 8,500 belong to a trade union called the National Union of Journalists. Unfortunately there is a difference about their pay. The journalists feel that they are underpaid and that they ought to be paid more. The proprietors feel they cannot pay more because of the Governments policy of the 5 per cent limit and their own financial situation. That difference has not been resolved. Feeling very upset about it, some journalists took disruptive action. The Bolton Evening News dismissed 105 N.U.J. members. In consequence the National Union of Journalists (through their national executive council) decided to take industrial action. The decision was taken by a majority vote of 14 to 7. It is the first time, we are told, in the 71 years of its existence that this union has called a strike. On the 4th December of this year (2½ weeks ago) the union called a strike withdrawing all the services of their member journalists on the local newspapers: with the result that those journalists. would not supply any news or copy for the local papers. That may be called the "primary" action taken by the union. It brought pressure to bear directly on the employers.
But this strike did not put the local papers out of action altogether. Those papers do not depend solely on their journalists to feed them with news. They also get news copy through the important organisation called the Press Association. The Press Association have some 250 journalists on their staff. They collect news of all kinds (major and minor happenings, sporting items, Parliamentary items, Items from these courts and the like). They send out these news items in a continuous stream from theiroffices in Fleet Street by teleprinter to all the media in the country. It is sent to the national newspapers, the local newspapers, the broadcasters, and on tape to clubs, offices and institutions throughout the country.
In order to make the strike more effective, the National Union of Journalists wished to stop the news going out from the Frees Association to the local newspapers. So they called upon the journalists on the Press Association (many of whom are members of the union) to come out on strike as well. If they stopped work, it would mean that no news would be provided by the Press Association to anyone. It would affect not only the local newspapers with whom there was a dispute - but also the national newspapers, the media, clubs, and so forth - with whom there was no dispute. None of them would get their news from the Press Association. That may be called a "secondary" action taken by the union. It brought pressure to bear on the Press Association who were not involved in the dispute at all.
In order to induce the journalists on the Press Association to strike, the union promised to pay then £50 a week (much more than the hardship allowance paid to the provincial journalists). But even so many of the journalists on the Press Association were unwilling to strike. They did not wish to obey the orders of the national executive council. So they had a meeting to determine it. Out of the 250 journalists on the Press Association 162 attended. 86 decided to ignore the call to strike. They stayed at work. 76 case out on strike. The 86 were joined by others who were not members of the union. In rough figures, half the journalists on the Press Association remained at work and half came out on strike. The half who were still at work continued to send out news over the teleprinter to all the newspapers upand down the country and to all the media. So a good deal of news still got through to the local newspapers and enabled them to carry on - not fully - but partially.
At the same time the union took a further measure which may be described as a further "secondary" action. They had members working for the Bally Express and other national newspapers and is also for the media. The union ordered these members to "black" the frees Association copy. That meant that they calls upon their members working for the Daily Express and other newspapers to refuse to use the copy which came through on the teleprinter from the Press Association. They told their members at the Daily Express not to handle it or make any use of it whatsoever. They allowed their members to get news from other sources. For instance, their members could telephone freelance journalists or other sources of information so as to get news for the Daily Express. But they were not to use any of the copy supplied by the Press Association. Their members were st ill to get their full pay from their employers, but were not to do their work properly.
On the 6th December, 1978 the managing director of the Daily Express wrote to the Father of the Chapel warning him that "if your members refuse a proper instruction to handle Frees Association copy, they will undoubtedly have broken their contracts of employment with this Company" To which he received the reply: "It would not be desirable for chapels, at the behest of management or anyone else, to ignore an instruction given constitutionally by the Union's national executive". That reply shows that the member journalists felt that they had to obey the orders of the unions national executive, however much they might individually disagree with them.
Beyond all doubt, the leaders of the union, by calling upon the journalists at the Daily Express to "black" the Press Association copy, were calling upon them to break their contracts of employment at common law: and the courts will interfere to restrain it unless the leaders of the union have an immunity given to them by statute. Section 13(1) of the Trade Union and labour Relations Act, as amended in 1976, provides as follows:
"An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on the ground only - (a) that it induces another person to break a contract or interferes or induces any other person to interfere with its performance".
The important words are "an act done by a person in contemplation or furtherance of a trade dispute". Especially the words "in furtherance of".
At the outset I would say that it is clear that there was a "trade dispute" between the local newspapers and the journalists employed by them. It was a dispute about their pay. But there was no other trade dispute at all. There was no dispute between the Press Association and the union. There was no dispute between the Daily Express and the union. The only dispute was with the local provincial newspapers.
The "primary" action vas certainly taken by the union "in furtherance of" that dispute. They called out on strike their members who were employed by the local newspapers. That would bring direct pressure on the local newspapers. The first "secondary" action may also be said to be "in furtherance of" the dispute. The union called out on strike their members at the frees Association. That would also bring pressure to bear on the local newspapers because, by stopping copy going outfrom the Press Association, it would hamper the production of local newspapers, even though it might hamper the national newspapers also.
But what about the further "secondary" action? The act of calling upon the member Journalists employed by the Daily Express to "black" the copy supplied by the Press Association? That would not affect the local newspapers in the slightest degree. It would not bring any pressure to bear on them. It would not affect the Press Association either. The only persons whom it would affect would be the Dally Express and put them to great trouble, difficulty and expense. But not the local newspapers. Can such an act be said to be "in furtherance of" the dispute?
Before dealing with this point, I would draw attention to the very great power which the leaders of the trade unions have over their members, especially when there are "closed shops". Rule 18 of the rules of the National Union of Journalists says:
"If the National Executive Council is of the opinion that a member has been guilty of conduct which is detrimental to the interests of the Union or of the profession of journalism, it may after due inquiry in accordance with the procedure laid down in this rule impose on that member a fine not exceeding £100, suspend that member … for a period not exceeding 12 months, express its censure in such terms as it deems appropriate (or impose more than one of these penalties) or expel him/her from the Union".
The wide scope of that rule is shown by sub-rule (1) which says:
"Conduct detrimental to the interests of the Union may be deemed to include … failure, without reasonable cause, to comply with an instruction of the NEC".
So if a Journalist on the Daily Express fails to comply with the order given to him, there is the power in the national executive council of the union to expel him. If expelled he will lose his job, as it is a "closed shop". At once the question arises, Can he come back and ask to join the union again? The answer is "No", unless the national executive council choose to let him....
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