Express Newspapers Ltd v McShane
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Wilberforce,Lord Salmon,Lord Keith of Kinkel |
| Judgment Date | 13 December 1979 |
| Judgment citation (vLex) | [1979] UKHL J1213-2 |
| Date | 13 December 1979 |
| Court | House of Lords |
[1979] UKHL J1213-2
Lord Wilberforce
Lord Diplock
Lord Salmon
Lord Keith of Kinkel
Lord Scarman
House of Lords
Upon Report from the Appellate Committee to whom was referred the Cause Express Newspapers Limited against McShane and another, That the Committee had heard Counsel as well as on Monday the 5th as on Tuesday the 6th days of November last upon the Petition and Appeal of Denis McShane and Kenneth Ashton both of Acorn House, 314/320 Grays Inn Road, W.C.1 in the County of London praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 21st day of December 1978 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Express Newspapers Limited lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 21st day of December 1978 complained of in the said Appeal be, and the same is hereby, Reversed and that the Injunctions granted by Mr. Justice Lawson on the 14th day of December 1978 be, and the same are hereby, Discharged: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellants the Costs incurred by them in the Courts below and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments if not agreed between the parties: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.
My Lords,
This appeal is concerned with the immunity from suit granted to trade unions and others in respect of acts done "in furtherance of a trade dispute". These words have appeared in legislation since 1875 and are now contained in section 13(1) of the Trade Union and Labour Relations Act 1974 as amended. How far does this immunity extend? Is it sufficient for those claiming the immunity to have a genuine intention to further an existing trade dispute? Or is it necessary to show, in addition, that the act done is in fact reasonably capable of furthering the trade dispute, or gives practical support to the trade dispute? These are broadly the questions raised. They have not, so far, arisen for decision in this form in this House.
The trade dispute, a normal one between employers and employees, arose between the National Union of Journalists ("N.U.J.") a trade union with about 30,000 members, and a body called the Newspaper Society ("N.S.") which represents the proprietors of provincial newspapers. This started towards the end of 1978. On December 1st of that year the National Executive Council ("N.E.C.") of the N.U.J. voted in favour of a recommendation for an all-out provincial newspapers' strike from 12 noon on December 4th.
Provincial newspapers, as do national newspapers, derive much of their supply of news from the Press Association ("P.A."). This is a company owned by provincial daily and Sunday newspapers. It provides a news agency service to its shareholders and also to subscribers who include national newspapers, some radio and T.V. networks, and overseas agencies. P.A. employs about 250 journalists, not all members of the N.U.J. The N.E.C. at the same meeting of December 1st decided to call a strike of N.U.J. members employed by the P.A. so as to stop it from supplying copy to provincial newspapers. This strike was also to take effect from noon on December 4th, 1978. Its purpose was, by pressure on the P.A., with which, as such, the N.U.J. had no dispute, to reduce or cut off supplies of news to the provincial newspapers. This type of action—against a supplier of a party to a trade dispute—is sometimes called "secondary" action.
Further action was taken by the N.E.C. On December 3rd, 1978 the N.E.C. by letter instructed N.U.J. members employed on national newspapers, including the Daily Express, to "black", i.e. not to handle, all copy emanating from the P.A. after noon on December 4th. The N.U.J. had at this time no dispute with the national newspapers. There is no doubt that this instruction constituted what, apart from any immunity conferred by statute, would be an actionable wrong viz. wrongfully procuring the journalists employed by national newspapers to break their contracts of employment.
After this instruction had been sent out, namely on December 4th, there was a meeting of the N.U.J. Chapel at the P.A. At that meeting the members voted by 86–76 not to obey the strike instruction. After this vote the chairman told the meeting that they were instructed to strike and that any copy produced by them would be regarded as "black". The 76 members went on strike and were "soon afterwards" joined by 26 others and later by a further 6 journalists. The result of this was to cut down the P.A. service to its subscribers, including the national newspapers by about half.
There was a good deal of evidence given on affidavit as to the instructions given to the N.U.J. members employed by national newspapers. Mr. MacShane, the President of the N.U.J., said that the sole reason for the instructions was to make the strike (i.e. with the provincial newspapers) more effective. He believed that the N.U.J. members employed by the P.A. would be discouraged from joining or continuing on strike if they knew that the copy sent out by those who were "strike breakers" was being handled and used by other N.U.J. members. The factor of morale is very important in a strike. Similar evidence was given by Mr. Ashton, the General Secretary of the N.U.J. Mr. Dennis, acting Father of the N.U.J. Chapel at the P.A., said that it would be a serious blow to the morale of those P.A. members who were on strike if fellow N.U.J. members in national newspapers and broadcasting were to handle P.A. copy. It might so discourage those who are on strike that some would go back to work and it certainly would not help him to persuade those at work to join the strike. This evidence was given on December 13th, after the split vote at the P.A. had occurred, but it is likely that the possibility of a split was foreseen when the strike action at P.A. was called.
On December 11th, 1978 Express Newspapers Ltd. issued a writ against the appellants, who were President and General Secretary of the N.U.J. sued as representing the members of the N.E.C., claiming an injunction. On the same day, after a notification pursuant to section 17(1) of the Act of 1974 as amended, they applied to a judge for an interlocutory injunction. This was heard on December 14th when Lawson J. granted injunctions against the appellants ordering them to withdraw the instructions given to "black" P.A. copy and restraining them from giving any such instructions. The judge held, pursuant to section 17(2), that the appellants' claim that they had a defence under section 13 was unlikely to succeed. On appeal, the judge's order was upheld by the Court of Appeal.
Although the injunctions have ceased to be operative, since the provincial journalists' claims have been settled, an Appeal Committee of this House gave leave to appeal on the ground that an important point of principle arose—namely as to the scope of section 13, and in particular as to the meaning of "acts done in furtherance of a trade dispute"—which might well affect other cases. In fact the decision given by the Court of Appeal has already been followed at first instance.
My Lords, the issue which has to be resolved in the present case arises out of the very great extension of industrial action which has occurred in recent years. When trade disputes were confined to disputes between employees in an undertaking and their employers or between employees in an undertaking, it was not difficult to decide whether industrial action was in contemplation or furtherance of a trade dispute. The argument normally centred on the issue whether the dispute was a trade dispute. This was the case in Conway v. Wade [1909] A.C. 506, a decision to which I shall return. The definition of "trade dispute" has been extended: it was further enlarged by the Act of 1974 and by the Amendment Act of 1976. There is now a very wide definition which includes a dispute between employers and workers, or between workers and workers which "is connected with" one or more of a list of seven matters (section 29(1) as amended). Correspondingly, industrial action has been greatly widened. It may extend to customers or suppliers of a party to the dispute, on the basis that through them pressure upon the party is intensified. In still other cases, of which Associated Newspapers Group Ltd. v. Wade [1979] 1 W.L.R. 697 is one and this is another, it may extend to customers or suppliers of such suppliers or customers. Such second stage customers or suppliers may, and probably will, have no dispute with those calling for the industrial action, and no interest in the first stage dispute though some of their workers may have sympathy with it. Moreover they may, as here, have no means of influencing that dispute or of making concessions which might bring that dispute to an end. The question therefore whether action against such innocent and powerless third parties or parties even more remote from the original trade dispute is in "furtherance" of that...
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