Hadmor Productions Ltd and Others v Hamilton and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Lord Fraser of Tullybelton,Lord Scarman,Lord Bridge of Harwich,Lord Brandon of Oakbrook |
| Judgment Date | 01 January 1982 |
| Judgment citation (vLex) | [1982] UKHL J0101-1 |
| Court | House of Lords |
| Date | 01 January 1982 |
[1982] UKHL J0101-1
Lord Diplock
Lord Fraser of Tullybelton
Lord Scarman
Lord Bridge of Harwich
Lord Brandon of Oakbrook
House of Lords
My Lords,
This is an interlocutory appeal in an action arising out of the activities about a year ago of three officials of a trade union, The Association of Cinematograph Television and Allied Technicians (ACTT), in an endeavour, which up to now has been successful, to ensure that there should be no transmission by Thames Television ("Thames") of certain programmes produced by the respondent company, Hadmor Productions Ltd. ("Hadmor"), which Hadmor had granted to Thames a licence to transmit. The means adopted by the three officials, the appellants, Hamilton, O'Connor and Bould, in which Hamilton and Bould played the leading parts and O'Connor has not been shown to have done anything of significance, were the familiar ones of threatening to "black" the programmes, i.e. to instruct members of ACTT employed by Thames to prevent their transmission by Thames. It would appear that the blacking was intended to extend to transmission of the programmes by other independent television companies, to some of which Hadmor had also granted licences; but the evidence in the interlocutory proceedings that are now before your Lordships has been limited to the blacking of transmission by Thames alone.
Together with the writ, which claimed various injunctions against the three named union officials, Hadmor issued on 17 February 1981 a notice of motion for interlocutory injunctions in the same terms as those claimed in the writ. It is sufficient for present purposes to quote the first of them—
"1. The Defendants and each of them be restrained, by themselves their servants or agents or otherwise, from intimidating, coercing or threatening any independent television company in England or Wales (whether by threatening to break their contracts of employment or by any other illegal means) so as to cause injury, loss or damage to the Plaintiffs."
The motion was heard by Dillon J. on 20 and 23 February 1981. He refused to grant any of the injunctions sought by Hadmor and in a careful and lucid judgment explained his reasons for reaching that decision upon the evidence that was before him.
An expedited appeal from this refusal was heard by the Court of Appeal (Lord Denning M.R., Watkins and O'Connor L.JJ.) on 16 to 19 March 1981, by which time further evidence had been filed by each side; and a reserved judgment allowing the appeal and granting all the interlocutory injunctions sought by Hadmor was delivered on 9 April 1981. It is from that order of the Court of Appeal that the instant appeal to your Lordships' House is brought.
Before adverting to the evidence that was before the learned judge and the additional evidence that was before the Court of Appeal, it is I think appropriate to remind your Lordships of the limited function of an appellate court in an appeal of this kind. An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard. Upon an appeal from the judge's grant or refusal of an interlocutory injunction the function of an appellate court, whether it be the Court of Appeal or your Lordships' House, is not to exercise an independent discretion of its own. It must defer to the judge's exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only. It 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 upon an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn upon the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal: or upon the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it. Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases where even though no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is 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. It is only if and after the appellate court has reached the conclusion that the judge's exercise of his discretion must be set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own.
In the instant case no deference was paid, no reference was even made, to the reasons given by Dillon J. for exercising his discretion in the way that he had done. The explanation given by the Master of the Rolls of why the Court of Appeal was entitled to ignore that judge's reasons for his decision was that in the interval between the hearing of the motion and the hearing of the appeal both sides had adduced further evidence "so virtually we have to consider it all afresh."
My Lords, with great respect, I cannot agree that the production of additional evidence before the Court of Appeal, all of which related to events that had taken place earlier than the hearing before Dillon J., is of itself sufficient to entitle the Court of Appeal to ignore the judae's exercise of his discretion and to exercise an original discretion of its own. The right approach by an appellate court is to examine the fresh evidence in order to see to what extent, if any, the facts disclosed by it invalidate the reasons given by the judge for his decision. Only if they do, is the appellate court entitled to treat the fresh evidence as constituting in itself a ground for exercising an original discretion of its own to grant or withhold the interlocutory relief. In my view if this approach had been adopted by the Court of Appeal in the instant case the additional evidence, so far from invalidating, would have been seen to provide additional support for Dillon J.'s reasons for refusing the interlocutory injunctions.
Since the action by Hadmor against Hamilton and Bould includes a claim for damages which may proceed to trial, I shall limit my account of the facts disclosed upon the affidavits that were before Dillon J. and the Court of Appeal to the barest minimum needed to identify the questions that the judge had to consider in making up his mind whether to grant the interlocutory injunctions for which Hadmor was applying on 23 February 1981. I shall endeavour too to state them as untendentiously as possible.
Hadmor is what is known in the world of television as a facility company. This means that its business consists of producing films or video tapes for inclusion in the regular programmes transmitted by operators of television stations. Its income is derived from fees paid by television companies for licences to transmit the films or video tapes that it produces. Hadmor had been formed comparatively recently by the two personal plaintiffs, Heath-Hadfield and Collier, after obtaining in August 1979 from Hamilton what they believed to be assurances that ACTT would not prevent films and video tapes produced by Hadmor from being shown on independent television, provided that Hadmor itself maintained an ACTT closed shop—a condition with which Hadmor had complied.
Towards the end of 1980 Hadmor embarked upon the production of a series of programmes lasting approximately half-an-hour each featuring popular musicians of the 1950s and 1960s and entitled "Unforgettable". Two of these programmes were the subject of a licence to Thames and were transmitted by that company in December, 1980, without objection by ACTT. Negotiations for a similar licence for the transmission by Thames of a further thirteen programmes in the "Unforgettable" series had taken place at the end of November 1980. The evidence leaves it unclear whether a firm contract to license all thirteen programmes had been reached by the time the matter came before Dillon J., but three programmes had been transmitted in January 1981 without attracting the notice of officials of ACTT until their attention was drawn to it by an unflattering reference to the "Unforgettable" series in the Observer newspaper on 25 January.
Thames operates its own production studios at Hanworth and Teddington. Transmission takes place from Euston where Bould is the ACTT shop steward. At the beginning of 1981 there was shortage of work at Hanworth and Teddington studios. At Hanworth thirteen ACTT members of staff lost by natural wastage had not been replaced and of the sixty remaining members the majority had, for the time being, nothing to do. The uncontradicted evidence is that ACTT members feared that there might be redundancies if work that could be done in Thames's own studios were farmed out to facility companies notwithstanding that those studios were underused.
On 26 January 1981 Bould had an interview with Mr. O'Keefe, the industrial relations director of Thames. Both men have sworn affidavits conspicuous for their reticence as to what was said on either side at that interview. In the result, Mr. O'Keefe agreed to investigate the circumstances in which the transmission of programmes in the "Unforgettable" series had come about, and in the meantime the transmission scheduled for 27 January was withdrawn. Mr. O'Keefe's investigation was not complete by 3 February 1981, but he had formed the preliminary view that...
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