Hadmor Productions Ltd v Hamilton
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WATKINS,LORD JUSTICE O'CONNOR |
| Judgment Date | 09 April 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0409-3 |
| Docket Number | 81/0164 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 April 1981 |
[1981] EWCA Civ J0409-3
The Master of the Rolls
(Lord Denning)
Lord Justice Watkins and
Lord Justice O'Connor
81/0164
1981 H. No. 1308
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (GROUP B)
(MR. JUSTICE DILLON)
Royal Courts of Justice.
MR. ALEXANDER IRVINE, Q.C. and MR. CHRISTOPHER CARR (instructed by Messrs. Nutt & Oliver) appeared on behalf of the Plaintiffs (Appellants).
MR. GEOFFREY BURKE and MR. ROY LEMON (instructed by Messrs. Brian Thompson & Partners) appeared on behalf of the Defendants (Respondents).
This is the first case we have had on the new Employment Act 1980. It raises the question: How far is "blacking" lawful since the passing of the Act? First, the facts.
THE HADMOR PROJECT
Two men in the entertainment world had an idea. They had played in bands and had recorded music. One was David Heath-Hadfield. The other was Michael Collier. His stage name was " Mike Morton". They decided to form a company with the name Hadmor Productions Ltd., derived from their two names. They afterwards formed it. I will call them and their company "Hadmor", for short. Their project was to produce programmes with music: make video-films of the show: and then sell the films to the television companies. They needed finance. They raised it to the tune of £410,000. They got a studio. They bought cameras and equipment. They engaged an orchestra and a group of singers. They prepared a series of thirteen programmes—each lasting half-an-hour featuring popular musicians of the 1950s and 1960s. They called the series "Unforgettable". They negotiated with the television networks so as to sell the films to them.
(1) THE AGREEMENT WITH THE TRADE UNIONS
From the beginning Hadmor realised that it would be vital for them to get the co-operation of the trade unions. Especially of the technicians union called the Association of Cinematograph Television and Allied Technicians (ACTT). This union controlled the services of all the technicians in the television industry. Some of the ACTT members worked as permanent employees of the independent television companies. They would produce the programmes, make the video-films and transmit them on television. Other members of ACTT worked as "freelances" who got employment on short engagement with "facility companies". Those were companies which had their own cameras and broadcasting equipment. Such a company would produce a programme, and make and finish a video film in its own studio. It would then sell it to a television company for the purpose of transmission. It would then be transmitted by the permanent employees of the television company.
Before 1979 ACTT had an approved list of facility companies. Quite a short list. The technicians union ACTT would co-operate in transmitting a film made by a company on the list. If a company was not on the approved list, the union would not co-operate. This system came under considerable criticism. Cases reached the courts about it. In consequence, in the middle of 1979 ACTT said they would abandon the system. They would no longer black a film simply because it had been made by a facility company.
Nevertheless Hadmor realised that their project would never succeed unless they cleared their position with ACTT. So at the very outset in August 1979 David Heath-Hadfield of Hadmor had discussions with Bob Hamilton, the union organiser, at the ACTT office in Soho Square. They came to an agreement—partly oral and partly in writing—which David Heath-Hadfield explained in these words:
"I believed I had been given an assurance that, if I formed a facility company to make and sell television films to the independent television companies, that Company would not be prevented by ACTT from having its films shown on television. It goes without saying that this assurance depended upon our employing ACTT members and consulting the ACTT. But the plaintiff company had every intention of doing this and in fact always did so".
In particular, by letter of the 13th August, 1979 it was confirmed in writing that:
(i) There was no longer an ACTT approved facility company list.
(ii) The equipment used by Hadmor should come up to the required standard.
(iii) That all equipment should be manned by ACTT members who would be paid the correct union rate.
(iv) Hadmor were free to use multi-track recording studios which had an established ACTT shop, and it was agreed that "this will in no way be blocked by the members of ACTT in the various T.V. stations".
I must say that I would regard that agreement as binding in honour on the union. On the faith of it, Hadmor went ahead with their project. They got the cameras and equipment. They got the studio. They got the orchestra and the singers. They got the technicians as "freelance" members of ACTT. They produced the programme. They made video films—all ready for sale to the television companies.
If this agreement had been made between two commercial concerns, I should have held that it was a binding contract by which ACTT would not "black" a film made by Hadmor in accordance with the agreement.
But I fear that it was not a binding contract. It was a "collective agreement" within section 30(1) of the 1974 Act, relating as it did to the rate of pay of the workmen: and in which Hadmor were "employers" within the definition (b) inserted by the Employment Act 1975.
Being a "collective agreement" it was not binding, because it did not contain any provision that it was intended to be a legally enforceable contract, see section 18(b) of the 1974 Act.
(2) THE AGREEMENT WITH THAMES TELEVISION
Having cleared the position with ACTT (as they thought) Hadmor were active also in negotiating with the television companies. Five companies of the independent network showed much interest. Hadmor agreed to make and produce a series of films featuring the music and performers of the 1950s and 1960s.
Thames Television agreed to show the first two at Christmastime 1980: and the others later. Letters passed confirming it. On the 20th October Thames Television wrote to Hadmor:
"' UNFORGETTABLE'
"I am writing to confirm that, subject to contract, we will acquire the 2 x 30 minute shows from this series entitled 'Unforgettable Christmas' and 'Unforgettable New Year' for transmission at 11.30 a.m. on 22nd and 29th December.
"The terms we agreed were £500 per show for a single transmission in the London area…the price agreed represents a U.K. figure of around £2,000 which is the going rate within the ITV Network for acquired material of this type…"
Those two films were duly made and transmitted at Christmastime. But, in addition, some time before Christmas, arrangements had been made by which Thames Television were to take another thirteen films from January onwards. These arrangements were made in November 1980. Thames Television wrote to Hadmor on the 27th November, 1980:
"' UNFORGETTABLE'
"This is to confirm that, subject to Board Approval, we will acquire the London area rights of 13 x 30 minute episodes from this Musical series. Terms agreed are £500 per episode…
"It is our intention to schedule this show on a weekly basis from Tuesday, 8th January at 15.45 hours…
"As soon as I have formal approval for this purchase, I will let you know and you can then let me have a Contract reflecting these terms".
As a result of this letter it is clear that, subject to contract, Thames Television agreed to take the thirteen films over the ensuing thirteen weeks.
There does not appear ever to have been a formal contract binding Thames Television to take all the thirteen. But there was every expectation, as a matter of business, that Thames Television would take all the thirteen films.
Hadmor were based at Croydon. They made the films and began to supply them to Thames Television. They supplied the two Christmas films. They began to supply the series of thirteen. Thames Television transmitted the first on the 6th January, 1981. They scheduled the remaining programmes at weekly intervals from that date onwards. The programmes were in fact shown on the 6th, 13th and 20th January, 1981. Then came the first stoppage.
THE FIRST STOPPAGE
The film due to be shown on the 27th January, 1981 was stopped. It was stopped by reason of the action of some shop stewards of ACTT. It appears that one of them spotted a small item criticising the series in the Observer newspaper which appeared on Sunday, 25th January, 1981. It ran:
"Tuesday 3.45–4.15 'Unforgettable' (Thames): Eminently forgettable really. The series features well-preserved pop stars of the 1950s. The project is worth notice because it's produced by a facility company based in Croydon and bought in by Thames T.V. The beginning of a trend? Jeremy Isaacs, chief executive of Channel Four, which will look to independent producers, foresees a rosy future for this kind of company. But I don't think he'd show it on his Channel".
That item was seen by Michael Cashman, the shop steward at the Teddington premises of Thames Television. He telephoned Peter Bold the shop steward at the Euston premises of Thames Television. He told Peter Glock the shop steward at the Hansworth premises of Thames Television. We do not know what they said to one another....
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