Lawmakers and Craftsmen
| Published date | 01 September 1983 |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02538.x |
| Date | 01 September 1983 |
NOTES
OF
CASES
LAWMAKERS
AND
CRAFTSMEN
IN
Merktrr
Island
Shipping Corpn.
v.
L’aughton
the House of Lords,
in an opinion delrvered by Lord Diplock, dealt with two issues: the
limits of the torts
of
interference with contract and interference with
business; and the liimits of the ban on
“
secondary action
”
imposed by
the Employment Act
1980,
s.
17. Fears that the recent style and
practice adopted by the Law Lords do not promote craftsmanship in
their law making are enhanced by this opinion.2 The industrial effect of
the judgment is
to
confirm the virtual impossibility of legality for
boycotts aimed by national and international trade unions against
“
flag of convenience
”
shipowners.
(a)
Secondary
action
The issue in
Merkur
was: given that there was
“
secondary action
”
(industrial action by port workers in breach of employment contracts
whose employer was not primary,
i.e.
not a party to a relevant trade
dispute) which prlovided the plaintiff shipowners with a cause
of
action
by interference with their commercial contract (the charterparty), could
the defendants
(K.T.F.
officials who had induced the port workers’
action) avail themselves of the gateway of section 17
(3)
of the
1980
Act? This legitimates the secondary action (a) if its
purpose
is directly
to disrupt (during the dispute) the supply of
goods
and services under
a contract subsisting between the primary employer and the secondary
employer, and (b)
if
it is
likely
to achieve that purpose. The Court
of
Appeal had held that this contract was made between
other
parties (the
port employers had no contract with the shipowners)
so
the gateway of
section 17
(3)
was c10sed.~
It has been argued earlier that this interpretation was incorrect.
Section 17
(6)
states that “references to the supply” in section
17
(3)
(a)
(but not
s.
17
(3)
(b))
“
are references to the supply
.
.
.
in
pursuance
of
a contract between them [the primary and secondary
employers].” Therefore,
if
the
purpose
is to interrupt such an apparent
contract, and on the facts it would be
likely
to disrupt such a contract,
the defendant is not deprived
of
the gateway to legality merely because
no such contract turns out to exist
in
fact. Any other result would
result in a lottery, in which the defendant who can rarely know the
parties to the commercial contracts would not even know the odds on
his liabilitie~.~ The section as enacted permits the defendant to succeed
(19831 2 W.L.R 778
(H.L.).
See
on
Yorkc
Adorors
v.
Edwards
(19821
1
All
E.R.
1024,
per
Lord Diplock at pp.
1025-1026, Wedderbum
(1983)
46
M.L.R.
224,227.
3
Marina Shipping Ltd.
v.
Laughtori
(19821
Q.B.
1127 (C.A.);
Merkitr
Island Shipping
Corpn.
v.
Laughton
[I9831
2
W.L
R.
45
(C.A.).
See
for
the
full
argument on this point, Wedderburn
‘‘
Secondary Action and Primary
Values
”
(1982) 45
1M.L.R.
317
and
‘‘
Secondary Action and Gateways to Legality-A
632
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