Lee v The Showmen's Guild of Great Britain

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE ROMER,LORD JUSTICE SOMERVELL
Judgment Date04 April 1952
Judgment citation (vLex)[1952] EWCA Civ J0404-2
Date04 April 1952

[1952] EWCA Civ J0404-2

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Somervell

Lord Justice Denning

Lord Justice Romer.

Lee
and
The Showmen's Guild of Great Britain

SIR FRANK SOSKICE, Q.C. and MR B.S. WINGATE-SAUL (instructed by Messrs J.H. Milner & Son) appeared as Counsel on behalf of the Appellants (Defendants).

MR PERCY C. LAMB, Q.C. and MR F.W. BEATON (instructed by Messrs Stafford Clark & Co., agents for Mr G.E. Hutchinson, Leeds) appeared as Counsel on behalf of the Respondent (Plaintiff).

LORD JUSTICE SOMERVELL
1

The Plaintiff is a "showman" and was at all material times a member of the Defendant Guild. The Defendant is a registered Trade Union. It has rules which provide for its central management and for the management of local sections. Rule 14 gives section committees the power inter alia to impose fines. On the 14th August, 1949, the Yorkshire Section Committeeimposed or purported to impose a find of £100 on the Plaintiff. The fine was not paid. The rule contained a provision that if a fine was not paid the member shall be deemed to have ceased to be a member of the Guild. On the 12th October, 1949, it was decided under this provision that Mr Lee had ceased to be a member. In these proceedings the Plaintiff on various grounds challenged the validity of the committee's action and asked for various declarations and an injunction. The learned Judge held that the Plaintiff succeeded to the extent that the fine and consequent expulsion were ultra vires and void. The Order contains the appropriate declarations and injunctions. From this decision the Defendant appeals.

2

The material provision of Rule 14 (a) is as follows: "For the more efficient working of the Guild, the Committee of each Section shall have power to impose fines, penalties, conditions or any other decision upon any of its members who wilfully or otherwise break, evade or violate any of the provisions contained in the Rules or any of the Regulations or By-laws imposed upon them. The fines, penalties, conditions or other decisions shall be in proportion to the nature of the offence committed, but no fine or penalty shall exceed the sum of £250 in addition to such costs as may have been incurred in connection therewith by the Section Committee. Should the fine or penalty not be paid, or the condition or decision imposed observed within one month after having been imposed, the Member concerned shall be deemed to have ceased to be a Member of the Guild. Any Member upon whom a fine, penalty, condition or decision has been imposed by his Section Committee, shall, however, have the right at any time within fourteen days thereafter to give notice of appeal to the Central Council and such Member shall in such case be deemed not to have become liable to such fine, penalty, condition or decision and to remain a Member of the Guild until his appeal shall have been heard and finally determined."

3

The complaint or charge which brought this rule into operation was made by a Mr Shaw, also a showman, and concerned the right to a site No. 2, in the ground on which an annual fair is held in Bradford. Mr Shaw with a Noah's Ark had stood on that site from 1938 to 1943. In 1945 and 1946 Mr Shaw did not go to the fair and the site was occupied by the Plaintiff with his Noah's Ark. The procedure with the Bradford Corporation is apparently that the Corporation allocates the sites among those who apply. In 1947 there was no fair.

4

In 1947 there was in existence a Rule, number 26, providing as follows: "All members of the Guild shall have the option of again taking up their pre-war positions at all fairs at the termination of the present war or before, providing that the Section Committees are satisfied that such claim is justifiable." Mr Shaw applied under this Rule and was on August 21st, 1947 informed that his rights under this Rule had been granted for the Bradford Fair. The Plaintiff heard of this and lodged a complaint. This went to appeal and Mr Shaw's rights were confirmed. The Plaintiff took at any rate two points at that time as he did before the learned Judge. He relied on a bye-law of the Yorkshire Section which provided that no member should apply for a position occupied for two years previously by another member. He also submitted that Rule 26 did not apply to Mr Shaw, who had not been on war service. The learned Judge decided against the Plaintiff on these two points. He held that Rule 26 prevailed over the bye-law and that Mr Shaw was within Rule 26. These were not, I think, challenged before us. In any case I agree with the learned Judge's conclusion. The above matters are important as indicating the nature of the dispute.

5

In 1948 both the Plaintiff and Mr Shaw arrived at Bradford. There were discussions and the Plaintiff without prejudice allowed Mr Shaw to occupy No. 2 site.

6

In 1949 the Plaintiff and Mr Shaw again both arrived at the Fair. No attempt had apparently been made by the Defendant or Mr Shaw to get the Bradford Corporation to agree to implement the Committee's decision by granting No. 2 site to Mr Shaw. The Corporation granted it to the Plaintiff as they had done since 1945, with the exception of 1947 when there was no Fair.

7

The Committee endeavoured in vain to resolve the dispute, but the Plaintiff who had the allocation from the Corporation insisted on occupying No. 2 site and did so.

8

Mr Shaw then made a complaint which was sent to Mr Lee on the 6th July, 1949. The first paragraph deals with a dispute at Skipton with which we are not concerned. Paragraphs (2) and (3) are as follows: "(2) I also herewith wish to make the following two complaints against Mr Frank Lee, one under Rule 15, Clause C, he occupied my Noah's Ark position with his Noah's Ark at Bradford Fair, July 1949, knowing same had been given to me under Rule 26 as he lodged an appeal against the Section's decision and the Section's decision was upheld and I occupied the position in 1948 with my Noah's Ark which had been granted to me. (3) I also wish to make a complaint against Mr F. Lee under Standing Order No. 3 re Bradford Fair July 1949 that he did violate the Appeal Committee's decision by occupying my Noah's position with his Noah's Ark after I had been granted same by the Appeals Committee he occupied the same position after having been asked three times whether he intended occupying same by the Yorkshire Sections Committee and each time he said he was going to occupy same this was before he started to build up."

9

Rule 15 (c) is as follows: "No Member of the Guild shall indulge in unfair competition with regard to the renting, taking or letting of ground or position. Where, however, a ground is usually put up for tender or open competition and is advertised in 'The World's Fair' Newspaper and the lessee of suchground or position allows the previous tenant to occupy such ground or position at the old rate or price this shall not be considered as being unfair competition. Any offer of a payment or price for any ground or piece of ground or position which is an increase on the price paid immediately prior to the date of the offer shall be considered unfair competition, and the prevailing price for any ground or piece of ground or position shall be the price paid immediately prior to the date of the offer. Should circumstances arise, however, over which a Member has no control which necessitate him making an increased offer over the price last paid for the ground or piece of ground or position the Member shall lay the facts before his Section Committee before making any such offer, and the Section Committee shall have power to sanction such an increased offer if they think it is necessary in the circumstances."

10

In this class of case it seems to me plain that the nature of the complaint should be clearly stated and paragraph (2) seems to me to satisfy that test. The Standing Order referred to in paragraph (3) deals with Appeal Sub-Committees and throws no light on the nature of the charge. It is on the face of it a charge that the Plaintiff had violated a decision of the Appeal Committee. That does not, in my opinion, come within Rule 14. Sir Frank Soskice for the Defendant submitted that it should be regarded as a complaint of violating Rule 26. There are two difficulties about this. First, it does not so state. Second, by this time Rule 26 had ceased to exist as a Rule, though it is not suggested that rights acquired under it did not remain in force. We were referred to the definition of Rules in Rule 30. That does not, in my view, assist the argument. It was suggested that the violation of a Committee's decision might be brought under Rule 6. I express no opinion about that because quite plainly there was no charge as to a breach of Rule 6. In my opinion the only charge that falls to be considered is for abreach of Rule 15 (c).

11

Before the learned Judge the case seems to have proceeded on the basis that that was a question for him on the facts which were really not in dispute. Before us Sir Frank Soskice suggested relying on a number of statements in reported cases that the Committee's decision on the matter was final if, whatever the view of this Court, the facts were such that the words of the Rule might be applicable. I am very shortly summarising the argument to which I will return.

12

I will read the passage in which the learned Judge dealt with this point. "Because the Plaintiff in 1948 allowed without prejudice Mr Shaw to have the use of this site and because he properly thought he was entitled to it in 1949 and insisted on having it, I am asked to say that conduct of that kind amounts to unfair competition to bring him within Rule 15, sub-section (c) of these Rules. Even if that were all the Rule said, I think I should have the greatest possible difficulty in finding that the action taken by the Plaintiff on the occasion when the...

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