M. Michaels (Furriers) Ltd (Plaintiff) v Robin Askew (First Defendant) Jill Baker (Second Defendant) Sally Macfarlane (Third Defendant) Kevin Paul Legget (Fourth Defendant) Alan Roger Higgins (Fifth Defendant) Christopher Eric Lane (Sixth Defendant) British Union for the Abolition of Vivisection (A company incorporated under the Companies Act 1929) (Seventh Defendant Eighth Defendant) Jean Pink

On 21st December 1982 in the High Court at Bristol Mr. Justice Stephen Brown granted interlocutory injunctions against eight defendants restraining them until the trial of the action from:

The injunctions against the first, second and third defendants were expressed to be on their own behalf and on behalf of all other members of the Animal Activists Association. The injunctions against the first and eighth defendants were expressed to be on their own behalf and on behalf of all other members of Animal Aid. The first defendant, Robin Askew, and the eighth defendant, Jean Pink, now appeal against the injunctions so far as they were granted against them on behalf of all other members of Animal Aid. No complaint is made of the injunction against the first, second and third defendants on behalf of all other members of the Animal Activists Association. The principal ground of appeal is that the case does not fall within the provisions of Rules of the Supreme Court, O. 15 r.12, and that the proceedings should not have been allowed to be continued against the first and eighth defendants in a representative capacity, and consequently that no order should have been made against them in a representative capacity.

The plaintiffs are furriers carrying on business from retail shops in Clifton, Weston-super-Mare, and Taunton. The affidavits of Mr. Michaels, a director of the plaintiffs, show that since the autumn of 1980 the plaintiffs' premises at Clifton have experienced the activities of persons opposed to the fur trade. According to the judge's summary of the evidence:

"These persons wish to prevent cruelty (or alleged cruelty) to animals. In pursuit of that objective, various premises have been picketed in a way that has dissuaded or prevented customers from entering those premises. Mr. Michaels' affidavit gives particulars of these activities; there have been stink bombs thrown, customers obstructed, staff abused, leaflets stuck on to windows and windows broken; and indeed, in relation to the latter item, some £4,000 worth of damage has been caused. The positiion is now that the insurers of the Plaintiffs will not continue the risk. The Plaintiffs have had to instal metal shutters costing some £3,000 to their windows, which will prevent the ordinary display of goods outside normal shop hours. In point of fact, the Fourth to Sixth defendants have been charged with criminal damage".

The plaintiffs have had difficulty in identifying all those responsible for these damaging actions, although six individual defendants have been identified as persons taking part in picketing the Clifton premises, with Mr. Askew apparently their ringleader. In a letter dated 8th April 1982 to Mr. Michaels, Mr. Askew said that he intended to continue the picketing.

Animal Aid is an unincorporated association of persons campaigning against cruelty to animals, and in particular against vivisection, with their headquarters at Tonbridge in Kent. Mrs. Pink, the eighth defendant, is the national organiser of Animal Aid, which is a nation-wide organisation with "local contacts" in many towns throughout Great Britain. Mr. Askew is the Animal Aid local contact for Bristol, and sent a copy of his letter of 8th July to Mrs. Pink. He is a biology student at Bristol University.

The affidavits of Mr. Michaels allege that persons carrying Animal Aid literature, some wearing clothing bearing the legend "Animal Aid", were picketing the plaintiffs' shop at Clifton, and that one of the purposes of Animal Aid is to campaign against the fur trade. The affidavits also allege a link with Animal Aid through the activities of Mr. Askew at the premises. Although Mrs. Pink denied in her affidavit that Animal Aid were actively campaigning against the fur trade, and also denied that Mr. Askew was acting with the authority of Animal Aid, we admitted further evidence under Rules of the Supreme Court O. 59 r.10 which is capable of corroborating the affidavits of Mr. Michaels in these respects. Some of this evidence was contained in a publication called "Outrage" produced by Animal Aid and distributed to its members. Although much of the evidence is in dispute, it is sufficient to give rise to an arguable case that unidentified members of Animal Aid were involved in picketing the plaintiffs' Clifton premises, and that Animal Aid was counselling and procuring the various unlawful activities being carried on at these and other premises pursuant to a campaign against the fur trade.

In that situation the judge took the view, following American Cyanamid v. Ethicon Ltd., (1975) Appeal Cases 396, that the only question before him was the balance of convenience, and held that the balance of convenience was overwhelmingly in favour of granting interlocutory relief to the plaintiffs. But it was said by Mr. Warner on behalf of Mr. Askew and Mrs. Pink in this court that he was wrong to do that by ordering injunctions which would in effect bind all the members of Animal Aid including those not before the court. The submission was based essentially on a passage in the Annual Practice, 1982, paragraph 15/12/9 at p.242 in the following terms; "An action cannot be maintained against certain members of an unincorporated association on behalf of the others, to enforce a strictly personal liability against members of the association, whether in contract ( Walker v. Sur, (1914) 2 King's Bench 930) or tort ( Mercantile Marine Service Association v. Toms, (1916) 2 King's Bench 243); or for money had and received ( Hardie & Lane Ltd. v. Chiltern, (1928) 1 King's Bench 663 (where the cases are fully discussed). Where separate defences may be open to some members, there can be no common interest within this rule ( London Association v. Greenlands Ltd., (1916) 2 Appeal Cases 16; Barker v. Allanson, (1937) 1 King's Bench 463). Mr. Warner in his able argument submitted that what was being sought to do here was to enforce a personal liability, i.e. a liability in tort by representative action, and that in any event separate defences might be open to some members of Animal Aid which were not available to Mr. Askew or Mrs. Pink, and in those circumstances there was no common interest within the meaning of the rule.

The cases relied on were all decided under the old O. 16 r.9, which was replaced by the present rule in 1962 without material alteration to the body of the rule itself, but with an important additional safeguard, that a representative order may not be enforced against any party except with the leave of the court, and that any person bound by the order may dispute liability to have the order enforced against him on the ground that "by reason of facts and matters particular to his case he is entitled to be exempted from such liability". The case principally relied on was Hardie & Lane Ltd. v. Chiltern (supra) where Mr. Justice Fraser exhaustively reviewed the authorities down to 1928. He decided that the plaintiffs in the circumstances of the case were not entitled under the rule to maintain an action against the defendants in a representative capacity. His decision was upheld in the court of appeal where Lord Justice Sargant said at p.699:

"The action here is not to enforce a right against a fund in which all the members of the Motor Trade Association have a common interest, or to declare the interpretation of regulations binding them in common, a class of cases to which O. 16 r.9 is at any rate primarily applicable. It is to enforce a strict personal liability against the named...