Mercury Communications Ltd v Scott-Garner
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MAY,LORD JUSTICE DILLON |
| Judgment Date | 09 November 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J1109-1 |
| Docket Number | 83/0418 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 1983 |
[1983] EWCA Civ J1109-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR. JUSTICE MERVYN DAVIES)
Royal Courts of Justice.
The Master of the Rolls (Sir John Donaldson)
Lord Justice May
and
Lord Justice Dillon
83/0418
1983 M. No. 443
MR. ROBERT ALEXANDER, Q.C., MR. ALEXANDER IRVINE, Q.C., MR. PATRICK ELIAS and MR. TIMOTHY CHARLTON (instructed by Messrs. Bird & Bird) appeared on behalf of the Appellants.
MR. CHRISTOPHER CARR, Q.C. and MISS C. BOOTH (instructed by Messrs. Lawford & Co.) appeared on behalf of the Respondents.
This is an appeal from a decision of Mr. Justice Mervyn Davies refusing to order a halt to certain industrial action by the Post Office Engineering Union ("the union"). The appeal is both important and urgent. It is important because this is the first occasion upon which this court has been called upon to consider the changes made in the Trade Union and Labour Relations Act 1974 by the Employment Act 1982. Accordingly our decision may well affect other industrial disputes. It is urgent since the appellants' claim—and it may well be the fact—that as a result of this industrial action they are suffering huge losses which imperil the future of their business.
The role of the court
Disputes of this nature give rise to strong, and indeed passionate, feelings on each side. This is understandable and it makes it all the more important that everyone should know where the courts stand. They are on neither side. They have an independent role, akin to that of a referee. It is for Parliament and not for the courts to make the rules which determine what action is and what is not permissible in the course of an industrial dispute. It is for the courts, and not for Parliament, to interpret those rules and to uphold the freedom of both sides to take whatever action they consider appropriate within those rules, whilst restraining both sides from taking action which, however appropriate it might otherwise be, is outside those rules. In a word, Parliament makes the law and is solely responsible for what the law is. The duty of the courts is neither to make nor to alter nor to pass judgment on the law. Their duty is simply to apply it as they understand it. Mr. Justice Mervyn Davies approached his task upon this basis and this court will do the same.
The background to the dispute
For many years the Post Office enjoyed a monopoly in the operation of telecommunications systems within the United Kingdom. Then, in 1981, Parliament passed the Telecommunications Act. This established British Telecommunications ("B.T.") and transferred to it the telecommunications business of the Post Office. It also empowered the Secretary of State to license rival telecommunications systems. This latter provision met with very strong disapproval from the union and many of its members, the vast majority of whom are employed by B.T. It was probably also unwelcome to the management of B.T. However, neither the union nor B.T. were or are in a position to prevent the Secretary of State issuing such licences and on the 22nd February, 1982 he issued a licence the effect of which was to authorise Mercury to establish a telecommunications system within the United Kingdom on the terms set out in the licence.
The process of licensing competitors of B.T. and thereby eroding its monopoly is known in the industry as "liberalisation". This is to be contrasted with the process of altering the nationalised status of B.T. by converting it into a public limited company and issuing its shares to the public. The latter process is known as "privatisation". The machinery for liberalisation already exists in the shape of the Telecommunications Act 1981. That for privatisation is contained in the Telecommunications Bill at present before Parliament. Whether and when and in what form this Bill will become law must be a matter for speculation by others than the courts, but the existence of the Bill and the union's attitude towards it are part of the background to this appeal.
The effective operation of the Mercury system requires a degree of interconnection with the B.T. system, if B.T. subscribers are to be able to communicate with Mercury subscribers and vice versa. It also requires connection with what is described as the "interface" of the international system, this (United Kingdom) interface being at present part of the B.T. system. Such a right and duty of interconnection is really inherent in the grant of the licence to Mercury, but was formalised in an interconnection agreement made between B.T. and Mercury on the 5th November, 1982. The duration of the agreement is the subject of a somewhat complicated clause, but, unless replaced by another similar agreement, it will last until November 1997.
The union is opposed to liberalisation in general and the grant of a licence to Mercury and the setting up of the Mercury communications system in particular. It is also opposed to privatisation. It has pursued its policy of opposition by argument and by industrial action. The first industrial action took place in March 1982, when the union's National Executive Committee resolved to instruct the membership not to connect Project Mercury to the B.T. system. This was followed by a "Day of Action" in October 1982 and a series of selective strikes in April 1983. Thus far B.T. had not in fact required their employees to connect the two systems and this phase, with which we are not directly concerned, ended in May 1983 when the General Election campaign began and the strike action was called off.
The second phase, with which we are directly concerned, began on the 10th June, 1983 when B.T. ordered certain employees to interconnect the two systems. The union replied with a call to action in the form of a letter to branches and an "Industrial Action Bulletin", both dated the 20th June, 1983. B.T. management replied by themselves effecting some interconnection. The union thereupon instructed its members to "black" Mercury shareholders and B.T. services at Mercury's own premises. This was followed in September by a threat to take industrial action against any customers of Mercury.
The writ in the present proceedings was issued on the 5th October, 1983 and it appears that the industrial action against the shareholders of Mercury and the threat of action against Mercury subscribers has been lifted, at least pending the outcome of the present interlocutory proceedings.
The issues
It is important to remember that what Mr. Justice Mervyn Davies had to decide, and what this court has to decide, is what orders, if any, should be made pending the trial of the action. Furthermore it appears that, contrary to the usual situation, there will be a full trial of the action and matters will not rest with the grant or refusal of an interlocutory order. It follows from the interim nature of the proceedings that it is no part of our function to reach any definitive decision upon the issues between the parties. We have to apply the well known principles enshrined in American Cyanamid v. Ethicon (1975) Appeal Cases 396, modified to accommodate the special provisions of section 17(2) of the Trade Union and Labour Relations Act 1974. That subsection requires the court to "have regard to the likelihood of [the defendant] succeeding at the trial of the action in establishing the matter or matters which would, under any provisions of section 13… above, afford a defence to the action." But I stress that we are concerned with degrees of likelihood, not with whether the defendants will undoubtedly succeed.
Immunity
It is common ground that, for the purposes of these proceedings, we can assume that there is a serious issue to be tried as to whether the defendants have committed the torts of inducing breach of contract and interference with business by unlawful means. It follows that we can proceed to examine the only defence which is relevant at this stage, namely that under section 13 (1) of the 1974 Act, as amended by the Trade Union and Labour Relations Act 1976. If we were of opinion that that defence was prima facie likely to succeed, we should then have to consider a separate argument by Mercury based upon section 45 of the Telegraph Act 1863. This latter point was reserved before Mr. Justice Mervyn Davies and I will return to it hereafter.
Section 13(1) of the 1974 Act, as amended, is in the following terms:
"13. Acts in contemplation or furtherance of trade disputes.
(1) An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on the ground only—
(a) that it induces another person to break a contract or interferes or induces any other person to interfere with its performance; or
(b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with or that he will induce another person to break a contract or to interfere with its performance."
The essence of this defence is that the acts complained of shall have been done in contemplation or furtherance of a trade dispute. Clearly the first stage in considering this defence is to concentrate on whether the defendants are likely to establish that there was a trade dispute as defined.
"Trade Dispute" defined
"Trade dispute" is defined by ...
To continue reading
Request your trial
-
Argos Ltd v Unite The Union
...the employment with the so far unidentified new employer." 29 There was reference in UCLH to the earlier decision of Mercury Communications Ltd v Scott-Garner [1984] ICR 74. In that case Sir John Donaldson set out the development of the relevant statute and recorded that: "The dispute must ......
-
Re Televest Ltd
...Second Defendant Mr. G. Bell, Q.C.for the Plaintiff Mr. A. Hodgson for the Defendants Mercury Communications Ltd v Scott-GarnerWLR [1983] 3 WLR 914 Bonsor v Musicians UnionUNK [1955] 3 All ER 518 Engineers' and Managers' Association v Advisory, Conciliation and Arbitration Service (No.1)UNK......
-
Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., (1995) 177 N.R. 1 (SCC)
...[1978] 1 All E.R. 111 (C.A.), refd to. [para. 122]. Mercury Communications Ltd. v. Scott Garner and Post Office Engineering Union, [1984] 1 All E.R. 179 (C.A.), refd to. [para. 122]. Associated Newspapers Group Ltd. v. Flynn (1970), 10 K.I.R. 17 (Ch. D.), refd to. [para. 122]. Luce v. Bexle......
-
P (A Minor) v National Association of School Masters/Union of Women Teachers
...dispute must "relate wholly or mainly" to terms and conditions of employment and must not merely be "connected" with them: Mercury Communications Ltd v Scott-Garner [1984] Ch 37, 75. But in my opinion the narrower requirement is entirely satisfied. To say that the dispute was related to te......