Morgan v Fry
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE,LORD JUSTICE RUSSELL,LORD JUSTICE DAVIES |
| Judgment Date | 27 June 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0627-2 |
| Date | 27 June 1968 |
| Court | Court of Appeal (Civil Division) |
[1968] EWCA Civ J0627-2
In The Supreme Court of Judicature
Court of Appeal
Appeal from Judgment of Mr. Justice Widgery on 17 March, 1967.
The Master of the Rolls (Lord Denning)
Lord Justice Davies and
Lord Justice Russell
Mr. W.L. MARS-JONES, Q.C., and Mr. J. SOFER (instructed by Messrs. Lawford & Co.) appeared on behalf of the Plaintiff.
Mr. J.D. STOCKER, Q.C., and Mr. Stuart SMITH (instructed by Messrs. Pattinson & Brewer) appeared on behalf of the Defendants.
1. THE FACTS
In 1962 in the Ports of London and Tilbury there were only 650 lockmen, but they held a key position. Without them the Ports could be brought to a standstill. They were members of the Transport Union, as were all the other workers in the ports. In 1962 the lockmen claimed that they should have a 5d.-an-hour shift allowance. The officials of the Union entered into negotiations with the employers (the Port of London Authority) to try and secure this increase. After much discussion, the employers offered 3d. an-hour. The Union Officials thought it was the "best obtainable and recommended the lockmen to accept it. At a mass meeting of the Poplarr ranch the men accepted this recommendation by a majority of 84 votes to 43. But there was a dissentient minority who were very dissatisfied. The dissentients were led by a man called Hammond, who was said to be a troublemaker. They thought that the Union had not pressed this claim of the lockmen strongly enough. They felt that the Union should have stood out for 5d.-an-hour and, if it were not obtained, they should call a strike of all the men employed in the Port, and thus bring the Port to a standstill. They felt this so strongly that on 1st November, 1962, about thirty of them decided to leave the Transport Union and to form a breakaway Union called the Union of Port Workers. Four of them worked at a lock in the London Port, called the Blackwall Entrance. These four included Hammond, the supposed troublemaker, and also Mr. Morgan.
The formation of tills breakaway Union caused great concern to the officials of the Transport Union and to many of its members, in particular to the regional organiser, Mr. Fry. The Judge said that he was an honest and sincere man" a lifetime of experience and training in the Trade Union movement has taught him that small breakaway unions must be stamped out immediately because they are injurious to the preservation of peace in the docks". Mr. Fry wanted the breakaway men to come back into the Transport Union. But if they persisted in their breakaway, hewanted their employers to dismiss them: and to achieve this result he was ready, if need be, to call a strike. Mr. Harvell was the district organiser of the Union. He too was a full time paid official. He supported what Mr. Fry did. The actions of the paid officials were supported by several members in the Poplar Branch. In particular by the Chairman, Mr. Bilson, and the Secretary, Mr. Mohegan. These last two were not paid officials. They wore workmen employed by the Port of London Authority and were unpaid officers of the Branch.
In January and February, 1963, the Union Officials had meetings with the officers of the Port of London Authority. They told the employers that the loyal members of the Transport Union were pressing for action to be taken against the breakaway Union. Mr. Fry said that he had it in view to instruct his members not to work with the four known members of the Union of Port workers at the Blackwall Entrance., The Union Officials made it pretty clear that they wanted the four men dismissed.
On 14th March, 1963, Mr. Fry gave a notice to the Port of London Authority. This whole case depends on it. It was a "strike notice" giving more than two weeks notice in these words:- "I have to advise you that on and from Monday, 1st April, 1963,-the members of this organisation (the Transport Union) employed as lockmen at Blackwall and South-West India Pock will be instructed not to work with the Union of Port workers and other non-trade unionists".
It was clearly implied in that notice that if the Authority wanted the men of the Transport Union to work at the lock, they would have to dismiss the others.
On 19th March, 1963, the Staff Relations Officer interviewed three of the men (but Mr. Morgan was not there as he was sick). The record says:- "Each of the three lockmen was told at the interview that he would be given one week to come to a decision. If he decided against joining or rejoining the Transport Union, he would be given written notice terminating his services with the Authority".
On 28th March, 1963, Nr. Morgan was seen. The record says: "During the afternoon of 25th March, the assistant to the Staff Relations Officer interviewed Lockman J.P. Morgan (Age 27 years: Service 3 years) and, after explaining the Authoritys position, similarly warned him that his services would be terminated unless he agreed to rejoin the Transport Union, Morgan said he was satisfied with his pay and conditions and was anxious to remain in the Authority's service. He was, however, determined not to rejoin the Union, who he considered had failed in their duty to their members employed at the various locks and entrances. He was also indignant that an employer and a trade union should conspire together to bring to an end the employment of a number of men who had committed no offence and who merely wished to be allowed to belong to a Union of their own choice. He also maintained that the members of the Union were not in favour of the action which had been taken in their name by the officials of the Union.
"The Assistant to the Staff Relations Officer pointed out that the difficulties were not of the Authority's making and that they had given ample warning of the unfortunate position in which they would be placed if a major stoppage became imminent, as it now had. The Authority had no alternative but to treat the Union's formal communication as a serious threat to the working of the Port. In the circumstances there could be no deflection from the course of action which had been outlined, and Morgan was told that he had until 29th March to make a decision".
On 29th March, 1963, the Union put off their instruction from 1st April to 8th April so as to enable the Authority to give a week's notice to the four men. On that same day, 29th March, 1963, the Authority gave notice to Mr. Morgan to end his employment with the Authority on 6th April, 1963. He was out of work for six weeks and eventually became a collector for a Gas Board of moneys put into gas meters. He earned less salary than he did in the docks. He now brings this action claimingdamages for intimidation against Mr. Fry and Mr. Harvell, the fulltime officials of the Union, and Mr. Bilson and Mr. Mehegan, the Chairman and Secretary of the local Branch.
Mr. Justice Widgery found in favour of Mr. Morgan against the two officials and awarded damages of £425 against them. But he dismissed Mr. Morgan's claim against the officers of the Local Branch. In consequence, he awarded Mr. Morgan only half his costs, Mr. Morgan then put in a notice of appeal, saying that his claim should have succeeded against the officers of the Local Branch and that he should have all his costs. The officials of the Union put in a cross-appeal saying that the claim should have failed against them.
2 THE STRIKE NOTICE
The root question is what her to "strike notice" on 14th March, 1963, was an act of intimidation. It gave 2 ½ weeks' notice - afterwards extended to 3 ½ weeks - far longer than the week's notice necessary to terminate the employment altogether. But it was not a notice of termination. It was only a notice that the men would not work with non-unionists, was it unlawful?
According to the decision in Rookes v. Barnard, (1964 A.C. page 1129) the tort of intimidation exists, not only in threats of violence, but also in threats to commit a tort or a breach of contract. The essential ingredients are these: There must be a threat by one person to use unlawful means (such as violence or a tort or a breach of contract) so as to compel another to obey his wishes: and the person so threatened must comply with the demand rather than risk the threat being carried into execution. In such circumstance the person damnified by the compliance can sue for intimidation.
The new point in Rookes v. Barnard was that the threat of a breach of contract was held to be "unlawful means". The breach of contract in that case was of a flagrant kind. The men had given a pledge to their employers that they would not come out on strike. In breach of that pledge, they threatened theemployers - on three days' notice - to come out on strike unless Rookes was dismissed. The employers submitted to the threat and dismissed Rookes. That was held to be intimidation which gave to Rookes a right of action for damages.
If Rookes v. Barnard is carried to its logical conclusion, it applies not only to the threat of a flagrant breach of contract, such as occurred in that case, but also to the threat of any breach of contract - so long as it is of sufficient consequence to induce the other to submit. It applies to the strike notice- in this present case if and this is the point it was the threat of a breach of contract.
This brings me, therefore, to the crux of the case: Was the "strike notice" in this case the threat of a breach of contract? If it had been a full week's notice by the men to terminate the employment altogether, it would not have been a threat to commit a breach of contract. Every man was entitled to terminate his contract of employment by giving a week's notice. But the "strike notice" in this case was not a notice to terminate the employment....
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