NOTES OF CASES
| Date | 01 July 1954 |
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb02162.x |
| Published date | 01 July 1954 |
NOTES
OF
CASES
DAMAGES
FOR
WRONGFUL
EXPULSION
FROM
A
TRADE UNION
A
MEMBER
of a trade union who is wrongfully expelled from his
union can obtain a declaration and an injunction against the union
but he cannot recover damages. This conclusion-surprising, at
least at first sight-was reached by the Court of Appeal in
1915
in
Kelly
v.
N.S.O.P.A.
(1915) 113
L.T.
1055.
It
has now been
affirmed by a majority decision of the Court of Appeal (Evershed
M.R.
and Jenkins
L.J.,
Denning L.J. dissenting) in the case of
Bonsor
V.
Musicians’ Union
[1954] 2
W.L.R.
687.
The arguments by which
it
was sought to persuade the Court of
Appeal to distinguish
Kelly’s
case
or
to overrule
it
may be
summarised as follows
:-
(1)
That
it
was inconsistent with the later decision of the House
of Lords in
Amalgamated Society
of
Carpenters
v.
Braithzvaite
119221 2
A.C.
440.
(2)
That
it
was doubted by Scrutton L.J. in
R.
v.
Cheshire
County Court Judge, ex
p.
Malone
[1921]
2
K.B. 694, 709.
(3)
That the effect of section
82 (1)
of the Law of Property Act,
1925,
has destroyed the
ratio decidendi
of
Kelly’s
case.
(4)
That the effect of
Tub
Vale Ry.
v.
A.S.R.S.
[1901]
A.C.
426,
and
N.U.G.W.
v.
Gillian
119461
K.B.
81,
is to recognise that
a
trade union is an entity distinct from the members composing
it,
and that
Kelly’s
case failed to recognise this and thus was based on
a
fundamental misconception.
A word may be said about each of the above arguments.
(1)
The majority of the Court of Appeal dismissed
Braithwaite’s
case as irrelevant since it did not deal at all with the issue of
damages but merely reaffirmed the right of an expelled member to
claim
a
declaration and an injunction. The House of Lords also
held in that case that such a proceeding was not precluded by
section
4
of the Trade Union Act,
1871,
as being a mode of directly
enforcing an agreement of the kind specified in that section.
(2)
Scrutton L.J.’s doubts were accorded less weight than might
otherwise have been the case, since they were apparently based upon
a misconception as to the true
ratio
of
Kelly’s
case. Scrutton L.J.
seems to have thought that the basis of that decision was that the
expelled member was seeking to enforce a contract made between
the plaintiff and himself (and others), and that no action would
lie to recover damages in such circumstances. Scrutton L.J. also
thought that there was an inconsistency in allowing a declaration
and an injunction, but refusing to award damages against the union.
360
JULY
1964
NOTES
OF
CASES
361
The true
ratio
of
Kelly’s
case will be referred to below under
(la),
and as to the second point, both the Master of the Rolls and
Jenkins L.J. thought there was nothing inconsistent in refusing
damages, provided, of course, the fundamental premise remained,
that the union is not capable of being treated for this purpose as an
entity distinct from the body of members composing
it.
(8)
This section, which provides that any agreement entered into
by a person with himself and other persons shall be enforceable as
if made with those other persons alone, is clearly only relevant
if
Scrutton L.J.’s view of the
ratio decidendi
of
Kelly’s
case was the
correct one. Having rejected this view, the majority of the Court
of Appeal dismissed section
82
as having nothing to do with the
case; nor, indeed, did Denning
L.J.,
in his dissenting judgment,
seek to place any reliance upon
or
even to refer to
it.
(4)
The real kernel of the argument rested upon this contention,
and it was upon his acceptance of this contention that Denning L.J.
based his strong dissenting judgment. Before examining this argu-
ment, however,
it
is desirable to interpose at this stage the basis
of the decision in
Kelly’s
case.
That decision was seemingly founded on two points which are
perhaps no more than different aspects of the same point. The
case proceeded on the fundamental assumption that
a
trade union
is not a legal person distinct from its members, and that an action
based on wrongful expulsion is
a
claim for breach of a contract
between the member and all the other members. This contract is
made when the member enters the union and is upon the terms of
the rules governing the union. Where, therefore, the member is
wrongfully expelled either by a committee (as in
Kelly’s
case)
or
an
official (as in
Bonsor’s
case) the claim,
if
any, against the union
for damages must be in respect
of
a breach of that contract. To
succeed in such
a
claim
it
must be shown that the committee
or
official acted with the express
or
implied authority of the body of
members (excluding the plaintiff himself).
It
is at this stage that
the plaintiff finds himself impaled on one
or
other of the horns of a
dilemma.
For
if
the committee acted without authority then the
union cannot in any event be liable. In this connection
it
must
be borne in mind that in the case of an unincorporated association
there
is
no implied authority conferred by the members upon any
organ of the society to do a wrongful act on their behalf (see
London Association
for
Protection
of
Trade
v.
Greenlands, Ltd.
[1916]
2
A.C.
15,
39,
per
Lord Parker). On the other hand, if the
committee was
so
authorised, such authority must have been con-
ferred by the whole body of members
(including the plaintitf
himself).
For
the body of members has given no express authority
to the committee
to
expel a member wrongfully
;
such authority can
be deduced only from the rules of the society, and
if
such authority
can be derived from the rules it is attributable to the plaintiff
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