NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1974.tb02377.x |
| Published date | 01 March 1974 |
| Date | 01 March 1974 |
NOTES
OF
CASES
CONTEMPT
OF
THE
N.I.R.C.
IN
Con-Mech (EGgineers)
Ltd.
v.
A.U.E.W.,'
the complainant
company had refused a request by some of its employees to recognise
the A.U.E.W.
for
bargaining purposes. In consequence a strike
was called without due notice, involving the union in liability under
section
96
of
the Industrial Relations Act
1971.
Some of the
employees on strike were dismissed by the company. The company
also gave notice of an application under section 45 of the Act to
determine whether the union should be bargaining agent, which
automatically rendered the striking union liable
for
the additional
unfair industrial practice in section
54.
In record time, the CIR
reported that the A.U.E.W. ought to be the sole bargaining agent
for
a
group of the employees 2; but the company refused to accept
either this recommendation
or
the'Report as
a
whole; and since
the union was unregistered no steps could be taken to compel the
company to do
SO.^
Ironically, despite the company's refusal to accept the CIR
Report, strike action remained unlawful for a further six months.'
Meanwhile, the N.I.R.C. had decided that the union was in con-
tempt because it had deliberately disobeyed the court's interim
order that the strike action must cease. The court ordered
sequestrators to seize
€100,000
of the union's funds (which they did
by seizing the
€100,000
recently lent to an urban district council;
money that turned out to be part of the union's political fund)
and fined the union
X75,OOO
payable out of that money. This note
is
directed to the question whether the N.I.R.C. by its new proce-
dures for contempt, has turned
"
civil
"
into
''
criminal
''
contempt
when its orders are disobeyed.
The traditional distinction between criminal and civil contempt,
although recently described as
''
unhelpful and almost meaning-
less," still exists. The difference, Lord Denning M.R. said in
(NO.
1)
[1973]
I.R.L.R.
331;
(No.
2)
ibid.,
333;
(No.
3)
ibid.,
335.
Con-hlech
(No.
2)
and
(No.
3)
also
[1973]
I.C.R.
620.
For later proceedings, see
[1974]
I.R.L.R.
2,
and
ibid.
4.
This note
is
mainly concerned with the second
judgment. The A.U.E.W. did not appear
at
any stage.
2
Report No.
63,
Con-Mech
(Engineers)
Ltd.
3
For
an
analysis
of
the
CIR
Report and the Statement by the A.U.E.W.
on
the case, see I.R.R.R.
No.
68,
November
1973,
at
pp.
12
and
13.
4
See
8.
64
(2)
(c)
of
the Act.
5
Established under the Trade Union Act
1913;
this meant that the
union
could
not replenish that fund out
of
its general funds. The po1itical"fand
was,
of
course, legally
as
much open to seizure
as
any other property: see
a.
154 (3)
of
the
1971
Act; but
it
might have been politic to ensure that the money seized
was
not part
of
the political fund.
0
Per
Salmon
L.J.,
Jennison
v.
Baker
[1972]
2
Q.B.
52,
61.
187
188
THE MODERN LAW REVIEW
VVL.
37
1971,
is
''
well known
"-a
criminal contempt being one
"
which
takes place in the face
of
the court
or
which prejudices a fair trial
";
a typical example
of
civil contempt being
''
disobedience to an
order by the court in a civil action
)'
(as in the
Con-Mech
case).
The distinction has also recently been recognised in the House
of
Lords.s While it is true that proof of civil contempt involves
"
quasi-criminal
)'
incidents
(e.g.
as regards the standard of strict
proof required;
or
the rule that
a
contemnor is not a compellable
witne~s),~ there can be no doubt about the historical authenticity
of its separate character.lO While some points of distinction between
the two forms of contempt have been abolished by statute, others
remain, including the power
of
the Crown to pardon
a
criminal
contempt, and certain privileges from arrest in respect of civil
c0ntempt.l'
The most important distinction, however, lay in the principle
that
"
a
civil
contempt
can be waived,
for if the party for whose
benefit an order
was
made
is
content that
it
should not be per-
formed, the court has generally no interest to interfere."
l2
It
is true
that some authorities supporting this view involve only minor
"
contempts in procedure
"
in the old Courts of Equity.la But
others involve more serious failures
to
obey court orders and
it
has been generally recognised that attachment
or
sequestration for
criminal contempt are punitive whereas the law of civil contempt
aims to enforce court orders in order to uphold the rights
of
the
aggrieved party.16 In civil contempt, Lord Diplock has recently
observed
:
"
The order is made at the request and for the sole benefit
of
7
Comet Products
U.K.
Ltd.
v.
Hawkex Plastics Ltd.
[1971]
2
Q.B.
67, 73.
8
See
Att.-Gen.
v.
Times Newspapers
19731 3
All E.R.
54, 71,
per
Lord Diplock.
Hawkex Plastics (supra).
10
Halsbury,
Laws
of
England
(3rd
ed.),
Vol.
8,
p.
2
et
seq.; Oswald on Contempt
(3rd ed.
1910),
p. 36, and
.
226230;
Fox,
History
of
Contempt
(1927).
p.
2;
Welleslev
v.
Beaufort
U8f8
2
RUBS.
&
M.
639. 666-667:
R.
V.
Almon
11765)
0
See
Re BrambleoaZe
[1970]
Ch.
1
L
(C.A.); and
Comet Products
U.K.
v.
11
12
13
14
18
Wilm.
223;
R.
v.'Read and Huggenson
(1742)'2
Atk.
469;
O'Shea
V.
0"Shea
(1890) 15
P.D.
59,
62;
Re Freston
(1883)
52
L.J.Q.B.
545,
551;
Scott
V.
Scott
[1913]
A.C.
417, 469.
A
right
of
appeal for criminal contempt did
not
exist until it was established
by the Administration of Justice Act.1960,
8.
13.
On the right to pardon,
and
privilege from arrest, see respectively
R.
v.
Wood
(1831) 3
B.
&
Ad.
657;
Stourton
v.
Stourton
"631
P.
302.
Supreme Court Practice
(1973)
R.S.C., Ord.
52,
note
52/1/2
(emphasis supplied).
Roberts
v.
Albert Bridge
Co.
(1873)
L.R.
8
Ch.App.
753;
Woodward v.
Twinane
(1840)
8
Sim.
301;
Oldfield
v.
Coblett
(1845) 1
Ph.
557;
Anon
(1808)
16
VCR.
173.
-
-
.
-
-.
-.
-.
Best
v.
Gompertz
(1837)
2
Y.
&
C.Ex.
582;
and see
Harrison
v.
Sparrow
(1842)
4
M0o.P.C.C.
96.
In
Yianni v. Yianni
[1966] 1
W.L.R.
120,
Cross
J.
states
categorically that the plaintiff
"
withouf reference
,fo
the court, could agree
with the defendant that he need
not
obey the order
in
a civil contempt case:
p.
124.
The citation
of
that decision in
Con-Mech
(No.
2)
in the opposite sense
seems to be
per incnriam.
See
Johnston V. Fore
[l965]
N.I.
128, 131, 135;
Beal
(1908) 21
Harv.L.R.
161, 170;
Fischer, Civil and Criminal Co:!empt
"
(1956) 84
Can.Bar Rev.
121;
Harnon,
"
Civil and Criminal Contempts
(1962)
25
M.1J.R.
179.
MAIL
1974
NOTES
OF
CASES
189
the other party to the civil action
. .
.
(and) no sufficient public
interest is served by punishing the offender if the only person
for whose benefit the order was made chooses not to insist on
its enforcement.”
1e
The same point was clearly made in
Seaward
V.
Patterson
lT
by
Lindley
L.J.
when he clearly envisaged that plaintiff and defendant
could
cc
square
)’
a dispute even after a civil contempt was estab-
lished. That case has been misused as an authority
for
the opposite
proposition because
it
involved also a contempt by a
third party
who
6c
aided and abetted
)’
the disobedience by the defendant
against an order prohibiting
a
prize fight. That third party’s
contempt was, the court thought, a
criminal
contempt.1s Some
dicta of the judges (such as those of Rigby L.J. relied upon in
Con-Mech)
were concerned more with the criminal contempt of the
third party rather than with civil contempt proper.
It
is true that civil contempt has, as the N.I.R.C. said, a
“
two-
fold
”
character: one as between the two parties; and the other
as between the defendant and the state,
cc
a penal
or
disciplinary
jurisdiction to be exercised by the court in the public interest.”
But
generally
(as the White Book puts it) the court will not exercise
that jurisdiction if the plaintiff has waived and settled his dispute
with the defendant.
It
was only by overlooking many of the tradi-
tional authorities that Salmon
L.J.
was able in
1972
to change the
emphasis (in a case where the facts certainly did not involve
a
voluntary waiver by the plaintiff) and say:
‘‘
The plaintiff cannot
waive the order, but as
a
rule the court will pay attention to his
wishes.”
20
The traditional rule was that the court would allow
the plaintiff to waive unless there were very special circumstances in
cases of civil contempt.
The N.I.R.C. has introduced into its procedure three novel
elements. First, as is said in the
Con-Mech
(No.
2)
judgment, it
has always put the complainant under a
duty
to report regularly
16
Att.-Gen.
v.
Times Newspapers ttd.
[1973]
3
All E.R. 64, 71. Lord Di~lock
recognises the public interest in not allowing orders
of
a
court to be dis-
regarded with impunity
”;
yet he still states the waiver rule
in
this absolute
form.
1’
18971
1
Ch.
645,
665-667; cited with approval in
Eckman
v.
Midland
Lank Ltd.
[1973] I.C.R. 71, 79-80
(N.I.R.C.).
18
But this anomaly was doubted by Lord Atkinson in
Scott
v.
Scott
19131
A.C.
417, 45-59. See the discussion by Hamon,
op.
cit.
(1962)
26
J.L.R.
182-184.
19
Phonographic Performance
v.
Amusement Caterers (Peckham) Ltd.
[1964]
1
Ch. 196, 198-199, Cross
J.,
citing Halsbury,
Laws
of
England
(3rd ed.), pp.
20-21. (But this was not
a
case of waiver; the defendant had deliberately
delayed
his
compliance with the order
80
that the court felt
he
should be
punished even after compliance.)
20
Jennison
V.
Baker
[1972] 2
Q.B.
at p. 64-also cited
in
Con-Mecit.
(No,
2)
(Here the defiant landlord had, contrary
to
a
court order,
so
harassed tenants
that they
no
longer had any interEst
ip
enforcing their right to possession;
this was nothing like
E
voluntary waiver
”;
and it is quite understandable
that the court punished the landlord for the contempt, especially as her action
was
openly contumacious: see text to note 26,
infra).
VOL.
37
(2)
3
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