Notes of Cases

DOIhttp://doi.org/10.1111/j.1468-2230.1968.tb01211.x
Publication Date01 Sep 1968
NOTES
01‘
CASES
Tm
LABOUR
INJUNCTION
IN
SCOTLAND
THE
disease of the
labour injunction
appears to have spread to
Scotland. This important new outbreak makes desirable
at
least
an abbreviated account
of
Square
Grip
Reinforcement Ltd.
v.
Macdonald.‘
The plaintiff company, one
of
seven companies in
a
group,
manufactured steel reinforcement materials, used mainly for build-
ing sites.
It
insisted on
direct negotiation
with its employees
through its own works committees and, though
it
permitted workers
to join them,
it
refused to negotiate with
or
recognise trade unions.
It
made all this clear in each worker’s manual of employment
conditions. After great dissatisfaction over conditions of employ-
ment, some
70
per cent. of the workers joined the union (T.G.W.U.)
of which the defendants were officials. After abortive attempts to
secure recognition in which the Ministry of Labour’s conciliation
officers played
a
part, the defendants made
a
list of demands (for
recognition of the union and its shop stewards; for a procedure
agreement on disputes; and for negotiation over wages and other
conditions) saying that if these were not met in full there would be
a strike, the company would be
blacked,” and other union
officers and the T.U.C.
so
informed. The company refused to nego-
tiate, whereupon fifty-eight of its seventy employees withdrew
their labour. Soon afterwards, various T.G.W.U. officials (including
the defendants) attended at building sites where contractors known
to be customers
of
the plaintiff company worked. Employees of the
customers refused to off-load steel supplies from the plaintiffs
so
that the customers were forced to refuse delivery
of
those materials.
There was also evidence in at least one case
of
a
threat to a
customer’s management that if supplies were accepted their workers
would then strike. In confirming the interdict against the defendants
for inducing breaches
of
the commercial contracts, Lord Milligan,
in a prolix judgment, may be said to have touched mainly on the
following points
:
(a)
The breach
The customers were in breach because it was their obligation to
off-load the lorries under the contracts of supply made with Square
Grip. There was, it is true,
a
clause in the contracts which allowed
Square Grip to cancel in the event of a strike; but even the
customers could not avail themselves of that clause as
it
was
1
1968
R.L.T.
65
(Outer
HouRe)
(No.
9).
An
interim interdiot
had
been
earlier
In
this
granted
EZ
park
and continued
by
Lord
Avonaide:
1966
8.L.T.
232.
action Lord
Milligan
granted
B
final
interdict.
550
SEW.
1968
NOTES
OF
CASES
551
worded.
So,
u
fortiori,
it could not help the defendants.a This type
of clause, giving one party
or
both parties to the contract an
option
to terminate (as was also the case in the
Emerald
contract), must,
of course, be sharply distinguished from any clause
or
factor which
prevents there being a contract
or
a breach at all. Breach is
a
critical part of the tort and where
there is not a contract the
breach of which he could procure,” the defendant cannot be liable
however much he induced anyone to do Here, however, the
breaches were established.
(b)
Knowledge and intention
Lord Milligan found
as
a fact that the defendants
all knew that
the firms referred to on record were customers
of
the petitioners
and that the materials were being sent to the customers in further-
ance of contracts
¶,;
and
although they did not know the terms
‘of
the contracts.
.
.
.
they all realised,
or
in
any event must have
realised, that blacking would injure the petitioners and would
cause a breach
of
contract.”
In
such a situation the necessary
mental element
is
proved, unless the defendants can positively
prove an intention
not
to cause breaches of contract, as in
White
v.
Riley.6
(c) The inducement
In
regard to those customers where officials had directly
approached
a
customer’s management, there had clearly been a
direct
inducement of breach and the tort was thereby established.
But in most cases the officials had only informed the customer’s
workmen (union members) of the position, though they knew that
such workers had offered to black the plaintiff’s materials to help
their fellow workers at that company. They had no authority
to
instruct these workers not to unload but they could
‘‘
exhort and
persuade them not to
do
so
”;
and they were all
anxious
to
do
what they could to coerce the petitioners
into recognising the
union.
In
considering whether a person has induced another to do
something, Lord Milligan went
on,
their relative positions must be
considered; and where one was
desperately anxious
to achieve
a result even a
suggestion
¶’
coming from him would suffice.
So
it
was here.6
a
Ibid.
p.
71.
McManw
v.
Bows
[1998]
1
K.B.
98
at
p.
127,
per
Slesscr
L.J.
(contract
determinable by inducee at will);
so
too
DB
Francesco
v.
Barnum
(1890)
46
Ch.D.
4-30
(infant’s contract void; no tort). See
loo
Morris
L.J.
in
Thornson
V.
Deakin
[1952]
Ch.
at
p.
7M:
I‘
If
the contract
.
.
.
is lawfudly terminated,
then there
is
no
violation.” Nothing
said
in
the
Emerald Case
[1966]
1
W.L.R.
691 concerning
a
heedless
or reckless
state of mind can affect
this
point,
for where
no
breach
ie proved the tort cannot be constructed ollt of
mere siibjective elements.
[Rut
see
now
contra,
Stamp
J.,
Torquay
Hotels
v.
Coitsins
[l!?68]
9
A11
E.R.
43.
noted
post.]
[1921]
1
Ch. 1, especially
per
Warrington
L.J.
at p. 26.
4
1968
S.L.T.
at p. 72.
6
1968 S.L.T. at pp.
72
and
73.
552
THE
MODERN
LAW REVIEW
VOL.
31
It
will
be recalled that in
Thomson
v.
Deakin,‘
warnings of the
blacking given to the employers (there the plaintiff’s suppliers)
were treated as a mere
statement of the facts
or
advice.”
If
the tests used in
Square
Grip
are applied
it
is difficult to see how
such information can ever be imparted by union officials to a
firm’s management without it amounting to persuasive procure-
ment. Even more alarming, it is difficult to see
how,
on such
tests, union officials are able to do what has been done for
decades-namely, inform their members that a company is
black
and in dispute with the union-without the risk of being
liable for
inducing
whatever these members chose to do. Again,
in
Thornson
v.
Deukin
Jenkins
L.J.
was insistent that
general
exhortations issued in the course of a trade dispute such as
Stop
supplies to
X
’;
‘Refuse to handle
X’s
goods’: ‘Treat
X
as
black
and the like
were not necessarily wrongful inducements
because their object might be achieved by lawful means.
Also,
as
the Court of Appeal decided, in indirect inducement, where
A
is
striking at the contract between
X
and
Y
by persuading
B
(usually
X’s
servant) to take action, it must be shown that
B’s
act is
wrongful before A can be made liable to
Y.
And
it
must be shown
that the breach between
X
and
Y
is a
necessary consequence
of
the act
A
induces
B
to do.8
None of these points is adequately dealt with by Lord Milligan.
He appears to assume that the workers
011
the sites would have
been
in
breach of their employment contracts, and rejects the
idea that they acted
‘‘
spontaneously.” But since he later finds
that there was a trade dispute in existence, his failure then to
investigate the effect of the first limb of section
8
of the Trade
Disputes Act
1906
.a
is odd. In truth, one passage suggests that he
was persuaded that a section of Lord Pearce’s speech in
Stratford
v.
Lindley
lo
affects the authority of
Thomson
v.
Deakin.
Counsel
for the respondents does not appear to have replied properly to the
point.” In
Stratford,
the majority of the Law Lords undoubtedly
treated the facts before them as
indirect
inducement (defendants
persuading customers’ workmen to leave barges, thereby bringing
about breach
of
the plaintiff’s contracts with customers). But Lord
Pearce (with whom Lord Donovan expressed general agreement)
treated the case as one of
direct
inducement by reason of the letter
7
rl95iIl
Ch.
646
at pp.
6G-686,
per
Evemhed
M.R.
(there
was
no
“pressure,
persuasion or procuration
8
[I0521
Ch.
646,
prr
Jenkins
T1.J.
at
p.
697
and
at p.
696.
See too Evershed
h1.R.
nt
pp.
681-682
ant1
p.
687;
Morris
L.,T.
at
p.
702.
See the previous note
of
which this note originally formed thc second part, on
Daily
Mirror
Lfd.
v.
Onrdner
[l968]
2
W.L.lt.
1239
(C.A.)
in
(1068)
81
M.L.R.
440,
eapecially
at
pp.
442-3115.
9
Rendering
acts
done
in
furtherance
of
a trade difipute
not
mtionable on the
ground
only that they induce breach
of
a
contract
of
employment. See
infra,
I,
15
of
the ~nppliers).
..
.
..
1”
[1%5]
A.C.
at
p.
333.
1’
Sre
1968
S.TJ.T.
at
p.
73
(where the confileion
of
instamerr
of
direct
and
iudirect inducement
is
most marked).
SE~.
1968
NOTES
OF
CASES
553
sent by the union defendants to the customers via their trade
association. The defendants, he says,
"
made it clear to the association
.
. .
which in effect represented
the hirers [the customers]
.
.
.
that the hirers could not return
the barges to the plaintiffs. The fact that an inducement to
break
a
contract is couched as an irresistible embargo rather
than in terms
of
seduction does not make it any the less an
inducement.
"
Therefore,
when Lord Pearce comes
to
causation, he naturally holds
that it
is
enough in this case
of
direct inducement
if
the defendants
intended to procure a breach and did
so
as
"
a reasonable conse-
quence
"
of their acts. But he adds very carefully:
"
Thomson (D.
C.)
4
Co.
Ltd.
v.
Deakin
was a somewhat
different case from the present. In that case
:
'
There never was
any direct action between the defendants
. . .
and Bowaters
[the supplierdl with the object of persuading
or
causing
Bowaters to break their existing contracts with the plaintiffs
'
(per
Upjohn
L.J.
[1952]
Ch.
646
at p.
662).
In a case where
the defendant does not communicate any direct pressure
or
persuasion to the contract-breaker but merely procures in-
directly a situation which causes the breach
I
am
inclined to
agree with the dictum of Jenkins L.J.
that
it
must be shown
that breach of the contract
. . .
ensued as a necessary con-
sequence.
.
.
.
But that is not this case."
la
Thus,
so
far from casting doubt on
Thomson
v.
Deakin
(as Lord
Milligan seemed to think) Lord Pearce in
Stratford
inclined
to
agree with
it,
though he distinguished
it.13
Thomson
v.
Deakin
is
not mentioned by any other Law Lord.
It
is submitted therefore that Lord Milligan's judgment diverges
from the law of England in
so
far as it fails to distinguish direct
from indirect inducement of breach
of
contract. That
is
not to say
that the defendants might not anyway have been found liable in
Square Grip;
for
they may well have engaged in wrongdoing
sufficient
to
make them liable for indirect inducement of breach of
the supply contracts (although the better view is that inducement
of
breaches of
employment
contracts does not constitute such
wrongdoing in furtherance
of
a trade dispute by reason of section
8
of the Trade Disputes Act
1906).14
But on the correct premises
12
[1966]
A.C.
at
p.
333
(italica added).
Is
The fact thsit Lord PeiLrce trcnted
Stratford
as
a
case of direct inducement
ia
also
proved by the fact that he found it unnccesfiary to decide whcther
the
customers' workers noted in breach
of
their emplo rnent contracts (p. 335).
Whereas the finding that they had
so
acted was fundkental
to
the
othcr
Law
Lords' speeches, resting upon indirect inducement
or
breach
of
the
hiring
cont r&c ts
.
14
That was the
view
of
Lord Denning
M.R.
in
Mor
an
v.
Fry.(C.A.
1968;
RE
yet
unreported).
For
other judicial support
br
this
view see Lord
Denning
M.R.
and Salmon
L.J.
in
Stratford
v.
Lindleq
[l9G5]
A.C.
at
pp.
285, 303-305; the roafioning
of
Lord Devlin in
Rookes
v.
Batnard
[1964]
A.C.
at p. 1911
(SCC
(1965)
28
M.L.R. at
p.
211)
and
Up'ohn
J.
in
Thomson
V.
Deakin
[I9521
Ch.
at
pp.
GG2-GG3.
Contra:
Eversbed
M.R.,
Thomson
v.
Dealcin
[lo521
Ch.
at p.
687;
Lord
Pearce,
Stratford
v.
Lidley
[l9G5]
A.C.
at p.
336.
554
THE
MODERN
LAW
REVIEW
VOL.
a1
Lord Milligan would surely have argued his judgment differently
;
for he criticises the
defendants
for not calling the custotnem’
workers to give evidence about their alleged
spontaneous
acts,lS
whereas the burden was surely
on
the
plaintifls
to prove (in the
instances of
indirect
inducement) that these workers acted wrong-
fully. Certainly, however, Lord Milligan must
be
right when he
decides that the second limb
of
section
3
of
the Trade Disputes Act
1906
cannot protect defendants against whom there is proved the
tort of inducing breach of commercial contracts.’e
To
the authority
which he cites should be added
Rookes
v.
Barnard,
where their
lordships decided that this part of the section applied only to
interference
’’
which was not tortious, thereby (as Lord Ever-
shed said) rendering this part
‘(
nugatory.”
l‘
As interpreted, the
section (like the Act of
1905)
has no bearing on breach
of
commercial contracts.
Since the above was written, the Report
of
the Donovan Com-
mission has been published.ls
A
fuller note
on
that Report
will
appear later; but three interim points may be made about its
recommendations relevant to the
Square Grip
case. First, the
Report itself accepts that the
Thomson
case
is
good law and that
indirect
inducement of a breach of contract is not unlawful
if
‘‘
no unlawful means have been counselled
or
used.”
Is
The odd
suggestion recently repeated by commentators that by reason
of
the Stratford decision we have now reached
the end of the road
for
a puzzling distinction, first made in
D.
C.
Thomson
4
CO.
Ltd.
v.
Deakin
[19523
Ch.
040,
between
a
‘direct’ and ‘indirect’
inducement of a breach of contract,” is certainly not accepted
by the eminent authors of the Report (including Lord Donovan
himself).
Secondly, the Report accepts the view that, in order to restore
the balance of liberty for industrial action, it is necessary to amend
the
Trade
Disputes Acts
1900
and
1905,
so
as to protect, in trade
disputes, inducements of the breach of any contract (not merely,
16
lU
17
18
19
zn
1968
S.L.T.
at
p.
74.
An
act
in
furtherance
of
a
trade dispule is not to be actionable
on
the ground
only that it is
an
interference with the trade, busineas or employment
of
mme other person.
.
. .”
[1964]
A.C.
at
pp.
1192, 1195.
See
too
Lord Pearce at
p.
1236.
lbyal
Commission
on
Trade
Unions
and Employers’ Associations, Report (1968
Cmnd.
3623,
H.M.S.O.)
Ibid,
para.
981
(5).
See
too
para.
891
(4).
See Guest and Hoffman, (1968)
84
L.Q.R.
!lo
at
p.
311.
The same authors
state at
p.
312 that in
the
Stratford
case only Lord ITpjohn
.
.
.
showed
any
interest in whether the means used were unlawful in thernse!vcs.”
Reference to
[lo651
A.C.
at pp. 325, 327-329, 342
pe7
Lord Reid, Viscount
Radcliffe and Lord Donovan shows that each
of
them referred
to
the
use
of
unlawful means
and,
no
doubt for that reason,
found
it unnecessary even
to mention the
Thornson
case, as it was obviously
to
be
dish ished
on
that
ground.
As
for
Lord Pearce’s view,
see
notes
12.pnd 13,,anpre!,evant tex:
supra.
One reason why the ?,istinction between direct
and
indirect
inducement is
not
“puzzling
was
explalned
in
the earlier note
(1968)
31
M.L.R.
at
p.
445.
Swr.
1968
NOTES
OF
CASES
555
as now, contracts of employment).21 Clearly, after cases such as
Square
Grip,
such amendment is essential to preserve the most
elementary right to organise strikes
or
other types of activity
hitherto available to groups of British working people. On the
other hand,
a
majority
of
seven Commissioners wish to restrict the
protection of the amended section
8
to trade unions, employers’
associations, and persons
acting in an authorised capacity on
behalf of a registered trade union
or
employers’ association.”
2a
The arguments of the minority of five against this restriction carry,
it
is
suggested, the greater weight.2S Thirdly, the
Square
Grip
decision illustrates one of the many ways in which Chapter
XIV
of
the Report has failed to take account of the new tendency on the
part of at least some members of the judiciary to develop the
common law
in
ways which have effects inimical to rights which
have been considered for decades basic trade unions rights. Thus,
the Commissioners, in sanguine mood, say in their discussion of
this tort
:
‘‘
(1)
Mere advice is not inducement (of a customer)
. . .
(2)
Such advice will not constitute an inducement to break
a
contract even
if
it calls attention to the possible dangers for
the customer of continuing to deal with the employer in
dispute.”
24
Lord Milligan was ready to call any suggestion
or
advice an
‘‘
inducement
)’
if
the defendant was
‘(
desperately anxious
to
achieve
a
given result. In the
Stratford
case, the Law Lords
clearly were ready to give a wide scope to the term.
It
seems
a pity that the Donovan Report does not, at the minimum,
explicitly recommend that the judges should by statute be com-
pelled to accept the legality of communications from a trade union
by way
of
both information to its members about disputes with
employers and warning
or
advice to customers
or
suppliers of the
employer in dispute.
Square
Grip
(amongst other cases) shows
that such
a
statute is urgently required to preserve the traditional
balance
of
strength in collective bargaining.
K.
W.
WEDDERBURN.
INDUCING
BREACH
OF
CONTRACT
WITHOUT THE
BREACH
THE
Cinderella of the modern
law
of forts is, almost daily,
becoming more complex. The judgment of Stamp
J.
in
The Tor-
21
See paras.
878-894.
22 The
quotation
is
from
Lord Tangley’s
Supplementary Note
at
p.
2887,
the
only place where
the
proposal
is
spelt out with clarity a8 regards
‘‘
authoriRed
agents.”
See
the
main
Report paras.
488,
800-803,
and
894.
23
See esneciallv the
brief
but
convincing comments of para.
804,
which goes some
*
way
to
expldning the gravity of the majority
propod.
24
Ibid.
nara.
891.
1
Street’
(1968)
31
M.L.R.
at
p.
357.
556
THE
MODERN
LAW
REVIEW
VOL.
ai
quay
Hotel
Co.
Ltd.
v.
Cousins and Others
is the most recent and
most creative addition to what is fast becoming a long line of
modern authority. The case is another example
of
the so-called
"
Labour Injunction
"
at work;
it
was a motion to continue an
ex parte
injunction awarded by Plowman
J.
and was argued
on
the
basis of affidavit evidence. Such cases apparently never reach full
trial proceedings and although described as only interlocutory
'
the
judgments inevitably decide matters of great legal and practical
importance.
The Torquay Hotel
Co.
Ltd., owner of the Imperial Hotel at
Torquay, through its membership of an hoteliers' association entered
an agreement in
1947
with the National Union
of
General and
Municipal Workers (N.U.G.M.W.) and the Union
of
Shop Distribu-
tive and Allied Workers (U.S.D.A.W.) for the regulation of working
conditions and wages. At all material times there also existed
a
Joint Trade Union Committee
in
the catering industry. The
N.U.G.M.W., the U.S.D.A.W. and the defendant T.G.W.U. were
represented
on
this committee. Before November
1967
the arrange-
ments
s
of this committee excluded the defendant union from
organising employees in residential hotels. In spite of these arrange-
ments and probably because of the lack of activity by either the
N.U.G.M.W.
or
the U.S.D.A.W. the defendant union had, since
November
1966,
made some ground in organising labour in the
Torquay area. At a later stage, because its powers
of
organising the
catering industry were to be even further restricted, the T.G.W.U.
resigned from the committee.
By January
1968,
catering membership of the T.G.W.U. in the
area was large enough for
it
to set up a Torquay branch.
Approaches were then made to the Hotels Association concerning
recognition of the T.G.W.U. in the Torbay area and to
Mr.
Smith,
managing director of the Torbay Hotel. Mr. Smith refused to meet
with the defendant union, saying that he was already negotiating
with the N.U.G.M.W. After the views of the T.G.W.U. members
in the area had been ascertained the branch committee decided to
invoke industrial action. The Torbay Hotel was picketed and
within a few days
"
was brought to
a
standstill."
2
[1968]
3
All E.R.
43;
The other defendanis were national, regional, district
and local representatives
of
the
union
and the Transport and General Workers
Union
(T.G.W.U.).
s
e6.g.,
J.
T.
Stratford
ct
Son
Ltd.
V.
Lindley
[1965]
A.C.
269.
4
.
.
.
I
must emphasise that although the matter has been
the
subject
of
argument extending over many days,
I
am dealing with
en
interlocutory
applimtion and
my
findings of fact
a$
conclusions
of
law depending on the
Ixts can be
no
more than provisional
6
Cf.
Spring
v.
N.A.S.D.S.
[l956]
1
W.L.R. 585, defining
endogous
arrange-
ments
''
as being
B
morally binding code of conduct mede between persons
of
similar
views
":
per
Sir Leonard
Stone
V.4.
et
.
592,
i.e.,
non-contractual.
See Wedderburn.
Caws
and
Materials
on
Labour
law,
p.
967
et
seq.
:
[1068]
3
All E.R. at
48.
6
[1968]
3
All E.R. at 51.
SEIT.
1968
NOTES
OF
CASES
557
Mr.
Chapman, manager of the Imperial Hotel, was reported in
the local Press to have said
"
that the Hotel Association was deter-
mined to stamp out
"
the intervention of the defendant union into
the hotel trade. The inflamed branch members saw this as an
attempt by
Mr.
Chapman
to
66
bring the union into discredit
"
and
to involve the management of the Imperial Hotel in the dispute.l
Pickets were immediately posted at the Imperial Hotel.
The plaintiff brought an action for inducing breach of contract,
interference with contract, conspiracy and intimidation. The court
granted injunctions in relation to inducing breach of contract and
picketing at the Imperial Hotel
;
the learned judge dismissed one
claim for intimidation and found it unnecessary to make any finding
in relation to alternative claims of conspiracy and intimidation.
Space permits only a limited discussion of some of the issues
raised
in
the judgment of Stamp
J.
1.
Inducing breach
of
contract
The Imperial Hotel had an existing contract with
Esso
Petroleum
Co.
Ltd. for the supply of oil.
Esso
was informed of the dispute and
their
Mr.
Bevan pointed out to
Mr.
Chapman that there was
no
point
in the Imperial Hotel ordering a fuel delivery under the contract
which would be prevented from being delivered.s Stamp
J.
was
satisfied that the Imperial Hotel was forced to obtain
its
oil
supplies from
a
more expensive source, Alternative Fuels Ltd.@
The contract
lo
between
Esso
and the Imperial Hotel contained
a
force majeure
clause.'l The defendants pleaded, and Stamp
J.
accepted, that the circumstances
of
the
force majeure
clause had
existed and that the effect of the clause prevented there being any
breach of contract between
Esso
and the plaintiff company. The
learned judge then said
:
"
How then,
so
the defendants' argument runs, can the
defendants have induced a breach of
it?
To induce a man to
do an act which under a contract he is entitled to do does not
7
Stamp
J.
was
not
satisfied that the union offici,als had properly understood
Mr.
Chapman's remarks:
[1968]
3
All
E.R.
53.
*
"Nearly all oil tanker drivers are members of the defendant
union
and
.
.
.
[they] are not prepared to pass
a
picket or
to
make deliveries
to
premises the
rnauagement of which
is
engaged in an official dispute with the defendant
union
":
[lSGR]
3
All
E.R.
at
61.
9
I'
Whose drivers,
I
gather, are not members of the defendant union
":
[1968]
3 All
E.R.
54.
10
For
details of which see
[1968]
8
All E.R. at
57.
11
C1.
10,
which provided that
"
Neither party ahall be liable for any failure to
fulfil any term of this agreement if fulfilment is delayed, hindered
or
prevented
by any circumstance whatever which
is
not within their immediate control,
includin
.
.
.
strikes, lockouts, labour disputes of any kind
. .
.
(or the threat
of
sppre%ension
of
any
of
the foregoing events)
. . .
In the event
of
an
of
the foregoin circumstances arising,
Esso
shall be et liberty
to
withhold, rezuce
or
suspend $cliveries
.
. .
to such extent
n8
Easo
in
their
absolute discretion
may
think fit and shall in
no
case be bound
to
purchase
or
arrange for
deliveries
from
any other suppliers
":
[1968]
3
All E.R. at pp. 57-58.
558
THE
MODERN
LAW
REVIEW
\-or..
31
induce a breach and no tort is thereby committed.
As
a logical
proposition there can, in my view, be no answer to
it.”
l2
For
Stamp
J.
this was, however, an oversimplification of the prob-
lem and he proceeded to extend tortious liability to interference
with contract under the guise of considering
the precise nature of
the tort described as inducing
or
procuring a breach of contract.”
l3
Stamp
J.
saw the essence
of
the tort as involving a
procure-
ment of the violation of a right.”
l4
With respect one would not
dissent from this analysis but only inquire what is meant by
a
right
)’
in this context
:
‘‘
. .
.
prior to February
8,
1968,
the plaintiff had the right,
until the happening of one of the events speci5ed in the
force
majeure
clause, to delivery of oil by
Esso
within a reasonable
time after a request for delivery seems clear. On February
8
that right ceased to be exercisable
or
was destroyed
or
was
suspended; the plaintiff company no longer had the right to
delivery within a reasonable time after an order for delivery.
If
the question then be asked: How did
it
come about that the
plaintiff’s right to delivery conferred upon them by the contract
ceased to be a right to immediate delivery, the answer must, in
my judgment, be by the effect of the action of the union officials
on that day; and that action having continued after notice of
the terms of the contract had been given there was, in my
judgment, a tortious interference with the plaintiff’s right
under the contract.”
It
is respectfully submitted that the legal rights
of
the plaintiff
company can only be discovered by reference to the contract in
question. The
force mnjeure
clause, previously agreed between
the parties, operated to deprive the plaintiff company of a right to
performance by
Esso.
The only remaining explanation is that of
a right in the plaintiff
to
be protected against mere interference in
business relations. But the learned judge purported to base his judg-
ment on the tort of inducing breach of contract. Two authorities are
cited for the proposition that although as between the parties to the
contract there could be
no
action, there was nothing to prevent an
action between one of the parties and an outsider in tort,
Le.,
situa-
tions in which the rights of the plaintiff are to be discovered
beyond
the relationship between the contracting parties.15*
12
[I9681
3
All
E.R.
at
58.
18
Ibid.
14
[1!lV3]
3
All
E.R.
at
59;
citing
Quinn
V.
Leafhem
[NO11
A.C.
495
at
p.
510,
and
Jasperson
v.
Dominion
Tobacco
Go.
[1923]
A.C.
709
at p.
712
(P.C.)
15
1[1968]
3
All
E.R.
59.
l5aIt
is perhaps worth applying the analysis
of
the learned judge to the follo-ing
fact situation: Suppose
X
is
employed by
Y
undm a contract
of
fiervk
which provides for termination
of
the agreement by
an
agreed period
of
notice on either side.
If
Z
indnced
X,
hy
an offer
of
higher wages, to terminate
his contraot lawfully
by
giving the requiai? notic:
could
it pomibl
be
Raid
that
7;
had tortiously interfered with
Y’s
to employ
X?
Pn
a free
economy labour-market that would be a very curious result.
right
SEPT.
1968
NOTES
OF
CASES
559
In
Winsmore
v.
Greenbank
l6
a wife left her husband and lived
apart from him, during which time a large fortune was left for her
personal use. The defendant,
in
order to prevent the husband from
benefiting from either the fortune
or
from
a
reconciliation, enticed
the wife away.
It
was held that the action
on
the case for entice-
ment succeeded. Stamp
J.
concluded that although the wife was
not liable to be sued the husband could still sue the enticer in tort,
likewise the Imperial Hotel could sue the defendants even though it
could not sue
Esso.
It
is respectfully submitted that the reasoning
of the learned judge is open to criticism. The husband could not, of
course, sue the wife but that was because of the special nature of
the marriage relationship.
In
both procedural and substantive
terms such an action was inconceivable.‘6a One has only to examine
Lumley
v.
Gye
to discern the true nature of
Winsmore
v.
Green-
bank
lo:
‘‘
. . .
it
was
prima facie
an unlawful act
of
the wife to
live away from the husband; and
it
was unlawful, and therefore
tortious, in the defendant to procure and persuade her to do an
unlawful act; and, as the damage to the plaintiff was occasioned
thereby, an action
on
the case was maintainable.” Thus the
analogy fails once
it
is appreciated that as between
Esso
and the
Imperial Hotel there was
no
breach,
or,
to use more colourful
language,
no
unlawfulness.1p
The other case referred to was
National Phonograph Co. Ltd.
v.
Edison-Bell Consolidated Phonograph Co. Ltd.’O
In that case the
defendants were
on
the plaintiff manufacturer’s stop-list and by
a
fraudulent misrepresentation
induced a wholesaler to sell them some
of
the plaintiff’s products.
It
may be that as between the manu-
facturers and the wholesalers there was
no
breach of contract,21 yet
the plaintiff succeeded. That was clearly a case of an intentional
unlawful act aimed at and causing damage to the plaintiff. That
16
(1745)
Willes
577; 125
E.R.
1330.
161)
See,
e.g.,
Blackstone’s
Commentarie8,
i,
442,
demonstrating the legal unity of
the husband and wife.
17
(1853)
2
E.
&
B.
216;
118
E.R.
749.
Part
at
the
ratb
decidendi
of
Lumley
v.
Gye
itself
W&E
the
fact
that Misa Wagner broke her contract with Lumley.
18
Zbid.
&t
p.
238;
p.
757
(per
Wightman
J.);
see also at pp.
232-233;
p.
755
(Erle
J.):
at pp.
‘249-250;
p.
761
(Coledd e J.). Presumably the learned
judges had in mind the then prevalent phiksophy of
Re
Cochraw
(1840)
8
Dowl.
690
demonstrating the wife’s legal duties towards the husband and his
dominating influence over her. The decision has since been overruled:
R.
v.
Jackson
fl8011 1
Q.B.
671
(C.A.).
Today
the remedy
of
the husband against
the wife would be
a
petition for restitution
of
conjugal
rights. Alternatively,
until
1857,
the husband could obtain matrimonial relief against
a
deserting
wife in the ecclesiastical court. The punishment for failure to return to the
deserted spouse
in
1745
could have been excommunication;
in
1813
it
became
contempt and since
1884
there have been
no
direct sanctions.
See
Bromley’s
Family
Law
(2nd ed.), p.
150-152, 156157.
I
am indebted to Mr. Craig
Mvrdoch for discussion o?this problem.
19
Rookes
V.
Barnard
[1964]
A.C.
1129.
But see now
Morgan
v.
Fry,
The
Times,
June
28,
1968.
20
[l908]
1
Ch.
335
at
pp.
368-369
(per
Kennedy
L.J.).
21
See Kennedy L.J.,
ibid.
at p.
968,
suggesting, rather strangely, that the
innocence of the wholesalers prevented them from being in breach.
560
THE
MODERN
LAW
REVIEW
VOL.
81
there are authorities to support such
a
finding is not disputed,
indeed recent developments and commentaries point in that direc-
tion.2a There is, however,
a
very definite line to be drawn between
lawful and unlawful interference; whilst the latter may be action-
able the former, on the highest authority, is not.2s
At
a
later stage
24
the learned judge concludes that there is
cc
another ground
which entitles the plaintiff company to an
injunction. He says that
‘‘
informing
the tanker drivers of a
dispute at the Imperial Hotel amounted in effect to an
cc
induce-
ment
to the drivers to break their employment ~ontracts.~~
cc
Here the breach, though the indirect result
of
influence, was its
almost inevitable result, the pressing
of
the button was as a practical
matter bound to cause the explosion.”
It
is clear that Stamp
J.
is
still referring to the tort
of
inducing breach of contract,
for
he
uses the language of
Thomson
v.
Dealcin,2a
albeit in
a
confusing
fashion, and cites
Daily Mirror Newspapers
Ltd.
v.
Gardner
27
and
the
Squure
Grip
case.2e
If
this was meant as
a
reference to the tort
of inducing breach of contract by indirect, unlawful means
it
may
be relevant to decide whether
or
not a trade dispute existed.29
22
Strcct on Torts
(4th
ecl.),
Chap.
19,
pp. 355-369; Dworkin and
Harm!:
The
Beandesert Decision-Raising the Ghost of the Action
upon
the Case (1967)
40
A.L.J.
296,
esp. at pp.
302-306
and pp. 347-351.
23
Allen
v.
Flood
[1898] A.C.
1,
especially the judgmFFts of
Lords
Watson,
Herschel1 and Davey finall exploding notions of
a
tort
of
malice.”
See
Bowen
v.
Hall
(1881)
6
Q.Z.D.
533
(C.A.)
and
Temperton
v.
Russell
[1893]
1
Q.B.
715.
It
is
submitted that
Allen
v.
Flood
(supra)
is still good law despite
the remarks
of
Lord Devlin in
Rookee
v.
Barnard
[1964]
A.C.
1129
at
pp.
1216-1216.
Cj.
Royal
Commission
on Trade Unions and Employers’ Asso-
ciations
1965-19G8
(Cmnd. 3623) at paras.
895-900.
Quaere
whether
8.
3. limb
two, of the
1906
Act now
has
any meaning after
Rookes
v.
Barnard (Supra).
24
[I9681
3
A11
E.R.
at
60.
25
If
that is a correct
findlng,
aud certainly tho cvidence on this point is very
meagre, there
would
doubtless be
a
sutricient element
of
unlawfulness
for
the
tort
of
interference discussed above. But
see
now
Morgan
V.
Fry,
thc Times,
June
28,
1968
(C.A.)
26
“521
Ch. 646
(C.A.).
It is curious that although this binding Court
of
Appeal
authority was fully argued before him Stamp
J.
at no time refers
to
it in
the
course
of
his judgment. Tlic
rilles
of precedent are clearly figments of
academic imagination.
27
,[1968]
2
W.L.R.
1239
(C.A.); Wedderburn (1968) 31
M.L.R.
440.
23
Sqttare
Grip
Reinforcernewt Ltd.
v.
Macdonald,
1968
S.L.T.
65
(Outer
House)
;
Wedderburn
(1968)
31
M.L.R.
550.
29
As
between
ESRO
and
the defendants,
s.
3,
limb one, of the
1906
Traile DispnteR
Act would then protect the defendants.
It
is suggested that in the climate of
current judicial opinion
the
wording
of
the section would not protect
the
defendants in
a
Torquay Hotel situation,
i.e.,
where the plaintiff
was
a person
other than the employer (see,
e.g.,
J.
T. Stratford
d
Son
Ltd.
V.
Lindley
[1965]
A.C.
269
at p. 336,
par
Lord Pearce, and
cf.
Thomson
v.
Deakin
[1952]
Ch.
646
at
p. 687,
per
Lord Evershed
M.R.).
The element of unlawfulness required
for
the tort would not have been extracted from the indircct means. In policy
terms this
is
a most unrealistic and absurd conclnsion. What is, in
effect,
lawful for
Ronie
piirpoqcs is, at the same time, unlawful
for
others.
See
now
the rc.ntnrkfi
of
T,nrrl
Drnning
M.R.
in
Morgan
v.
Pry
in C.A.
(89
yet
un-
rcportcd) rcjerting the view
of
Lord
Pcnrre in
J.
T.
Slratford
ie
Son
Ltd.
V.
I,tndl(y
(supra).
SKIT.
1969
NOTES
OF
CASES
561
The terms of the injunction granted included
a
reference
to
con-
tracts to be made in the future by the plaintiff company with oil
suppliers.so
2.
Trade dispute
s1
Stamp
J.
was not satisfied that
on
the evidence before the court
there was a trade dispute either at the Torbay
or
Imperial Hotel.
Despite the width of language in the
1906
definition the matter
appeared to the judge
to
resolve itself as a question of fact in each
case; not so much as to the construction of the section but as to the
motives of the
defendant^.^^
There was only scanty evidence that
employees at the Torbay were dissatisfied with their union repre-
sentation
33
but there was evidence of inter-union ri~alry.~'
The
"
primary and overriding purpose of the defendants was the
advancement of the union's power and prestige
in
rivalry with
another union." But if at the same time the union could have
shown that
it
('
was making a genuine claim for bargaining status
"
that might have produced a different result.s5 Stamp
J.
was even
less impressed that there was a dispute at the Imperial Hotel.3e
8.
Other matters
Stamp
J.
accepted the submissions of counsel for the defen-
dant that picketing did not always constitute a nuisance.37 There
must be a
6c
substantial interference
"
with the use and enjoyment
of property before nuisance is committed.a8 The plaintiffs failed to
30
[I9683
3
All
E.R.
at
SO.
In
iesuing this part
of
the injunction Stamp
J.
considered
a
published statement b the defendant Pedley to be important:
*'
the hotels won't know whet hit tiem. The town is going
to
blow up, we
shall get oil supplies cut
off
at every hotel in the area
. .
.
we are quite
prepared
to
put
an
embargo
on
any hotelier who intervenes." It is intereeting
to
contrast the discumion
of
Jenkins
L.J.
in
Thomson
v.
Deakin
[lo521 Ch.
646
at pp.
607-698.
The
"
general exhortation may be achieved by perfectly
lawful means despite the language employed.
31
Defined in the Trade Dispute8 Act
1906,
8.
6
(3),
as
"any
dispute between
employers
and
workmen,
or
between workmen and workmen, which is
con-
nected with the employment or non-employment,
or
the terms
of
thc emp!oy-
ment,
or
with the conditions
of
labour,
of
any
person.
.
.
."
32
[1968]
3
All E.R.,at
50.
33
[19G8]
3
All E.R. at
KG.
34
Ibid.
35
Ibid.
Thus the presence
of
an
element
of
inter-union rivalry will not
per
se
prevent the findin
of
the existence
of
cl
trade dispute within thi section;
cf.
White
v.
Riley
[1%1]
1
Ch.
1.
It has been suggested that inter-union rivalry
could
not
be
B
trade dkpute after
J.
T.
Stratford
d
Son Ltd.
v.
Lindlq
[l0G5] A.C.
269:
Street on Torts
(4th
ed.)
at p.
348.
Cf.
the rather limited
discussion
of
this important question
in
Royal Commission on Trade
Unions
and Employers' Associations
(Cmnd.
3623),
paras.
816-819.
36
The judge may have been influenced by the fact that clt
no
time did
the
defendant trade union have
any
members in the employment
of
the plaintiff
company: ~[l968]
3
All
E.R..
at
48.
37
There being
a
finding
of
no
trade dispute,
8.
2
of
the
1906
Act had no applica-
tion.
38
J.
Lyons
ct
Sons
v.
Wilkina
[1899]
1
Ch.
255;
Ward
Lock
d
Co.
Ltd.
v.
Operative Printers,
ctc.
(1906)
22
T.L.R.
327.
562
THE
MODERN LAW
REVIEW
VOL.
31
make out a prima facie case of such a degree of interference but the
judge had
no
hesitation in issuing an injunction
quia timet.
Although section
4
of the
1906
Act was argued at length before
the court
on
the question of whether an injunction could issue to
restrain a threatened tort by a trade union
38
the judge followed
Bodes
8
Sons
v.
Lindley
"O
almost without comment,"' thus allow-
ing the injunction.
It
may be that yet another trade union epic
will reach the House of Lords and perhaps there will be some more
legislation; whatever else, the potential litigants surely have the
right to clarification of the law both in legal and policy terms.4z
A.
S.
GRABINEB.
MORE
CONVULSIONS
IN
FAMILY
PROPERTY
LAW
IN
Appieton
v.
Appleton
Lord Denning
M.R.,
with the concurrence
of Pearson and Davies
L.JJ.,
introduced into English law a principle
under which in given circumstances one spouse might gain a
proprietary interest in a house belonging to the other, even in the
absence of
an
express agreement, simply by working
or
spending
money upon it. This idea was vigorously condemned by Lord
Upjohn in
National Provincial Bank
v.
Ainsworthya
although other
members of the court did not comment directly upon
it.
Later in
another case before the Court
of
Appeal,
Jansen
v.
J~ngen,~
Lord Denning held
his
ground but did not succeed in carrying
the rest of the court with
him.
Now separate Divisions of the
Court of Appeal have returned to this problem in the cases of
Pettitt
v.
Pettitt
"
and
Button
v.
Button
and, delivering judgment
on
consecutive days, have reached curiously dissimilar conclusions.
Comparison
of
the two cases provides a fascinating study, but most
important is the fact that, while reluctantly following
Appleton,
the court in
Pettitt
granted leave to appeal and thus passed the
whole matter up to the House of Lords.
The relevant facts
of
both cases were straightforward. In
Pettitt,
the matrimonial home was in the wife's name and had been bought
30
See Citrine's
Trade Union
Law
(3rd
ed.),
M.
A.
Hiokling at
pp.
693-595.
40
[1965]
1
Lloyd's
Rep.
207.
41
He is surprisingly rahher timorous
at
this point:
"
It would,
I
think, be
undesirable, in view particularly
of
the conflicting dicta
of
hi her authority,
for
a
judge
of
first
instance
on
an
interlocutory application,/o
io
otherwise th&n
follow
the deckion
of
Mr. Justice Atkinson. This
I
do
:
[1968]
3
All
E.R.
at 63.
42
Cf.
the discussion
of
Lord Reid though in
a
different context
:
fhisse
Atlantiqve
Socigtd
d'drmement Maritime S.A.
V.
N.V.
Rotterdywche
Kolen
Centrale
[l966]
2
All
E.R.
61
:t p. 76.
And
see Eric
Wighgm
But would the judge8
him
it upaide
down?
The
Times,
June
18,
1968,
p.
&.
1
[1965]
1
All
E.R.
44.
2
[1965]
2
All
E.R.
47%
st
p.
487D.
3
[1965]
3
A11
E.R.
363.
4
[19G8]
1
All
E.R.
1053.
6
[1968]
1
All
E.R.
1064.
SEPT.
1968
NOTES
OF
CASES 563
by her with the proceeds of sale of a house left to her by her grand-
m0ther.O The husband applied by summons under section
17
of the
Married Women’s Property Act
1882
for
a
declaration that, as a
result of the work which he had done on the house, including making
cupboards, putting up shelves, redecoration and laying out the
garden, the value of the house had increased and that he had thereby
acquired a proprietary interest in the house
or
the proceeds of
sale.
He
claimed an interest of
€1,000
as the amount by which
the value of the house had been enhanced by his work. At first
instance the Registrar held that he had
a
proprietary interest of
2300
in the house
or
its proceeds, and this decision was upheld by
the Court of Appeal (Willmer, Russell and Danckwerts
L.JJ.).
In
Button,
the home was in the husband’s name and he had provided
the deposit and mortgage repayments: in a similar summons under
section
17,
the wife sought a declaration that she was beneficially
interested in one-half of the proceeds of sale as
a
result of the work
which she had done in redecorating the house and in the garden.
Reversing the decision of the Registrar, the Court of Appeal (Lord
Denning
M.R.,
Danckwerts and Widgery
L.JJ.)
held that the wife
had acquired no proprietary interest.
The court in
Pettitt
unanimously, but reluctantly, held that it
was bound by
Appleton
(which it considered indistinguishable on
the facts), all three members of the court regarding that decision a‘s
an error corrigible only by the House of Lords. Discussing the case
on principle, Willmer
L.J.
gave three reasons why he would not
have upheld the husband’s claim had the matter been free of
authority. First, the value of the rent-free accommodation that he
had enjoyed outweighed the value of any work done
on
the house
by the husband; secondly, the work done was the sort of work
which any reasonable husband in the circumstances would either
have done himself
or
paid for; and, thirdly, because the logical
consequence of the husband’s contention was that
the moment
he puts up a shelf
or
touches up a window-sill
it
would follow that
he had started to acquire a beneficial interest in the property.”
However when Lord Denning delivered judgment in
Button
on the
following day he explained that,
in the light
[of
the Court of
Appeal’s] observations [in
Pettitt],”
the position seemed to be
that a spouse only acquired a proprietary interest in the matrimonial
home by virtue
of
work
of a kind which normally a contractor
is
employed to do?’
On this basis he was able to distinguish the
case from
Appleton, Jansen
and
Pettitt
and reject the wife’s claim
6
It
appears
from
the judgment
of
Rvssell
L.J.
that the matrimonial home
was
in fact paid
for
out
of
a joint account, then already overdrawn, and into
which the money rereived
as
a result
of
the Bale
of
the house left
by
the grand-
mother was later paid; see
[1968]
1
All
E.R.
1053
at
p.
1061.
However, no
member
of
the
mirt
appears
to
have considered that this tranfiaction was
relevan’t in determining the title to the home.
7
[1065]
1
All
E.R.
44.
8
[lWR]
1
All
E.R.
1053
at
p.
1057E-I.
[1968]
1
All
E.R.
1064
at
pp.
1066E-1067A
564
THE
MODERN
LAW
REVIEW
VOL.
31
since the work was the “ordinary kind of work which a husband
or
wife may do in the matrimonial home without giving the other
a share
or
interest in it.”
lo
Several points need to be made about Lord Denning’s judgment.
First, the part just quoted sedms to make
no
sense at all,
for
the
issue is whether the spouse who does the work acquires a share
or
interest, whereas the passage suggests that the point is whether
(‘
the other
spouse acquires the interest
in
the matrimonial home.
This is surely a
lapsus styli.
Secondly, there is
no
mention in
Pettitt
of
the
contractor’s work
test which the Master of the Rolls
purports to derive from that case,
nor
do any of the other authorities
which he cites support such a distinction.”
It
is also noteworthy that
Lord Denning was able
to
approve the decisions in
Appleton
and
Pettitt because
the work done by the husbands in those cases was
work for which a skilled contractor would normally be employed,
whereas in
Pettitt
Willmer
L.J.
felt bound by
Appleton
to allow
the husband’s claim
despite
the fact that
it
was the sort that a
reasonable husband would either do himself
or
would pay
a
con-
tractor to do. The novel test which Lord Denning has espoused may
be seen as an attempt to salvage something from the probable
wreck of his decision in
Appleton
in
the light
of
the views expressed
in
Ainsworth
and
Pettitt.
Whatever the origins of the
test,
it
is
submitted that
it
would be extremely difficult
to
apply
in
practice
and of little relevance to a solution of the problem based
on
any
concepts
known
to
this branch
of
the 1aw.la
It
now remains to be seen how the House of
Lords
will resolve
these issues in the
Pettitt
appeal. There is
no
doubt that the original
theoretical basis for the decision
in
Appleton
has been eaten away
by the interpretation placed
on
section
17
by a majority of the
10
Ibid.
at p.
1067E.
11
Lard
Denning
may possibly have derived the new test from the statement by
Willmer
L.J.
in
Pettitt
to
the effect that work done by the husband in that case
was
the
sort
of
work which a reasonable spouse,
in
those circumstances,
might have been expeoted
to
do for himself and to pay
for.
Clearly,
these
teats are by
no
means identical,
for
on
Lord Denning’s test
a
husband who
made kitchen cupboards and a fitted wardrobe would scquire
a
pro netar
interest because the work was skilled contractor’s work, but this mi$k we6
be classified as work that a reasonable husband, living rent-free in
his
wife’s
house,
might do and pay
for.
la
Another perplexing aspect
is
that Danckwerts
L.J.,
who gave judgments
in
both
cases,
was able
to
approve the reasonin
of
both Willmer
L.J.
and Tmrd
Denning. For it ie difficult to
see
how
Wilker
L.J.
could have reached the
same result
as
the Court of Appeal in
Button,
having held in Pettitt that
the
court w&s bound by
Appleton
to
give the
spouse
an interest despite the
fa&
that the work was the sort which
e
reasonable
spouse
in
the clrcumstances
would do or pay for. Furthermore,
in
his judgment
in
PetOtt
DanckweFts
L.J.
states that the law more readily
uses
the \resumption of advancement
when a husband prima facie confers a benefit
on
is
wife
thm
oice
versa;
in
Button,
however, Lord Denning states that exactly the atme rinciples apply,
whether the matrimonial home is owned by the husband or
&e
wife, and
in
his
concurring judgment lhnckwerts
L.J.
gives
no
indication
of
dissent from
this proposition.
SEW.
1968
NOTES
OF
CASES
565
House of Lords in
Ain~worth.'~
The view was there expressed that
the section is merely procedural and does not allow the court to
vary existing rights
lr;
and Lord Denning himself has subsequently
submitted to this interpretation.16 Bearing this in mind, the
con-
ceptual foundation of the spouse's property right reasserted in
Pettitt
and
Button
is far from clear. Perhaps the most satisfactory
answer is the resulting trust-a solution suggested by the judgment
of Willmer
L.J.
in
Pettitt.
Noting that the mere assertion of work
done was inadequate to establish a claim, he added:
l0
''
In the absence of any agreement this assertion could be
justified only
on
the basis that the court ought to impute to
the parties some common intention that the husband was
to
acquire an interest
in
the property commensurate with the
value of the work which he did."
Russell
L.J.
was
also
disposed to disallow the husband's claim
on
account of the presumption of advancement, which is of course
often used to exclude the operation of a resulting trust."
The unreaIity of attempting to impute an intention that the
parties never had can be avoided by employing the reasonable
man. Thus one of the objections raised by Willmer L.J.
to
the re-
spondent's claim was that the work done by the husband was
no
more than a reasonable husband would have done, whilst living
rent-free in the matrimonial home owned by the wife.
On
this
ground,
it
should be more difficult for a husband
to
acquire
a
proprietary interest in
his
wife's house than vice versa, thus
allowing for the different
view
taken by the law of gifts between
spouses reflected by the application of the presumption of advance-
ment to gifts by husband to wife but not by wife to husband.18
It
is submitted that the resulting trust provides a solution consistent
with familiar principles and explains the emphasis placed in the
Pettitt
judgments
on
the parties' imputed intentions. It is suggested
13
[1965]
2
All
B.R. 472
at p.
477
(Lord
Hodson),
at
pp.
486-487
(Lord
Upjohn)
and at pp.
493-404
(Lord Wilberforce).
Of
course the general problem in
Apple-
ton
and
Pettitt
is
not
confined
to
oases where only
one
party has
a
property
interest. It can equally well arise where
one
spouse
does
work
on
property
to
which they are joint1 entitled; see an unrepoded case,
Short
v.
Short
May
11, 1967,
in whi&
the
Court
of
Appeal allowed
'a
sum
to the husband
for work he had
done
on
property to which they were
j&ntly
enkitled. But
where this is the cam, the court will
usually
be able
to
adjust the existing
ri
hks
by using
its
powers under
8.
17
of
the Matrimonial Causes Act
1965.
w&ch expressly permits this.
14
Contrary to the interpretation placed
on
the
section by Lord Denning
in
the
past;
e.g.,
in
Hine
v.
Hine
[1962]
3
All
E.R. 345.
15
In
Bedsm
v.
Bedson
[1%5]
3
All
E.R.
307
at
p.
311.
See also statement
of
Diplock
L.J.
in
Ulrich
v.
Ulrich
[1W]
1
All
E.R.
67
at pp.
71-73.
[1968]
1
All
E.R.
1053
at
p.
1057E.
17
Ibid.
at p.
1062C.
1s
Although the courts have recently come
to
the view that the presumption
of
advancement ma be very easily rebutted where the asset concerned is for
the joint use
of
tze
parties.
See the remarks
of
Parker
L.-T.
in
Silve?
v.
Silocr
[1958]
1
W.L.R.
259
at pp.
264-265:
also
Fish
v.
Fish
The Times,
Novemlmr
IG,
1M5;
Fennel2
v.
PcnncI2
(1966)
110
8.J.
707;
and the remarks
of
Diplock
L.J.
in
Ulrich
v.
Uhich
[1968]
1
All
E.R.
67.
566
THE
MODERN
LAW REVIEW
VOL.
31
that two relevant factors to be considered in determining what work
is reasonable are the value of the work and the extent to which
the work could be described as maintenance rather than improve-
ments of the home. Although these criteria may be no more precise
than the
contractor’s work
test, they are relevant to the
establishment of a right based on a familiar concept.
The imputed intention of the parties would also be relevant
if
the proprietary right were based in contract. This was the ground
upon which Davies
L.J.
decided
Jansen
v.
Junsen
1°;
the analysis
presumably is that in return for the work done
or
paid
for
by the
spouse, the spouse who
owns
the house agrees to hold a proportion
of the proceeds of sale upon trust for the other. But there arc two
limitations
to
this solution. First, the court is likely to require
exceptional circumstances from which to infer the existence of
such a contract. Secondly, in the absence of a quite unambiguous
commercial arrangement it seems inelegant to import the concept
of contract into domestic relationships as a means
of
reaching a
sensible result.
Once a proprietary right has been established, either on the
basis of a resulting trust
or
a contract, the court will usually enjoy
considerable freedom to mould the proprietary rights to do justice
to the parties on account
of
the very wide interpretation of the word
settlement
contained in section
17
of the Matrimonial Causes
Act
1905.”
Once a settlement for these purposes exists, the court
may adjust the respective rights as it considers fair in the circum-
stances.
In addition to an interest in the proceeds of sale,
a
spouse who
does
or
pays
for
work
on
the matrimonial home owned by the
other may also acquire
a
right
to
remain in possession against
that spouse and those deriving title therefrom. This would be
a
right less than the one established in
Dillzuyn
v.
Llewellyn
a1
which
the courts are unlikely
to
genera1ise,22 but would be more analogous
to the one recognised in Inwards
v.
Baker.2s
However, the circum-
stances in which the court would find the necessary element of
reliance without also having found the requirements of a resulting
trust would be very rare. The fact of work
or
financial outlay by one
spouse on the house of the other may also be relevant when the
court is considering applications under section
1
of the Matrimonial
Homes Act
1907.
Hearing such applications, the court
is
required
to have regard
to the conduct of the spouses in relation to each
other
and otherwise.”
24
Work
done by the spouse with no pro-
19
[1%5]
3
All
E.R.
363
st
p.
367.
20
In
cases
such
&a
Cook
V.
Cook
[1962]
2
All
E.R.
811.
21
(1862)
4
Da
O.F.
&
J.
517.
22
See
the
remarks
of
Lord
Hodson
in
Ainsworth
[1965] 2
All
E.R.
472
at
p.
479.
23
[lo661 1
All
E.R.
446.
24
8.
1 (3).
SEW.
19G8
NOTES
OF
CASE5
567
prietary interest would surely be relevant in determining the nature
of the order made.26
On
the whole the courts have recently been reluctant to take
the initiative in adapting the general law of property to the peculiar
and changing needs of the ordinary family. The lead taken by Lord
Denning in cases like
Hoddinott
v.
Hoddinott,26
and in the whole
range of cases in which he sought to develop the deserted wife’s
equity, was not followed by other members of the judiciary; instead
such statutes as the Married Women’s Property Act
1964
and the
Matrimonial Homes
Act
1967
had to be passed
to
give legislative
recognition to the very necessary changes which he was urging the
judiciary to adopt. The confrontation over
Appleton
is simply
another stage in this struggle. Whatever view the House of Lords
chooses to adopt in the
Pettitt
appeal,
it
must be urged that the
time for piecemeal reform of the law of family property has passed.
The problem which has arisen again in these two cases can only
ultimately be resolved within a new general framework of family
property law which we must hope that the Law Commission will
shortly provide.
J.
M.
EVANS.
SIMON
ROBERTS.
GWEIEB
AND
THE
LAW
THE decision of the Race Relations Board that gypsies are pro-
tected by the Race Relations Act
1085
has been eriticised by
Dr.
Glyn Daniel, who writes
:
‘(
There is
no
such thing as
the Romany race
. . .
the gypsies
are an ethnic group, not a race: they were the Rom
of
India
who travelled to the western world in the Middle Ages pre-
serving their nomadic habits, their ancient crafts as tinkers,
and, naturally, as they did not outbreed, their racial charac-
teristics
. .
.
and their language.”
*
However, the Board’s decision that publicans
in
Kent and
Surrey who refused to serve gypsies were committing an offence
under the Act, far from being proved
nonsense
’)
(as Dr. Daniel
contends in another part
of
his Editorial), is reinforced by his own
25
Paradoxically, where
both
spouses have
a
proprietary interest
in
the home,
and
the
marriage breaks
down,
it may
be
much
more
difficult
for
one to
delay
a
sale against the wishes
of
the other.
In
hearing applications under
8.
30
of
the
Law
of
Property Act
19’25,
the judges in the Chancery DiviRion
seem to taka the
view
that
once
the marriage
be
broken down the purpose
for
which the home was purchased has
come
to an end, and
a
saie must be
ordered
accordingly,
irrespeotive
of
the condvct
of
the parties; see
Jones
v.
Challenger
[1960]
1
All
E.R.
785,
Rawlings
V.
R~wlings
[1964]
2
All
E.R.
804
and
Re
a
Debtor,
ex
p.
The Trustee
v.
Solomon
[l966]
3
All
E.R.
255;
also
(1967)
30 M.L.R.
919.
The
Times,
September
1,
1067.
Editorial,
Antiquity,
XLI,
1967.
28
rig401
2
K.B.
406.
VOL.
31
568
THE
MODERN
LAW REVIEW
definition quoted above. The publicans, incidentally, claimed that
they discriminated on grounds of smell only; but although recog-
nising such grounds as a valid defence, the Board rejected
it
in this
particular claim.
The relevant words of the Race Relations Act
1965
are
:
Section
1
(1):
"
It
shall be unlawful for any person, being the
proprietor
or
manager of
or
employed for the purposes of
any place of public resort to which this section applies, to
practise discrimination on the ground of colour, race,
or
ethnic
or
national origins against persons seeking access to
or
facilities
or
services at that place."
The description of gypsies as
"
an ethnic group "-people of the
same ethnic
or
national origins-brings them fairly and squarely
within the words of this section; and
so,
the decision of the Board
to this effect-whether
or
not it also used the dictionary definition
of
"
a member of the Romany race "-is surely unimpeachable.
If
the Board is correct, gypsies are thus protected from private
acts of discrimination, within the scope
of
the Race Relations Act;
but they are not yet protected from parliamentary discrimination
under legislation regulating the use
of
public places not covered by
that Act (such as the highway) and imposing liability upon others
according to their activities, but upon gypsies only
so
long as they
are
''
gypsies." The need for a legal definition of the word
''
gypsy
"
thus becomes pressing. Unfortunately the courts and the Race
Relations Board do not agree in their definitions.
The Queen's Bench Divisional Court had cause to examine this
word in the case of
Mills
V.
Coope~.~
In February
1966,
a magis-
trates' court dismissed an information against Mr. Cooper charging
that in December
1965
he, being a gypsy, did without lawful
authority
or
excuse encamp on a highway, contrary to section
127
of the Highways Act
1959.
The magistrates upheld the submission of
no case
to
answer on the ground that they were not satisfied that
Mr.
Cooper was a gypsy. In May
1967
a second information was
preferred alleging a similar offence in March
1966.
It
was submitted
on Mr. Cooper's behalf that the question of whether
or
not he was
a gypsy had been decided by the court on the earlier occasion as
a
separate issue, and that an issue estoppel arose which debarred the
magistrates from reopening the question and hearing the second in-
formation. The magistrates, unsure that the doctrine of issue
estoppel applied in criminal cases, rejected this contention, but
dismissed the information on the ground that it was oppressive and
an abuse of the process
of
the court. The prosecution appealed to
the Queen's Bench Divisional Court.
Section
127
of the Highways Act
1959
says:
"
If,
without lawful
authority
or
excuse
. . .
(c)
a hawker
or
other itinerant trader
or
a
gipsy pitches a
booth,
stall
or
stand,
or
encamps, on a highway,
he shall be guilty of an offence
.
. .
"
3
[1!)67]
2
A11
E.R.
100.
SEIT.
1968
NOTES
OF
CASES 569
The Divisional Court found
it
‘(
difficult to think that Parliament
intended to subject
a
man to a penalty in the context of causing
litter and obstruction on the highway merely by reason of his
race
and, therefore, decided that
in this context
gypsy
means no more than a person leading a nomadic life with no
or
no
fixed employment and with no fixed abode.” From this was drawn
the conclusion that a man may not be a gypsy today, but, by
changing his way of life, may become one tomorrow. Therefore, the
question
of
issue estoppel could not arise, as the question in the
first information was: was
Mr.
Cooper a gypsy in December
1965?;
while in the second
it
was: was he a gypsy in March
1966?
It
seems that the Race Relations Board,
in
their decision re-
ferred
to
above, thought that the decision of the Queen’s Bench
Division could be restricted to the context of section
127
of the
Highways Act
1050,
and was not therefore relevant to their own
decision as to whether the word
‘‘
gypsy
had racial connotations
or
not. But even
if
it oan be
so
restricted, can the court’s definition
be regarded as satisfactory? On what was
it
based? Let us take
the last question first:
Lord
Parker felt constrained to justify his rejection of the
Oxford Dictionary’s definition
(‘6
a member of the Romany Race
”)
with these words:
In saying that,
I
lam hoping that those words.
will not be considered as the words
of
a statute, but merely as
conveying the general colloquial idea
of
a
gypsy.’
With respect, it is tempting to inquire whemce the Lord Chief
Justice derived this
general colloquial idea.”
It
might be claimed
as sweepingly-and as vaguely-that the
general idea
of a
gypsy often involves notions of race and of
‘‘
racial
characteristics,
albeit that those characteristics may include an itinerant way
of
life. However, #as both notions are equally unsupported by evidence
at present (unless
it
be evidence of discrimination !)-let alone by
proof-it would surely be better to choose an objective definition
of
our terms rather than to try
to
justify purely personal conceptions
by attaching to them such labels as
general colloquial idea
or
popular meaning.”
As
pointed out in
Antiquity
‘‘
a person leading
a nomadic life is not necessarily a gypsy.”
The court’s difficulty in accepting gypsies as an ethnic group
arose, partly, because this aspect was discussed only in terms of
the dictionary definition,
a member of the Romany race,” which
the court thought to be
something too vague of ascertaifiment
and, partly, because-according to Lord Diplock-“ counsel for
the respondent only faintly argued
the point.* But mostly, the
reticence was caused, as we have seen, by a reluctance to recognise
4
mill,^
V.
Cooper
[1967]
2
All
E.R.
100
st
p.
103.
[1967]
2
kll
E.R.
brt
p.
105.
r19671
2
All
E.R.
at
p.
103.
7
Antiquity,
ILI,
1967
(Editorial).
r19ti71
2
All
E.13..
per
Lord
Parker
at
p.
103.
[lo671
2
All
E.R.
at
p.
104.
570
THE
MODERN
LAW
REVIEW
VOL.
31
a blatant piece of discriminatory legislation for what
it
is. An under-
standable caution, but,
I
would submit, one which has not produced
especially helpful results.
If
the word
gypsy
were to carry racial connotations in
section
127,
it would mean,” said Lord Diplock,
that Parlia-
ment in
1959
had amended the corresponding section to the High-
ways Act
1885,’”
which referred to
gypsy
or
other person
so
as
to discriminate against persons by reason of their racial origin
alone.”
l1
As
Mr.
Michael Scott of the University of Tasmania has
pointed out:
the plain unfortunate fact of the matter is that the
section means exactly what
it
says, and is merely the latest in a
series of statutes discriminating against the gypsy race.”
Mr.
Scott cites earlier Acts all of which clearly identified the gypsies as
an
ethnic group: in
1581,
an Act of Henry VIII referred to
(‘
an
outlandish people calling themselves Egyptians,” and further enact-
ments
in
the reigns of Mary and Elizabeth
I
similarly referred to
‘‘
Egyptians.” The wording of the
1885
Act,
‘‘
a gypsy
or
other
person,” clearly preserved the distinction. The omission from the
1959
Act of
or
other person
may be seen either as the omission
of a redundant term,
or
as the limitation of the provisions of the
section to those people clearly defined as types of wanderer-Le.,
hawkers, itinerant traders,
or
gypsies.
The court tried to read the word
gypsy,” in
Mills
v.
Cooper,
in context,” and inferred that gypsies are a whole class of people-
people of
no fixed employment
or
abode.” But the Act may more
easily and more logically be read to mean that gypsies are but a
sub-type of a class-the class being wandering people-and that
hawkers and itinerant traders are similarly members of that class.
If
we take the anthropological viewpoint and (despite
Dr.
Daniel’s protests) that of the Race Relations Board that gypsies
are an ethnic group, we must conclude that the
1959
Act
does
‘‘
discriminate against persons by reason of their racial origin
alone.” And although clearly showing that the statute
is,
in
this
respect, somewhat harsh, this is surely the correct interpretation of
section
127,
nevertheless. Historical facts show that the belief of the
court that Parliament could not possibly have meant
gypsy
to
bear racial implications is self-delusory: it may have been an
oversight by the legislature
to
continue the discrimination initiated
by the earlier statutes, but the conviction that the distinction
would not have been retained had Parliament thought about
it
cannot alter the fact that it
was
retained.
On the other hand, it may be argued that
it
does not matter,
in the context
of
the Highways Act, if Parliament discriminated
against gypsies. The provisions in section
127
are intended
to
keep
public highways unobstructed by wanderers-whether the wander-
ing arises from the nnturc
of
n
person’s trade
or
because of thc
1”
8.
73.
11
[19137]
0
All
1C.R.
at
p.
104.
12
lluci*,
,July 1967.
Swr.
l9G8
NOTES
OF
CASES
571
nomadic habits of his ethnic group. However, as the section stands,
it
is enough in cases involving gypsies to show that the offender is
a
''
gypsy "-and whatever definition one gives to that word
it
can
hardly be considered satisfactory in