NOTES OF CASES
| Date | 01 May 1980 |
| DOI | http://doi.org/10.1111/j.1468-2230.1980.tb01596.x |
| Author | R. C. Simpson |
| Published date | 01 May 1980 |
NOTES
OF
CASES
GILT
BACK
ON
THE
FORMULA?
"A
strikes against
B
on a question of wages. Thereupon
C
strikes
against
D
because
he believes that his act will be
in
furtherance
of
A's
trade dispute against
B.
Both
A
and
C
are protected under
the definition in the Trade Disputes Act."
That was obvious to Professor Goodhart writing in
1927.a
A
and
C
were both acting in furtherance of the trade dispute. Yet,
by
1979,
the judicial onslaught upon the
"
golden formula
"-uct8
done in contemplation or furtherance of a trade dispute-on
which the liberty of industrial action in Britain depends, had
reached such intensity, notably in
a
series of decisions of the
Court of Appeal,s that this simplest
of
propositions about sympa-
thetic or
"
secondary
"
industrial action was put in doubt. Academic
writers began to cry despairingly that
"
no amount of legislative
tinkering with the
'
golden formula
'
will remedy the imbalance
of
industrial power," given the attitude of our judges-especially
our judges in the Court of Appeal.
The golden formula, however, was burnished anew by the
majority speeches of the Law
Lords
in the crucial case of
Express
Newspapers Ltd.
v.
M~Shane.~
These speeches, taken together
with the House of Lords' decision in
NWL
v.
Woods,8
constitute
the most important judicial event
of
the century in the law con-
cerning trade disputes. Given the general structure of British labour
law, and acknowledging the frailty in modern times
of
the
distinction between
"
political
"
and
''
economic
"
disputes,' the
1
ss.
3 and 5 (3). Trade Disputcs Act 1960.
2
Essays in Jurisprudence and the Common Law
(19371,
p.
235, reprinting
"
ma
Legality
of
the General Strike
"
(1927)
36
Yale L.J. 464, 471 (emphasis supplied).
3
The most important cascs were:
Beaverbrook
v.
Keys
[
19781 I.C.R. 582 (C.A.)
(Simpson (1978) 41 M.L.R. 470);
Sfar Sea Transport
of
Monrovia
v.
Slafer,
"
The
Camilla M
"
[1978] I.R.L.R. 507 (C.A.) (Doyle (1979) 42 M.L.R. 458);
Associated
hewspapers
Group
Lrd.
v.
Wade
119791 I.C.R. 664 (C.A.) (Simpson (1979) 42
M.L.R.
701). See
too,
PBDS (National Carriers) Lfd.
V.
Filkins
[1979] I.R.L.R. 356 (C.A.);
Unifed Biscuits (U.K.) Lid.
v.
Fall
[1979] I.R.L.R. 110 (Ackner
J.);
and the
South
Rank Theafre Board
case, reported in
The Financial Times.
May
5.
1979 (Sheen
J.).
4
Doyle,
op.
cit.
p.
462. Compare the conclusions of Simpson (1977) 40 M.L.R.
16, 30; Ewing (1979) 8
I.L.J.
133, 146; Bercusson (on picketing) (1977)
20
M.L.R.
268, 290-292.
Cf.
Wedderburn,
"
Industrial Relations and
the
Courts (1980)
9
I.L.J.. forthcoming (June). The problem unsolved by commentators who find the
"
golden formula
''
deficient,
is
the construction
of
a
better formula designed
to
prevent
courts
imposing common law liabilities which would, in effect, make industrial
act ion unlawful.
5
El9801 I.C.R. 42; [1980] 2 W.L.R. 89 (I19801 1 All E.R. 65)
(H.L.);
reversing
the C.A. [1979] I.C.R. 210. Page references are to I.C.R. (and
All
E.R., where the
first
defendant
is
McShane).
6
119793 I.C.R. 867
(H.L.),
noted
infru,
p.
327,
R.
Sipson; and now,
Duporr
Sreels Lrd.
v.
Sirs
C19801
1
All
E.R. 529
(H.L.).
7
See
0.
Kahn-Freund. Chap. I1 in
The System
of
lndustriol Relations in Great
Britain,
Flanders and Clegg eds. (1954). p. 127; Wedderburn,
The Worker and the
3
19
320
THE
MODERN
LAW REVIEW
[Vol.
43
golden formula and its trade dispute protections could remain,
after
this
decision,
a
reasonable basis for trade union liberties.
The National Union of Journalists
(“
NUJ
”)
was involved in a
trade dispute
’
with the proprietors of provincial newspapers. Those
papers received copy, as do national papers, from the Press
Association (“PA”). The NUJ therefore called
a
strike of its
members at the PA in order to reduce supplies to the provincial
papers. But the NUJ members at PA were known to be divided
on
whether
to
strike.O
So
the NUJ instructed members working on
national newspapers, including the
Daily
Express,
to black PA
copy in order to encourage the NUJ members at PA to strike and
to fortify the morale of those who did strike.’” For this inducement
of breaches of their members’ employment contracts, the officials
of the NUJ were clearly liable unless section
13
(1)
of
T.U.L.R.A.,
as amended in
1976,
protected them. Lawson
J.
and the Court of
Appeal held that they were not protected, because they had not
acted in furtherance of a trade dispute in instructing the members
at Express Newspapers to black PA copy, and granted inter-
locutory injunctions accordingly against the President and General
Secretary of the Union. The House of Lords reversed that
decision.
Motive
In
the
Express
case the motives of the defendant union officials
were not called in question. It was accepted on both sides that
they had acted with
a
genuine intention to further the existing
trade dispute.” The
Express
case did not, therefore, deal directly
with those decisions where the courts have imputed an “extra-
neous
”
or
“
ulterior
”
motive to trade unionist defendants (because
they made
‘‘
impossible
”
demands, or because they acted predomi-
nantly out
of
“
anger
”
or
“
fury
”
or to further a
‘‘
grudge
”)
and
thereby excluded them from the protection of the golden formula.I1
Law
(1971),
pp.
336-337;
Davics and Freedland,
Labour Law. Text and Materials
8
A strike connected with
its
members’ wages within
s.
29
(1)
(a),
Trade Union
and Labour Relations Act
1974
0
About half the PA members of the
NUJ
came
out:
[1979]
I.C.R., p.
215.
10
See
[I9791
I.C.R..
p.
221,
where Lawton
L.J.
quotes the amdavit of the
NUJ
Father
of
the Chapel at PA.
11
Lord WilberPorce, p.
50
(p.
67);
Lord Kei!!, p.
63
(p.
77).
Lord Scarman took
the opportunity to conflrm that
‘‘
furtherance refers to an existing dispute, and
’‘
contemplation
”
to an imminent dispute: p.
64
(78).
Cf. Conway
v.
Wade
[1909]
12
See this element in
SIar Sea Transport
of
Monrovia
v.
Slater, supra:
Assoc.
Newspapers Group Lrd.
v.
Wade, supra. per
Lord Denning
M.R.,
p.
694:
PBDS
(Nufional Carriers)
Ltd.
v.
Ftlkins, supra;
and among earlier examples,
Torquay
Norel
Co.
Lrd.
v.
Cousins
[1969] 2
Ch.
106
(C.A.), and
Conway
v.
Wade
[1909]
A.C.
506
(H.L.).
It may be noted that such a finding can conceptually be used in two
ways
:
elthe;,
to conclude that the defendants were not
“
furthering
”
their trade
dispute but furthering
”
their ulterior motive:
or
to find that the dispute was not a
“
trade dispute
”
at all but was a dispute
“
connected
with
”
the ulterior motive, not
with one
of
the required matters,
f.e.
now the list
of
matters in
s.
29
(1)
(a)-(&
of
(1979),
pp.
619-624.
T.U.L.R.A.
”).
A.C.
506, 512, 517-518, 522.
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