Rookes v Barnard
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DONOVAN,LORD JUSTICE PEARSON |
| Judgment Date | 17 April 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0417-5 |
| Date | 17 April 1962 |
| Court | Court of Appeal |
(By Order to carry on proceedings dated 25th January 1962)
[1962] EWCA Civ J0417-5
Lord Justice Sellers
Lord Justice Donovan and
Lord Justice Pearson
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Sachs - Middlesex)
Mr., Gerald Gardiner, Q. C. and Mr. P. Colin Duncan (instructed by Mr. W. H. Thompson) appeared on behalf of the Appellants (Defendants)
Mr. Neville Faulks, Q. C. and Mr. S. C. Silkin (instructed by Messrs. Lewis Silkin & Partners, London, S. E. 15) appeared on behalf of Respondent (Plaintiff).
LORD JUSTICE SKLLERS: This case was tried before Mr. Justice and a jury and resulted in a verdict for the plaintiff for £7,500 damages, for which amount the learned judge entered judgment. The decision in favour of the plaintiff was reached not essentially on the jury's views of the facts left to them, which were scarcely in dispute, hut on the learned judge's judgment on the law and on his additional conclusions of fact, left to him by the agreement of the parties, incidental to the law which he applied.
The plaintiff was in January, 1956, a senior draughtsman working for British Overseas Airways Corporation at London Airport in their design office, where for some years the plaintiff's trade union had an understanding or informal agreement with the employers for "100 per cent, membership", which had been fulfilled.
The plaintiff had been a member of the Association of Engineering and Shipbuilding Draughtsmen (A. E. S. D.) but on the 24th November, 1955, he resigned from that trade union because of differences which had arisen between him and certain of its officials and his resignation made a breach in the 100 per cent, membership, so long as he retained his employment.
In circumstances which form the subject-matter of this action the B. O. A. C. suspended the plaintiff from work on full pay on the 13th January, 1956, and on the 16th March, 1956, they dismissed him. For that dismissal and its consequential loss, the plaintiff claimed damages against the defendants and has been awarded the damages the jury assessed.
There was subsisting an agreement entered into on the 1st April, 1949, referred to as the 1949 Agreement, between the representatives of employers and employees affecting the plaintiff's union and its members, the terms of which, the learned judge has accepted on the admission of the parties to this suit, became, as far as applicable, part of the terms of each individual contract of employment between the Corporation and members of the trade union. This finding has had to be accepted on thisappeal and was not and could not be considered by the Court. The agreement is referred to more fully in the judgment but it is sufficient to state here that ii provided that "no lock-out or strike shall take place" and it made provision for arbitration in the event of any dispute arising.
During the period between 24th November, 1955, and 16th Kerch, 1956, the defendant Barnard was Chairman of the Feltham Branch of the Union which embraced London Airport and the defendant Fistal was a shop steward or corresponding member of the Branch. The defendant Silverthorne, who died before the appeal was heard, was not a Branch member but was a paid official of the A. K. S. D. as the Divisional Organiser of the Area which included the Feltham Branch.
These three and other members of the Union called to account the plaintiff (and also one Unwin, who had resigned with him but who soon abandoned the struggle against the pressure) and it would seem required him to return to union membership or to leave B. O. A. C. or at least his employment in the design office and within the 100 per cent, membership zone. The plaintiff refused and the defendants were determined to maintain the "closed shop".
Approaches were made during December, 1955, to the employers of the plaintiff by Silverthorne requesting them to discharge the plaintiff unless he rejoined the Union. it was stated that the members would take strong action against this non-unionist and preparations were made by the three defendants to that effects
On the 16th January, 1956, a resolution was passed by the members of the Union in the design office "that if the nonunionist Mr. Rookes is not removed from the design office by 4 p. m. Friday 13th January, 1956, a withdrawal of labour will take place". As was intended, the employers were notified of this decision and that led them to suspend and later to dismiss the plaintiff, giving him it would appear proper notice under his terms of employment.
The threat to withdraw labour was in the particularcircumstances of the case regarded by the plaintiff and his advisers as a threat of each of the members involved, some 70 in number, to ignore the terms of his agreement that "no strike shall take place" and throughout the argument for the plaintiff the greatest stress has been placed on the threat of each member of the Union involved in the resolution to break his own agreement to this effect with the company. Barnard and Fistal alone of the defendants were employees of the company. Silverthorne had no contract with B. O. A. C The members would have ceased work presumably after receiving their pay on Friday, 13th January, 1956,
It was agreed between the parties, as indeed the circumstances clearly established that there was a trade dispute and that all that was done by the defendants was done in furtherance of the dispute. it would seem that the Union members thought that their solidarity in membership, which had been achieved in the limited area of the design shop, was more important than the wellbeing of the plaintiff, whose livelihood and interests they were no longer concerned to protect and indeed whom they were ready to see injured and were willing to let fall by the wayside.
It can be said in justification of the defendants and the Union's conduct that the plaintiff whilst retaining his employment and whilst outside the Union and avoiding its obligations would enjoy such benefits as the Union could achieve from the employers for its members. This might well not be acceptable to his colleagues.
The defendants were pursuing trade union interests and not merely seeking to injure the plaintiff and in so far as they were acting in combination it would on the face of things not appear that what they were doing would fall outside the ambit of the Trades Disputes Act, 1906, or that any question of actionable wrongdoing could arise. Mr. Gardiner in his opening address reflected the surprise of his clients and said that as the decision stands a "coach and four" had been driven through the trades Disputes Act.
But the members who threatened to withdraw their labour were by so doing, it is said, threatening to break their own contracts of employment, that is the special term that "no strike shall take place", and it is this feature which has led to Mr. Justice Sachs entering judgment on the jury's verdict. it has led as a result to a long and learned argument on this appeal covering most if not all of the statute?, and decided cases affecting trade unions or combinations of workmen since 1825. Notwithstanding the extent and assistance of the arguments I do not think a full review of the authorities is called for in this judgment as the essential point for decision becomes comparatively confined.
The questions left to the jury and their answers are fully set out in the judgment. Only questions and answers 1 to 3 are immediately relevant. The jury found that each of the three defendants (l) was a party to a conspiracy to threaten strike action by the members of the A. B. S. D. against B. O. A. C. to secure the withdrawal of the plaintiff from the design office, (2) made a threat to take strike action against B. O. A. C to secure that withdrawal, and (3) that the threats of strike action by members of A. E. S. D. caused the suspension and later the dismissal of the plaintiff by B. O. A. C. The "strike action" in the questions refers to, it would seem, "a withdravel of labour will take place" in the resolution of the 10th January, 1956.
These findings and the summing-up which led to them have not been challenged before us. The appellants denied conspiracy or any wrongful acts and have relied on the provisions of the Trades Disputes Act, 1906, sections 1 and 3,on the issue of liability. If they are unsuccessful in resisting all liability the defendants further appeal against the summing-up in respect of damages and against the amount of the jury's award.
By section 3 of the Conspiracy and Protection of Property act, 1875, it is provided that "An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employersand workman shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime".
That only gave protection against the criminal law, and section 1 of the Trades Disputes Act, 1906, provided that "The following paragraph shall be added as a new paragraph after the first paragraph of section 3 of the Conspiracy and Protection of property Act, 1875. An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable". That addition gave relief against civil liability and is relied on by the appellants here. it is said on their behalf that not one of the three defendants did an act which of itself...
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