Thorne v Motor Trade Association
| Jurisdiction | UK Non-devolved |
| Judge | Lord Atkin,Lord Thankerton,Lord Russell of Killowen,Lord Wright,Lord Roche |
| Judgment Date | 03 June 1937 |
| Judgment citation (vLex) | [1937] UKHL J0603-1 |
| Date | 03 June 1937 |
| Court | House of Lords |
[1937] UKHL J0603-1
Lord Atkin
Lord Thankerton
Lord Russell of Killowen
Lord Wright M.R.
Lord Roche
House of Lords
My Lords,
This is an appeal from an order of the Court of Appeal affirming a judgment in favour of the plaintiffs given by Mr. Justice Mackinnon on 29th April, 1936. The Plaintiff is a member of the Motor Trade Association and the action was brought for a declaration that "so much of rule 15 (1) of the Defendant Association as provides that the Council and Price Protection Committees shall have power to make an order that the name of such member or person be placed upon the stop list unless within 21 days such member or person pay to the Association a fine within limits to be laid down by the Council is illegal and/or ultra vires having regard to the status and objects of the Association" and for an injunction to restrain the Defendants from acting on the power so given. The action is in the nature of a friendly proceeding brought to determine a very practical difficulty that has arisen in the affairs of the Association by reason of two decisions of the Courts which appeared to conflict. In Rex v. Denyer (1926) 2 K.B. 258, in the Court of Criminal Appeal, one of the officials of the Association who had acted under a similar rule had been convicted under Section 29 (1) of the Larceny Act, 1916, of uttering a letter demanding money with menaces and without any reasonable or probable cause, and his conviction was upheld. In Hardie and Lane, Ltd. v. Chilton and others (1928) 2 K.B. 306, the Plaintiffs sought to recover back money which had been demanded from them in similar circumstances to those in Rex v. Denyer. The Court of Appeal disagreed with the decision in Rex v. Denyer and entered judgment for the Defendant. It is not surprising, therefore, that the members of the Association should desire to know where they stand. In the Courts below there was no argument as the case was properly treated as being governed by the previous decision of the Court of Appeal. Before your Lordships the case was fully argued and though it is probable that the Appellant will suffer no depression of spirits if the appeal be dismissed, yet every relevant consideration was put before this House. No evidence was called at the trial, though your Lordships asked for and received copies of the resolutions of the Association indicating how the rules are administered at present in regard to the limits of the amounts demanded. For the purposes of the case it is necessary to read rules 2, 3, 11, 12, 13 and Appendix 1, 14, 15, 16, 17, 18, 19, 20, 21, 22, 26.
The question appears to be whether the effect of rule 15 (1) is such that if the Council or Price Protection Committee make an order that the name of a member or non-member be placed on the stop list, unless within 21 days such member or person pay to the Association a fine as prescribed by the Council and give the required undertaking, the person who writes on behalf of the Association to demand the fine necessarily commits the offence constituted by Section 29 (1) of the Larceny Act or Section 31. This House allowed an amendment to raise the effect of the last mentioned section. If the rule can be administered without a criminal act, the present Plaintiff must in my opinion fail: for it must not be imputed to the Association that they would commit or authorise a crime when the powers given to them are capable of being exercised lawfully.
Is it true then that if the Council as an alternative to putting the name of a person on the stop list require him to pay a limited sum and to give an undertaking to comply with the terms of the rules and write to the person to that effect, their agent is necessarily guilty of demanding money with menaces without reasonable or probable cause.
To my mind the key to the situation is to be found in the fact that to put a man's name on a stop list in such circumstances as the present is not a wrongful act: does not infringe any right of the person so pilloried. This seems to have been conclusively decided by Ware and De Freville Ld. v. Motor Trade Association and others (1921) 3 K.B. 40, which was approved in this House in Sorrell v. Smith and others (1925) A.C. 700. It is an act done in lawful furtherance of business interests, and though done in combination is done without any express intent to injure the person whose name is published.
Now when the Association write to what I will call an offender announcing that they will put him on the stop list unless he pays a sum of money I think that several of the elements of the offence under Section 29 (1) exist. They seem to me to "menace" him with the stop list. If the matter came to us for decision for the first time I think there would be something to be said for a construction of "menace" which connoted threats of violence and injury to person or property and a contrast might be made between "menaces" and "threats" as used in other sections of the various statutes. But in several cases it has been decided that "menace" in this subsection and its predecessors is simply equivalent to threat, Regina v. Tomlinson (1895) 1 Q.B. 706, Rex v. Boyle and Merchant (1914) 3 K.B. 339. The Larceny Act of 1916 was passed after these decisions and I think they must be accepted: though possibly some of the expressions in some of the judgments are open to criticism. In Ware and De Freville v. Motor Trade Association and again in Hardie and Lane Ld. v. Chilton and others, Scrutton L.J. appeared to indicate that if a man merely threatened to do that which he had a right to do the threat could not be a menace within the Act. With great respect this seems to me to be plainly wrong: and I entirely agree with the criticism of this proposition made by the Lord Chief Justice in Rex v. Denyer. The ordinary blackmailer normally threatens to do what he has a perfect right to do, viz. communicate some compromising conduct to a person whose knowledge is likely to affect the person threatened. Often indeed he has not only the right but also the duty to make the disclosure as of a felony to the competent authorities. What he has to justify is not the threat, but the demand of money. The gravamen of the charge is the demand without reasonable or probable cause: and I cannot think that the mere fact that the threat is to do something a person is entitled to do either causes the threat not to be a "menace" within the Act or in itself provides a reasonable or probable cause for the demand. It could not be contended that in writing such a letter as suggested the Association would not be demanding money. It would be proved, therefore, that they uttered a letter demanding with menaces money: and the only question is whether the demand would be without reasonable or probable cause. It is here that I am unable to agree with the decision in Denyer's case. It appears to me that if a man may lawfully in the furtherance of business interests do acts which will seriously injure another in his business he may also lawfully, if he is still acting in furtherance of his business interests, offer that other to accept a sum of money as an alternative to doing the injurious acts. He must no doubt be acting not for the mere purpose of putting money in his pocket, but for some legitimate purpose other than the mere acquisition of money. In the present case the rules empower the Council and the Committees to demand sums "within limits" as an alternative to the stop list. It is obvious that a reasonable construction of the rules leads to the inference that the intention is to deter persons in the trade from violating recognised conventions as to maintaining list prices and the like: to give the Council power to preclude all traders from commerce with the offender: but to allow the Council to mitigate the grave penalty of "stop list" by substituting a money payment and an undertaking not to offend again. If the Council bona fide exercised this power with the bona fide intention only of carrying out this trade policy, in my opinion they would not be demanding the payment without reasonable and probable cause. It is impossible to assume that the rules must necessarily be abused: and as the power given can be exercised lawfully, it cannot be said that they are ultra vires. By consent of the parties resolutions of the Council were produced indicating what appeared to be reasonable limits for the sums to be demanded varying as the supposed offence was a first or second offence and so on. I do not think that the actual limits fixed should determine the question as to the validity of rules giving power to demand sums within limits to be fixed. It is plain that these rules and any similar rules of any other association in any other trade are capable of being abused: and if so nothing in this decision will prevent offenders from being subject to the criminal law.
But if the rules were genuinely enforced I am satisfied that there would not be, as in my opinion in Denyer's case there was not, any evidence of an absence of reasonable or probable cause. It follows from what I have said that I cannot agree with the judgment in Denyer's case that there was no nexus or relationship between a right to put the name of Mr. Read (the alleged offender) upon the stop list, and a right to demand from him £257 as the price of abstaining from that course. I think that the final passage from the summing-up of Talbot J. cited in the judgment of the Court of Criminal Appeal was wrong. It is the excessive width of the proposition there stated that seems to me to constitute the flaw in the reasoning in that case throughout. I think that the absence of reasonable or probable cause is in a criminal charge under this subsection a question of fact for the jury. But if the cause is reasonably capable of being associated with the promotion of...
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