ROOKES
V.
BARNARD

Lord Reid

MY LORDS,

The Appellant was employed for many years by B.O.A.C. as a skilled

draftsman in their drawing office at London Airport. He was a member of,

a Trade Union, the Association of Engineering and Shipbuilding Draughtsmen

(A.E.S.D.) to which all who were employed in that drawing office belonged.

He and another man, Unwin, became dissatisfied with the conduct of the

Union and resigned from it. The Union were very anxious to preserve

the position that no non-member should be employed in that office and they

took energetic steps to get these two men to rejoin. Unwin agreed to

rejoin, but the Appellant refused. As a result of steps taken by the Union

and its members, B.O.A.C. were induced first to suspend the Appellant

and then to terminate his employment after giving him due notice. The

Appellant has no remedy against B.O.A.C. They neither broke their

contract with him nor committed any tort against him. In this action the

Appellant seeks a remedy against two members and an official of the Union

on the ground that they wrongfully induced B.O.A.C. to act as they did.

The action was tried by Sachs J. with a jury, and the Appellant was awarded

£7,500 damages. The Court of Appeal held that the Respondents had not

committed any tort, and the first question in this appeal is whether the

Respondents' actions were tortious. If that question is answered in the

affirmative, a second question arises whether the Respondents are absolved

from liability by the provisions of the Trade Disputes Act, 1906: it is

admitted that the Respondents' acts were done in furtherance of a trade

dispute.

Certain agreed questions were put to the jury and their answers are not

challenged. The questions are not entirely free from ambiguity and, in

order to understand them, we can look at the summing-up of the learned

judge. But we cannot go beyond the questions so explained and the jury's

answers. The questions are as follows: —

Questions Answers

1. Was there a conspiracy to threaten strike action

by the members of A.E.S.D. against B.O.A.C. to

secure the withdrawal of the Plaintiff from the

Design Office ... ... ... ... ... ... ... ... ... There was

If so:

Was Barnard a party? ... ... ... ... ... ... He was

Was Silverthorne a party? ... ... ... ... ... He was

Was Fistal a party? ... ... ... ... ... ... ... He was

2. Was a threat to take strike action against

B.O.A.C. to secure the withdrawal of the Plaintiff

from the Design Office made by

Barnard ... ... ... ... ... ... ... ... ... It was

Silverthorne? ... ... ... ... ... ... ... ... It was

Fistal? ... ... ... ... ... ... ... ... ... It was

3. Did threats of strike action by members of

A.E.S.D. cause

(a) the suspension of the Plaintiff was his work

at B.O.A.C.? ... ... ... ... ... ... ... ... ... They did

The dismissal of the Plaintiff from B.O.A.C. They did

4. (a) What damages should be awarded to the

Plaintiff if the threats of strike action caused

the Plaintiff's dismissal £7,500

(b) What damages should be awarded to the

Plaintiff if the threats of strike action caused

the Plaintiff's suspension (but not his

dismissal)? ... ... ... ... ... (Not answered)

Barnard was the chairman of the local branch of the Union and Fistal

was a shop steward. Silverthorne was an official of the Union but not a

member of it. There was negotiations which I need not deal with. The

matter was brought to a head by a meeting of the members on 10th January,

1956, which resolved unanimously: " We, the members of the A.E.S.D.,

inform B.O.A.C. that if the Non-Unionist Mr. D. E. Rookes is not removed

from the Design Office by 4 p.m., Friday, 13th January, 1956, a withdrawal

of labour of all A.E.S.D. Membership will take place ". If the Members

had ceased work or come out on strike at that time they would have done

so in breach of their contracts with B.O.A.C. An agreement had been made

in 1949 between the Employers' and Employees' sides of the Draughtsmen's,

Planners' and Tracers' Panel of the National Joint Council for Civil Air

Transport which contained an undertaking that no lockout or strike would

take place, and provided that any dispute should be dealt with as provided

for in the constitution of the Joint Council. It is admitted that the provisions

of that agreement had been made a term of all the contracts of employment

of the men who took part in the meeting of 10th January, and that if they

had withdrawn their labour on 13th January they would have been in breach

of their contracts with B.O.A.C.

When this resolution was presented to B.O.A.C. they suspended the

Appellant land removed him from the Design Office, as the resolution

required. There was considerable argument about the parts played by the

three Respondents but we must take it from the jury's answers that the

presentation of this resolution to B.O.A.C. was in pursuance of a conspiracy

to which the three Respondents were parties, that it was a threat of strike

action, and that this threat caused B.O.A.C. first to suspend and then to

dismiss the Appellant. This was not a case of the Respondents merely

informing B.O.A.C. that the men would strike if their terms were not

accepted ; no questions were put to the jury suggesting any defence based

on that ground.

This case, therefore, raises the question whether it is a tort to conspire to

threaten an employer that his men will break their contracts with him unless

he dismisses the plaintiff, with the result that he is thereby induced to

dismiss the plaintiff and cause him loss. The magnitude of the sum awarded

by the jury shews that the Appellant had every prospect of retaining his

employment with B.O.A.C. if the Respondents and other conspirators

had not interfered: leaving the Trade Disputes Act out of account, if

B.O.A.C. had been induced to dismiss the Appellant in breach of their

contract with him then there is no doubt that the Respondents would have

committed a tort and would have been liable in damages (Lumley  v. Gye

2 E. and B., 216). Equally, there is no doubt that men are entitled to threaten

to strike if that involves no breach of their contracts with their employer,

and they are not trying to induce their employer to break any contract with

the plaintiff. The question in this case is whether it was unlawful for them

to use a threat to break their contracts with their employer as a weapon to

make him do something which he was legally entitled to do but which they

knew would cause loss to the plaintiff.

The first contention of the Respondents is very far reaching. They say

there is no such tort as intimidation. They would mean that, short of com

mitting a crime, an individual could with impunity virtually compel a third

person to do something damaging to the plaintiff which he does not want to

do but can lawfully do the wrongdoer could use every kind of threat to

commit violence, libel or any other tort, and the plaintiff would have no

remedy. And a combination of individuals could do the same, at least if

they acted solely to promote their own interests. It is true that there is no

decision of this House which negatives that argument. But there are many

speeches in this House and judgments of eminent judges where it is assumed

that that is not the law and I have found none where there is any real

support for this argument. Most of the relevant authorities have been

collected by Pearson, L.J. and I see no need to add to them. It has often

been stated that if people combine to do acts which they know will cause

loss to the plaintiff, he can sue if either the object of their conspiracy is

unlawful or they use unlawful means to achieve it. In my judgment, to

cause such loss by threat to commit a tort against a third person if he does

not comply with their demands is to use unlawful means to achieve their

object.

That brings me to the second argument for the Respondents which raises

a more difficult question. They say that there is a distinction between threats

to commit a tort and threats to break a contract. They point out that a

person is quite entitled to threaten to do something which he has a legal

right to do and they say that breach of contract is a private matter between

the contracting parties. If the plaintiff cannot sue for loss to him which

results from an actual breach of a contract to which he is not a party, why,

they ask, should he be entitled to sue for loss which results from a threat

to break a contract to which he is not a party?

A somewhat similar argument failed in Lumley v. Gye. The defendant

had induced a singer to break her contract with the plaintiff and he knew

that this would cause loss to the plaintiff. The plaintiff had his action

against the singer for breach of contract and he was held also to have a

cause of action against the defendant for the tort of unjustifiably interfering

so as to cause him loss. The fact that the direct cause of the loss was a

breach of the contract to which the defendant was not a party did not matter.

So. too, the plaintiff's action in the present case does not sound in contract:

in fact there was no breach of contract because B.O.A.C. gave in.

The Appellant in this case could not take a benefit from contracts

to which he was not a party or from any breach of them. But his ground

of action is quite different. The Respondents here used a weapon in a

way which they knew could cause him loss, and the question is whether

they were entitled to use that weapon—a threat that they would cause

loss to B.O.A.C. if B.O.A.C. did not do as they wished. That threat was to

cause loss to B.O.A.C. by doing something which they had no right to do,

breaking their contracts with B.O.A.C. I can see no difference in principle

between a threat to break a contract and a threat to commit a tort. If a third

party could not sue for damage caused to him by the former I can see no

reason why he should be entitled to sue for damage caused to him by the

latter. A person is no more entitled to sue in respect of loss which he suffers

by reason of a tort committed against someone else, than he is entitled to sue

in respect of loss which he suffers by reason of breach of a contract to

which he is not a party. What he sues for in each case is loss caused to

him by the use of an unlawful weapon against him—intimidation of another

person by unlawful means. So long as the defendant only threatens to

do what he has a legal right to do he is on safe ground. At least if there

is no conspiracy he would not be liable to anyone for doing the act, what-

ever his motive might be, and it would be absurd to make him liable for

threatening to do it but not for doing it. But I agree with Lord Herschell

(Allen v. Flood [1898] A.C. 1 at p. 121) that there is a chasm between doing

what you have a legal right to do and doing what you have no legal right

to do, and there seems to me to be the same chasm between threatening

to do what you have a legal right to do and threatening to do what you have

no legal right to do. It must follow from Allen v. Flood  that to intimidate

by threatening to do what you have a legal right to do is to intimidate by

lawful means. But I see no good reason for extending that doctrine.

Threatening a breach of contract may be a much more coercive weapon

than threatening a tort, particularly when the threat is directed against a

company or corporation, and, if there is no technical reason requiring a

distinction between different kinds of threats, I can see no other ground

for making any such distinction.

I have not set out any of the passages cited in argument because the

precise point which we have to decide did not arise in any of the cases

in which they occur, and it does not appear that any of the authors of these

passages had this point in mind. Sometimes the language seems to point

one way and sometimes another and it would, I think, be wrong in such

circumstances to use a judge's language as authority for a proposition which

he did not have in mind. The Court of Appeal in this case were unwilling

to go beyond existing authorities. Sellers L.J. said " Unless authority

requires it, I would resist enlarging the tort of intimidation in the manner

sought before and accepted by the judge ", and Pearson L.J. said " Should

this obscure, unfamiliar and peculiar cause of action, which has its roots

in cases of physical violence and threats of violence, be extended to

cover a case in which there is only a threat to break a contract? ". I

am afraid I take a different view. Intimidation of any kind appears to

me to be highly objectionable. The law was not slow to prevent it when

violence and threats of violence were the most effective means. Now that

subtler means are at least equally effective I see no season why the law

should have to turn a blind eye to them. We have to tolerate intimidation

by means which have been held to be lawful but there I would stop.

Accordingly, I would hold that on the facts found by the jury the Respon-

dents' actions in this case were tortious.

It is now necessary to consider whether the Respondents are absolved from

liability by any of the provisions of the Trade Disputes Act, 1906. The sections on which the Respondents rely are sections 1 and 3, which are as follows: —

" 1. The following paragraph shall be added as a new paragraph

after the first paragraph of section three of the Conspiracy and Pro-

 tection 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.'"

... ... ... ... ... ...

"3. An act done by a person in contemplation or furtherance of a

trade dispute shall not be actionable on the ground only that it induces

some other person to break a contract of employment or that it is

an interference with the trade, business or employment of some other

person, or with the right of some other person to dispose of his capital

or his labour as he wills."

Before dealing with these sections I must say a word about what the

law was, or was thought to be, in 1906. The older law bore very heavily

on workmen who combined to seek concessions from employers, and Acts

passed to amend it had been strictly construed. Matters were brought

to a head by two decisions of this House, the Taff Vale case, [1901] AC 426,

and Quinn v. Leathem, [1901] AC 495. These were followed by a Royal

Commission over which Lord Dunedin presided. The main objects of the

1906 Act are clear enough, to protect Trade Union funds and to exclude

conspiracy from being an element in future cases. The former does not

arise in the present case.

One of the difficulties facing Parliament was the uncertain state of the

law with regard to liability for interfering with a person's trade or employ-

ment. It is exceedingly difficult to determine just what was decided in

Quinn v. Leathem, and I neither need nor intend to embark on that vexed

subject. But there were at least two theories about what the law really

was. One was that an individual was free to take any steps he chose so

long as he used no means to achieve his end which were not unlawful for

some reason other than that they interfered with some other person's trade

or employment; and that a combination had the same freedom, provided

that their conduct was not dictated by a desire or intention to injure the

Plaintiff. The other theory was that any action intended or known to be

likely to interfere with the trade or employment of another person was

unlawful unless it could be justified in some way. I might note that so

late as 1908 Sir F. Pollock wrote in his Law of Torts (8th edition pp. 325-6)—

" The present writer confesses to great difficulty in understanding why in

Quinn v. Leathem before the House of Lords ... it was necessary to say

so much about conspiracy: for the cause of action was in effect ruining

the Plaintiff's business by coercing his customers not to deal with him

which is well within a line of old authorities .... It is submitted that the

discussions would be materially simplified if it were understood that all

damage wilfully done to one's neighbour is actionable unless it can be

justified or excused." So it is reasonable to suppose that the intention

was to draft the 1906 Act so that it would be equally effective whichever

theory ultimately prevailed.

The only difficulty about section 1 is to discover what is meant by " unless

the act, if done without any such agreement or combination, would be

actionable ". In the present case, and I have no doubt in many others,

the precise act complained of could not have been done without previous

agreement. The act complained of in this case was presenting to B.O.A.C.

a resolution of all the members of the Union to which the Respondents were

parties. There was an argument that the section requires us to suppose

that each Respondent merely told B.O.A.C. that he would himself cease

work if they did not get rid of the Appellant. But that would have been

an entirely different act and probably quite ineffective as a threat. The

section cannot reasonably be held to mean that no action can be brought

unless the precise Act complained of could have been done by an individual

without previous agreement or combination. In my view, the section

requires us to find the nearest equivalent act which could have been so done

and see whether it would be actionable. In the present case I think we

must suppose that one of the Respondents had said to B.O.A.C. " I am

acting alone but I think I can and I intend to induce the men to break

their contracts and strike if you do not get rid of Mr. Rookes ". If the

opinion which I have already expressed is right, that would have been

actionable if B.O.A.C. had succumbed to that threat and got rid of the

Appellant in the way they did. So section 1 does not help the Respondents.

Section 3 deals with two classes of acts done by individuals, and, by

virtue of section 1, the immunity given by section 3 to individuals must also

extend to combination or conspiracies. The classes of acts permitted (if

done in contemplation or furtherance of a trade dispute) are, (1) inducing a

breach of a contract of employment and, (2) interfering with a person's

trade, business or employment or right to dispose of his capital or labour

as he wills. The facts in this case fall within the second class: if B.A.O.C.

had not safeguarded themselves by giving notice to the Appellant but had

dismissed him summarily the case would have come within the first class.

In considering the proper construction of this section I think it makes for

clarity to take the first class first. The first class of acts are those within

the principle in Lumley v. Gye, and there can be no doubt that if no more

than mere persuasion is used to induce a breach of contract this section ousts

the principle in Lumley v. Gye. But suppose that the Defendant had to go

further than mere persuasion and told deliberate lies or used intimidation

to induce the breach of contract—is he then still protected by section 3?

Section 3 provides that the act complained of shall not be  actionable on

the ground only  that it induces a breach of contract. That is a very

difficult phrase to construe. An Act which induces one party to a contract

to break it is never actionable at the instance of the other party to the

contract merely on that ground. In addition, the Plaintiff must at least

allege and prove that the Defendant intended to cause him loss, or at least

knew that his intervention would cause him loss, and that he has suffered

loss. In this context it appears to me that " actionable on the ground only "

can only have one or other of two meanings. It could mean shall not be

actionable if the Plaintiff cannot succeed in his action without alleging and

proving inducement of breach of contract. Or it could mean shall not be

actionable if the act done by the Defendant is only unlawful or actionable

because, or " on the ground " that, it induces the breach of contract. These

two meanings lead to entirely different results. Whether the weapon used

to induce the third party to break his contract with the Plaintiff be mere

persuasion or an extreme form of deceit, slander or intimidation the Plaintiff

cannot succeed without proving that it caused or induced the breach of his

contract. So if the first meaning be the right one this section gives a general

immunity or licence however illegal the means used to induce the breach of

contract. That was not and could not be denied by the Respondent's

counsel. But, on the other hand, if the second meaning is correct, then

the immunity or licence only applies so long as the Defendant has not used

any unlawful means to induce the breach. If the Defendant had used

slander or intimidation, which are in themselves tortious, the Plaintiff would

sue on that ground, although he would still have to prove the damage

resulting from his dismissal.

It was argued for the Respondents that Parliament must have intended

to extend immunity to all ordinary methods of inducing breach of contract

used in strikes or other trade disputes, and that the use of methods such as

these Respondents used were commonplace. But it was not suggested that

the use of deceit, slander or more extreme methods of intimidation were or

are in general use, and it was hardly suggested that Parliament must be

supposed to have intended to license them. And I cannot find any general

indication of intention favourable to the Respondents in other sections of

the Act. Section 2 licenses picketing merely for the purpose of peacefully

persuading, so there is no extensive licence there. Section 4 does give

general immunity to trade unions, as distinct from their members. But there

the language is very different—" an action against a trade union ... in

" respect of any tortious act. . . shall not be entertained by any court".

The protection of individual members is left to section 3. So we are

thrown back to the language of section 3 itself without any very clear guid-

ance either from the nature of the mischief which Parliament had to remedy

by the Act or from other sections of the Act.

The only important authority is in the speech of Lord Loreburn in

Conway v. Wade [1909] A.C. 506. I shall have to deal with this case at

some length when I come to the second half of section 3. He said: "It is

clear that, if there be threats or violence, this section gives no protection

. . . If the inducement be to break a contract without threat or violence,

then this is no longer actionable ". Counsel had to argue that this was

wrong, and he was quite entitled so to argue because the whole passage

was obiter. But there was no dissent from this by any other member of the

House, and, as Lord Loreburn was Lord Chancellor when the 1906 Act

was passed, he must have been well acquainted with its provisions. His

speech has been quoted with approval in a number of later cases but I

do not set great store by that because the matter never seems to have been

fully argued.

I would hold that what I have called the second meaning of this part

of section 3 is the right one—that it does not protect a person who induces

a breach of contract by tortious means—both on the authority of Lord

Loreburn and because it appears to me to be the better construction. The

words " on the ground only " are clearly intended to limit the scope of the

section, and if the first meaning for which the Respondents contend were

right, there would be hardly any limit to its scope. It would give immunity

in almost every case of inducing a breach of contract that seems likely

to arise in connection with a strike or threatened strike. Section 4 makes

it quite clear that there is complete immunity for the trade union itself,

and I cannot believe that the very guarded language of section 3 would

have been used if it had been intended to give in addition almost com-

plete immunity to all individuals acting in contemplation or furtherance of

a trade dispute.

I have dealt at some length with the interpretation of the first part of

section 3 because I have come to think that it throws a great deal of light

on the second part. The second part is much more difficult to construe. I

must admit that on a consideration of the second part by itself I was

inclined to think that it was applicable to the present case. If the second

part of the section had to be construed in light of the law as we now know

it to be and without reference to the first part I would still be inclined to

construe it in the way for which the Respondents contend. But I do not

think that it is proper to approach the problem in that way. In construing

an Act of Parliament we are attempting to find the intention of Parlia-

ment. We must find that intention from the words which Parliament has

used but these words must be construed in the light of the facts known

to Parliament when the Act was passed. One assumes that Parliament

knows the law, but if the law is notoriously uncertain we must not attribute

to Parliament prescience of what the law will ultimately be held to be. In

1906 the law with regard to lawful and unlawful interference with a person's

trade, business or employment was quite uncertain. By 1925 Lord Dunedin

was able to speak of one view as " the leading heresy " (Sorrell v. Smith

[1925] A.C. 700 at p. 719). But there were still some doubts. As Lord

Maugham pointed out in Crofters Harris Tweed v. Veitch [1942] AC 435

at p. 450, Lord Dunedin had taken a somewhat different view from that

of the majority in Sorrell v. Smith. It often takes a long time to determine

what is heresy and what is orthdoxy, and there can be no better witness

about what was thought to be the law in 1906 than Lord Loreburn who

was Lord Chancellor when the Trade Disputes Act was passed. He said

in Conway v. Wade [1909] A.C. 506 at p. 510—" It is necessary to consider

how the law stood before 1906 ... it is material to see in what circum-

stances an individual could be sued for inducing someone not to employ

or not to serve another ... I think on that point the law stood as follows.

If the inducement was accompanied by violence or threats (always remem-

bering that a warning is one thing and a threat is another) there was a

good ground of action. I next suppose there was no violence and no

threat, and yet the inducement involved a breach of contract. There also

it was established, after a long controversy beginning with Lumley v. Gye

in 1853 that an action could be maintained, unless at all events some suffi-

cient justification could be made good. But suppose one person simply

" induced someone not to employ another or not to serve another, without

violence or threat or breach of contract, would an action lie, and in what

circumstances, in such a case? I believe there has not been an exhaustive

answer to that question. The further difficulty arises, what is a sufficient

justification? Is it supplied by self-interest, or by trade competition, or

by what other condition or motive? No answer in general terms has ever

been given, and perhaps no answer can be given. A parallel difficulty

arises where the inducement is by two or more persons acting together."

If that is a correct statement of the position in 1906—and I think it is—

there were three classes of inducement which Parliament had to consider,

(i) inducement accompanied by violence or threats (ii) inducement involving

a breach of contract, and (iii) mere inducement alone. As regards (i) and (ii)

the law was thought to be clear, as regards (iii) it was not. Section 3 is

silent as to (i), so one might think that it leaves the existing liability unaltered.

It deals with (ii) and (iii). I have stated my opinion as to how it deals

with (ii); it confers immunity, provided that there is no further element of

illegality, such as intimidation. The question is how it deals with (iii).

Does it there go farther and confer immunity even where there is intimida-

tion. The general plan of the section appears to be to treat (ii) and (iii) in

precisely the same way, and it would seem a strange result if the liability

of the present defendants depended on the method which B.O.A.C. adopted

in acceding to their demands that the Appellant should be removed from

the Design Office within a few days. If they had summarily dismissed him

the case would have fallen under head (ii), and the defendants would have

been liable. But can it be said that the fact that B.O.A.C. chose only to

suspend him and then give him notice, which puts the case within head (iii),

makes all the difference and saves the Respondents from any liability to

him? That may be the necessary result of the way in which the section

is drafted, but it could hardly have been the intention of Parliament.

I must now return to what Lord Loreburn said in Conway v. Wade. It is

true that all this was obiter as regards section 3, because it was held that

there was no trade dispute. Until the case reached this House there were

only two issues—whether the jury's findings could be supported, and what

was meant by " in contemplation or furtherance of a trade dispute ". Wade

had " acted as mischief-maker in order to injure the plaintiff from unworthy

motives  (per Lord Loreburn at p. 509) by procuring his dismissal. He

had threatened that he would call out the other men when he had neither

the power nor the right to do that, and the employers gave way to this

deceitful threat. It was argued for the first time in this House that, apart

from the statute, Wade was guilty of no actionable wrong. This House

had no difficulty in holding that he was, and they held, reversing the Court

of Appeal, that he had not acted " in contemplation or furtherance of a

trade dispute." So Conway won his appeal. Lord Loreburn, after

quoting section 3, said :

" Let me see how this alters the pre-existing law. It is clear that, if

there be threats or violence, this section gives no protection, for then

there is some other ground of action besides the ground that' it induces

' some other person to break a contract,' and so forth. So far there

is no change. If the inducement be to break a contract without

threat or violence, then this is no longer actionable, provided always

that it was done ' in contemplation or furtherance of a trade dispute '.

What is the meaning of these words I will consider presently. In this

respect there is a change. If there be no threat or violence, and no

breach of contract, and yet there is ' an interference with the trade,

business or employment of some other person, or with the right

of some other person to dispose of his capital or his labour as he

wills there again there is perhaps a change. It is not to be action-

able, provided that it was done ' in contemplation or furtherance of

' a trade dispute.' So there is no longer any question in such cases,

whether there was ' sufficient justification ' or not. The condition

contained in these words as to trade dispute is made sufficient."

Lord Loreburn had no doubt that section 3 affords no protection if there

are threats or violence. If a threat to break a contract amounts to unlawful

intimidation, that covers the present case, for he draws no distinction

between the two classes of acts covered by section 3. His opinion was

obiter and he may have been wrong, but Lord MacNaghten and Lord Gorell

concurred with him and I find no suggestion in other speeches to the con-

trary. It can be argued that the reason which he gave is wrong in part.

The argument is that, although he may have been right in saying that where

there are threats or violence, there is some other ground of action when

the act complained of is inducing a breach of contract, he was wrong

when the act complained of is mere interference with the plaintiff's trade,

business or employment.

But Parliament had to provide for the possibility that mere interference,

if no legal justification were proved, would be held to be a tort, and I think

that what Parliament did in enacting the second part of section 3 was to

put in a provision which would be necessary to achieve their object if the

law should go one way but unnecessary if it went the other way. So I

would hold that section 3 means that if mere interference is or can be a

tort then there shall be no liability, where a trade dispute is involved, " on

" the ground only " of that interference.

If that is right then the protection given by section 3 is no wider in scope

as regards acts within the second half than it is with regard to acts within the

first half. Parliament might have enacted that the protection given by

section 3 shall only apply so long as no illegal means such as intimidation

are used to achieve the breach of contract or interference with trade, business

or employment, or Parliament might have enacted that the protection shall

9

extend to all cases, no matter how illegal may have been the means

employed. But to draw a distinction and restrict protection of inducement

of breach of contract to cases where no illegal means are employed, but

extend protection of interference to all cases no matter how unlawful the

means employed is something that I cannot think Parliament could have

intended and therefore a construction of the section which I would only

accept if its words are incapable of any other.

In my judgment, it is clear that section 3 does not protect inducement

of breach of contract where that is brought about by intimidation or other

illegal means and the section must be given a similar construction with

regard to interference with trade business or employment. So, in my

opinion, the section does not apply to this case because the interference

here was brought about by unlawful intimidation. I would therefore allow

this appeal.

But that does not end the case, because the Respondents maintain that,

by reason of misdirection of the trial judge in the matter of damages, the

jury's award of £7,500 cannot stand and there should be a new trial on

amount of damages. There is no doubt that the jury were directed that it

was open to them to award punitive or exemplary damages, and indeed they

might fairly assume from the summing up as a whole that that would be

their proper course if they did not accept the Respondents' case on provoca-

tion. As they awarded a single sum we do not know how much they intended

10 award in respect of financial loss or how much they added on as punitive

damages, but it is fairly obvious that they must have added a considerable

sum. The Respondents contend that there is nothing in the facts of this

case to justify any award of punitive damages and that the trial judge

ought to have directed the jury to that effect.

It appears that at the trial counsel for the Respondents did not take the

point that exemplary damages could not be awarded in this case: he merely

argued to the jury that for various reasons they should not award any. So

the Appellant now submits that it is too late to take the point now. In

many cases it would be wrong to allow a new and belated point to be argued.

But here there is no question of the point not being open on the pleadings

and I have been unable to see that the Appellant can have been in any way

prejudiced in the presentation of his case by the point not having been

taken. It is not a case in which it can be said that the course of examination

and cross-examination of witnesses might have been different. This seems

to me to be a pure point of law which we could properly admit in our

discretion.

I have read and considered the speech of my noble and learned friend

Lord Devlin and I am in full agreement with his treatment of the subject

ot exemplary damages. I would therefore allow this appeal and order a new

trial on the question of damages. In the whole circumstances I think that

the costs of the previous trial ought to abide the result of the new trial

and be dealt with by the trial judge, and that the Appellant should now

be awarded his costs in this House and in the Court of Appeal.

Lord Evershed

MY LORDS,

As I begin to apply myself to the task of formulating my opinion in this

important and difficult case, I have much in mind the observations of

Scrutton L.J. when delivering his judgment in the Court of Appeal in the

analogous case of Ware and de Freville, Ltd. v. Motor Trade Association

[1921] 3 K.B. 40 at p. 66. That most learned Judge then referred to the

mass of authorities and dicta, many of them contradictory, contained in

ten House of Lords cases and many cases in the Court of Appeal and to the

" able and conscientious attempts" by judges of first instance "to state

" the results of decisions by which they are bound, and by which they

10

" should be enlightened "; and he went on to state that the only tribunal

which could bring order into chaos was your Lordships' House. There have

since been the two important decisions of the House in Sorrell v. Smith

[1925] A.C. 700, and Crofter Hand Woven Harris Tweed Company, Ltd. v.

Veitch [1942] AC 435 ; and so in the present case the attention of your

Lordships has been drawn to the important speeches in these two cases

as well as to all the speeches and dicta in the earlier cases to which Scrutton

L.J. referred, and I cannot maintain any confident hope that in the present

case order will have been so brought into chaos that, upon some future

occasion, it will not be found necessary to refer to the opinions now being

expressed in addition to all those that have gone before. Such, indeed, is

the importance of the questions now presented to your Lordships and such

is the difficulty which the history of the relevant law and the language of

the Trade Disputes Act, 1906, has attached to their solution.

The essential facts of the present case may be shortly stated. The Appellant

before your Lordships' House, the Plaintiff in the present proceedings, having

been for some years employed by British Overseas Airways Corporation

(hereafter called B.O.A.C. in the year 1955 quarrelled with the Trade Union

known as the Association of Engineering and Shipbuilding Draughtsmen

(hereafter called A.E.S.D.) to which he had belonged and of which indeed

he had been an officer. In the result, he resigned from the Union, and efforts

made at the end of the year to make him rejoin were without effect. In

the result, in the month of December, 1955, and January, 1956, the three

Defendants to the action—the Respondent, Mr. Barnard, Mr. Silverthorne

and the Respondent, Mr. Fistal—(of whom the second, Mr. Silverthorne,

died since the proceedings commenced and has been replaced by his personal

representative, the second Respondent)—being all officials of the A.E.S.D.

proceeded to make communications to B.O.A.C. to the effect that, unless

the services of Mr. Rookes were determined by B.O.A.C. all their other

employees in the same department, in number about 70 and all members of

the A.E.S.D., would come out on strike—and possibly other servants of

B.O.A.C. as well. I have so far deliberately used imprecise language; but

the effect was that (as has been conceded throughout by the Appellant) a

"trade dispute" within the meaning of the Trade Disputes Act, 1906, had

arisen. B.O.A.C. thereupon at first suspended the Appellant and later, by

appropriate notice, determined his contract of service. It is to be noted that

there was no breach by B.O.A.C. of the Appellant's service agreement.

If the matter rested only upon the facts as I have stated them, the answer

to the Appellant's claim would have been short and simple. As I have

said there was no breach of the Appellant's contract and it has long

been recognised that strike action or threats of strike action (however

those terms be interpreted—and I have in mind what fell from Donovan

L.J. in his judgment in the Court of Appeal) in the case of a trade dispute

do not involve any wrongful action on the part of the employees, whose

service contracts are not regarded as being or intended to be thereby

terminated. So much was stated by Lord Watson in his speech in Allen

v. Flood [1898] A.C. 1 at p. 99 and has, as I believe, been since consistently

followed—see e.g. per Lord Sterndale, M.R. in White v. Riley [1921]

1 Ch. 1 at p. 15. Moreover, such action on the part of the members of

the A.E.S.D. would, to say the least, not be surprising since there was a

recorded understanding between B.O.A.C. and the several unions, members

of which were in the service of B.O.A.C., that if in any section of B.O.A.C.'s

work 100 per cent, membership of the relevant union was achieved, then

B.O.A.C. would not employ in that section any non-union labour.

But the circumstances of the present case are distinguished by one very

important fact. On the 1st April, 1949, an agreement in writing was made

between the Employers' and Employees' sides of the Draughtsmen, Planners

and Tracers Panel, clause 4 of which provided that in the event of any

relevant trade dispute, there should not be a strike or a lock out but that

the dispute should be resolved in the manner therein indicated. It has

been conceded throughout these proceedings on the part of the Defendants

and Respondents that the terms of this clause should be regarded as

11

incorporated in and forming part of the contract of service with B.O.A.C.

of every member of the A.E.S.D. It follows accordingly that strike action

or threats of strike action by employees of B.O.A.C. who were members

of the A.E.S.D. would constitute breaches or threats of breaches by them

of their service contracts. So it is of the essence of the Appellant's case

that the acts of which he has complained constituted threats of wrongful

acts, that is, of breaches of contract, aimed and directed at the Appellant's

employment, so as to cause, as they did, its determination; and that such

acts were therefore actionable at the Appellant's suit.

I was for myself somewhat troubled in the course of the argument by

the question, what precisely were the " threats " on the part of the three

Defendants of which the Appellant complained. The answer to the question

is, however, as I conceive, to be found in the form of the second question

put to the jury by Sachs J. and the jury's answer thereto—the form of

such question having, as your Lordships were informed, been agreed by

the learned counsel appearing on both sides before the learned Judge. The

question was as follows: " Was a threat to take strike action against

" B.O.A.C. to secure the withdrawal of the Plaintiff from the Design Office

" made by " each of the three Defendants?—and the jury gave an affirmative

answer in each case. I am satisfied that the form of the question and

the answer given must be taken to have meant that each Defendant

threatened that strike action would in fact be taken by all the members

of the A.E.S.D. unless the Appellant's services were terminated. The

Ihreat, therefore, made by each Defendant was not merely that he himself

would go on strike (for the coercive effect of such a threat standing by

itself would be negligible—and the second Defendant Mr. Silverthorne

was not himself in fact in the service of B.O.A.C.); nor was it, on the

one hand, mere information that a strike would or might occur or, on

the other, a threat to procure such strike action. It was, as the words

of the question implied, a threat that strike action on the part of all the

A.E.S.D. men would in fact occur unless the Plaintiff were withdrawn

from the Design department. And since all three Defendants were officials

of the Union there can be no doubt that they could effectively so threaten

and were understood by B.O.A.C. so effectively to threaten. It may,

moreover, be added that on the 10th January, 1956, a resolution to that

effect had been passed by the Union men and a written copy of the

resolution was immediately afterwards handed by the third Defendant to

a representative of B.O.A.C.

Assuming, therefore, (1) that each Defendant did so threaten and effec-

tively threaten, (2) that, because of the special term deemed to be incor-

porated in each union man's service contract, the threat was of unlawful

action on the part of all these men in the sense of constituting a threat

to commit a breach of their service contracts and, (3) that the threats were

directed at the Appellant, being designed to cause an end of his employ-

ment with B.O.A.C.; can the Appellant successfully sue the Defendants

for the damage he thereby suffered? This single problem has inevitably

been dissected into three separate questions, viz., (1) Is there a tort or

wrong known to the English law as the tort of intimidation such that,

although the party intimidated is not the party claiming to recover, the

last mentioned party can sue the persons who did the intimidating on the

ground that their object was to damnify him, as they did? (2) If so, are

the wrongful acts which the person or persons threatened, by way of

intimidation, to do confined to acts in themselves criminal or tortious

or do they extend to other so-called " wrongful " acts including particularly

breaches of contract? (3) If the tort of intimidation does so extend, then

is the Appellant's common law right of action defeated by the terms of

either section 1 or section 3 of the Trade Disputes Act, 1906, seeing

that, as is here conceded, the acts of intimidation of which the Appellant

complains were done in the course of furtherance of a Trade Dispute within

the meaning of that Act?

Upon the first of these three questions which I have formulated all the

members of the Court of Appeal, after a careful consideration of the many

authorities and dicta upon the subject, agreed with Sachs J. in giving to

12

it an affirmative answer. My Lords, it seems to me that in the year 1963

it is not sensible or possible to deny such a wrong, at any rate where the

illegal acts threatened are criminal or tortious in character and where the

threats are sufficiently substantial and coercive to cause real damage to

the person against whom they are aimed and directed ; and the person

entitled to recover may be either the party intimidated or may be a third

party where the intention and effect of the threat is to injure such third party.

I do not in the circumstances propose for myself to go again through

all the authorities. I am content to start with the citation (quoted by

Pearson L.J. in the Court of Appeal) from the well-known judgment of

Bowen L.J. in the case of the Mogul Steamship Co., Ltd. v. McGregor, Gow

& Co., 23 Q.B.D. 598, and to add only citations from the speech of Lord

Watson in Allen v. Flood (sup.) and from the speech of Lord Dunedin in

Sorrell v. Smith (sup.).

In the Mogul Steamship case, Bowen L.J. said (see p. 614): "No man,

" whether trader or not, can, however, justify damaging another in his

" commercial business by fraud or misrepresentation. Intimidation, obstruc-

" tion and molestation are forbidden ; so is the intentional procurement

" of a violation of individual rights, contractual or other, assuming always

" that there is no just cause for it. The intentional driving away of

" customers by shew of violence . . . the impeding or threatening servants

" or workmen; the inducing persons under personal contracts to break

" their contracts ; all are instances of such forbidden acts ".

My citations from Lord Watson are as follows (see [1898] A.C. pp. 96,

97 and 98):

" There are, in my opinion, two grounds only upon which a person

" who procures the act of another can be made legally responsible for

" its consequences. In the first place, he will incur liability if he

" knowingly and for his own ends induces that other person to commit

" an actionable wrong. In the second place, when the act induced is

" within the right of the immediate actor, and is therefore not wrongful

" in so far as he is concerned, it may yet be to the detriment of a

" third party ; and in that case, according to the law laid down by the

" majority in Lumley v. Gye, the inducer may be held liable if he can

" be shewn to have procured his object by the use of illegal means

" directed against that third party." Again later: "Assuming that the

" Glengall Iron Company, in dispensing with the further services of

" the respondents, were guilty of no wrong, I am willing to take it

" that any person who procured their act might incur responsibility

" to those who were injuriously affected by it, if he employed unlawful

" means of inducement directed against them. According to the

" decision of the majority in Lumley v. Gye, already referred to, a

" person who by illegal means, that is means which in themselves are

" in the nature of civil wrongs, procures the lawful act of another,

" which act is calculated to injure, and does injure, a third party,

" commits a wrong for which he may be made answerable. So long

" as the word ' means' is understood in its natural and proper sense

" that rule appears to me to be intelligible ; but I am altogether unable

" to appreciate the loose logic which confounds internal feelings with

" outward acts, and treats the motive of the actor as one of the means

" employed by him."

I turn finally to the speech of Lord Dunedin in Sorrell v. Smith (sup.).

The noble Lord first quoted (see pp. 718, 719) from a judgment which he

had delivered in the Scottish case of Mackenzie v. Iron Trades Employers'

Insurance Association, 1910 S.C., 79, and which he thereby affirmed Then,

after referring to numerous other cases, including that of Ware and de

Freville, Ltd. v. Motor Trade Association (sup.), he said, at p. 730 of the

Report :

" Expressing the matter in my own words, I would say that a threat

" is a pre-intimation of proposed action of some sort. That action must

" be either per se a legal action or an illegal, i.e., a tortious action.

" If the threat used to effect some purpose is of the first kind it gives

13

" no ground for legal proceeding; if of the second, it falls within the

" description of illegal means, and the right to sue of the person injured

" is established."

I shall have something to say hereafter about the use by Lord Dunedin

of the phrase " i.e., a tortious action ". But for the purpose of answering

the first of the questions which I have posed, I think that the citations which

I have made must now be accepted as correctly stating the law; and I add

only my acknowledgment of the judgments and reasoning upon this question

of Sellers, Donovan and Pearson L.JJ., in the Court of Appeal, and par-

ticularly the analysis of the growth of the tort of intimidation stated in

Pearson L.J.'s judgment, which I respectfully and gratefully adopt.

I therefore agree with the view expressed by the Court of Appeal that

there has been established as a wrong and as part of the English law the

tort of intimidation. I am willing to concede that the tort is one of relatively

modern judicial creation (though Pearson LJ. in the course of his analysis

referred to some authorities of respectable antiquity) and that its full

extent and scope have not (at least before the present case) been authori-

tatively determined and may well, indeed, even by your Lordships' judg-

ments in this case, still not have been finally stated. But that is, after all,

in accordance with the well-known principles of our law, one of the charac-

teristics of which is (as has been pointed out by many eminent legal scholars,

including Cardozo, C.J.) that its principles are never finally determined

but are and should be capable of expansion and development as changing

circumstances require, the material subject matter being " tested and re-

" tested " in the law's laboratories, namely the courts of justice.* Moreover,

as observed by Professor Holdsworth in his history of the Law of England,

volume 8, pages 392ff, the tort of conspiracy, as now understood, is also

one of relatively modern exposition differing from the ancient tort of

conspiracy (which as Professor Holdsworth points out is in reality now

equivalent to malicious prosecution) and has arisen out of the circumstances

of modern industrial relations. So also, as I conceive, has the tort of

intimidation. Mr. Gardiner forcibly argued, upon an analysis of the various

cases in which the alleged tort has arisen, that it was in truth originally

and still is no more than an aspect of the law or tort of nuisance. According

to Mr. Gardiner, it was in truth invented by Sir John Salmond.

But, with all respect to Mr. Gardiner's argument, it is now, as I have

said, in my opinion too late to deny the reception of the tort of intimidation

into the company of English wrongs. So far, I have agreed with the Court

of Appeal. But I respectfully differ from the Court of Appeal in thinking

[hat the wrong of intimidation must stop short so as to comprehend

only threats of criminal or tortious acts and thus to exclude threats of

breaches of contract. I am aware that the only direct authorities for such

an extension of the wrong are the two Irish cases of Cooper v. Millea and

others, 1938 I.R. 749 before Gavan Duffy, J. and Riordan v. Butler and

others, 1940 I.R. 347 in which O'Byrne, J. followed Gavan Duffy, J. I am

aware also that in the former case the learned Judge erred in attributing

a dictum in support of his view to Lord Dunedin in Sorrell v. Smith and

that in fact the noble Lord in that case used the words which I have

quoted "... that action must be either per se a legal action or an illegal,

" i.e., a tortious action". I cannot, however, think that by his use of

the formula " id est" Lord Dunedin was intending to lay it down that only

threats of tortious actions would constitute the wrong of intimidation. The

attention of your Lordships was also properly drawn to all the relevant

dicta that have fallen from the judges since that of Bowen, L.J. in the

Mogul Steamship case down to the present time, and I would concede that

upon the face of them these dicta may tend more to support the restriction

of the tort than its extension so as to include threats of breach of contract-

though they cannot be said in that respect to be uniform; see, for example,

the use of the word " unlawful " by Lord Lindley in South Wales Miners'

Federation v. Glamorgan Coal Company, Limited, [19051 A.C. 239, at 253.

"To break a contract is an unlawful act, or, in the language of Lord

Nature of the Judicial Process (published by Yale University Press) p.23.

32227 A 8

14

" Watson in Allen v. Flood, ' a breach of contract is in itself a legal wrong'.

"... A breach of contract would not be actionable if nothing legally

" wrong was involved in the breach". To this last citation Lord Justice

Donovan referred in his judgment in the present case. I venture, like

Lord Lindley, to refer to Lord Watson's speech in Allen v. Flood where

(at page 94 of the report) the noble Lord cited and adopted the language

of Bowen, L.J. in the Mogul Steamship case "... the term ' wrongful'

"imports in its term the infringement of some right". But in none of

the reported cases (except the Irish cases) was the question with which

your Lordships are now concerned raised as relevant for decision, and the

language in the many judgments to which your Lordships have been

referred was, as I conceive, intended to be but illustrative and was in any

event upon the present question obiter.

I feel therefore free to approach the question as a matter of principle;

and so approaching it, I cannot for my part see any persuasive basis

for drawing the line so as to exclude from the wrong of intimation threats

of breaches of contract. I cannot find in accordance with logic, reason or

common sense anything between threats to do tortious or criminal acts,

on the one hand, and threats to break contracts, on the other, which amounts

in the simile used by Lord Herschell in Allen v. Flood (sup. at page 121),

to a chasm. It is no doubt true that in attempting to extract the principle

from the present case there is some obscurity caused by the circumstances

with which we are concerned, first, by the actual nature of the alleged threats

and, second, by the presence in the background of the Trade Disputes

Act, 1906. I therefore consider other illustrations of threats to break

contracts. Suppose the case of one who carries on upon premises which

he has leased from another a business or profession, and that the landlord,

intent on damaging his tenant's business or profession, threatens to commit

breaches of his covenant of quiet enjoyment; or suppose the case of one

whose business depends upon the exploitation of a licence granted by a

patentee and the patentee (let us say) out of spite for the licensee or dislike

of his methods threatens him with breaches or revocation of the licence.

I find, for my part, great difficulty in thinking that in such cases as I

have mentioned there would be no cause of action based on intimidation

whereas such a cause of action would arise if the landlord or the patentee

threatened personal assault or other tortious act. Nor, for my part, can

I regard as conclusive the argument which clearly appealed strongly to

Pearson, L.J. that if threats of breaches of contract amounted to intimida-

tion there would be an unnatural and anomalous distinction between threats

to break a contract, on the one hand, and breaches of the contract, on

the other. It is an undoubted but established and perhaps peculiar feature

of the English law that only parties to a contract can sue for breaches

of that contract notwithstanding that some third party may be damnified

by the breach and intentionally so damnified. Such, however, has long

been the established rule in English law though (as some have thought)

the restriction now should be somewhat relaxed. Let it, however, be

supposed that A breaks his contract with B and that B, under the pressure

of the breach of contract, dispenses with the services of C—dispenses,

that is to say, without breaking his contract with C. If those are the

only facts, then it is no doubt true that C cannot prefer any claim against A.

But as a practical matter of fact what in truth in such a case happens?

If (as we are to suppose) the object of A's breach of contract with B was

to cause B to dispense with the services of C, then, B having done so,

does A proceed to renew his contractual relations with B? And, if so,

does he do so upon the terms, well understood by B, that, if B should

attempt again to re-engage C, A would once more break his contract?

If such were the true facts, then it would appear to me not seriously in

doubt that C could maintain a cause of action against A for continuing

to threaten further breaches of his contract. It seems, therefore, to me

that the cases in which the employment of one party is interfered with

by a breach of the contract with his employer by another but without

any further threats expressed or implied must indeed be rare. Indeed,

in practice I conceive a parallel would not be other than close with the

15

case of one who, instead of breaking a contract with the employer, in fact

assaulted him and as a result (as was intended by the assaulting party)

the employer disposed of the services of his servant. As in the case of

the broken contract, the inference would no doubt be that unless the

employer permanently severed his relations with his servant the third party

would assault the employer again: and so a cause of action would fairly

arise from the implied intimidation rather than from the actual assault.

But however that may be, for reasons which I have given, I cannot be

persuaded that there is in the constitution of the tort of intimidation an

essential difference between tortious or criminal acts, on the one hand,

and unlawful acts consisting of breaches of contract, on the other, or

threats of such breaches which make it necessary for us now to say that

the tort of intimidation can never extend to cover threats of breaches of

contract. So far, therefore, I agree with the learned Judge, Sachs J., in my

answer to the second question which I have above formulated, and think

that the plaintiff here had established a good cause of action at law unless

his rights are defeated by sections 1 and 3 of the Trade Disputes Act, 1906.

It becomes then necessary, as it was strictly unnecessary for the Court

of Appeal, for the House to reach a conclusion upon the third of the questions

which I have formulated, namely, upon the effect in the present case of

sections 1 and 3 of the Trade Disputes Act, 1906. Section 1 reads as

follows: —

" The following paragraph shall be added as a new paragraph after

" the first paragraph of section three 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 action-

" ' able ' ".

I believe that all your Lordships are agreed that, in the circumstances of

the present case, section 1 cannot be successfully invoked by the Respondents.

I am also of that opinion although, as later appears, I am not sure that my

concurrence with your Lordships' conclusion upon this point rests upon a

complete concurrence of reasoning. To my mind, the essential question

may be thus stated: was the quality of the acts done by each of the Defendants

such that those acts (being, as it is conceded, done in furtherance of a trade

dispute), would give to the Appellant a cause of action if done by each

Defendant upon his own, without collaboration with the other Defendants?

For reasons already given, I have concluded that a threat to do an act

unlawful in the sense of constituting a breach of contract may qualify as

falling within the tort of intimidation. No doubt if all that Mr. Barnard

did (to take his case as an example) was to threaten B.O.A.C. to break

his own contract of service unless B.O.A.C. gave notice to Mr. Rookes,

its coercive effect would (as I have earlier indicated) be negligible, if indeed

at all existent. But Mr. Barnard was an official of the Union and his

threat was (and clearly understood to be) that he in common with all his

Union colleagues would break their service contracts unless Mr. Rookes'

services were determined. Although therefore the threat was not one to

procure breaches of their service contracts by the other Union men, never-

the less the threat, properly understood as it was intended to be understood

In the light of the resolution of the 10th January, 1956, had a real and

substantial coercive force. As such, and apart from the combination with

him of the other Defendants, such threat itself constituted a cause of action

on the Appellant's part. It follows therefore, in my opinion, that section 1

of the Act provides no answer to the Appellant's claim.

Section 3 however has caused far greater difficulty. Its language is as

follows:—.

" An act done by a person in contemplation or furtherance of a trade

" dispute shall not be actionable on the ground only that it induces

" some other person to break a contract of employment or that it is an

" interference with the trade, business, or employment of some other

32227 A 9

16

" person, or with the right of some other person to dispose of his capital

" or his labour as he wills ".

Nothing in the present case turns upon the first part of the section, since

there was here no breach of the Appellant's contract " procured " by the

acts of the Defendants. It is with the second part of the section that your

Lordships are concerned and it will, I hope, be useful to repeat the relevant

words. They are: " An act done by a person in ... furtherance of a trade

" dispute shall not be actionable on the ground only that ... it is an

" interference with the . • . employment of some other person ".

I believe that all your Lordships have in the end reached the conclusion

that upon their true construction and in light of the relevant law as it was

understood at the date of the passing of the Trade Disputes Act the words

which I have repeated cannot protect the Respondents in the present case.

The problem, upon its face, is simple enough: what is meant by the few—

and the simple—words " An Act . . . shall not be actionable on the ground

" only that . . . "? As I believe all your Lordships are agreed, the answer

to the problem is to be found by enquiring whether " the acts " complained

of are, as such, wrongful only upon the ground (in such a case as the present

that they constitute or result in an interference with some person's employ-

ment. If this be the correct nature of the enquiry, then the answer in this

appeal is that the acts complained of are not wrongful only upon the ground

that they interfered with the Appellant's employment; for they are also

wrongful on the ground of constituting the tort of intimidation. The

alternative analysis which has, I confess, appealed to me places perhaps

greater emphasis upon the word " actionable " so that the essential question

posed by the statutory language is, whether the acts complained of are

actionable on the part of some particular person on the ground only that

they interfered with that person's employment. Applying such a test to the

present case the question then is resolved thus: were the acts of the

Defendants actionable at the suit of the Plaintiff upon the ground (and only

upon the ground) that they interfered with his employment? And if that

be the right question then, as I conceive, the answer must be in the

affirmative since the Plaintiff was not himself intimidated and the only

ground upon which he can complain of the Defendants' acts is that they

resulted (as they were intended to do) in an interference with his (the

plaintiff's) employment with B.O.A.C.

Let me say at once that I do not at all differ from your Lordships in

thinking that the same principle of interpretation must be applied to the first

part as to the second part of section 3 ; for the essential formula—" shall

" not be actionable on the ground only that " —is equally applicable to

both parts of the section. So if the test which has appealed to me is applied

where the first part of the section is involved, that is in a case where there

has been a breach of the contract of service of someone in the Plaintiff's

position, it would follow that protection is equally given, where there exists

a trade dispute, whether the acts which brought about the breach of contract

were as regards the employer wrongful (e.g. constituted the tort of intimida-

tion) or consisted merely of persuasion without any threat or any other

unlawful act. It is, however, as I understand, the view of all your Lordships

that if the case supposed were one where the breach of contract of service

were brought about by threats or other unlawful acts, then no protection

would be afforded by the first part of the section.

My Lords, I am indeed conscious of the fact that the view upon the sup-

posed case entertained by your Lordships appears to have the support of

no less an authority than that of Lord Loreburn, who was Lord Chancellor

at the time of the passing of the Trade Disputes Act, 1906.

I have in mind the celebrated passage in his speech in Conway v. Wade,

[1909] A.C. 506 at p. 511.

" It is clear that, if there be threats of violence, this section gives

" no protection, for then there is some other ground of action besides

" the ground that ' it induces some other person to break a contract',

" and so forth. So far there is no change. If the inducement be to

17

" break a contract without threat or violence, then this is no longer

" actionable, provided always that it was done ' in contemplation or

" ' furtherance of a trade dispute '. . .. In this respect there is a change.

" If there be no threat or violence, and no breach of contract, and

" yet there is ' an interference with the trade, business, or employment

" ' of some other person, or with the right of some other person to

" ' dispose of his capital or his labour as he wills', there again there

" is perhaps a change. It is not to be actionable, provided that it

" was done ' in contemplation or furtherance of a trade dispute'."

I shall, I hope, be excused from quoting further at length from Lord

Loreburn's speech.

It is said indeed with force that the first part of the language which I

have quoted shows that Lord Loreburn's view was that no protection would

be given by the section where the wrong of intimidation done to an employer

had the effect of inducing him to break his service contract. It is therefore

said that (in Lord Loreburn's view) the first part of the section was only

intended to give relief where the breach of contract was procured by per-

suasion unaccompanied by any wrongful acts—in other words, to give relief

only in cases which were in the year 1906 thought to fall strictly within

the scope and authority of Lumley v. Gye 2 E and B. 216: though as regards

the second part of the section, Lord Loreburn was careful to express no

concluded view. I must also add that in no subsequent case has there been

any doubt or qualification expressed in regard to Lord Loreburn's statement

of the effect of the first part of the section ; though it is also true that the

particular point which your Lordships are now asked to resolve has never,

in fact, come before the courts for decision.

Having regard to the unanimity of your Lordships' view upon this matter

I have not thought it right formally to dissent. Nonetheless, I have not felt

able to resolve the doubts which I have felt in favour of your Lordships'

views and in case the section should hereafter come before Parliament

for review I have thought it right to express more fully the argument which

has appealed to me in favour of the alternative view of the construction

of section 3, namely that the acts of the defendants of which the Appellant

complains are actionable at his suit because (and only because) they have

constituted and resulted (as they were intended to do) in an interference

with the Appellant's employment by B.O.A.C. I do not forget that in

construing the material language of section 3 regard should properly be had

to the state of the law as it should be taken to have been (and to have

been understood by Parliament to be) in 1906. It is also no doubt true

that in 1906 the " leading heresy" in Lord Dunedin's language—see

Sorrell v. Smith at page 719—had not been exposed and dissipated, viz.,

that acts which were in themselves lawful might nonetheless be actionable

if it were shewn that they were " maliciously " directed against another

person, i.e., were deliberately intended to damage such other person par-

ticularly in his employment; and it may indeed be that such heresy has

been entertained until the present time. I here make the point, however,

that the first part of the citation from Lord Loreburn may have been

directed to the position of the person who (unlike the Appellant in the

present case) is himself intimidated and who may well therefore (like one

who sues another for the tort of negligence) have a cause of action against

the wrong-doer altogether distinct from the damage by way of loss of employ-

ment which he may suffer from the wrong.

I do not, however, fail to appreciate the point that Parliament may,

in enacting the second part of section 3 of the Act of 1906, have intended

to resolve the " heresy " above mentioned in favour of the Trade Union

when the (lawful) acts complained of were done in furtherance of a trade

dispute; though the result would be, in light of later judicial decisions, to

make that part of the section (unlike its initial part) merely declaratory of

the law and therefore, in effect, nugatory. But whatever may have been

(or may be assumed to have been) the Parliamentary intention in 1906 the

question before your Lordships must be to construe, according to the

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18

ordinary sense of the language used, the terms of the enactment. So much

has been forcibly and authoritatively stated by Lord Macnaghten (and

the other noble Lords) in the case of Vacher and Sons Ltd. v. London Society

of Compositors [1913] AC 107. Lord Macnaghten at pp. 117 and 118 of

the Report said:

" Now it is 'the universal rule', as Lord Wensleydale observed in

" Grey v. Pearson, that in construing statutes, as in construing all other

" written instruments ' the grammatical and ordinary sense of the word is

" ' to be adhered to, unless that would lead to some absurdity, or some

" ' repugnance or inconsistency with the rest of the instrument, in which

" ' case the grammatical and ordinary sense of the words may be

" ' modified, so as to avoid that absurdity and inconsistency, but no

" ' further'. Acts of Parliament are, of course, to be construed

" ' acording to the intent of the Parliament' which passes them. That

" is ' the only rule ' said Tindal C.J., delivering the opinion of the

" judges who advised this House, in the Sussex Peerage Case. But his

" Lordship was careful to add this note of warning: ' If the words of

" ' the statute are in themselves precise and unambiguous, then no more

" ' can be necessary than to expound those words in their natural and

" ' ordinary sense. The words themselves alone do, in such case, best

" ' declare the intention of the lawgiver'. Nowadays, when it is a

" rare thing to find a preamble in any public general statute, the field

" of inquiry is even narrower than it was in former times. In the

" absence of a preamble there can, I think, be only two cases in which

" it is permissible to depart from the ordinary and natural sense of the

" words of an enactment. It must be shewn either that the words taken

" in their natural sense lead to some absurdity or that there is some

" other clause in the body of the Act inconsistent with, or repugnant to,

" the enactment in question construed in the ordinary sense of the

" language in which it is expressed."

Applying then this test, the question persists, notwithstanding any heresy

formerly entertained, what acts are actionable at the suit of any person,

" only on the ground " that they interfere with that person's employment?

And if that test is applied to the present case the conclusion would be that

the acts of which the Appellant here complains are not otherwise, at his suit,

actionable

We are here concerned with acts, that is to say " unlawful " threats

constituting intimidation not of the Appellant himself but of the Appellant's

employers aimed and intended to interfere with the Appellant's employment.

As I have more than once observed, the Appellant was not himself

intimidated ; but if I am right in thinking that the " unlawful " acts com-

plained of comprehend threats of breaches of contract as well as threats of

tortius actions, then, according to the law as I think it has emerged, the

Appellant would undoubtedly have a good cause of action, unless the acts

complained of had been done in furtherance of a trade dispute. It is

however relevant, upon this view of the effect of section 3 of the Act of 1906,

to consider also the case of the person who is directly intimidated. The

attempt to extract the relevant principles from the present case is, as I

have already intimated, to some extent bedevilled by the circumstances of

the case, including the possible difficulty in properly stating the nature of the

" threats " of the defendants and the admitted fact that whatever was done

by the defendants was done in truth in furtherance of a trade dispute. I

take, therefore, by way of example the simple case of one who intimidates

another by threats of personal violence. I take the case of A, engaged

in some profession or business. I assume that B, from motives of intense

personal dislike of A, uses threats of personal violence to A of real coercive

force intended (and effective) to interfere with A's business. If, as a result

of B's threats, A is compelled to abandon his business or profession he will,

according to the view of the Court of Appeal as well as of your Lordships,

have a cause of action against B and such cause of action will be founded

upon the tort of intimidation. If the only effect of the intimidation is to

"interfere" with A's business—if, that is to say, the only "damnum"

19

suffered by A from B's injuria is damage to A's business—then the question

remains whether, if the acts of intimidation were done in furtherance of a

trade dispute, section 3 of the Act of 1906 would provide a good defence

to A's claim. Upon this question I express no view. But clearly the damage

to A might not be so confined—he might well, as a consequence of B's

intimidation, suffer in many ways including health, and, if he did, then, as

I conceive, his cause of action against B would be founded on the tort of

intimidation and would not be confined, by reference to the damage suffered,

to interference with his business. I take by way of analogy the case where B,

by careless driving of his motor car, seriously injures A. In such a case

the damage suffered by A may comprehend the fact that, as a result of his

injuries, he is unable to continue to carry on his business or profession.

Nonetheless his cause of action against B would be founded on B's negli-

gence and plainly it could not fairly be said that the " only ground " upon

which, at A's suit, B's acts were actionable was that they interfered with A's

business. Does not similar reasoning apply in the case where the person

complaining of the tort of intimidation is the person himself intimidated?

In a case therefore in which, pursuant to a trade dispute, threats were made

—say by members or officials of a trade Union—direct to one who was not

a member of the Union, it should follow that the person threatened could

properly claim redress on the ground of intimidation since the damage

suffered by him was not limited to and dependent upon interference with

his employment. That question if and when it arises will be decided upon

the particular facts of the case. Where, however, as in the present case,

the complainant has not himself been -intimidated, his cause of action must

depend, and must depend exclusively, upon his claim that the threats to a

third party (namely, his employers) were made with the deliberate intent

of affecting his own job. If they were, then (apart from section 3 of this

Act of 1906) he would have a cause of action; but if the threats were made

in fact in furtherance of a trade dispute the result is, upon the alternative

view of construction which has appealed to me, that his cause of action,

his right to complain, is necessarily and inevitably destroyed by what I take

to be the plain meaning of the words of the section.

I should add here that I have been somewhat troubled by the words

"... is an interference ..." in the section ; since the acts complained of

may fairly be said not themselves to be, but rather to have resulted in, such

an interference. But the difficulty arises whichever view is taken of the

construction of section 3, and I have felt bound to conclude that the word

" is" must in its context mean and comprehend the effect of the acts of

which complaint is made. Were it otherwise, indeed, the section would be

incompetent to cover the case of acts in themselves lawful but by their

effect intended to damage the business or employment of the complainant.

In other words, if by the use of the word " is " Parliament intended to confine

the operation of the section to cases in which the " acts " in question of

themselves operated as an interference with the business or employment

of another, the section would, so far as I can see, have been inevitably without

practical effect. I therefore have felt compelled to the view that by the

word " is " Parliament meant and intended " is by its effect or intention ".

I should add that, with all respect to the opposite view, it does not seem to

me that any assistance one way or the other is to be derived from section 4

of the Act, which in terms gives absolute immunity to Trade Unions them-

selves ; for, on the alternative view of its effect which has appealed to me,

section 3 falls far short of giving a corresponding immunity to those whose

acts procure a breach of some person's contract or interfere with his employ-

ment. Nor does it seem to me that the alternative view can be said to

involve giving wholly unreasonable licence to persons doing wrongful acts

in contemplation of furtherance of a trade dispute: for as I have endeavoured

to illustrate, the person (i.e., in the ordinary case, the employer) is not

deprived of the right to invoke the jurisdiction of the courts where he has

been the victim of the wrongful acts except at any rate in a case where his

only ground for complaining of the wrongful acts—the only " damnum "

suffered by him as their result—was that they interfered with his business.

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20

After all, on any view the only persons against whom proceedings could

be taken by anybody in respect of acts done in contemplation or furtherance

of a trade dispute would (except perhaps in very rare cases indeed) be

individuals like the defendants in the present case whose ability to pay

damages would be greatly limited. Moreover, in cases of the kind which

I have in mind I hope and believe that the Trade Unions in our country

are sufficiently responsible and influential to see that acts done by their

members in the course of trade disputes are not wholly irresponsible.

I have, for the reasons earlier stated, attempted to set down fully the

grounds which appear to me to support the alternative view of the construc-

tion of section 3. I add only that, as I have felt, the vital word may be

said to be " actionable " and not, for example, " wrongful " or " capable of

" giving rise to a cause of action ". The use of the word " actionable "

inevitably provokes the question "actionable on whose part?": and the

alternative answer to the question involves only that there should be read

into the section such words as " on the part of any person " which the use

of the word " actionable " may be said inevitably to require. Nonetheless,

having attempted to express my doubts and the reasons for them I do

not upon this matter formally dissent from your Lordships.

There remains the final question fully argued upon the resumed hearing

of the appeal, namely, whether, assuming the Appellant to be entitled to

succeed in his action, he could claim what are called " exemplary damages ".

Upon this difficult question, falling how to be considered for the first time

by your Lordships' House, I have had the advantage of reading the opinion

prepared by my noble and learned friend, Lord Devlin, who, at the end

of it, dealt exhaustively with this subject. For the reasons which Lord Devlin

gives, I agree entirely with his conclusion that awards of exemplary damages

ought to be strictly limited to the two classes of case specified by him, neither

of which comprehends the present case ; and I share my noble friend's

opinion that your Lordships should now overrule the decision of the C.A.

in the case of London v. Ryder [1953] 2 Q.B. 202.

In all the circumstances I agree that the House should now make an

order in the form proposed by my noble and learned friend Lord Reid.

Lord Hodson

MY LORDS,

The Appellant worked as a draughtsman for B.O.A.C. at London Airport

where, from 1951, the Union called the Association of Engineering and

Shipbuilding Draughtsmen (A.E.S.D.) had an informal " 100 per cent,

"membership" agreement with the employers. On 1st April, 1949, the

employers' and the employees' sides entered into an agreement in writing,

which provided by clause 4 that no lock-out or strike should take place

and that, if a dispute occurred, arbitration procedure should be followed.

In 1955 the Appellant, who had disapproved of the policy of the Union,

resigned his membership. The Respondents Barnard and Fistal, branch

chairman and local shop steward, and Silverthorne, who was a paid official

of the Union, advocated strike action if the Appellant remained in his

employment as a draughtsman.

A resolution was passed and communicated to B.O.A.C. " that if the Non-

" Unionist Mr. D. E. Rookes is not removed ... a withdrawal of labour

" of all A.E.S.D. Membership will take place ". In face of this threat

B.O.A.C. first suspended and later dismissed the Appellant, after giving him

due notice which expired on the 16th March, 1956. The Appellant brought

his action on the 25th June, 1957, for damages for the injury which the

Respondents had caused him by threatening B.O.A.C. in the manner

indicated, so that B.O.A.C. had been induced to terminate his services.

It was agreed by both sides that the terms of the 1949 agreement formed

" so far as applicable part of the contract employment" of A.E.S.D.

21

members at the London Airport office. It was also agreed that a trade

dispute existed at all material times concerning the continuation of the

Appellant in the employment of B.O.A.C. while he was not a member of

A.E.S.D., and that all the acts of the Respondents were done in furtherance

of that trade dispute.

The jury found that there was a conspiracy to threaten strike action to

secure the withdrawal of the Appellant and that all three Respondents were

parties, that all three had threatened to take strike action directed to the

same end, and that, their threats having caused the dismissal of the Appellant,

he should be awarded £7,500 damages. The learned Judge held that the

tort of intimidation had been committed by each defendant, that the threats

to do unlawful acts, i.e., to break contracts of employment by departing

from the terms of the 1949 agreement, resulted in reasonably foreseeable

damages to the Appellant.

The Respondents have throughout maintained that the action is mis-

conceived, in that there is no such tort as intimidation and, further, that if

(here is such a tort it does not extend to cover this case involving, as it

does, no threat of violence or of any criminal or tortious act, but a mere

threat to break a contract, that is, a breach of obligations undertaken by

private treaty between two persons. Such a threat, it is said, ought not to

give a remedy to an outsider.

The Court of Appeal reversed the decision of the learned Judge, holding

that, although the tort of intimidation existed, it did not cover the case of

a threat to break a contract.

No doubt many of the old cases in which a plaintiff has been held entitled

to recover damages from a defendant who has intimidated a third party

can be explained on the ground of nuisance, or some other recognized tort,

but some cannot, and I think that, of these, Garret v. Taylor (Cro. Jac. 567)

and, more particularly, Tarleton v. M'Gawley (1 Peake 270) cannot be so

explained, and I agree with your Lordships that the existence of this tort

is established by authority.

The main argument of the Respondents has been directed to persuade

your Lordships that this tort is of a restricted nature, having its roots in

violence and threats of violence, and should not be extended to cover the

case of workmen who threaten to break their contract with their employers

if they, the employers, refuse to terminate the employment of an individual

workman, as happened in this case. It cannot be disputed that the limited

view of the tort which commended itself to the Court of Appeal finds support

in authority which does not appear to have contemplated that breach of

contract was within the field of unlawful acts giving rise to the tort of

intimidation. Donovan L.J., pertinently referred to the Criminal Law

Amendment Act, 1871, which makes it an offence to use violence, threats,

intimidation, molestation or obstruction with a view, among other things,

to coercing an employer into ceasing to employ a workman. The threats

and intimidation had to be acts such as would justify a justice of the peace

in binding over the person so threatening or intimidating to keep the peace.

This Act did not accordingly make it unlawful to threaten to strike. It

was repealed in 1875 by the Conspiracy and Protection of Property Act,

1875, and in 1891 is was decided, in two cases cited by the learned Lord

Justice, that the word " intimidation " could not be construed more severely

than as defined by the Act of 1871 (see Gibson v. Lawson [1891] 2 Q.B. 545

and Curran v. Treleaven [1891] 2 Q.B. 553). Subject to specific exceptions,

such as breaches of contracts of service by employees of municipal gas and

water undertakings and breaches of contract involving danger to life, risk

of serious bodily injury and destruction of or serious injury to valuable

property, a threat to break a contract is no longer unlawful in the sense

of being criminal.

In the past there has been much discussion in the conspiracy cases about

the word " threat", but there is now no necessity to be careful to distinguish

between a threat and a warning on the basis that one is a threat to do an

illegal act and the other a warning to do something lawful. As Lord

22

Dunedin put it in Sorrell v. Smith [1925] A.C. 700 at p. 730 "A threat is

" a pre-intimation of proposed action of some sort. That action must be

" either per se a legal or an illegal, i.e., a tortious, action. If the threat

" used to effect some purpose is of the first kind, it gives no ground for

" legal proceeding; if of the second, it falls within the description of illegal

" means, and the right to sue of the person injured is established." This

language, while making clear that the word " threat" of itself is neutral,

does nothing to support the contention of the Appellant that breach of

contract was the kind of unlawful act which could be envisaged by the

tort of intimidation. Illegal is treated as equivalent to tortious by the use

of the link " id est". In the Crofter's case [1942] AC 435, Lord Wright

said: " There is nothing unlawful in giving a warning or intimation that if

" the party addressed pursues a certain line of conduct, others may act in

" a manner which he will not like and which will be prejudicial to his

" interests so long as nothing unlawful is threatened or done. It is clear

that the threat must be a threat to do something independently unlawful.

Breach of contract is unlawful and Sachs J., in rejecting the Respondents'

contention that this was outside the scope of intimidation, followed the per-

suasive authority of two Irish cases, Cooper v. Millea and others 1938 I.R.

749 and Riordan v. Butler and others 1940 I.R., 347, in the earlier of which

reliance was placed by Gavan O'Duffy on the speech of Lord Dunedin in

Sorrell v. Smith which does not, however, support the propostion that a

threat to strike in breach of contract is unlawful and constitutes unlawful

means.

In Huntley v. Thornton [1957] 1 W.L.R. 321 at p. 344, Harman J. said,

in relation to employees who threatened to strike: "If, however, their

" actions amount to threats of illegal strike action—that is to say, action

" to withdraw labour in breach of contract—then those acts were tortious

" and illegal". As Sachs, J. pointed out, this observation of Harman, J.

was obiter.

The argument which seems to have carried the greatest weight in the

Court of Appeal in this case is that which may be called the privity of

contract argument. As Pearson L.J. put it if the extension contended for

by the Appellant were made it would overturn or outflank the elementary

principles of contract law. These, speaking broadly, exclude the jus tertii

and restrict the rights and obligations of a contract to the parties thereto.

See two decisions of your Lordships' House, viz., Dunlop Pneumatic Tyre

Co., Ltd. v. Selfridge and Co., Ltd. [1915] AC 847 and Midland Silicones,

Ltd. v. Scruttons, Ltd. [1962] AC 446. Various examples have been given

shewing the apparent absurdity of giving relief to someone in the position

of the Appellant when breach of contract is threatened and denying relief

when the contract is in fact broken.

As my noble and learned friend, Lord Devlin, points out in the speech

which I have had the privilege of reading, there is really no absurdity in

the instances given. The vice of the Respondents' action is the threat to

break and not the breach itself, which would not have the adverse effect

on the Appellant which was caused by the threat to break. Much of

the argument which seeks to restrict the rights under a contract to the

parties to it in a situation such as the present can be found in the power-

ful dissenting judgment of Coleridge C.J., in Lumley v. Gye, but this judg-

ment does not represent the law, and the view of the majority that a party

injured by breach of contract has his remedy against one who has induced

the breach is now part of our law—subject to any defence there may be

by way of justification or under the Trade Disputes Act, 1906, to which I

must refer later. I would therefore reject the privity of contract argument.

It would, I think, to-day, be more anomalous to draw the line short of

breach of contract than beyond it. In the old days the question of breach of

contract by workmen simply did not arise for the reason that they did not

have contracts of employment, as a rule, to break. Now the situation is

different, and in this case the employees not only agreed to a fixed period

of notice on either side for termination of the employment but also not

23

to strike, which I take it means not to take part in any concerted withdrawal

of labour, with or without notice.

It would be strange if threats of violence were sufficient and the more

powerful weapon of a threat to strike were not, always provided that the

threat is unlawful. The injury and suffering caused by strike action is very

often widespread as well as devastating, and a threat to strike would be

expected to be certainly no less serious than a threat of violence. That

a breach of contract is unlawful in the sense that it involves the violation

of a legal right there can be no doubt. Lord Herschell in Allen v. Flood

[1898] A.C. 1, at p. 121, emphasized this point in the passage where he

expressed the opinion that there was a chasm between maliciously inducing

a breach of contract and maliciously inducing a person not to enter into a

contract. The one is unlawful and the other is lawful.

I do not think your Lordships are laying down any new principle in

including a threat to break a contract under the head of intimidation. It

is no more than an application of the existing principle to a case which

has not been before considered, and I would therefore accept the Appellant's

argument that the tort of intimidation would be available to him but for the

effect of the Trade Disputes Act, 1906. Section 1 of the Act reads —

" 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."

I agree with the learned Judge that, once it is accepted that the threat to act

in breach of the 1949 agreement constitutes intimidation and is actionable

as a tort, if it is likely to harm the Appellant and is followed by reasonably

foreseeable damage, it is not open to the Respondents to rely on this section

by saying in effect that the damage cannot be attributed to any particular

act of the Respondents and therefore the act done is not actionable without

the element of combination. Section 1 therefore provides no defence.

Section 3, however, is in a different category. It reads:—

" An act done by a person in contemplation or furtherance of a

" trade dispute shall not be actionable on the ground only that it induces

" some other person to break a contract of employment or that it is an

" interference with the trade, business, or employment of some other

" person, or with the right of some other person to dispose of his capital

" or his labour as he wills."

It is upon the construction of this section that the most difficult question

falls to be decided.

There is a material contrast between sections 3 and 4.

The latter prevents actions of tort being instituted against Trade Unions

in any circumstances, and may be said to place Trade Unions outside the

law. The former is not so framed as to give " carte blanche " to those

acting in contemplation or furtherance of a trade dispute. Actions are not

forbidden to be entertained but certain acts done are not to be " actionable

" on the ground only that" etc. If the end result of both limbs of the

section, inducement of some other person to break a contract on the one

hand, interference with the trade, business or employment of some other

person or with the right of some other person to dispose of his capital or his

labour as he wishes on the other hand, had alone to be taken into con-

sideration, a result not unlike that reached by section 4 would follow, for

whatever the nature of the tort the ground of action would be either the

" inducement " or the " interference ".

It would seem therefore at any rate very unlikely that in wording section 3

in the way it did, in contrast to the general words conferring immunity to

be found in section 4, Parliament could have intended to go so far as to

give protection to members of a trade union in every case where the con-

sequences of the act, whether the act itself is lawful or unlawful, were that a

breach of contract has been induced or that a person's employment had been

interfered with.

24

Further support for what I may term the limited, as opposed to the

licentious, scope of section 3 is to be found in section 2 of the Act, which

licenses picketing but only for the purposes of peaceful persuasion.

As my noble and learned friend, Lord Reid, has pointed out, the general

plan of section 3 is to treat both limbs in the same way, and I will not detain

your Lordships by repeating in my own language the reasons which he

gives, and with which I respectfully agree, for holding that on principle

and authority section 3 affords no protection if there are threats or violence

and if, as your Lordships all hold, the threat to break a contract amounts to

unlawful intimidation. The dictum of Lord Loreburn in Conway v. Wade

[1909] A.C. 506 has strong persuasive authority and has been accepted, I

think rightly, in a number of cases to which your Lordships have been

referred down to the present time.

The intimidation is actionable, and the Plaintiff is entitled to sue on that

ground, not " on the ground only " that his employment has been interfered

with. This last is the damage which he has suffered, it is not the only

ground of his action. I would allow the appeal, but there must be a new

trial on the question of damages for the reasons to be given by my noble

and learned friend. Lord Devlin.

Lord Devlin

MY LORDS,

On 16th March. 1956, the Appellant's employment, which had lasted

nine years with B.O.A.C., was lawfully determined by notice. The reason

why it was terminated was because on 10th January, 1956, the members

of the A.E.S.D.. a trade union to which the Appellant belonged and from

which he had resigned, served notice on B.O.A.C. " that if the non-unionist

" Mr. D. E. Rookes, is not removed from the Design Office by 4 p.m.

" Friday, 13th January, 1956. a withdrawal of labour of all A.E.S.D. member-

" ship will take place". On 13th January the Appellant was suspended

from his employment and the strike thereby averted ; and thereafter notice

terminating his employment altogether was given to him, as I have said.

The three Respondents were officials of the union and two of them were

employed by B.O.A.C.

It is not disputed that the notice constituted a threat of breach of contract

by the members of A.E.S.D. It is true that any individual employee could

lawfully have terminated his contract by giving seven days notice and if

the matter is looked at in that way, the breach might not appear to be a very

serious one. But that would be a technical way of looking at it. As

Donovan, L.J. said in the Court of Appeal, the object of the notice was not

to terminate the contract either before or after the expiry of seven days.

The object was to break the contract by withholding labour but keeping the

contract alive for as long as the employers would tolerate the breach without

exercising their right of rescission. In the second place, there was an

agreement in force between A.E.S.D. and B.O.A.C. in which the former

undertook that no strike of its members would ever take place; and it is

admitted that that term formed part of the contract of service of each

member with B.O.A.C. I agree with the submission made by Mr. Silkin

for the Appellant that a strike means a concerted withdrawal of labour in

furtherance of a trade dispute, whether or not the withdrawal is effected

after proper notice has been given. It is common ground that the issue

whether a non-unionist should continue to be employed creates a trade

dispute.

It is not therefore denied that the service of the notice was an infringement

of B.O.A.C.'s rights. But the question is whether the Respondents thereby

infringed any right of the Appellant. Since all that the Respondents did

was admittedly done in the furtherance of a trade dispute, it is idle to

enquire what possible causes of action there are available to the Appellant

25

at common law without enquiring at the same time to what extent they are

curtailed by statute.

Conspiracy, which suggests itself at once as a possible cause of action,

is covered by section 1 of the Trade Disputes Act, 1906. There are, as is

well known, two sorts of conspiracies, the Quinn v. Leathem type which

employs only lawful means but aims at an unlawful end, and the type

which employs unlawful means. Section 1 of the Act contains the formula

which negatives the first type as a cause of action where there is a trade

dispute. In the latter type, which in my opinion is not affected by the

section, the element of conspiracy is usually only of secondary importance

since the unlawful means are actionable by themselves.

Section 3 provides a second barrier for the Appellant to surmount. It

grants immunity in respect of certain acts which include, it is said, (I shall

have later to examine carefully the language in which the immunity is

granted) an inducement of "some other person to break a contract of

" employment " and " an interference with the trade business or employment

" of some other person ".

The Appellant's choice of remedies being restricted in this way, the only

wrong which he asserts as having been committed by the Respondents is

the tort of intimidation. On this the Respondents say, first that there is

no such tort; secondly, that if there is, the Respondents did not commit it;

and thirdly, that if they did commit it, they are given immunity by section 3

because the intimidation resulted in an interference with the employment of

the Appellant by B.O.A.C.

My Lords, in my opinion there is a tort of intimidation of the nature

described in chapter 18 of Salmond on Torts, 13th edition, page 697. The

tort can take one of two forms which are set out in Salmond as follows:

" (1) Intimidation of the Plaintiff himself

" Although there seems to be no authority on the point, it

" cannot be doubted that it is an actionable wrong intentionally

" to compel a person, by means of a threat of an illegal act, to do

" some act whereby loss accrues to him: for example, an action

" will doubtless lie at the suit of a trader who has been compelled

" to discontinue his business by means of threats of personal

" violence made against him by the Defendant with the intention."

" (2) Intimidation of other persons to the injury of the Plaintiff

" In certain cases it is an actionable wrong to intimidate other

" persons with the intention and effect of compelling them to act in a

" manner or to do acts which they themselves have a legal right to

" do which cause loss to the Plaintiff: for example, the intimida-

" tion of the Plaintiff's customers whereby they are compelled to

" withdraw their custom from him, or the intimidation of an

" employer whereby he is compelled to discharge his servant, the

" Plaintiff. Intimidation of this sort is actionable, as we have said,

" in certain classes of cases; for it does not follow that, because

" a Plaintiff's customers have a right to cease to deal with him if

" they please, other persons have a right as against the Plaintiff

" to compel his customers to do so. There are at least two cases

" in which such intimidation may constitute a cause of action: -

" (i) When the intimidation consists in a threat to do or procure

" an illegal act;

" (ii) When the intimidation is the act, not of a single person,

" but of two or more persons acting together, in pursuance of a

" common intention."

As your Lordship are all of opinion that there is a tort of intimidation

and on this point approve the judgments in both courts below, I do not

propose to offer any further authorities or reasons in support of my con-

clusion. I note that no issue on justification was raised at the time and

there is no finding of fact upon it. So your Lordships have not to consider

what part, if any, justification plays in the tort of intimidation.

26

Your Lordships are here concerned with the sort of intimidation which

Salmond puts into the second category, and with the first of Salmond's two

cases. The second case is, so Salmond later observed, " one form of the

" tort of conspiracy ". That form is the Quinn v. Leathem type, so that it

is no use to the Plaintiff here. He relies upon "a threat to do or

" procure an illegal act", namely, a breach of contract. Doubtless it would

suit him better if he could rely on the procuring of a breach of contract,

for that is a tort; but immunity from that is guaranteed in terms by section 3.

So he complains only of the threat to break the service contracts and the

breach would undoubtedly be an act actionable by B.O.A.C. though it is

neither tortious nor criminal. He does not have to contend that in the tort

of intimidation, as in the tort of conspiracy, there can be, if the object is

injurious, an unlawful threat to use lawful means. I do not think that

there can be. The line must be drawn according to the law. It cannot be

said that to use a threat of any sort is per se unlawful; and I do not see

how, except in relation to the nature of the act threatened, i.e., whether it is

lawful or unlawful, one could satisfactorily distinguish between a lawful

and an unlawful threat.

This conclusion, while not directly in point, assists me in my approach to

the matter to be determined here. It is not, of course, disputed that if the

act threatened is a crime, the threat is unlawful. But otherwise is it enough

to say that the act threatened is actionable as a breach of contract or must

it be actionable as a tort? My Lords, I see no good ground for the latter

limitation. I find the reasoning on this point of Professor Hamson (which

Sellers, L.J. sets out in his judgment though he does not himself accept it)

very persuasive. The essence of the offence is coercion. It cannot be said

that every form of coercion is wrong. A dividing line must be drawn and

the natural line runs between what is lawful and unlawful as against the

party threatened. If the defendant threatens something that that party

cannot legally resist, the Plaintiff likewise cannot be allowed to resist the

consequences ; both must put up with the coercion and its results. But if

the intermediate party is threatened with an illegal injury, the Plaintiff who

suffers by the aversion of the act threatened can fairly claim that he is

illegally injured.

Accordingly, I reach the conclusion that the Respondents' second point

fails and on the facts of this case the tort of intimidation was committed.

I do not share the difficulties which the Lords Justices felt about the idea of

admitting breach of contract into the tort of intimidation. Out of respect

to them I must state what those difficulties are and how in my opinion

they can be satisfactorily resolved.

I think that in one form or another they all stem from the error that

any cause of action by the third party, that is the Appellant, must in some

way be supplemental to or dependent upon a cause of action by B.O.A.C.

Thus, it is said to be anomalous that on the facts of this case the Appellant

should be able to sue the Respondents when B.O.A.C. could not. The best

way of answering that is to grant that B.O.A.C. would not be able to sue

and to assert, as I shall seek to show, that there is nothing anomalous about

it. But there were introduced into the argument a suggestion that B.O.A.C.

could in fact have sued because although there was no actual breach of

contract, one was threatened and therefore there was an anticipatory breach.

Against that, it was said that B.O.A.C. could not have sued for an antici-

patory breach unless they first elected to rescind, which they never did.

I dare say that is right, but I do not think it matters at all whether B.O.A.C.

could sue or not. The two causes of action—B.O.A.C.'s and the Appellant's

—are in law quite independent; and in fact they are virtually alternative

because it is difficult to visualise (except in one case) a set of facts on which

both could sue.

This last statement is best examined in relation to a threat of physical

violence which would unquestionably constitute intimidation. If A threatens

B with physical violence unless he harms C, B can either resist or comply.

If he resists, B might obtain an injunction against A (as he could also in the

27

case of a threatened breach of contract if the contract were of a kind that

permitted that remedy); or if A carries out his threat, B can sue for assault

and obtain damages. In neither case can C sue because he has suffered no

harm. If B complies with the threat, B cannot sue for damages because

ex hypothesi there has been no assault; and he is not likely to obtain an

injunction against the execution of a threat which he has already taken other

means to avoid. But C will be able to sue because through B's compliance

he has been injured. There is no anomaly about this; and if one substitutes

" breach of contract" for " physical violence ", the position is the same.

The only case in which B and C are both likely to sue is if they both sue

for the tort of intimidation in a case in which B has harmed himself by

also harming C.

Then it is said that to give C a cause of action offends against the rule

that one man cannot sue on another's contract. I cannot understand this.

In no circumstances does C sue on B's contract. The cause of action arises

not because B's contract is broken but because it is not broken; it arises

because of the action which B has taken to avert a breach.

Then it is asked how it can be that C can sue when there is a threat to

break B's contract but cannot sue if it is broken without a threat. This

means, it is argued, that ,if A threatens first, C has a cause of action; but if

he strikes without threatening, C has no cause of action. I think that this

also is fallacious. What is material to C's cause of action is the threat and

B's submission to it. Whether the threat is executed or not is in law quite

immaterial. In fact it is no doubt material because if it is executed (whether

it be an assualt or a breach of contract) it presumably means that B has not

complied with it; and if B has not complied with it, C is not injured; and

if C is not injured, he has no cause of action. Thus the reason why C can

sue in one case and not in the other is because in one case he is injured

and in the other he is not. The suggestion that it might pay A to strike

without threatening negatives the hypothesis on which A is supposed to be

acting. It must be proved that A's object is to injure C through the instru-

mentality of B. (That is why in the case of an " innocent" breach of

contract, which was remarked upon by Sellers, L.J., that is, one into which

A was forced by circumstances beyond his control, there could never be

the basis of an actionable threat.) If A hits B without telling him why, he

can hardly hope to achieve his object. Of course A might think it more

effective to hit B first and tell him why afterwards. But if then B injures

C, it would not be because B had been hit but because he feared that he

might be hit again. So if in the present case A.E.S.D. went on strike

without threatening, they would not achieve their object unless they made

it plain why they were doing so. If they did that and B.O.A.C. then got

rid of the Appellant, his cause of action would be just the same as if

B.O.A.C. had been threatened first, because the cause of the injury to the

Appellant would have been A.E.S.D.'s threat, express or implied, to continue

on strike until the Appellant was got rid of.

Finally, it is said that if a threat of breach of contract constitutes intimida-

tion, one party to a contract could be sued for intimidation if he threatened

reprisals. Suppose, for example, A has agreed to deliver goods to B in

monthly instalments but has not made payment for the first a condition

precedent to delivery of the second. If he threatens to withhold the second

until payment has been made for the first, is he intimidating B? I doubt

it But the case introduces questions not in issue here—whether a threat

in such circumstances would be justifiable and whether it is intimidation

to try to force a man into doing what the law, if invoked, would compel

him to do.

I find therefore nothing to differentiate a threat of a breach of contract

from a threat of physical violence or any other illegal threat. The nature

of the threat is immaterial, because, as Professor Hamson points out, its

nature is irrelevant to the plaintiff's cause of action. All that matters to

the plaintiff is that, metaphorically speaking, a club has been used. It does

not matter to the plaintiff what the club is made of—whether it is a physical

club or an economic club, a tortious club or an otherwise illegal club. If an

28

intermediate party is improperly coerced, it does not matter to the plaintiff

how he is coerced.

I think therefore that at common law there is a tort of intimidation and

that on the facts of this case each of the Respondents has committed it, both

individually (since the jury has found that each took an overt and active

part) and in combination with others. I must add that I have obtained no

assistance from the numerous dicta cited to show what constitutes " unlawful

" means " in the action of conspiracy. In some of the dicta the language

suggests that the means must be criminal or tortious and in others that

breach of contract would do; but in no case was the point in issue. More-

over, while a decision on that point might have been most illuminating, it

is not the point I have been considering. I have not been considering what

amounts to unlawful means in the tort of conspiracy. I am not saying

that a conspiracy to commit a breach of contract amounts to the tort of

conspiracy ; that point remains to be decided. I am saying that in the tort

of intimidation a threat to break a contract would be a threat of an illegal

act. It follows from that that a combination to intimidate by means of

a threat of a breach of contract would be an unlawful conspiracy; but it

does not necessary follow that a combination to commit a breach of contract

simpliciter would be an unlawful conspiracy.

I have now reached the Respondents' third defence and must consider

whether the Trade Disputes Act provides them with a good defence. The

Respondents have advanced two separate statutory defences, the first based

on section 1 and the second on section 3.

The argument on section 1 is that in order to find on the facts of this

case sufficient proof of the tort of intimidation, it is necessary, so it is said,

to bring in agreement or combination by the back door; and that is for-

bidden by section 1. The argument is applied in particular and in general.

In particular, it is applied in the case of Silverthorne, the Respondent who

is not an employee. He had therefore no contract to break ; he cannot

be sued (this is admittedly plain from section 3) for procuring a breach

by others; therefore the only cause of action against him is conspiracy

or joint intimidation, involving either agreement or combination. In general,

the argument is applied in the following way. To sustain the tort of

intimidation, it must be shown that there was an operative threat. Damage

is an essential part of the cause of action and it must be shown that the

damage was caused by the threat. The threat of any single man to stop

work would not have influenced B.O.A.C. It was the power of the com-

bination that did that; and that makes proof of the combination (which

section 1 will not allow) an essential part of the Appellants' cause of

action against all three Respondents.

The first part of this argument, i.e. its application in particular to

Silverthorne, in my opinion reads too much into section 1. To estab-

lish a cause of action of any sort a Plaintiff must show an injurious act.

If the act that injures him is not by itself actionable, the Plaintiff can succeed

at common law only if he shows that it was " done in pursuance of an

" agreement or combination" to injure him. He is then setting up a

Quinn v. Leathem cause of action and if that is his position, section 1

prevents him from suing. But if the injurious act is actionable without

the allegation of conspiracy, that is, if it is by itself unlawful, section 1 does

not apply at all. It does not prevent the Plaintiff from suing the doer

of the act and the conspirators, if any, as well. Section 1 does not

prevent actions of conspiracy altogether; it restricts them.

I turn now to the second part of the argument. It is true that the tort

of intimidation cannot be committed unless the intimidator has or is

believed by the party threatened to have the coercive power which is

of the essence of the tort. It may be that the power belongs to someone

else who has placed it at the disposal of the intimidator and will himself

do what the intimidator says: it is then the intimidator who is in control.

Or it may be that an intimidator will employ an agent to convey the

threat and then such a person may be a tortfeasor as well. Or it may be

that the coercive power is dispersed among many, no single man being

29

strong enough by himself. All these three alternatives involve agreement

or combination and then, however the act is done, it is done pursuant to

an agreement or a combination. When the tort is committed by a single

man, that man must be a man with enough coercive power to achieve his

object. If the necessary coercive power is dispersed, there must be agreement

or combination before it can be effectively used.

If this is accepted, as I think it should be, as a correct analysis of the

tort, the question becomes one of the true interpretation and effect of the

language of section 1. It turns on what exactly is meant by "actionable "

and what is the test of actionability to be imposed. The section may

mean that in the particular case to which it is being applied, the action

will fail unless the Plaintiff can prove that a single person has in fact

committed the tort of intimidation. Or it may mean that the nature

of the act must be such as to make it actionable even if done without any

agreement or combination. If the former view is right, then on the

assumption of fact that, as is probable, B.O.A.C. would not have been

coerced by any individual threat, this appeal must fail. If the latter is

right, it is sufficient that intimidation is not of its nature a tort that

cannot be committed by a single person and therefore it is of its nature

actionable if done without agreement or combination. After doubt and

hesitation I have reached the conclusion that the second interpretation

should be preferred. This is consistent with the view I have already

expressed about this section, namely, that its object is to exclude Quinn v.

Leathem conspiracies in trade disputes. It is distinguishing between wrongs

that can be committed singly and those that cannot.

The defence based on section 3 is also one about which I have had

much doubt and hesitation. It also turns on the interpretation and effect

of the section, the material words being " actionable on the ground only

" that ". There are two limbs in the section and I agree that " only "

covers both. The second limb can for the purposes of this case be

expressed shortly as an interference with employment. Thus the effect

of the section can be stated as follows: an act is not to be actionable

on the ground only (a) that it induces a breach of contract of employ-

ment, or (b) that it interferes with employment.

The problem of interpretation to which this section gives rise is, I

think, broadly similar to the problem created by section 1. Is it dealing

with the requisites of a cause of action in a given case or is it dealing

with the nature of the tort which it is designed to exclude? I invite your

Lordships to consider this problem first in relation to the first limb of

section 3. What are the requisites for a cause of action for inducing

a breach of contract? There must be, besides the act of inducement, know-

ledge by the defendant of the contract in question and of the fact that

the act induced will be a breach of it; there must also be malice in

the legal sense, that is, an intention to cause the breach and to injure the

plaintiff thereby and an absence of justification ; and there must be special

damage, i.e. more than nominal damage, caused to the plaintiff by the

breach. These three elements or requisites are the grounds on which an

action for inducing a breach of contract must be based. If any one of them

is missing, there is no cause of action.

If then one treats the section as dealing with the requisites of a cause

of action, one finds oneself in difficulties with the cardinal phrase " action-

able on the ground only that", This speaks of a sole ground. The

tort of inducing a breach of contract—and this is true of most torts-

is not based on a single ground. An act of inducement is not by itself

actionable. One man may induce another to take a certain course without

the least idea that the other had pledged himself not to take it: that is not

actionable at common law and needs no absolution from the statute.

What are the ways around this difficulty? One way is to refuse to recognise

it at all and to insist upon the statute being taken literally. No one would

suggest that in the present state of the common law mere inducement could

be actionable. It might perhaps be suggested, not very convincingly, that

at one time it was thought that it might be. At any rate it can be argued

30

that on its literal construction this is what the statute clearly implies. From

this it would follow that if you can add any other element to inducement,

such as knowledge or intention or malice, the act is not brought only on

the ground of inducement and therefore is not barred by the section. This

would have the startling result that an action for inducing a breach of

contract in a trade dispute could be brought notwithstanding the section.

This is an approach to the section which would certainly suit the Appellant

in the present case. For then he could say that if the addition of an element

such as knowledge, intention or malice excluded the operation of the section,

so must the addition of an element of intimidation. But if the addition

of intimidation to inducement excludes the operation of the first limb, it must

follow that the addition of intimidation to interference excludes the operation

of the second limb; and that is the result the Appellant wants to achieve.

I do not think the Appellant can succeed as easily as that because I do not

think that, If the section is dealing with the requisites of a cause of action,

it can possibly be given a literal meaning.

What alternative is there,—still on the assumption that the section is

dealing with the requisites of a cause of action? An alternative is to treat

the only ground as meaning an essential ground. This reading means that if

a plaintiff cannot establish a cause of action without setting up as part of

it an act of inducement, the action is barred by the section. If this reading

is applied to the second limb, it is fatal to the Appellant here since an

essential part of his cause of action is injury done to him by interference

with his employment.

If the section has to be interpreted on the assumption that it is dealing

with the requisites of a cause of action, this reading of it is, I think, preferable

to a literal reading. But undoubtedly it is straining the language to read

the section as if for the words " on the ground only " there was substituted

" if it is an essential ground ". The two phrases are quite different in their

import and would produce quite different results in their application to the

first limb. Suppose that a defendant slandered a plaintiff so as to induce the

plaintiff's employer by that means to dismiss him. It seems extremely unlikely

that Parliament intended to authorise the use of foul means in the furtherance

of a trade dispute. It is natural to think that the use of slander would enable

the plaintiff to sue. But if the only ground means an essential ground the

action would be prevented. For unless by chance there were some other

and unintended item of special damage arising from the slander, it would

in 1906 have been an essential ground of the plaintiff's claim that the words

used by the defendant had caused or induced his dismissal.

In the light of these considerations and having found that the proper

construction of section 1 requires one to read it as dealing with the nature

of the act and not with the requisites of a cause of action in a given case, it

is natural to ask whether " actionable " should not be given the same sort of

meaning in both sections; and whether section 3 also should not be

interpreted as dealing with the nature of the tort.

On such a reading " the ground" is not used to define an

ingredient in a tortious cause of action but to define the whole

tort by reference to the essential ground by which the tort is

usually described. Inducing a breach of contract is descriptive of a

tort which comprises all the elements of knowledge, malice, inducement

and damage. If the means of inducement are honestly persuasive and

nothing more, the inducer commits the tort of inducing a breach of contract

and nothing more. But if the means are slanderous or deceitful, he may

commit also the tort of defamation or of deceit. Then if an action is brought,

it will not be only on the ground of inducing a breach of contract but

also on the ground of slander or deceit, and the section will not prevent it.

So if the means used are intimidatory, and since it is now clear that there

is in law a tort of intimidation which is just as much separate from the tort

of inducing a breach of contract as are slander and deceit, an action is not

prevented by the section. This is the meaning that was clearly given to the

section by Loreburn L.C. in Conway v. Wade [1909] A.C. 506 and although

31

the passage is obiter, it is entitled to great weight. He said: " It is clear

" that, if there be threats or violence, this section gives no protection, for

" then there is some other ground of action besides the ground that 'it

" ' induces some other person to break a contract', and so forth. So far

" there is no change. If the inducement be to break a contract without

" threat or violence, then this is no longer actionable, ... In this respect

" there is a change."

I think that this is the way in which the section in its first limb deals

with the tort of inducing a breach of contract. Standing alone the tort is

insufficient where there is a trade dispute; but if the defendant has also

committed the tort of intimidation, he can be sued. It does not matter that

what was achieved by the intimidation was a breach of contract.

The same reasoning must, I think, be applied to the second limb, if it

is assumed (as I shall start by assuming) that there is a tort of malicious

interference with trade, business or employment. The section must be

designed to deal with both torts in the same way. If as a result of the

Respondents' action B.O.A.C., instead of giving the Appellant lawful notice

had dismissed him summarily, it would follow that he could have sued the

Respondents for intimidation, though not for inducing a breach of contract,

and it would be no answer to say that the damage was done by means of

a breach of the contract of employment. As they gave him lawful notice,

it must follow that the Appellant can sue for intimidation, though not for

malicious interference; and likewise it is no answer to say that the damage

was done by means of interference with his employment.

What is said to be fatal to this reasoning is that there is in law no such

tort as the tort of malicious interference done by a single person. Parlia-

ment, it is argued, cannot have intended to take away by statute a right of

action that does not exist at common law. So the second limb, notwith-

standing that there is no hint in the section of any different approach to it,

cannot be construed in the same way as the first, and some other meaning

must be found for it. What is suggested is, that since interference is not by

itself actionable at common law, you must find some other element that

added to interference makes it actionable at common law, and then you

must give effect to the section by construing it as taking away that right

of action. This other element is intimidation. One might comment that

the other element might as well be said to be deceit or slander. For since

your Lordships have decided that intimidation is as much an independent

tort as deceit or slander, there seems no reason for selecting it alone as the

cause of action that is negatived. But perhaps because it is more closely

connected with interference than deceit or slander is, it is the one that the

argument in fact selects.

In order to weigh the merits of this argument, I do not think that it is

necessary for the House to decide whether or not malicious interference by

a single person with trade, business or employment is or is not a tort known

to the law. But I must at least say what I mean by such a tort. I mean,

putting it shortly, Quinn v. Leathem without the conspiracy. If one man,

albeit by lawful means, interferes with another's right to earn his living or

dispose of his labour as he wills and does so maliciously, that is, with intent

to injure without justification, he is, if there is such a tort, liable in just

the same way as he would undoubtedly be liable if he were acting in com-

bination with others. The combination aggravates but is not essential.

As I say, I do not think your Lordships need decide this point. You

are considering the construction of a statute passed in 1906 and endeavouring

to interpret it in the light of what Parliament must be taken to have intended.

If men were to be fully protected when they acted in furtherance of a trade

dispute, they must be protected against what might well happen to them if

they acted in a certain way as well as against what inevitably would happen

to them. Your Lordships do not therefore have to consider what the law

is but what in 1906 Parliament might reasonably have thought it to be.

Parliament, there can be no doubt at all, intended that Quinn v. Leathem

should not apply to trade disputes. If it was perfectly clear in 1906 that the

decision in Quinn v. Leathem depended on the element of conspiracy,

32

section 1 of the Act got rid of it. But if conspiracy was not essential to the

decision, something more was necessary: and that something more is supplied

by the second limb of section 3. Moreover, the method chosen is that

which one would expect Parliament in such circumstances to use. Statutes

are not in this respect expressed conditionally. The draftsman cannot be

expected to say by way of preface: " If it be held that interference is wrong-

" ful ". He would assume for the purpose of the enactment that it was.

If it was not, the enactment would be otiose but harmless; if it was, the

enactment would achieve the object desired.

I am not at all sure that it can be said even now with certainty what

Quinn v. Leathem decided ; but I am quite sure that in 1906 the matter was

still in doubt. This can be shewn by citations from three cases in this

House, Conway v. Wade, Sorrell v. Smith [1925] A.C. 700, and Crofter Hand

Woven Harris Tweed Co., Ltd. v. Veitch [1942] A.C.

In Conway v. Wade Loreburn L.C., speaking of the second limb of

section 3 and following on the passage I have already cited from his speech,

said: " If there be no threat or violence, and no breach of contract, and yet

" there is ' an interference with the trade, business, or employment of some

" ' other person, or with the right of some other person to dispose of his

" ' capital or his labour as he wills,' there again there is perhaps a change.

" It is not to be actionable, provided that it was done ' in contemplation or

" ' furtherance of a trade dispute '." The material words in this passage are

" perhaps a change". Lord Loreburn is there saying that interference

without threat or violence or breach of contract, might perhaps have been

actionable at common law ; and if so, the statute takes the right of action

away.

In Sorrell v. Smith three of your Lordships treated the point as doubtful.

Cave, L.C., with whom Lord Atkinson concurred, said at p. 713 :—" It does

" not necessarily follow that the existence of a combination is essential to

" the commission of the offence. There is some authority for the view that

" what is unlawful in two is not lawful in one.". Lord Sumner at p. 739

said: —" As to the part which combination or concerted action plays in an

" alleged tort of this kind, I think that this is not the occasion for expressing

" any decided opinion ". He went on to indicate that there was a good deal

to be said for thinking that combination in such a connection was really

only a particular form of intimidation.

Lord Dunedin on the other hand at 719. approving what Atkin, L.J.

had said in Ware and de Freville v. Motor Trade Association [1921] 3 K.B. 40

was quite clear that a lawful act done by one did not become

unlawful if done with intent to injure, whereas an otherwise lawful act done

by two or more did become unlawful if done with that intent. He said

that conspiracy was " the very gist and essence of the decision " in Quinn

v. Leathem. But, he said, the contrary view had not only been stated but

had gained many adherents ; and indeed he described it as " the leading

" heresy ".

In the Harris Tweed case at 487 Lord Porter said: —" More difficulty is

" to be found in explaining Quinn v. Leathem. Why should a combination

" to injure be actionable, whilst action taken by a single person for that

" purpose, and for that purpose only, is permissible? In Sorrell v. Smith,

" Cave, L.C., thought the point an open one and Lord Sumner considered

" it at least not free from doubt, but the view that a combination to do acts

" injurious to others is actionable, whereas the act of a single individual

" is not, is, I think, supported by the greater weight of authority ".

I have therefore reached the conclusion that the true effect of section 3

is that in a trade dispute it deprives the Plaintiff of any cause of action he

may have on the facts for inducing a breach of contract and any cause of

action he may have on the facts or in law for interference with his employ-

ment by lawful means; but that in neither case does it countenance the use

of tortious means. So the Plaintiff's cause of action in intimidation is not

barred by the statute.

33

This leads to the conclusion that this appeal should succeed. But there

is one argument, or at least one consideration, that remains to be noticed.

It is that the strike weapon is now so generally sanctioned that it cannot

really be regarded as an unlawful weapon of intimidation; and so there

must be something wrong with a conclusion that treats it as such. This

thought plainly influenced quite strongly the judgments in the Court of

Appeal. To give effect to it means either that illegal means ought not to

include a breach of contract; or that the statute ought to be construed as

wide enough to give protection. The Court of Appeal tended, I think, to

apply the argument to both points indiscriminately.

I see the force of this consideration. But your Lordships can, in my

opinion, give effect to it only if you are prepared either to hobble the common

law in all classes of disputes lest its range is too wide to suit industrial

disputes or to give the statute a wider scope than it was ever intended to

have.

As to the former alternative, I cannot doubt that the threat of a breach

of contract can be a most intimidating thing. The present case provides

as good an example of the force of such a threat as could be found. A

great and powerful corporation submits to it at once, for it was threatened

with the infliction of incalculable loss and of grave inconvenience to the

public which it serves. The threat is made by men who are flagrantly

violating a pledge not to strike, at least until constitutional means of

resolving the dispute have been exhausted. It is not just a technical

illegality, a case in which a few days longer notice might have made the

difference. Because of the damage that would ensue from a strike, B.O.A.C.,

no doubt in return for corresponding benefits, secured the pledge not to

strike; and it is that pledge that is being broken. Granted that there

is a tort of intimidation, I think it would be quite wrong to cripple the

common law so that it cannot give relief in these circumstances. I think it

would be oldfashioned and unrealistic for the law to refuse relief in

such a case and to grant it where there is a shake of a fist or a threat to

publish a nasty and untrue story.

I said that I thought it would be wrong to cripple the common law

in such a case, but that does not mean that I am necessarily criticising

the policy of the Trades Disputes Act. It is easy now to see that Parlia-

ment in 1906 might have felt that the only way of giving labour an

equality of bargaining power with capital was to give it special immunities

which the common law did not permit. Even now, when the scales have

been redressed, it is easy to see that Parliament might think that a strike,

whether reprehensible or not, ought not to be made a ground for litigation

and that industrial peace should be sought by other means.

It may therefore as a matter of policy be right that a breach of contract

should not be treated as an illegal means within the limited field of industrial

disputes. But can your Lordships get that out of the words of the Act?

Section 3 gives immunity from action for procuring a breach of contract but

not for the breach itself. In the Court of Appeal Donovan L.J. said with

great force: —" If one may procure the breach of another's contract with

" impunity in a trade dispute, it is certainly odd if one cannot even threaten

" to break one's own ". The section could easily have read—" shall not

" be actionable on the ground only that it is a breach of contract or induces

"some other person" etc.; but it is not so written. It may be that, as

Mr. Gardiner suggests, Parliament thought it very unlikely that an employer

would resort to action against workmen individually for breaches of contract

and that he would get very little from it if he did: see on this point National

Coal Board v. Galley [1958] 1 W.L.R., 16, at 27. Or it may be that

Parliament did not anticipate that a threat of breach of contract would be

regarded as an intimidatory weapon. Whatever the reason, the immunity

is not in the Statute; the section clearly exempts the procurer or inducer

and equally clearly does not exempt the breaker. It is not suggested

that the House can remove the oddity by reading words into the Act that

are not there.

34

So your Lordships cannot construe the Act to give protection in the ease

of a threat of a breach of contract unless you also make it wide enough to

protect the threatener of physical violence. The Act was no doubt intended

to give immunity for all forms of peaceful persuasion, but I am sure—and

Loreburn, L.C. in the passage I have cited from Conway v. Wade says as

much—that it was not intended to give protection from violent persuasion.

I do not think it would be right so as to construe it. It would mean that

under the licence of a trade dispute one man could force another out of his

job by threats of violence; and since such threats would not be actionable,

I doubt if an aggrieved party could even get an injunction to restrain their

constant repetition.

The essence of the difficulty lies in the fact that in determining what

constitutes the tort of intimidation your Lordships have drawn the dividing

line not between physical and economic coercion but between lawful and

unlawful coercion. For the universal purposes of the common law, I am

sure that that is the right, natural and logical line. For the purpose of the

limited field ot industrial disputes which is controlled by statute and

where much that is in principle unlawful is already tolerated, it may be

that pragmatically and on grounds of policy the line should be drawn

between physical and economic pressure. But that is for Parliament to

decide. What the House said in Vacher and Sons, Ltd. v. London Society of

Compositors [1913] AC 107, especially per Lord MacNaghten at 118, is

a very clear warning, if one be needed, against the interference of the courts

in matters of policy in this branch of the law.

In my opinion therefore the appeal should succeed and the judgment of

Sachs. J. on liability should be restored. Mr. Gardiner has submitted

that it ought not to be restored in its entirety. He asks for a new trial

on damages on the ground that the learned judge misdirected the jury on

this issue. The cardinal feature of the summing-up on this part of the case

was a direction to the jury that they might (Mr. Gardiner submits that it

amounted almost to " must") award exemplary damages and your Lordships

have therefore listened to a very penetrating discussion about the nature

of exemplary damages and the circumstances in which an award is appro-

priate. The Court of Appeal, having found for the Respondents on

liability did not consider this issue, so your Lordships must begin at the

beginning.

Exemplary damages are essentially different from ordinary damages. The

object of damages in the usual sense of the term is to compensate. The

object of exemplary damages is to punish and deter. It may well be thought

that this confuses the civil and criminal functions of the law; and indeed,

so far as I know, the idea of exemplary damages is peculiary to English law.

There is not any decision of this House approving an award of exemplary

damages and your Lordships therefore have to consider whether it is open

to the House to remove an anomaly from the law of England.

It must be remembered that in many cases of tort damages are at large,

that is to say, the award is not limited to the pecuniary loss that can be

specifically proved. In the present case, for example, and leaving aside any

question of exemplary or aggravated damages, the Appellant's damages

would not necessarily be confined to those which he would obtain in an

action for wrongful dismissal. He can invite the jury to look at all the

circumstances, the inconvenience caused to him by the change of job and

the unhappiness maybe by a change of livelihood. In such a case as this,

it is quite proper without any departure from the compensatory principle

to award a round sum based on the pecuniary loss proved.

Moreover, it is very well established that in cases where the damages are

at large the jury (or the judge if the award is left to him) can take into

account the motives and conduct of the defendant where they aggravate the

injury done to the plaintiff. There may be malevolence or spite or the

manner of committing the wrong may be such as to injure the plaintiff's

proper feelings of dignity and pride. These are matters which the jury can

take into account in assessing the appropriate compensation. Indeed, when

35

one examines the cases in which large damages have been awarded for

conduct of this sort, it is not at all easy to say whether the idea of compensa-

tion or the idea of punishment has prevailed.

But there are also cases in the books where the awards given cannot be

explained as compensatory, and I propose therefore to begin by examining

the authorities in order to see how far and in what sort of cases the exemplary

principle has been recognised. The history of exemplary damages is briefly

and clearly stated by Professor Street in his recent work on the law of

damages at page 28. They originated just 200 years ago in the cause

celebre of John Wilkes and the North Briton in which the legality of a

general warrant was successfully challenged. Mr. Wilkes' house had been

searched under a general warrant and the action of trespass which he

brought as a result of it is reported in Wilkes v. Wood (1763) Lofft, 1.

Serjeant Glynn on his behalf asked at page 3 for " large and exemplary

" damages" since trifling damages, he submitted, would put no stop at

all to such proceedings. Pratt, C.J., in his direction to the jury said at 18:—

" Damages are designed not only as a satisfaction to the injured person, but

" likewise as a punishment to the guilty, to deter from any such proceeding

" for the future, and as a proof of the detestation of the jury to the action

" itself ". The jury awarded £1,000. It is worth noting that at page 19 the

Chief Justice referred to " office precedents " which, he said, were not

justification of a practice in itself illegal, though they might fairly be

pleaded in mitigation of damages. This particular direction exemplifies

very clearly his general direction, for a consideration of that sort could have

no place in the assessment of compensation.

In Huckle v. Money (1763) 2 Wils. K.B. 205 the plaintiff was a journeyman

printer who had been taken into custody in the course of the raid on the

North Briton. The issue of liability having already been decided the only

question was as to damages and the jury gave him £300. A new trial was

asked for on the ground that this figure was " most outrageous ". The

plaintiff was employed at a weekly wage of one guinea; he had been in

custody for only about 6 hours and had been used " very civilly by treating

" him with beefsteaks and beer ". It seems improbable that his feelings of

wounded pride and dignity would have needed much further assuagement;

and indeed the Chief Justice said that the personal injury done to him

was very small, so that if the jury had been confined by their oath to

consider mere personal injury only, perhaps £20 would have been thought

sufficient. But they had done right in giving exemplary damages. The

award was upheld.

In Benson v. Frederick (1766) 3 Burr. 1845 the Plaintiff a common

soldier, obtained damages of £150 against his Colonel who had ordered

him to be flogged so as to vex a fellow officer. Mansfield C.J. said that

the damages " were very great, and beyond the proportion of what the man

" had suffered ". But the sum awarded was upheld as damages in respect

of an arbitrary and unjustifiable action and not more than the defendant

was able to pay.

These authorities clearly justify the use of the exemplary principle; and

for my part I should not wish, even if I felt at liberty to do so, to diminish

its use in this type of case where it serves a valuable purpose in restraining

the arbitrary and outrageous use of executive power.

Some considerable time elapsed thereafter before the principle eo nomine

was extended in other directions. Six cases, decided in the course of the

next century, have been cited to your Lordships but in none of them was

there any clear ruling. They are Tullidge v. Wade (1769) 3 Wils. K.B. 18,

Leith v. Pope (1779) 2 Black. W. 1327, Merest v. Harvey (1814) 5 Taunton

442, Sears v. Lyons (1818) 2 Stark. 317, Williams v. Curry (1845) 1 C.B.

841 and Emblen v. Myers (1860) 6 H and N 54. They cover seduction,

malicious prosecution and trespass.

It is only in the first and last of these six cases that there is any express

reference to the exemplary or punitive principle. In the first of them, the

seduction case, Wilmot, C.J. said that actions of this sort were brought for

36

example's sake. In the last of them, Wilde, B. at the trial directed the

jury that they might find exemplary damages; and in the argument

on the rule nisi a dictum of Church, J. in the Supreme Court of the United

States was used in which he said: —" There is no principle better estab-

" lished, and in practice more universal, than that vindictive damages or

" smart money may be and is awarded by the verdict of juries." But the

verdict was upheld without recourse to the principle. The other four

cases are cited because they show that the jury was permitted to consider

matters which would not ordinarily be admissible in assessments of

compensation; and in at least two of them, Leith v. Pope and Merest v.

Harvey, the sums awarded were so large as to suggest that they were intended

to be punitive.

It is not until Bell v. Midland Railway Company (1861) 10 C.B. (N.S.)

287, that there is a clear dictum. The plaintiff brought an action against

the railway company for wrongful obstruction of access from the railway

to his wharf. It does not appear that at the trial exemplary damages were

asked for, and it appears at 295 that Erle C.J. at the trial told the jury to

confine the damages to pecuniary loss proved. The jury appears to have

gone beyond that and awarded £1000. In the argument on the rule nisi

Erle C.J. said at 304 that when the company's conduct was looked at, care-

less whether they were doing right or wrong, they prevented all access to

the plaintiff's wharf for the purpose of extinguishing his trade and advancing

their own profit. He was therefore entitled to ample compensation and

£1000 was very temperate. Willes J. said at 307:—"I must say, that, if

" ever there was a case in which the jury were warranted in awarding

" damages of an exemplary character, this is that case. The defendants

" have committed a grievous wrong with a high hand and in plain violation

" of an Act of Parliament; and persisted in it for the purpose of destroying

" the plaintiff's business and securing gain to themselves. If it were neces-

" sary to cite any authority for such a position, it will be found in the case

" of Emblen v. Myers which I cite only for illustration."

In more recent times there are three obiter dicta of importance in the

Court of Appeal in which the principle has been recognised, namely, Bowen

L.J. in Whitham v. Kershaw (1885) 16 Q.B.D. 613 at 618 and in Finlay

v. Chirney (1888) 20 Q.B.D. 494 at 504 and by Scott L.J. in Dumbell v.

Roberts [1944] 1 All E.R., 326, at 330. McCardie J. in Butterworth v.

Butterworth [1920] p. 126 also obiter, expounded the principle. There are

three cases in the Court of Appeal in which the principle has been stated

and applied.

In Owen v. Reo (1934) 151 L.T. 274 the plaintiff, a motor dealer, had on

his premises for display a chassis belonging to the defendants which they

were at liberty to remove at any time except that it was specially provided

that if the plaintiff had constructed a body on the vehicle he should be at

liberty to dismantle it before removal. The defendants without notice to the

plaintiff entered his garage, took the chassis and dismantled the body in the

street, the process being observed by some members of the public including

one of the plaintiff's creditors. It does not appear that any injury was done

to the plaintiff's property but the Court of Appeal said it was a case for

exemplary damages and awarded £100.

Loudon v. Ryder [1953] 2 Q.B. was a case of trespass and assault.

The plaintiff was a young girl and the defendant broke into her flat and tried

to turn her out. Her injuries were comparatively trivial but his behaviour

was outrageous. The jury awarded her £1500 damages for trespass, and a

£1000 for assault; and £3000 as exemplary damages, making £5500 in all.

This award was upheld in the Court of Appeal.

In Williams v. Settle [1960] 1 W.L.R. 1072 the defendant was a professional

photographer who had taken photographs of the plaintiff's wedding, the

copyright being vested in the plaintiff. Two years later, when an event had

occurred which caused the plaintiff to be exposed to publicity, the defendant

sold the photographs to two national newspapers and their publication

caused the plaintiff great distress. The County Court judge awarded the

37

plaintiff £1,000 damages for breach of copyright. This award was upheld

in the Court of Appeal and in both courts it was described as one of

exemplary damages. The Court of Appeal considered that exemplary

damages could have been awarded at common law but they relied also

on the Copyright Act, 1956, sec. 17 (3) which provides that the court may

have regard to the flagrancy of the infringement and to any benefit shewn

to have accrued to the defendant by reason of the infringement and if

satisfied that effective relief would not otherwise be available to the plaintiff

may award such additional damages as it considers appropriate.

My Lords, I express no view on whether the Copyright Act authorises

an award of exemplary, as distinct from aggravated, damages. But there

are certainly two other Acts of Parliament which mention exemplary

damages by name. The law Reform (Miscellaneous Provisions) Act, 1934,

sec. 1 (2) (a) provides that where a cause of action survives for the benefit

of the estate of a deceased person, the damages recoverable shall not include

any exemplary damages. The Reserve and Auxiliary Forces (Protection of

Civil Interests) Act, 1953, sec. 13 (2) provides that in any action for

damages for conversion in respect of goods falling within the statute the

court may take into account the defendant's conduct and award exemplary

damages.

These authorities convince me of two things. First, that your Lordships

could not without a complete disregard of precedent, and indeed of statute,

now arrive at a determination that refused altogether to recognise the

exemplary principle. Secondly, that there are certain categories of cases

in which an award of exemplary damages can serve a useful purpose

in vindicating the strength of the law and thus affording a practical

justification for admitting into the civil law a principle which ought

logically to belong to the criminal. I propose to state what these two

categories are ; and I propose also to state three general considerations

which in my opinion should always be borne in mind when awards of

exemplary damages are being made. I am well aware that what

I am about to say will, if accepted, impose limits not hitherto expressed

on such awards and that there is powerful, thought not compelling, authority

for allowing them a wider range. I shall not therefore conclude what I

have to say on the general principles of law without returning to the

authorities and making it clear to what extent I have rejected the guidance

they may be said to afford.

The first category is oppressive, arbitrary or unconstitutional action by

the servants of the government. I should not extend this category,—I say

this with particular reference to the facts of this case,—to oppressive action

by private corporations or individuals. Where one man is more powerful

than another, it is inevitable that he will try to use his power to gain his

ends ; and if his power is much greater than the other's, he might perhaps be

said to be using it oppressively. If he uses his power illegally, he must of

course pay for his illegality in the ordinary way ; but he is not to be punished

simply because he is the more powerful. In the case of the government it

is different, for the servants of the government are also the servants of the

people and the use of their power must always be subordinate to their duty

of service. It is true that there is something repugnant about a big man

bullying a small man and very likely the bullying will be a source of humilia-

tion that makes the case one for aggravated damages, but it is not in my

opinion punishable by damages.

Cases in the second category are those in which the Defendant's conduct

has been calculated by him to make a profit for himself which may well

exceed the compensation payable to the plaintiff. I have quoted the dictum

of Erle C.J. in Bell v. The Midland Railway Company. Maule J. in

Williams v. Curry, at page 848, suggests the same thing; and so does

Martin B. in an arbiter dictum in Crouch v. Great Northern Railway Com-

pany, [1856] 11 Ex. 742, at 759. It is a factor also that is taken into account

in damages for libel; one man should not be allowed to sell another man's

reputation for profit. Where a Defendant with a cynical disregard for a

38

Plaintiff's rights has calculated that the money to be made out of his wrong-

doing will probably exceed the damages at risk, it is necessary for the law

to show that it cannot be broken with impunity. This category is not con-

fined to moneymaking in the strict sense. It extends to cases in which the

Defendant is seeking to gain at the expense of the Plaintiff some object,—

perhaps some property which he covets,—which either he could not obtain

at all or not obtain except at a price greater than he wants to put down.

Exemplary damages can properly be awarded whenever it is necessary to

teach a wrongdoer that tort does not pay.

To these two categories which are established as part of the common

law there must of course be added any category in which exemplary damages

are expressly authorised by statute.

I wish now to express three considerations which I think should always

be borne in mind when awards of exemplary damages are being considered.

First, the Plaintiff cannot recover exemplary damages unless he is the victim

of the punishable behaviour. The anomaly inherent in exemplary damages

would become an absurdity if a Plaintiff totally unaffected by some oppres-

sive conduct which the jury wished to punish obtained a windfall in

consequence.

Secondly, the power to award exemplary damages constitutes a weapon

that, while it can be used in defence of liberty, as in the Wilkes cases, can

also be used against liberty. Some of the awards that juries have made in

the past seem to me to amount to a greater punishment than would be likely

to be incurred if the conduct were criminal ; and moreover a punishment

imposed without the safeguard which the criminal law gives to an offender.

I should not allow the respect which is traditionally paid to an assessment of

damages by a jury to prevent me from seeing that the weapon is used

with restraint. It may even be that the House may find it necessary to

follow the precedent it set for itself in Benham v. Gambling, and place some

arbitrary limit on awards of damages that are made by way of punishment.

Exhortations to be moderate may not be enough.

Thirdly, the means of the parties, irrelevant in the assessment of com-

pensation, are material in the assessment of exemplary damages. Every-

thing which aggravates or mitigates the Defendant's conduct is relevant.

Thus a case for exemplary damages must be presented quite differently

from one for compensatory damages ; and the judge should not allow it to

be left to the jury unless he is satisfied that it can be brought within the

categories I have specified. But the fact that the two sorts of damage

differ essentially does not necessarily mean that there should be two awards.

In a case in which exemplary damages are appropriate, a jury should be

directed that if, but only if, the sum which they have in mind to award as

compensation (which may of course be a sum aggravated by the way in

which the Defendant has behaved to the Plaintiff) is inadequate to punish

him for his outrageous conduct, to mark their disapproval of such conduct

and to deter him from repeating it, then it can award some larger sum. If a

verdict given on such direction has to be reviewed upon appeal, the appellate

court will first consider whether the award can be justified as compensation

and if it can there is nothing further to be said. If it cannot, the court must

consider whether or not the punishment is in all the circumstances excessive.

There may be cases in which it is difficult for a judge to say whether or not

he ought to leave to the jury a claim for exemplary damages. In such

circumstances and in order to save the possible expense of a new trial, I see

no objection to his inviting the jury to say what sum they would fix as

compensation and what additional sum, if any, they would award if they

were entitled to give exemplary damages. That is the course which he

would have to take in a claim to which the Law Reform Act, 1934 applied

I must now return to the authorities I have already reviewed and make

quite plain what it is that I have not accepted from them. As I have said,

damages that are at large can always be fixed as a round sum. Some juries

have in the past been very liberal in their ideas of what a round sum should

39

be and the courts which have always been very reluctant to interfere with

awards of damages by a jury, have allowed very liberal awards to stand.

Williams v. Curry might on one view be regarded as a rather extreme example

of this. It would not be right to take the language that judges have used

on such occasions to justify their non-intervention and treat their words as a

positive formulation of a type of case in which exemplary damages can be

awarded. They have used numerous epithets—wilful, wanton, high-handed,

oppressive, malicious, outrageous—but these sorts of adjectives are used in

die judgments by way of comment on the facts of a particular case. It would

on any view be a mistake to suppose that any of them can be selected as

definitive and a jury directed, for example, that it can award exemplary

damages whenever it finds conduct that is wilful or wanton.

But when this has been said, there remains one class of case for which the

authority is much more precise. It is the class of case in which the injury

to the plaintiff has been aggravated by malice or by the manner of doing the

injury, that is, the insolence or arrogance by which it is accompanied. There

is clear authority that this can justify exemplary damages, though (except in

Loudon v. Ryder) it is not clear whether they are to be regarded as in addition

to, or in substitution for, the aggravated damages that could certainly be

awarded.

It is not, I think, authority of great antiquity. The older group of six

cases which I have cited, beginning with Tullidge v. Wade, discloses no

statement of principle. In my opinion all these cases can best be explained

in principle as cases of aggravated damage, though I am not saying that in all

the cases the sums awarded can be taken as an example of what compensatory

damages ought to be. The direct authority for exemplary damages in this

category of case lies in the three modern decisions of the Court of Appeal.

I think that your Lordships, if you agree with my conclusion, are bound to

express your dissent from most of the reasoning in all of them. Owen v.

Reo and Williams v. Settle, even if the latter is considered apart from the

Copyright Act, can be justified in the result as cases of aggravated damage ;

and indeed the sums awarded could, to my mind, more easily be justified on

that ground than on the ground that they were exemplary. Loudon v. Ryder

ought, I think, to be completely overruled. The sums awarded as com-

pensation for the assault and trespass seem to me to be as high as, if not

higher than, any jury could properly have awarded even in the outrageous

circumstances of the case ; and I can see no justification for the addition of an

even larger sum as exemplary damages. The case was not one in which

exemplary damages ought to have been given as such.

This conclusion will, I hope, remove from the law a source of confusion

between aggravated and exemplary damages which has troubled the learned

commentators on the subject. Otherwise, it will not, 1 think, make much

difference to the substance of the law or rob the law of the strength which

it ought to have. Aggravated damages in this type of case can do most, if

not all, of the work that could be done by exemplary damages. In so far

as they do not, assaults and malicious injuries to property can generally be

punished as crimes, whereas the objectionable conduct in the categories in

which I have accepted the need for exemplary damages are not, generally

speaking, within the criminal law and could not, even if the criminal law

was to be amplified, conveniently be defined as crimes. I do not care for the

idea that in matters criminal an aggrieved party should be given an option

to inflict for his own benefit punishment by a method which denies to the

offender the protection of the criminal law.

Finally on this point I think that the conclusion which I have expressed

obtains strong support from the speech of Lord Atkin in Ley v. Hamilton

(1935) 153 L.T. 384 at 386. Speaking of damages for defamation Lord Atkin

said that they were not arrived at " by determining the ' real' damage and

" adding to that a sum by way of vindictive or punitive damages. It is

" precisely because the ' real' damage cannot be ascertained and established

" that the damages are at large. It is impossible to track the scandal, to

" know what quarters the poison may reach; it is impossible to weigh at all

40

" closely the compensation which will recompense a man or a woman for

" the insult offered or the pain of a false accusation. No doubt in newspaper

" libels juries take into account the vast circulations which are justly claimed

" in present times. The ' punitive ' element is not something which is or can

" be added to some known factor which is non-punitive ".

I do not think that Lord Atkin means that a sum awarded as punishment

can be arrived at in just the same way as a sum awarded as compensation.

Clearly they are different and, as the authorities I have cited on means and

mitigation show, must be arrived at in different ways. Lord Atkin puts

" punitive" in inverted commas. " So-called punitive" is what I think

he means ; and read in that way the passage is strong authority for the view

that insult offered and pain given are matters for compensation and not

for punishment.

I turn at last to the summing-up in this case. In the light of the general

principles which I have endeavoured to state, I think it is plain that the

summing-up can be extensively criticised. This is not the fault of the

learned judge. It does not appear that any argument was addressed to him

about the principles on which exemplary damages ought to be awarded and

anyway he would have felt himself bound by authorities which do not tie

your Lordships. It may be that the judge who presided at the trial of

Loudon v. Ryder can be exculpated on the same ground. In this House the

submissions have been so far ranging that I think your Lordships might

well have refused to have listened to them. But there were also submissions

about points of detail which the defendants was undoubtedly entitled to

make. If they succeeded, the House could give effect to them only by

ordering a new trial on the issue of damages. In that event the House

would have had to have given some guidance to the judge at the new trial

as to the principles on which he should direct the jury. Your Lordships

therefore thought it wise to open up the whole matter for argument and to

deal by means of an appropriate order as to costs with the plaintiff's

complaints that the defendants' submissions of law before the House were

far wider than anything that was addressed to the learned judge. I may

observe that the House is dealing only with points of law. Your Lordships

have not had to consider the evidence. The question is simply whether or

not on the facts so far as they emerge from the summing-up the learned

judge misdirected the jury in law.

The basis of the summing-up was a direction that any deliberate illegality

might be punished by exemplary damages. Here the defendants had

deliberately and knowingly broken their contracts with B.O.A.C. The case

against them was that they had sought to achieve their ends by a wildcat

strike—a flagrant use of illegal force. Their answer was that they were

provoked into this by the conduct of the plaintiff in endangering their

closed shop understanding with B.O.A.C.

It is unnecessary to quote numerous extracts from the summing-up. The

direction to the jury is crystallised in one passage at the end of it as follows.

" There it is. You have to consider, in relation to exemplary damages,

" whether this was a deliberately engineered unofficial ' wildcat' strike,

" forced by these three to use, at all costs, an illegal pressure, and whether

" on the other hand there was provocation, which could be reasonably

" regarded as provocation for that line of conduct."

My Lords, it must be plain from what I have said already that I regard

this direction as far too wide. If it does not mean that exemplary damages

can be given for every act of deliberate illegality, it certainly means that

the tort of intimidation is always punishable in that way. Mr. Gardiner

has submitted that it was virtually a direction to the jury that, the tort

of intimidation having been proved, the jury was bound to give exemplary

damages unless they thought that the Appellant by his provocative conduct

had brought it all on himself. I think that this criticism is substantially

justified.

There is nothing to bring the case within the first category I have men-

tioned. In my opinion, the facts disclosed in the summing-up do not

41

show any case for exemplary damages. It may be said by those who have

no sympathy with their actions that the Respondents and their supporters

acted oppressively but, for the reasons I have given, this is not the sort

of oppression that comes within the first category.

I doubt whether the facts disclosed in the summing-up show even a case

for aggravated damages ; a different impression may be obtained when

the facts are fully displayed upon a new trial. At present there seems to

be no evidence that the Respondents were motivated by malevolence or

spite against the Appellant. They wronged him not primarily to hurt him

but so as to achieve their own ends. If that had not been their dominating

motive, then what they did would not have been done in furtherance

of a trade dispute and the whole case has been fought on the basis that

it was. It is said that they persisted in believing that their closed shop

position was endangered by the Appellant's conduct even when their

official leaders told them that it was not. Be it so; pig-headedness will

not do. Again, in so far as disclosed in the summing-up there was no

evidence of offensive conduct or of arrogance or insolence. It was, I think,

suggested that some impolite observations were made about the Appellant,

but that is not enough ; in a dispute of this sort feelings run high and

more than hard words are needed for aggravated damages. Mr. Silkin

relied strongly on the flagrant breach of contract with B.O.A.C., and the

Respondents' open disregard of their pledges and their lack of consideration.

But this was not conduct that affected the Appellant. He was no more

distressed or humiliated by it than any of B.O.A.C.'s passengers whose

convenience, it might be said, and interests were brushed aside by the

Respondents in their determination to secure their object.

In short, I think it might very well be that if your Lordships had had

the whole of the evidence in front of you, you would have been able

to declare that on a new trial the judge should direct the jury to give

no more than that rounded figure which I have already described. I have

said as much as this because I feel that saying it may help the parties

at the end of these protracted proceedings to agree upon a figure of

damage. But I have not intended to say anything that would in any way

prejudge the character of the directions about aggravated damages which

the judge upon a new trial, if there has to be one, thinks it right to give

when he has all the material before him.

I agree with the order proposed by the noble lord on the Woolsack.

Lord Pearce

My lords,

I agree with your Lordships and with the Courts below that the tort of

intimidation has been shewn to exist both on principle and on the authorities

which are fully set out in the judgment of Pearson L.J. There would be a

strange gap in the Common Law if it provided no such remedy.

The more difficult problem is whether the threat of a mere breach of

contract can suffice to support that tort. Lord Dunedin in Sorrell v. Smith

[1925] A.C. 700, at 718 resolved certain disharmonies of the famous trio of

cases as follows :—

" In the first place, everyone has the right to conduct his own business

" upon his own lines, and as suits him best, even although the result

" may be that he interferes with other people's business in so doing.

" That general proposition. I think, may be gathered from the Mogul

" case. Secondly, an act that is legal in itself will not be made illegal

" because the motive of the act may be bad. That is the result, I think,

" of Allen v. Flood. Thirdly, even although the dominating motive in

" a certain course of action may be the furtherance of your own business

" or your own interests, as you conceive those interests to lie, you are

" not entitled to interfere with another man's method of gaining his

32227 A 12

42

" living by illegal means, and illegal means may either be means that

" are illegal in themselves or that may become illegal because of con-

" spiracy where they would not have been illegal if done by a single

" individual. I think that is the result of Quinn v. Leathem ".

The question whether " means that are illegal in themselves" include

threats of breach of contract is not directly covered by authority except in

the two Irish cases Cooper v. Millea 1938 I.R 749 and Riordan v. Butler

1940 I.R 347, which held that a threatened breach of contract constituted

illegal means. In your Lordships' House there have been dicta which each

side has called in aid but there has been no dictum which was, I think,

intending to give an answer to this particular question.

In Allen v. Flood [1898] A.C. 1 at 121 Lord Herschell pointed out thai

there was a " chasm " between cases where the act induced was a breach of

contract and cases where that act was the not entering into a contract.

If a breach of contract must be classified as either lawful or unlawful in this

context, it lies less uneasily in the latter class than in the former. As

between the parties a breach of contract is an unlawful act and creates a

legal wrong ; a party has no right to break his contract even if he offers to

pay damages (unless, of course, the contract so provides). See per Lord

Lindley in South Wales Miners' Federation v. Glamorgan Coal Company

([1905] A.C. 239 at 253) and Lord Watson in Allen v. Flood ([1898] A.C.l

at 96).

Somewhere one must draw the line between pressure or coercion that may

be permitted and that which may not. It is logical for the law to say that

while a man may threaten to use all the means to which he is strictly entitled

by law in order to encompass another's injury deliberately, yet he shall not

threaten to use any means to which he is not so entitled. It is less logical

to say that in order to injure another he may with impunity use all means

to which he is strictly entitled and may with impunity also threaten to break

a contract which he is not by law entitled to do, but that he shall not

threaten to commit any tort. Moreover, to draw the line at that point,

namely between contract and tort, seems to me inconsistent with the principle

that underlies Lumley v. Gye (2 E. and B. 216).

Businesses are run on the basis of contracts. The threat by an important

supplier to withhold the supplies under a long term contract on which a

manufacturer relies might be tantamount to a threat of ruin and compel

him to accede to the supplier's demands. It would seem strange if the lav,

should disregard intimidation by such potent contractual weapons, while

taking cognisance of intimidation by less potent tortious weapons. Nor do

I think that the principle of Dunlop v. Selfridge ([1915] AC 847) leads to

such a conclusion. To sue in respect of a contract to which the Plaintiff is

not a party is very different from suing for injury deliberately caused to the

Plaintiff by improper pressure and abuse of such a contract. In estimating

whether pressure by a threat is permissible or not it is the relationship

between the threatened and the threatener which has to be considered

although it is the Plaintiff who will suffer by the wrong if the threats are

effective. In my opinion, therefore, a threat to break a contract may, like

a threat to commit a tort, be the foundation for an action of intimidation.

In the case of trade disputes, section 1 of the Trade Disputes Act, 1906.

was intended to give immunity to concerted action which, though it used

means which would be lawful if done by an individual might yet be held to

be conspiracy within the principles of Quinn v. Leathem. The present case,

however, was not founded on Quinn v. Leathem, and I agree with your

Lordships that if, on other grounds, the Plaintiff can succeed in this case,

section 1 gives no protection to the Defendants.

Does section 3 protect the Defendants'?

Certain intentions of the Act as a whole with regard to acts done in

contemplation or furtherance of a trade dispute are clear. To the Trade

Unions themselves it gave, by section 4, total immunity from actions in

tort. To the members it gave only a partial protection. No general

43

immunity in tort was given to them; nor were they protected from breaches

of their own contract. One cannot start with any assumption that they

were or were not intended to be protected from tortious abuse of their

own contracts.

Partial protection in the area covered by Quinn v. Leathem was pro-

vided by section 1; and section 3 was clearly intended to give partial

protection in a different area. Unfortunately the limits of the protection

in section 3 are far from clear. Did it intend to protect all tortious acts

that might result in inducement of breach of a contract of employment or

interference with employment, or did it intend to protect only the tort of

inducing a breach of contract of employment and the tort (on the assumption

that it existed) of interfering with employment? According to the Respond-

ents it intended the former, and protects all tortious conduct of whatever

kind, provided that it needs special damage to support it and that the only

special damage arising is damage by an induced breach of contract of

employment or by interference with trade, business or employment. It may

be said that since interference with employment is not as such actionable,

the latter half of the section would be pointless unless it protected tortious

acts which resulted in such interference. But that argument must go to the

length of holding that the section intended to frank all tortious conduct,

however grave, provided that it caused no actionable damage other than

interference with employment. It would be surprising if Parliament so

intended. And if it did so intend, it would be strange that the intention

is not more clearly expressed. Moreover, such a reading would make the

word " only " otiose whereas the impression is created by the section that

the word " only " is intended to have some definite limiting effect.

At first sight, there is compelling force in the Respondents' argument

that Parliament cannot have intended the second limb to be merely declara-

tory that interference with employment (which is not a tort) shall not be

actionable. But at the date when the Act was passed the law was in some con-

tusion. It was thought by some well informed opinion that there was a

tort of mere unjustifiable interference with trade. This appears from the

Report of the Royal Commission which preceded the Act. On this view

of the law (which was subsequently shewn to be wrong) it would be reason-

able for Parliament to enact the second limb of section 3 for the purpose

of ensuring that no conduct should be unlawful on the ground only that it

interfered with trade—meaning that it was protected if it was tortious for

that reason and for no other reason. The section would then have the effect

of limiting the protection to conduct which was not tortious in any other

respect save that it induced a breach of contract or interfered with employ-

ment. Lord Loreburn, who was the Lord Chancellor at the time of the

passing of the Act, thought that this was the intention of the Act. His dicta

in Conway v. Wade ([1909] A.C. 506 a 510) which my noble and learned

friend, Lord Reid, has cited are, in my opinion, inconsistent with any other

view. The textbook writers and the two Irish cases have taken a similar

view of the section's meaning. The reading for which the Respondents

contend would be an extension of the meaning which has hitherto been

given to the section.

A strong argument (to which Donovan L.J. in his forceful judgment sub-

scribed) is urged on the Respondents' behalf to the effect that threats of

lawful action (i.e. by giving notice) as opposed to threats of unlawful

action (i.e. by stopping work in breach of contract) are inconvenient and

unsuited to modern industrial disputes, since neither side wishes the con-

tracts to be determined and the termination of contracts would give rise

to confusion in respect of superannuation schemes and other matters. I see

the force of this, as a matter of convenience, but I feel some doubt as

to how far it is a useful argument as to what Parliament intended in

1906 under the then existing conditions. It is further contended by the

Respondents that to limit the protection of section 3 to the torts specifically

referred to in the section, namely, the tort of inducing a breach of con-

tract and the tort (as it was then thought) of interference with trade or em-

ployment would be to drive a coach and four through the protection afforded

44

to trade unionists by the Act. The Appellant retorts that the opposite con-

struction would, by licensing all forms of tort, contrary to the views of the

Act expressed by Lord Loreburn and textbook writers alike, drive a coach

and four through the protection of the common law which the Act intended

to retain for the community. I do not find such an argument helpful.

The Act was intending to give a partial protection, holding a balance between

conflicting interests, and the question before us is where Parliament intended

the boundary of protection to run.

One cannot read the words of the section literally as defining the com-

ponents of a cause of action since in that case the protection against an

action " on the ground only that it induces some other person to break

" a contract of employment" is meaningless. For no action could ever lie

on that " ground only" ; it would need the addition of knowledge and

damage. I see the attractions of paraphrasing the section as referring to

the substantial essential requirements of an action. One might, for instance,

so read a section that said no spoken words shall be actionable on the

ground only that they refer to a man in the way of his trade. True, the

additional grounds of publication and defamation would be needed, but

one might well argue that the statute assumed their existence. This would,

however, be a very loose and unsatisfactory method of expression in a

statute where one would expect precision in drafting the dividing line between

what may or may not be done with impunity, and I find myself unable to

accept it.

I have felt considerable difficulty in this case, but having had the advantage

of reading the opinions of my noble and learned friends, Lord Reid and Lord

Devlin, I agree with their observations on the construction of the section. I

would allow the appeal.

On the cross appeal as to damages I agree with the opinion of my noble

and learned friend Lord Devlin.

ROOKES v. BARNARD and ors.

Lord Reid

MY LORDS,

I beg to move that the Report of the Appellate Committee be agreed to.

Questions Put:

That the Report of the Appellate Committee be agreed to.

The Contents have it.

That the Order appealed from be Set Aside.

The Contents have it.

That the Judgment of Mr. Justice Sachs be Set Aside except so far as

regards damages and costs.

The Contents have it.

That the Cause be remitted to the Queen's Bench Division with a

direction that a new trial be had on the question of damages only.

The Contents have it.

That the Respondents do pay to the Appellant his Costs here and in the

Court of Appeal.

The Contents have it.

That the Costs already incurred before Mr. Justice Sachs, and the costs

to be incurred in the new Trial be disposed of by the trial Judge after

the further Trial in the Queen's Bench Division.

The Contents have it.

That the Costs of the Appellant here and in the Court of Appeal be

taxed in accordance with the provisions of the Third Schedule to the Legal

Aid and Advice Act, 1949, as amended by the Legal Aid Act, 1960.

The Contents have it.

(P/32227) Wt. 8097—186 100 11/64 St.S./PA/19

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