¹ See Trade Union and Labour Relations Act 1974 (hereafter T.U.L.R.A.), ss. 13 and 14.

² [1892] A.C. 25.Google Scholar

³ [1898] A.C. 1. The case affirmed the decision which the House of Lords had reached three years earlier in Bradford Corporation v. Pickles [1895] A.C. 587, where it was held that a lawful use of property did not become unlawful because it was prompted by a malicious or improper motive.Google Scholar

⁴ [1901] A.C. 495.Google Scholar

⁵ (1889) 23 Q.B.D. 598, 625–626. These words were specifically adopted by Baron Bramwell in the House of Lords.Google Scholar

⁶ [1901] A.C. 495, 536. 7Google Scholar

⁷ It was precisely because of this uncertainty that Parliament passed the second limb of s. 3 of the 1906 Trade Disputes Act: see the note by Elias, Patrick on Hadmor Productions Ltd. v. Hamilton [1982] I.R.L.R. 102 at p. 249 of this Journal.Google Scholar

⁸ See, e.g., Ware and de Freville Ltd. v. Motor Trade Assn. [1921] 3 K.B. 40, 90–91Google Scholarper Atkin L.J.; and Smith, Sorrell v. [1925] A.C. 700, 723 per Lord Dunedin; and 748–749 per Lord Buckmaster.Google Scholar

⁹ See Quinn v. Leathern, op. cit., at pp. 531, per Lord Brampton and 537–538 per Lord Lindley. Even before this decision Mr. Justice Holmes had trenchantly criticised this simplistic analysis: see Vegelahn v. Guntner (1896) 44 N.E. 1077, 1080.Google Scholar

¹⁰ [1981] 2 All E.R. 456. See Elias and Tettenborn [1981] C.L.J. 230.Google Scholar

¹¹ At p. 464.

¹² Ibid.

¹³ See now T.U.L.R.A., s. 13 (4).

¹⁴ Crofter Hand Woven Harris Tweed Co. Ltd. V. Veitch [1942] A.C. 435. Earlier cases include Reynolds v. Shipping Federation [1924] 1 Ch. 28 and Sorrelt v. Smith [1925] A.C. 700.

¹⁵ Lord Diplock, at p. 464. There had been uncertainty on this point in the earlier House of Lords' conspiracy decision, Crofter Hand Woven Harris Tweed Co. v. Veitch [1942] A.C. 435: contrast Lord Thankerton at p. 459 et seq. with Lord Maugham at p. 449et seq.Google Scholar

¹⁶ On which, see especially Viscount Maugham at p. 451. See also Hunlley v. Thornton [1957] 1 W.L.R. 321.Google Scholar

¹⁷ See Scala Ballroom (Wolverhampton) Ltd. v. Ratcliffe [1958] 1 W.L.R. 1057, where an attempt by the defendants to break a colour bar was held to be a legitimate object. And see the case-note by O. Kahn-Freund (1959) 22 M.L.R. 69Google Scholar

¹⁸ The protection afforded to pursuing legitimate interests will sometimes be wider than that given by the statutory immunity (see, e.g., Stratford v. Lindley [1965] A.C. 269), but it is difficult to envisage the converse.Google Scholar

¹⁹ Possibly a caveat has to be entered in relation to the law of economic duress (on which see for a valuable, if slightly dated discussion, Goff and Jones, Law of Restitution, 2nd ed., pp. 176–186). That this doctrine has a role to play in labour relations is now clear from the House of Lords' decision in Universe Tankships Inc. of Monrovia V. International Transport Workers' Federation [1982] I.R.L.R. 200. The precise effects of the doctrine are not yet clear, but in certain limited cases it seems that property or money passed under an agreement signed by an employer as a result of economic duress may be recovered by that employer. However, the pressure exerted must be illegitimate. But this need not always involve threatening to do something unlawful: see especially the comments of Lord Scarman: “Duress can, of course, exist even if the threat is one of lawful action: whether it does so depends upon the nature of the demand” (p. 212). So what is lawful in connection with the law of tort may nevertheless vitiate consent in the law of contract.

²⁰ This is clear from Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) [1982] A.C. 173.

²¹ (1966) 40 A.L.J.R. 211. For a trenchant criticism of the decision, see Dworkin, and Harari, , “The Beaudesert Decision—Raising the Ghost of the Action upon the Case” (1967) 40 A.L.J. 296.Google Scholar

²² At p. 463. See further Kitano v. Commonwealth of Australia (1974) 129 C.L.R. 151 and Dunlop v. Woollahra Municipal Council [1981] 1 All E.R. 1202.Google Scholar

²³ (1853) 2 E. –Rogers (1979), Chap. 20. For further analysis,Google Scholarsee Wedderburn, The Worker and the Law, 2nd ed. (1971), pp. 345–371;Google ScholarHeydon, The Economic Torts, 2nd ed. (1978); and Burns, “Tort Injury to Economic Interests: Some Facets of Legal Response” (1980) 58 Can. Bar Rev. 103. See also Hughes, “Liability for Loss Caused by Industrial Action” (1970) 86 L.Q.R. 181Google Scholar

²⁵ [1969] 2 Ch. 106. See the note by Grabiner (1969) 32 M.L.R. 435.Google Scholar

²⁶ See Russell L.J. at p. 143, and Winn L.J. at p. 147. It is admittedly a matter of construction whether an exclusion clause modifies the primary obligation to perform or the secondary obligation to pay damages: see the House of Lords' decision in Photo Production Ltd. v. Securicor Transport Ltd. [1980] 1 All E.R. 556. Nevertheless the construction by their Lordships of the particular clause in the Torquay case does seem odd.Google Scholar

²⁷ See, e.g., Greig v. Insole [1978] 1 W.L.R. 302Google Scholar and Brekkes v. Cattel [1972] Ch. 105.Google Scholar

²⁸ See his Casebook on Tort, 4th ed., p. 531.

²⁹ [1972] Ch. 630.Google Scholar

³⁰ Trade Disputes Act 1906, s. 3.Google Scholar

³¹ T.U.L.R.A., s. 13 (1), as amended by the Trade Union and Labour Relations (Amendment) Act 1976, s. 3 (2).Google Scholar

³² T.U.L.R.A., s. 13 (1).

³³ (1853) 2 E. & B. 216, 232.Google Scholar

³⁴ (1971) 11 K.I.R. 78Google Scholar

³⁵ See especially pp. 84–85.Google ScholarSee further Royal London Mutual Insurance Society Ltd. v. Williamson (1921) 37 T.L.R. 742.Google Scholar

³⁶ It might even be contended that this is an equitable rather than tortious action and that consequently the union itself could be sued since its immunity in tort (T.U.L.R.A., s. 14) would be inapplicable. If one describes the union officials as parties to a breach of trust, this suggests an equitable liability; but if they are seen as inducers of a breach of duty then, by analogy with inducing a breach of contract, liability ought to be tortious. In Prudential Assurance v. Lorenz itself Plowman J. seemed to assume it was tortious and the policy behind the union immunity suggests that it should be so treated and that technical distinctions ought not to be drawn between equitable and common law liabilities (though arguably this is in fact what Prudential Assurance did). And see in this connection the House of Lords' decision in United Scientific Holdings Ltd. v. Burnley Borough Council [1978] A.C. 904 where they observed that, to use Lord Diplock's phrase, “ the waters of the confluent streams of law and equity have surely mingled now ” (p. 925).Google Scholar

³⁷ Fire Services (Discipline) Regulations S.I. 1948 No. 545. Neglect of duty for this purpose includes failing to attend to this duty properly and diligently; carelessness or neglect causing loss, damage or injury; and leaving his place of duty without permission or sufficient cause.Google Scholar

³⁸ See the Dock Workers' Employment Scheme 1967, reg. 8 (5).Google Scholar

³⁹ See especially s. 30.

⁴⁰ [1955] 2 Lloyd's Rep. 247Google Scholar

⁴¹ Ss. 221 and 236. Both of these provisions have since been repealed.

⁴² [1975] A.C. 396.Google Scholar

⁴³ Though see the discussion by Christine Gray who argues that the Cyanamid case has had little effect on the practice of granting interlocutory injunctions: “ Interlocutory Injunctions Since Cyanamid ” [1981] C.L.J. 307.Google Scholar In this connection it should also be noted that s. 17 (2) of the T.U.L.R.A., which sought to modify the Cyanamid principles in trade disputes, has no relevance where a breach statutory duty is alleged. That subsection requires the courts to have regard to the likelihood of the defendants being able to rely upon the statutory immunities before granting the injunction. But since the immunities clearly do not apply to breaches of statutory duty, the judges will not be prevented from applying Cyanamid in the normal way.

⁴⁴ Under the Employment Act 1980, s. 10 only the employer can join third parties in proceedings in this way: see the discussion by Patrick Elias, “ Gosing in on the Closed Shop ” (1980) 9 I.L.J. 201, 205. But the Employment Bill 1982 which, at the time of writing, has not yet been enacted, proposes to permit the dismissed employee to join third parties also.Google Scholar

⁴⁵ As occurred in Rookes v. Barnard [1964] A.C. 112Google Scholar

⁴⁶ For a recent example see Belmont Finance Corpn. Ltd. v. Williams Furniture Ltd. [1979] Ch. 250 and ibid. (No. 2) [1980] 1 All E.R. 393. And cf. the Canadian cases Gagnon v. Foundation Maritime Ltd. [1961] S.C.R. 435 and McKinnon v. (F. W.) Woolworth & Co. Ltd. (1968) 70 D.L.R. (2d) 280. See also Williams v. Hursey (1959) 103 C.L.R. 30.

⁴⁷ Furthermore, the scope of conspiracy to use unlawful means has been very significantly limited by the House of Lords in the Lonrho case [1982] A.C. 173. Their Lordships surprisingly held that even for conspiracy to use unlawful means there is no liability if the predominant purpose of the defendants is to protect their own interests. In this respect, conspiracy to use unlawful means has been equated with conspiracy to injure.Google Scholar

⁴⁸ [1952] Ch. 646.Google Scholar

⁴⁹ These include J. T. Stratford & Son Ltd. v. Lindley [1975]Google Scholar A.C. 269 and Torquay Hotel Co. Ltd. v. Cousins [1969] 2 Ch. 106.Google Scholar Following the latter case, liability will attach not merely to indirectly procuring a breach of contract but also to indirectly interfering with its performance, providing unlawful means are used. In Daily Mirror Newspapers Ltd. V. Gardner [1968] 2 Q.B. 762, Lord Denning even flirted with the idea of imposing liability where the means employed are lawful, but in Torquay Hotel he subsequently reasserted the orthodox position that unlawful means are required.Google Scholar

⁵⁰ [1964] A.C. 1129. For comment, see Hamson [1964] C.L.J. 159; Weir [1964] C.L.J. 225; Wedderburn (1964) 27 M.L.R. 257.Google Scholar

⁵¹ See especially Salmond on the Law of Torts, 13th ed. (1961), p. 697. See also Hamson [1962] C.L.J. 189.Google ScholarSee further Cooper v. Miller [1938] I.R. 749Google Scholar and Riordan v. Butler [1940] I.R. 347.Google Scholar

⁵² See especially Wedderburn (1964) 27 M.L.R. 257, 263–267.Google Scholar

⁵³ Furthermore, although a specific immunity was provided in 1974 to prevent a breach of contract from constituting unlawful means (see T.U.L.R.A., s. 13 (3) (b)) this has since been repealed by the Employment Act 1980, s. 17 (8).Google Scholar

⁵⁴ See, e.g., Lord Lindley in Quinn v. Leathern [1901] A.C. 495, 537–538;Google Scholar Romer L.J. in Giblan V. National Amalgamated Labourers' Union [1903] 2 K.B. 600, 619;Google Scholar and Lord Sumner in Sorrell v. Smith [1925] A.C. 700, 737.Google Scholar

⁵⁵ [1964] A.C. 1129, 1168–1169.Google Scholar

⁵⁶ [1968] 2 Q.B. 762.Google ScholarFor a critique of this decision, see Winfield and Jolowicz, op. cit., pp. 494–495. See further Guest and Hoffman (1968) 84 L.Q.R. 310.Google Scholar

⁵⁷ Ibid., at p. 783. See also Torquay Hotel Co. Ltd. [1969] 2 Ch. 106, 139.

⁵⁸ [1971] 1 W.L.R. 1676.Google Scholar

⁵⁹ [1972] Ch. 105.Google Scholar

⁶⁰ [1982] I.C.R. 114.Google Scholar

⁶¹ [1925] A.C. 700.Google Scholar

⁶² Ibid., at p. 719.

⁶³ [1964] A.C. 1129, 1210.Google Scholar

⁶⁴ See further Winfield and Jolowicz, op. cit, Chap. 8. See also, Friche, “ The Juridical Nature of the Action upon the Statute ” (1970) 76 L.Q.R. 240Google Scholar and Glanville Williams “ The Effect of Penal Legislation in the Law of Tort ” (1960) 23 M.L.R. 233.Google Scholar

⁶⁵ [1982] A.C. 173.Google Scholar

⁶⁶ Ibid., at pp. 185–186.

⁶⁷ [1968] 2 Q.B. 762.Google Scholar

⁶⁸ [1972] Ch. 105.Google Scholar

⁶⁹ [1971] 1 W.L.R. 1676.Google Scholar

⁷⁰ [1908] 1 Ch. 335.Google Scholar

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⁷² There are also various dicta suggesting that the unlawful means need not be independently actionable. A notable observation in the context of labour law is that of Lord Wright in the Crofter case when he said at p. 462 that unlawful means would include breaches of the Conspiracy and Protection of Property Act 1875 and the now repealed Trade Disputes and Trade Unions Act 1927.Google Scholar In addition, there is Commonwealth authority where liability has rested upon means not independently actionable. See International Brotherhood of Teamsters v. Therien (1960) 22 D.L.R. (2d) 1.Google Scholar

⁷³ [1969] 2 Ch. 106, 139.Google Scholar

⁷⁴ [1959] 1 Q.B. 45.Google Scholar

⁷⁵ [1905] A.C. 480Google Scholar

⁷⁶ See ss. 62 and 53 respectively.

⁷⁷ See, e.g., Prices and Incomes Act 1966, s. 16 (5).Google Scholar

⁷⁸ On this basis Lord Diplock is surely correct in Lonrho to say that the availability of an action in tort for breach of statute must “ depend on the scope and language of the statute ” [1982] A.C. 173, 187.Google Scholar

⁷⁹ [1973] I.C.R. 339.Google Scholar

⁸⁰ [1968] 2 Q.B. 710.Google Scholar

⁸¹ At p. 738.

⁸² At p. 739

⁸³ [1964] A.C. 1129, 1218–1219.Google Scholar

⁸⁴ This does not satisfactorily explain all the cases where certain unlawful acts have been held not to constitute unlawful means. In Chapman v. Honig [1963] 2 Q.B. 502 the Court of Appeal (with Lord Denning dissenting) held that a contempt of court would not constitute unlawful means but this decision conflicts with the later case of Acrow Automation Ltd. v. Rex Chainbelt Inc. (in which it was not cited) and might now be considered to be wrong. Again, it has been held in the Mogul case, op. cit., that actions in restraint of trade are not unlawful means, but possibly this can be explained on the basis that such acts are void and unenforceable rather than unlawful.Google Scholar

⁸⁵ Trade Disputes Act 1906, ss. 1 and 3 respectively.Google Scholar

⁸⁶ [1964] A.C. 1129.Google Scholar

⁸⁷ [1963] 1 Q.B. 623. See especially Lord Donovan (pp. 684–685) with whom Sellers L.J. agreed (p. 675).Google ScholarSee further Wedderburn (1964) 27 M.L.R. 257.Google Scholar

⁸⁸ [1964] A.C. 1129, 1174–1178, per Lord Reid; 1203, per Lord Hodson; 1212–1218, per Lord Devlin; and 1235–1237, per Lord Pearce.Google Scholar

⁸⁹ See Wedderburn, K. W., “ Intimidation and the Right to Strike ” (1964) 27 M.L.R. 257, 275–279.Google Scholar

⁹⁰ See in particular the comments of the Attorney-General, Sir John Walton, who specifically stated that the provision was inserted to meet the suggestion that it would be well to give legislative effect to Allen v. Flood: Parl.Deb. Vol. 162, ser. 4, cols. 1675–1676 (3 August 1906). For a different view of the legislative policy see Wedderburn “ The Right to Threaten Strikes ” (1961) 24 M.L.R. 572, 589–590.Google Scholar

⁹¹ Indeed in Rookes v. Barnard Lord Devlin left open the question “ whether or not malicious interference by a single person with trade, business or employment is or is not a tort known to the law ” ( [1964] A.C. 1129, 1215).Google Scholar

⁹² [1982] 2 W.L.R. 322.Google Scholar

⁹³ Ibid., at pp. 333–334.

⁹⁴ Ibid. His Lordship seems to have taken Allen v. Flood for granted and simply assumed that there could be no liability for the commission of otherwise lawful acts save in relation to conspiracy to injure which is specifically protected by s. 13 (4).

⁹⁵ [1982] I.R.L.R. 198.Google Scholar

⁹⁶ [1982] 2 W.L.R. 322, 337 confirming David v. Johnson [1979] A.C. 264.Google Scholar

⁹⁷ This was the conclusion of the Court of Session in the Plessey case [1982] I.R.L.R. 198, 199.Google Scholar

⁹⁸ as See, e.g., J. T. Stratford v. Lindley [1965] A.C. 269, 336, per Lord Pearce for authority for this obvious construction.Google Scholar

⁹⁹ e.g., ibid., per Lord Pearce; Thomson (D. C.) Ltd. v. Deakin [1952] Ch. 646, 687, per Lord Evershed; and Torquay Hotel Co. Ltd. v. Cousins [1969] 2 Ch. 106, 147, per Winn L.J.

¹ See, e.g., Lord Denning's judgments in Morgan v. Fry [1968] Q.B. 710, 728–729Google Scholar and Torquay Hotel Co. Ltd. v. Cousins [1969] 2 Ch. 106, 139–140.Google Scholar And see now Lord Diplock's observations in Hadmor [1982] 2 W.L.R. 322, 335–336.Google Scholar

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³ [1982] 2 W.L.R. 322, 335–336.Google Scholar

⁴ S. 17 (8).

⁵ [1981] 3 W.L.R. 139.Google Scholar

⁶ See the note by Elias [1981] C.L.J. 234 for critical analysis of this judgment.Google Scholar

⁷ [1982] 2 W.L.R. 322, 336. This observation, it should be noted, is true of s. 13 (3) (a) but not of s. 13 (3) (6), which prevented breaches of contract from constituting unlawful means, and has also been repealed. However, the narrowing of the scope of conspiracy to use unlawful means in the Lonrho case (see n. 47 above) makes this less significant than it might have been.Google Scholar

⁸ (1868) L.R. 6 Eq. 551, 558–559.Google Scholar

⁹ See Dixon v. Holden (1869) L.R. 7 Eq. 488.Google Scholar

¹⁰ (1875) 10 Ch.App. 142.Google Scholar

¹¹ Ibid., at p. 147.

¹² [1896] 1 Ch. 811, 826.Google Scholar

¹³ [1978] A.C. 435.Google Scholar

¹⁴ See, at pp. 492–493, per Viscount Dilhorne; and 506, per Lord Edmund-Davies.

¹⁵ Contrast Lord Diplock's judgment in Gouriet where he appears to accept that an individual can restrain the infringement of a private right but limits his comments to a situation where the right is created by the statute itself (p. 499).

¹⁶ e.g., both Viscount Dilhorne and Lord Edmund-Davies refer to the Springhead Spinning case, which uses the language of proprietory rights as authority for the view that private rights are protected.

¹⁷ [1978] 3 All E.R. 824.Google Scholar

¹⁸ Ibid., at p. 830.

¹⁹ Ibid., at p. 836.

²⁰ Ibid., at p. 834.

²¹ Ibid., at p. 830.

²² [1982] A.C. 173, 187.Google Scholar

²³ This was in the context of approving and explaining Buckley L.J.'s comments in Boyce v. Paddington Borough Council [1903] 1 Ch. 109: see pp. 185–186.Google Scholar

²⁴ See the case note by Elias and Tettenborn [1981] C.L.J. 230, 232–233.Google Scholar

²⁵ [1982] 2 AH E.R. 455.Google Scholar

²⁶ [1982] 2 All E.R. 468.Google Scholar

²⁷ Ibid., at p. 479.

²⁸ Some of the authorities cited by Lord Denning did not apparently involve the deliberate infliction of harm on the defendant, e.g., njamin v. Storr (1874) L.R. 9 C.P. 400 and Chamberlaine V. Chester and Birkenhead Rlwy Co. (1848) 1 Exch. 870.Google Scholar

²⁹ For a stimulating discussion of the circumstances in other contexts where injunctions may be available even though damages are not, see A. Tettenborn, “ Covenants, Privity of Contract and the Purchaser of Personal Property ” [1982] C.L.J. 58.Google Scholar

³⁰ Their duties are found in such Acts (together with subsequent amendments) as the Gas Act 1948, Electricity Act 1947, Transport Act 1947 and Civil Aviation Act 1946.Google Scholar

³¹ Coal Industry Nationalisation Act 1946, s. 1 (1) (a).Google Scholar

³² Education Act 1944, s. 8 (1).Google Scholar

³³ See, e.g., National Health Service (Appointment of Consultants) Regulations S.I. 1974 No. 361.Google Scholar And see Associated Newspapers Group v. Wade [1979] I.C.R. 664.Google Scholar

³⁴ [1979] I.C.R. 494.Google Scholar

³⁵ Ibid., at pp. 504–505, per Lord Denning; 507–508, per Eveleigh L.J.: and 512, per Sir Stanley Rees.

³⁶ Ibid., at p. 505.

³⁷ Liability for mere interference was suggested by Lord Denning in Meade at p. 505 and in Associated Newspapers Group v. Wade [1979] I.C.R. 664, 696.Google Scholar

³⁸ [1922] 1 K.B. 431.Google Scholar

³⁹ Hackney Electric Lighting Order 1893, cl. 26.Google Scholar

⁴⁰ At p. 437.

⁴¹ See R. v. Inland Revenue Commrs., ex p. National Federation of Self Employed [1981] 2 W.L.R. 722 for an illustration of the readiness with which the courts will examine the merits of a case in an application for judicial review.Google Scholar

⁴² See, e.g., R. v. Bristol Corporation, ex p. Hendy [1974] 1 W.L.R. 498.Google Scholar

⁴³ [1977] 1 W.L.R. 1172.Google Scholar

⁴⁴ The Post Office Act 1969, s. 9 provides a general duty on the P.O. to provide postal services throughout the country.Google Scholar

⁴⁵ [1977] 1 W.L.R. 1172, 1180. The prime reason for his decision was that “it can only be in very rare circumstances and in the most extreme circumstances that this court should interfere by way of mandatory injunction in the delicate mechanism of industrial disputes and industrial negotiations.” And see the comments of Lord Wilberforce in Gouriet [1978] A.C. 435, 481.Google Scholar

⁴⁶ [1979] I.C.R. 494, 516.Google Scholar

⁴⁷ Ibid., at p. 505. See also Associated Newspapers Group Ltd. v. Wade, supra, at p. 695.

⁴⁸ [1979] I.C.R. 664, 696.Google Scholar

⁴⁹ See Universe Tankships Inc. of Monrovia V. International Transport Workers Federation [1982] I.R.L.R. 200.Google Scholar

⁵⁰ See, e.g., the Post Office Act 1969, s. 9 (4); the Iron and Steel Act 1975, s. 2 (1); and the Aircraft and Shipbuilding Industries Acl 1977, s. 2 (10).Google Scholar

⁵¹ See, e.g., the Education Act 1944, s. 99.Google Scholar

⁵² In the latter type of case, the courts will permit an action to be brought where, notwithstanding the existence of the separate remedy, the plaintiff alleges malfeasance or ultra vires in the performance of the duty. See, e.g., Bradbury v. Enfield London Borough Council [1967] 1 W.L.R. 1311.Google Scholar

⁵³ See the suggestion by Davies and Freedland, Cases and Materials in Labour Law, pp. 607–608.

⁵⁴ The most recent consideration was in the Government's Green Paper, Trade Union Immunities, Cmnd. 8128 (1981).Google Scholar

⁵⁵ See Wedderburn, “ Industrial Relations and the Courts ” (1980) 9 I.L.J. 65. See further, Wedderburn, The Worker and the Law, 2nd ed., pp. 401–406.Google Scholar

⁵⁶ Wedderburn (1980) 9 I.L.J. 65, 82–83.Google Scholar

⁵⁷ Lewis and Simpson, Striking a Balance: The Employment Act 1980 (1981), pp. 226–229.Google Scholar

⁵⁸ Though of course it may well be thought desirable to introduce a principle that individual employment contracts are not broken when the right to strike is exercised.