There had been a dispute over pay between the proprietors of local newspapers and journalists employed by them, the majority of whom were members of a trade union, the NUJ. Strike action was taken against the local newspapers. Those newspapers received news copy from the Press Association, a London based news agency staffed by journalists. To make the strike more effective, the NUJ called the journalists in the Press Association out on strike, an action which would affect national newspapers, with whom there was no dispute, as well as local newspapers. When about half of the journalists on the Press Association remained at work, the NUJ called on its members working for national newspapers, including the plaintiffs’ newspapers, to refuse to use copy which came from the Press Association. The NUJ defended an application for an interlocutory injunction on the basis that it was acting in ‘furtherance of a trade dispute’ within the meaning of the relevant statutory provision. The plaintiffs were successful both at first instance and in the Court of Appeal.
Held: The House allowed the appeal, holding that the acts of the defendants were not actionable since they were done in furtherance of a trade dispute.
The expression ‘in . . furtherance of a trade dispute’ in the section in issue ‘refers to the subjective state of mind of the person doing the act and means that he so acts with the purpose of helping parties to the dispute to achieve their objectives in the honest and reasonable belief that it will do so’.
Lord Wilberforce, dissenting, held that the test was objective and to an extent was based on remoteness, but, as the head note indicates, his view was that the proper objective test is whether the act done, pursuant to the general intention, is reasonably capable of achieving its objective. The speeches of both Lord Diplock and Lord Scarman highlight the difficulties which a court would encounter in endeavouring to objectively assess what is in ‘furtherance’ of a trade dispute having regard to the dynamics of industrial action in a particular context.
Lord Diplock explained the rationale behind the subjective test approach, saying: ‘Given the existence of a trade dispute (the test of which, though broad, is nevertheless objective . . ), this makes the test of whether an act was done ‘in . . furtherance of’ it a purely subjective one. If the party who does the act honestly thinks at the time he does it that it may help one of the parties to the trade dispute to achieve their objectives and does it for that reason, he is protected by the section. I say ‘may’ rather than ‘will’ help, for it is in the nature of industrial action that success in achieving its objectives cannot be confidently predicted. Also there is nothing in the section that requires that there should be any proportionality between on the one hand the extent to which the act is likely to, or be capable of, increasing the ‘industrial muscle’ of one side to the dispute, and on the other hand the damage caused to the victim of the act which, but for the section, would have been tortious. The doer of the act may know full well that it cannot have more than a minor effect in bringing the trade dispute to the successful outcome that he favours, but nevertheless is bound to cause disastrous loss to the victim, who may be a stranger to the dispute and with no interest in its outcome. The act is none the less entitled to immunity under the section.’
Lord Scarman stated: ‘The words, ‘An act done by a person in contemplation or furtherance of a trade dispute’ seem to me, in their natural and ordinary meaning, to refer to the person’s purpose, his state of mind. The Court must satisfy itself that it was his purpose, and, before reaching its decision, will test his evidence by investigating all the circumstances and applying the usual tests of credibility: that is to say, it will ask itself whether a reasonable man could have thought that what he was doing would support his side of the dispute, or whether the link between his actions and his purpose was so tenuous that his evidence is not to be believed. But, at the end of the day, the question for the Court is simply: is the defendant to be believed when he says that he acted in contemplation or in furtherance of a trade dispute?’ He wentto describe the test as subjective: ‘It follows, therefore, that once it is shown that a trade dispute exists, the person who acts, but not the court, is the judge of whether his acts will further the dispute. If he is acting honestly, Parliament leaves to him the choice of what to do. I confess that I am relieved to find that this is the law. It would be a strange and embarrassing task for a judge to be called upon to review the tactics of a party to a trade dispute and to determine whether in the view of the court the tactic employed was likely to further, or advance, that party’s side of the dispute . . It would need very clear statutory language to persuade me that Parliament intended to allow the courts to act as some sort of a backseat driver in trade disputes.’
Judges:
Wilberforce, Diplock Scarman LL
Citations:
[1980] AC 672
Jurisdiction:
England and Wales
Cited by:
Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 12 September 2022; Ref: scu.223724
