ROOKES v BARNARD  AC 1129
21 January 1964
Source : www.a-level-law.com
My Lords, the appellant was employed for many years by B.O.A.C. [British Overseas Aircraft Compnay - an airline] as a skilled draughtsman 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 appellant won).
An analysis of exemplary and aggravated damages
… 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 peculiar 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.
… [I]t is very well established that … 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 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 compensation or the idea of punishment has prevailed.
… Exemplary damages … originated just two hundred 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...PRATT, C.J., in his direction to the jury said: ‘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.
In Huckle v Money 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 an the ground that this figure was ‘most outrageous’ [i.e. too high]. The plaintiff was employed at a weekly wage of one guinea; he had been in custody for only about six hours and had been used ‘very civilly by treating him with beefsteaks and beer’ … [T]he Chief Justice said that … the jury had … done right in giving exemplary damages. The award was upheld.
In Benson v Frederick 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. LORD MANSFIELD, L.C., 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 justified
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.
Lord Devlin then reviewed some modern examples where aggravated damages were awarded
In Owen and Smith (Trading as Nuagin Car Service) v Reo Motors (Britain), Ltd. 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.
London v Ryder 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 £1,500 damages for trespass, and £1,000 for assault; and £3,000 as exemplary damages, making £ 5,500 in all. This award was upheld in the Court of Appeal.
In Williams v Settle 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 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.
Lord Devlin then went on to categorise instances when exemplary damages should be awarded
These authorities convince me…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, though 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 which 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 humiliation that makes the case one for aggravated damages, but it is not in my opinion punishable by [exemplary] 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. …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 plaintiff’s rights has calculated that the money to be made out of his wrongdoing 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 confined 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 oppressive 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 case, 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…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 compensation, are material in the assessment of exemplary damages. Everything 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 which 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 they can award some larger sum …
[T]here remains one 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…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.
… The older group of … cases which I have cited … disclose
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 …
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, I 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.
My Lords, the appellant was employed for many years by BOAC as a skilled draughtsman 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, BOAC were induced first to suspend the appellant and then to terminate his employment after giving him due notice. The appellant has no remedy against BOAC 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 BOAC to act as they did. The action was tried by Sachs J ( 2 All ER 825; [1963 1 QB 623; on appeal [1962 2 All ER ER 579;  1 QB at p 657), with a jury, and the appellant was awarded £7,500 damages. The Court of Appeal (( 2 All ER 825; [1963 1 QB 623; on appeal [1962 2 All ER ER 579;  1 QB at p 657) 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 ( 2 All ER at p 830) 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 took at the summing-up of the learned judge. But we cannot go beyond the questions so explained and the jury’s answers. The questions and answers are as follows:
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 [appellant] from the design
A. - There was. If so, (a) was Barnard a party? A. - He was. (b) was Silverthorne a party? A. - He was. (c) was Fistal a party? A. - He was. 2. Was a threat to take strike action against B.O.A.C.to secure the withdrawal of the [appellant] from the design office made by (a) Barnard? A. - It was. (b) Silverthorne? A. - It was. (c) Fistal? A. - It was. 3. Did threats of strike action by members of A.E.S.D. cause (a) the suspension of the [appellant] from his work at B.O.A.C.?
A. - They did. (b) the dismissal of the [appellant] from B.O.A.C.? A. - They did. 4. (a) What damages should be awarded to the [appellant] if the threats of strike action caused the [appellant’s]dismissal?
A. - £7,500. (b) What damages should be awarded to the [appellant] if the threats of strike action caused the [appellant’s] suspension (but not his dismissal)?
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 were negotiations with which I need not deal. The matter was brought to a head by a meeting of the members on 10 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, Jan. 13, 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 BOAC. 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 10 January and that if they had withdrawn their labour on 13 January they would have been in breach of their contracts with BOAC. When this resolution was presented to BOAC they suspended the appellant and 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 BOAC 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 BOAC first to suspend and then to dismiss the appellant. This was not a case of the respondents merely informing BOAC 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 shows that the appellant had every prospect of retaining his employment with BOAC, if the respondents and the other conspirators had not interfered: leaving the Trade Disputes Act, 1906, out of account, if BOAC 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). 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 appellant.
The first contention of the respondents is very far reaching. They say there is no such tort as intimidation. That would mean that, short of committing 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. Buft 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 LJ ( 2 All ER at pp 602–608;  1 QB at pp 686–696), 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 a 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 BOAC 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 would cause him loss, and the question is whether they were entitled to use that weapon - a threat that they would cause loss to BOAC, if BOAC did not do as they wished. That threat was to cause loss to BOAC by doing something which they had no right to do, breaking their contracts with BOAC. 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, whatever 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 ([1895–99] All ER Rep 52 at p 79;  AC 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 LJ said ( 2 All ER at p 589;  1 QB at p 667):
‘Unless authority requires it. I would resist enlarging the tort of intimidation in the manner sought before and accepted by the judge,’
and Pearson LJ said ( 2 All ER at p 608;  1 QB at p 695):
‘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 reason 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 respondents’ 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 s 1 and s 3, which are as follows:
‘1. The following paragraph shall be added as a new paragraph after the first paragraph of s. 3 of the Conspiracy, and Protection of Property Act, 1875: An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable.’
‘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, Taff Vale Ry Co v Amalgamated Society of Railway Servants, and Quinn v Leathem. These were followed by a royal commission over which Lord Dunedin presided. The main objects of the Act of 1906 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 employment. It is exceedingly difficult to determine just what was decided in Quinn v Leuthem, 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 that 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 Edn) 325, 326:
‘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 Act of 1906 so that it would be equally effective whichever theory ultimately prevailed.
The only difficulty about s 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 BOAC 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 BOAC 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 BOAC ‘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 BOAC had succumbed to that threat and got rid of the appellant in the way they did. So s 1 does not help the respondents.
Section 3 deals with two classes of acts done by individuals, and, by virtue of s 1, the immunity given by s 3 to individuals must also extend to combinations 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 BOAC 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 that 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 s 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 unlawful or actionable only 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 respondents’ counsel. But, on the other hand, if the second meaning is correct, then the immunity or licence applies only 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 could 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 s 3. So we are thrown back to the language of s 3 itself without any very clear guidance 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 opinion of Lord Loreburn LC in Conway v Wade. I shall have to deal with this case at some length when I come to the second half of s 3. He said ([1908–10] All ER Rep at p 347;  AC at p 511):
‘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 Act of 1906 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 s 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 connexion 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 s 3 would have been used if it had been intended to give in addition almost complete 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 s 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 Parliament. 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 ( All ER Rep 1 at p 9;  AC 700 at p 719). But there were still some doubts. As Viscount Maugham pointed out in Crofter Hand Woven Harris Tweed Co Ltd v Veitch ( 1 All ER 142 at p 150;  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 orthodoxy, 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, 1906, was passed. He said in Conway v Wade ([1908–10] All ER Rep at p 346;  AC at p 509):
‘It is necessary to consider how the law stood before 1906 … it is material to see in what circumstances 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 remembering 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; then 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 sufficient 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 either a conclusive or 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 intimidation. 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 BOAC 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 BOAC 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 s 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 ([1908–10] All ER Rep at p 345;  AC at p 510) 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 s 3, said ([1908–10] All ER Rep at p 347;  AC at p 511):
‘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 in any case, 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 actionable, 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 s 3 afforded no protection if there were 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 s 3. His opinion was obiter and he may have been wrong, but Lord Macnaghten ([1908–10] All ER Rep at p 347;  AC at p 513) and Lord Gorell ([1908–10] All ER Rep at p 350;  AC at p 520) concurred with him and I find no suggestion in other speeches to the contrary. 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.
Parliament had, however, 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 s 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 s 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 s 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 s 3 should apply only so long as no illegal means, such as intimidation, were used to achieve the breach of contract or interference with trade, business or employment, or Parliament might have enacted that the protection should extend to all cases, no matter how illegal may have been the means employed. But to draw a distinction and to restrict protection of inducement of breach of contract to cases where no illegal means are employed, while extending protection of interference to all cases no matter how unlawful the means employed is something that I cannot think that Parliament could have intended and therefore is a construction of the section which I would accept only if its words are incapable of any other. In my judgment, it is clear that s 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.
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 the 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 provocation. As they awarded a single sum we do not know now much they intended to 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 that for various reasons the jury 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 opinion of my noble and learned friend Lord Devlin and I am in full agreement with his treatment of the subject of 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.
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 LJ when delivering his judgment in the Court of Appeal in the analogous case of Ware and de Freville Ltd v Motor Trade Assocn. 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 ( All ER Rep at p 397;  3 KB at p 66) 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 would 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 and Crofter Hand Woven Harris Tweed Co Ltd v Veitch; 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 LJ referred, and I cannot maintain any confident hope that in the present case order will have been so brought into chaos that, on 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, have 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 BOAC) 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 months 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 BOAC to the effect that, unless the services of Mr Rookes were determined by BOAC all their other employees in the same department, in number about seventy and all members of the A E S D, would come out on strike - and possibly other servants of BOAC 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. BOAC 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 BOAC 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 LJ ( 2 All ER at pp 594–602;  1 QB at pp 675–685), 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 ([1895–99] All ER Rep at p 70;  AC at p 99) and has, as I believe, been since consistently followed - see eg per Lord Sterndale MR in White v Riley ( All ER Rep 371 at p 376;  1 Ch 1 at p 13). 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 BOAC and the several unions, members of which were in the service of BOAC, that if in any section of BOAC’s work one hundred per cent membership of the relevant union was achieved, then BOAC would not employ in that section any non-union labour.
The circumstances of the present case are distinguished by one very important fact. On 1 April 1949, an agreement in writing was made between the Employers’ and Employees’ sides of the Draughtsmen, Planners and Tracers Panel, cl 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 incorporated in and forming part of the contract of service with BOAC of every member of the A E S D. It follows accordingly that strike action, or threats of strike action, by employees of BOAC 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 appellants’ 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, it 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 respondents 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 ( 2 All ER at p 830;  1 QB at p 627), 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 BOAC to secure the withdrawal of the [appellant] from the design office made by’ each of the three respondents? - 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 respondent 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 threat, therefore, made by each respondent 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 Mr Silverthorne was not himself in fact in the service of BOAC); 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 office. And since all three respondents were officials of the union there can be no doubt that they could effectively so threaten and were understood by BOAC so effectively to threaten. It may, moreover, be added that on 10 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 respondent to a representative of BOAC.
Assuming, therefore, (1) that each respondent did so threaten and effectively threaten, (2) that, because of the special term deemed to be incorporated 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 employment with BOAC; can the appellant successfully sue the respondents 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 s 1 or s 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?
On the first of these three questions which I have formulated all the members of the Court of Appeal ( 2 All ER 579;  1 QB at p 657) after a careful consideration of the many authorities and dicta on the subject, agreed with Sachs J, in giving to 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 LJ ( 2 All ER at p 607;  1 QB at p 694), in the Court of Appeal) from the well-known judgment of Bowen LJ in the case of the Mogul Steamship Co Ltd v McGregor, Gow & Co Ltd ((1889), 23 QBD 598 at p 614), and to add only citations from the speech of Lord Watson in Allen v Flood ([1895–99] All ER Rep at p 69;  AC at p 96) and from the speech of Lord Dunedin in Sorrell v Smith ( All ER Rep at p 14;  AC at p 730).
In the Mogul Steamship case Bowen LJ said ((1889), 23 QBD at p 614):
‘No man, whether trader or not, can, however, justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction 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 show 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 ([1895–99] All ER Rep at p 69;  AC at p 96):
‘There are, in my opinion, two grounds only on 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 shown to have procured his object by the use of illegal means directed against that third party.’
Again later ([1895–99] All ER Rep at p 69;  AC at pp 97, 98):
‘Assuming that the Glengall Iron Co., 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 ( All ER Rep at pp 7-15;  AC at pp 716–731). The noble lord first quoted ( All ER Rep at pp 8, 9;  AC at pp 718, 719) from a judgment which he had delivered in the Scottish case of Mackenzie v Iron Trades Employers’ Insurance Assocn, and which he thereby affirmed. Then, after referring to numerous other cases, including that of Ware and de Freville Ltd v Motor Trade Assocn, he said ( All ER Rep at p 14;  AC at p 730):
‘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 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 ‘ie, a tortious action’. 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 judgment and reasoning on this question of Sellers ( 2 All ER at p 591;  1 QB at p 670), Donovan ( 2 All ER at p 599;  1 QB at p 688) and Pearson ( 2 All ER at p 608;  1 QB at p 695) LJJ in the Court of Appeal, and particularly the analysis of the growth of the tort of intimidation stated in Pearson, L J’s judgment ( 2 All ER at p 604;  1 QB at p 689), 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 ( 2 All ER at pp 602–608;  1 QB at pp 686–696) referred to some authorities of respectable antiquity) and that its full extent and scope have not (at least before the present case) been authoritatively determined and may well, indeed, even by your lordships’ judgments 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 characteristics of which is (as has been pointed out by many eminent legal scholars, including Cardozo CJ), 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 (Nature of the Judicial Process (Yale University Press), p 23). Moreover, as observed by Professor Holdsworth in his history of the Law Of England, vol 8, pp 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. Counsel for the respondents forcibly argued, on 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 of tort of nuisance. According to counsel for the respondents, it was in truth invented by Sir John Salmond.
With all respect to counsel for the respondents’ 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 that 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, McBride and Drohan before Gavan Duffy J and Riordan v Butler, in which O’Byrne J ( I R at p 353), 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 ( All ER Rep at p 14;  AC at p 730)’… that action must be either per se a legal action or an illegal, ie, 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 LJ in the Mogul Steamship case ((1889), 23 QBD at pp 611–620) down to the present time, and I would concede that on 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 Co Ltd ([1904–07] All ER Rep 211 at p 218;  AC 239 at p 253):
‘To break a contract is an unlawful act; or, in the language of LORD WATSON in Allen v. Flood ([1895–99] All ER Rep at p 69;  AC at p 96),‘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 Donovan LJ referred in his judgment ( 2 All ER at p 598;  1 QB at p 679) in the present case. I venture, like Lord Lindley, to refer to Lord Watson’s opinion in Allen v Flood ([1895–99] All ER Rep at p 68;  AC at p 94) where the noble lord cited and adopted the language of Bowen LJ in the Mogul Steamship case ((1889), 23 QBD at p 612)’… the term ‘wrongful’ imports in its term the infringement of some right’. But in none of the reported cases (except the Irish cases (Cooper v Millea  IR 749 and Riordan v Butler  IR 347) 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, in tended to be but illustrative and was in any event on 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 intimidation 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 ([1895–99] All ER Rep at p 79;  AC at p 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, that is, 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 on 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 for 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 LJ ( 2 All ER at p 608;  1 QB at p 695) that if threats of breaches of contract amounted to intimidation 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 on 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 case of one who, instead of breaking a contract with the employer, in fact assaulted him and as a result (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 as 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 ( 2 All ER at p 832;  1 QB at p 634) in my answer to the second question which I have previously formulated, and think that the appellant here had established a good cause of action at law, unless his rights are defeated by s 1 or s 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 on the third of the questions which I have formulated, namely, on the effect in the present case of s 1 and s 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 s. 3 of the Conspiracy, and Protection of Property Act, 1875: An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable.’
I believe that all your lordships are agreed that, in the circumstances of the present case, s 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 on this point rests on 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 respondents 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 respondent on his own, without collaboration with the other respondents? 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 BOAC to break his own contract of service unless BOAC gave notice to the appellant, 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 the appellant’s services were determined. Although, therefore, the threat was not one to procure breaches of their service contracts by the other union men, nevertheless the threat, properly understood as it was intended to be understood in the light of the resolution of 10 January 1956, had a real and substantial coercive force. As such, and apart from the combination with him of the other respondents, such threat itself constituted a cause of action on the appellant’s part. It follows, therefore, in my opinion, that s 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 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 on the first part of the section, since there was here no breach of the appellant’s contract ‘procured’ by the acts of the respondents. 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
on 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, 1906, the words which
I have repeated cannot protect the respondents in the present case. The problem,
on 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 inquiring whether ‘the acts’ complained of are, as such,
wrongful only on the ground (in such a case as the present) that they constitute
or result in an interference with some person’s employment. If this be
the correct nature of the inquiry, then the answer in this appeal is that the
acts complained of are not wrongful only on 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 on 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 respondents actionable at the suit of the appellant on the ground
(and only on 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 appellant was not himself intimidated and the only ground on which
he can complain of the respondents’ acts is that they resulted (as they
were intended to do) in an interference with his (the appellant’s) employment
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 s 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 appellant’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 (eg constituted the tort of intimidation) 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 on the supposed 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 ([1908–10] All ER Rep at p 347;  AC at p 511):
‘It is clear that, if there be threats or violence, this section gives no protection, in any case, 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’… 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 persuasion 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: 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 on 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 s 3, namely that the acts of the respondents 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 BOAC. I do not forget that in construing the material language of s 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 ( All ER Rep at p 9;  AC at p 719) - had not been exposed and dissipated, viz, that acts which were in themselves lawful might nonetheless be actionable if it were shown that they were ‘maliciously’ directed against another person, ie, were deliberately intended to damage such other person particularly 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 ([1908–10] All ER Rep at p 347;  AC at p 511), 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 employment 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 s 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 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 & Sons Ltd v London Society Compositors. Lord Macnaghten said ([1911–13] All ER Rep at p 246;  AC at pp 117, 118):
‘It is ‘the universal rule’, as LORD WENSLEYDALE observed in Grey v. Pearson ((1857), 6 HL Cas 61 at p 106), that in construing statutes, as well 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 ad inconsistency, but no further’. Acts of Parliament are, of course, to be construed ‘according to the intent of 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 ((1844), 11 Cl & Fin 85 at p 143). 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 shown 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 complained of comprehend threats of breaches of contract as well as threats of tortious 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, on this view of s 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 on 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’ 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, s 3 of the Act of 1906 would provide a good defence to A’s claim. On 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 negligence and plainly it could not fairly be said that the ‘only ground’ on 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 on interference with his employment. That question, if and when it arises, will be decided on 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, on 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 s 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, on 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 s 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 s 4 of the Act of 1906, which in terms gives absolute immunity to trade unions themselves; for, on the alternative view of its effect which has appealed to me, s 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 employment. 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 or furtherance of a trade dispute: for as I have endeavoured to illustrate, the person (ie, 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. 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 construction of s 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 on this matter formally dissent from your lordships.
There remains the final question fully argued on 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’. On this difficult question, falling now 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 Court of Appeal in the case of Loudon v Ryder.
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.
My Lords, the appellant worked as a draughtsman for BOAC at London Airport where, from 1951, the union called the Association of Engineering and Shipbuilding Draughtsmen (A E S D) had an informal ‘one hundred per cent membership’ agreement with the employers. On 1 April 1949, the employers’ and the employees’ sides entered into an agreement in writing, which provided by cl 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 BOAC ‘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 BOAC first suspended and later dismissed the appellant, after giving him due notice which expired on 16 March 1956. The appellant brought his action on 25 June 1957, for damages for the injury which the respondents had caused him by threatening BOAC in the manner indicated, so that BOAC 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 of employment’ of A E S D 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 BOAC 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, ie, 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 misconceived, in that there is no such tort as intimidation and, further, that if there 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 recognised tort, but some cannot, and I think that, of these Garret v Taylor and, more particularly, Tarleton v M’Gawley cannot be so explained, and I agree with your lordships that the existence of this tort is established by authority.
The main arguments 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 ( 2 All ER 579;  1 QB at p 657) 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 LJ ( 2 All ER at p 596;  1 QB at p 678), 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 it 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 Connor v Kent, Gibson v Lawson, Curran v Treleaven). 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 Dunedin put it in Sorrell v Smith ( All ER Rep at p 14;  AC 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, Lord Wright said ( 1 All ER at p  AC at p 467):
‘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 ( 2 All ER at p 834;  1 QB at p 636) the persuasive authority of two Irish cases, Cooper v Milleaand Riordan v Butler, in the earlier of which reliance was placed by Gavan Duffy J on the speech of Lord Dunedin in Sorrell v Smith ( All ER Rep at pp 7–15;  AC at pp 716–731) which does not, however, support the proposition that a threat to strike in breach of contract is unlawful and constitutes unlawful means.
In Huntley v Thornton ( 1 All ER 234 at p 251), Harman J said, in relation to employees who threatened to strike:
‘If, however, their actions amounted 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 ( 2 All ER at p 831;  1 QB at p 632), 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 LJ put it ( 2 All ER at p 608;  1 QB at p 695), 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 & Co Ltd and Scruttons Ltd v Midland Silicones, Ltd. Various examples have been given showing 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 powerful dissenting judgment of Coleridge J in Lumley v Gye ((1853), 2 E & B at pp 246, 247), but this judgment 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, today 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 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 ([1895–99] All ER Rep at p 79;  AC at p 121), emphasised 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 on the construction of this section that the most difficult question falls to be decided.
There is a material contrast between s 3 and s 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 consideration, a result not unlike that reached by s 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 s 3 in the way it did, in contrast to the general words conferring immunity to be found in s 4, Parliament could have intended to go so far as to give protection to members of a trade union in every case where the consequences 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.
Further support for what I may term the limited, as opposed to the licentious, scope of s 3 is to be found in s 2 of the Act, which licenses picketing but only for the purpose of peaceful persuasion. As my noble and learned friend, Lord Reid, has pointed out, the general plan of s 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 s 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 LC in Conway v Wade ([1908–10] All ER Rep at p 347;  AC at p 511) 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 appellant 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.
My Lords, on 16 March 1956, the appellant’s employment, which had lasted nine years with BOAC, was lawfully determined by notice. The reason why it was terminated was because on 10 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 BOAC.
‘that if the non-unionist, Mr. D. E. Rookes, is not removed from the design office by 4 p.m. Friday, Jan. 13, 1956, a withdrawal of labour of all A.E.S.D. membership will take place.’
On 13 January 1956, 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 BOAC.
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 LJ said in the Court of Appeal ( 2 All ER at p 600;  1 QB at p 682), 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 BOAC 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 BOAC. I agree with the submission made by counsel 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 BOAC’s rights. But the question is whether the respondents thereby infringed any right of the appellant. Since all that the respondent did was admittedly done in the furtherance of a trade dispute, it is idle to inquire what possible causes of action there are available to the appellant at common law without inquiring 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 s 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 s 3, because the intimidation resulted in an interference with the employment of the appellant by BOAC.
My lords, in my opinion there is a tort of intimidation of the nature described in ch 18 of Salmond On The Law Of Torts (13th Edn), p 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 intent and effect of compelling them to act in a manner or to do acts which they themselves have a legal right to do which causes loss to the plaintiff: for example, the intimidation 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 lordships 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 of offer any further authorities or reasons in support of my conclusion. I note that no issue on justification was raised at the time and there is no finding of fact on it. Your lordships have not to consider what part, if any, justification plays in the tort of intimidation.
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’((13th Edn), p 699). That form is the Quinn v Leathem) type, so that it is no use to the appellant here. He relies on ‘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 s 3. So he complains only of the threat to break the service contracts, and the breach would undoubtedly be an act actionable by BOAC, 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, ie, 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 LJ (
2 All ER at p 588;  1 QB at p 665) 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 be 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 on a cause of action by BOAC Thus, it is said to be anomalous that on the facts of this case the appellant should be able to sue the respondents when BOAC could not. The best way of answering that is to grant that BOAC would not be able to sue and to assert, as I shall seek to show, that there is nothing anomalous about it. But there was introduced into the argument a suggestion that BOAC could in fact have used 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 BOAC could not have used for an anticipatory 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 BOAC could sue or not. The two causes of action - BOAC’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 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 assault 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 a injure C through the instrumentality
of B. (That is why in the case of an ‘innocent’ breach of contract,
which was remarked on by Sellers LJ ( 2 All ER at p 592;  1 QB at
p 671), 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 BOAC then got rid of the appellant,
his cause of action would be just the same as if BOAC 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
Finally, it is said that if a threat of breach of contract constitutes intimidation, 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 intermediate party is improperly coerced, it does not mater 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. Moreover, while a decision on that point might have been most illuminating, it is not the point that 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 necessarily 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, 1906, provides them with a good defence. The respondents have advanced two separate statutory defences, the first based on s 1 and the second on s 3. The argument on s 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 forbidden by s 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 s 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 BOAC It was the power of the combination that did that; and that makes proof of the combination (which s 1 will not allow) an essential part of the appellant’s cause of action against all three respondents. The first part of this argument, ie its application in particular to Silverthorne, in my opinion reads too much into s 1. To establish 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, s 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, s 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 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 s 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, BOAC 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. 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 s 3 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 employment, 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 s 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 s 3. What are the requisites for a cause of action for inducing a breach of contract? There must be, besides the act of inducement, knowledge 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, ie 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 ‘actionable on the ground only that’. This speaks of a sole grounds. 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 on 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 that on its literal construction this is what the statute clearly implies. From this it would follow that if one 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 the considerations and having found that the proper construction of s 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 s 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 ofintimidation 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 Lord Loreburn LC in Conway v Wade ([1908–10] All ER Rep at p 347;  AC at p 511) and although 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 in any case, 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, BOAC, 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 BOAC 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. Parliament, 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, notwithstanding 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, one must find some other element that, added to interference, makes it actionable at common law, and then one 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 combination 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, s 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 s 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 wrongful’. 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 shown by citations from three cases in this House, Conway v Wade, Sorrell v Smith, and Crofter Hand Woven Harris Tweed Co Ltd v Veitch. In Conway v Wade, Lord Loreburn LC speaking of the second limb of s 3 and following on the passage which I have already cited from his speech, said ([1908-01] All ER Rep at p 347;  AC at p 511):
‘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 LC 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. Viscount Cave LC with whom Lord Atkinson concurred, said)( All ER Rep at p 6;  AC 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 said ( All ER Rep at p 9;  AC at p 720):
‘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 connexion was really only a particular form of intimidation. Lord Dunedin on the other hand, approving what Atkin LJ had said in Ware and de Freville v Motor Trade Association 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 ( All ER Rep at p 9;  AC at p 720) that conspiracy was ‘the very gist and essence of the decision’ in Quinn v Leathem); but, he said, the contrary view not only had been stated but also had gained many adherents - and indeed he described it as ‘the leading heresy’)( All ER Rep at p 9;  AC at p 719):
In the Harris Tweed case Lord Porter said)( 1 All ER at p 170;  AC at p 487):
‘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. LORD CAVE, L.C.( All ER Rep at p 6;  AC at pp 713, 714), thought the point an open one and LORD SUMNER ( All ER Rep at p 20;  AC at p 740) 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 s 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 that
he may have on the facts or in law for interference with his employment 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
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 ( 2 All ER at pp 587, 600;  1 QB at pp 665, 683). 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, BOAC, 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 old-fashioned 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 Trade Disputes Act, 1906. It is easy now to see that Parliament 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 LJ said with great force ( 2 All ER at p 601;  1 QB at p 684):
‘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 counsel for the respondents 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. 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 to 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.
So your lordships cannot construe the Act of 1906 to give protection in the case of a threat of a breach of contract unless you also make it wide enough to protect the threatener of physical violence. The Act of 1906 was no doubt intended to give immunity for all forms of peaceful persuasion, but I am sure - and Lord Loreburn LC in the passage I have cited from Conway v Wade ([1908–10] All ER Rep at p 347;  AC at p 511) says as much - that it was not intended to give protection from violent persuasion. I do not think it would be right so 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 to 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 of 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 & Sons, Ltd v London Society of Compositors, especially per Lord MacNaghten ([1911–13] All ER Rep at p 247;  AC at p 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 ( 2 All ER at p 835;  1 QB at p 638) on liability should be restored. Counsel for the respondents 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 (counsel for the respondents 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 appropriate. 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 peculiar 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 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 compensation or the idea of punishment has prevailed.
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. They originated just two hundred 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). Serjeant Glynn on his behalf asked ((1763), Lofft at p 3) for ‘large and exemplary damages’, since trifling damages, he submitted, would put no stop at all to such proceedings. Pratt CJ in his direction to the jury said ((1763), Lofft at p 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 would noting that ((1763), Lofft at p 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 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 an 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 six 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 way 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 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. Lord Mansfield LC said ((1766), 3 Burr at p 1847) 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 justified 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, Leith v Pope, Merest v Harvey, Sears v Lyons, Williams v Currieand Emblen v Myers. 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 LCJ ((1769), 3 Wils at p 19) said that actions of this sort were brought for example’s sake. In the last of them, Wilde, B ((1860), 6 H & N at p 60), 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 ((1860), 6 H & N at p 57) in the Supreme Court of the United States was used in which he said:
‘There is no principle better established, 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 Ry Co, 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 ((1861), 10 C B N S at p 295) that Erle CJ at the trial told the jury to confine the damages to pecuniary loss proved. The jury appears to have gone beyond that and awarded £1,000. In the argument on the rule nisi Erle CJ said ((1861), 10 C B N S at p 304) that when the company’s conduct was looked at, careless 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 £1,000 was very temperate. Willes J said ((1861), 10 C B N S at p 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 necessary 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 LJ in Whitham v Kershaw ((1886), 16 QBD 613 at p 618) and in Finlay v Chirney ((1888), 20 QBD 494 at p 504) and of Scott LJ in Dumbell v Roberts ( 1 All ER 326 at p 330). McCardie J in Butterworth v Butterworth and Englefield ( P 126 at p 136) 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 and Smith (Trading as Nuagin Car Service) v Reo Motors (Britain), Ltd 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) 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 £1,500 damages for trespass, and £1,000 for assault; and £3,000 as exemplary damages, making £5,500 in all. This award was upheld in the Court of Appeal. In Williams v Settle 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 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, s 17(3), which provides that the court may have regard to the flagrancy of the infringement and to any benefit shown 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, 1956, 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, s 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, s 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, though 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 which 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 humiliation 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 CJ in Bell v Midland Ry Co ((1861), 10 C B N S at p 304). Maule J in Williams v Currie ((1845), 1 C B at p 848), suggests the same thing; and so does Martin, B, in an obiter dictum in Crouch v Great Northern Ry Co ((1856), 11 Exch 742 at p 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 plaintiff’s rights has calculated that the money to be made out of his wrongdoing 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 confined 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 oppressive 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 case, 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 compensation, are material in the assessment of exemplary damages. Everything 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 which 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 they can award some larger sum. If a verdict given on such direction has to be reviewed on 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 (Miscellaneous Provisions) 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 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 Currie, 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 sort of adjectives are used in the 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. 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, 1956, 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 compensation 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, I 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. Speaking of damages for defamation, Lord Atkin said that they were not arrived at ((1935), 153 LT at p 386)
‘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 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 which 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 that 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 ( 2 All ER at pp 827–835;  1 QB at pp 631–638). In the light of the general principles which I have endeavoured to state, I think that 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 the 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 respondents were 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 appellant’s complaints that the respondents’ 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 respondents had deliberately and knowingly broken their contracts with BOAC. 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 appellant in endangering their closed shop understanding with BOAC. 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 engineering unofficial ‘wild-cat’ 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. Counsel for the respondents 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 either of the two categories that I have mentioned. In my opinion, the facts disclosed in the summing-up do not 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 which 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 on 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. Counsel for the appellant relied strongly on the flagrant breach of contract with BOAC 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 BOAC’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 on 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 on 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.
My Lords, I agree with your lordships and with the courts below that the tort of intimidation has been shown to exist both on principle and on the authorities which are fully set out in the judgment of Pearson LJ ( 2 All ER at pp 602–608;  1 QB at pp 680–696). 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 ( All ER Rep at p 9;  AC at p 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 living by illegal means, and illegal means may either be means that are illegal in themselves or that may become illegal because of conspiracy 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 and Riordan v Butler, 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 ([1895–99] All ER Rep at p 79;  AC at p 121) Lord Herschell pointed out that 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 Co Ltd ([1904–07] All ER Rep at p 218;  AC at p 253) and Lord Watson in Allen v Flood ([1895–99] All ER Rep at p 69;  AC at p 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.
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 law 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 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, s 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 appellant can succeed in this case, s 1 gives no protection to the respondents.
Does s 3 protect the respondents? Certain intentions of the Act of 1906 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 s 4, total immunity from
actions in tort. To the members it gave only a partial protection. No general
immunity in tort was given to them; nor were they protected from breaches of
their own contracts. 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 provided by s 1; and s 3 was clearly intended to give partial protection in a different area. Unfortunately the limits of the protection in s 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 respondents 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 declaratory
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 confusion. 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 shown
to be wrong) it would be reasonable for Parliament to enact the second limb
of s 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 employment. 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 ([1908-10] All ER Rep at p 346;  AC at p 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 [Cooper v
Millea  IR 749; Riordan v Butler  IR 347] 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 LJ ( 2 All ER at p 600;  1 QB at p 682), in his forceful judgment subscribed) is urged on the respondents’ behalf to the effect that threats of awful action (ie by giving notice) as opposed to threats of unlawful action (ie by stopping work in breach of contract) are inconvenient and unsuited to modern industrial disputes, since neither side wishes the contracts 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 how far it is a useful argument on what Parliament intended in 1906 under the then existing conditions. It is further contended by the respondents that to limit the protection of s 3 to the torts specifically referred to in the section, namely, the tort of inducing a breach of contract and the tort (as it was then thought) of interference with trade or employment would be to drive a coach and four through the protection afforded to trade unionists by the Act. The appellant retorts that the opposite construction would, by licensing all forms of tort, contrary to the views of the Act expressed by Lord Loreburn LC ([1908–10] All ER Rep at p 346;  AC at p 510) 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 components 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 that no spoken words should be actionable on the ground only that they referred 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.