Conway v. Wade [1909] UKHL 578

UKHL
Conway v. Wade
[1909] UKHL 578

On Appeal from the Court of Appeal in England.)

Tuesday , July 27 , 1909 .(Before the Lord Chancellor (Loreburn) , Lords Macnaghten , James of Hereford, Atkinson , Collins , Gorell , and Shaw .)47 SLR 578Conway v. Wade.Subject_ Reparation — Trade Union — Interference with Employment — Act Done in “Contemplation or Furtherance of a Trade Dispute” — Trade Dispute not Existent or Imminent. Facts:A trade union official, in order to enforce payment of a fine by a member, uttered threats to his employer and thereby procured his discharge. These proceedings were not authorised by the trade union, and in fact there was no trade dispute existing or contemplated by the men. In an action of damages by the discharged workman, held that the defender had committed an actionable wrong, and that his liability therefor was not affected by the Trade Disputes Act 1906, section 3, the act complained of not being done in contemplation or furtherance of a trade dispute.The appellant, who was a workman, brought an action of damages against the respondent, the officer of a trades union, for having used threats to the workman's employer and wrongfully procured his discharge. The facts appear fully from their Lordships' judgments. The jury in answer to a question had found that there was no trade dispute existing or contemplated by the men of the union. A verdict in favour of the appellant had been set aside by the Court of Appeal ( Cozens-Hardy, M.R., Farwell and Kennedy, L.JJ .) in respect of the terms of the Trade Disputes Act 1906, section 3.

Their Lordships gave considered judgment as follows:—

Lord Chancellor (Loreburn) —In my opinion the order appealed from should be reversed. This action was tried before the County Court Judge at South Shields. Your Lordships have not that learned Judge's summing up before you, but no kind of objection was raised to it. A series of questions was put to the jury by desire of counsel on both sides, and duly answered, so that we have all the material facts either admitted or found. If the jury were right, what happened was as follows:—The plaintiff was in employment under the firm of Readhead & Co. The defendant Wade, in order to compel the plaintiff to pay a fine due to the trade union, and to punish him for not paying it, procured Messrs Readhead & Co.'s foreman to dismiss him, by threats that unless they dismissed the plaintiff the union men in their service would leave off work, which was not true. The plaintiff had to quit his employment in consequence and so suffered damage. So far I own that from the evidence as it appears on paper I am not sure that I should have myself found all those things. But I am quite sure that the jury who heard the witnesses are better judges on such a subject than I can be. The defendant must be taken to have acted as a mischief-maker in order to injure the plaintiff from unworthy motives, accompanied by threats that he would cause Messrs Readhead's men to come out, in a matter with which he had no concern, for it is admitted that though district delegate of the union he was acting without authority. The only defence really made to this action, beyond a denial of these facts, was the 3rd section of the Trade Disputes Act 1906, and it was upon this ground alone that the Court of Appeal decided the case. Manifestly it is essential to any defence under this section that the defendant should show that the act complained of was done in contemplation or furtherance of a trade dispute. Otherwise the section cannot possibly apply. Now the jury, in addition to their other findings, have found explicitly that there was no trade dispute either existing or contemplated by the men, which has been properly taken to mean that the act complained of was not done in contemplation or furtherance of a trade dispute. The Judge was satisfied with this verdict, as was the Divisional Court. In the Court of Appeal, however, the learned Judges have found this fact the other way, and thereupon entered judgment for the defendant. Knowing as I do how adverse the Court of Appeal is from usurping the functions of a jury I conclude that the learned Judges were enabled to bring this case within this section by taking a different view of the section from that which I take, for the verdict of the jury seems, I believe, to all your Lordships a reasonable enough conclusion from the evidence, and one which it is our duty to support. “Trade dispute” is a familiar phrase in earlier Acts of Parliament, and is defined in this Act. I do not know that the definition is of much assistance. If this section is to apply there must be a dispute, however the subject-matter of it be defined. A mere personal quarrel or a grumbling or an agitation will not suffice. It must be something fairly definite and of real substance. If this be so, I am then so far from thinking it impossible to doubt that there was a trade dispute that I actually think that there was none, if indeed, my opinion, founded on printed evidence, is worth much. The law, however, prefers the opinion of a jury, and the jury have in this case come to the same conclusion. I prefer to say nothing as to some opinions expressed in the Court of Appeal with regard to this Act and the motives supposed to have actuated those who passed it. If the Act is to be interpreted or applied in the view that stirring up strife is the aim and object of any part of it, then indeed it will be a fountain of bitter waters. But some opinions were also expressed as to a matter on which the Court of Appeal has

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Lord Macnaghten concurred.Lord James of Hereford—In order to arrive at a conclusion upon this appeal your Lordships must determine two questions of fact. The first is—“Were the acts complained of the outcome of a trade dispute within the meaning of the 3rd section of the Act of 1906?” In my opinion the jury found correctly(1) that a trade dispute did not exist and was not contemplated by the men;(2) that the men did not communicate any such existence or contemplation of a trade dispute to the defendant;(3) that the defendant did not act in consequence of any such communication. I see no ground for setting aside those findings; on the contrary, if I had been a member of the jury, so far as I can judge, I should have been of the same opinion. The circumstances given in evidence seem to show that the complaint in respect of the non-payment of the fine was not a genuine complaint, but was put forward as a pretence under which the plaintiff might be deprived of the position to which he had been promoted. It seems that the fine referred to had been imposed eight years before the events in question, and that it had never been enforced although the plaintiff had intermittently been a member of the union, and had been received as such, and apparently no dispute existed as to his liability to pay the fine. On the 23rd September 1908 the plaintiff entered upon employment at Readhead's works as an ordinary workman. On the 25th the defendant saw the plaintiff's receipt for the union payment and said, “It is all right, go to work.” Up to this time it seems clear that no trade dispute existed. But within a few days the plaintiff was appointed a chargeman with an advance of wages from 28s. to 33s. per week. I come to the conclusion that it was the preference of the plaintiff that caused certain of his fellow workmen to desire to get rid of him, and with that object to put in motion the defendant, who could speak with apparent authority to the plaintiff's employers. Accepting this duty the defendant took the old forgotten incident of non-payment out of stock and represented it as a ground of complaint against the plaintiff. At any rate I think that this inference might well be drawn by the jury, and if such result is correct, I submit that no sufficient ground exists under which your Lordships can come to the conclusion that this finding should be overruled. The second question that has to be determined is, “Did the defendant use threatening language to the plaintiff's employer with the intention of preventing the plaintiff from retaining his employment?” The jury have found affirmatively that the defendant made use of such language with the intention alleged. The question involved is, of course, one of fact. The words used may be without controversy, but the sense in which they are used may have to be determined not only by the mere words but by many surrounding circumstances—even those of voice and gesture. In this case the defendant's threat to the plaintiff that he would not be allowed to work shows, as it seems to me, that the defendant's position was one of hostility to the plaintiff. His interference was caused by a desire that the plaintiff should not continue in Readhead's employment. There was no apparent reason why the defendant should act as a gratuitous adviser in the interests of the plaintiff's employers, and if he did not interfere as an adviser it seems apparent he must have done so in a spirit of hostility to the plaintiff and with the object of depriving him of his employment—in which effort he succeeded. I think that a good cause of action was established, and that the defendant is not protected by the 3rd section of the Act of 1906. The appeal therefore succeeds.Lord Atkinson —It was, in my opinion, perfectly competent for the jury as reasonable men to have come to the conclusion on the evidence that the whole story put forward by the defendant as to the existence amongst the fellow-workmen of the plaintiff of an objection to his presence and a resolve to leave the employment if he was to continue in it was a fabrication. There are two circumstances in the case which to my mind point in that direction-first, the fact that none of the plaintiff's fellow-workmen ever suggested to him that any such objection or resolve existed; and second, the fact that neither in the letter of the defendant of the 17th October 1907, nor in that of his solicitor of the 21st of the same month, is any reference whatever made to either of these matters. Messrs Hannay & Stewart, the plaintiff's solicitors, had, in their letter of the 17th October, the receipt of which the defendant acknowledged, distinctly charged him with unlawfully and maliciously procuring the plaintiff's dismissal from his work at Readhead's yard, and also with having informed the plaintiff that he (the defendant) would stop the former's getting work elsewhere. There is not in the correspondence any denial of the truth of either of these charges, nor, stranger still, any statement to the effect that the defendant, as he now contends, only communicated to Baines, the manager of the works, the resolve which the workmen of the firm had already formed, or that he had merely remonstrated in a friendly way with or advised their manager. That story was reserved for the trial, and the fact that it was so reserved might, in my view, be most reasonably regarded as throwing grave suspicion upon it. It appears to me to be clear, and indeed I hardly think that it is seriously disputed, that the words used by Wade to Baines are capable of conveying a threat, and that the jury were justified as reasonable men in finding, as

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Lord Collins —I am of opinion that this appeal should be allowed and the judgment of the County Court Judge and of the Divisional Court restored. No doubt the learned counsel for the defendant submitted at the end of the plaintiff's case that there was no case for the jury, and the learned Judge refused to stop the case. The learned counsel then called witnesses, including the defendant himself, and after the jury had answered a series of questions put by the learned Judge, but framed by the parties as raising the proper issues, and the Judge had entered judgment for the plaintiff, the defendant's counsel forthwith moved for a new trial on the ground that the verdict was against the weight of evidence, but he did not contend that on the findings as they stood he was entitled to judgment. The learned Judge declined to order a new trial. The defendant thereupon appealed to the Divisional Court. His notice of appeal properly did not raise any question except that argued in the Court below, viz., that the verdict was against the weight of evidence. The Divisional Court, addressing themselves to the same point only, affirmed the decision of the Court below. On appeal to the Court of Appeal the same point only seems to have been raised, and I can find no trace in the report of the judgments indicating that, admitting the findings to be unimpeachable, the defendant was nevertheless entitled to judgment, and the Court of Appeal accordingly arrived at their judgment only by ignoring the findings in favour of the defendant as perverse and unsupported by any reasonable evidence. Therefore in my opinion the case does not raise, and this House is not called upon to consider, the question whether, accepting the findings, the plaintiff is entitled to judgment. The case has been conducted throughout on the footing that he is. Furthermore, if the Divisional Court are right in refusing to disturb the verdict, this House is not called upon to put a construction on the recent Trade Disputes Act, since the jury have negatived any trade dispute actual or contemplated. I entirely agree with the reasoning of Channell, J., in refusing to disturb this finding, which, in my opinion, it was quite reasonable for the jury to arrive at honestly on the evidence. It follows that the decision of the Court of Appeal must be reversed, and that of the Divisional Court restored.Lord Gorell concurred.Lord Shaw —By the Trade Disputes Act 1906 (sec. 3) it is provided that “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.” In the present case an act was done by the respondent which induced the appellant's employer forthwith to dispense with his services. The circumstances are set forth in the judgment of Lord James of Hereford, to which I shall afterwards refer. The jury have substantially affirmed that the act was of a threatening or coercive character, and caused the loss of employment in circumstances which at common law would have afforded a good ground of action. But the respondent pleads that the act was done “in contemplation or furtherance of a trade dispute,” and that his common law liability is thus removed. These terms have been construed by the learned Judges of the Court of Appeal. In view not only of the general importance of the question but of the terms in which the judgments of the learned Lords-Justices are couched, I need not say that I have considered with much anxiety the point raised. It is no doubt true that by sec. 5 (3) the expression “trade dispute” receives a very wide interpretation. It “means any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or nonemployment, or the terms of the employment … of any person,” &c. But I cannot see my way to hold that “trade dispute” necessarily includes accordingly every case of personal difference between any one workman and one or more of his fellows. It is true that after a certain stage even such a dispute, although originally grounded, it may be, upon personal animosity, may come to be a subject in which sides are taken, and may develop into a situation of a general aspect containing the characteristics of a trade dispute, but until it reaches that stage I cannot hold that a trade dispute necessarily exists. I cannot better illustrate my meaning than by simply taking the facts of the present case in the light of the rules of the trade union to which the appellant belonged. It is said that eight years ago he had been fined by his union and had not paid. In the interval he had rejoined the membership and was apparently a full paying member. Wade, the respondent, was an official delegate of the union. By the rules of the union district committees were appointed to decide all complaints and disputes between members or branches in

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Judgment appealed from reversed.Counsel for Appellant— Avory, K.C.— Joel— H. D. Woodcock— G. C. O'Gorman. Agents— Gibson & Weldon, Solicitors.Counsel for Respondent— C. A. Russell, K.C. — E. Shortt. Agents — Robinson & Bradley, Solicitors.