Vacher & Sons Ltd v London Society of Compositors [1912] UKHL 3

UKHL

Vacher & Sons Ltd v London Society of Compositors

[1912] UKHL 3 · 1912-11-18

It is common knowledge that this decision gave rise to keen controversy as to whether the law required amendment. On the one hand it was contended that the principle laid down ought to remain undisturbed, because it simply imposed on the trade unions the legal liability for their actions which ought to accompany the immense powers which the Trade Union Acts had set them free to exercise. On the other side it was maintained that to impose such liability was, to subject their funds, which were held for benevolent purposes as well as for those of industrial battles, to undue risk. It was said that by reason of the nature of their organization and their responsibility in law for the action of a multitude of individuals who would be held in law to be their agents, but over whom it was not possible for them to exercise adequate control, they were, by the decision of this House, exposed to perils which must cripple their usefulness.

My Lords,

we have heard, in the course of this case, suggestions as to the merits of the conflicting points of view and as to the reasonableness, in interpreting the language of Parliament in the Trade Disputes Act of 1906, of presuming that the Legislature was acting with one or other of these points of view in its mind. For my own part, I do not propose to speculate on what the motive of Parliament was. The topic is one on which judges cannot profitably or properly enter. Their province is the very different one of construing the language in which the Legislature has finally expressed its conclusions, and if they undertake the other province which belongs to those who, in making the laws, have to endeavour to interpret the desire of the country, they are in danger of going astray in a labyrinth to the character of which they have no sufficient guide. In endeavouring to place the proper interpretation on the sections of the statute before this House sitting in its judicial capacity, I propose, therefore, to exclude consideration of everything excepting the state of the law as it was when the statute was passed, and the light to be got by reading it as a whole, before attempting to construe any particular section. Subject to this consideration, I think that the only safe course is to read the language of the statute in what seems to be its natural sense.

The first question before us is whether a trade union, if it has committed a tortious act, such as a libel, can be sued for damages at all, even if the act is not committed in contemplation or in furtherance of a trade dispute. Before the Trade Disputes Act was passed it undoubtedly could have been so sued, and the question is whether Parliament has put an end to this liability.

The Act is confined to trade unions within the definition of the Trade Union Acts of 1871 and 1876. The title is "An Act to provide for the Regulation of Trades Unions and Trade Disputes." This appears to me to indicate that the scope of the statute was not confined to the regulation of trade disputes merely. Sect. 1 is confined to cases of trade disputes and amends the law of conspiracy in such cases by precluding legal remedy unless the act done would have been actionable apart from the circumstances of agreement or combination to do it.

Sect. 2 is also confined to cases of trade disputes. It legalizes what is popularly called "peaceful picketing." Sect. 3 takes away the actionable character of any act done by a person in contemplation or furtherance of a trade dispute if the ground of action is only that what was done induced another person to break a contract of employment, or was an interference with the trade, business, or employment of another person, or with his right to dispose of his capital or his labour as he pleases. It will be observed that these three sections all relate to trade disputes, but that none of them relates exclusively to the case of a trade union. Sect. 4, sub-s. 1, the section which has to be construed in the present appeal, does, however, relate exclusively to the case of a trade union. It enacts that an action against such a union, whether of workmen or masters, or against any members or officials of the union on behalf of themselves and all the other members, in respect of any tortious act alleged to have been committed by or on behalf of the union, shall not be entertained by any Court. I draw attention to the fact that this section differs from the three preceding sections not only in relating exclusively to the case of a trade union, but in that sub-s. 1 omits mention of any restriction which would confine the tortious act to one in contemplation or in furtherance of a trade dispute. Upon this point it has been contended by the learned counsel who addressed the House for the appellants that such a restriction ought to be implied. It is said that s. 5, which provides that the Act may be cited as the Trade Disputes Act, 1906, and the scheme of the first three sections, which deal only with trade disputes, shew that the Act is to be interpreted as so confined, and that it cannot be supposed that the Legislature intended to free trade unions from liability to the extent which a literal reading of s. 4, sub-s. 1, would indicate.

My Lords,

with this contention I am unable to agree. It is true that it is provided that the Act may be cited by the short title of the Trade Disputes Act, 1906. But the governing title is that which introduces the statute as an Act to provide for the regulation of trade unions and trade disputes. The first three sections regulate trade disputes. The 4th section appears to me to carry out the other intention indicated by the initial title by laying down new law as to trade unions. I find no context in the Act read as a whole which indicates an intention to cut down the literal meaning of the wide language of s. 4, sub-s. 1. For reasons which I have already assigned, I think that it would not only be beyond the functions of a Court of justice to presume that the Legislature could not when it passed the Act have intended to go as far as the plain words used say, but that if judges could speculate as to its intentions they would probably speculate wrongly.

I pass, therefore, to the next point which was made for the appellants. This turns on the effect of sub-s. 2 of s. 4, a sub-section which, it is said, ought to be read as a proviso to sub-s. 1 restricting its operation. Sect. 4, sub-s. 2, is in these terms:

"Nothing in this section shall affect the liability of the trustees of a trade union to be sued in the events provided for by the Trade Union Act, 1871, section nine, except in respect of any tortious act committed by or on behalf of the union in contemplation or furtherance of a trade dispute."

The Act of 1871 enables trade unions to register, and provides by s. 9 that the trustees of a registered trade union may sue or be sued as such in cases concerning the property of the trade union. The Legislature appears to have desired to draw a distinction between the union and its trustees and to preserve the liability of the trustees under this section, even in the case of tortious acts committed by the union, damages arising out of which might, as pointed out by Lord Lindley in his judgment in the Taff Vale Case (1) , have been made effective against property in the hands of the trustees. But a restriction is put on the liability of the trustees by excepting from it liability in respect of a tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute. Having regard to the distinction drawn in the wording of the statute between the liability of the trade union and the liability of its trustees, I see no justification for importing the provision restricting liability enacted in the latter sub-section into the words of sub-s. 1, and I think that on the second point made the argument

which was addressed to us to the effect that the words of exception in the 2nd sub-section must be read as qualifying the whole section cannot succeed.

I now turn to the facts out of which the questions of law which I have considered arose.

The action was one for damages for conspiracy and libel, brought by the appellants, whose business was that of printers, against the respondents, who were a trade union to which the Act of 1906 applied. It does not appear whether there were trustees of the union or whether there was property vested in them which could have been made liable, assuming the cause of action did not arise out of a trade dispute. If there were trustees they were not made defendants, and, indeed, if the advisers of the plaintiffs were apprehensive that the trial might disclose a trade dispute, it is obvious that there were good reasons for not joining the trustees. A statement of claim was delivered which set out particulars of the conspiracy and libel, the gist of which was that the respondents had conspired to represent and had untruly represented the appellants as a firm that dealt unfairly by their workmen. Without delivering a statement of defence the respondents applied to strike the name of the respondent society from the action on the ground that in the first place a trade union could not be sued at all in such an action, and that, in the second place, even if s. 4, sub-s. 1, of the Trade Disputes Act of 1906 was to be read as applying only if there was a trade dispute, it appeared on the face of the proceedings that the acts complained of had arisen out of such a trade dispute. Master Wilberforce made an order allowing the application. Channell J. on appeal discharged this order, and directed that the point should not be disposed of summarily, but should stand to the trial. The Court of Appeal by a majority reversed the order of Channell J. and restored the order of Master Wilberforce. Vaughan Williams L.J. thought that the libel, even according to the bare description in the statement of claim, was, on the face of it, an act done in contemplation or furtherance of a trade dispute. I entertain so much doubt on this point, that if it were the only one that arose I should be of the opinion of Channell J. that the application ought to stand over to the trial in order that facts might be ascertained which would enable the Court to decide whether it had jurisdiction to entertain the action. But Vaughan Williams L.J. decided in favour of the appeal before him on the other point. He took the view which I take, that sub-s. 2 of s. 4 cannot be read as qualifying the prohibition of the Courts contained in sub-s. 1. Farwell L.J. took a different view and dissented, and Kennedy L.J. held that the plain language of sub-s. 1 could not be cut down except by indulgence in illegitimate speculation as to what the Legislature must have intended. On the other point he found himself unable to agree with Vaughan Williams L.J.

My Lords,

I am in complete agreement with the judgment delivered by Kennedy L.J. The reasons I have stated in examining the Act and its various sections have led me to the same conclusions as he has reached. I therefore move that this appeal be dismissed with costs.

LORD MACNAGHTEN.

My Lords, the point raised by this appeal is a very short one and, in my opinion, absolutely clear. If I had not had the pleasure of listening to a most ingenious argument on the part of the appellants, I should not have thought the question arguable here or anywhere else in the world.

The Trade Disputes Act, 1906, declares that "An action against a trade union, .... in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any Court." The language of the enactment is precise and unambiguous. No one can doubt what the words mean.

Now it is "the universal rule," as Lord Wensleydale observed in Grey v. Pearson (1) , that in construing statutes, as in construing all other written instruments, "the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further."

Acts of Parliament are, of course, to be construed "according

to the intent of the Parliament" which passes them. That is "the only rule," said Tindal C.J., delivering the opinion of the judges who advised this House, in the Sussex Peerage Case. (1) But his Lordship was careful to add this note of warning:

"If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver."

Nowadays, when it is a rare thing to find a preamble in any public general statute, the field of inquiry is even narrower than it was in former times. In the absence of a preamble there can, I think, be only two cases in which it is permissible to depart from the ordinary and natural sense of the words of an enactment. It must be shewn either that the words taken in their natural sense lead to some absurdity or that there is some other clause in the body of the Act inconsistent with, or repugnant to, the enactment in question construed in the ordinary sense of the language in which it is expressed.

Now there is nothing absurd in the notion of an association or body enjoying immunity from actions at law. Some people may think the policy of the Act unwise and even dangerous to the community. Some may think it at variance with principles which have long been held sacred. But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction. It is, I apprehend, as unwise as it is unprofitable to cavil at the policy of an Act of Parliament, or to pass a covert censure on the Legislature.

It was not contended that there is any inconsistency in the Trade Disputes Act, or any conflict between any of its clauses. On the contrary, the argument rather was that it was consistent throughout; so consistent and so clear that the omission of words otherwise perhaps material made no difference. No words, it was said, were to be supplied; there was no room even for implication. Sect. 4 was merely consequential on the sections

which preceded it. Throughout the statute from first to last the only case which Parliament was contemplating was the case where the tortious act complained of is done in furtherance or in contemplation of a trade dispute. It was said that this was plain from the preceding sections, and that sub-s. 2 of s. 4 made it plainer still.

There is some difficulty in grasping an argument so ingenious and so subtle. I agree with Mr. Morris, who put the case for the respondents very well. The appellants must fail unless the words "in contemplation or furtherance of a trade dispute" are introduced into sub-s. 1 of s. 4, by instruction or implication or some process of thought-reading which I confess I am unable to follow.

Sect. 4 is not, I think, consequential on the preceding sections in the sense in which the learned counsel for the appellants used the word "consequential." Sect. 4 seems to me to deal with a different subject and a different Act of Parliament. The first three sections are concerned with the Conspiracy and Protection of Property Act, 1875. The first two sections in terms refer to that Act. Sect. 3, though not mentioning the Act in terms, affects the Act and amends it by making the act of "a person," in inducing a breach of contract, or in doing certain other things, which would have been actionable before the Trade Disputes Act, 1906, actionable no longer if done in contemplation or furtherance of a trade dispute. Sect. 4 is not directed to the Conspiracy and Protection of Property Act, 1875. In both its sub-sections it is directed to the Trade Union Act, 1871. Everybody knows that sub-s. 1 was introduced in order to neutralize the effect of the decision in the Taff Vale Case (1) by an extension of the Trade Union Act, 1871.

It is not easy to see the object of sub-s. 2 of s. 4 or to understand its precise meaning. It seems to me, therefore, that it will be better to leave the construction of that sub-section to be determined when it comes directly in question, if ever that occasion should occur. However it may be construed it cannot, I think, affect the plain meaning of sub-s. 1, or assist the appellants in any way.

I am of opinion that the action as against the trade union was incompetent and that the appeal should be dismissed with costs.

LORD ATKINSON.

My Lords, the sole question for decision in this case is, in my view, the proper construction of the first sub-section of s. 4 of the Trade Disputes Act, 1906. It has already been quoted. The law upon the subject of the liability of a trade union to be sued in tort at the time this statute was passed was, I think, this: Under the decisions in the cases of Duke of Bedford v. Ellis(1) and the Taff Vale Case

(2) it must, I think, be taken (1.) that a trade union, registered or unregistered, could be sued in respect of torts committed by its agents in a representative action, provided the selected defendants were fairly representative of it; (2.) that a registered society might be sued in its registered name; and (3.) that if the trustees were made defendants in such actions, an order could be made by the Court binding on them for the payment by them of the damages and costs recovered, out of the funds of the society in their hands. Lord Lindley lays down this last proposition in so many words at p. 443 of The Taff Vale Case. (2) So that it is not at all necessary that, judgment being recovered against the union in either of such actions, a second action, founded on that judgment, should be brought against the trustees to recover the amount of the damages and costs which the judgment had converted into a specialty debt. Equitable execution against the property of the union held by the trustees could be obtained in the original suit, if they were made parties to it.

In s. 4, sub-s. 1, of the Act of 1906 the representative form of action is expressly named in so many words, and it is enacted that an action of that kind brought in respect of any tort alleged to have been committed by or on behalf of the trade union shall not be entertained. The sub-section further provides that any action for a similar tort shall not be brought against the trade union. Thus both these modes of proceeding to obtain redress for the tortious act mentioned are in plain and unambiguous language prohibited. Such actions, it says, "shall not be entertained by any Court." Now Mr. Danckwerts, in his able argument,

insisted that this wide and positive prohibition must be cut down and limited in its scope to cases in which the action is brought in respect of a tort committed by or on behalf of a trade union "in contemplation or furtherance of a trade dispute," and that a trade union should be held to remain as liable as it was before this statute was passed for all torts committed by it or on its behalf which were not committed "in contemplation or furtherance of a trade dispute." He bases his argument, as I understand him, upon two grounds: firstly, upon the consideration of the evil results which would follow from the wider construction, since it would, he says, raise trade unions above the law, and enable them to commit torts of all kinds with impunity; and, secondly, on the ground that s. 4, sub-s. 1, is merely consequential upon ss. 1, 2, and 3, and that when taken in connection with these latter, it is necessary to limit sub s. 1 to the extent he contended for, in order to bring it into harmony with the provisions of those earlier sections as well as with those of the 2nd sub-section of this section.

It is no doubt well established that, in construing the words of a statute susceptible of more than one meaning, it is legitimate to consider the consequences which would result from any particular construction, for, as there are many things which the Legislature is presumed not to have intended to bring about, a construction which would not lead to any one of these things should be preferred to one which would lead to one or more of them. But, as Lord Halsbury laid down in Cooke v. Charles A. Vogeler Co. (1) , a Court of law has nothing to do with the reasonableness or unreasonableness of a provision of a statute, except so far as it may help it in interpreting what the Legislature has said. If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results. If the language of this sub-section be not controlled by some of the other provisions of the statute, it must, since its language is plain and unambiguous, be enforced, and your Lordships' House sitting judicially is not

concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischievous.

Lord Esher in Reg. v.

The Judge of the City of London Court (1) states the principle thus:

"If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the Legislature has committed an absurdity. In my opinion, the rule has always been this - if the words of an Act admit of two interpretations, then they are not clear; and if one interpretation leads to an absurdity, and the other does not, the Court will conclude that the Legislature did not intend to lead to an absurdity, and will adopt the other interpretation."

So that if in this case the words in this section are plain and are not controlled by other portions of the statute, the contention that to interpret them according to their natural and ordinary meaning would result in placing trade unions above the law is, for the purposes of the judicial decision of this case, entirely irrelevant. We have nothing to do with it. I think the language is plain, and therefore abstain from expressing any opinion on the character of the enactment or the results it will bring about.

Next, as to the contention that s. 4, sub-s. 1, is only consequential on the three preceding sections. The 1st section simply aims at assimilating the civil and criminal law in respect of the particular kind of conspiracy mentioned in the section. The 3rd section of the Act of 1875 provided that an agreement or combination of two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen should not be indictable as a criminal conspiracy, if the act when committed by one person would not be a crime. It thus struck, in the particular instance mentioned, at the principle of the criminal law of conspiracy to the effect that it is the "agreement or combination" which is the essence of the crime, and that, therefore, a combination or agreement to do, or procure to be done, something not in its own nature criminal if done by one person, might still be a crime.

In order to establish civil liability for a conspiracy "agreement

or combination" per se is not enough. It must be followed by damage. Damage can only be caused by some act, including in the word "act," of course, the use of threatening words, or the writing and publishing or speaking and publishing defamatory words, or such like. And it was, therefore, only necessary, in order to protect from civil liability in this kind of case, to provide, as has been provided in s. 1 of the Act of 1906, that "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." The words apply to all persons whether members of trade unions or not, and to combinations between such persons.

As to the 2nd section of the Act of 1906, the Act of 1875, by s. 7, made "watching and besetting" of the kind therein described criminal, but in its last paragraph limited the scope of the section by enacting that the action which would amount under its words to the crime of watching and besetting was not to be so treated if it was done merely to obtain or communicate information. The 2nd section of the Act of 1906 deals with civil as well as criminal responsibility. It makes the acts it describes lawful acts, and secures immunity not only for the attending to obtain or communicating information, but also for the attending for the purpose of persuading any person to work or abstain from working, provided always that these things are done, first, peaceably, and, secondly, in contemplation or furtherance of a trade dispute. But this section, like the preceding one, is not confined to trade unions or to the members of trade unions. It applies to one or more persons acting on his or their own behalf, or on behalf of a trade union, or of an individual employer or firm.

The members of trade unions who watch or beset in a manner which deprives them of the protection of this section are of course liable criminally or civilly according to the nature of the act done.

Sect. 3 of the Act of 1906 applies to all individuals. It is intended to encroach upon the law as laid down in Quinn v. Leathem (1) , and the cases which preceded it; but, like

the earlier provisions, it applies to all persons whether members of a trade union or not. It is quite true that in each of these sections one of the necessary conditions to secure immunity is that the act should be done in contemplation or furtherance of a trade dispute. It is from that circumstance that the saving grace apparently flows, and I can fully appreciate the force of the argument by analogy pressed by Mr. Danckwerts, that trade unionists should not escape liability unless they bring themselves within its absolving influence. That argument would have much more force if any consistent scheme or plan underlay this statute. But that is not so. Its 1st and 2nd sections merely introduce qualifying provisions into two sections of an existing statute, and its 3rd section is designed merely to modify, by the same qualification, the law laid down in several cases. No reason can, I think, be suggested why the Legislature should not have expressly qualified the immunity conferred upon trade unions by s. 4, sub-s. 1, in the manner suggested, if they desired or intended so to do. They have used plain, clear, and unambiguous language to confer this immunity, and I do not at all think that it is necessary to qualify that language to bring the provisions of the sub-section into harmony with the provisions of the sections which have preceded it.

There remains for consideration the 2nd sub-section of s. 4. Mr. Danckwerts relied strongly upon this sub-section in support of his contention. The qualification common to the 1st, 2nd, and 3rd sections is here introduced to qualify to that extent the statutory liability imposed upon the trustees (who may not be members of the union at all) by the 9th section of the Act of 1871, and he urged that the use of the words "nothing in this section" with which the sub-section commences shews that the Legislature thought and intended that the words "in contemplation or furtherance of a trade dispute" should be taken as by implication introduced into the 1st sub-section. I think, however, it is clear what the meaning and object of the sub-section really is. A proceeding against the trustees under s. 9 of the Act of 1871 is in fact, if not in form, a proceeding in rem against the property of the trade union. In that sense it is an action against the union itself. Judgments for damages against a trade union for torts committed by its agent, in whatever form the action might be brought, can only be satisfied out of the property vested in the trustees; and it was, I think, apprehended by the Legislature that the wide and positive provisions of sub-s. 1 might be taken as practically repealing in part s. 9 of the Act of 1871, and thereby conferring on the trustees immunity as absolute as that conferred upon the union. This sub-section, while qualifying their liability to some extent by the introduction of the provisions common to ss. 1, 2, and 3, was, I think, passed for greater caution to meet this possible danger, and, save as to that qualification, to preserve unimpaired the liability imposed on the trustees by s. 9 of the Act of 1871.

In the view I take of the provisions of sub-s. 1 of s. 4, it is not necessary to determine whether any evidence of the existence of a trade dispute is disclosed in the statement of claim, or any evidence that the alleged libel was published in contemplation or furtherance of such a dispute. I wish, however, to point out that in a proceeding such as that adopted in this case, which is in truth somewhat of the nature of a demurrer to the statement of claim, the only facts which can be taken as admitted are those which are, expressly or impliedly, averred in the statement of claim itself. Inferences of fact must be drawn by the jury. And no Court can, for the purposes of such a proceeding as this, take as admitted a fact not averred, but which is, in truth, an inference from facts which are averred in the pleading.

In this statement of claim it is not averred, expressly or impliedly, that a trade dispute existed or was in contemplation. Neither is it averred that the act complained of was done in furtherance or contemplation of such a dispute. In my opinion, therefore, this case must be disposed of on the assumption that no trade dispute existed, or was in contemplation, and that this libel was not published in contemplation or furtherance of such a dispute. On the whole I am of opinion that the appeal fails and should be dismissed with costs.

LORD SHAW OF DUNFERMLINE.

My Lords, by s. 4, sub-s. 1, of the Trade Disputes Act, 1906, it is provided that "an action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any Court."

It is conceded that this action - which is against a trade union in respect of a tort - is within the class of actions there set forth, if the words of the sub-section mean what they say. I think that the sub-section is neither self-contradictory nor repugnant to the other provisions of the Act, and that, as regards the words themselves, they are unambiguous, comprehensive, and imperative.

Were they ambiguous, other sections or sub-sections might have to be invoked to clear up their meaning; but being unambiguous, such a reference might distort that meaning and so produce error. And of course this is a fortiori the case, if a reference is suggested, not to something within, but to considerations extraneous to, the Act itself. If, for instance, it be argued that the mind of Parliament "looking before and after," having in view the past history of a question and the future consequences of its language, must have meant something different from what it said, then it must be answered that all this essay in psychological dexterity may be interesting, may help to whittle language down or even to vaporize it, but is a most dangerous exercise for any interpreter like a Court of law, whose duty is loyally to accept and plainly to expound the simple words employed. I therefore agree entirely with my noble and learned friend Lord Macnaghten in his view of this case.

The comprehensiveness is plain; the action which no Court is to entertain against a trade union is "in respect of any tortious act," & c. To limit this to tortious acts of a particular character or in respect of particular things, such as trade disputes, is to imply an addition to the language and to import a limit to the comprehensiveness of the section, and so pro tanto to defeat the statute.

Nor is the imperative doubtful. No Court is to entertain such an action. Apart altogether from the pleadings, it is pars judicis to stop the case whenever its true nature is revealed. To entertain the action would be to disobey the Legislature, and would on the part of the judiciary constitute a usurpation.

I content myself with these propositions and do not enter into the details. I refrain for this reason, that these, together with what are, in my humble opinion, the proper conclusions to be derived therefrom, have been marshalled by Kennedy L.J. in a judgment to which I do not feel that I could usefully add.

LORD MOULTON.

My Lords, I concur. The only question raised by this appeal is, in my opinion, the proper construction of s. 4, sub-s. 1, of the Trade Disputes Act, 1906. If this be construed in the manner contended for by the respondents, it amounts to a statutory prohibition to all Courts against entertaining an action of tort against a trade union. This renders it obligatory upon the Court to stay such an action so soon as it is made aware of its existence. To allow it to come to trial would, in my opinion, be entertaining it. The statute so interpreted gives protection to trade unions against actions of tort not by furnishing them with a defence, but by giving them complete immunity against legal proceedings.

The words of the enactment are as follows:

"An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any Court."

These words appear to me to be free from any ambiguity when taken apart from their context in the Act. At the date when the Act was passed it had been settled that trade unions could be sued in a representative action or, if they were registered trade unions, under their registered name, and the plain meaning of the enactment is that, however the trade union be sued, the Court shall not entertain the action if it is in respect of a tortious act alleged to have been committed by or on behalf of the trade union. But the appellants say that when the whole Act is considered it will appear that this is not the right construction, and that, on the contrary, the general language of the section must be limited by implication from other parts of the

Act. It is, of course, a well-recognized principle in the interpretation of statutes, that a statute must be looked at as a whole, and I shall, therefore, as the point is of great importance, proceed to consider in detail the arguments urged on behalf of the appellants for thus restricting the meaning of the enactment.

The Act is entitled "An Act to provide for the Regulation of Trades Unions and Trade Disputes." It consists substantially of four enacting sections. The 1st section amends the law as to combination, the 2nd permits peaceful picketing, the 3rd amends the law by which it was actionable to persuade servants or workmen to break contracts of employment. There is a similarity in the objects of the three sections, inasmuch as they all operate to increase the immunity of the individual in respect of acts such as usually occur in connection with trade disputes. But the sections have nothing else in common. They are not parts of any integral scheme of legislation, but only amendments of specific points in the law as it then stood partly by reason of the common law and partly by reason of specific Acts of Parliament. I am satisfied that these sections do not, either individually or collectively, throw any light on the interpretation of the 4th section, which relates to a wholly different subject.

Counsel for the appellants would have us limit the generality of the words "any tortious act" in s. 4, sub-s. 1, by reading in, or implying, the limitation "in contemplation or furtherance of a trade dispute." He based his contention on three grounds: (1.) the title of the Act; (2.) the presence of these words in the 2nd sub-section of s. 4; and (3.) the argument ab inconvenienti. He further urged us to treat the clause as consequential upon the first three sections of the Act, and to interpret it accordingly, but with that contention I have already dealt.

The title of an Act is undoubtedly part of the Act itself, and it is legitimate to use it for the purpose of interpreting the Act as a whole and ascertaining its scope. This is not the case with the short title, which in this instance is "The Trade Disputes Act, 1906." That is a title given to the Act solely for the purpose of facility of reference. If I may use the phrase, it is a statutory nickname to obviate the necessity of always referring to the Act under its full and descriptive title. It is not legitimate, in my opinion, to use it for the purpose of ascertaining the scope of the Act. Its object is identification and not description.

The full title of the Act is, as I have said, "An Act to provide for the Regulation of Trades Unions and Trade Disputes." The appellants ask us to read this as though it were "for the regulation of trades unions as to trade disputes," and to treat the Act as though it related solely to trade disputes so that s. 4, sub-s. 1, must be read with that limitation. I can see nothing to justify such an extraordinary mode of construction of the Act. The title, as it stands, is not only intelligible but admirably describes the purposes of the Act. Sects. 1, 2, and 3 relate to trade disputes, without any special reference to trade unions, and s. 4 relates to trade unions, whichever of the two rival interpretations of the section be adopted. It is evident, therefore, that the title of the Act is amply accounted for, whatever be the view that the Court takes of the matter in dispute, and therefore it cannot assist us in deciding between the two proposed constructions.

The point next urged on behalf of the appellants is that s. 4 should be read as a whole, and the limitation, "in contemplation or furtherance of a trade dispute," should be treated as implied in sub-s. 1 because it is present in sub-s. 2. This contention appears to me to be directly contrary to the most elementary principles of the construction of statutes. To my mind, as a matter of construction, the fact that sub-s. 1 speaks of tortious acts generally, and sub-s. 2 speaks only of a certain class of tortious acts, creates a contrast between the two sub-sections which emphasizes the generality of the one and the limited character of the other. If there were any difficulty of grammatical construction or interpretation of the language of sub-s. 1, it might be necessary to consider whether, taking the section as a whole, there was not some interdependence of the one sub-section on the other. But, inasmuch as the language of sub-s. 1 is clear and unambiguous, this is not open to us. There are, no doubt, difficulties arising from the drafting of the section, and I shall presently consider them, but they arise exclusively in connection with sub-s. 2, and afford no aid to the contention of the appellants.

Finally the argument ab inconvenienti is pressed upon us. It is urged that it is impossible to suppose that the Legislature could have intended to give so wide an immunity to trade unions as that which follows from taking the words of sub-s. 1 in their natural sense.

The argument ab inconvenienti is one which requires to be used with great caution. There is a danger that it may degrade into mere judicial criticism of the propriety of the acts of the Legislature. We have to interpret statutes according to the language used therein, and, though occasionally the respective consequences of two rival interpretations may guide us in our choice between them, it can only be where, taking the Act as a whole, and viewing it in connection with the existing state of the law at the time of the passing of the Act, we can satisfy ourselves that the words can have been used in the sense in which the argument points. There is nothing of the kind here. At the date of the Act the recognized state of the law was that a trade union could be sued in the same way as any other association by the procedure of a representative action, or - in case it was a registered trade union - under its registered name. That this was the state of the law had, no doubt, come as a surprise to large sections of the community. Even in the Courts themselves there had been a difference of opinion on the point, as is shewn by the history of the Taff Vale litigation. Under these circumstances the Trade Disputes Act, 1906, was passed and we find in it a plain provision, that no action shall be entertained against a trade union by either of the two methods of procedure by which, at that time, such an action could be brought, in case the action is in respect of a tortious act. Under such circumstances the Court is not justified in allowing itself to be influenced by the argument ab inconvenienti. The Legislature has plainly expressed its decision that such should be the law.

I am further of opinion that too much has been made of the supposed gravity of the consequences of the enactment. It will be seen that it does not affect the personal liability of any individual. Trade unions, just like all other associations, must act through agents, and it is a fundamental principle of English law that no tortfeasor can excuse himself from the consequences of his acts by setting up that he was acting only as the agent of another. All that the section takes away is the power of proceeding against the association or making its corporate funds liable. The association, therefore, is in a position in some respects analogous to (though by no means identical with) the position of statutory corporations with regard to contractual acts which are ultra vires. No matter how completely the act may in form be an act of the corporation, it cannot be made liable under the contract, because it must act through agents, and it could give no authority to any one to do on its behalf an act that was ultra vires. Nor is such a provision of a wholly novel type in connection with trade unions. In s. 4 of the Trade Union Act, 1871, we find a list of legal proceedings which (although the associations had by that Act been made legal) the Courts were not on that account permitted to entertain. It is true that the Trade Disputes Act, 1906, makes an addition to the list which is of enormous importance, and does so in very peremptory language, but it cannot be said that, interpreted according to its plain language, it is of a type wholly without precedent in past trade legislation.

The real difficulty in the interpretation of s. 4 is to be found in the interpretation of sub-s. 2, which reads as follows:

"Nothing in this section shall affect the liability of the trustees of a trade union to be sued in the events provided for by the Trade Union Act, 1871, section nine, except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute."

The difficulty arises from the fact that there is nothing in sub-s. 1 of s. 4 which relates to suing the trustees of a trade union. It only refers to suing the officials of a trade union when they are sued in a representative action, and that is not what is referred to in sub-s. 2. One would be inclined to avoid the difficulty by saying that the sub-section was put in ex abundanti cautela only, were it not for the exception which it contains, which would seem to indicate that sub-s. 1 would otherwise have granted immunity to the trustees in respect of all actions for tort coming under s. 9 of the Act of 1871, and that it was the intention of the Legislature to limit that immunity to cases where the tort was committed by, or on behalf of, the union, in contemplation or in furtherance of a trade dispute. Whether this is, or is not, the true interpretation of the section as a whole is not before us in the present action, but I have thought it right to indicate the real difficulty which exists in its interpretation, and which, I think, points either to imperfect drafting or to some intermediate provision having been cut out without the proper consequential amendments being made in the language of sub-s. 2. But the difficulty, however great, has no bearing on the point before this House. The language of the section, so far as it relates to the present case, is clear and unambiguous, and, in my opinion, we must follow it.

I am, therefore, of opinion that the decision of the Court below was right on the lines adopted by Kennedy L.J. in his judgment, and that this appeal should be dismissed with costs.