Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1941] UKHL 2

House of Lords
Between
Crofter Hand Woven Harris Tweed Co LtdAppellantVeitchRespondent
Before
Lord Chancellor Viscount MaughamLord ThankertonLord WrightLord Porter
[1]Ireland. In outline the facts were very simple. Leathem, a butcher, had been employing non-Union labour. The policy of the Union was that only its members should be employed. Leathem was willing that his men should join the Union and offered to pay their fines and entrance money. The Defendants, the Union officials, refused that offer and said the men could not be admitted to the Union but must walk the streets for twelve months. Leathem refused to discharge the men. A few months later he was warned that if he continued to employ non-Union men, the men who worked for Munce, one of Leathem's customers, would be called out unless Munce ceased to take his meat from Leathem. Munce thought it more prudent to cease to get his meat from Leathem, who lost the benefit of his customer's trade. This was the damage claimed in the action in which a conspiracy to injure was alleged. I disregard the case of the man Dickie who was called out in breach of his contract with Leathem. Apart from the savage expressions used by the defendants and perhaps the desire of the defendants that the men should walk the streets for twelve months, and the circumstance that Leathem had offered to satisfy the Union's demands, the case might well have been regarded as one in which ordinary measures had been taken to promote the Union's interests by excluding non-Union labour. In Ware's case (supra) at p. 68 Scrutton L.J. pointed out the close parallel with the Glasgow Fleshers' case, 35 S.L.R. 645, a striking case of " exclusive dealing " in trade affairs enforced by threats or warnings by the defendants in concert that they would withhold their custom from the salesmen if they sold meat to the plaintiff. 9 [26] The object was to limit competition. The decision in the Glasgow Fleshers case (supra) was approved by this House in Sorrell's case (supra) and also by Lord Lindley in Quinn's case at p. 539. But there was in Quinn's case the special evidence of vindictive purpose. It was thus a question for the jury to decide whether there was an intention to injure or an intention to promote the Union's objects, or perhaps more exactly what was the predominant object. Fitzgibbon L.J., who tried the case, put to the jury the questions: Did the Defendants or any two or more of them maliciously con- spire to induce the Plaintiff's customers or servants named in the evidence or any of them not to deal with the Plaintiff or not to continue in his employment, and were such persons so induced not to do so. The jury answered, Yes. The Judge told the jury that acts done with the object of increasing the profits or raising the wages of any combination of persons, such as the society to which the Defendants belonged, by reasonable and legitimate means were perfectly lawful and were not actionable so long as no wrongful acts were maliciously—that is to say intentionally—done to injure a third party. He put the usual and correct alternative between acts done to secure or advance the combiners' own interests and acts intended and calculated to injure the Plaintiff in his trade. He told the jury that intention was to be inferred from acts and conduct proved. There is no report of the summing up as a whole. It is useless to speculate whether the jury might not have properly found that if the objects or motives were mixed the pre- dominant motive or object was to advance the Union's policy while the malevolent desire to punish Leathem was subordinate. It was for the jury to decide; they decided against the Defendants, and there was evidence to support their verdict. Some may ques- tion whether they fully appreciated what were the actual interests or objects of a Trade Union. But this is fact, not law. In the Irish Court of Appeal, where the case is entitled Leathem v. Craig, 1899, 2 I.R. 667, the judgment which most appeals to me is that of Holmes L.J., which Lord Robertson adopted in toto in his speech in this House, and Lord Macnaghten approved. Holmes L. J. said that if there was illegality in a combination it must be looked for in the object proposed. He treated the finding of the jury as decisive. It seems to me that much of the discussion which has centred round Quinn's case (supra) merely deals with the issue of fact, and either approves or disapproves of the justness of the jury's finding. But the decision of the House is of great importance as giving the authority of this House to the principle that a conspiracy to injure gives a cause of action. That rule was well established and had been applied in Temperton v. Russell (supra), and approved by this House in Allen v. Flood (supra). Quinn's case (supra) was in fact the complement of Allen v. Flood (supra). The latter case gave effect to the rule where there was no combination, the former to the rule where there was combination. Of the six Lords of Appeal who took part in the debate in Quinn's case (supra) the ratio decidendi of five was based upon a conspiracy to injure. I refer to Lord Halsbury (loc. cit.) at p. 505, Lord Macnaghten (p. 511), Lord Shand (p. 513), Lord Robertson (p. 532), where he adopts Holmes L.J.; Lord Brampton at pp. 527 and 528. The views of these Lords are enough to decide what is the ratio decidendi adopted in this House. Lord Lindley (at p. 539) seems to base his judgment on coercion and threats by numbers, but without clearly defining what he means by these neutral terms which have since been elucidated in this House. I do not think it necessary further to consider the cross currents and observations which are found in some of the speeches. Lord Shand sums up his view (and, as it appears to me, the ratio decidendi of the House) very clearly and accurately at p. 515. ' Their [the Defendants'] acts were wrongful and malicious [27] 10 " in the sense found by the jury, that is to say, they acted by con- " spiracy, not for any purpose of advancing their own interests as " workmen, but for the sole purpose of injuring the Plaintiff in his " trade." So understood, Quinn's case (supra) does not help the Appellants here unless they can get rid of the findings of the Courts below. Before I examine the grounds on which they seek to do this I ought to refer to some other cases. One is Giblan v. National Amalgamated Labourers' Union, 1903, 2 K.B. 600, where the jury found that the Defendants' acts in pre- venting the Plaintiffs from getting employment were done in the case of the one to prevent him from getting or retaining employ- ment, and in the case of the other to compel him to pay arrears of defalcations of which he was guilty. The facts were somewhat complicated. As Lord Herschell pointed put in Allen v. Flood (supra) at p. 131, the use of the word " punishment " may be mis- leading; it may mean mere vindictive vengeance or it may mean an intention to deter others from similarly offending. Equally the desire to enforce repayment of defalcations may be actuated by either of the same motives, to say nothing of desire to get the money. It is clear that the jury took the view more adverse to the Defen- dants. Much that was said by the Lords Justices in the case would require careful consideration in view of earlier and later decisions of this House. Romer L.J., however, wisely observes at p. 618 that in determining whether the injurious action is " justified" regard must be had to the circumstances of each case as it arises and that it is not practically feasible to give an exhaustive definition of the word to cover all cases. The facts in Giblan's case (supra) were so peculiar that I cannot derive any general guidance from it. I may note in particular that the jury found that the trouble did not arise because the Union men objected to work with the Plaintiffs. I cannot find any analogy between the facts in that case and the facts as found in the present case. On the other hand, two later cases show how far the Courts have gone in upholding the rights of persons to freedom to pursue their own interests in their trade even at the cost of seriously impeding the freedom in a practical sense of other persons in their trade. Perhaps the most striking case of this nature is Ware's case (supra), approved by this House in Sorrell's case (supra) and later applied in Thorne v. Motor Traders' Association, 1937 A.C. 797. The Defendants were an Association of motor car manufacturers who adopted a scheme and rules for maintaining fixed prices for their goods. These prices were published. If any person departed from these published prices his name was put on a " stop list" and there- upon no member of the Association was to supply him. Further, if any person did supply him, that person's name would also be placed on the " stop list" and he would be similarly pilloried. Persons on the " stop list" were, however, allowed to purge their offence by paying a fine if the Association accepted it. The Plaintiff, a motor dealer who was not a member of the Association, had been placed on the " stop list" in accordance with the scheme. The scheme was a most ruthless and efficient system aimed at securing the mutual benefit of the associated traders at whatever loss or incon- venience to outsiders. The Plaintiff complained that all he wanted was to exercise his lawful freedom to buy and sell cars as he desired. It was contended that the system adopted by the Defendants went beyond any previous decision. The Defendants, it was submitted, were saying, " If you continue to deal with the " Plaintiff you shall not only cease to deal with us but we shall take " steps to prevent others from dealing with you." But the Court of Appeal held that no legal wrong was committed, because the Defendants had done nothing unlawful, and the combination was not a wrongful conspiracy because its object was not to injure, but was the lawful object of promoting their business interests, as 11 [28] they understood them, by preventing price cutting and securing price maintenance. The elaborate system was devised solely with that object. The Court of Appeal rejected the contention that the method adopted amounted to coercion or threats. On this latter topic much the same opinion was expressed by this House in Sorrell v. Smith (supra), already referred to by me. Apart from the general exposition of the law of civil conspiracy to injure which it contains it is important in dealing with the present Appellant's submissions because it placed on a wide basis the business interests, protection or advancement of which would prevent it being held that the Defendants had acted with intention to injure the Plaintiff. The Defendants, an Association of newspaper pro- prietors, in the course of a dispute between two rival Associations of newspaper dealers, had intervened to support the policy of one Association by stopping supplies to the Plaintiff, a retail dealer who had adhered to the side of the other. Russell J., as he then was, the trial Judge, held that the Defendants had no justification for interfering with the Plaintiffs' freedom of trade, because they had no direct interest in the conflict between the two Associations. In Lord Sumner's words at p. 731, the Judge's view was that the Defendants were well meaning busybodies who intimidated third parties, and so meddled with the Plaintiffs' business in a matter which was no business of theirs because, as he held, they wanted a controlling decision in the dispute. The Court of Appeal and this House reversed the decision of the Judge on the short ground that the real purpose of the newspaper proprietors was to promote the circulation of their papers, and that they did so by lawful means. I think this line of reasoning applies here to answer the Appel- lants' contention that the Respondents or the Union had no direct interest in the importation of yarn. On the facts found, rightly as I think, they were of opinion that the prosperity of the industry in Harris Tweed was jeopardised by the importation. It is not for the Court to decide whether this opinion was reasonable or not. It was a genuine opinion. It cannot be said that it was a mere sham intended to cloak a sinister desire to injure the im- porters. The Respondents had no quarrel with the yarn importers. Their sole object, the Courts below have held, was to promote their Union's interests by promoting the interest of the industry on which the men's wages depended. On these findings, with which I agree, it could not be said that their combination was without sufficient justification. Nor would this conclusion be vitiated, even though their motives may have been mixed, so long as the real or predominant object, if they had more than one object, was not wrongful. Nor is the objection tenable that the Respondent's real or predominant object was to secure the employer's help to get 100 per cent, membership of the Union among the textile workers. Cases of mixed motives or, as I should prefer to say, of the presence of more than one object, are not uncommon. If so, it is for the jury or judge of fact to decide which is the predominant object, as it may be assumed the jury did in Quinn's case (supra) when they decided on the basis that the object of the combiners was vindictive punishment, not their own practical advantage. A curious instance of mixed motives or objects is taken by Andrews J., in his interesting judgment in the Divisional Court in Leathem v. Craig (supra) (loc. cit. at p. 674), from Kearney v. Lloyd (supra), where the Defendants were parishioners who had combined to withhold their subscriptions from the incumbent, partly, as the jury found, with the intention of promoting the religious interests of the parish, and partly with the intention of obliging the incum- bent to resign. Andrews J. expressed the view that the former was the main and ultimate object. The case however was eventu- ally decided on other grounds. I may here note that the doctrine of civil conspiracy to injure extends beyond trade competition and labour disputes. Thompson [29] 12 v. British Medical Association, 1924 AC 764 , shows that it may extend to the affairs of a profession, as was expressly stated in that case at p. 771 in the judgment of the Privy Council. By way of contrast, Gregory v. Duke of Brunswick, 6 M. & G. 953, may be regarded as a striking illustration of what might be held to constitute a conspiracy to injure; what was alleged was a conspiracy to hiss an actor off the stage in order to nun him. To what legitimate interests other than those mentioned the general doctrine may extend I do not here seek to define, since beyond question it extends to the present case, whether the object of the action were the prosperity of the industry or the obtaining 100 per cent, membership. But the objects or purposes for which combina- tions may be formed are clearly of great variety. It must be left to the future to decide on the facts of the particular case, subject to the general doctrine, whether any combination is such as to give rise to a claim for a conspiracy to injure. But the object of securing 100 per cent. Union membership, if it were operative in inducing the Respondents to combine with the employers, was relied on by the Appellants on other grounds as vitiating the combination. It was objected that there could be no combination between the employers and the Union because their respective interests were necessarily opposed. I think that is a fallacious contention. It is true that employers and workmen are often at variance because the special interest of each side conflicts in a material respect as, for instance, in questions of wages, con- ditions of hours of work, exclusion of non-Union labour. But apart from these differences in interest, both employers and work- men have a common interest in the prosperity of their industry, though the interest of one side may be in profits and of the other in wages. Hence a wider and truer view is that there is a com- munity of interest. That view was acted upon in the present case in regard to the essential matter of yarn importation. As to the separate matter of the Union membership, while that was something regarded as important by the Respondents it was probably regarded by the employers as a matter of indifference to them. It was, in any case, a side issue in the combination even from the Respondents' point of view. I may add that I do not accept, as a general propo- sition, that there must be a complete identity of interest between parties to a combination. There must, however, be sufficient identity of object, though the advantage to be derived from that same object may not be the same. The Appellants have further contended that the " deal" referred to in the Respondent Veitch's letter was a bargain by which the Union sold to the employers the dockers' aid in return for the employers' aid in regard to Union membership. In other words, the contention was that the Respondents or the Union were bribed and were mercenaries, not interested in the embargo except for the reward which was in its nature unrelated to the embargo. The facts, however, were not as the contention assumes, so that I need not discuss whether a party to a combination whose interest was merely separate and mercenary, could ever be held to have a legitimate interest or justification for harm done in pursuance of the combination. I need add merely a few words on the objec- tion that the embargo was the act of the dockers for the benefit, not of themselves, but of the textile workers. It is enough to say that both sections were members of the Union, and there was in my opinion a sufficient community of interest even if the matter is regarded from the standpoint of the men, as individuals, and not from the standpoint of the Respondents, who were the only parties sued. Their interest, however, was to promote the advantage of the Union as a whole. In my opinion, the judgment appealed from should be affirmed and the appeal dismissed. Lord Chancellor Viscount Maugham Lord Thanker- ton Lord Wright Lord Porter CROFTER HAND WOVEN HARRIS TWEED COMPANY, LIMITED AND OTHERS v. VEITCH AND ANOTHER. Lord Porter MY LORDS, The circumstances relevant to be considered in this case extend over a considerable period and the conclusions to be drawn from them demand a close scrutiny of the evidence. I need not state the facts; that has already been done, but I must set out the inferences which have been drawn from them and consider whether those arrived at by the Courts below and particu- larly by the Lord Ordinary, have been shown to be wrong. Apart however from the facts, the arguments have ranged over a wide area of somewhat obscure law as to which so far as it is necessary your Lordships must find a solution. In a matter so difficult, however, I should not feel justified in expressing a concluded opinion upon any matter which is not essential for the determination of the case. I propose therefore to state with what accuracy I can the exact findings upon which I think a conclusion of law has to be pronounced. It is unnecessary to emphasize the principle so often recognised by your Lordships, that in all cases where facts have to be reviewed, it is undesirable that the findings of the Courts below should be disturbed by a Court of Appeal unless it appears that those findings are clearly wrong, and more especially that it is undesirable to do so where the conclusions reached must to a large extent depend upon the demeanour of the witnesses and the impression formed by a tribunal which has seen them and can judge of their honesty and accuracy. In the present case the Court had to determine the purpose, motive, intention, call it what you will, of Mr. Veitch and Mr. Mackenzie. I cannot find that the Lord Ordinary, or indeed the Inner House, thought either of them untruthful or dishonest. It would have been possible to judge them to be men who clearly foresaw the injury which their acts would produce and to have intended that injury, or to have thought them muddle-headed, obstinate and prejudiced, but still honestly desirous of doing what they considered beneficial to their Trade Union and anxious only to promote its interests, even though their acts might be prejudicial to some or all of the employers of the labour which they represented. Both Courts took the latter view. One cannot be too logical in these matters or expect a defender to have an exact apprehension of the consequences of his acts or clearly to appreciate how the methods he adopts for effecting the end at which he aims, will work. His action may inevitably cause injury, yet that may not be his object. The case which is under consideration seems to me to be pre- eminently one in which an appellate tribunal should be guided by the opinion of the judge who saw and heard the witnesses, and I do not find myself qualified to criticize or correct his conclusions as to the purpose which the defenders had in mind in following the path along which they travelled. I should allow myself more latitude in dealing with the question whether there was a combination between the mill-owners or some of them and the two defenders sued, because the material for judg- ment is, I think, more abundant and because the Inner House has taken a view contrary, it is true, to that of the Lord Ordinary, but still one which must be shown to your Lordships to be wrong before it is interfered with. [31] 2 Having these considerations in mind, I find myself unable to differ from the Lord Ordinary when he concludes that there was no conspiracy to injure, and if for my own part I had to decide the further question whether a combination between millowners and defenders had been proved, I should not feel justified in forming an opinion contrary to his, but in agreement with the opinion already expressed by the Lord Chancellor should not consider this combination established. I am the more emboldened to express this view as I think it has the support of the Inner House of the Lord Justice Clerk and that Lord Wark, if he had himself had to determine it, would have been of the same opinion, though undoubtedly Lord Fleming and Lord Mackay take the other view. But the Lord Justice Clerk thought there was some kind of under- standing more or less defined between Mr. Veitch and Mr. Skinner to the effect that ii the Union took action and imposed an embargo against the importers of yarn, the Union in turn would be assisted by the mill-owners to get their 100 per cent, membership, and I understand some of your Lordships to agree that the wider com- bination has been established. I am therefore prepared to treat the case upon that footing. If the meaning of a combination to injure were plain and if a finding that it had not been proved were enough, the view that there had been no combination to injure would be conclusive of the case. But as both the meaning of the phrase and the question whether a mere absence of intention to injure is all that is required to absolve the defenders from liability, are both in dispute, it is first of all necessary to state exactly what I believe the finding of the Lord Ordinary to have been. It is, I think, set out succinctly in the following paragraph:
" In the present case the immediate purpose of Mr. Veitch " and Mr. Mackenzie was to force producers to come to an agree- " ment regarding the selling price of tweed and the exclusive use " of Island spun yarn. The means adopted necessarily inflicted " injury on the Petitioners. But was the infliction of injury Mr. "
Veitch's motive ? Lord Dunedin in Sorrell v. Smith (1925 A.C. " at p. 717) suggested a test as follows. ' Was such a purpose the "' real root of the acts that grew from it, or was the true motive "' of the acts something else, such as for instance, the furtherance "' of the defendant's own business ?' Applying this test the answer " must be in the negative. There is no evidence that Mr. Veitch " had evinced any malice or ill will towards any of the Petitioners " or that he was prompted by a desire to destroy the trade of any " persons who were employing weavers and paying them the Union " rate of wages. The purpose at the root of his action was to " advance the position of the Union and its members, however " mistaken he may have been in the means he adopted to secure " that end. It may be that the benefits hoped to be obtained would " have been an ultimate and not an immediate consequence of the " action taken, but I do not think it would have been any more " remote than in the cases of Sorrell v. Smith and Ware and De " Freville." There is ample evidence for this finding and although Mr. Veitch's testimony was at times confused and inconsistent, its effect was a matter for the learned judge. I find no attack upon the sub- stantial honesty of this witness either by him or by the Inner House though the lack of consideration shown is severely criticized by both. The views of the Inner House are not dissimilar. I may quote from

the Lord Justice Clerk and from Lord Fleming. The former says:

" Moreover, there are a number of circumstances that point " to Mr. Veitch having acted in good faith. He was a trusted and " responsible official. He had no quarrel with any of the petitioners; 3 [32] " there is nothing to suggest that he had illwill towards anyone. I " regard the suggestion that he was out to ruin the importers as " entirely ill-founded. His letter to Mr. Mackenzie of 28th January " shows that he was prepared to meet them and discuss the position. "
There is not the slightest trace of personal ill-will or spite; I doubt " if he knew any of them personally. The attainment of 100 per " cent. Trade Union Membership was the declared policy of his " Trade Union. From 1935 onwards the Officials of the Union had " made it clear that they regarded price-cutting as something that " would be hurtful to the interests of the workers in the industry, " and that they would not hesitate to take direct action to prevent " it. I attach the greatest weight to the fact that Mr. Veitch " instructed an embargo against Mr. Macdonald, the largest, or one " of the largest millowners in the Island—there is no suggestion that " this was a conspiracy to injure—as showing that he genuinely " believed that price-cutting would be gravely prejudicial to the " interests of his men. Also it had been represented to Mr. Veitch " by Mr. Skinner, particularly in his letter of 6th January, that the " continued importation of yarn was responsible for the reluctance " of many yarn purchasers to bind themselves to a price agreement " and that the price of yarn as affected by the importation would " ' seriously affect' their ability to maintain existing wage rates. " There is no suggestion that the dockers were coerced or intimi- " dated into taking action. They were consulted and were unani- " mous in their decision—presumably because they were satisfied " where their true interests lay. " Taking all these facts together, I find it impossible to draw the " conclusion that Mr. Veitch was acting with an intent to injure. " On the contrary, I am satisfied, and I hold in fact, that he was " acting in the honest belief that the step was justified in furtherance " of the interests of his own members and the industry as a whole." Lord Fleming's words are:
" Then there is the circumstance " that both the parties had the same interest in the matter. To " exclude mainland yarn would give the Island millers a monopoly " of the supply of yarn, and Mr. Veitch's view was that the prohibi- " tion of mainland yarn would be to the benefit of the workers in " the industry."
And again:
" I feel satisfied that Mr. Veitch held sincerely and " strongly the view that the continuance of unrestricted importation " of Mainland yarn would, sooner or later, prove harmful to the " members of the Union, and that in the absence of an agreement " between the millowners and the importers, the best policy for the "
Union to adopt was to exclude it from the Island if it could. Mr. " Macrae, who knew the whole history of the industry, and was " interested in it because it involved the welfare of many members " of his congregation, also held this view, and I do not think it can " be said to be an unreasonable view. At all events it cannot be " said that it was so unreasonable as to justify an inference that " there was some other ulterior reason for Mr. Veitch's decision. " What lay at the root of the opposition to the importation of Main- " land yarn on the part of Mr. Veitch and Mr. Macrae seems to have " been the idea that the whole process of making wool into Harris " Tweed should be retained as far as possible as an Island monopoly " for the benefit of the workers on the Island. The exclusion of " Mainland yarn would not only give the Island a monopoly of the " whole process of manufacture, but would also tend to make the " practice of price-cutting more difficult. All tweed manufactured " on the Island would qualify for the ' Stamp,' and would not have " to face competition from Harris Tweed woven in the Island, but " from yarn not spun on the Island. If, as I think, Mr. Veitch " sincerely held views of that kind, I find it difficult to attribute " his actings to anything else than a bona fide desire to advance " the interests of the members of his Union." [33] 4 Lord Wark's reasoning does not differ from that of his brethren. His conclusion is expressed as follows: — " Taking the respondents in turn, I begin with Mr. Mackenzie. " I cannot find anything in the evidence to show, or even to " suggest, that he was inspired by any motive other than the desire " to forward what he bona fide believed to be the interests of the " members of his Union. The same is true of Mr. Veitch. There " is no evidence that I can find of any ill-will against any of the " petitioners. It does not appear that he had ever met any of " them. His sole concern with them, in my view, was to prevent " them acting in such a way as would, in his honest opinion and " belief, injure the interests of the members of the Union: and, in " my judgment, his only motive in acting as he did was to advance " these interests, or at least to prevent injury to them. I cannot " doubt, upon the evidence, that Mr. Veitch honestly believed that " a continuance of the importation of Mainland yarn would bring " down tweed prices and, with them, the wages of the spinners and " weavers." As I am discussing the case on the footing that there was a combination to which Mr. Skinner at least and possibly also some of the millowners were parties, I omit to stress the still stronger view expressed by Lord Fleming as to Mr. Mackenzie's activities:
" The " latter," he says, " was throughout a mere servant, his function " being in the main limited to carrying out Mr. Veitch's instructions " and doing routine work. The grounds for holding him guilty of " any intention to injure are much weaker than in Mr. Veitch's case."
I have quoted somewhat fully from the opinions expressed because having regard to the arguments addressed to your Lord- ships I think it necessary to ascertain exactly what purpose the Courts below imputed to those who have been held to have combined. Both I think found that the stoppage of the importation of Main- land yarn was effected because Veitch and Mackenzie at any rate thought it in the interest of their workers to do so. Both also, I think, believed each of the defenders to hope that the manufacturers, millowners and non-millowners, would come to an agreement amongst themselves, and when that hope failed, put the strongest pressure they could upon the dissentient employers by refusing to handle their material, whether in the shape of yarn or the finished or unfinished product. The immediate purpose of the combination in this view was to prevent the importation of Mainland yarn and to bring about an agreement amongst the employers to use only that spun upon the Island, the motive of the defenders being thereby to prevent the danger of competition which they feared might cause a diminution of wages and to bring about a state of affairs in which a 100 per cent, membership of the Union would be attained in the ranks of the spinners and of the weavers—the motive of the millowners to increase their profits and perhaps to eliminate competition in spinning. No doubt the result of the embargo was necessarily to injure those against whom it was exercised, but that was not found to be its purpose. Its object as found by the Lord Ordinary was to further the defendants' own legitimate business, and if that was their intern- tion I should not consider them participants in an actionable conspiracy even though the inevitable result of the action which they took would be to ruin the importers of Mainland yarn. This is the view of Holmes J. in Vegelahn v. Guntner (1896) 167 Mass, 92 when he says:
" The fact that the immediate object of the " act by which the benefit to themselves is to be gained is to injure 5 [34] " their antagonists does not necessarily make it unlawful any more " than when a great house lowers the price of certain goods for the " purpose and with the effect of driving a smaller antagonist from " the business."
These observations are no less weighty though delivered in a dissentient judgment. They were approved by Lord Cave in Sorrell v. Smith (1925) A.C. 700 at p. 714 and by Scrutton L. J. in Ware and De Freville Ltd, v. Motor Trade Association (1921) 3 K.B. 40, and are in conformity with the principles expressed in the Mogul v. Macgregor (1892) AC 25 which preceded it and are supported by the view of the majority of your Lordships" House in Allen v. Flood (1898) AC 1 , which was decided two years later. In the latter case Lord Herschell speaking of the former, said at p. 140:
" In that case the very object of the defendants was to " induce shippers to contract with them and not to contract with " the plaintiffs, and thus to benefit themselves at the expense of the " plaintiffs, and to injure them by preventing them from getting a " share of the carrying trade. Its express object was to molest " and interfere with the plaintiffs in the exercise of their trade. It " was said that this was held lawful because the law sanctions acts " that are done in furtherance of trade competition. I do not think " the decision rests on so narrow a basis, but rather on this, " that the acts by which the competition was pursued were all " lawful acts."
The general proposition has been summed up by Scrutton L.J. in Ware and De Freville Ltd. v. Motor Trade Association (1921) 3 K.B. 40 at p. 67 as follows:
" I take Allen v. Flood (supra) and "
Bradford Corporation v. Pickles (1895) AC 587 to decide that " an act otherwise lawful though harmful does not become action- " able by being done maliciously in the sense of with a bad motive " or with intent to injure another. ... I take the Mogul case " as deciding that a combination to do acts, the natural consequence " of which was to injure another in his business, was not actionable " if those acts were not otherwise unlawful, such as assaults or " threats of assaults, and were done in furtherance of the trade " interests of those combining. I understand Quinn v. Leathem " (1901) AC 495 to decide that a combination to injure another in " his trade and business not in furtherance of the trade interests of " those combining but out of spite against the person injured is " actionable." This is a summing up of the principles to be deduced from the so-called trilogy of cases upon conspiracy, and I think it is a correct one. It has since received support from the reasoning upon which your Lordships' House decided Sorrell v. Smith (1925) A.C. 700. If this be their result Mogul v. Macgregor (supra) and Allen v. Flood (supra) are consistent and easily comprehensible. More difficulty is to be found in explaining Quinn y. Leathem [1901] A.C. 495. Why should a combination to injure be actionable, whilst action taken by a single person for that purpose and that purpose only is permissible? In Sorrell v. Smith (supra) Lord Cave L.C. thought the point an open one and Lord Sumner 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. Lords Field and Hannen in the Mogul case are of this opinion and in Allen v. Flood (supra) Lords Watson at p. 108, Herschell at p. 129, Macnaghten at p. 153, Lord Shand at p. 168, Lord Davey at p. 172 —who with Lord James constituted the majority of the House— all indicated that a conspiracy to injure might give a good cause of action, where similar action on the part of an individual would not. [35] 6 Scrutton LJ. in the Ware case finds difficulty in accounting for the difference. One not uncommon explanation is that a com- bination may exert undue pressure where one person will not, but it is not very satisfactory. In the first place it is not necessarily true and, in the second, to exert pressure is not unlawful. But there is an earlier question. Whether there be combina- tion or not, it may be a criminal offence and an actionable wrong to induce another to do what is unlawful or to do what is lawful by unlawful means. The phraseology is first to be found in R. v. Jones (1832) 4 B. and Ad. 345 and has again and again been repeated both in criminal and civil cases though in the former it may be a limitation and not a definition. In criminal cases Fitzgerald J. puts the principle in R. v. Parnell, 14 Cox C.C. 508, in the following words:
" Conspiracy is divisible into three heads: " (1) When the end to be obtained is in itsejf a crime; " (2) When the object is lawful but the means to be resorted "to are unlawful; " (3) Where the object is to do an injury to a third party or " to a class, though if the wrong were inflicted by a single " individual it would be a wrong but not a crime."
And in Mogul v. Macgregor (supra) Lord Watson says:
" I " apprehend that in order to substantiate their claim the Appel- " lants must show either that the object of the agreement was un- " lawful or that illegal methods were resorted to in its prosecution."
In Fitzgerald J.'s definition even the third heading postulates the existence of a civil wrong, and in recent times I do not think that it has been held criminal merely to combine to injure a third party provided no unlawful means are used or contemplated and it is doubtful whether such a combination ever was criminal (see Wright on Criminal Conspiracy (1873) p. 41). It is true that in certain classes of case, e.g. where masters and workmen or trade are concerned, it was at one time held criminal to agree not to sell under fixed prices or not to work under certain prices (see R. v. Eccles, 1 Leach 274), but the doctrine is not one to which, apart from statutory prohibition, any court to-day is likely to subscribe. There may, however, be combinations which are criminal, though entered into for purposes which would not be criminal if done by an individual, but whether this be so or not it is now established that a conspiracy, the object of which is to injure a third person, is an actionable wrong. Quinn v. Leathem (1901) A.C. 495 and Sorrell v. Smith (supra] in your Lordships' House are sufficient authority for this proposition. Why it has been so held is not, I think, clear. That such a combination may be actionable had, as I have indicated, already been recognized by at least five of the members of your Lordships' House who were amongst the majority in Allen y. Flood (supra) and has again been recognized in Sorrell v. Smith (supra). The point is now too well established to be the subject of controversy. In Lord Dunedin's view as expressed in the last men- tioned case a conspiracy to injure is a criminal offence and therefore either the object aimed at or the means used (the noble Lord uses both expressions) were illegal. It may be so or it may be, as Lord Sumner suggests, that a combi- nation to injure is a form of intimidation or again it may be that the doctrine is a survival of the view formerly held as to the illegality of combinations to raise wages or interfere with trade or of the more paternal view expressed on a different matter by Lord Mansfield in Jones v. Randall Lofft 383:
" Whatever is con- " trary, bonos mores est decorum, the principles of our law prohibit " and the King's Court, as the general censor and guardian of " the public manners, is bound to restrain and punish."
In any case it is undoubted law. 7 [36] Whether it is necessary that the object of the defenders should be solely to gain an advantage for themselves of whether their motives may be mixed provided the main or substantial motive is their own gain is not so clear. Lord Dunedin in Sorrell v. Smith (supra) apparently thought it enough that the dominating motive should be to benefit oneself. On the other hand in Mogul v. Macgregor (supra) Lord Han- nen at p. 59 raises the question as to what would happen if the evidence had shown that the object of the Defendants was a malicious one, namely to injure the Plaintiffs, whether the Defen- dants should be benefited or not, but since in that case as in this their sole motive was to secure certain advantages for themselves, leaves the question unanswered. Lord Watson, in the latter case, says at p. 42:
" If the Respond- " ents' combination had been formed not with a single view to the " extension of their business and the increase of its profits but with " the main or ulterior design of effecting an unlawful object a very " different question would have arisen."
Lord Parker in Alt. Gen. of the Commonwealth of Australia v the Adelaide S.S. Coy., Ltd. [1913] AC 781 at p. 797 speaks of " the right of combining with others in a common course of " action provided such common course of action is undertaken " with a single view to the interests of the combining parties and " not with a view to injure others "; and in Sorrell v. Smith (supra) at p. 742 Lord Sumner expresses himself as not prepared to admit that the addition of personal animosity to a desire to benefit one- self makes actionable that which without the animosity would not be so, but confesses himself unable to say at what point the in- tention to injure overweights the scale so as to render the con- federates liable for the damage which they do in spite of the private advantage which they hope to obtain. The answer may be that given by Lord Dunedin in Sorrell y. Smith, viz., that one must judge broadly as a jury would judge, and so determine the predominant purpose. After all, the task is no more difficult than that which faces them in every criminal case—to determine whether there is mens rea or not. Nevertheless if I thought that in the present case the object of the parties to the combination was to ruin the Appellants, even though they hoped thereby each to gain an advantage for him- self, I should desire to consider the matter further before deciding that the Respondents were not liable, but I do not think that such a case has been proved. The Lord Ordinary and Inner House have not so found. The direct object was to force an agree- ment and to stop the importation of Mainland yarn, both of which were, as found by the Courts below, honestly believed to be of direct benefit to the defender's Trade Union. No question of in- direct purpose comes in issue. The result of the action taken might be to ruin the importers of Mainland yarn, and it might be recognized that this was a possible or even probable outcome, but that was not the purpose of those who combined. Each desired only to further his own interests. If this view of the facts prevails, and it is recognized, as I think it must be since the decision in the Mogul case, that men are en- titled to pursue their own advantage even though the natural and inevitable result be the ruin of others, the pursuers' case is at an end, but in deference to the forcible arguments addressed to us on behalf of the Appellants and in view of the difficulties of the subject, I must add some further observations and qualifications to the views I have expressed. One of the difficulties in the law of actionable combination is to decide what purposes are to be looked at in determining whether the combination is illegal or not. [37] 8 This problem is perhaps touched upon by Lord Cave in Sorrell v. Smith [1925] A.C. 700 at p. 714 when he speaks of the purpose of a threat being to forward trade interests and not wil- fully and ultroneously to injure the trade of another, by which I think he means not wilfully to injure the trade of another save for the purpose of forwarding one's own. In other words, is it enough that the substantial object of the defenders was not to injure the pursuer, or must they go further and must it be established in some way, either by positive evidence on behalf of the defenders or lack of evidence on behalf of the pursuer, that they were following some interest of their own ? In Sorrell v. Smith (supra) Lord Sumner left the question open, though he suggests that the defenders must not be intermeddling busybodies. Lord Dunedin took the view that it was enough if they did not set out to injure the pursuer and regarded evidence that their own advantage was involved merely as tending to prove that their object was not to injure. Lord Cave did not in terms deal with the question, but the framework of his first proposi- tion, which I quote below, suggests that the defenders must have their own end to gain. It is, I think, true to say that in all the cases which have dealt with this subject the contrast is drawn beween a desire to injure on the one hand and the pursuit of the defenders' interests on the other. Nowhere except in Lord Dunedin's speech in Sorrell v. Smith is the mere fact that the Defendant's object was not found to be a desire to injure held to exonerate them from liability. It is, I think, always added that their purpose was to gain an advantage for themselves. Lord Sumner indeed asks at p. 739 what other motive can there be in such a matter beyond selfishness and malice except, indeed, mere irresponsible wantonness. So far, however, no case has decided, and it has not been necessary to decide, whether con- federates who have combined not for the purpose of doing an injury but with no object of their own to gain are or are not liable to those against whom they have combined. The present case, like those which preceded it, does not require a solution of this problem. Throughout the defenders acted in what they believed to be the interest of their Trade Union. But assuming that the defenders would only be justified in pressing their own selfish aims, is every personal advantage which accrues to them by reason of their action a sufficient excuse or is something more intimately and directly connected with their business interests required—something which will help their trade or improve the position of their Trade Union ? Must it be something, as Scrutton L.J. says in Ware and De Freville v. Motor Trade Association [1921] 3 K.B. 40 at p. 71, " intended to secure the interests of the " confederates in their trade by reasonable and legitimate means " —by which I understand him to mean by lawful means ? That business in this connection is not confined to trade has been insisted upon in Allen v. Flood (supra), and in Bradford v. Pickles [1895] AC 587 the principle was said not to be confined to rights of property but to be equally applicable to the exercise by an individual of his other rights. The quotation most frequently made in this connection is the well-known passage in the speech of the Lord Chancellor in Sorrell v. Smith (supra) at p. 712. " I deduce as material for the decision of the present case two " propositions of law which may be stated as follows:
" (1) A combination of two or more persons wilfully to injure " a man in his trade is unlawful, and, if it results in damage " to him, is actionable. 9 [38] " (2) If the real purpose of the combination is not to injure " another, but to forward or defend the trade of those " who enter into it, then no wrong is committed and no " action will lie, although damage to another ensues. The " distinction between the two classes of case is sometimes " expressed by saying that in cases of the former class " there is not, while in cases of the latter class there is, " just cause or excuse for the action taken."
This statement of principle is, I think, apt to be used a,s if it resolved the many difficulties in a difficult department of the law. Too often it is forgotten that the Lord Chancellor himself intro- duced it by saying that he deduces as material for the decision of the present case two propositions of law—the italics are mine. In that case the combination was not to injure but to forward or defend the trade of those who had entered into the combination, as in this it was to increase the membership of the Trade Union and protect the wages of its members, and Lord Cave's statement does not seek to comprehend all circumstances. Cases in which the action of the confederates is to compel the Plaintiff to pay a debt as in Giblan v. National Amalgamated Labourers' Union (1903) 2 KB 600 have been held not to be within the principles, perhaps on the grounds stated by Buckley L.J. at p. 619 that the intent was to prevent the plaintiff from obtaining or retaining employment in order to compel him to pay a debt due from him " and from this the intent to injure the Plain- " tiff appears to follow." But what of the case where the Defendants desire neither their own business advantage nor the injury of the Plaintiff, e.g., where they combine to compel him to subscribe to an extraneous chari- table fund? No answer to this question has yet been given, and perhaps it is enough for the purposes of the present case to say that the benefit is sufficiently direct if it be to increase the effective strength of a Trade Union, and to quote Hodges v. Webb (1920) 2 Ch. at p. 89 and White v. Riley (1921) 1 Ch. 1 as illustrating this conclusion. The broad proposition was put by Lord Phillimore, then Phillimore J. in his dissenting judgment in Boots v. Grundy (1900) 82 L.T. 769, in a way which will comprehend most cases. " If," he says, " a number of persons, because of political or religious hatred, " or from a spirit of revenge for previous real or fancied injury, " combine to oppress a man and deprive him of his means of " livelihood for the mere purpose of so-called punishment, I think " the sufferer has his remedy. If the combination be to further " their own prosperity, if it be constructive, or destructive only " as a means to being constructive, the case is otherwise." It was argued, however, that where you get a combination of persons such as masters and workers who are apt to be opposed in trade disputes, and when you find them joined in an endeavour on the one hand to eliminate competition and on the other to gain 100 per cent, trade union membership, the only common object must be 1o injure, since the masters could only rid themselves of competitors by injuring their opponents, and the workmen could only obtain a 100 per cent, trade union membership from masters with whom they were agreed and therefore could not attain their object until all others were driven out of the trade The only common object therefore was to injure, though each party to the combination might have a separate ultimate aim of his own which would promote his own interests. An argument against the right of a combination of employers acting in conjunction with a Trade Union to refuse to employ anyone not possessed of that Trade Union's ticket was urged [39] 10 before Sargant J. as he then was, in Reynolds v . Shipping Fede- ration, Ltd. [1924] 1 Ch. D. 28, a case in which a combination of masters and Trade Union officials agreed that only members of a particular Trade Union should be employed on the ships of the Federation. The learned Judge rejected the argument. " Indeed," he says at p. 39, a decision in favour of the " Plaintiff would lead to a strange anomaly. For many years past " no one has questioned the right of a trade union to insist, if they " are strong enough to do so, under penalty of a strike, that an " employer or a group of employers shall employ none but members " of the Trade Union, and the result of any such effective combina- " tion of workmen has, of course, been to impose on the other work- " men in the trade the necessity of joining the Union as a condition " of obtaining employment. " Here the employers, instead of being forced against their wills " into employing Union men only, have recognized that advantages " may arise from adopting such a course voluntarily and have " accordingly made an agreement with the Trade Union to that " effect. The incidental result to the other workmen in the trade " is the same as if the employers had yielded against their wills " instead of agreeing voluntarily. But I fail to see that workmen " who are unwilling to join the Union have any greater reason " to complain of a violation of their legal rights in the second " case than in the first." In that case the action was against the masters' federation, the trade union, its president and one of its representatives. It is true that the complaint came from the members of another trade union and not from another set of employers, but if the argument is sound, as I think it is, it cannot be confined to one class of confederates and be held inapplicable to another. In the present case also masters and workmen combined. The common object was not to injure but to promote agreement be- tween the two sets of employers, even though incidentally the immediate effect of the common purpose might be to bring a measure of injury upon the masters who were not millowners, but the ultimate aim was to protect and improve the interests of those who combined. The injury was but a step to an end. The combination was therefore not to injure but was to defend the interests of the parties to it and it becomes unnecessary to consider a case of mixed motive where the object was in part to injure and in part to benefit those who have combined, and equally unneces- sary to lay down the principles applicable to a case where the object is neither to injure nor to promote the interests of the parties but some extraneous good or evil object with which they are not directly concerned. But apart from these considerations I am not myself prepared to accept the view that the joint object of the parties combining is necessarily alone to be looked at. Each party may well have its own private end to gain. The joint aim may at any rate be no more than a desire for prosperity or peace in the industry, and yet the combination may be justified. If, however, one of the parties had no purpose but to vent his own vindictive spite and if the other knew of and countenanced that purpose by giving his assistance to the malicious acts of the first, it may be that the other would then be a participant in the wrong planned by the first to which he gave his assistance. I have so far dealt with Lord Cave's proposition as first stated, but he put it in an alternative form, viz.: —was there just cause or excuse for the action taken? So framed it furnished, as he intended it to furnish, a test for the solution of the case which he was considering, but it was not, nor did it purport to be, a general formula for universal use. 11 [40] As Lord Dunedin pointed out in the same case, there is an earlier question:
" Is there any wrong to be justified ? "
If the defendants have done no injury they do not require justification. The alternative proposition suggests that action which is neces- sarily injurious to the interests of others is in itself actionable unless it is defensible on some ground. It is true that the alternative method of approach is sometimes helpful in ascertaining whether the purpose of the combination is to injure others or to promote the interests of those in combination, but I should not myself regard it as the same question or decisive of the rights of the parties. The true position is, I think, that some proceedings are not actionable because neither the end nor the means are wrongful but there are others in which either the end or the means are wrongful and yet those acting in combination are excused because they have just cause for what they have done. To induce the breach of a contract which may lead to immorality (see Brimelow v. Casson (1924) 1 Ch. 302) or of a contract which is an infringement of the right of the breaker (see Smithies v. National Association of Opera- tive Plasterers (1909) 1 KB 310 (C.A.)) has been held to be justified. These however are only examples, and afford little assist- ance in determining the circumstances which will constitute sufficient justification. I doubt whether it is possible to define what those circumstances are. Perhaps one cannot safely go further than the statement to be found in Glamorgan Coal Coy. v. South Wales Miners' Federation (1903) 2 KB 545 , Smithies v. National Amalgamation of Operative Plasterers (supra) and Conway v. Wade (1909) AC 506 per Lord Loreburn at p. 511), that they are not matters for definition but for a consideration of the individual circumstances of each case. Whatever the limits within which just cause or excuse are con- fined, this class of case is, I think, an exception to the general rule that a combination to do what is unlawful or to do what is lawful by unlawful means is actionable, and is not an alternative expression of the principle itself. It may indeed be more meritorious to induce the breach of a contract contra bonos mores than merely to pursue one's own selfish ends, but the one requires justification in law and the other does not. I have ventured to add these observations not because the questions raised in them demand solution in the present case, but in order to show the limits of the present decision, and lest it should be thought that the decision is authority for wider and more com- prehensive principles than the actual circumstances require. For my own part I am content, following the opinions of the Lord Ordinary and the Inner House, to say that whatever the effect of their action might be the confederates, millowners and defenders, had a common object of benefitting themselves and not of injuring the plaintiffs and so must succeed in their defence. (16904) Wt. 8142—33 20 12/41 D.L. G. 338 The Appellants are seven producers of tweed cloth in the Island of Lewis in the Outer Hebrides. Their business is carried on by purchasing yarn, which they give out to crofters for weaving in their own homes, so that the Appellants may sell the tweed so woven. The Respondent, Mr. Veitch, is the Scottish Area Secretary of the Transport and General Workers' Union, which is a trade union, and the Respondent, Mr. Mackenzie, is the Stornoway Branch Secretary of the Union. The Appellants are seeking interdict against the two Respondents in order to stop what is called an " embargo " imposed by their order or inducement upon all yarn arriving for the Appellants at the port of Stornoway, which is the main port on the island and is connected by a service of steamers with the mainland, and upon certain tweeds despatched by the Appellants from that port.[2]In argument before this House it was conceded that no issue is involved which might bring into the case any provision of the Trades Disputes Act, 1906. The Respondents are sued as indi- viduals and not in any representative capacity. The question is whether the Appellants have established that the Respondents have committed a delict or tort at common law against them by thus interfering with their trade. It was not suggested that, as regards the law applicable to the present action, there was any material difference between the Scottish law of delict and the English law of tort.[3]The dockers at Stornoway are all members of the trade union, and as from January 24th, 1938, they refused to handle yarn imported from the mainland and consigned to the Appellants, and also cloth made by the Appellants which the Appellants wished to export. This refusal was in accordance with the instructions of the Respondent, Veitch, which were communicated by him to the Respondent, Mackenzie, and were passed on by the latter to the dockers, who at once complied. The embargo against the exporta- tion of finished tweeds was raised four days later, but in other respects the embargo continued, both as regards the importation of yarn for the Appellants, and as regards the exportation of their unfinished tweed, despatched for " finishing" on the mainland, until interim interdict was granted on February 24th, 1938. On the trial of the cause in March, 1939, the Lord Ordinary (Lord Jamieson) gave judgment for the present Respondents and recalled the interim interdict. On appeal to the Second Division this decision was affirmed (dissentiente Lord Mackay). The matter now comes before this House, and we have been much assisted in examining what is undoubtedly a difficult case by the arguments of counsel on both sides.[4]The evidence is voluminous and gave rise to a large number of questions as to the effect of it and as to the inferences to be drawn from it. For much of this detail I would refer to the full and careful judgments that have been delivered in Scotland. I accept, broadly speaking, the account given by Lord Jamieson, and the majority in the Court of Session, of the facts derived or deduced from that evidence. On one conclusion, however, which is apparently reached by the majority of the Inner House, I must express my hesitation later on. For the purposes of laying the basis of fact upon which my view of the legal consequences rests, it is sufficient to summarise the ascertained situation thus. 2 [2][5]The description " Harris Tweed" was originally applied to woollen cloth, which was not only woven by hand-looms in the cottages of the Outer Hebrides, but was so woven out of yarn spun by hand in the islands. (The trade-name " tweed " is not, it appears, derived from the river near which the cloth-weaving industry of Galashiels and neighbouring towns is established: it is a trans- formation, now nearly a century old, of the word " twill") More- over, " Harris Tweed " was hand-finished in the islands. It was thus a hand-produced and island-produced product throughout, and in 1911 a Company limited by guarantee was registered under the name of the Harris Tweed Association Limited, which obtained a Trade Mark (referred to as the " Stamp ") under section 62 of the Trade Marks Act, 1905, to apply to Harris Tweed which satisfied these conditions. After a time, the hand-spinning of wool into yarn ceased to be commercially practicable and in 1934 the conditions of the Trade Mark were varied, with the result that it could apply to tweed hand-woven by the islanders in their own homes out of yarn spun in island spinning-mills, and finished in the island-mills instead of by hand.[6]Five such spinning-mills have been established in Lewis. They do not use weaving machinery, but by placing their yarn in the hands of the hand-weaving crofters, cloth is produced which the mill-owners, after " finishing " it, can sell under the " Stamp." Ninety per cent, of the spinners in the mills are members of the Transport and General Workers' Union—the same trade union as that to which all the Stornoway dockers belong. The percentage of trade-unionists among the weavers in the cottages is much smaller. The officials of the Union desired that none but members of their Union should be employed, but when this was asked of the mill-owners in 1935, together with a rise in spinners' wages, the answer of the mills was that this was in existing circumstances impossible, and that a reduction in wages was more likely, owing (as was alleged) to the cut-throat competition of independent pro- ducers of cloth such as the Appellants, who obtained their supplies of yarn from the mainland at a cheaper price than that charged by the mills. Cloth made out of mainland yarn could not carry the " Stamp," though it could be sold as Harris Tweed as having been woven in the Island.[7]How far there really was injurious competition may be seriously questioned, but there is no evidence that the Union officials did not believe it and what is clear is that the Union official then mainly concerned, a Mr. Buchan, set himself to assist in establishing a minimum selling price for island cloth, and that he, and after him Veitch, conceived that it would benefit their Union members if conditions of collective bargaining could be established in the Island between employers and employed. To this end, Mr. Buchan in 1935 proposed to Mr. Skinner, the Secretary of the Mill-Owners' Association, a scheme whereby the Trade Union could " provide " definite safeguards to the successful operation of a minimum " selling price," and added that "the only argument that price- " cutters will ever understand and appreciate will be the joint " power of the employers and this Union to put them out of business " if they refuse loyally to abide by minimum selling prices as fixed " from time to time by the Harris Tweed Producers Association." Mr. Skinner and the Mill-Owners' Association did not wish to avail themselves of Mr. Buchan's proposals at that time, and indeed throughout would seem to have preferred, if it had been possible, to get a settlement as to prices without trade union pressure. There remained on the side of the trade-union a constant desire to secure 100 per cent, trade-union membership. A long and complicated story of discussions and interviews followed, at the end of which the effort to secure by negotiation minimum prices and the use of none but island-spun yarn failed, Mr. Skinner informed Mr. Veitch [3] 3 that a settlement had not been reached, and an interview between them in Edinburgh took place five days before Mr. Veitch gave orders for the embargo. The Appellants have strenuously argued that there was a combination between Mr. Veitch and Mr. Skinner to impose the embargo, and in particular rely on Mr. Veitch's letter to Mr. Mackenzie of January 19th, 1938, requesting the latter to give instructions to the dockers, which contains the significant sentence " This action will complete our deal with the employers " and we will have 100 per cent, membership, not only in the mills " but also in the weaving section." My own view is in accord with that of the Lord Ordinary (with which at least one member of the Inner House, Lord Wark, was disposed to agree) that, suspicious as the circumstances are, there is not sufficient evidence to establish that Mr. Skinner was combining with the Respondents to impose the embargo: he was aware of the intention to impose it and he approved of it and was apparently willing to concede 100 per cent, membership to the Union if his trade rivals were put out of business or compelled to buy yarn from the mills, but I am not prepared to hold that the Respondents struck at the Appellants because of a bargain so to do between Mr. Skinner and themselves.[8]Such being the facts of this case as I take them to be, the question to be decided is whether the Appellants have proved that the Respondents are liable to them for illegal conspiracy. In other words, is it proved that the two Respondents combined together " to injure " the Appellants in the way of their trade, and that the Appellants have suffered damage from the Respondents' illegal action ? Conspiracy, when regarded as a crime, is the agreement of two or more persons to effect any unlawful purpose, whether as their ultimate aim, or only as a means to it, and the crime is com- plete if there is such agreement, even though nothing is done in pursuance of it. (I am omitting consideration of those cases on the borderland of illegality, where the combination was held to amount to a criminal conspiracy because the purpose aimed at, though not perhaps specifically illegal, was one which would undermine prin- ciples of commercial or moral conduct.) The crime consists in the agreement, though in most cases overt acts done in pursuance of the combination are available to prove the fact of agreement. But the tort of conspiracy is constituted only if the agreed combination is carried into effect in a greater or less degree and damage to the Plaintiff is thereby produced. It must be so, for, regarded as a civil wrong, conspiracy is one of those wrongs (like fraud or negligence) which sounds in damage, and a mere agreement to injure, if it was never acted upon at all and never led to any result affecting the party complaining, could not produce damage to him. The distinc- tion between the essential conditions to be fulfilled by the crime and the tort respectively are conveniently set out by Lord Coleridge C. J. in his judgment in Mogul Steamship Co. v. McGregor, Gow & Co. 21 Q.B.D. 544 at p. 549. ' In an indictment it suffices if the com- " bination exists and is unlawful, because it is the combination itself " which is mischievous, and which gives the public an interest to " interfere by indictment. Nothing need be actually done in " furtherance of it. In the Bridge-water case, referred to at the Bar, " in which I was counsel, nothing was done in fact; yet a gentleman " was convicted because he had entered into an unlawful combina- " tion from which almost on the spot he withdrew, and withdrew " altogether. No one was harmed; but the public offence was com- " plete. This is in accordance with the express words of Bayley J. " in Rex v. de Berenger, 3 M. & S. 67 at p. 76. It is otherwise in a " civil action: it is the damage which results from the unlawful " combination itself with which the civil action is concerned. . " Once more, to state the proposition somewhat differently with a " view to some of the arguments addressed to me, the law may be " put thus. If the combination is unlawful, then the parties to it 4 [4] " commit a misdemeanour and are offenders against the state; and " if, as the result of such unlawful combination and misdemeanour, " a private person receives a private injury, that gives such person " a right of private action."[9]There is nothing, I think, in the majority judgments in the Mogul case in the Court of Appeal (23 Q.B.D. 598), or in the speeches delivered on the appeal in that case to this House, [1892] AC 25 , which conflicts in any way with the above propositions, which indeed are now well-established.[11]The Appellants, therefore, in order to make out their case have to establish(a) agreement between the two Respondents(b) to effect an unlawful purpose(c) resulting in damage to the Appellants. As regards (c), there can here be no doubt. Instructing or persuading the dockers at Stornoway to refuse to handle imports of mainland- spun yam arriving for delivery to the Appellants was an inter- ference with the Appellants' normal source of supply, which was bound to damage their business. Still more, perhaps, was it an injury to the Appellants to prevent by these means the sending of their unfinished cloth to the mainland. Indeed, it is one of the most serious aspects of this case, and an aspect that I deplore, that the action taken against the Appellants not merely put pressure on them to adopt new arrangements, but might well destroy their busi- ness altogether without offering any locus poenitentiae. Whether this consideration affects the ultimate conclusion must be considered hereafter. I am equally satisfied about (a). It was argued that the Respon- dent Mackenzie should not be regarded as acting in combination with the Respondent Veitch, so as to establish the element of agree- ment between them in the tort of conspiracy, because Veitch held the responsible position of Scottish Area Secretary to the Union, whereas Mackenzie was only Branch Secretary for Stornoway. This, I think, is an unsound contention. The respective position of the two men in the hierarchy of Trade Union officials has nothing to do with it. Even if Mackenzie could be regarded as only obeying orders received from his superior, the combination would still exist if he appreciated what he was about. But his share in the matter was more than this. Mackenzie is the represen- tative of the Union in the Island of Lewis; he took the principal part in securing that the dockers at Stornoway should not handle the Appellants' goods; there is no ground for supposing that he did not approve of the course taken, and he appears to have co-operated willingly. The Lord Ordinary, after a full and careful hearing, came to the conclusion of fact that " the immediate purpose of Mr. " Veitch and Mr. Mackenzie was to force producers to come to an " agreement regarding the selling price of tweed and the exclusive " use of island-spun yarn. The means adopted necessarily inflicted " injury on the petitioners." Lord Jamieson went on to hold expressly that Mackenzie was a party with Veitch to the combina- tion, on the grounds which I have indicated above. Questions (a) and (c) are, therefore, conclusively disposed of. The only difficulty in the case arises under (b). What exactly is meant, in this branch of the law, by a combination to effect an unlawful purpose? Lord Cave L.C., in Sorrell y. Smith [1925] A.C. p. 700, when what he called " the famous trilogy of cases in " Your Lordships' House: Mogul S.S. Co. v. McGregor, Gow & Co. " [1892] AC 25 ; Allen v. Flood [1898] AC 1 ; and Quinn v. " Leathern [1901] AC 495 " were submitted to a close examination in order to extract from them the principles involved, formulated as a result two propositions of law which he stated as follows: " (1) " A combination of two or more persons wilfully to injure a man " in his trade is unlawful and, if it results in damage to him, is " actionable. (2) If the real purpose of the combination is, not to [5] 5 " injure another, but to forward or defend the trade of those who " enter into it, then no wrong is committed and no action will lie, " although damage to another ensues." It should be observed that these two propositions, as the then Lord Chancellor said, were formulated as material for the decision of the case then before the House, and they may not turn out to be either as complete or as easy to apply in some other cases involving widely different circum- stances. At any rate, I find it necessary, for the purpose of deciding the present Appeal, to enter upon some further analysis.[12]It seems to me that the subject may be usefully approached by beginning with some preliminary propositions, not in themselves I think open to challenge at this time of day. In stating these propo- sitions I shall try to distinguish between " damage " and " injury," following the stricter diction, derived from the Civil Law, which more especially prevails in Scottish jurisprudence. So used, " injury " is limited to actionable wrong, while " damage ", in con- trast with injury, means loss or harm occurring in fact, whether actionable as an injury or not. " An intent to injure, in strictness," said Lord Justice Bowen in the Mogul case, 23 Q.B.D. at p. 612, " means more than intent to harm. It connotes an intent to do " wrongful harm." First, then, apart from the effects of combination, it is clear that(1) if A is damaged by the action of B, A nevertheless has no remedy against B, if B's act is lawful in itself and is carried out without employing unlawful means. In such a case A has to endure damnum absque injuria.(2) It makes no difference to the above proposition that B in so acting had the purpose of damaging A. A bad motive does not per se turn an individual's otherwise lawful act into an unlawful one.(3) If C has an existing contract with A and B is aware of it, and if B persuades or induces C to break the contract with resulting damage to A, this is, generally speak- ing, a tortious act for which B will be liable to A for the injury he has done him. In some cases, however, B may be able to justify his procuring of the breach of contract, e.g. a father may persuade his daughter to break her engagement to marry a scoundrel. (This is not, of course, to say that the scoundrel would not have an action against the daughter for breach.) The father's justification arises from a moral duty to urge C that the contract should be repudiated.[13]So far there is, I apprehend, little to dispute about. But if the act which damages A is not that of a single individual, but is due to a combination of two or more persons, then it is no longer possible to say that motive or purpose is immaterial. If, to use Lord Cave's language, the real purpose of the combination is the inflicting of damage on A as distinguished from serving the bona fide and legitimate interests of those who so combine, then if damage results to A, the act is tortious.[14]Lord Halsbury observed in the Mogul case [1892] A.C. p. 25 at p. 38:
"' I do not deny that there are many things which might be " perfectly lawfully done by an individual, which, when done by a " number of persons, become unlawful," and many citations to the same effect might be made from speeches delivering judgment since then in Your Lordships' House. The proposition itself as to a wider range of liability for acts done in combination is now well established, though the legal reason for it may not be so easy to state. Lord Bramwell in the Mogul case observed that it had been objected that it was strange that that should be unlawful if done by several which is not unlawful if done by one. and he offered some suggestions as an explanation; [1892] A.C. at p. 45. The view that the explanation is to be found in the increasing power of numbers to do damage beyond what one individual can do is open to the obvious answer that this depends on the personality and influence 6 [6] of the individual. In the play, Cyrano de Bergerac's single voice was more effective to drive the bad actor Monttleury off the stage than the protests of all the rest of the audience to restrain him. The action of a single tyrant may be more potent to inflict suffer- ing on the continent of Europe than a combination of less power- ful persons. Lord Justice Bowen, when the Mogul case was before the Court of Appeal, observed: 'The distinction is based on " sound reason, for a combination may make oppressive or " dangerous that which if it proceeded only from a single person " would be otherwise, and the very fact of the combination may " show that the object is simply to do harm, and not to exercise " one's own just rights."
There is, however, another possible line of explanation which legal history suggests. Conspiracy, like libel, may be a crime. As a crime it was developed by the Court of Star Chamber, and, on the abolition of that Court, the crime as thus developed became a common law misdemeanour. Hence, according to Professor Holdsworth (History of English Law, Vol. VIII, p. 392), just as the courts came to the conclusion that if the defamation was written, so that the crime of libel had been com- mitted, an action of tort lay at the suit of the injured party (in this instance without the need to allege and prove special damage), so, in the case of conspiracy an action in the nature of an action on the case would lie for damages at the suit of the party suffering, though here the gist of the action is that damage was inflicted by defendants who combined together for the purpose of inflicting it.[15]However the origin of the rule may be explained, I take it to be clear that there are cases in which a combination of individuals to act in a certain way, resulting in deliberate damage to others, is actionable, even though the same thing, if done by a single individual without any element of combination, would not expose him to liability. In the present case, the evidence did not support an allegation that the Defendants, or either of them, had procured a breach of contract, and if one of them, acting alone, had without employing unlawful means induced the dockers to refuse to handle the Appellants' goods, I cannot see that any action would have lain against him. Everything turns, therefore, on whether the two Respondents were engaged in a combination " to injure," in the sense in which that phrase is employed when liability results; it is to this question that I now address myself.[16]On this question of what amounts to an actionable conspiracy " to injure " (I am assuming that damage results from it), I would first observe that some confusion may arise from the use of such words as " motive " and " intention." Lord Dunedin in Sorrell v. Smith (ubi cit. at p. 724) appears to use the two words interchange- ably. There is the further difficulty that, in some branches of the law, " intention " may be understood to cover results which may reasonably flow from what is deliberately done, on the prin- ciple that a man is to be treated as intending the reasonable consequence of his acts. Nothing of the sort appears to be involved here. It is much safer to use a word like " purpose " or " object." The question to be answered, in determining whether a combination to do an act which damages others is actionable, even though it would not be actionable if done by a single person, is not " did the " combiners appreciate, or should they be treated as appreciating, "that others would suffer from their action", but "what is the " real reason why the combiners did it ? " Or, as Lord Cave puts it, " what is the real purpose of the combination ? " The test is not what is the natural result to the Plaintiffs of such combined action, or what is the resulting damage which the Defendants realise or should realise will follow, but what is in truth the object in the minds of the combiners when they acted as they did. It is not con- sequence that matters, but purpose; the relevant conjunction is not wore, " so that ." but iva, " in order that." [7] 7[17]Next, it is to be borne in mind that there may be cases where the combination has more than one " object" or " purpose." The combiners may feel that they are killing two birds with one stone, and, even though their main purpose may be to protect their own legitimate interests notwithstanding that this involves damage to the Plaintiffs, they may also find a further inducement to do what they are doing by feeling that it serves the Plaintiffs right. The analysis of human impulses soon leads us into the quagmire of mixed motives, and even if we avoid the word " motive," there may be more than a single " purpose " or " object." It is enough to say that if there is more than one purpose actuating a combination, liability must depend on ascertaining the predomi- nant purpose. If that predominant purpose is to damage another person and damage results, that is tortious conspiracy. If the pre- dominant purpose is the lawful protection or promotion of any lawful interest of the combiners (no illegal means being employed), it is not a tortious conspiracy, even though it causes damage to another person.[18]It will be observed that the above analysis tends to show that Lord Cave's two propositions in Sorrell v. Smith are not necessarily exhaustive. He contrasts a combination wilfully to injure a man in his trade with a 'combination, the real purpose of which is not to injure another but to forward or defend the trade of those who enter into it. It is possible to imagine a combination, the purpose of which does not fall within either of these two classes—a combina- tipn, for example, to demonstrate the power of those combining to dictate policy or to prove themselves masters in a given situation. In such a case the purpose or object might well be neither wilfully to damage a man in his trade, on the one hand, nor to forward or defend trade interests in a situation where they would otherwise suffer on the other. If, for example, the mill-owners in the present case had promised a large subscription to the trade union funds as an inducement to bribe the Respondents to take action to smash the Appellants' trade, I cannot think that the Respondents could excuse themselves for combining to inflict this damage merely by saying that their predominant purpose was to benefit the funds of the union thereby.[19]It may well be that in this corner of the law it is not possible to lay down with precision an exact and exhaustive proposition like an algebraical formula which will provide an automatic answer in every case that may arise by substituting the actual instance for a generalisation. There is an interesting passage in the recently published correspondence between Mr. Justice 0. W. Holmes of the United States Supreme Court and Sir Frederick Pollock which in discussing some earlier cases suggests as much (see Holmes- Pollock Letters, vol. 1, p. 65). Lord Dunedin, I think, had the same view in mind when, in his speech in Sorrell v. Smith, he referred to the test furnished by " that inner standard of right and wrong." ([I925] A.C. at p. 717.) Lord Sumner's disclaimer, in the same case, of an ability to draw any definite line " between acts, whose " real purpose is to advance the defendants' interest, and acts, " whose real purpose is to injure the plaintiff in his trade " (p. 742) points in the same direction. The exoneration provided by " justiri- " cation " or " just cause " to which Lord Cave refers as an alterna- tive way of indicating the limit between combinations that are lawful and combinations that are unlawful (see, for a further illustration, the language of Romer L.J. in Giblan v. National Amalgamated Labourers' Union of Great Britain and Ireland [1903] 2 KB 600 ) is another indication of the difficulty in the way of abstract precision. I am content to say that, unless the real and predominant purpose is to advance the Defendants' lawful interests in a matter where the Defendants honestly believe that those interests would directly 8 . [8] suffer if the action taken against the Plaintiffs was not taken, a combination wilfully to damage a man in his trade is unlawful. Although most of the cases have dealt with trade rivalry in some form or other, I do not see why the proposition as to the conditions under which conspiracy becomes a tort should be limited to trade competition. Indeed, in its original sense, conspiracy as a tort was a combination to abuse legal procedure: see Winfield's History of Conspiracy, ch. ii. I have used the word " directly " without seek- ing to define its boundaries as an indication that indirect gains, such as the subscription in the illustration above, would not provide a justification.[21]In the present case, the conclusion, in my opinion, is that the predominant object of the Respondents in getting the embargo imposed was to benefit their trade-union members by preventing under-cutting and unregulated competition, and so helping to secure the economic stability of the Island industry. The result they aimed at achieving was to create a better basis for collective bargaining, and thus directly to improve wage prospects. A com- bination with such an object is not unlawful, because the object is the legitimate promotion of the interests of the combiners, and because the damage necessarily inflicted on the Appellants is not inflicted by criminal or tortious means and is not " the " real purpose " of the combination. I agree with Lord Fleming when he says in his judgment that it is not for a Court of Law to consider in this connection the expediency or otherwise of a policy adopted by a Trade Union. Neither can liability be determined by asking whether the damage inflicted to secure the purpose is disproportionately severe: this may throw doubts on the bona fides of the avowed purpose, but once the legitimate purpose is estab- lished, and no unlawful means are involved, the quantum of damage is irrelevant. I move that this appeal be dismissed with costs. Lord Chancellor Viscount Maugham Lord Thanker- ton Lord Wright Lord Porter CROFTER HAND WOVEN HARRIS TWEED COMPANY, LIMITED, AND OTHERS v. VEITCH AND ANOTHER Viscount Maugham MY LORDS, I have had the advantage of reading the Opinion of my noble friend on the Woolsack and, except in one matter which I regard as of importance, I agree with his summary of the facts. With the greatest respect I am of opinion that the embargo is proved to have been imposed in pursuance of a combination between Mr. Veitch and the millowners. My grounds for this view are pre- cisely those set put in the Opinion of Lord Fleming in the Second Division, to which I find I cannot usefully add anything. I also find myself in substantial agreement with what my noble friend has said as to the law in so far as it relates to combinations resulting in injury to others, that being the only subject with which I for my part think it necessary to deal on this Appeal. If I add some remarks of my own, it is partly because of the great importance of this case and partly as a recognition of the able and candid argu- ments which were addressed to us. I will add by way of preface that it seems to me beyond dispute that Lord Macnaghten's state- ment as to a conspiracy to injure giving rise to civil liability in Quinn v. Leathern, 1901 AC 495 at p. 510, is now well-settled law. I have never myself felt any difficulty in seeing the great difference between the acts of one person and the acts in combination of two or of a multitude.[22]As appears from the statement of facts which is contained in the Opinion referred to, there is a peculiarity in the case which should be remembered. The Appellants, who are small producers, carried on their somewhat humble businesses in the Isle of Lewis where they were weaving a tweed called Harris Tweed from yarn spun on the mainland. The Respondents were officials of the Trans- port and General Workers' Union, a duly registered Trade Union. The only shipping services between the mainland and the Isle of Lewis are provided by Messrs. David MacBrayne Limited, and Coast Lines Limited. They ply to and from Stornoway. The dockers at that port are all members of the Trade Union and it is admitted that they act on the instructions of the Respondents, who are or were the Scottish Area Secretary and the Stornoway Branch Secretary of the Trade Union. Orders were given on the 20th and 21st January, 1938, by the Respondents to the dockers at Stornoway to refuse to handle any consignments of yarn from the mainland to the Appellants and any consignments of tweed from the Appellants to the mainland. These orders were carried out (without any breach of contract) and the business of the Appellants was thus brought to a complete standstill. It is evident that the power of the Trade Union officials in the circumstances which exist in the Island is so great that the business and the means of subsistence of everyone who resides there is at the mercy of the Trade Union officials. If they should be so disposed, an event which I hope is unlikely, a tyranny of the most serious character might follow unless the case happened to be one in which the Court could properly interfere. It accordingly seems to me to be very desirable that the reasons which determine the conclusion of this House on the present Appeal should be stated with great clearness. The Lord Ordinary and some of the Lords in the Inner House have used phrases which seem to suggest that once it is found that the infliction of injury on the Petitioners was not the real purpose or object of the embargo that is the end of the matter. I must say 16904 A5 2 [10] plainly that I disagree with this view and I do not think the decision in Sorrell v. Smith justifies it. To suppose that it follows from an absence of malice or ill-will that the true motive of the acts done in combination was to further the legitimate interests of the parties to the combination seems to me to be a non sequitur. For example, there was a possibility that the Respondents were taking the action they did merely to demonstrate the power of the Trade Union to control the trade of the Island in every detail, or again because they had been induced by some valuable consideration coming from the millowners on the Island to put the Petitioners out of business in order to secure for the millowners a complete monopoly in relation to the spinning and finishing of Harris tweed. I will give some other illustrations later. Moreover, there are the cases of mixed motives which might have to be considered.[23]My Lords,[23]Lord Cave, L.C., in delivering [his judgment in Sorrell v. Smith remarked as follows: —" I deduce as material for " the decision of the present case two propositions of law which " may be stated as follows:(1) A combination of two or more " persons wilfully to injure a man in his trade is unlawful and, if it " results in damage to him, is actionable.(2) If the real purpose " of the combination is, not to injure another, but to forward or " defend the trade of those who enter into it, then no wrong is " committed and no action will lie, although damage to another " ensues. The distinction between the two classes of case is some- " times expressed by saying that in cases of the former class there is " not, while in cases of the latter class there is, just cause or excuse "for the action taken." I do not think there is any doubt that Lord Cave's two propositions are sound, and they were accepted as correct by Lord Atkinson and also, as I read his judgment in the same case, by Lord Sumner. In Sorrell v. Smith in my opinion no new law was laid down by this House. It was merely in the view of their Lordships an unusual illustration of the proposition decided in the Mogul case that a combination to do acts the purpose and object of which is to forward or defend the trade or business interests of the Defendants is not actionable even though the necessary effect is to cause damage to the Plaintiffs (Sorrell v. Smith, 1925, A.C. 700, per Lords Cave and Atkinson at pp. 715, 716, and per Lord Sumner at pp. 733 and 743, and per Lord Buckmaster at p. 746). If I correctly understand Lord Dunedin's opinion, he took a somewhat different view from that of the majority, and disputed the accuracy of the opinion so often expressed and still more often assumed by various judges that a just cause or excuse must be shown and that if the real purpose of the combination is not to forward or defend the trade or the interests of those who enter into it, the Defendants generally speaking must show some other just cause or excuse for the action taken in combination. Lord Cave after stating the two proposi- tions of law above cited proceeded to classify the more important of the judgments on which he relied for his propositions, in several of which the reference to " just cause or excuse " will be found I need not repeat these authorities; but I think it is desirable to point out that it is implicit in the Mogul case both in the Court of Appeal and in this House that the acts done in combination by the shipowners who were Defendants were done (to use the language of Lord Watson) "with a single view to the exten- " sion of their business and the increase of its profits." The head- note to that case, which in my opinion is accurate, is in these terms: —"Held, that since the acts of the Defendants were done " with the lawful object of protecting and extending their trade " and increasing their profits, and since they had not employed any " unlawful means, the Plaintiffs had no cause of action." The speeches of the seven noble lords who attended are directed to [11] 3[24]showing that any form of competition in trade is legitimate and lawful, that is, formed a just excuse, provided that illegal means are not used. No one suggested that it malevolence was not in question, the action must necessarily fail, and I agree with my noble mend Lord Wright in thinking that malevolence as a mental state is not the test of liability. It was implicit as I think that lawful competition was the true and the necessary answer to the action in Sorrell v. Smith. Moreover general approval was expressed of the opinions of Lord Justice Bowen and Lord Justice Fry in the Court of Appeal (see 1892 A.C. at pp. 37, 43, 47, 51 and 57). I can see no reason for doubting the correctness of the well-known statements of Lord Justice Bowen in the Court of Appeal (23 Q.B.D. at pp. 613, 617). His judgment is essentially devoted to the inquiry whether the acts of the Defendants were done " without any just " cause or excuse." If, adopting another mode of approach, it is said that the acts in combination must in law be " malicious " if, being acts which necessarily injure the Plaintiff, they are done without just cause or excuse, we are reduced to a mere question of words. Qudcunque via the acts in combination are unlawful unless there is just cause or excuse. For myself on this point, which Lord Dunedin describes as " hypercritical," I must say that I prefer Lord Justice Bo wen's method of dealing with the matter, approved, as I think it is, by the majority of the. noble Lords who decided Sorrell v. Smith. I must add that I do not think it possible (as Lord Dunedin seems to have thought) that Lord Justice Bowen was influenced in using his phrases by Bowen v. Hall (6 QBD 333 ) which related to the different case of the inducing of a person under personal contract to break it; nor do I think that the judgments in Allen v. Flood (1898 AC 1 ) would have altered his view since that case had nothing to do with a question of combination.[25]It seems to me, therefore, and with the greatest deference to those who perhaps think otherwise, a mistake to hold that combina- tions to do acts which necessarily result in injury to the business or interference with the means of subsistence of a third person are not actionable provided only that the true or predominant motive was not to injure the Plaintiff and that no unlawful means are used. For instance, the object of the combination may be a dislike of the religious views or the politics or the race or the colour of the Plaintiff, or a mere demonstration of power by busybodies. Again the persons joining in the combination may have been induced so to act by payment of money or by some other consideration. There is I think no authority to be found which justifies the view that a combination of such a character, causing damage to the Plaintiff, would be lawful. Since there are many cases of combina- tions which directly result in injury to others, but do not fall within either of those two categories mentioned by Lord Cave, one question is whether in the present case we are not confronted with facts which, admittedly not within the first proposition, are or are not within the second. We may formulate the question thus: Was the real or predominant purpose of the combination to forward or defend the trade or business interests of the Trade Union and its members and of the millowners ? If the answer is in the negative it would be necessary very carefully to examine " the real purpose " or " the true motive " (which I think is the same thing) of the com- bination and to consider whether there was in the eyes of the law a just cause or excuse for taking or directing acts in combination which will destroy the present means of subsistence of the Appel- lants. On this point if it arises there is little authority to guide us, but I will add that when the question of the real purpose is being considered it is impossible to leave out of consideration the principle that men are in general to be taken as intending the direct conse- quences of their acts (see the summing up of Fitzgibbon, L.J., in Quinn v. Leathem, 1901 A.C. at p. 499, which was approved in this 16904 A6 4 [12] House). It may be worth noting that in the days of Erle, J., there was often no other way of ascertaining the purpose of a con- spiracy. I should add that " motive " is clearly not the same thing as " intention ", but in many cases the one is the parent of the other, and they are so closely related that they cannot be separated. (See for some interesting remarks on this subject Wills on Circum- stantial Evidence, 7th Edn., pp. 62 to 64.) If there are mixed purposes or motives the difficulties that arise on the question of fact may be very great and it may be impossible to answer the question above stated in the affirmative.[26]It is worth while to note that Quinn v. Leathem is an example of a mixed motive; for there the Defendants, being officials and members of a Trade Union, combined to call out the Union workmen of the Plaintiff Leathem if he would not discharge some non-Union men in his employ, and also to call out the Union work- men of a customer of Leathem called Munce if he did not cease to deal with Leathem. It is true that there was the finding of the Belfast jury that what the Defendants had done was done with malice in order to injure the Plaintiff; but it can scarcely have been in doubt that one at least of the motives actuating the Defendants was the benefit of their Trade Union. As Lord Lindley remarked (1901 A.C. at p. 536):
" That they (the Defendants) acted as they " did in furtherance of what they considered the interests of Union " men may probably be fairly assumed in their favour."
The facts as set out in detail in Lord Brampton's speech show clearly that the whole dispute between Leathem and the Trade Union originated in Leathem's refusal to dismiss non-Union workmen. It must, how- ever, be assumed from the findings of the jury that the main object or purpose of the Defendants was to punish or injure Leathem and that this was " malicious," whatever the precise evidence of malice may have been. It was never suggested by anyone that if the Defendants' acts were at least partly in furtherance of Trade Union interests that would be a defence to the action. The case of Conway v. Wade (1909 AC 506 ) may usefully be referred to in this connexion.[28]An obvious difficulty arises at the outset if we accept, as I do (as above stated), the view that the combination was between the Respondents and the millowners. The interests of these two groups were very different and indeed they were in some respects conflict- ing. If it is proved, as the Lord Ordinary held, that the object of the Respondents was to benefit the Trade Union and its members and if it is to be inferred that the object of the millowners was to benefit themselves by obtaining a species of monopoly in the matter of milling, is that sufficient to bring the case within the principle of the Mogul case ? It was argued with force that, accepting the doc- trine laid down in Sorrell v. Smith, you must look at the joint object of the parties combining, and if they have substantially different objects, the decision in the Mogul case will not apply. I have care- fully considered this point, which is not unattractive, and I cannot find it has ever been precisely dealt with in any of the cases. On the whole, however, I have come to the conclusion that following the principle of the Mogul case, it is sufficient if all the various com- bining parties have their own legitimate trade or business interests to gain, even though these interests may be of differing kinds. If indeed some of these parties were actuated merely by hate or vindictive spite or with no just excuse at all, I should doubt very much whether the defence would succeed. But I think reasonable self-interest in trade or business is " a just cause or " excuse " for those combining even though each of them " has his " own axe to grind." For instance, I cannot think that the Mogul case would have had a different result if tea merchants had joined in the combination of shipowners. And it is easy to imagine a case where shipowners and railway companies might wish to combine to [13] 5 get business though their interests were in some respects conflicting; and other examples will occur to everyone with a knowledge of competitive trade. In my opinion the principle of the Mogul case will protect persons who combine for their respective business interests if there is a certain identity of object, that whether they do or not is a question of motive or object, and that the circum- stance that their business interests are by no means the same is not a ground for holding that the combination is illegal. My Lords, in my opinion, when it is proved or admitted that the Respondents had no personal ill-will towards the Appellants, the difficulties of this case begin. I do not propose to recapitulate the facts, but it is to be remembered that there are a number of circumstances which might have justified a very adverse view of the Respondents' motives. I will summarise the most important of them. First, what was done was not " in furtherance of " or " in contemplation of " a trade dispute. Secondly, as I have said, I accept the view of Lord Fleming and, I should add, very forcibly expressed by Lord Mackay, that there was a combination between Mr. Veitch and Mr. Skinner and some at least of the millowners to procure the embargo. Thirdly, the acts complained of were obviously in the interests of the millowners on the Island since they secured a species of monopoly. Fourthly, Mr. Veitch's letter of the 19th January to Mr. Mackenzie is, I think, only consistent with the view that there was a " deal" between Mr. Veitch, Mr. Skinner, and some at least of the millowners with regard to the laying-on of the embargo, the general understanding being that if an embargo were to be imposed by Mr. Veitch, the millowners would concede the Union demand for 100 per cent. Union member- ship in the mills of the Island. Fifthly, Mr. Veitch apparently accepted as true certain statements of Mr. Skinner as to the con- dition of the industry and as to the effect of the importation of mainland yarn, which the least inquiry would have shown to be inaccurate. Sixthly, Mr. Veitch's elaborate report to Mr. Bevin (the General Secretary of the Union at that time) as to his grounds for imposing the embargo is so extravagant, abusive and in- accurate in its terms that I find it difficult to understand how it can have been written with a legitimate purpose. It was a carefully considered document composed between the 14th January and the 3rd February. It suggested (untruly) that the Appellants were evading the stamp, deceiving the public, ruining the industry, and bringing distress to the Outer Hebrides, that they were " get-rich- " quick merchants " who cared nothing about the distress on the Islands, that the importation of mainland yarn was " killing the " industry," and that they were an " unscrupulous lot" who were importing "blackleg yarn." There was nothing said in the letter about the "deal" with the millowners; indeed, it was asserted (inaccurately) that in the mills they already had 100 per cent, "organisation." The document was completely misleading, and in fact it misled the General Council of the Union when it was read on the 8th March, 1938. Seventhly, it should be observed that no notice was given to the Appellants as to the intention to apply the embargo and no opportunity given to them to cease using mainland yarn if they were so advised. Lastly, it is a strange feature in the case that one at least of the avowed purposes of the acts of the Respondents was to secure the 100 per cent, membership of the Union in the mills, whilst the Appellants, who were attacked, were completely unable to secure or to influence such a result, since they had nothing whatever to do with the management of the mills, and the result was to be secured, if at all by the " deal " with the millowners.[29]My Lords,[29]there are certain explanations offered as regards these facts and no doubt some other circumstances to be borne in 16904 A7 6 [14] mind, but I must confess that, if I were entitled to form a con- clusion simply from the documents and the shorthand notes of the trial, I should find it impossible to hold that the Respondents had established that they and the millowners had combined simply or mainly for the purpose of promoting their own interests, that is, those of the Trade Union and of the millowners respectively. This House, however, is always most reluctant to differ from the findings of the trial judge on a question of fact and a fortiori when the Appellate Court has come to a like conclusion. The question here is mainly one of the objects or motives of the Respondents, both of whom were called as witnesses and elaborately cross-examined. It has been well observed that if they were, as seems probable from the shorthand notes, both stupid and wrong-headed, the cir- cumstance may afford an explanation of acts and writings which in the case of persons of greater acuteness would tend strongly in favour of a sinister motive. The Lord Ordinary appears to have believed these persons, though he was not very pleased with them as witnesses. The majority of the Inner House agreed with him. I do not feel at liberty to differ.[30]My conclusion therefore must be based on these facts: On the one hand it is proved that the Respondents and the millowners were not actuated by an intention to injure as a predominant motive in their minds. On the other hand they were acting, or must be taken to have been acting, with the main object of benefit- ing themselves in this sense, that the Respondents were seeking to advance what they conceived to be the interests of their Trade Union and their members, and the millowners were seeking to obtain an obvious trade advantage for themselves, and no doubt in a rather general sense they all had a common interest in the prosperity of the Harris Tweed industry. The case, therefore, is brought, though I think with difficulty, within the principle of the Mogul case, as explained in later cases, and the Appeal must fail.[31]As regards the ultimate result, I must add this warning. The only question before the Lord Ordinary was as to whether the then Petitioners were entitled to have the Respondents interdicted from instructing members of the Trade Union at Stornoway to refuse to load or unload consignments of yarn or unfinished tweeds consigned to or despatched by the petitioners. The original embargo was directed on the 19th January, 1938, and extended to the loading of finished and unfinished tweeds despatched by the petitioners, but on the 25th January, 1938, it was modified by permitting the ex- portation of finished tweeds. An interim interdict was granted to the Appellants on the 24th February, 1938, and the embargo then dropped. When the interim interdict was recalled on the 8th March, 1939, it appears that the embargo was not re-imposed. The only question on appeal to the Inner House and to this House has necessarily been as to whether the interdict should have been con- tinued by the Lord Ordinary. On that matter the Courts were bound to consider the propriety of the action of the Respondents and the millowners in the light of the views honestly entertained by them at that time as to their respective interests and as to the actions and conduct of the Appellants. In so far as those views have since been shown to have been ill-founded, they would not now justify the re-imposition of the embargo. If such a step as that is contemplated, the matter ought to be reconsidered in view of the circumstances and facts as they are now known to exist.[32]My Lords,[32]for the reasons above stated I concur in the proposed motion. Lord Chancellor Viscount Maugham Lord Thanker- ton Lord Wright Lord Porter CROFTER HAND WOVEN HARRIS TWEED COMPANY, LIMITED AND OTHERS v. VEITCH AND ANOTHER. Lord Thankerton MY LORDS,[33]The Appellants are seven out of the original petitioners in a petition and complaint by nine small producers of Harris Tweed in the Isle of Lewis, presented on the 24th February, 1938, seeking to have the present Respondents interdicted from interference with the consignments of yarn or unfinished tweeds consigned to or despatched by the petitioners at the port or harbour of Stornaway. The petition and complaint was dismissed, after proof, on the merits by the Lord Ordinary (Lord Jamieson) on the 8th March, 1939, and his interlocutor was adhered to by the Second Division (Lord Mackay dissenting) on the 22nd December, 1939, and the reclaim- ing motion by the nine petitioners was refused, but, in respect of an undertaking by the Respondents not to continue the embargo against the Petitioners William MacLeod and Donald Campbell the latter were awarded the expenses incurred by them in the re- claiming motion. The remaining petitioners appeal against these interlocutors.[34]While the Respondents are cited as individuals, they are respec- tively the Scottish Area Secretary and the Stornaway Branch Secre- tary of the Transport and General Workers' Union at Stornaway, and the terms of the interdict sought for are " to interdict, prohibit " and discharge the Respondents from instructing, procuring, per- " suading or inciting, or continuing to instruct, procure, persuade " or incite members of the Transport and General Workers' Union " at Stornaway, to refuse to load or unload on to or from vessels in " the port or harbour of Stornaway consignments of yarn or un- " finished tweeds consigned to or despatched by the petitioners, or " any of them, or from interfering in any manner or way with the " consignment to or despatch by the petitioners, or any of them, " of consignments of yarn or unfinished tweeds consigned to or " despatched by them at the port or harbour of Stornaway ".[35]In the record the Appellants plead two grounds of action in their first and fourth pleas-in-law, which are as follows, " 1. The Respondents having illegally conspired together " to interfere with and damage the petitioners' legitimate " rights to trade as condescended upon, interdict should be " granted as craved. " 4. Separatim, and, in any event, the Respondents " having by their actings wilfully interfered with and " obstructed the petitioners' contractual relations and liberty " to exercise their trade, and having thereby caused injury " to the petitioners, interdict should be granted as craved."[36]Any evidence bearing on the fourth plea was negligible, and the Appellant made no case on it before this House, but confined his contentions to the first plea. The Lord Ordinary says, " The " petitioners aver on record that the laying on of the embargo was " the result of a conspiracy between the Respondents and repre- " sentatives of companies owning spinning mills on the Island to " injure the Petitioners' trade and unlawfully to force them to use " Island spun yarn in the manufacture of their tweed. Alternatively " they aver that the Respondents were acting in concert for the " purpose of injuring their legitimate trade. Their plea is that the " Respondents conspired together. The plea is not very happily 2 [16] " expressed, but in my view it is sufficient to cover the wider con- " spiracy and the case was argued on both alternatives." I may say at once that, in my opinion, the first plea is quite inapt to cover the wider conspiracy, and should have been amended, which could have been done, without difficulty, as the case on the wider con- spiracy has been fully dealt with, apparently without objection on this point. The Lord Ordinary held that the narrower conspiracy had been proved in the sense of joint action by the Respondents, but he held that the wider conspiracy had not been proved, and that the alleged intent of the Respondents to injure the Petitioners' trade had not been proved. In the Inner House, the learned Judges of the Second Division held that the wider combination had been proved, but (Lord Mackay dissenting) that the intent to injure had not been established. Before your Lordships the Appellants con- fined their case to the wider combination, as regards which they had the favourable decision of the Second Division. The evidence was very fully dealt with in the opinions of the learned Judges, and I find it unnecessary to deal with it in detail.[37]My Lords,[37]as regards the proof of the wider combination, I am prepared—using the words of the late Lord Justice Clerk—" to hold " that there was some kind of understanding more or less defined " between Mr. Veitch and Mr. Skinner that, if the Union took action " and imposed an embargo against the importers of yarn, the Union " in turn would be assisted by the millowners to get their 100 per " cent, membership. But I am not satisfied by the evidence that " there was any decision taken by Mr. Skinner and Mr. Veitch that " deprived Mr. Veitch of the liberty to decide for himself in con- " sultation with his own officials whether and when an embargo " should be imposed. I shall, however, take the case on the assump- " tion that a definite arrangement to impose an embargo was " reached."[38]This leaves the crucial question as to whether the Appellants have proved that the Respondents' intention was to injure the Appellants' trade, as to which the Appellants have the findings of both the lower Courts against them. The reluctance of this House to interfere with such findings, and in particular with the findings of the trial Judge, who has had the advantage of seeing the witnesses, which has repeatedly been expressed, is all the stronger in a case such as the present, in which the intention of the Respondents, both of whom gave evidence, was in issue. That Veitch, for instance, was stupid or wrongheaded, or acted without making proper enquiries may be quite consistent with the absence of any intention to injure, and the Lord Ordinary has so found; indeed, stupidity or wrongheaded- ness might tend to disprove any such intention. The Lord Ordinary sums up the evidence thus, " In the present case the immediate " purpose of Mr. Veitch and Mr. Mackenzie was to force producers " to come to an agreement regarding the selling price of tweed and " the exclusive use of Island spun yarn. The means adopted neces- " sarily inflicted injury on the Petitioners. But was the infliction " of injury Mr. Veitch's motive ? Lord Dunedin in Sorrell v. Smith, " (1925). A.C., at p. 717, suggested a test as follows:—'Was such "' a purpose the real root of the acts that grew from it, or was the "' true motive of the acts something else, such as, for instance, "' the furtherance of the defendants' own business ? ' Applying " this test the answer must be in the negative. There is no evidence " that Mr. Veitch had evinced anv malice or ill will towards anv " of the Petitioners or that he was prompted by a desire to destroy " the trade of any persons who were employing weavers and paving " them the Union rate of wages. The purpose at the root of his " action was to advance the position of the Union and its members, " however mistaken he may have been in the means he adopted [17] 3 " to secure that end. It may be that the benefits hoped to be obtained " would have been an ultimate and not an immediate consequence " of the action taken, but I do not think it would have been any " more remote than in the cases of Sorrell v. Smith and Ware and " DeFreville."[39]My Lords,[39]the critical examination of the evidence by the Appel- lants' counsel and his able argument, have entirely failed to satisfy me that I am in a position to set aside the conclusion of the Lord Ordinary; on each point of criticism in regard to which there appeared to be ground for argument, I felt satisfied that a personal observation of the witness under examination would have been a material help to the solution of the point, and this is the very founda- tion of the reluctance of an appellate court to interfere in such circumstances.[40]In this view of the facts I find it unnecessary to deal further with the previous decisions on this branch of the law, as there can be no doubt that the Appeal fails. But I desire to refer to one aspect of this case in order to make clear that, in my opinion, this case does not raise a question of law which is of im- portance and may come up for consideration in the future, and that is as to what limit is to be placed as to the means by which the pressure is operated in these cases. In the present case the pressure was applied by means of action by the dockers, who were in no sense employees in, or directly connected with, the trade in Harris tweed; but employees in this trade were members of the same Union, and the interest of the dockers and the trade employees in the Union and its welfare were mutual, and I can see no ground for holding that it was not legitimate for the Union to avail itself of the services of its docker members to promote the interests of the Union. On the other hand, I doubt if it would be legitimate for a Union to use a means of pressure with which it had no con- nection except that which was constituted by a money payment, for instance. However, I have referred to this question only in order to make clear that, in my opinion, it does not arise for decision in this case, and that I express no opinion on it. Lord Chancellor Viscount Maugham Lord Thanker- ton Lord Wright Lord Porter CROFTER HAND WOVEN HARRIS TWEED COMPANY, LIMITED, AND OTHERS v. JOHN VEITCH AND ANOTHER. Lord Wright MY LORDS, I had prepared a statement of the facts of this case, but sub- sequently I had the opportunity of considering in print the account of the facts which my noble and learned friend the Lord Chancellor has given in his Opinion. That account, which I agree with and adopt, renders a separate narrative from myself superfluous. I should, however, observe that, in regard to the issue whether certain millowners, in particular Mr. Skinner, were parties to the combination, I am prepared, like the Lord Justice Clerk, for pur- poses of this case to assume that they were. This view was strongly pressed in argument by counsel for the Appellants. It is obviously the assumption which is most favourable to them. Lord Mackay, in his dissenting judgment, forcibly relied on his conclusion that there was a compact between the Respondents and the millowners. On the whole I think it is fairer to the Appellants to proceed on that assumption. In the end it does not appear to me to affect the issue. There was clearly, in any case, combination between the two Respondents, who were both responsible Trade Union officials.[41]The cause of action set out in the Appellants' claim is for a conspiracy to injure which is a tort. The classical definition of conspiracy is that given by Willes J. in advising the House of Lords in Mulcahy v. R., L.R. 3 H.L. 306 at p. 317. " A conspiracy con- " sists not merely in the intention of two or more, but in the agree- " ment of two or more to do an unlawful act, or to do a lawful act " by unlawful means." This must be supplemented by observing that though the crime is constituted by the agreement, the civil right of action is not complete unless the conspirators do acts in pursuance of their agreement to the damage of the Plaintiffs.[42]The question is then what were the unlawful acts with which the Respondents were charged, or what were the unlawful means which they employed to do acts otherwise lawful, in other words, what is the legal right of the Appellants which is infringed, or what is the legal wrong committed by the Respondents. The concept of a civil conspiracy to injure has been in the main developed in the course of the last half century, particularly since the great case of the Mogul Steamship Co. v. McGregor, 23 Q.B.D. 598 and 1892 A.C. 25. Its essential character is described by Lord Mac- naghten in Quinn v. Leathem, 1901 AC 495 at p. 510, basing himself on Lord Watson's words in Allen v. Flood, 1898 AC 1 at p. 108, " a conspiracy to injure might give " rise to civil liability even though the end were brought about " by conduct and acts which by themselves and apart from the " element of combination or concerted action could not be " regarded as a legal wrong." In this sense the conspiracy is the gist of the wrong, though damage is necessary to complete the cause of action. The opposite view had been expressed by Palles C.B. in Kearney v. Lloyd, 26 L.R.I. 268. He held that the gist of the action was not the conspiracy itself, but the particular wrongful acts done in pursuance of it, and that the cause of action must exist if the alle- gation of conspiracy were struck out. Later cases, however, have decisively held the contrary, as I shall show. The rule may seem anomalous, so far as it holds that conduct by two may be actionable if it causes damage, whereas the same conduct done by one, causing the same damage, would give no redress. In effect the Plaintiff's right is that he should not be damnified by a conspiracy to injure [19] 2 him, and it is in the fact of the conspiracy that the unlawfulness resides. It is a different matter if the conspiracy is to do acts in themselves wrongful, as to deceive or defraud, to commit violence, or to conduct a strike or lock-out by means of conduct prohibited by the Conspiracy and Protection of Property Act, 1875, or which contravenes the Trade Disputes and Trade Unions Act of 1927. But a conspiracy to injure is a tort which requires careful definition, in order to hold the balance between the Defendant's right to exercise his lawful rights and the Plaintiff's right not to be injured by an injurious conspiracy. As I read the authorities, there is a clear and definite distinction which runs through them all between what Lord Dunedin in Sorrell v. Smith, [1925] A.C. 700 at p. 730, calls " a conspiracy to injure " and " a set " of acts dictated by business interests." I should qualify " busi- " ness " by adding " or other legitimate interests," using the con- venient adjective not very precisely. It may be a difficult task in some cases to apply this distinction. It depends largely on matters of fact, but also on a legal conception of What is meant by " inten- " tion to injure." The Appellants contend that there was here an intention to injure even though it is negatived that the Respondents were actuated by malice or malevolence. In substance what the Appellants say is that the issue between the millowners and the yarn importers was one between two sets of employers, in which the men were not directly concerned, and that the Union's action was an unjustifiable and meddlesome interference with the Appellants' right to conduct their own businesses as they pleased, and that the Union were pushing into matters which did not concern them. The Appellants further say, as I understand their case, that this unjustifiable intrusion was due to the Union's desire to secure the assistance of the millowners towards the Union's object, which was to get 100 per cent, membership in the textile workers, and thus there was no common object among the two main parties to the combination; each set had its own selfish object. In effect, it was said, the Union were bribed by the millowners to victimize the Appellants in their trade by the promise of help in the matter of the Union membership, which was entirely foreign to the question of the importation of yarn. These considerations, it was said, constituted "malice" in law, even if there was no malevolence, and prevented the Respondents from justifying the injury which they wilfully did to the Appellants' trade, because they could not assert any legitimate interest of their Union which was relevant to the action taken. Actual malevolence or spite was, it was said, not essential. There was no genuine intention to promote Union interests by the stoppage of importation. The interference with the Appel- lants' trade by stopping import of yarn was wilful and ultroneous action on the part of the Union supported by no relevant Union interest. It was malicious or wrongful because it was intentionally and unjustifiably mischievous, even though not malevolent.[43]Before I refer to the authorities, there are some preliminary observations which I desire to make. I shall avoid the use of what Lord Bowen described as the " slippery " word " malice " except in quotations. When I want to express spite or ill will, I shall use the word malevolence. When I want to express merely intentional for- tious conduct I shall use the word wrongful. As the claim is for a tort, it is necessary to ascertain what constitutes the tort alleged. It cannot be merely that the Appellants' right to freedom in con- ducting their trade has been interfered with. That right is not an absolute or unconditional right. It is only a particular aspect of the citizen's right to personal freedom, and like other aspects of that right is qualified by various legal limitations, either by statute or by common law. Such limitations are inevitable in organised societies where the rights of individuals may clash. In commercial affairs each trader's rights are qualified by the right of others to 3 20] compete. Where the rights of labour are concerned, the rights of the employer are conditioned by the rights of the men to give or withhold their services. The right of workmen to strike is an essential element in the principle of collective bargaining. It is true that under the Combination Act of 1800 it was a criminal offence for workmen to combine together for the purpose of securing higher wages or shorter hours of work or of controlling employers on the conduct or management of their business. That Act was repealed by the Acts of 1824 and 1825, but these Acts introduced various restrictions on the conduct of strikes. But as Lord Bramwell said in Mogul Steamship Co. v. McGregor (supra), at p. 47, " a " combination of workmen, an agreement among them to cease " work except for higher wages, and a strike in consequence, was " lawful at common law; perhaps not enforceable inter se, but not " indictable." In the report of R. v. Rowlands, 17 Q.B. 671 (1851), (a criminal case, but the same principles apply in a civil suit), Erle J. (at p. 686, note (b) 2) directed the jury 'The " law is clear that workmen have a right to combine for " their own protection and to obtain such wages as they choose " to agree to demand. I say nothing at present as to the legality " of other persons, not workmen, combining with them to assist in " that purpose. As far as I know there is no objection in point of " law to it." He added that while the law allowed them to com- bine for the purpose of obtaining a lawful benefit for themselves, it gave no sanction to combinations which had for their immediate purpose the hurt of another. I attach great value to that clear and simple statement, which has not been superseded but confirmed by the more elaborate later discussions. It is clear that this right of workmen cannot be generally exercised without interfering with the employers' free conduct of their own business. Erle J. added that either side had the right to study to promote their own advan- tage and to combine with others for that purpose. His summing up was quoted with approval by Lord Justice Bowen in the Mogul Steamship Co.'s case, 23 Q.B.D. 598 at pp. 618, 619, as applying equally to traders as to employers and workmen. It was also approved in the same case by Fry L.J. at p. 625. The same principle is again stated in Allen v. Flood (supra), Quinn v. Leathem (supra), Ware and de Freville, Ltd. v. Motor Trade Association, 1921, 3 K.B. 40, and in Sorrell's Case (supra). The language of Erle J. is certainly a clear statement of a far-reaching principle. The same idea is more elaborately enunciated by Lord Herschell in Allen v. Flood (1898) AC 1 at p. 129:
" I " understood it to be admitted at the Bar and it was indeed " stated by one of the learned Judges in the Court of Appeal, " that it would have been perfectly lawful for all the ironworkers " to leave their employment and not to accept a subsequent en- " gagement to work in the company of the Plaintiffs. At all " events I cannot doubt that this would have been so. I cannot " doubt either that the Appellant [the Trade Union official] or " the authorities of the union would equally have acted within " his or their rights if he or they had ' called the men out.' They " were members of the union. It was for them to determine " whether they would follow or not follow the instructions of its " authorities, though no doubt if they had refused to obey any in- " structions which under the rules of the union it was competent " for the authorities to give, they might have lost the benefits they " derived from membership. It is not for your Lordships to express " any opinion on the policy of trade unions, membership of which " may undoubtedly influence the action of those who have joined " them. They are now recognised by law; there are combinations " of employers as well as of employed. The members of these " unions, of whichever class they are composed, act in the interest " of their class. If they resort to unlawful acts they may be indicted " or sued. If they do not resort to unlawful acts they are entitled [21] 4 " to further their interests in the manner which seems to them best " and most likely to be effectual."
This statement was criticised adversely by Lord Lindley in Quinn's Case at p. 537, but in my opinion it states the law correctly.[44]It is thus clear that employers of workmen or those who like the Appellants depend in part on the services of workmen, have in the conduct of their affairs to reckon with this freedom of the men and to realise that the exercise of the men's rights may involve some limitation on their own freedom in the management of their busi- ness. Such interference with a person's business, so long as the limitations enforced by law are not contravened, involves no legal wrong against the person. In the present case the Respondents are sued for imposing the " embargo," which corresponds to calling out the men on strike. The dockers were free to obey or not to obey the call to refuse to handle the Appellants' goods. In refusing to handle the goods they did not commit any breach of contract with anyone; they were merely exercising their own rights. But there might be circumstances which rendered the action wrongful. The men might be called out in breach of their contracts with their employer, and that would be clearly a wrongful act as against the employer, an interference with his contractual right, for which damages could be claimed not only as against the contract-breaker, but against the person who coun- selled or procured or advised the breach. This is the principle laid down in Lumley v. Gye, 2 E. & B. 216, which Lord Macnaghten in Quinn v. Leathem (supra), at p. 510, defined to be that " a violation " of legal right committed knowingly is a cause of action and it is " a violation of legal right to interfere with contractual relations " recognised by law if there be no sufficient justification for the " interference." That is something substantially different from a mere interference with a person's qualified right to exercise his free will in conducting his trade. A legal right was violated and needed justification, if it could be justified. This distinction was drawn by the majority of the Lords in Allen v. Flood (supra), who dis- approved of the dicta in Bowen v. Hall, 6 QBD 333 , and Temper- ton v. Russell, 1893, 1 Q.B. 715, that every person who persuades another not to enter into a contract with a third person may be sued by that third person if the object were to benefit himself at the expense of such person. But in Allen v. Flood (supra) this House was considering a case of an individual actor, where the element of combination was absent. In that case, it was held, the motive of the Defendant is immaterial. Damage done intentionally and even malevolently to another, thus, it was held, gives no cause of action so long as no legal right of the other is infringed. That I take to be the English rule laid down by this House in Bradford Corporation v. Pickles (1895) AC 587 , and in Allen v. Flood (supra), though in Sorrell v. Smith (supra), at p. 713, Lord Cave doubts the proposition and says that in general what is unlawful in two is not lawful in one. But this seems to be incon- sistent with the express rulings in Allen v. Flood (supra). Though eminent authorities have protested against the principle, it must, I think, be accepted at present as the law in England. The precise issue does not arise in this case, which is concerned with combina- tion or conspiracy. I need not consider whether any qualification may hereafter be found admissible.[45]Thus for purposes of the present case we reach the position that apart from combination no wrong would have been committed. There was no coercion of the dockers. There were no threats to them. They were legally free to choose the alternative course which they preferred. In Quinn v. Leathem (supra) a wide meaning was given to words like threats, intimidation or coercion, especially by Lord Lindley, but that was not the ratio decidendi adopted by the House. These words, as R. S. Wright pointed out in his book on 5 [22] Criminal Conspiracy, are not terms of art and are consistent either with legality or illegality. They are not correctly used in the circumstances of a case like this. In Allen v. Flood, Ware's case, and Sorrell's case, a more accurate definition was given. I should also refer to the admirable discussion by Peterson J. in Hodges v. Webb (1920), 2 Ch. 70. 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. In Lord Buckmaster's words in Sorrell v. Smith (supra), at p. 747, " A threat " to do an act which is lawful cannot create a cause of action " whether the act threatened is to be done by many or by one." No doubt the use of illegal threats or the exercise of unlawful coercion would create by itself a cause of action, but there was nothing of the sort in this case.[46]The only ground in this case on which the Appellants could establish a cause of action in tort is by establishing that there was a conspiracy to injure, which would take the case out of the general ruling in Allen v. Flood (supra) and bring it within the exception there reserved, e.g. by Lord Herschell at p. 123, when he said, "It is certainly a general rule of our law that an act prima " facie lawful is not unlawful and actionable on account of the " motive which dictated it. I put aside the case of conspiracy, which " is anomalous in more than one respect." Lord Watson, at p. 108, made a similar reservation. Lord Macnaghten, at p. 153, said that the decision in Allen v. Flood (supra) could have no bearing on any case which involved the element of oppressive combination. These reservations were acted upon in Quinn v. Leathem (supra) to which I shall refer later. That the decision in that case turned on con- spiracy cannot now be doubted, especially after Ware's case (supra) and Sorrell's case (supra).[47]The distinction between conduct by one man and conduct by two or more may be difficult to justify. Lord Sumner in Sorrell's case (supra) puts the very artificial case of the owner of a large busi- ness who gave a small share to a partner and " conspired " with him. For practical purposes the position there is the same as if he had remained a sole trader. The fact that the sole trader em- ployed servants or agents in the conduct of his business would not in my opinion make these others co-conspirators with him. The special rule relating to the effect of a com- bination has been explained on the ground that it is easier to resist one than two. That may appear to be true if a crude illustration is taken, such as the case of two men attacking another, but even there it would not always be true if, for instance, the one man was very strong and the two very weak. And the power of a big corporation or trader may be greater than that of a large number of smaller fry in the trade. This explanation of the rule is not very satisfactory. The rule has been explained on grounds of public policy. The Common Law may have taken the view that there is always the danger that any combination may be oppressive, and may have thought that a general rule against injurious combinations was desirable on broad grounds of policy. Again any combination to injure involves an element of deliberate concert between individuals to do harm. Whatever the moral or logical or sociological justification, the rule is as well established in English law as I here take to be the rule that motive is immaterial in regard to the lawful act of an individual, a rule which has been strongly criticised by some high legal authorities who would solve the apparent antinomy by holding that deliberate action, causing injury, is actionable, whether done by one or by several. [23] 6 A conspiracy to injure involves ex vi termini an intention to injure, or more accurately, a common intention and agreement to injure. Both " intention " and " injure " need definition. The word " injure " is here used in its correct meaning of " wrongful harm," damnum cum injuria, not damnum absque injuria. That obviously raises the question, when is the harm wrongful ? " Inten- tion " is generally determined by reference to overt acts and to the circumstances in which they are done. It is in this way that an intention to deceive, which is an essential element in the action of deceit is ascertained. Lord Watson in Allen v. Flood (supra) at p. 98 warns against 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." Erle J., in the passage I have referred to in R. v. Rowlands (supra) at p. 686, seems to have in mind an external object when he distinguishes combinations for the purpose of obtaining a lawful benefit for the combiners from com- binations which have for their immediate purpose the hurt of another. I do not think that Erle J., in these words intends a con- trast between what is immediate and what is remote. If he so intended, the later authorities would, I think, contradict such a view. A competitive combination of traders to undercut prices may be said to have the immediate result of excluding rivals from the trade, but if its real object is the ultimate increase of business and profits by the traders it is lawful (Mogul case, supra). A per- fectly lawful strike may aim at dislocating the employer's business for the moment, but its real object is to secure better wages or conditions for the workers. The true contrast is, I think, between the case where the object is the legitimate benefit of the combiners and the case where the object is deliberate damage without any such just cause. The Courts have repudiated the idea that it is for them to determine whether the object of the combiners is reason- ably calculated to achieve their benefit. The words " motive," " object," " purpose," are in application to practical matters diffi- cult strictly to define or distinguish. Sometimes mere animus, such as spite or ill will, malevolence or a wanton desire to harm without any view to personal benefit is meant. But motive is often used as meaning purpose, something objective and external, as con- trasted with a mere mental state. " Object" is, I think, the most appropriate word. How far malevolence is to be regarded as an essential element in the law of conspiracy has led to differences of opinion, particularly in Sorrell's case (supra). Proof of malevolent feelings, coupled with proof that the combiners had in view no tangible benefit to themselves would clearly I think be enough to show that the combination was wrongful. But it does not follow that malevolence is a necessary element to constitute the tort. Lord Cave in Sorrell's case at p. 712 stated the law, at least for purposes of that case, in two propositions. "(1) A combination of two or " more persons wilfully to injure a man in his trade is unlawful " and, if it results in damage to him, is actionable.(2) If the real " purpose of the combination is not to injure another but to forward " or defend the trade of those who enter into it, no wrong is com- " mitted and no action will lie although damage to another ensues." This double proposition, seems to me to be substantially complete and accurate, though it is no doubt in need of qualification; for instance, it is limited to trade and does not in terms refer to mixed objects. But while it seems to me to emphasise the contrast I have found throughout the cases, it does not mention malevolence. I do not think it differs in substance from Lord Dunedin's view in the same case. At p. 730 he states the contrast between a conspiracy to injure on the one hand and on the other a set of acts dictated by business interests. When he emphasises that a conspiracy to injure involves mens rea, the guilty intention, he does not necessarily mean that malevolence is essential. Lord Buckmaster takes the same contrast between the case where the 7 [24] purpose of the combination is the deliberate injury of a third person and where it is the promotion of legitimate trade interests: Lord Sumner, however, seems, at least in part of his opinion, to regard proof of actual spite, malevolence or ill will as essential the cause of action for conspiracy to injure. At p. 737 he draws a parallel from the law of defamation. " Just as defamatory words " uttered on a privileged occasion cease to be words which the " speaker is entitled to utter if he is actuated by express malice, so " the pursuit of one's own interests at a rival's expense which pure " commercial selfishness would justify passes the limit of legal right " and enters the field of actionable wrongdoing, if for that purity " there is substituted independent malevolence towards others." On the other hand at p. 741 he says, " I incline to agree that the " object or purpose of the aggressive action of a combination is the " principal thing to be considered," though he adds doubts and qualifications principally in reference to mixed motives.[48]On this question whether malevolence is a necessary element in conspiracy to injure there appears to be some opposition between Lord Sumner and Lord Cave, who not only leaves out that element in stating his two propositions, but in express terms says that a motive of spite is not an essential element of the offence. Lord Atkinson agreed with Lord Cave. Lord Dunedin does not in terms expressly mention it. He is content to rest upon mens rea, a desire to injure. Lord Buckmaster agrees generally with Lord Dunedin though in one place he says that the onus is on the Plaintiff to prove that the act was spiteful and malicious. I do not read these opinions as differing on the essential point that where the acts are per se lawful, the presence or absence of intention to injure is the determining feature, and that such an in- tention is rebutted by a finding that the combiner's real object was to advance their interests. On principle I am of opinion that malevo- lence is no more essential to the intent to injure, the mens rea, than it is to the intent to deceive. On practical grounds also I prefer that view. To leave to a jury to decide on the basis of an internal mental state, rather than on the facts from which intent is to be inferred, may be to leave the issue in the hands of the jury as clay to mould at their will. After all, the Plaintiff has to prove actual damage which can only result from things done. Mere malevolence does not damage anyone. I cannot see how the pursuit of a legiti- mate practical object can be vitiated by glee at the adversary's expected discomfiture. Such glee, however deplorable, cannot affect the practical result. I may add that a desire to injure does not necessarily involve malevolence. It may be motivated by wantonness or some object not justifiable.[49]As to the authorities, the balance, in my opinion, is in favour of the view that malevolence as a mental state is not the test. I accord- ingly agree with the Appellants' contention that they are not con- cluded by the finding that the Respondents were not malevolent. It thus becomes necessary to consider the further arguments on which the Appellants base their claim to succeed. I approach the question on the assumption that the Appellants have to prove that they have been damnified by tortious action, they do not prove that by showing that they have been harmed by acts done by the Respondents in combination, these acts being apart from any question of combination otherwise within the Respondents' rights. It is not then for the Respondents to justify these acts The Appellants must establish that they have been damnified by a conspiracy to injure, that is, that there was a wilful and concerted intention to injure without just cause, and consequent damage. That was the view accepted by Lords Dunedin and Buckmaster in Sorrell s case (supra). Lord Sumner proposes the question without deciding it. But the form in which he states it [25] 8 seems to me to suggest the answer. It is not a question of onus of proof. It depends on what is the cause of action. The Plaintiff has to prove the wrongfulness of the Defendant's object Of course, malevolence may be evidence tending to exclude a legitimate object or to establish a wrongful object. I have been attempting to define the legal background of the tort, a conspiracy to injure, before I seek to express my opinion on the Appellants' contentions. I have not sought to reconcile all that has been said on the question in the authorities. For various reasons, perhaps obvious enough, some due to the earlier combina- tion laws, some perhaps influenced by personal predilections of some judges in the earlier years of this century, reconciliation of all the observations is impossible. But after all, law does not depend on balancing expressions, as R. S. Wright in his Law of Criminal Conspiracy at p. 51 wisely observed. I have attempted to state principles so generally accepted as to pass into the realm of what has been called jurisprudence, at least in English Law, which has for better or worse adopted the test of self-interest or selfishness as being capable of justifying the deliberate doing of lawful acts which inflict harm, so long as the means employed are not wrongful. The Common Law in England might have adopted a different criterion and one more consistent with the standpoint of a man who refuses to benefit himself at the cost of harming another. But we live in a competitive or acquisitive society, and the English Common Law may have felt that it was beyond its power to fix by any but the crudest distinctions the metes and bounds which divide the rightful from the wrongful use of the actor's own freedom, leaving the precise application in any particular case to the jury or judge of fact. If further principles of regulation or control are to be introduced, that is matter for the Legislature. There are not many cases in which the Court has had to consider these problems. Actions of this character are not of everyday occurrence like actions for negligence. I must howeverYefer to the details of certain cases. I shall first refer to Quinn v. Leathem (supra), decided by this House on appeal from Ireland. In outline the facts were very simple. Leathem, a butcher, had been employing non-Union labour. The policy of the Union was that only its members should be employed. Leathem was willing that his men should join the Union and offered to pay their fines and entrance money. The Defendants, the Union officials, refused that offer and said the men could not be admitted to the Union but must walk the streets for twelve months. Leathem refused to discharge the men. A few months later he was warned that if he continued to employ non-Union men, the men who worked for Munce, one of Leathem's customers, would be called out unless Munce ceased to take his meat from Leathem. Munce thought it more prudent to cease to get his meat from Leathem, who lost the benefit of his customer's trade. This was the damage claimed in the action in which a conspiracy to injure was alleged. I disregard the case of the man Dickie who was called out in breach of his contract with Leathem.[50]Apart from the savage expressions used by the defendants and perhaps the desire of the defendants that the men should walk the streets for twelve months, and the circumstance that Leathem had offered to satisfy the Union's demands, the case might well have been regarded as one in which ordinary measures had been taken to promote the Union's interests by excluding non-Union labour. In Ware's case (supra) at p. 68 Scrutton L.J. pointed out the close parallel with the Glasgow Fleshers' case, 35 S.L.R. 645, a striking case of " exclusive dealing " in trade affairs enforced by threats or warnings by the defendants in concert that they would withhold their custom from the salesmen if they sold meat to the plaintiff. 9 [26][51]The object was to limit competition. The decision in the Glasgow Fleshers case (supra) was approved by this House in Sorrell's case (supra) and also by Lord Lindley in Quinn's case at p. 539. But there was in Quinn's case the special evidence of vindictive purpose. It was thus a question for the jury to decide whether there was an intention to injure or an intention to promote the Union's objects, or perhaps more exactly what was the predominant object. Fitzgibbon L.J., who tried the case, put to the jury the questions: Did the Defendants or any two or more of them maliciously con- spire to induce the Plaintiff's customers or servants named in the evidence or any of them not to deal with the Plaintiff or not to continue in his employment, and were such persons so induced not to do so. The jury answered, Yes. The Judge told the jury that acts done with the object of increasing the profits or raising the wages of any combination of persons, such as the society to which the Defendants belonged, by reasonable and legitimate means were perfectly lawful and were not actionable so long as no wrongful acts were maliciously—that is to say intentionally—done to injure a third party. He put the usual and correct alternative between acts done to secure or advance the combiners' own interests and acts intended and calculated to injure the Plaintiff in his trade. He told the jury that intention was to be inferred from acts and conduct proved. There is no report of the summing up as a whole. It is useless to speculate whether the jury might not have properly found that if the objects or motives were mixed the pre- dominant motive or object was to advance the Union's policy while the malevolent desire to punish Leathem was subordinate. It was for the jury to decide; they decided against the Defendants, and there was evidence to support their verdict. Some may ques- tion whether they fully appreciated what were the actual interests or objects of a Trade Union. But this is fact, not law.[52]In the Irish Court of Appeal, where the case is entitled Leathem v. Craig, 1899, 2 I.R. 667, the judgment which most appeals to me is that of Holmes L.J., which Lord Robertson adopted in toto in his speech in this House, and Lord Macnaghten approved. Holmes L. J. said that if there was illegality in a combination it must be looked for in the object proposed. He treated the finding of the jury as decisive.[53]It seems to me that much of the discussion which has centred round Quinn's case (supra) merely deals with the issue of fact, and either approves or disapproves of the justness of the jury's finding. But the decision of the House is of great importance as giving the authority of this House to the principle that a conspiracy to injure gives a cause of action. That rule was well established and had been applied in Temperton v. Russell (supra), and approved by this House in Allen v. Flood (supra). Quinn's case (supra) was in fact the complement of Allen v. Flood (supra). The latter case gave effect to the rule where there was no combination, the former to the rule where there was combination. Of the six Lords of Appeal who took part in the debate in Quinn's case (supra) the ratio decidendi of five was based upon a conspiracy to injure. I refer to Lord Halsbury (loc. cit.) at p. 505, Lord Macnaghten (p. 511), Lord Shand (p. 513), Lord Robertson (p. 532), where he adopts Holmes L.J.; Lord Brampton at pp. 527 and 528. The views of these Lords are enough to decide what is the ratio decidendi adopted in this House. Lord Lindley (at p. 539) seems to base his judgment on coercion and threats by numbers, but without clearly defining what he means by these neutral terms which have since been elucidated in this House. I do not think it necessary further to consider the cross currents and observations which are found in some of the speeches. Lord Shand sums up his view (and, as it appears to me, the ratio decidendi of the House) very clearly and accurately at p. 515. ' Their [the Defendants'] acts were wrongful and malicious [27] 10 " in the sense found by the jury, that is to say, they acted by con- " spiracy, not for any purpose of advancing their own interests as " workmen, but for the sole purpose of injuring the Plaintiff in his " trade." So understood, Quinn's case (supra) does not help the Appellants here unless they can get rid of the findings of the Courts below. Before I examine the grounds on which they seek to do this I ought to refer to some other cases.[54]One is Giblan v. National Amalgamated Labourers' Union, 1903, 2 K.B. 600, where the jury found that the Defendants' acts in pre- venting the Plaintiffs from getting employment were done in the case of the one to prevent him from getting or retaining employ- ment, and in the case of the other to compel him to pay arrears of defalcations of which he was guilty. The facts were somewhat complicated. As Lord Herschell pointed put in Allen v. Flood (supra) at p. 131, the use of the word " punishment " may be mis- leading; it may mean mere vindictive vengeance or it may mean an intention to deter others from similarly offending. Equally the desire to enforce repayment of defalcations may be actuated by either of the same motives, to say nothing of desire to get the money. It is clear that the jury took the view more adverse to the Defen- dants. Much that was said by the Lords Justices in the case would require careful consideration in view of earlier and later decisions of this House. Romer L.J., however, wisely observes at p. 618 that in determining whether the injurious action is " justified" regard must be had to the circumstances of each case as it arises and that it is not practically feasible to give an exhaustive definition of the word to cover all cases. The facts in Giblan's case (supra) were so peculiar that I cannot derive any general guidance from it. I may note in particular that the jury found that the trouble did not arise because the Union men objected to work with the Plaintiffs. I cannot find any analogy between the facts in that case and the facts as found in the present case.[55]On the other hand, two later cases show how far the Courts have gone in upholding the rights of persons to freedom to pursue their own interests in their trade even at the cost of seriously impeding the freedom in a practical sense of other persons in their trade. Perhaps the most striking case of this nature is Ware's case (supra), approved by this House in Sorrell's case (supra) and later applied in Thorne v. Motor Traders' Association, 1937 A.C. 797. The Defendants were an Association of motor car manufacturers who adopted a scheme and rules for maintaining fixed prices for their goods. These prices were published. If any person departed from these published prices his name was put on a " stop list" and there- upon no member of the Association was to supply him. Further, if any person did supply him, that person's name would also be placed on the " stop list" and he would be similarly pilloried. Persons on the " stop list" were, however, allowed to purge their offence by paying a fine if the Association accepted it. The Plaintiff, a motor dealer who was not a member of the Association, had been placed on the " stop list" in accordance with the scheme. The scheme was a most ruthless and efficient system aimed at securing the mutual benefit of the associated traders at whatever loss or incon- venience to outsiders. The Plaintiff complained that all he wanted was to exercise his lawful freedom to buy and sell cars as he desired. It was contended that the system adopted by the Defendants went beyond any previous decision. The Defendants, it was submitted, were saying, " If you continue to deal with the " Plaintiff you shall not only cease to deal with us but we shall take " steps to prevent others from dealing with you." But the Court of Appeal held that no legal wrong was committed, because the Defendants had done nothing unlawful, and the combination was not a wrongful conspiracy because its object was not to injure, but was the lawful object of promoting their business interests, as 11 [28] they understood them, by preventing price cutting and securing price maintenance. The elaborate system was devised solely with that object. The Court of Appeal rejected the contention that the method adopted amounted to coercion or threats. On this latter topic much the same opinion was expressed by this House in Sorrell v. Smith (supra), already referred to by me. Apart from the general exposition of the law of civil conspiracy to injure which it contains it is important in dealing with the present Appellant's submissions because it placed on a wide basis the business interests, protection or advancement of which would prevent it being held that the Defendants had acted with intention to injure the Plaintiff. The Defendants, an Association of newspaper pro- prietors, in the course of a dispute between two rival Associations of newspaper dealers, had intervened to support the policy of one Association by stopping supplies to the Plaintiff, a retail dealer who had adhered to the side of the other. Russell J., as he then was, the trial Judge, held that the Defendants had no justification for interfering with the Plaintiffs' freedom of trade, because they had no direct interest in the conflict between the two Associations. In Lord Sumner's words at p. 731, the Judge's view was that the Defendants were well meaning busybodies who intimidated third parties, and so meddled with the Plaintiffs' business in a matter which was no business of theirs because, as he held, they wanted a controlling decision in the dispute. The Court of Appeal and this House reversed the decision of the Judge on the short ground that the real purpose of the newspaper proprietors was to promote the circulation of their papers, and that they did so by lawful means. I think this line of reasoning applies here to answer the Appel- lants' contention that the Respondents or the Union had no direct interest in the importation of yarn. On the facts found, rightly as I think, they were of opinion that the prosperity of the industry in Harris Tweed was jeopardised by the importation. It is not for the Court to decide whether this opinion was reasonable or not. It was a genuine opinion. It cannot be said that it was a mere sham intended to cloak a sinister desire to injure the im- porters. The Respondents had no quarrel with the yarn importers. Their sole object, the Courts below have held, was to promote their Union's interests by promoting the interest of the industry on which the men's wages depended. On these findings, with which I agree, it could not be said that their combination was without sufficient justification. Nor would this conclusion be vitiated, even though their motives may have been mixed, so long as the real or predominant object, if they had more than one object, was not wrongful. Nor is the objection tenable that the Respondent's real or predominant object was to secure the employer's help to get 100 per cent, membership of the Union among the textile workers. Cases of mixed motives or, as I should prefer to say, of the presence of more than one object, are not uncommon. If so, it is for the jury or judge of fact to decide which is the predominant object, as it may be assumed the jury did in Quinn's case (supra) when they decided on the basis that the object of the combiners was vindictive punishment, not their own practical advantage. A curious instance of mixed motives or objects is taken by Andrews J., in his interesting judgment in the Divisional Court in Leathem v. Craig (supra) (loc. cit. at p. 674), from Kearney v. Lloyd (supra), where the Defendants were parishioners who had combined to withhold their subscriptions from the incumbent, partly, as the jury found, with the intention of promoting the religious interests of the parish, and partly with the intention of obliging the incum- bent to resign. Andrews J. expressed the view that the former was the main and ultimate object. The case however was eventu- ally decided on other grounds. I may here note that the doctrine of civil conspiracy to injure extends beyond trade competition and labour disputes. Thompson [29] 12[56]v. British Medical Association, 1924 AC 764 , shows that it may extend to the affairs of a profession, as was expressly stated in that case at p. 771 in the judgment of the Privy Council. By way of contrast, Gregory v. Duke of Brunswick, 6 M. & G. 953, may be regarded as a striking illustration of what might be held to constitute a conspiracy to injure; what was alleged was a conspiracy to hiss an actor off the stage in order to nun him. To what legitimate interests other than those mentioned the general doctrine may extend I do not here seek to define, since beyond question it extends to the present case, whether the object of the action were the prosperity of the industry or the obtaining 100 per cent, membership. But the objects or purposes for which combina- tions may be formed are clearly of great variety. It must be left to the future to decide on the facts of the particular case, subject to the general doctrine, whether any combination is such as to give rise to a claim for a conspiracy to injure.[57]But the object of securing 100 per cent. Union membership, if it were operative in inducing the Respondents to combine with the employers, was relied on by the Appellants on other grounds as vitiating the combination. It was objected that there could be no combination between the employers and the Union because their respective interests were necessarily opposed. I think that is a fallacious contention. It is true that employers and workmen are often at variance because the special interest of each side conflicts in a material respect as, for instance, in questions of wages, con- ditions of hours of work, exclusion of non-Union labour. But apart from these differences in interest, both employers and work- men have a common interest in the prosperity of their industry, though the interest of one side may be in profits and of the other in wages. Hence a wider and truer view is that there is a com- munity of interest. That view was acted upon in the present case in regard to the essential matter of yarn importation. As to the separate matter of the Union membership, while that was something regarded as important by the Respondents it was probably regarded by the employers as a matter of indifference to them. It was, in any case, a side issue in the combination even from the Respondents' point of view. I may add that I do not accept, as a general propo- sition, that there must be a complete identity of interest between parties to a combination. There must, however, be sufficient identity of object, though the advantage to be derived from that same object may not be the same. The Appellants have further contended that the " deal" referred to in the Respondent Veitch's letter was a bargain by which the Union sold to the employers the dockers' aid in return for the employers' aid in regard to Union membership. In other words, the contention was that the Respondents or the Union were bribed and were mercenaries, not interested in the embargo except for the reward which was in its nature unrelated to the embargo. The facts, however, were not as the contention assumes, so that I need not discuss whether a party to a combination whose interest was merely separate and mercenary, could ever be held to have a legitimate interest or justification for harm done in pursuance of the combination. I need add merely a few words on the objec- tion that the embargo was the act of the dockers for the benefit, not of themselves, but of the textile workers. It is enough to say that both sections were members of the Union, and there was in my opinion a sufficient community of interest even if the matter is regarded from the standpoint of the men, as individuals, and not from the standpoint of the Respondents, who were the only parties sued. Their interest, however, was to promote the advantage of the Union as a whole.[58]In my opinion, the judgment appealed from should be affirmed and the appeal dismissed.[59]Lord Chancellor[60]Viscount Maugham[61]Lord[62]Thanker- ton[63]Lord Wright[64]Lord Porter CROFTER HAND WOVEN HARRIS TWEED COMPANY, LIMITED AND OTHERS v. VEITCH AND ANOTHER. Lord Porter MY LORDS,[65]The circumstances relevant to be considered in this case extend over a considerable period and the conclusions to be drawn from them demand a close scrutiny of the evidence. I need not state the facts; that has already been done, but I must set out the inferences which have been drawn from them and consider whether those arrived at by the Courts below and particu- larly by the Lord Ordinary, have been shown to be wrong.[66]Apart however from the facts, the arguments have ranged over a wide area of somewhat obscure law as to which so far as it is necessary your Lordships must find a solution.[67]In a matter so difficult, however, I should not feel justified in expressing a concluded opinion upon any matter which is not essential for the determination of the case. I propose therefore to state with what accuracy I can the exact findings upon which I think a conclusion of law has to be pronounced.[68]It is unnecessary to emphasize the principle so often recognised by your Lordships, that in all cases where facts have to be reviewed, it is undesirable that the findings of the Courts below should be disturbed by a Court of Appeal unless it appears that those findings are clearly wrong, and more especially that it is undesirable to do so where the conclusions reached must to a large extent depend upon the demeanour of the witnesses and the impression formed by a tribunal which has seen them and can judge of their honesty and accuracy.[69]In the present case the Court had to determine the purpose, motive, intention, call it what you will, of Mr. Veitch and Mr. Mackenzie. I cannot find that the Lord Ordinary, or indeed the Inner House, thought either of them untruthful or dishonest. It would have been possible to judge them to be men who clearly foresaw the injury which their acts would produce and to have intended that injury, or to have thought them muddle-headed, obstinate and prejudiced, but still honestly desirous of doing what they considered beneficial to their Trade Union and anxious only to promote its interests, even though their acts might be prejudicial to some or all of the employers of the labour which they represented. Both Courts took the latter view. One cannot be too logical in these matters or expect a defender to have an exact apprehension of the consequences of his acts or clearly to appreciate how the methods he adopts for effecting the end at which he aims, will work. His action may inevitably cause injury, yet that may not be his object.[70]The case which is under consideration seems to me to be pre- eminently one in which an appellate tribunal should be guided by the opinion of the judge who saw and heard the witnesses, and I do not find myself qualified to criticize or correct his conclusions as to the purpose which the defenders had in mind in following the path along which they travelled. I should allow myself more latitude in dealing with the question whether there was a combination between the mill-owners or some of them and the two defenders sued, because the material for judg- ment is, I think, more abundant and because the Inner House has taken a view contrary, it is true, to that of the Lord Ordinary, but still one which must be shown to your Lordships to be wrong before it is interfered with. [31] 2[71]Having these considerations in mind, I find myself unable to differ from the Lord Ordinary when he concludes that there was no conspiracy to injure, and if for my own part I had to decide the further question whether a combination between millowners and defenders had been proved, I should not feel justified in forming an opinion contrary to his, but in agreement with the opinion already expressed by the Lord Chancellor should not consider this combination established. I am the more emboldened to express this view as I think it has the support of the Inner House of the Lord Justice Clerk and that Lord Wark, if he had himself had to determine it, would have been of the same opinion, though undoubtedly Lord Fleming and Lord Mackay take the other view. But the Lord Justice Clerk thought there was some kind of under- standing more or less defined between Mr. Veitch and Mr. Skinner to the effect that ii the Union took action and imposed an embargo against the importers of yarn, the Union in turn would be assisted by the mill-owners to get their 100 per cent, membership, and I understand some of your Lordships to agree that the wider com- bination has been established. I am therefore prepared to treat the case upon that footing.[72]If the meaning of a combination to injure were plain and if a finding that it had not been proved were enough, the view that there had been no combination to injure would be conclusive of the case. But as both the meaning of the phrase and the question whether a mere absence of intention to injure is all that is required to absolve the defenders from liability, are both in dispute, it is first of all necessary to state exactly what I believe the finding of the Lord Ordinary to have been. It is, I think, set out succinctly in the following paragraph:
" In the present case the immediate purpose of Mr. Veitch " and Mr. Mackenzie was to force producers to come to an agree- " ment regarding the selling price of tweed and the exclusive use " of Island spun yarn. The means adopted necessarily inflicted " injury on the Petitioners. But was the infliction of injury Mr. "
Veitch's motive ? Lord Dunedin in Sorrell v. Smith (1925 A.C. " at p. 717) suggested a test as follows. ' Was such a purpose the "' real root of the acts that grew from it, or was the true motive "' of the acts something else, such as for instance, the furtherance "' of the defendant's own business ?' Applying this test the answer " must be in the negative. There is no evidence that Mr. Veitch " had evinced any malice or ill will towards any of the Petitioners " or that he was prompted by a desire to destroy the trade of any " persons who were employing weavers and paying them the Union " rate of wages. The purpose at the root of his action was to " advance the position of the Union and its members, however " mistaken he may have been in the means he adopted to secure " that end. It may be that the benefits hoped to be obtained would " have been an ultimate and not an immediate consequence of the " action taken, but I do not think it would have been any more " remote than in the cases of Sorrell v. Smith and Ware and De " Freville."[73]There is ample evidence for this finding and although Mr. Veitch's testimony was at times confused and inconsistent, its effect was a matter for the learned judge. I find no attack upon the sub- stantial honesty of this witness either by him or by the Inner House though the lack of consideration shown is severely criticized by both.[74]The views of the Inner House are not dissimilar. I may quote from

the Lord Justice Clerk and from Lord Fleming. The former says:

" Moreover, there are a number of circumstances that point " to Mr. Veitch having acted in good faith. He was a trusted and " responsible official. He had no quarrel with any of the petitioners; 3 [32] " there is nothing to suggest that he had illwill towards anyone. I " regard the suggestion that he was out to ruin the importers as " entirely ill-founded. His letter to Mr. Mackenzie of 28th January " shows that he was prepared to meet them and discuss the position. "
There is not the slightest trace of personal ill-will or spite; I doubt " if he knew any of them personally. The attainment of 100 per " cent. Trade Union Membership was the declared policy of his " Trade Union. From 1935 onwards the Officials of the Union had " made it clear that they regarded price-cutting as something that " would be hurtful to the interests of the workers in the industry, " and that they would not hesitate to take direct action to prevent " it. I attach the greatest weight to the fact that Mr. Veitch " instructed an embargo against Mr. Macdonald, the largest, or one " of the largest millowners in the Island—there is no suggestion that " this was a conspiracy to injure—as showing that he genuinely " believed that price-cutting would be gravely prejudicial to the " interests of his men. Also it had been represented to Mr. Veitch " by Mr. Skinner, particularly in his letter of 6th January, that the " continued importation of yarn was responsible for the reluctance " of many yarn purchasers to bind themselves to a price agreement " and that the price of yarn as affected by the importation would " ' seriously affect' their ability to maintain existing wage rates. " There is no suggestion that the dockers were coerced or intimi- " dated into taking action. They were consulted and were unani- " mous in their decision—presumably because they were satisfied " where their true interests lay. " Taking all these facts together, I find it impossible to draw the " conclusion that Mr. Veitch was acting with an intent to injure. " On the contrary, I am satisfied, and I hold in fact, that he was " acting in the honest belief that the step was justified in furtherance " of the interests of his own members and the industry as a whole."

Lord Fleming's words are:

" Then there is the circumstance " that both the parties had the same interest in the matter. To " exclude mainland yarn would give the Island millers a monopoly " of the supply of yarn, and Mr. Veitch's view was that the prohibi- " tion of mainland yarn would be to the benefit of the workers in " the industry."
[76]And again:
" I feel satisfied that Mr. Veitch held sincerely and " strongly the view that the continuance of unrestricted importation " of Mainland yarn would, sooner or later, prove harmful to the " members of the Union, and that in the absence of an agreement " between the millowners and the importers, the best policy for the "
Union to adopt was to exclude it from the Island if it could. Mr. " Macrae, who knew the whole history of the industry, and was " interested in it because it involved the welfare of many members " of his congregation, also held this view, and I do not think it can " be said to be an unreasonable view. At all events it cannot be " said that it was so unreasonable as to justify an inference that " there was some other ulterior reason for Mr. Veitch's decision. " What lay at the root of the opposition to the importation of Main- " land yarn on the part of Mr. Veitch and Mr. Macrae seems to have " been the idea that the whole process of making wool into Harris " Tweed should be retained as far as possible as an Island monopoly " for the benefit of the workers on the Island. The exclusion of " Mainland yarn would not only give the Island a monopoly of the " whole process of manufacture, but would also tend to make the " practice of price-cutting more difficult. All tweed manufactured " on the Island would qualify for the ' Stamp,' and would not have " to face competition from Harris Tweed woven in the Island, but " from yarn not spun on the Island. If, as I think, Mr. Veitch " sincerely held views of that kind, I find it difficult to attribute " his actings to anything else than a bona fide desire to advance " the interests of the members of his Union." [33] 4[77]Lord Wark's reasoning does not differ from that of his brethren. His conclusion is expressed as follows: — " Taking the respondents in turn, I begin with Mr. Mackenzie. " I cannot find anything in the evidence to show, or even to " suggest, that he was inspired by any motive other than the desire " to forward what he bona fide believed to be the interests of the " members of his Union. The same is true of Mr. Veitch. There " is no evidence that I can find of any ill-will against any of the " petitioners. It does not appear that he had ever met any of " them. His sole concern with them, in my view, was to prevent " them acting in such a way as would, in his honest opinion and " belief, injure the interests of the members of the Union: and, in " my judgment, his only motive in acting as he did was to advance " these interests, or at least to prevent injury to them. I cannot " doubt, upon the evidence, that Mr. Veitch honestly believed that " a continuance of the importation of Mainland yarn would bring " down tweed prices and, with them, the wages of the spinners and " weavers."[78]As I am discussing the case on the footing that there was a combination to which Mr. Skinner at least and possibly also some of the millowners were parties, I omit to stress the still stronger view expressed by Lord Fleming as to Mr. Mackenzie's activities:
" The " latter," he says, " was throughout a mere servant, his function " being in the main limited to carrying out Mr. Veitch's instructions " and doing routine work. The grounds for holding him guilty of " any intention to injure are much weaker than in Mr. Veitch's case."
I have quoted somewhat fully from the opinions expressed because having regard to the arguments addressed to your Lord- ships I think it necessary to ascertain exactly what purpose the Courts below imputed to those who have been held to have combined.[79]Both I think found that the stoppage of the importation of Main- land yarn was effected because Veitch and Mackenzie at any rate thought it in the interest of their workers to do so. Both also, I think, believed each of the defenders to hope that the manufacturers, millowners and non-millowners, would come to an agreement amongst themselves, and when that hope failed, put the strongest pressure they could upon the dissentient employers by refusing to handle their material, whether in the shape of yarn or the finished or unfinished product.[80]The immediate purpose of the combination in this view was to prevent the importation of Mainland yarn and to bring about an agreement amongst the employers to use only that spun upon the Island, the motive of the defenders being thereby to prevent the danger of competition which they feared might cause a diminution of wages and to bring about a state of affairs in which a 100 per cent, membership of the Union would be attained in the ranks of the spinners and of the weavers—the motive of the millowners to increase their profits and perhaps to eliminate competition in spinning.[81]No doubt the result of the embargo was necessarily to injure those against whom it was exercised, but that was not found to be its purpose. Its object as found by the Lord Ordinary was to further the defendants' own legitimate business, and if that was their intern- tion I should not consider them participants in an actionable conspiracy even though the inevitable result of the action which they took would be to ruin the importers of Mainland yarn. This is the view of Holmes J. in Vegelahn v. Guntner (1896) 167 Mass, 92 when he says: " The fact that the immediate object of the " act by which the benefit to themselves is to be gained is to injure 5 [34][82]" their antagonists does not necessarily make it unlawful any more " than when a great house lowers the price of certain goods for the " purpose and with the effect of driving a smaller antagonist from " the business." These observations are no less weighty though delivered in a dissentient judgment. They were approved by Lord Cave in Sorrell v. Smith (1925) A.C. 700 at p. 714 and by Scrutton L. J. in Ware and De Freville Ltd, v. Motor Trade Association (1921) 3 K.B. 40, and are in conformity with the principles expressed in the Mogul v. Macgregor (1892) AC 25 which preceded it and are supported by the view of the majority of your Lordships" House in Allen v. Flood (1898) AC 1 , which was decided two years later. In the latter case Lord Herschell speaking of the former, said at p. 140:
" In that case the very object of the defendants was to " induce shippers to contract with them and not to contract with " the plaintiffs, and thus to benefit themselves at the expense of the " plaintiffs, and to injure them by preventing them from getting a " share of the carrying trade. Its express object was to molest " and interfere with the plaintiffs in the exercise of their trade. It " was said that this was held lawful because the law sanctions acts " that are done in furtherance of trade competition. I do not think " the decision rests on so narrow a basis, but rather on this, " that the acts by which the competition was pursued were all " lawful acts."
[83]The general proposition has been summed up by Scrutton L.J. in Ware and De Freville Ltd. v. Motor Trade Association (1921) 3 K.B. 40 at p. 67 as follows:
" I take Allen v. Flood (supra) and "
Bradford Corporation v. Pickles (1895) AC 587 to decide that " an act otherwise lawful though harmful does not become action- " able by being done maliciously in the sense of with a bad motive " or with intent to injure another. ... I take the Mogul case " as deciding that a combination to do acts, the natural consequence " of which was to injure another in his business, was not actionable " if those acts were not otherwise unlawful, such as assaults or " threats of assaults, and were done in furtherance of the trade " interests of those combining. I understand Quinn v. Leathem " (1901) AC 495 to decide that a combination to injure another in " his trade and business not in furtherance of the trade interests of " those combining but out of spite against the person injured is " actionable."[84]This is a summing up of the principles to be deduced from the so-called trilogy of cases upon conspiracy, and I think it is a correct one. It has since received support from the reasoning upon which your Lordships' House decided Sorrell v. Smith (1925) A.C. 700. If this be their result Mogul v. Macgregor (supra) and Allen v. Flood (supra) are consistent and easily comprehensible. More difficulty is to be found in explaining Quinn y. Leathem [1901] A.C. 495. Why should a combination to injure be actionable, whilst action taken by a single person for that purpose and that purpose only is permissible?[85]In Sorrell v. Smith (supra) Lord Cave L.C. thought the point an open one and Lord Sumner 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. Lords Field and Hannen in the Mogul case are of this opinion and in Allen v. Flood (supra) Lords Watson at p. 108, Herschell at p. 129, Macnaghten at p. 153, Lord Shand at p. 168, Lord Davey at p. 172 —who with Lord James constituted the majority of the House— all indicated that a conspiracy to injure might give a good cause of action, where similar action on the part of an individual would not. [35] 6[86]Scrutton LJ. in the Ware case finds difficulty in accounting for the difference. One not uncommon explanation is that a com- bination may exert undue pressure where one person will not, but it is not very satisfactory. In the first place it is not necessarily true and, in the second, to exert pressure is not unlawful.[87]But there is an earlier question. Whether there be combina- tion or not, it may be a criminal offence and an actionable wrong to induce another to do what is unlawful or to do what is lawful by unlawful means. The phraseology is first to be found in R. v. Jones (1832) 4 B. and Ad. 345 and has again and again been repeated both in criminal and civil cases though in the former it may be a limitation and not a definition. In criminal cases Fitzgerald J. puts the principle in R. v. Parnell, 14 Cox C.C. 508, in the following words:
" Conspiracy is divisible into three heads: " (1) When the end to be obtained is in itsejf a crime; " (2) When the object is lawful but the means to be resorted "to are unlawful; " (3) Where the object is to do an injury to a third party or " to a class, though if the wrong were inflicted by a single " individual it would be a wrong but not a crime."
[88]And in Mogul v. Macgregor (supra) Lord Watson says:
" I " apprehend that in order to substantiate their claim the Appel- " lants must show either that the object of the agreement was un- " lawful or that illegal methods were resorted to in its prosecution."
[89]In Fitzgerald J.'s definition even the third heading postulates the existence of a civil wrong, and in recent times I do not think that it has been held criminal merely to combine to injure a third party provided no unlawful means are used or contemplated and it is doubtful whether such a combination ever was criminal (see Wright on Criminal Conspiracy (1873) p. 41). It is true that in certain classes of case, e.g. where masters and workmen or trade are concerned, it was at one time held criminal to agree not to sell under fixed prices or not to work under certain prices (see R. v. Eccles, 1 Leach 274), but the doctrine is not one to which, apart from statutory prohibition, any court to-day is likely to subscribe.[90]There may, however, be combinations which are criminal, though entered into for purposes which would not be criminal if done by an individual, but whether this be so or not it is now established that a conspiracy, the object of which is to injure a third person, is an actionable wrong. Quinn v. Leathem (1901) A.C. 495 and Sorrell v. Smith (supra] in your Lordships' House are sufficient authority for this proposition. Why it has been so held is not, I think, clear. That such a combination may be actionable had, as I have indicated, already been recognized by at least five of the members of your Lordships' House who were amongst the majority in Allen y. Flood (supra) and has again been recognized in Sorrell v. Smith (supra). The point is now too well established to be the subject of controversy.[91]In Lord Dunedin's view as expressed in the last men- tioned case a conspiracy to injure is a criminal offence and therefore either the object aimed at or the means used (the noble Lord uses both expressions) were illegal. It may be so or it may be, as Lord Sumner suggests, that a combi- nation to injure is a form of intimidation or again it may be that the doctrine is a survival of the view formerly held as to the illegality of combinations to raise wages or interfere with trade or of the more paternal view expressed on a different matter by Lord Mansfield in Jones v. Randall Lofft 383:
" Whatever is con- " trary, bonos mores est decorum, the principles of our law prohibit " and the King's Court, as the general censor and guardian of " the public manners, is bound to restrain and punish."
In any case it is undoubted law. 7 [36][92]Whether it is necessary that the object of the defenders should be solely to gain an advantage for themselves of whether their motives may be mixed provided the main or substantial motive is their own gain is not so clear.[93]Lord Dunedin in Sorrell v. Smith (supra) apparently thought it enough that the dominating motive should be to benefit oneself. On the other hand in Mogul v. Macgregor (supra) Lord Han- nen at p. 59 raises the question as to what would happen if the evidence had shown that the object of the Defendants was a malicious one, namely to injure the Plaintiffs, whether the Defen- dants should be benefited or not, but since in that case as in this their sole motive was to secure certain advantages for themselves, leaves the question unanswered.[94]Lord Watson, in the latter case, says at p. 42:
" If the Respond- " ents' combination had been formed not with a single view to the " extension of their business and the increase of its profits but with " the main or ulterior design of effecting an unlawful object a very " different question would have arisen."
[95]Lord Parker in Alt. Gen. of the Commonwealth of Australia v the Adelaide S.S. Coy., Ltd. [1913] AC 781 at p. 797 speaks of " the right of combining with others in a common course of " action provided such common course of action is undertaken " with a single view to the interests of the combining parties and " not with a view to injure others "; and in Sorrell v. Smith (supra) at p. 742 Lord Sumner expresses himself as not prepared to admit that the addition of personal animosity to a desire to benefit one- self makes actionable that which without the animosity would not be so, but confesses himself unable to say at what point the in- tention to injure overweights the scale so as to render the con- federates liable for the damage which they do in spite of the private advantage which they hope to obtain.[97]The answer may be that given by Lord Dunedin in Sorrell y. Smith, viz., that one must judge broadly as a jury would judge, and so determine the predominant purpose. After all, the task is no more difficult than that which faces them in every criminal case—to determine whether there is mens rea or not. Nevertheless if I thought that in the present case the object of the parties to the combination was to ruin the Appellants, even though they hoped thereby each to gain an advantage for him- self, I should desire to consider the matter further before deciding that the Respondents were not liable, but I do not think that such a case has been proved. The Lord Ordinary and Inner House have not so found. The direct object was to force an agree- ment and to stop the importation of Mainland yarn, both of which were, as found by the Courts below, honestly believed to be of direct benefit to the defender's Trade Union. No question of in- direct purpose comes in issue. The result of the action taken might be to ruin the importers of Mainland yarn, and it might be recognized that this was a possible or even probable outcome, but that was not the purpose of those who combined. Each desired only to further his own interests. If this view of the facts prevails, and it is recognized, as I think it must be since the decision in the Mogul case, that men are en- titled to pursue their own advantage even though the natural and inevitable result be the ruin of others, the pursuers' case is at an end, but in deference to the forcible arguments addressed to us on behalf of the Appellants and in view of the difficulties of the subject, I must add some further observations and qualifications to the views I have expressed.[98]One of the difficulties in the law of actionable combination is to decide what purposes are to be looked at in determining whether the combination is illegal or not. [37] 8[99]This problem is perhaps touched upon by Lord Cave in Sorrell v. Smith [1925] A.C. 700 at p. 714 when he speaks of the purpose of a threat being to forward trade interests and not wil- fully and ultroneously to injure the trade of another, by which I think he means not wilfully to injure the trade of another save for the purpose of forwarding one's own.[100]In other words, is it enough that the substantial object of the defenders was not to injure the pursuer, or must they go further and must it be established in some way, either by positive evidence on behalf of the defenders or lack of evidence on behalf of the pursuer, that they were following some interest of their own ? In Sorrell v. Smith (supra) Lord Sumner left the question open, though he suggests that the defenders must not be intermeddling busybodies. Lord Dunedin took the view that it was enough if they did not set out to injure the pursuer and regarded evidence that their own advantage was involved merely as tending to prove that their object was not to injure. Lord Cave did not in terms deal with the question, but the framework of his first proposi- tion, which I quote below, suggests that the defenders must have their own end to gain.[101]It is, I think, true to say that in all the cases which have dealt with this subject the contrast is drawn beween a desire to injure on the one hand and the pursuit of the defenders' interests on the other. Nowhere except in Lord Dunedin's speech in Sorrell v. Smith is the mere fact that the Defendant's object was not found to be a desire to injure held to exonerate them from liability. It is, I think, always added that their purpose was to gain an advantage for themselves.[102]Lord Sumner indeed asks at p. 739 what other motive can there be in such a matter beyond selfishness and malice except, indeed, mere irresponsible wantonness. So far, however, no case has decided, and it has not been necessary to decide, whether con- federates who have combined not for the purpose of doing an injury but with no object of their own to gain are or are not liable to those against whom they have combined.[103]The present case, like those which preceded it, does not require a solution of this problem. Throughout the defenders acted in what they believed to be the interest of their Trade Union. But assuming that the defenders would only be justified in pressing their own selfish aims, is every personal advantage which accrues to them by reason of their action a sufficient excuse or is something more intimately and directly connected with their business interests required—something which will help their trade or improve the position of their Trade Union ? Must it be something, as Scrutton L.J. says in Ware and De Freville v. Motor Trade Association [1921] 3 K.B. 40 at p. 71, " intended to secure the interests of the " confederates in their trade by reasonable and legitimate means " —by which I understand him to mean by lawful means ?[104]That business in this connection is not confined to trade has been insisted upon in Allen v. Flood (supra), and in Bradford v. Pickles [1895] AC 587 the principle was said not to be confined to rights of property but to be equally applicable to the exercise by an individual of his other rights.[106]The quotation most frequently made in this connection is the well-known passage in the speech of the Lord Chancellor in Sorrell v. Smith (supra) at p. 712. " I deduce as material for the decision of the present case two " propositions of law which may be stated as follows:
" (1) A combination of two or more persons wilfully to injure " a man in his trade is unlawful, and, if it results in damage " to him, is actionable. 9 [38] " (2) If the real purpose of the combination is not to injure " another, but to forward or defend the trade of those " who enter into it, then no wrong is committed and no " action will lie, although damage to another ensues. The " distinction between the two classes of case is sometimes " expressed by saying that in cases of the former class " there is not, while in cases of the latter class there is, " just cause or excuse for the action taken."
This statement of principle is, I think, apt to be used a,s if it resolved the many difficulties in a difficult department of the law. Too often it is forgotten that the Lord Chancellor himself intro- duced it by saying that he deduces as material for the decision of the present case two propositions of law—the italics are mine. In that case the combination was not to injure but to forward or defend the trade of those who had entered into the combination, as in this it was to increase the membership of the Trade Union and protect the wages of its members, and Lord Cave's statement does not seek to comprehend all circumstances.[107]Cases in which the action of the confederates is to compel the Plaintiff to pay a debt as in Giblan v. National Amalgamated Labourers' Union (1903) 2 KB 600 have been held not to be within the principles, perhaps on the grounds stated by Buckley L.J. at p. 619 that the intent was to prevent the plaintiff from obtaining or retaining employment in order to compel him to pay a debt due from him " and from this the intent to injure the Plain- " tiff appears to follow."[109]But what of the case where the Defendants desire neither their own business advantage nor the injury of the Plaintiff, e.g., where they combine to compel him to subscribe to an extraneous chari- table fund? No answer to this question has yet been given, and perhaps it is enough for the purposes of the present case to say that the benefit is sufficiently direct if it be to increase the effective strength of a Trade Union, and to quote Hodges v. Webb (1920) 2 Ch. at p. 89 and White v. Riley (1921) 1 Ch. 1 as illustrating this conclusion.[110]The broad proposition was put by Lord Phillimore, then Phillimore J. in his dissenting judgment in Boots v. Grundy (1900) 82 L.T. 769, in a way which will comprehend most cases. " If," he says, " a number of persons, because of political or religious hatred, " or from a spirit of revenge for previous real or fancied injury, " combine to oppress a man and deprive him of his means of " livelihood for the mere purpose of so-called punishment, I think " the sufferer has his remedy. If the combination be to further " their own prosperity, if it be constructive, or destructive only " as a means to being constructive, the case is otherwise."[111]It was argued, however, that where you get a combination of persons such as masters and workers who are apt to be opposed in trade disputes, and when you find them joined in an endeavour on the one hand to eliminate competition and on the other to gain 100 per cent, trade union membership, the only common object must be 1o injure, since the masters could only rid themselves of competitors by injuring their opponents, and the workmen could only obtain a 100 per cent, trade union membership from masters with whom they were agreed and therefore could not attain their object until all others were driven out of the trade[112]The only common object therefore was to injure, though each party to the combination might have a separate ultimate aim of his own which would promote his own interests. An argument against the right of a combination of employers acting in conjunction with a Trade Union to refuse to employ anyone not possessed of that Trade Union's ticket was urged [39] 10 before Sargant J. as he then was, in Reynolds v . Shipping Fede- ration, Ltd. [1924] 1 Ch. D. 28, a case in which a combination of masters and Trade Union officials agreed that only members of a particular Trade Union should be employed on the ships of the Federation. The learned Judge rejected the argument. " Indeed," he says at p. 39, a decision in favour of the " Plaintiff would lead to a strange anomaly. For many years past " no one has questioned the right of a trade union to insist, if they " are strong enough to do so, under penalty of a strike, that an " employer or a group of employers shall employ none but members " of the Trade Union, and the result of any such effective combina- " tion of workmen has, of course, been to impose on the other work- " men in the trade the necessity of joining the Union as a condition " of obtaining employment. " Here the employers, instead of being forced against their wills " into employing Union men only, have recognized that advantages " may arise from adopting such a course voluntarily and have " accordingly made an agreement with the Trade Union to that " effect. The incidental result to the other workmen in the trade " is the same as if the employers had yielded against their wills " instead of agreeing voluntarily. But I fail to see that workmen " who are unwilling to join the Union have any greater reason " to complain of a violation of their legal rights in the second " case than in the first."[113]In that case the action was against the masters' federation, the trade union, its president and one of its representatives.[114]It is true that the complaint came from the members of another trade union and not from another set of employers, but if the argument is sound, as I think it is, it cannot be confined to one class of confederates and be held inapplicable to another.[115]In the present case also masters and workmen combined. The common object was not to injure but to promote agreement be- tween the two sets of employers, even though incidentally the immediate effect of the common purpose might be to bring a measure of injury upon the masters who were not millowners, but the ultimate aim was to protect and improve the interests of those who combined. The injury was but a step to an end. The combination was therefore not to injure but was to defend the interests of the parties to it and it becomes unnecessary to consider a case of mixed motive where the object was in part to injure and in part to benefit those who have combined, and equally unneces- sary to lay down the principles applicable to a case where the object is neither to injure nor to promote the interests of the parties but some extraneous good or evil object with which they are not directly concerned. But apart from these considerations I am not myself prepared to accept the view that the joint object of the parties combining is necessarily alone to be looked at. Each party may well have its own private end to gain. The joint aim may at any rate be no more than a desire for prosperity or peace in the industry, and yet the combination may be justified. If, however, one of the parties had no purpose but to vent his own vindictive spite and if the other knew of and countenanced that purpose by giving his assistance to the malicious acts of the first, it may be that the other would then be a participant in the wrong planned by the first to which he gave his assistance. I have so far dealt with Lord Cave's proposition as first stated, but he put it in an alternative form, viz.: —was there just cause or excuse for the action taken? So framed it furnished, as he intended it to furnish, a test for the solution of the case which he was considering, but it was not, nor did it purport to be, a general formula for universal use. 11 [40][116]As Lord Dunedin pointed out in the same case, there is an earlier question:
" Is there any wrong to be justified ? "
If the defendants have done no injury they do not require justification. The alternative proposition suggests that action which is neces- sarily injurious to the interests of others is in itself actionable unless it is defensible on some ground.[117]It is true that the alternative method of approach is sometimes helpful in ascertaining whether the purpose of the combination is to injure others or to promote the interests of those in combination, but I should not myself regard it as the same question or decisive of the rights of the parties.[118]The true position is, I think, that some proceedings are not actionable because neither the end nor the means are wrongful but there are others in which either the end or the means are wrongful and yet those acting in combination are excused because they have just cause for what they have done. To induce the breach of a contract which may lead to immorality (see Brimelow v. Casson (1924) 1 Ch. 302) or of a contract which is an infringement of the right of the breaker (see Smithies v. National Association of Opera- tive Plasterers (1909) 1 KB 310 (C.A.)) has been held to be justified. These however are only examples, and afford little assist- ance in determining the circumstances which will constitute sufficient justification. I doubt whether it is possible to define what those circumstances are. Perhaps one cannot safely go further than the statement to be found in Glamorgan Coal Coy. v. South Wales Miners' Federation (1903) 2 KB 545 , Smithies v. National Amalgamation of Operative Plasterers (supra) and Conway v. Wade (1909) AC 506 per Lord Loreburn at p. 511), that they are not matters for definition but for a consideration of the individual circumstances of each case.[120]Whatever the limits within which just cause or excuse are con- fined, this class of case is, I think, an exception to the general rule that a combination to do what is unlawful or to do what is lawful by unlawful means is actionable, and is not an alternative expression of the principle itself. It may indeed be more meritorious to induce the breach of a contract contra bonos mores than merely to pursue one's own selfish ends, but the one requires justification in law and the other does not. I have ventured to add these observations not because the questions raised in them demand solution in the present case, but in order to show the limits of the present decision, and lest it should be thought that the decision is authority for wider and more com- prehensive principles than the actual circumstances require. For my own part I am content, following the opinions of the Lord Ordinary and the Inner House, to say that whatever the effect of their action might be the confederates, millowners and defenders, had a common object of benefitting themselves and not of injuring the plaintiffs and so must succeed in their defence. (16904) Wt. 8142—33 20 12/41 D.L. G. 338