All
All
Title
Appellant
Respondent
.The Lord Chancellor
MY LORDS,
The Appellants are seven producers of tweed cloth in the Islandof Lewis in the Outer Hebrides. Their business is carried on bypurchasing yarn, which they give out to crofters for weaving intheir own homes, so that the Appellants may sell the tweed sowoven. The Respondent, Mr. Veitch, is the Scottish Area Secretaryof the Transport and General Workers' Union, which is a tradeunion, and the Respondent, Mr. Mackenzie, is the StornowayBranch Secretary of the Union.
The Appellants are seeking interdict against the two Respondentsin order to stop what is called an " embargo " imposed by theirorder or inducement upon all yarn arriving for the Appellants atthe port of Stornoway, which is the main port on the island and isconnected by a service of steamers with the mainland, and uponcertain tweeds despatched by the Appellants from that port.
In argument before this House it was conceded that no issue isinvolved which might bring into the case any provision of theTrades Disputes Act, 1906. The Respondents are sued as indi-viduals and not in any representative capacity. The question iswhether the Appellants have established that the Respondents havecommitted a delict or tort at common law against them by thusinterfering with their trade. It was not suggested that, as regardsthe law applicable to the present action, there was any materialdifference between the Scottish law of delict and the English lawof tort.
The dockers at Stornoway are all members of the trade union,and as from January 24th, 1938, they refused to handle yarnimported from the mainland and consigned to the Appellants, andalso cloth made by the Appellants which the Appellants wished toexport. This refusal was in accordance with the instructions of theRespondent, Veitch, which were communicated by him to theRespondent, Mackenzie, and were passed on by the latter to thedockers, who at once complied. The embargo against the exporta-tion of finished tweeds was raised four days later, but in otherrespects the embargo continued, both as regards the importationof yarn for the Appellants, and as regards the exportation of theirunfinished tweed, despatched for " finishing" on the mainland,until interim interdict was granted on February 24th, 1938. Onthe trial of the cause in March, 1939, the Lord Ordinary (LordJamieson) gave judgment for the present Respondents and recalledthe interim interdict. On appeal to the Second Division this decisionwas affirmed (dissentiente Lord Mackay). The matter now comesbefore this House, and we have been much assisted in examiningwhat is undoubtedly a difficult case by the arguments of counselon both sides.
The evidence is voluminous and gave rise to a large number ofquestions as to the effect of it and as to the inferences to be drawnfrom it. For much of this detail I would refer to the full and carefuljudgments that have been delivered in Scotland. I accept, broadlyspeaking, the account given by Lord Jamieson, and the majorityin the Court of Session, of the facts derived or deduced from thatevidence. On one conclusion, however, which is apparentlyreached by the majority of the Inner House, I must express myhesitation later on. For the purposes of laying the basis of factupon which my view of the legal consequences rests, it is sufficientto summarise the ascertained situation thus.
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The description " Harris Tweed" was originally applied towoollen cloth, which was not only woven by hand-looms in thecottages of the Outer Hebrides, but was so woven out of yarn spunby hand in the islands. (The trade-name " tweed " is not, it appears,derived from the river near which the cloth-weaving industry ofGalashiels 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 wasthus a hand-produced and island-produced product throughout, andin 1911 a Company limited by guarantee was registered under thename of the Harris Tweed Association Limited, which obtained aTrade Mark (referred to as the " Stamp ") under section 62 of theTrade Marks Act, 1905, to apply to Harris Tweed which satisfiedthese conditions. After a time, the hand-spinning of wool into yarnceased to be commercially practicable and in 1934 the conditions ofthe Trade Mark were varied, with the result that it could apply totweed hand-woven by the islanders in their own homes out of yarnspun in island spinning-mills, and finished in the island-mills insteadof by hand.
Five such spinning-mills have been established in Lewis. Theydo not use weaving machinery, but by placing their yarn in thehands of the hand-weaving crofters, cloth is produced which themill-owners, after " finishing " it, can sell under the " Stamp."Ninety per cent, of the spinners in the mills are members of theTransport and General Workers' Union—the same trade union asthat to which all the Stornoway dockers belong. The percentageof trade-unionists among the weavers in the cottages is muchsmaller. The officials of the Union desired that none but membersof their Union should be employed, but when this was asked of themill-owners in 1935, together with a rise in spinners' wages, theanswer of the mills was that this was in existing circumstancesimpossible, 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 suppliesof yarn from the mainland at a cheaper price than that charged bythe mills. Cloth made out of mainland yarn could not carry the" Stamp," though it could be sold as Harris Tweed as having beenwoven in the Island.
How far there really was injurious competition may be seriouslyquestioned, but there is no evidence that the Union officials did notbelieve it and what is clear is that the Union official then mainlyconcerned, a Mr. Buchan, set himself to assist in establishing aminimum selling price for island cloth, and that he, and after himVeitch, conceived that it would benefit their Union members ifconditions of collective bargaining could be established in theIsland between employers and employed. To this end, Mr. Buchanin 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 toavail themselves of Mr. Buchan's proposals at that time, and indeedthroughout would seem to have preferred, if it had been possible,to get a settlement as to prices without trade union pressure. Thereremained on the side of the trade-union a constant desire to secure100 per cent, trade-union membership. A long and complicatedstory of discussions and interviews followed, at the end of whichthe effort to secure by negotiation minimum prices and the use ofnone but island-spun yarn failed, Mr. Skinner informed Mr. Veitch
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that a settlement had not been reached, and an interview betweenthem in Edinburgh took place five days before Mr. Veitch gaveorders for the embargo. The Appellants have strenuously arguedthat there was a combination between Mr. Veitch and Mr. Skinnerto impose the embargo, and in particular rely on Mr. Veitch's letterto Mr. Mackenzie of January 19th, 1938, requesting the latter togive instructions to the dockers, which contains the significantsentence " 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 withthat of the Lord Ordinary (with which at least one member of theInner House, Lord Wark, was disposed to agree) that, suspiciousas the circumstances are, there is not sufficient evidence to establishthat Mr. Skinner was combining with the Respondents to imposethe embargo: he was aware of the intention to impose it and heapproved of it and was apparently willing to concede 100 per cent,membership to the Union if his trade rivals were put out of businessor compelled to buy yarn from the mills, but I am not prepared tohold that the Respondents struck at the Appellants because of abargain so to do between Mr. Skinner and themselves.
Such being the facts of this case as I take them to be, the questionto be decided is whether the Appellants have proved that theRespondents are liable to them for illegal conspiracy. In otherwords, is it proved that the two Respondents combined together" to injure " the Appellants in the way of their trade, and that theAppellants have suffered damage from the Respondents' illegalaction ? Conspiracy, when regarded as a crime, is the agreementof two or more persons to effect any unlawful purpose, whether astheir 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 inpursuance of it. (I am omitting consideration of those cases on theborderland of illegality, where the combination was held to amountto a criminal conspiracy because the purpose aimed at, though notperhaps specifically illegal, was one which would undermine prin-ciples of commercial or moral conduct.) The crime consists in theagreement, though in most cases overt acts done in pursuance ofthe combination are available to prove the fact of agreement. Butthe tort of conspiracy is constituted only if the agreed combinationis carried into effect in a greater or less degree and damage to thePlaintiff is thereby produced. It must be so, for, regarded as a civilwrong, conspiracy is one of those wrongs (like fraud or negligence)which sounds in damage, and a mere agreement to injure, if it wasnever acted upon at all and never led to any result affecting theparty complaining, could not produce damage to him. The distinc-tion between the essential conditions to be fulfilled by the crime andthe 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. and 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
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" 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."
There is nothing, I think, in the majority judgments in the Mogulcase in the Court of Appeal (23 Q.B.D. 598), or in the speechesdelivered on the appeal in that case to this House, [1892] A.C. 25,which conflicts in any way with the above propositions, whichindeed are now well-established.
The Appellants, therefore, in order to make out their case have toestablish (a) agreement between the two Respondents (b) to effectan unlawful purpose (c) resulting in damage to the Appellants. Asregards (c), there can here be no doubt. Instructing or persuadingthe 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 wasbound to damage their business. Still more, perhaps, was it aninjury to the Appellants to prevent by these means the sending oftheir unfinished cloth to the mainland. Indeed, it is one of the mostserious aspects of this case, and an aspect that I deplore, that theaction taken against the Appellants not merely put pressure onthem to adopt new arrangements, but might well destroy their busi-ness altogether without offering any locus poenitentiae. Whetherthis consideration affects the ultimate conclusion must be consideredhereafter.
I am equally satisfied about (a). It was argued that the Respon-dent Mackenzie should not be regarded as acting in combinationwith the Respondent Veitch, so as to establish the element of agree-ment between them in the tort of conspiracy, because Veitch heldthe 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 positionof the two men in the hierarchy of Trade Union officials hasnothing to do with it. Even if Mackenzie could be regarded asonly obeying orders received from his superior, the combinationwould still exist if he appreciated what he was about. But hisshare in the matter was more than this. Mackenzie is the represen-tative of the Union in the Island of Lewis; he took the principalpart in securing that the dockers at Stornoway should not handlethe Appellants' goods; there is no ground for supposing that he didnot approve of the course taken, and he appears to have co-operatedwillingly. 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 holdexpressly 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 exactlyis meant, in this branch of the law, by a combination to effect anunlawful 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 and Co." [1892] A.C. 25; Allen v. Flood[1898] A.C. 1; and Quinn v." Leathern [1901] AC 495 " were submitted to a close examinationin order to extract from them the principles involved, formulatedas 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
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" 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 thatthese two propositions, as the then Lord Chancellor said, wereformulated as material for the decision of the case then before theHouse, and they may not turn out to be either as complete or aseasy to apply in some other cases involving widely different circum-stances. At any rate, I find it necessary, for the purpose of decidingthe present Appeal, to enter upon some further analysis.
It seems to me that the subject may be usefully approached bybeginning with some preliminary propositions, not in themselves Ithink 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, whichmore 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, whetheractionable 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 noremedy against B, if B's act is lawful in itself and is carried outwithout employing unlawful means. In such a case A has to enduredamnum absque injuria. (2) It makes no difference to the aboveproposition that B in so acting had the purpose of damaging A. Abad motive does not per se turn an individual's otherwise lawfulact into an unlawful one. (3) If C has an existing contract withA and B is aware of it, and if B persuades or induces C to breakthe contract with resulting damage to A, this is, generally speak-ing, a tortious act for which B will be liable to A for the injuryhe has done him. In some cases, however, B may be able to justifyhis procuring of the breach of contract, e.g. a father may persuadehis daughter to break her engagement to marry a scoundrel. (Thisis not, of course, to say that the scoundrel would not have anaction against the daughter for breach.) The father's justificationarises from a moral duty to urge C that the contract should berepudiated.
So far there is, I apprehend, little to dispute about. But if theact which damages A is not that of a single individual, but is dueto a combination of two or more persons, then it is no longerpossible to say that motive or purpose is immaterial. If, to useLord Cave's language, the real purpose of the combination is theinflicting of damage on A as distinguished from serving the bonafide and legitimate interests of those who so combine, then ifdamage results to A, the act is tortious.
Lord Halsbury observed in the Mogul case [1892] A.C. p. 25 atp. 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 thesame effect might be made from speeches delivering judgment sincethen in Your Lordships' House. The proposition itself as to awider range of liability for acts done in combination is now wellestablished, though the legal reason for it may not be so easy tostate. Lord Bramwell in the Mogul case observed that it had beenobjected that it was strange that that should be unlawful if done byseveral which is not unlawful if done by one. and he offered somesuggestions as an explanation; [1892] A.C. at p. 45. The view thatthe explanation is to be found in the increasing power of numbersto do damage beyond what one individual can do is open to theobvious answer that this depends on the personality and influence
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of the individual. In the play, Cyrano de Bergerac's single voicewas more effective to drive the bad actor Monttleury off the stagethan 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 beforethe 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 possibleline of explanation which legal history suggests. Conspiracy, likelibel, may be a crime. As a crime it was developed by the Courtof Star Chamber, and, on the abolition of that Court, the crimeas 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 thedefamation 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 thisinstance without the need to allege and prove special damage), so,in the case of conspiracy an action in the nature of an action on thecase would lie for damages at the suit of the party suffering, thoughhere the gist of the action is that damage was inflicted by defendantswho combined together for the purpose of inflicting it.
However the origin of the rule may be explained, I take it to beclear that there are cases in which a combination of individualsto act in a certain way, resulting in deliberate damage to others, isactionable, even though the same thing, if done by a singleindividual without any element of combination, would not exposehim to liability. In the present case, the evidence did not supportan allegation that the Defendants, or either of them, had procureda breach of contract, and if one of them, acting alone, had withoutemploying unlawful means induced the dockers to refuse to handlethe Appellants' goods, I cannot see that any action would havelain against him. Everything turns, therefore, on whether the twoRespondents were engaged in a combination " to injure," in thesense in which that phrase is employed when liability results; itis to this question that I now address myself.
On this question of what amounts to an actionable conspiracy" to injure " (I am assuming that damage results from it), I wouldfirst observe that some confusion may arise from the use of suchwords 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 ofthe law, " intention " may be understood to cover results whichmay reasonably flow from what is deliberately done, on the prin-ciple that a man is to be treated as intending the reasonableconsequence of his acts. Nothing of the sort appears to be involvedhere. It is much safer to use a word like " purpose " or " object."The question to be answered, in determining whether a combinationto do an act which damages others is actionable, even though itwould 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 putsit, " what is the real purpose of the combination ? " The test is notwhat is the natural result to the Plaintiffs of such combined action,or what is the resulting damage which the Defendants realise orshould realise will follow, but what is in truth the object in theminds of the combiners when they acted as they did. It is not con-sequence that matters, but purpose; the relevant conjunction is notwore, " so that ." but iva, " in order that."
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Next, it is to be borne in mind that there may be cases wherethe combination has more than one " object" or " purpose." Thecombiners may feel that they are killing two birds with one stone,and, even though their main purpose may be to protect their ownlegitimate interests notwithstanding that this involves damage tothe Plaintiffs, they may also find a further inducement to do whatthey are doing by feeling that it serves the Plaintiffs right. Theanalysis of human impulses soon leads us into the quagmire ofmixed motives, and even if we avoid the word " motive," theremay be more than a single " purpose " or " object." It is enoughto say that if there is more than one purpose actuating acombination, liability must depend on ascertaining the predomi-nant purpose. If that predominant purpose is to damage anotherperson and damage results, that is tortious conspiracy. If the pre-dominant purpose is the lawful protection or promotion of anylawful interest of the combiners (no illegal means being employed),it is not a tortious conspiracy, even though it causes damage toanother person.
It will be observed that the above analysis tends to show thatLord Cave's two propositions in Sorrell v. Smith are not necessarilyexhaustive. He contrasts a combination wilfully to injure a manin his trade with a 'combination, the real purpose of which is notto injure another but to forward or defend the trade of those whoenter into it. It is possible to imagine a combination, the purposeof which does not fall within either of these two classes—a combina-tipn, for example, to demonstrate the power of those combining todictate policy or to prove themselves masters in a given situation.In such a case the purpose or object might well be neither wilfullyto damage a man in his trade, on the one hand, nor to forwardor defend trade interests in a situation where they would otherwisesuffer on the other. If, for example, the mill-owners in the presentcase had promised a large subscription to the trade union fundsas an inducement to bribe the Respondents to take action to smashthe Appellants' trade, I cannot think that the Respondents couldexcuse themselves for combining to inflict this damage merely bysaying that their predominant purpose was to benefit the funds ofthe union thereby.
It may well be that in this corner of the law it is not possible tolay down with precision an exact and exhaustive proposition likean algebraical formula which will provide an automatic answer inevery case that may arise by substituting the actual instance fora generalisation. There is an interesting passage in the recentlypublished correspondence between Mr. Justice 0. W. Holmes ofthe United States Supreme Court and Sir Frederick Pollock whichin discussing some earlier cases suggests as much (see Holmes-Pollock Letters, vol. 1, p. 65). Lord Dunedin, I think, had the sameview in mind when, in his speech in Sorrell v. Smith, he referredto the test furnished by " that inner standard of right and wrong."([I925] A.C. at p. 717.) Lord Sumner's disclaimer, in the samecase, 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 arelawful and combinations that are unlawful (see, for a furtherillustration, the language of Romer L.J. in Giblan v. NationalAmalgamated Labourers' Union of Great Britain and Ireland[1903] 2 K.B. 600) is another indication of the difficulty in the wayof abstract precision.
I am content to say that, unless the real and predominant purposeis to advance the Defendants' lawful interests in a matter wherethe Defendants honestly believe that those interests would directly
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suffer if the action taken against the Plaintiffs was not taken, acombination wilfully to damage a man in his trade is unlawful.Although most of the cases have dealt with trade rivalry in someform or other, I do not see why the proposition as to the conditionsunder which conspiracy becomes a tort should be limited to tradecompetition. Indeed, in its original sense, conspiracy as a tort wasa combination to abuse legal procedure: see Winfield's History ofConspiracy, 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 providea justification.
In the present case, the conclusion, in my opinion, is that thepredominant object of the Respondents in getting the embargoimposed was to benefit their trade-union members by preventingunder-cutting and unregulated competition, and so helping tosecure the economic stability of the Island industry. The resultthey aimed at achieving was to create a better basis for collectivebargaining, and thus directly to improve wage prospects. A com-bination with such an object is not unlawful, because the objectis the legitimate promotion of the interests of the combiners, andbecause the damage necessarily inflicted on the Appellants isnot inflicted by criminal or tortious means and is not " the" real purpose " of the combination. I agree with Lord Flemingwhen he says in his judgment that it is not for a Court of Law toconsider in this connection the expediency or otherwise of a policyadopted by a Trade Union. Neither can liability be determinedby asking whether the damage inflicted to secure the purpose isdisproportionately severe: this may throw doubts on the bona fidesof the avowed purpose, but once the legitimate purpose is estab-lished, and no unlawful means are involved, the quantum of damageis irrelevant. I move that this appeal be dismissed with costs.
Viscount Maugham
MY LORDS,
I have had the advantage of reading the Opinion of my noblefriend on the Woolsack and, except in one matter which I regardas of importance, I agree with his summary of the facts. Withthe greatest respect I am of opinion that the embargo is provedto 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 SecondDivision, to which I find I cannot usefully add anything. I alsofind myself in substantial agreement with what my noble friend hassaid as to the law in so far as it relates to combinations resultingin injury to others, that being the only subject with which I for mypart think it necessary to deal on this Appeal. If I add someremarks of my own, it is partly because of the great importance ofthis case and partly as a recognition of the able and candid argu-ments which were addressed to us. I will add by way of prefacethat it seems to me beyond dispute that Lord Macnaghten's state-ment as to a conspiracy to injure giving rise to civil liability inQuinn v.Leathern, 1901 AC 495 at p. 510, is now well-settled law.I have never myself felt any difficulty in seeing the great differencebetween the acts of one person and the acts in combination of twoor of a multitude.
As appears from the statement of facts which is contained in theOpinion referred to, there is a peculiarity in the case whichshould be remembered. The Appellants, who are small producers,carried on their somewhat humble businesses in the Isle of Lewiswhere they were weaving a tweed called Harris Tweed from yarnspun 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 ofLewis are provided by Messrs. David MacBrayne Limited, andCoast Lines Limited. They ply to and from Stornoway. Thedockers at that port are all members of the Trade Union and it isadmitted that they act on the instructions of the Respondents, whoare or were the Scottish Area Secretary and the Stornoway BranchSecretary of the Trade Union. Orders were given on the 20th and21st January, 1938, by the Respondents to the dockers at Stornowayto refuse to handle any consignments of yarn from the mainland tothe Appellants and any consignments of tweed from the Appellantsto the mainland. These orders were carried out (without any breachof contract) and the business of the Appellants was thus brought to acomplete standstill. It is evident that the power of the Trade Unionofficials in the circumstances which exist in the Island is so greatthat the business and the means of subsistence of everyone whoresides there is at the mercy of the Trade Union officials. If theyshould be so disposed, an event which I hope is unlikely, a tyrannyof the most serious character might follow unless the case happenedto be one in which the Court could properly interfere. Itaccordingly seems to me to be very desirable that the reasons whichdetermine the conclusion of this House on the present Appeal shouldbe stated with great clearness.
The Lord Ordinary and some of the Lords in the Inner Househave used phrases which seem to suggest that once it is found thatthe infliction of injury on the Petitioners was not the real purposeor object of the embargo that is the end of the matter. I must say
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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 anabsence of malice or ill-will that the true motive of the acts donein combination was to further the legitimate interests of the partiesto the combination seems to me to be a non sequitur. For example,there was a possibility that the Respondents were taking the actionthey did merely to demonstrate the power of the Trade Union tocontrol the trade of the Island in every detail, or again because theyhad been induced by some valuable consideration coming from themillowners on the Island to put the Petitioners out of business inorder to secure for the millowners a complete monopoly in relationto the spinning and finishing of Harris tweed. I will give someother illustrations later. Moreover, there are the cases of mixedmotives which might have to be considered.
My Lords, Lord Cave, L.C., in delivering [his judgment inSorrell 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 doubtthat Lord Cave's two propositions are sound, and they wereaccepted as correct by Lord Atkinson and also, as I read hisjudgment in the same case, by Lord Sumner.
In Sorrell v. Smith in my opinion no new law was laid downby this House. It was merely in the view of their Lordships anunusual illustration of the proposition decided in the Mogul casethat a combination to do acts the purpose and object of which is toforward or defend the trade or business interests of the Defendantsis not actionable even though the necessary effect is to cause damageto the Plaintiffs (Sorrell v.Smith, 1925, A.C. 700, per Lords Caveand Atkinson at pp. 715, 716, and per Lord Sumner at pp. 733 and743, and per Lord Buckmaster at p. 746). If I correctly understandLord Dunedin's opinion, he took a somewhat different view fromthat of the majority, and disputed the accuracy of the opinionso often expressed and still more often assumed by various judgesthat a just cause or excuse must be shown and that if the realpurpose of the combination is not to forward or defend the tradeor the interests of those who enter into it, the Defendants generallyspeaking must show some other just cause or excuse for the actiontaken in combination. Lord Cave after stating the two proposi-tions of law above cited proceeded to classify the more importantof the judgments on which he relied for his propositions, in severalof which the reference to " just cause or excuse " will be foundI need not repeat these authorities; but I think it is desirableto point out that it is implicit in the Mogul case both in the Courtof Appeal and in this House that the acts done in combinationby the shipowners who were Defendants were done (to use thelanguage 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 theseterms: —"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." Thespeeches of the seven noble lords who attended are directed to
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showing that any form of competition in trade is legitimateand lawful, that is, formed a just excuse, provided that illegalmeans are not used. No one suggested that it malevolence was notin question, the action must necessarily fail, and I agree with mynoble mend Lord Wright in thinking that malevolence as a mentalstate is not the test of liability. It was implicit as I think that lawfulcompetition was the true and the necessary answer to the action inSorrell v. Smith. Moreover general approval was expressed of theopinions of Lord Justice Bowen and Lord Justice Fry in the Courtof Appeal (see 1892 A.C. at pp. 37, 43, 47, 51 and 57). I can see noreason for doubting the correctness of the well-known statementsof Lord Justice Bowen in the Court of Appeal (23 Q.B.D. atpp. 613, 617). His judgment is essentially devoted to the inquirywhether the acts of the Defendants were done " without any just" cause or excuse." If, adopting another mode of approach, it issaid that the acts in combination must in law be " malicious " if,being acts which necessarily injure the Plaintiff, they are donewithout just cause or excuse, we are reduced to a mere question ofwords. Qudcunque via the acts in combination are unlawful unlessthere is just cause or excuse. For myself on this point, whichLord Dunedin describes as " hypercritical," I must say that I preferLord Justice Bo wen's method of dealing with the matter, approved,as I think it is, by the majority of the. noble Lords who decidedSorrell v. Smith. I must add that I do not think it possible (asLord Dunedin seems to have thought) that Lord Justice Bowenwas influenced in using his phrases by Bowen v. Hall (6 Q.B.D. 333)which related to the different case of the inducing of a person underpersonal contract to break it; nor do I think that the judgments inAllen v. Flood (1898 A.C. 1) would have altered his view since thatcase had nothing to do with a question of combination.
It seems to me, therefore, and with the greatest deference tothose who perhaps think otherwise, a mistake to hold that combina-tions to do acts which necessarily result in injury to the business orinterference with the means of subsistence of a third person arenot actionable provided only that the true or predominant motivewas not to injure the Plaintiff and that no unlawful means are used.For instance, the object of the combination may be a dislike of thereligious views or the politics or the race or the colour of thePlaintiff, or a mere demonstration of power by busybodies. Againthe persons joining in the combination may have been induced soto act by payment of money or by some other consideration.There is I think no authority to be found which justifies the viewthat a combination of such a character, causing damage to thePlaintiff, would be lawful. Since there are many cases of combina-tions which directly result in injury to others, but do not fall withineither of those two categories mentioned by Lord Cave, onequestion is whether in the present case we are not confronted withfacts which, admittedly not within the first proposition, are orare not within the second. We may formulate the question thus:Was the real or predominant purpose of the combination to forwardor defend the trade or business interests of the Trade Union andits members and of the millowners ? If the answer is in the negativeit 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 ajust cause or excuse for taking or directing acts in combinationwhich 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 beingconsidered it is impossible to leave out of consideration the principlethat men are in general to be taken as intending the direct conse-quences of their acts (see the summing up of Fitzgibbon, L.J., inQuinn v. Leathem, 1901 A.C. at p. 499, which was approved in this16904 A6
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House). It may be worth noting that in the days of Erle, J., therewas often no other way of ascertaining the purpose of a con-spiracy. I should add that " motive " is clearly not the same thingas " intention ", but in many cases the one is the parent of theother, 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 mixedpurposes or motives the difficulties that arise on the question offact may be very great and it may be impossible to answer thequestion above stated in the affirmative.
It is worth while to note that Quinn v. Leathem is anexample of a mixed motive; for there the Defendants, being officialsand members of a Trade Union, combined to call out the Unionworkmen of the Plaintiff Leathem if he would not discharge somenon-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 todeal with Leathem. It is true that there was the finding of theBelfast jury that what the Defendants had done was done withmalice in order to injure the Plaintiff; but it can scarcely have beenin doubt that one at least of the motives actuating the Defendantswas 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 factsas set out in detail in Lord Brampton's speech show clearly that thewhole dispute between Leathem and the Trade Union originatedin Leathem's refusal to dismiss non-Union workmen. It must, how-ever, be assumed from the findings of the jury that the main objector purpose of the Defendants was to punish or injure Leathem andthat this was " malicious," whatever the precise evidence of malicemay have been. It was never suggested by anyone that if theDefendants' acts were at least partly in furtherance of TradeUnion interests that would be a defence to the action. The case ofConway v. Wade (1909 A.C. 506) may usefully be referred to in thisconnexion.
An obvious difficulty arises at the outset if we accept, as I do(as above stated), the view that the combination was between theRespondents and the millowners. The interests of these two groupswere very different and indeed they were in some respects conflict-ing. If it is proved, as the Lord Ordinary held, that the object of theRespondents was to benefit the Trade Union and its members andif it is to be inferred that the object of the millowners was to benefitthemselves by obtaining a species of monopoly in the matter ofmilling, is that sufficient to bring the case within the principle ofthe Mogul case ? It was argued with force that, accepting the doc-trine laid down in Sorrell v. Smith, you must look at the joint objectof the parties combining, and if they have substantially differentobjects, the decision in the Mogul case will not apply. I have care-fully considered this point, which is not unattractive, and I cannotfind it has ever been precisely dealt with in any of the cases. On thewhole, however, I have come to the conclusion that following theprinciple of the Mogul case, it is sufficient if all the various com-bining parties have their own legitimate trade or business intereststo gain, even though these interests may be of differing kinds.If indeed some of these parties were actuated merely by hate orvindictive spite or with no just excuse at all, I should doubtvery much whether the defence would succeed. But I thinkreasonable 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 Mogulcase would have had a different result if tea merchants had joinedin the combination of shipowners. And it is easy to imagine a casewhere shipowners and railway companies might wish to combine to
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get business though their interests were in some respects conflicting;and other examples will occur to everyone with a knowledge ofcompetitive trade. In my opinion the principle of the Mogul casewill protect persons who combine for their respective businessinterests if there is a certain identity of object, that whether theydo or not is a question of motive or object, and that the circum-stance that their business interests are by no means the same isnot a ground for holding that the combination is illegal.
My Lords, in my opinion, when it is proved or admitted thatthe Respondents had no personal ill-will towards the Appellants,the difficulties of this case begin. I do not propose to recapitulatethe facts, but it is to be remembered that there are a number ofcircumstances which might have justified a very adverse view ofthe Respondents' motives. I will summarise the most importantof 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 forciblyexpressed by Lord Mackay, that there was a combination betweenMr. Veitch and Mr. Skinner and some at least of the millownersto procure the embargo. Thirdly, the acts complained of wereobviously in the interests of the millowners on the Island sincethey secured a species of monopoly. Fourthly, Mr. Veitch's letterof the 19th January to Mr. Mackenzie is, I think, only consistentwith the view that there was a " deal" between Mr. Veitch, Mr.Skinner, and some at least of the millowners with regard to thelaying-on of the embargo, the general understanding being that ifan embargo were to be imposed by Mr. Veitch, the millownerswould concede the Union demand for 100 per cent. Union member-ship in the mills of the Island. Fifthly, Mr. Veitch apparentlyaccepted as true certain statements of Mr. Skinner as to the con-dition of the industry and as to the effect of the importation ofmainland yarn, which the least inquiry would have shown to beinaccurate. Sixthly, Mr. Veitch's elaborate report to Mr. Bevin(the General Secretary of the Union at that time) as to his groundsfor imposing the embargo is so extravagant, abusive and in-accurate in its terms that I find it difficult to understand how itcan have been written with a legitimate purpose. It was a carefullyconsidered document composed between the 14th January and the3rd February. It suggested (untruly) that the Appellants wereevading the stamp, deceiving the public, ruining the industry, andbringing distress to the Outer Hebrides, that they were " get-rich-" quick merchants " who cared nothing about the distress on theIslands, that the importation of mainland yarn was " killing the" industry," and that they were an " unscrupulous lot" who wereimporting "blackleg yarn." There was nothing said in the letterabout 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, andin fact it misled the General Council of the Union when it wasread on the 8th March, 1938. Seventhly, it should be observedthat no notice was given to the Appellants as to the intentionto apply the embargo and no opportunity given to them to ceaseusing mainland yarn if they were so advised. Lastly, it is astrange feature in the case that one at least of the avowed purposesof the acts of the Respondents was to secure the 100 per cent,membership of the Union in the mills, whilst the Appellants, whowere attacked, were completely unable to secure or to influencesuch a result, since they had nothing whatever to do with themanagement of the mills, and the result was to be secured, if at allby the " deal " with the millowners.
My Lords, there are certain explanations offered as regardsthese facts and no doubt some other circumstances to be borne in16904 A7
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mind, but I must confess that, if I were entitled to form a con-clusion simply from the documents and the shorthand notes ofthe trial, I should find it impossible to hold that the Respondentshad established that they and the millowners had combined simplyor mainly for the purpose of promoting their own interests, that is,those of the Trade Union and of the millowners respectively. ThisHouse, however, is always most reluctant to differ from the findingsof the trial judge on a question of fact and a fortiori when theAppellate Court has come to a like conclusion. The question hereis mainly one of the objects or motives of the Respondents, bothof whom were called as witnesses and elaborately cross-examined.It has been well observed that if they were, as seems probablefrom the shorthand notes, both stupid and wrong-headed, the cir-cumstance may afford an explanation of acts and writings which inthe case of persons of greater acuteness would tend strongly infavour of a sinister motive. The Lord Ordinary appears to havebelieved these persons, though he was not very pleased with themas witnesses. The majority of the Inner House agreed with him.I do not feel at liberty to differ.
My conclusion therefore must be based on these facts: On theone hand it is proved that the Respondents and the millownerswere not actuated by an intention to injure as a predominantmotive in their minds. On the other hand they were acting, ormust be taken to have been acting, with the main object of benefit-ing themselves in this sense, that the Respondents were seeking toadvance what they conceived to be the interests of their TradeUnion and their members, and the millowners were seeking toobtain an obvious trade advantage for themselves, and no doubt ina rather general sense they all had a common interest in theprosperity of the Harris Tweed industry. The case, therefore, isbrought, though I think with difficulty, within the principle of theMogul case, as explained in later cases, and the Appeal must fail.
As regards the ultimate result, I must add this warning. Theonly question before the Lord Ordinary was as to whether the thenPetitioners were entitled to have the Respondents interdicted frominstructing members of the Trade Union at Stornoway to refuse toload or unload consignments of yarn or unfinished tweeds consignedto or despatched by the petitioners. The original embargo wasdirected on the 19th January, 1938, and extended to the loading offinished and unfinished tweeds despatched by the petitioners, buton the 25th January, 1938, it was modified by permitting the ex-portation of finished tweeds. An interim interdict was granted tothe Appellants on the 24th February, 1938, and the embargo thendropped. When the interim interdict was recalled on the 8th March,1939, it appears that the embargo was not re-imposed. The onlyquestion on appeal to the Inner House and to this House hasnecessarily been as to whether the interdict should have been con-tinued by the Lord Ordinary. On that matter the Courts werebound to consider the propriety of the action of the Respondentsand the millowners in the light of the views honestly entertainedby them at that time as to their respective interests and as to theactions and conduct of the Appellants. In so far as those viewshave since been shown to have been ill-founded, they would notnow justify the re-imposition of the embargo. If such a step asthat is contemplated, the matter ought to be reconsidered in viewof the circumstances and facts as they are now known to exist.
My Lords, for the reasons above stated I concur in the proposedmotion.
Lord Thankerton
MY LORDS,
The Appellants are seven out of the original petitioners in apetition and complaint by nine small producers of Harris Tweedin the Isle of Lewis, presented on the 24th February, 1938, seekingto have the present Respondents interdicted from interference withthe consignments of yarn or unfinished tweeds consigned to ordespatched by the petitioners at the port or harbour of Stornaway.The petition and complaint was dismissed, after proof, on the meritsby the Lord Ordinary (Lord Jamieson) on the 8th March, 1939,and his interlocutor was adhered to by the Second Division (LordMackay dissenting) on the 22nd December, 1939, and the reclaim-ing motion by the nine petitioners was refused, but, in respect ofan undertaking by the Respondents not to continue the embargoagainst the Petitioners William MacLeod and Donald Campbellthe latter were awarded the expenses incurred by them in the re-claiming motion. The remaining petitioners appeal against theseinterlocutors.
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 ".
In the record the Appellants plead two grounds of action in theirfirst 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."
Any evidence bearing on the fourth plea was negligible, and theAppellant made no case on it before this House, but confined hiscontentions 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 maysay at once that, in my opinion, the first plea is quite inapt to coverthe wider conspiracy, and should have been amended, which couldhave been done, without difficulty, as the case on the wider con-spiracy has been fully dealt with, apparently without objection onthis point. The Lord Ordinary held that the narrower conspiracyhad been proved in the sense of joint action by the Respondents,but he held that the wider conspiracy had not been proved, andthat the alleged intent of the Respondents to injure the Petitioners'trade had not been proved. In the Inner House, the learned Judgesof the Second Division held that the wider combination had beenproved, but (Lord Mackay dissenting) that the intent to injure hadnot been established. Before your Lordships the Appellants con-fined their case to the wider combination, as regards which theyhad the favourable decision of the Second Division. The evidencewas very fully dealt with in the opinions of the learnedJudges, and I find it unnecessary to deal with it in detail.
My Lords, as regards the proof of the wider combination, I amprepared—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."
This leaves the crucial question as to whether the Appellants haveproved that the Respondents' intention was to injure the Appellants'trade, as to which the Appellants have the findings of both the lowerCourts against them. The reluctance of this House to interfere withsuch findings, and in particular with the findings of the trial Judge,who has had the advantage of seeing the witnesses, which hasrepeatedly been expressed, is all the stronger in a case such as thepresent, in which the intention of the Respondents, both of whomgave evidence, was in issue. That Veitch, for instance, was stupidor wrongheaded, or acted without making proper enquiries may bequite consistent with the absence of any intention to injure, andthe Lord Ordinary has so found; indeed, stupidity or wrongheaded-ness might tend to disprove any such intention. The Lord Ordinarysums 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
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" 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."
My Lords, the critical examination of the evidence by the Appel-lants' counsel and his able argument, have entirely failed to satisfyme that I am in a position to set aside the conclusion of the LordOrdinary; on each point of criticism in regard to which thereappeared to be ground for argument, I felt satisfied that a personalobservation of the witness under examination would have been amaterial help to the solution of the point, and this is the very founda-tion of the reluctance of an appellate court to interfere in suchcircumstances.
In this view of the facts I find it unnecessary to deal further withthe previous decisions on this branch of the law, as there can beno doubt that the Appeal fails. But I desire to refer to oneaspect 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, andthat is as to what limit is to be placed as to the means by whichthe pressure is operated in these cases. In the present case thepressure was applied by means of action by the dockers, who werein no sense employees in, or directly connected with, the trade inHarris tweed; but employees in this trade were members of thesame Union, and the interest of the dockers and the trade employeesin the Union and its welfare were mutual, and I can see no groundfor holding that it was not legitimate for the Union to avail itselfof the services of its docker members to promote the interests ofthe Union. On the other hand, I doubt if it would be legitimatefor 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 inorder to make clear that, in my opinion, it does not arise for decisionin this case, and that I express no opinion on it.
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 accountof the facts which my noble and learned friend the Lord Chancellorhas given in his Opinion. That account, which I agree with andadopt, renders a separate narrative from myself superfluous. Ishould, however, observe that, in regard to the issue whethercertain millowners, in particular Mr. Skinner, were parties to thecombination, I am prepared, like the Lord Justice Clerk, for pur-poses of this case to assume that they were. This view was stronglypressed in argument by counsel for the Appellants. It is obviouslythe assumption which is most favourable to them. Lord Mackay,in his dissenting judgment, forcibly relied on his conclusion thatthere was a compact between the Respondents and the millowners.On the whole I think it is fairer to the Appellants to proceed onthat assumption. In the end it does not appear to me to affect theissue. There was clearly, in any case, combination between thetwo Respondents, who were both responsible Trade Union officials.
The cause of action set out in the Appellants' claim is for aconspiracy to injure which is a tort. The classical definition ofconspiracy is that given by Willes J. in advising the House of Lordsin 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 observingthat though the crime is constituted by the agreement, the civil rightof action is not complete unless the conspirators do acts inpursuance of their agreement to the damage of the Plaintiffs.
The question is then what were the unlawful acts with which theRespondents were charged, or what were the unlawful means whichthey employed to do acts otherwise lawful, in other words, whatis the legal right of the Appellants which is infringed, or what is thelegal wrong committed by the Respondents. The concept of acivil conspiracy to injure has been in the main developed in thecourse of the last half century, particularly since the great case ofthe Mogul Steamship Co. v. McGregor, 23 Q.B.D. 598 and 1892A.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 A.C. 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 gistof the wrong, though damage is necessary to complete the cause ofaction. The opposite view had been expressed by Palles C.B. inKearney v. Lloyd, 26 L.R.I. 268. He held that the gist of the actionwas not the conspiracy itself, but the particular wrongful acts donein pursuance of it, and that the cause of action must exist if the alle-gation of conspiracy were struck out. Later cases, however, havedecisively held the contrary, as I shall show. The rule may seemanomalous, so far as it holds that conduct by two may be actionableif it causes damage, whereas the same conduct done by one, causingthe same damage, would give no redress. In effect the Plaintiff'sright is that he should not be damnified by a conspiracy to injure
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him, and it is in the fact of the conspiracy that the unlawfulnessresides. It is a different matter if the conspiracy is to do acts inthemselves wrongful, as to deceive or defraud, to commit violence,or to conduct a strike or lock-out by means of conduct prohibited bythe Conspiracy and Protection of Property Act, 1875, or whichcontravenes the Trade Disputes and Trade Unions Act of 1927.But a conspiracy to injure is a tort which requires carefuldefinition, in order to hold the balance between the Defendant'sright to exercise his lawful rights and the Plaintiff's rightnot to be injured by an injurious conspiracy. As I read theauthorities, there is a clear and definite distinction which runsthrough 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 insome cases to apply this distinction. It depends largely on mattersof fact, but also on a legal conception of What is meant by " inten-" tion to injure." The Appellants contend that there was here anintention to injure even though it is negatived that the Respondentswere actuated by malice or malevolence. In substance what theAppellants say is that the issue between the millowners and theyarn importers was one between two sets of employers, in whichthe men were not directly concerned, and that the Union'saction was an unjustifiable and meddlesome interference with theAppellants' right to conduct their own businesses as they pleased,and that the Union were pushing into matters which did notconcern them. The Appellants further say, as I understand theircase, that this unjustifiable intrusion was due to the Union's desireto secure the assistance of the millowners towards the Union'sobject, which was to get 100 per cent, membership in the textileworkers, and thus there was no common object among the two mainparties to the combination; each set had its own selfish object. Ineffect, it was said, the Union were bribed by the millowners tovictimize the Appellants in their trade by the promise of help in thematter of the Union membership, which was entirely foreign to thequestion of the importation of yarn. These considerations, it wassaid, constituted "malice" in law, even if there was no malevolence,and prevented the Respondents from justifying the injury whichthey wilfully did to the Appellants' trade, because they could notassert any legitimate interest of their Union which was relevant tothe action taken. Actual malevolence or spite was, it was said, notessential. There was no genuine intention to promote Union interestsby the stoppage of importation. The interference with the Appel-lants' trade by stopping import of yarn was wilful and ultroneousaction on the part of the Union supported by no relevant Unioninterest. It was malicious or wrongful because it was intentionallyand unjustifiably mischievous, even though not malevolent.
Before I refer to the authorities, there are some preliminaryobservations which I desire to make. I shall avoid the use of whatLord Bowen described as the " slippery " word " malice " except inquotations. When I want to express spite or ill will, I shall use theword malevolence. When I want to express merely intentional for-tious conduct I shall use the word wrongful. As the claim is for atort, 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 anabsolute or unconditional right. It is only a particular aspect of thecitizen's right to personal freedom, and like other aspects of thatright is qualified by various legal limitations, either by statute orby common law. Such limitations are inevitable in organisedsocieties where the rights of individuals may clash. In commercialaffairs each trader's rights are qualified by the right of others to
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compete. Where the rights of labour are concerned, the rights ofthe employer are conditioned by the rights of the men to give orwithhold their services. The right of workmen to strike is anessential element in the principle of collective bargaining. It is truethat under the Combination Act of 1800 it was a criminal offence forworkmen to combine together for the purpose of securing higherwages or shorter hours of work or of controlling employers on theconduct or management of their business. That Act was repealedby the Acts of 1824 and 1825, but these Acts introduced variousrestrictions on the conduct of strikes. But as Lord Bramwellsaid 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 civilsuit), 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, itgave no sanction to combinations which had for their immediatepurpose the hurt of another. I attach great value to that clear andsimple statement, which has not been superseded but confirmed bythe more elaborate later discussions. It is clear that this right ofworkmen cannot be generally exercised without interfering withthe employers' free conduct of their own business. Erle J. addedthat either side had the right to study to promote their own advan-tage and to combine with others for that purpose. His summing upwas quoted with approval by Lord Justice Bowen in the MogulSteamship Co.'s case, 23 Q.B.D. 598 at pp. 618, 619, as applyingequally to traders as to employers and workmen. It was alsoapproved in the same case by Fry L.J. at p. 625. The sameprinciple is again stated in Allen v. Flood (supra),Quinn v.Leathem (supra), Ware and de Freville, Ltd. v. Motor TradeAssociation, 1921, 3 K.B. 40, and in Sorrell's Case (supra). Thelanguage of Erle J. is certainly a clear statement of a far-reachingprinciple. The same idea is more elaborately enunciated byLord Herschell in Allen v. Flood (1898) A.C. 1at 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 criticisedadversely by Lord Lindley in Quinn's Case at p. 537, but in myopinion it states the law correctly.
It is thus clear that employers of workmen or those who like theAppellants depend in part on the services of workmen, have in theconduct of their affairs to reckon with this freedom of the men and torealise that the exercise of the men's rights may involve somelimitation on their own freedom in the management of their busi-ness. Such interference with a person's business, so long as thelimitations enforced by law are not contravened, involves no legalwrong against the person. In the present case the Respondentsare sued for imposing the " embargo," which corresponds to callingout the men on strike. The dockers were free to obey or not toobey the call to refuse to handle the Appellants' goods. Inrefusing to handle the goods they did not commit any breachof contract with anyone; they were merely exercising their ownrights. But there might be circumstances which renderedthe action wrongful. The men might be called out in breachof their contracts with their employer, and that would be clearlya wrongful act as against the employer, an interference with hiscontractual right, for which damages could be claimed not onlyas against the contract-breaker, but against the person who coun-selled or procured or advised the breach. This is the principle laiddown in Lumley v. Gye, 2 E. and B. 216, which Lord Macnaghten inQuinn 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 amere interference with a person's qualified right to exercise his freewill in conducting his trade. A legal right was violated and neededjustification, if it could be justified. This distinction was drawnby the majority of the Lords in Allen v. Flood (supra), who dis-approved of the dicta in Bowen v. Hall, 6 Q.B.D. 333, and Temper-ton v. Russell, 1893, 1 Q.B. 715, that every person who persuadesanother not to enter into a contract with a third personmay be sued by that third person if the object were tobenefit himself at the expense of such person. But in Allen v.Flood (supra) this House was considering a case of an individualactor, where the element of combination was absent. In that case,it was held, the motive of the Defendant is immaterial. Damagedone intentionally and even malevolently to another, thus, it washeld, gives no cause of action so long as no legal right of the otheris infringed. That I take to be the English rule laid down by thisHouse in Bradford Corporation v. Pickles (1895) AC 587, and inAllen v. Flood (supra), though in Sorrell v. Smith (supra), at p. 713,Lord Cave doubts the proposition and says that in general what isunlawful in two is not lawful in one. But this seems to be incon-sistent with the express rulings in Allen v. Flood (supra). Thougheminent authorities have protested against the principle, it must,I think, be accepted at present as the law in England. The preciseissue does not arise in this case, which is concerned with combina-tion or conspiracy. I need not consider whether any qualificationmay hereafter be found admissible.
Thus for purposes of the present case we reach the position thatapart from combination no wrong would have been committed.There was no coercion of the dockers. There were no threats tothem. They were legally free to choose the alternative coursewhich they preferred. In Quinn v. Leathem(supra) a wide meaningwas given to words like threats, intimidation or coercion, especiallyby Lord Lindley, but that was not the ratio decidendi adopted bythe 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 eitherwith legality or illegality. They are not correctly used in thecircumstances of a case like this. In Allen v. Flood, Ware'scase, and Sorrell's case, a more accurate definition was given. Ishould also refer to the admirable discussion by Peterson J. inHodges v. Webb (1920), 2 Ch. 70. There is nothing unlawful ingiving a warning or intimation that if the party addressed pursuesa certain line of conduct, others may act in a manner which hewill not like and which will be prejudicial to his interests, so longas nothing unlawful is threatened or done. In LordBuckmaster'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 unlawfulcoercion would create by itself a cause of action, but there wasnothing of the sort in this case.
The only ground in this case on which the Appellants couldestablish a cause of action in tort is by establishing that therewas a conspiracy to injure, which would take the case out of thegeneral ruling in Allen v. Flood (supra) and bring it within theexception there reserved, e.g. by Lord Herschell at p. 123, when hesaid, "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 thatthe decision in Allen v. Flood (supra) could have no bearing on anycase which involved the element of oppressive combination. Thesereservations were acted upon in Quinn v. Leathem (supra) to whichI 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).
The distinction between conduct by one man and conduct bytwo or more may be difficult to justify. Lord Sumner in Sorrell'scase (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 hadremained a sole trader. The fact that the sole trader em-ployed servants or agents in the conduct of his businesswould not in my opinion make these others co-conspiratorswith him. The special rule relating to the effect of a com-bination has been explained on the ground that it is easierto resist one than two. That may appear to be true if acrude illustration is taken, such as the case of two men attackinganother, but even there it would not always be true if, for instance,the one man was very strong and the two very weak. And thepower of a big corporation or trader may be greater than that ofa large number of smaller fry in the trade. This explanation ofthe rule is not very satisfactory. The rule has been explained ongrounds of public policy. The Common Law may have taken theview that there is always the danger that any combination may beoppressive, and may have thought that a general rule againstinjurious combinations was desirable on broad grounds of policy.Again any combination to injure involves an element of deliberateconcert between individuals to do harm. Whatever the moral orlogical or sociological justification, the rule is as well established inEnglish law as I here take to be the rule that motive is immaterialin regard to the lawful act of an individual, a rule which has beenstrongly criticised by some high legal authorities who would solvethe apparent antinomy by holding that deliberate action, causinginjury, is actionable, whether done by one or by several.
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A conspiracy to injure involves ex vi termini an intention toinjure, or more accurately, a common intention and agreement toinjure. Both " intention " and " injure " need definition. Theword " injure " is here used in its correct meaning of " wrongfulharm," damnum cum injuria, not damnum absque injuria. Thatobviously raises the question, when is the harm wrongful ? " Inten-tion " is generally determined by reference to overt acts and to thecircumstances in which they are done. It is in this way that anintention to deceive, which is an essential element in the action ofdeceit is ascertained. Lord Watson in Allen v. Flood (supra) at p. 98warns 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 havereferred to in R. v. Rowlands (supra) at p. 686, seems to have inmind an external object when he distinguishes combinations for thepurpose of obtaining a lawful benefit for the combiners from com-binations which have for their immediate purpose the hurt ofanother. I do not think that Erle J., in these words intends a con-trast between what is immediate and what is remote. If he sointended, the later authorities would, I think, contradict such aview. A competitive combination of traders to undercut pricesmay be said to have the immediate result of excluding rivals fromthe trade, but if its real object is the ultimate increase of businessand profits by the traders it is lawful (Mogul case, supra). A per-fectly lawful strike may aim at dislocating the employer's businessfor the moment, but its real object is to secure better wages orconditions for the workers. The true contrast is, I think, betweenthe case where the object is the legitimate benefit of the combinersand the case where the object is deliberate damage without anysuch just cause. The Courts have repudiated the idea that it isfor 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, suchas spite or ill will, malevolence or a wanton desire to harm withoutany view to personal benefit is meant. But motive is often usedas meaning purpose, something objective and external, as con-trasted with a mere mental state. " Object" is, I think, the mostappropriate word. How far malevolence is to be regarded as anessential element in the law of conspiracy has led to differences ofopinion, particularly in Sorrell's case (supra). Proof of malevolentfeelings, coupled with proof that the combiners had in view notangible benefit to themselves would clearly I think be enough toshow that the combination was wrongful. But it does not followthat malevolence is a necessary element to constitute the tort. LordCave in Sorrell's case at p. 712 stated the law, at least for purposesof 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 completeand accurate, though it is no doubt in need of qualification; forinstance, it is limited to trade and does not in terms refer to mixedobjects. But while it seems to me to emphasise the contrastI have found throughout the cases, it does not mentionmalevolence. I do not think it differs in substance from LordDunedin's view in the same case. At p. 730 he states the contrastbetween a conspiracy to injure on the one hand and on the othera set of acts dictated by business interests. When he emphasisesthat a conspiracy to injure involves mens rea, the guilty intention,he does not necessarily mean that malevolence is essential. LordBuckmaster takes the same contrast between the case where the
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purpose of the combination is the deliberate injury of a third personand where it is the promotion of legitimate trade interests: LordSumner, however, seems, at least in part of his opinion, to regardproof of actual spite, malevolence or ill will as essentialthe cause of action for conspiracy to injure. At p. 737 he drawsa 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 andqualifications principally in reference to mixed motives.
On this question whether malevolence is a necessary element inconspiracy to injure there appears to be some opposition betweenLord Sumner and Lord Cave, who not only leaves out that elementin stating his two propositions, but in express terms says that amotive of spite is not an essential element of the offence. LordAtkinson agreed with Lord Cave. Lord Dunedin does not in termsexpressly mention it. He is content to rest upon mens rea, a desireto injure. Lord Buckmaster agrees generally with Lord Dunedinthough in one place he says that the onus is on the Plaintiff to provethat the act was spiteful and malicious.
I do not read these opinions as differing on the essential pointthat where the acts are per se lawful, the presence or absence ofintention to injure is the determining feature, and that such an in-tention is rebutted by a finding that the combiner's real object was toadvance their interests. On principle I am of opinion that malevo-lence is no more essential to the intent to injure, the mens rea, thanit is to the intent to deceive. On practical grounds also I preferthat view. To leave to a jury to decide on the basis of an internalmental state, rather than on the facts from which intent is to beinferred, may be to leave the issue in the hands of the jury as clayto mould at their will. After all, the Plaintiff has to prove actualdamage which can only result from things done. Mere malevolencedoes not damage anyone. I cannot see how the pursuit of a legiti-mate practical object can be vitiated by glee at the adversary'sexpected discomfiture. Such glee, however deplorable, cannotaffect the practical result. I may add that a desire to injure doesnot necessarily involve malevolence. It may be motivated bywantonness or some object not justifiable.
As to the authorities, the balance, in my opinion, is in favour ofthe 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. Itthus becomes necessary to consider the further arguments on whichthe Appellants base their claim to succeed.
I approach the question on the assumption that the Appellantshave to prove that they have been damnified by tortious action,they do not prove that by showing that they have been harmedby acts done by the Respondents in combination, these acts beingapart from any question of combination otherwise within theRespondents' rights. It is not then for the Respondents to justifythese acts The Appellants must establish that they have beendamnified by a conspiracy to injure, that is, that there was a wilfuland concerted intention to injure without just cause, and consequentdamage. That was the view accepted by Lords Dunedin andBuckmaster in Sorrell s case (supra). Lord Sumner proposes thequestion without deciding it. But the form in which he states it
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seems to me to suggest the answer. It is not a question of onus ofproof. It depends on what is the cause of action. The Plaintiffhas to prove the wrongfulness of the Defendant's object Of course,malevolence may be evidence tending to exclude a legitimate objector to establish a wrongful object.
I have been attempting to define the legal background of thetort, a conspiracy to injure, before I seek to express my opinion onthe Appellants' contentions. I have not sought to reconcile allthat has been said on the question in the authorities. For variousreasons, perhaps obvious enough, some due to the earlier combina-tion laws, some perhaps influenced by personal predilections ofsome judges in the earlier years of this century, reconciliation ofall the observations is impossible. But after all, law does notdepend on balancing expressions, as R. S. Wright in hisLaw of Criminal Conspiracy at p. 51 wisely observed. I haveattempted to state principles so generally accepted as to pass intothe realm of what has been called jurisprudence, at least in EnglishLaw, which has for better or worse adopted the test of self-interestor selfishness as being capable of justifying the deliberate doing oflawful acts which inflict harm, so long as the means employed arenot wrongful. The Common Law in England might have adopted adifferent criterion and one more consistent with the standpoint of aman who refuses to benefit himself at the cost of harming another.But we live in a competitive or acquisitive society, and the EnglishCommon Law may have felt that it was beyond its power to fixby any but the crudest distinctions the metes and bounds whichdivide the rightful from the wrongful use of the actor's own freedom,leaving the precise application in any particular case to the jury orjudge of fact. If further principles of regulation or control are tobe introduced, that is matter for the Legislature. There are notmany cases in which the Court has had to consider these problems.Actions of this character are not of everyday occurrence like actionsfor negligence. I must howeverYefer to the details of certain cases.
I shall first refer to Quinn v. Leathem (supra), decided by thisHouse on appeal from Ireland. In outline the facts were verysimple. Leathem, a butcher, had been employing non-Unionlabour. The policy of the Union was that only its members shouldbe employed. Leathem was willing that his men should join theUnion and offered to pay their fines and entrance money.The Defendants, the Union officials, refused that offer and saidthe men could not be admitted to the Union but must walk thestreets for twelve months. Leathem refused to discharge the men.A few months later he was warned that if he continued toemploy non-Union men, the men who worked for Munce, oneof Leathem's customers, would be called out unless Munce ceasedto take his meat from Leathem. Munce thought it more prudentto cease to get his meat from Leathem, who lost the benefit of hiscustomer's trade. This was the damage claimed in the action inwhich a conspiracy to injure was alleged. I disregard the case of theman Dickie who was called out in breach of his contract withLeathem.
Apart from the savage expressions used by the defendants andperhaps the desire of the defendants that the men should walk thestreets for twelve months, and the circumstance that Leathem hadoffered to satisfy the Union's demands, the case might well havebeen regarded as one in which ordinary measures had been takento promote the Union's interests by excluding non-Union labour. InWare's case (supra) at p. 68 Scrutton L.J. pointed out the closeparallel with the Glasgow Fleshers' case, 35 S.L.R. 645, a strikingcase of " exclusive dealing " in trade affairs enforced by threats orwarnings by the defendants in concert that they would withholdtheir custom from the salesmen if they sold meat to the plaintiff.
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The object was to limit competition. The decision in the GlasgowFleshers case (supra) was approved by this House in Sorrell's case(supra) and also by Lord Lindley in Quinn's case at p. 539. Butthere was in Quinn's case the special evidence of vindictive purpose.It was thus a question for the jury to decide whether there was anintention 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 theevidence or any of them not to deal with the Plaintiff or not tocontinue in his employment, and were such persons so induced notto do so. The jury answered, Yes. The Judge told the jury thatacts done with the object of increasing the profits or raising thewages of any combination of persons, such as the society towhich the Defendants belonged, by reasonable and legitimatemeans were perfectly lawful and were not actionable so long as nowrongful acts were maliciously—that is to say intentionally—doneto injure a third party. He put the usual and correct alternativebetween acts done to secure or advance the combiners' own interestsand acts intended and calculated to injure the Plaintiff in his trade.He told the jury that intention was to be inferred from acts andconduct proved. There is no report of the summing up as a whole.It is useless to speculate whether the jury might not haveproperly found that if the objects or motives were mixed the pre-dominant motive or object was to advance the Union's policywhile 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 interestsor objects of a Trade Union. But this is fact, not law.
In the Irish Court of Appeal, where the case is entitled Leathemv. Craig, 1899, 2 I.R. 667, the judgment which most appeals to meis that of Holmes L.J., which Lord Robertson adopted in totoin his speech in this House, and Lord Macnaghten approved.Holmes L. J. said that if there was illegality in a combination it mustbe looked for in the object proposed. He treated the finding ofthe jury as decisive.
It seems to me that much of the discussion which has centredround Quinn's case (supra) merely deals with the issue of fact, andeither approves or disapproves of the justness of the jury's finding.But the decision of the House is of great importance as giving theauthority of this House to the principle that a conspiracy to injuregives a cause of action. That rule was well established and had beenapplied in Temperton v. Russell (supra), and approved by thisHouse in Allen v. Flood(supra). Quinn's case (supra) was in factthe complement of Allen v. Flood (supra). The latter case gaveeffect to the rule where there was no combination, the former to therule where there was combination. Of the six Lords of Appeal whotook part in the debate in Quinn's case (supra) the ratio decidendiof five was based upon a conspiracy to injure. I refer to LordHalsbury (loc. cit.) at p. 505, Lord Macnaghten (p. 511), LordShand (p. 513), Lord Robertson (p. 532), where he adopts HolmesL.J.; Lord Brampton at pp. 527 and 528. The views of these Lordsare enough to decide what is the ratio decidendi adopted in thisHouse. Lord Lindley (at p. 539) seems to base his judgment oncoercion and threats by numbers, but without clearly defining whathe means by these neutral terms which have since been elucidatedin this House. I do not think it necessary further to consider thecross currents and observations which are found in some of thespeeches. Lord Shand sums up his view (and, as it appears to me,the ratio decidendi of the House) very clearly and accurately atp. 515. ' Their [the Defendants'] acts were wrongful and malicious
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" 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 theAppellants here unless they can get rid of the findings of the Courtsbelow. Before I examine the grounds on which they seek to dothis 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 thecase 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 ofdefalcations of which he was guilty. The facts were somewhatcomplicated. 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 anintention to deter others from similarly offending. Equally thedesire to enforce repayment of defalcations may be actuated byeither 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 wouldrequire careful consideration in view of earlier and later decisionsof this House. Romer L.J., however, wisely observes at p. 618that in determining whether the injurious action is " justified"regard must be had to the circumstances of each case as it arisesand that it is not practically feasible to give an exhaustive definitionof 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 notarise because the Union men objected to work with the Plaintiffs.I cannot find any analogy between the facts in that case and thefacts as found in the present case.
On the other hand, two later cases show how far the Courts havegone in upholding the rights of persons to freedom to pursue theirown interests in their trade even at the cost of seriously impedingthe 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 appliedin Thorne v. Motor Traders' Association, 1937 A.C. 797. TheDefendants were an Association of motor car manufacturers whoadopted a scheme and rules for maintaining fixed prices for theirgoods. These prices were published. If any person departed fromthese 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 beplaced on the " stop list" and he would be similarly pilloried.Persons on the " stop list" were, however, allowed to purge theiroffence by paying a fine if the Association accepted it. The Plaintiff,a motor dealer who was not a member of the Association, had beenplaced on the " stop list" in accordance with the scheme. Thescheme was a most ruthless and efficient system aimed at securingthe mutual benefit of the associated traders at whatever loss or incon-venience to outsiders. The Plaintiff complained that all he wantedwas to exercise his lawful freedom to buy and sell cars ashe desired. It was contended that the system adopted by theDefendants 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 Courtof Appeal held that no legal wrong was committed, because theDefendants had done nothing unlawful, and the combination wasnot 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 securingprice maintenance. The elaborate system was devised solely withthat object. The Court of Appeal rejected the contention that themethod adopted amounted to coercion or threats. On this lattertopic much the same opinion was expressed by this House in Sorrellv. Smith (supra), already referred to by me. Apart from thegeneral exposition of the law of civil conspiracy to injure whichit contains it is important in dealing with the present Appellant'ssubmissions because it placed on a wide basis the businessinterests, protection or advancement of which would prevent itbeing held that the Defendants had acted with intention to injurethe Plaintiff. The Defendants, an Association of newspaper pro-prietors, in the course of a dispute between two rival Associationsof newspaper dealers, had intervened to support the policy ofone Association by stopping supplies to the Plaintiff, a retail dealerwho had adhered to the side of the other. Russell J., as he thenwas, the trial Judge, held that the Defendants had no justificationfor interfering with the Plaintiffs' freedom of trade, because theyhad no direct interest in the conflict between the two Associations.In Lord Sumner's words at p. 731, the Judge's view was that theDefendants were well meaning busybodies who intimidated thirdparties, and so meddled with the Plaintiffs' business in a matterwhich was no business of theirs because, as he held, they wanted acontrolling decision in the dispute. The Court of Appeal and thisHouse reversed the decision of the Judge on the short ground thatthe real purpose of the newspaper proprietors was to promote thecirculation 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 directinterest in the importation of yarn. On the facts found, rightlyas I think, they were of opinion that the prosperity of the industryin Harris Tweed was jeopardised by the importation. It is notfor the Court to decide whether this opinion was reasonableor not. It was a genuine opinion. It cannot be said that it wasa 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 theirUnion's interests by promoting the interest of the industry on whichthe men's wages depended. On these findings, with which I agree,it could not be said that their combination was without sufficientjustification. Nor would this conclusion be vitiated, eventhough their motives may have been mixed, so long as the real orpredominant object, if they had more than one object, was notwrongful. Nor is the objection tenable that the Respondent's realor predominant object was to secure the employer's help to get100 per cent, membership of the Union among the textile workers.Cases of mixed motives or, as I should prefer to say, of the presenceof more than one object, are not uncommon. If so, it is for thejury or judge of fact to decide which is the predominant object,as it may be assumed the jury did in Quinn's case (supra) whenthey decided on the basis that the object of the combiners wasvindictive punishment, not their own practical advantage. Acurious 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 towithhold their subscriptions from the incumbent, partly, as thejury found, with the intention of promoting the religious interestsof the parish, and partly with the intention of obliging the incum-bent to resign. Andrews J. expressed the view that the formerwas 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 injureextends beyond trade competition and labour disputes. Thompson
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v. British Medical Association, 1924 AC 764, shows that it mayextend to the affairs of a profession, as was expressly stated inthat case at p. 771 in the judgment of the Privy Council. Byway of contrast, Gregory v. Duke of Brunswick,6 M. and G.953, may be regarded as a striking illustration of what might beheld to constitute a conspiracy to injure; what was alleged was aconspiracy to hiss an actor off the stage in order to nun him. Towhat legitimate interests other than those mentioned the generaldoctrine may extend I do not here seek to define, since beyondquestion it extends to the present case, whether the object of theaction were the prosperity of the industry or the obtaining 100 percent, membership. But the objects or purposes for which combina-tions may be formed are clearly of great variety. It must be leftto the future to decide on the facts of the particular case, subjectto the general doctrine, whether any combination is such as togive rise to a claim for a conspiracy to injure.
But the object of securing 100 per cent. Union membership, ifit were operative in inducing the Respondents to combine with theemployers, was relied on by the Appellants on other grounds asvitiating the combination. It was objected that there could be nocombination between the employers and the Union because theirrespective interests were necessarily opposed. I think that is afallacious contention. It is true that employers and workmen areoften at variance because the special interest of each side conflictsin a material respect as, for instance, in questions of wages, con-ditions of hours of work, exclusion of non-Union labour. Butapart 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 otherin wages. Hence a wider and truer view is that there is a com-munity of interest. That view was acted upon in the present casein regard to the essential matter of yarn importation. As to theseparate matter of the Union membership, while that was somethingregarded as important by the Respondents it was probably regardedby the employers as a matter of indifference to them. It was, in anycase, 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 betweenparties to a combination. There must, however, be sufficient identityof object, though the advantage to be derived from that same objectmay not be the same.
The Appellants have further contended that the " deal" referredto in the Respondent Veitch's letter was a bargain by which theUnion sold to the employers the dockers' aid in return for theemployers' aid in regard to Union membership. In other words,the contention was that the Respondents or the Union were bribedand were mercenaries, not interested in the embargo except for thereward which was in its nature unrelated to the embargo. Thefacts, however, were not as the contention assumes, so that I neednot discuss whether a party to a combination whose interest wasmerely separate and mercenary, could ever be held to have alegitimate interest or justification for harm done in pursuance ofthe 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 saythat both sections were members of the Union, and there was in myopinion a sufficient community of interest even if the matter isregarded from the standpoint of the men, as individuals, and notfrom the standpoint of the Respondents, who were the only partiessued. Their interest, however, was to promote the advantage of theUnion as a whole.
In my opinion, the judgment appealed from should be affirmedand the appeal dismissed.
Lord Porter
MY LORDS,
The circumstances relevant to be considered in this case extendover a considerable period and the conclusions to be drawn fromthem demand a close scrutiny of the evidence.
I need not state the facts; that has already been done, but Imust set out the inferences which have been drawn from them andconsider 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 overa wide area of somewhat obscure law as to which so far as it isnecessary your Lordships must find a solution.
In a matter so difficult, however, I should not feel justified inexpressing a concluded opinion upon any matter which is notessential for the determination of the case. I propose therefore tostate with what accuracy I can the exact findings upon which Ithink a conclusion of law has to be pronounced.
It is unnecessary to emphasize the principle so often recognisedby your Lordships, that in all cases where facts have to be reviewed,it is undesirable that the findings of the Courts below should bedisturbed by a Court of Appeal unless it appears that those findingsare clearly wrong, and more especially that it is undesirable to doso where the conclusions reached must to a large extent dependupon the demeanour of the witnesses and the impression formed bya tribunal which has seen them and can judge of their honesty andaccuracy.
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 beenpossible to judge them to be men who clearly foresaw the injurywhich their acts would produce and to have intended that injury, orto have thought them muddle-headed, obstinate and prejudiced,but still honestly desirous of doing what they considered beneficialto their Trade Union and anxious only to promote its interests, eventhough their acts might be prejudicial to some or all of the employersof the labour which they represented. Both Courts took the latterview. One cannot be too logical in these matters or expect adefender to have an exact apprehension of the consequences of hisacts or clearly to appreciate how the methods he adopts for effectingthe end at which he aims, will work. His action may inevitablycause 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 bythe opinion of the judge who saw and heard the witnesses, and I donot find myself qualified to criticize or correct his conclusions as tothe purpose which the defenders had in mind in following the pathalong which they travelled.
I should allow myself more latitude in dealing with the questionwhether there was a combination between the mill-owners or someof them and the two defenders sued, because the material for judg-ment is, I think, more abundant and because the Inner House hastaken a view contrary, it is true, to that of the Lord Ordinary, butstill one which must be shown to your Lordships to be wrong beforeit is interfered with.
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Having these considerations in mind, I find myself unable todiffer from the Lord Ordinary when he concludes that there was noconspiracy to injure, and if for my own part I had to decide thefurther question whether a combination between millowners anddefenders had been proved, I should not feel justified in formingan opinion contrary to his, but in agreement with the opinionalready expressed by the Lord Chancellor should not consider thiscombination established. I am the more emboldened to expressthis view as I think it has the support of the Inner House of theLord Justice Clerk and that Lord Wark, if he had himself hadto determine it, would have been of the same opinion, thoughundoubtedly 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. Skinnerto the effect that ii the Union took action and imposed an embargoagainst the importers of yarn, the Union in turn would be assistedby the mill-owners to get their 100 per cent, membership, and Iunderstand some of your Lordships to agree that the wider com-bination has been established. I am therefore prepared to treat thecase upon that footing.
If the meaning of a combination to injure were plain and if afinding that it had not been proved were enough, the view thatthere had been no combination to injure would be conclusive ofthe case. But as both the meaning of the phrase and the questionwhether a mere absence of intention to injure is all that is requiredto absolve the defenders from liability, are both in dispute, it isfirst of all necessary to state exactly what I believe the finding ofthe Lord Ordinary to have been. It is, I think, set out succinctly inthe 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 effectwas 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 Housethough the lack of consideration shown is severely criticized byboth.
The views of the Inner House are not dissimilar. I may quotefrom the Lord Justice Clerk and from Lord Fleming. The formersays: " 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;
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" 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."
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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 acombination to which Mr. Skinner at least and possibly also someof the millowners were parties, I omit to stress the still stronger viewexpressed 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 expressedbecause having regard to the arguments addressed to your Lord-ships I think it necessary to ascertain exactly what purpose theCourts below imputed to those who have been held to havecombined.
Both I think found that the stoppage of the importation of Main-land yarn was effected because Veitch and Mackenzie at any ratethought 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 agreementamongst themselves, and when that hope failed, put the strongestpressure they could upon the dissentient employers by refusing tohandle their material, whether in the shape of yarn or the finished orunfinished product.
The immediate purpose of the combination in this view was toprevent the importation of Mainland yarn and to bring about anagreement amongst the employers to use only that spun upon theIsland, the motive of the defenders being thereby to prevent thedanger of competition which they feared might cause a diminutionof wages and to bring about a state of affairs in which a 100 percent, membership of the Union would be attained in the ranks ofthe spinners and of the weavers—the motive of the millowners toincrease their profits and perhaps to eliminate competition inspinning.
No doubt the result of the embargo was necessarily to injurethose against whom it was exercised, but that was not found to beits purpose. Its object as found by the Lord Ordinary was to furtherthe defendants' own legitimate business, and if that was their intern-tion I should not consider them participants in an actionableconspiracy even though the inevitable result of the action whichthey took would be to ruin the importers of Mainland yarn.
This is the view of Holmes J. in Vegelahn v. Guntner (1896) 167Mass, 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
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" 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 thoughdelivered in a dissentient judgment. They were approved by LordCave in Sorrell v. Smith (1925) A.C. 700 at p. 714 and by ScruttonL. J. in Ware and De Freville Ltd, v. Motor Trade Association (1921)3 K.B. 40, and are in conformity with the principles expressed inthe Mogul v. Macgregor (1892) A.C. 25 which preceded it and aresupported by the view of the majority of your Lordships" House inAllen v. Flood (1898) A.C. 1, which was decided two years later.In the latter case Lord Herschell speaking of the former, said atp. 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 theso-called trilogy of cases upon conspiracy, and I think it is a correctone. It has since received support from the reasoning upon whichyour Lordships' House decided Sorrell v. Smith (1925) A.C. 700.
If this be their result Mogul v. Macgregor (supra) and Allenv. Flood (supra) are consistent and easily comprehensible. Moredifficulty 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 thatpurpose only is permissible?
In Sorrell v. Smith (supra) Lord Cave L.C. thought the pointan open one and Lord Sumner considered it at least not free fromdoubt, but the view that a combination to do acts injurious toothers is actionable, whereas the act of a single individual is not,is, I think, supported by the greater weight of authority. LordsField and Hannen in the Mogul case are of this opinion and inAllen 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 causeof action, where similar action on the part of an individualwould not.
[35] 6
Scrutton LJ. in the Ware case finds difficulty in accountingfor the difference. One not uncommon explanation is that a com-bination may exert undue pressure where one person will not, butit is not very satisfactory. In the first place it is not necessarilytrue 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 wrongto induce another to do what is unlawful or to do what is lawfulby unlawful means. The phraseology is first to be found in R.v. Jones (1832) 4 B. and Ad. 345 and has again and again beenrepeated both in criminal and civil cases though in the formerit may be a limitation and not a definition. In criminal casesFitzgerald J. puts the principle in R. v. Parnell, 14 Cox C.C. 508, inthe 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 theexistence of a civil wrong, and in recent times I do not think thatit has been held criminal merely to combine to injure a third partyprovided no unlawful means are used or contemplated and it isdoubtful whether such a combination ever was criminal (seeWright on Criminal Conspiracy (1873) p. 41). It is true that incertain classes of case, e.g. where masters and workmen or tradeare concerned, it was at one time held criminal to agree not tosell 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, apartfrom 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 criminalif done by an individual, but whether this be so or not it is nowestablished that a conspiracy, the object of which is to injure athird person, is an actionable wrong. Quinn v. Leathem (1901)A.C. 495 and Sorrell v. Smith (supra] in your Lordships' Houseare sufficient authority for this proposition. Why it has beenso held is not, I think, clear. That such a combination may beactionable had, as I have indicated, already been recognized byat least five of the members of your Lordships' House who wereamongst the majority in Allen y. Flood (supra) and has againbeen recognized in Sorrell v. Smith (supra). The point is now toowell 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 andtherefore either the object aimed at or the means used (thenoble Lord uses both expressions) were illegal. It may beso or it may be, as Lord Sumner suggests, that a combi-nation to injure is a form of intimidation or again it maybe that the doctrine is a survival of the view formerly held as tothe illegality of combinations to raise wages or interfere with tradeor of the more paternal view expressed on a different matter byLord 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 anycase it is undoubted law.
7 [36]
Whether it is necessary that the object of the defenders shouldbe solely to gain an advantage for themselves of whether theirmotives may be mixed provided the main or substantial motiveis their own gain is not so clear.
Lord Dunedin in Sorrell v. Smith (supra) apparently thoughtit 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 happenif the evidence had shown that the object of the Defendants wasa malicious one, namely to injure the Plaintiffs, whether the Defen-dants should be benefited or not, but since in that case as in thistheir 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 Australiav the Adelaide S.S. Coy., Ltd. [1913] AC 781 at p. 797 speaksof " 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 admitthat the addition of personal animosity to a desire to benefit one-self makes actionable that which without the animosity would notbe 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 theprivate advantage which they hope to obtain.
The answer may be that given by Lord Dunedin in Sorrelly. Smith, viz., that one must judge broadly as a jury wouldjudge, and so determine the predominant purpose. After all,the task is no more difficult than that which faces them inevery criminal case—to determine whether there is mens rea ornot. Nevertheless if I thought that in the present case the objectof the parties to the combination was to ruin the Appellants, eventhough they hoped thereby each to gain an advantage for him-self, I should desire to consider the matter further before decidingthat the Respondents were not liable, but I do not thinkthat such a case has been proved. The Lord Ordinary and InnerHouse have not so found. The direct object was to force an agree-ment and to stop the importation of Mainland yarn, both of whichwere, as found by the Courts below, honestly believed to be ofdirect benefit to the defender's Trade Union. No question of in-direct purpose comes in issue. The result of the action takenmight be to ruin the importers of Mainland yarn, and it mightbe recognized that this was a possible or even probable outcome,but that was not the purpose of those who combined. Eachdesired only to further his own interests.
If this view of the facts prevails, and it is recognized, as I thinkit must be since the decision in the Mogul case, that men are en-titled to pursue their own advantage even though the natural andinevitable result be the ruin of others, the pursuers' case is at anend, but in deference to the forcible arguments addressed to uson behalf of the Appellants and in view of the difficulties of thesubject, I must add some further observations and qualificationsto the views I have expressed.
One of the difficulties in the law of actionable combination isto decide what purposes are to be looked at in determining whetherthe combination is illegal or not.
[37] 8
This problem is perhaps touched upon by Lord Cave inSorrell v. Smith [1925] A.C. 700 at p. 714 when he speaks of thepurpose of a threat being to forward trade interests and not wil-fully and ultroneously to injure the trade of another, by whichI think he means not wilfully to injure the trade of another savefor the purpose of forwarding one's own.
In other words, is it enough that the substantial object of thedefenders was not to injure the pursuer, or must they go furtherand must it be established in some way, either by positive evidenceon behalf of the defenders or lack of evidence on behalf of thepursuer, that they were following some interest of their own ? InSorrell v. Smith (supra) Lord Sumner left the question open,though he suggests that the defenders must not be intermeddlingbusybodies. Lord Dunedin took the view that it was enough ifthey did not set out to injure the pursuer and regarded evidencethat their own advantage was involved merely as tending to provethat their object was not to injure. Lord Cave did not in termsdeal with the question, but the framework of his first proposi-tion, which I quote below, suggests that the defenders must havetheir own end to gain.
It is, I think, true to say that in all the cases which have dealtwith this subject the contrast is drawn beween a desire to injureon the one hand and the pursuit of the defenders' interests on theother. Nowhere except in Lord Dunedin's speech in Sorrell v. Smithis the mere fact that the Defendant's object was not found to bea desire to injure held to exonerate them from liability. It is, Ithink, always added that their purpose was to gain an advantagefor themselves.
Lord Sumner indeed asks at p. 739 what other motive canthere be in such a matter beyond selfishness and malice except,indeed, mere irresponsible wantonness. So far, however, no casehas decided, and it has not been necessary to decide, whether con-federates who have combined not for the purpose of doing aninjury but with no object of their own to gain are or are not liableto those against whom they have combined.
The present case, like those which preceded it, does not requirea solution of this problem. Throughout the defenders acted in whatthey believed to be the interest of their Trade Union. But assumingthat the defenders would only be justified in pressing their ownselfish aims, is every personal advantage which accrues to them byreason of their action a sufficient excuse or is something moreintimately and directly connected with their business interestsrequired—something which will help their trade or improve the
position of their Trade Union ? Must it be something, as ScruttonL.J. says in Ware and De Freville v. Motor TradeAssociation[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 hasbeen insisted upon in Allen v. Flood (supra), and in Bradford v.Pickles [1895] AC 587 the principle was said not to be confinedto rights of property but to be equally applicable to the exerciseby an individual of his other rights.
The quotation most frequently made in this connection is thewell-known passage in the speech of the Lord Chancellor inSorrell 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.
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" (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 itresolved 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 ofthe present case two propositions of law—the italics are mine.
In that case the combination was not to injure but to forwardor defend the trade of those who had entered into the combination,as in this it was to increase the membership of the Trade Unionand protect the wages of its members, and Lord Cave's statementdoes not seek to comprehend all circumstances.
Cases in which the action of the confederates is to compel thePlaintiff to pay a debt as in Giblan v. National AmalgamatedLabourers' Union (1903) 2 K.B. 600 have been held not to bewithin the principles, perhaps on the grounds stated by BuckleyL.J. at p. 619 that the intent was to prevent the plaintiff fromobtaining or retaining employment in order to compel him to paya 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 theirown business advantage nor the injury of the Plaintiff, e.g., wherethey combine to compel him to subscribe to an extraneous chari-table fund?
No answer to this question has yet been given, and perhapsit is enough for the purposes of the present case to say that thebenefit is sufficiently direct if it be to increase the effective strengthof a Trade Union, and to quote Hodges v. Webb(1920) 2 Ch. atp. 89 and White v. Riley (1921) 1 Ch. 1 as illustrating thisconclusion.
The broad proposition was put by Lord Phillimore, thenPhillimore J. in his dissenting judgment in Boots v. Grundy(1900)82 L.T. 769, in a way which will comprehend most cases. " If," hesays, " 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 combinationof persons such as masters and workers who are apt to be opposedin trade disputes, and when you find them joined in an endeavouron the one hand to eliminate competition and on the other to gain100 per cent, trade union membership, the only common objectmust be 1o injure, since the masters could only rid themselvesof competitors by injuring their opponents, and the workmencould only obtain a 100 per cent, trade union membership frommasters with whom they were agreed and therefore could notattain their object until all others were driven out of the trade
The only common object therefore was to injure, though eachparty to the combination might have a separate ultimate aim ofhis own which would promote his own interests.
An argument against the right of a combination of employersacting in conjunction with a Trade Union to refuse to employanyone not possessed of that Trade Union's ticket was urged
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before Sargant J. as he then was, in Reynolds v. Shipping Fede-ration, Ltd. [1924] 1 Ch. D. 28, a case in which a combinationof masters and Trade Union officials agreed that only membersof a particular Trade Union should be employed on the ships ofthe 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, thetrade union, its president and one of its representatives.
It is true that the complaint came from the members of anothertrade union and not from another set of employers, but if theargument is sound, as I think it is, it cannot be confined to oneclass of confederates and be held inapplicable to another.
In the present case also masters and workmen combined. Thecommon object was not to injure but to promote agreement be-tween the two sets of employers, even though incidentally theimmediate effect of the common purpose might be to bring ameasure of injury upon the masters who were not millowners,but the ultimate aim was to protect and improve the interestsof those who combined. The injury was but a step to an end.The combination was therefore not to injure but was to defend theinterests of the parties to it and it becomes unnecessary to considera case of mixed motive where the object was in part to injure andin part to benefit those who have combined, and equally unneces-sary to lay down the principles applicable to a case where the objectis neither to injure nor to promote the interests of the parties butsome extraneous good or evil object with which they are not directlyconcerned. But apart from these considerations I am not myselfprepared to accept the view that the joint object of the partiescombining is necessarily alone to be looked at. Each party maywell have its own private end to gain. The joint aim may at anyrate be no more than a desire for prosperity or peace in the industry,and yet the combination may be justified. If, however, one ofthe parties had no purpose but to vent his own vindictive spite andif the other knew of and countenanced that purpose by giving hisassistance to the malicious acts of the first, it may be that the otherwould then be a participant in the wrong planned by the first towhich 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 causeor excuse for the action taken? So framed it furnished, as heintended it to furnish, a test for the solution of the case which hewas considering, but it was not, nor did it purport to be, a generalformula for universal use.
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As Lord Dunedin pointed out in the same case, there is anearlier question: " Is there any wrong to be justified ? " If thedefendants 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 unlessit is defensible on some ground.
It is true that the alternative method of approach is sometimeshelpful in ascertaining whether the purpose of the combination isto injure others or to promote the interests of those in combination,but I should not myself regard it as the same question or decisiveof the rights of the parties.
The true position is, I think, that some proceedings are notactionable because neither the end nor the means are wrongful butthere are others in which either the end or the means are wrongfuland yet those acting in combination are excused because they havejust cause for what they have done. To induce the breach of acontract which may lead to immorality (see Brimelow v. Casson(1924) 1 Ch. 302) or of a contract which is an infringement of theright of the breaker (see Smithies v. National Association of Opera-tive Plasterers (1909) 1 K.B. 310 (C.A.)) has been held to bejustified. These however are only examples, and afford little assist-ance in determining the circumstances which will constitutesufficient justification. I doubt whether it is possible to definewhat those circumstances are. Perhaps one cannot safely gofurther than the statement to be found in Glamorgan Coal Coy. v.South Wales Miners' Federation (1903) 2 K.B. 545, Smithiesv. National Amalgamation of Operative Plasterers (supra) andConway v. Wade (1909) A.C. 506 per Lord Loreburn at p. 511),that they are not matters for definition but for a consideration ofthe 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 rulethat a combination to do what is unlawful or to do what is lawful byunlawful means is actionable, and is not an alternative expressionof the principle itself. It may indeed be more meritorious to inducethe breach of a contract contra bonos mores than merely to pursueone's own selfish ends, but the one requires justification in law andthe other does not.
I have ventured to add these observations not because thequestions raised in them demand solution in the present case, butin order to show the limits of the present decision, and lest it shouldbe 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 theLord Ordinary and the Inner House, to say that whatever the effectof their action might be the confederates, millowners and defenders,had a common object of benefitting themselves and not of injuringthe plaintiffs and so must succeed in their defence.