S1 Short Title (Evidence Act 1950): The Act: Vacher & Sons, Ltd v London Society of Compositors and others HOUSE OF LORDS [1911-1913] All ER Rep 241; [1911-13] All ER Rep 241 HEARING-DATES: 24, 25 October, 18 November 1912 18 November 1912
Vacher & Sons, Ltd v London Society of Compositors and others
HOUSE OF LORDS
[1911-1913] All ER Rep 241; [1911-13] All ER Rep 241
HEARING-DATES: 24, 25 October, 18 November 1912
18 November 1912
Trade Union – Action against- Action for tort – Competency – Trade Disputes Act, 1906 (6 Edw 7, c 47) s 4(1). Statute – Construction – Construction leading to absurdity – Adoption of alternative construction – Irrelevance of policy of Parliament in passing Act – Repugnancy of one provision in Act to another – Title of Act – Reference to title to ascertain scope of Act.
By s 4(1) of the Trade Disputes Act, 1906: “An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court.”
There is no context in the Act read as a whole rendering it necessary to cut down the literal meaning of the wide language of s 4(1) and import into that sub-section a provision that the tortious act referred to must have been committed in contemplation or furtherance of a trade dispute.
Accordingly, where a trading firm brought an action against a registered trade union to recover damages for conspiracy and libel and an injunction, it not being averred in the statement of claim, expressedly or impliedly, that the acts complained of were done in furtherance or in contemplation of a trade dispute,
Held: on its true construction s 4(1) amounted to a statutory prohibition against any court entertaining an action of tort against a trade union, and the defendant trade union must be struck out of the proceedings.
Decision of Court of Appeal,  H KB 347, affirmed.
In the absence of a preamble to an Act there can be only two cases in which it is permissible to depart from the ordinary and natural sense of the words of the Act. It must he shown either that the words taken in their natural sense lead to some absurdity, or that there is some other clause in the body of the Act inconsistent with or repugnant to the enactment in question construed in the ordinary sense of the language in which it is expressed … A judicial tribunal has nothing to do with the policy of any Act which it may be called on to interpret. The only duty of the court is to expound the language of the Act in accordance with the settled rules of construction. It is as unwise as it is unprofitable to civil at the policy of an Act or to pass a covert censure on the legislature: per LORD MACNAGHTEN
In construing the words of a statute the court has nothing to do with the question whether or not the legislature has committed an absurdity. But if the words of the Act admit of two interpretations, then they ere not clear, and if one interpretation leads to an absurdity and the other does not, the court will conclude that the legislature did not intend to lead to an absurdity, and will adopt the other conclusion: per LORD ATKINSON The title of an Act is undoubtedly part of the Act itself, and it is legitimate to use it for the purpose of interpreting the Act as a whole and ascertaining its scope. This is not the case with the short title, which is given to the Act solely for the purpose of facility of reference. It is a statutory nickname to obviate the necessity of always referring to the Act under its full and descriptive title. It is not legitimate to use it to ascertain the scope of the Act. Its
object is identification and not description … we have to interpret statutes according to the language used therein, and though occasionally the respective consequences of two rival interpretations may guide us in our choice between them, it can only be where, taking the Act as a whole, and viewing it in connection with the existing state of the law at the time of the passing of the Act, we can satisfy ourselves that the words cannot have been used in the sense to which an argument ab inconveniente points: per LORD MOULTON
Appeal by the plaintiffs in the action from a decision of the Court of Appeal (VAUGHAN WILLIAMS and KENNEDY, LJJ, FARWELL, LJ, dissenting) reported  3 KB 347, reversing an order of CHANNELL, J, at chambers, who had reversed an order of Master WILBERFORCE, made on the application of the respondents (the defendants) directing that their name should be summarily struck out of the proceedings
The appellants were a firm of printers, and brought the action against the respondents, a trade union connected with the printing trade, to recover damages for conspiracy and libel, and for an injunction to restrain the further publication of the alleged libel
The provisions of s 4(1) of the Trade Disputes Act, 1906, were excluded in the case of offences against the Monopolies and Restrictive Practices (Inquiry and Control) Act, 1948 (see s 11(4) and against the Restrictive Trade Practices Act, 1956 (see s 24(8)).
Considered: National Telephone Co v Postmaster General (1913) 109 LT 562 Applied: Re Boaler, [1914-15] All ER Rep 1022 Considered: London Corpn v Associated Newspapers,  AC 674 Distinguished: Sage v Eicholz, [1918-19] All ER Rep 426 Considered: Hardie and Lane, Ltd v Chilton,  All ER Rep 36 Referred to: Gaskell v Lancashire and Cheshire Miners’ Federation (1912) 28 TLR 518; Valentine v Hyde,  2 Ch 129; Henshall v Porter,  2 KB 193; National Union of General and Municipal Workers v Gillian,  2 All ER 593; Longdon-Griffiths v Smith,  2 All ER 662.
As to torts arising out of the operations of trade unions, see 32 HALSBURY’S LAWS (2nd Edn) 516 et seq, and as to the interpretation of statutes, see 36 HALSBURY’S LAWS (3rd Edn) 382 et seq For cases see 43 DIGEST 112 et seq, and 42 DIGEST 609 et seq For Trade Disputes Act, 1906, see 25 HALSBURY’S STATUTES (2nd Edn) 1267.
(1) Taff Vale Rail Co v Amalgamated Society of Railway Servants,  AC 426; 70 LJKB 905; 85 LT 147; 65 JP 596; 50 WR 44; 17 TLR 698; 45 Sol Jo 690, HL; 43 Digest 127, 1295.
(2) Grey v Pearson (1857) 6 HL Cas 61; 26 LJ Ch 473; 29 LTOS 67; 5 WR 454; 10 ER 1216, HL; 42 Digest 626, 277.
(3) Sussex Peerage Case (1844) 11 Cl & Fin 85; 6 State Tr NS 79; 3 LTOS 277; 8 Jur 793; 8 ER 1034, HL; 42 Digest 650, 569.
(4) Duke of Bedford v Ellis,  AC 1; 70 LJ Ch 102; 83 LT 686; 17 TLR 139, HL; 33 Digest 529, 68
(5) Cooke v Charles A Vogeler Co,  AC 102; 70 LJKB 181; 84 LT 10; 17 TLR 153; 8 Mans 113, HL; 42 Digest 687, 1015
(6) R v City of London Court Judge,  1 QB 273, CA; 1 Digest (Repl) 120, 66
(7) Quin v Leathem,  AC 495; 70 LJPC 76; 85 LT 289; 65 JP 708; 50 WR 139; 17 TLR 749, HL; 43 Digest 112, 1179
Also referred to in argument:
Conway v Wade,  AC 506; 78 LJKB 1025; 101 LT 248; 25 TLR 779; 53 Sol Jo 754, HL; 43 Digest (Repl) 120, 1237
Fielding v Morley Corpn,  1 Ch 1; 67 LJ Ch 611; 79 LT 231; 47 WR 295, CA; affirmed sub nom Fielden v Morley Corpn,  AC 133; 69 LJ Ch 314; 82 LT 29; 64 JP 484; 48 WR 545; 16 TLR 219, HL; 42 Digest 604, 52
R v Cockerton,  1 KB 322; 70 LJKB 281; 83 LT 595; 65 JP 115; 49 WR 252; 17 TLR 165; affirmed  1 KB 726; 70 LJKB 441 84 LT 488; 65 JP 435; 49 WR 433; 17 TLR 402, CA;LV
Fenton v Thorley & Co, Ltd,  AC 443; 72 LJKB 787; 89 LT 314; 52 WR 81; 19 TLR 684; 5 WCC 1, HL; 42 Digest 648, 543
Bussy v Amalgamated Society of Railway Servants and Bell (1908) 24 TLR 437; 43 Digest 123, 1257
Rickards v Bartram (1908) 26 TLR 181; 43 Digest 123, 1258
Peru Republic v Peruvian Guano Co (1887) 36 Ch D 489; 56 LJ Ch 1081; 57 LT 337; 36 WR 217; 3 TLR 848; Digest (Pleading) 73, 635
Kellaway v Bury (1892) 66 LT 599; 8 TLR 433, CA; 42 Digest 108, 1026
A-G of Duchy of Lancaster v London and North Western Rail Co,  3 Ch 274; 62 LJ Ch 271; 67 LT 810; 2 R 84, CA; Digest (Pleadings) 71, 624
Linaker v Pilcher (1901) 70 LJKB 396; 84 LT 421; 49 WR 413; 17 TLR 256; 45 Sol Jo 276; 43 Digest 127, 1291
Temperton v Russell,  1 QB 715; 62 LJQB 412; 69 LT 78; 57 JP 676; 41 WR 565; 9 TLR 393; 37 Sol Jo 423; 4 R 376, CA; 43 Digest 114, 1185
Solicitors: Scatliffs; Shaen, Roscoe, Massey & Co
Reported by CE MALDEN, ESQ, Barrister-at-Law, Reported by WC SANDFORD, ESQ, Barrister-at-Law
18 Nov 1912 The following opinions were read
This appeal raises the question of the true construction to be put on s 4 of the Trade Disputes Act, 1906 That Act was passed five years after the decision of this House in Taff Vale Rail Co v Amalgamated Society of Railway Servants (1) It had been there decided that a trade union, registered under the Trades Union Acts, could be sued in its registered name, and also that a trade union, whether registered or not, could, since the Judicature Acts, be sued in a common law action, if the persons selected as defendants were persons who, from their position, might fairly be taken to represent the union It was pointed out by LORD LINDLEY that if a judgment so obtained was for the payment of damages, it could be enforced only against the property of the union, and that to reach such property it might be necessary to make the trustees parties to any proceedings It is common knowledge that this decision gave rise to keen controversy as to whether the law required amendment On the one hand, it was contended that the principle laid down ought to remain undisturbed, because it simply imposed on trades unions the legal liability for their actions which ought to accompany the immense powers which the Trades Union Acts had set them free to exercise On the other side, it was maintained that to impose such liability was to subject their funds, which were held for benevolent purposes as well as for those of industrial battles, to undue risk It was said that by reason of the nature of their organisation and their responsibility in law for the action of a multitude of individuals who would be held in law to be their agents, but over whom it was not possible for them to exercise adequate control, they were, by the decision of this House, exposed to perils which must cripple their usefulness We have heard, in the course of this case, suggestions as to the merits of the conflicting points of view and as to the reasonableness, in interpreting the language of Parliament in the Trade Disputes Act, 1908, of presuming that the legislature was acting with one or other of these points of view in its mind For my own
part, I do not propose to speculate on what the motive of Parliament was The topic is one on which judges cannot profitably or properly enter Their province is the very different one of construing the language in which the legislature, has finally expressed its conclusions, and if they undertake the other province which belongs to those who, in making the laws, have to endeavour to interpret the desire of the country, they are in danger of going astray in a labyrinth to the character of which they have no sufficient guide In endeavouring to place the proper interpretation on the sections of the statute which are before this House, sitting in its judicial capacity, I propose, therefore, to exclude the consideration of everything excepting the state of the law as it was when the statute was passed, and the light to be got by reading it as a whole before attempting to construe any particular section Subject to this, I think that the only safe course is to read the language of the statute in what seems to be its sense.
The first question before your Lordships is whether a trade union, if it was committed a tortious act, such as a libel, can be sued for damages at all, even if the act was not committed in contemplation or in furtherance of a trade dispute Before the Trade Disputes Act was passed it undoubtedly could have been so sued, and the question is whether Parliament has put an end to this liability The Act is confined to trades unions within the definition of the trades Union Acts, 1871 and 1876 The title is “An Act to provide for the regulation of Trades Unions and Trade Disputes” This appears to me to indicate that the scope of the statute was not confined to the regulation of trade disputes merely Section 1 is confined to cases of trade disputes, and amends the law of conspiracy in such cases by precluding legal remedy unless the act done would have been actionable apart from the circumstances of agreement or combination to do it Section 2 is also confined to cases of trade disputes It legalises what is popularly called “peaceful picketing” Section 3 takes away the actionable character of any act done by a person in contemplation or furtherance of a trade dispute, if theground of action is only that what was done induced another person to break a contract of employment, or was an interference with the trade, business, or employment of another person, or with his right to dispose of his capital or his labour as he pleases It will be observed that all these sections relate to trade disputes, but that none of them relates exclusively to the case of a trade union Section 4(1) the section which has to be construed in the present appeal, relates exclusively to the case of a trade union It enacts: “An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court”
I draw attention to the fact that this section differs from the three preceding sections not only in relating exclusively to the case of a trade union, but in that sub-s (1) omits to mention any restriction which would confine the tortious act to one in contemplation or in furtherance of a trade dispute Upon this point it has been contended by counsel for the appellants that such a restriction ought to be implied It is said that s 5, which provides that the Act may be cited as the Trade Disputes Act, and the scheme of the first three sections which deal only with trade disputes, show that the Act is to be interpreted as so confined, and that it cannot be supposed that the legislature intended to free trade unions from liability to the extent which a literal reading of s 4(1) would indicate.
With that contention I am unable to agree It is true that it is provided that the Act may be cited by the short title of the “Trade Disputes Act” But the governing title introduces the statute as an Act to provide for the regulation of trade unions and trade disputes The first three sections regulate trade disputes The fourth Section appears to carry out the other intention indicated by the initial title.
by laying down new law as to trade unions I can find no context in the Act read as a whole which indicates an intention to out down the literal meaning of the wide language of s 4(1) For reasons which I have already assigned, I think that it would not only be beyond the functions of a court of justice to presume that the legislature could not, when it passed the Act, have intended to go as far as the plain words used say, but that, if judges could speculate as to its intentions, they would probably speculate wrongly.
I pass, therefore, to the next point which was made for the appellants, and it turned on the effect of subs (2) of s 4, a subsection which, it was said, ought to be read as a proviso to sub-s (1) restricting its operation Section 4(2) is in these terms:
“Nothing in this section shall affect the liability of the trustees of a trade union to be sued in the events provided for by the Trades Union Act, 1871; s 9, except in respect of any tortious Act committed by or on behalf of the union in contemplation or furtherance of a trade dispute”
The Act of 1871 enabled trade unions to register, and provided by s 9 that the trustees of a registered trade union might sue or be sued ft such in cases concerning the property of the trade union The legislature appears to have desired to draw a distinction between the union and its trustees and to preserve the liability of the trustees under this section, even in the case of tortious acts committed by the union, damages arising out of which might, as pointed out by LORD LINDLEY in his judgment in the Tariff Vale Case (1) have been made effective against property in the hands of the trustees But a restriction is put on the liability of the trustees by excepting from it liability in respect of a tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute Having regard to the distinction drawn in the wording of the statute between the liability of the trade union and the liability of its trustees, I can see no justification for importing the provision restricting liability enacted in the latter sub-section into the word of sub-s (1) and think that on the second point made the argument which was addressed to the House, to the effect that the words of exception in the second subsection must be read as qualifying the whole section, cannot succeed.
I now turn to the facts out of which the questions of law which I have considered arose This action was one for damages for conspiracy and libel, brought by the appellants, whose business was that of printers, against the respondents, who were a trade union to which the Act of 1908 applied It does not appear whether there were trustees of the union or whether there was property vested in them which could have been made liable, assuming that the cause of action did not arise out of a trade dispute If there were trustees, they were not made defendants, and, indeed, if the advisers of the plaintiffs were apprehensive that the trial might disclose a trade dispute, there were good reasons for not joining the trustees A statement of claim was delivered which set out particulars of the conspiracy and libel, the gist of which was that the respondents had conspired to represent and had untruly represented the appellants as a firm which dealt unfairly by their workmen Without delivering a statement of defence the respondents applied to strike the name of the respondent society from the action on the ground that in the first place a trade union could not be sued at all in such an action, and that, in the second place, even if s 4(1) of the Trade Disputes Act, 1900, was to be read as applying only if there was a trade dispute, it did not appear on the face of the proceedings that the acts complained of had not arisen out of such a trade dispute Master WILBERFORCE made an order allowing the application CHANNELL, J, on appeal, discharged this order, and directed that the point should not be disposed of summarily, but should stand to the trial The Court of Appeal by a majority reversed the order of CHANNELL, J, and restored the order of Master WILBERFORCE VAUGHAN WILLIAMS, LJ, thought that the libel, even according to the bare.
description in the statement of claim, was, on the face of it, an act done in contemplation or furtherance of a trade dispute .
I entertain so much doubt on this point that if it were the only one raised I would be of the opinion of CHANNELL, J, that the application ought to stand over to the trial, in order that the facts might be ascertained which would enable the court to decide whether it had jurisdiction to entertain the action, but VAUGHAN WILLIAMS, LJ, decided in favour of the appeal before him on the other point He took the view that sub-s (2) of s 4 could not be read as qualifying the prohibition of the courts contained in sub-s (1) FARWELL, LJ, took a different view and dissented, and KENNEDY, LJ, held that the plain language of sub-s (1) could not be cut down excepting by indulgence in illegitimate speculation as to what the legislature must have intended On the other point he found himself unable to agree with VAUGHAN, WILLIAMS, LJ I am in complete agreement with the judgment delivered by KENNEDY, LJ [For the judgment of KENNEDY, LJ, see post p 254] The reasons which I have stated in examining the Act and its various sections have led me to the same conclusions as he has reached, and I, therefore, move that the appeal be dismissed with costs.
The Trade Disputes Act, 1906, declares that:
“An action against a trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court”
The language of the enactment is precise and unambiguous No one can doubt what the words mean It is “the universal rule,” as LORD WENSLEYDALE observed in Grey v Pearson (2) (6 HL Cas at p 106) that in construing statutes as well as in construing all other written instruments,
“the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency in the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity or inconsistency, but no further”
Acts of Parliament are, of course, to be construed “according to the intent of the Parliament which passes them” That is “the only rule” said TINDAL, CJ, delivering the opinion of the judges who advised this House in the Sussex Peerage Case (3) But his Lordship was careful to add this note of warning (11 Cl & Fin at p 143):
“If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense The words themselves do alone in such case best declare the intent of the lawgiver”
Nowadays, when it is a rare thing to find a preamble in any public general statute, the field of inquiry is even narrower than it was in former times In the absence of a preamble there can, I think, be only two cases in which it is permissible to depart from the ordinary and natural sense of the words of an enactment It must be shown either that the words taken in their natural sense lead to some absurdity, or that there is some other clause in the body of the Act inconsistent with or repugnant to the enactment in question construed in the ordinary sense of the language in which it is expressed There is nothing absurd in the notion of an association or body enjoying immunity from actions at law Some people may think the policy of the Act unwise, and even dangerous to the community
Some may think it at variance with principles which have long been held sacred But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret That may be a matter for private judgment The duty of the court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction It is, I apprehend, as unwise as it is unprofitable to cavil at the policy of an Act of Parliament, or to pass a covert censure on the legislature.
It was not contended that there is any inconsistency in the Trade Disputes Act, or any conflict between any of its clauses On the contrary, the argument rather was that it was consistent throughout, so consistent, and so clear that the omission of words, otherwise perhaps material, made no difference No words, it was said, were to be supplied; there was no room even for implication Section 4 was merely consequential on the sections which preceded it Throughout the statute from first to last the only case which Parliament was contemplating was the case where the tortious act complained of is done in furtherance or in contemplation of a trade dispute It was said that this was plain from the preceding sections, and that sub-s (2) of s 4 made it plainer still There is some difficulty in grasping an argument so ingenious and so subtle I agree with the learned counsel for the respondents, who put his case very well The appellants must fail unless the words “in contemplation or in furtherance of a trade dispute” are introduced into sub-s (1) of s 4 by construction or implication, or by some process of thought reading which I confess that 1 am unable to follow Section 4 is not, I think, consequential on the preceding sections in the sense in which the learned counsel for the appellants used the word “consequential” Section 4 seems to me to deal with a different subject and a different Act of Parliament The first three sections are concerned with the Conspiracy and Protection of Property Act, 1875 The first two sections refer in terms to that Act Section 3, though not mentioning the Act in terms, affects it, and amends it by making the act of “a person” in inducing a breach of contract, or in doing certain other things undoubtedly actionable before the Trade Disputes Act, 1908, actionable no longer if done in contemplation or furtherance of a trade dispute Section 4 is not directed to the Conspiracy and Protection of Property Act, 1875 In both its sub-sections it is directed to the Trade Union Act, 1871 Everyone knows that sub-s (1) was introduced in order to neutralise the effect of the decision in Taff Vale Rail Co v Amalgamated Society of Railway Servants (1) by an extension of the Trade Union Act 1871 It is not easy to see the object of sub-s (2) of s 4, or to understand its precise meaning It seems to me, therefore, that it will be better to leave the construction of that sub-section to be determined when it comes directly in question, if ever that occasion should occur However it may be construed it cannot, I think, affect the plain meaning of sub- s (1) or assist the appellants in any way I am of opinion that the action, as against the trade union, was incompetent, and that the appeal should be dismissed with costs.
The sole question for decision in this case is, in my view, the proper construction of sub-s (1) of s 4 of the Trade Disputes Act, 1906 It has been quoted already The law upon the subject of the liability of a trade union to be sued in tort at the time when this statute was passed was, I think, this Under the decisions in Duke of Bedford v Ellis (4) and Taff Vale Rail Co v Amalgamated Society of Railway Servants (1) it must, I think, be taken (i) that a trade union, registered or unregistered, could be sued in respect of torts committed by its agents in a representative action, provided that the selected defendants were fairly representative of it; (ii) that a registered society might be sued in its registered name; and (iii) that if the trustees were made defendants in such an action, an order could be made by the court for the payment by them of the damages and costs recovered out of the funds of the society in their hands LORD LINDLEY lays down this last proposition in so many words in the Taff Vale Case (1) so that it was not at all necessary that, if judgment had been recovered against the union in
either of such actions, a second action founded on such judgment should be brought against the trustees to recover the amount of the damages and costs, which the judgment had converted into a speciality debt Equitable execution against the property of the union held by the trustees could be obtained in the original suit, if they were made parties to it.
In s 4(1) the representative form of action is expressly named in so many words, and it is enacted that an action of that kind brought in respect of any tort alleged to have been committed by or on behalf of a trade union shall not be entertained The sub-section further provides that any action for a similar tort shall not be brought against a trade union Thus both these modes of proceeding to obtain redress for the tortious act mentioned are in plain and unambiguous language prohibited Such actions, it says, “shall not be entertained by any court” Counsel for the appellants, insisted that this wide and positive prohibition must be cut down and limited in its scope to cases in which the action is brought in respect of a tort committed by or on behalf of a trade union “in contemplation or furtherance of a trade dispute,” and that a trade union should be held to remain as liable as it was before this statute was passed for all torts committed by it, or on its behalf, which were not committed “in contemplation or in furtherance of a trade dispute” He based his argument, as I understood him, upon two grounds: first, upon the consideration of the evil results which would follow from the wider construction, since it would, he said, raise trade unions above the law and enable them to commit torts of all kinds with impunity; and, secondly, upon the ground that s 4(1) is merely consequential upon ss 1, 2, and 3, and that, when taken in connection with these latter, together with sub-s (2) of the same section, it is necessary to limit sub-s (1) to the extent for which he contended, in order to bring it into harmony with the provisions of those earlier sections, as well as with those of s 4(2).
It is, no doubt, well established that in construing the words of a statute susceptible of more than one meaning, it is legitimate to consider the consequences which would result from any particular construction, for, as there are many things which the legislature is presumed not to have intended to bring about, a construction which would not lead to any one of those things should be preferred to one which would lead to one or more of them But, as LORD HALSBURY, LC, laid down in Cooke v Charles A Vogeler Co (5) a court of lacy has nothing to do with the reasonableness or unreasonableness of a provision of a statute, except so far as it may help it in interpreting what the legislature has said If the language of a statute be plain, admitting of only one meaning, the legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced, though it should lead to absurd or mischievous results If the language of this subsection is not overruled by some of the other provisions of the statute, it must, since its language is plain and unambiguous, be enforced, and your Lordships’ House sitting judicially is not concerned whether the policy which it embodies is wise or unwise, or whether its consequences are just or unjust, beneficial or mischievous LORD ESHER, MR, in R v City of Tondon Court Judge (8) states the principle thus ( 1 QB at p 290): “If the words of an Act are clear, you must follow them, though they lead to a manifest absurdity.”
The court has nothing to do with the question whether the legislature has committed an absurdity or not In my opinion, the rule has always been this If the words of an Act admit of two interpretations, then they are not clear, and if one interpretation leads to an absurdity, and the other does not, the court will conclude that the legislature did not intend to lead to art absurdity, and will adopt the other Interpretation So that if in this case the words of this section are plain, and are not controlled by any other portions of the statute, the contention that to interpret.
them according to their natural and ordinary meaning would result in placing trade unions above the law is, for the purposes of the judicial decision of this case, entirely irrelevant We have nothing to do with it I think that the language is plain, and, therefore, I abstain from expressing any opinion on the character or the results of the enactment.
Next as to the contention that s 4(1) is only consequential on the three preceding sections: The first section simply aims at assimilating the civil and criminal law in respect of the particular kind of conspiracy mentioned in the section Section 3 of the Conspiracy and Protection of Property Act, 1875, provided that an agreement or combination of two or more persons to do, or procure to be done, any sot in contemplation or furtherance of a trade dispute between employer and workmen should not be indictable as a criminal conspiracy, if the act when committed by one person alone would not be a crime It thus struck, in the particular instance mentioned, at the principle of the criminal law of conspiracy to the effect that it is the agreement or combination which is the essence of the crime, and that, therefore, a combination or agreement to do, or procure to be done, something not in its own nature criminal if done by one person, might still be a crime In order to establish civil liability for a conspiracy, agreement or combination per so is not enough It must he followed by damage Damage can only be caused by some act, including in the word “act,” of course, the use of threatening words, and the writing and publishing, or speaking and publishing, defamatory words, or such like Therefore, it was only necessary, in order to protect from civil liability in this kind of case, to provide, as has been provided in s 1 of the Act of 1906, that.
“an act done in pursuance of an agreement or combination of two or more persons, in contemplation or furtherance of a trade dispute, shall not be action able if it would not be so when done without such agreement”
The words apply to all persons, whether members of trade unions or not, and to combinations between such persons As to s 2 of the Act of 1906, the Act of 1875, by.
s 7, made “watching and be setting” of the kind therein described criminal, but in its last paragraph limited the scope of the section by enacting that the action which would amount under its words to the crime of watching and besetting was not to be so treated if it was done merely to obtain or communicate information Section 2 of the Act of 1906 deals with civil as well as with criminal responsibility It makes the acts which it describes lawful acts, end secures immunity not only for the attending to obtain or communicate information, but also for the attending for the purpose of persuading any person to work or to abstain from working, provided always that these things are done, first peaceably, and secondly in contemplation or furtherance of a trade dispute But this section,: like the preceding one, is not confined to trade unions, or to the member, of trade unions It applies to one or more persons acting on his or their own behalf, or on behalf of a trade union or of an individual employer or firth The members of trade unions who watch or beset in a manner which deprives them of the protection of this section are, of course, liable criminally or civilly, according to the nature of the act done .
Section 3 of the Act of 1906 applies to all individuals It is intended to encroach upon the law as laid down in Quinn v Leathern (7) and the cases which preceded it, but, like the earlier provisions, it applies to all persons, whether members of a trade union or not It is quite true that in each of these sections the necessary condition, or one of the necessary conditions, to secure immunity is that the act should be done in contemplation or furtherance of a trade dispute It is from that circumstance that the saving grace apparently flows, and I can fully appreciate the force of the argument from analogy which was pressed upon us, that trade unionists should not escape liability unless they bring themselves within its absolving influence That argument would have more force if any consistent scheme or plan underlay this statute, but it is not so Sections 1 and 2 merely introduce qualifying .
provisions into two sections of existing statutes, and s 3 is designed merely to modify by the same qualification the law laid down in several cases No reason can, I think, be suggested why the legislature should not have expressly qualified the immunity conferred upon trade unions by s 4(1) in the manner suggested if they desired or intended so to do They have used plain, clear, and unambiguous language to confer this immunity, and I do not at all think that it is.
necessary to qualify that language to bring the provisions of the sub-section into harmony with the provisions of the sections which have preceded it.
There remains for consideration the second sub- section of s 4 Counsel for the appellants relied strongly upon this sub-section in support of his contention The qualification common to ss 1, 2, and 3 is introduced here to qualify to that extent the statutory liability imposed upon the trustees, who may not be members of the union at all, by s 9 of the Trade Union Act, 1871, and he urged that the use of the words “nothing in this section,” with which the sub-section commences, shows that the legislature thought and intended that the words “in contemplation or furtherance of a trade dispute” should be taken as by implication introduced into sub-s (1) I think, however, that it is clear what the meaning and object of the sub-section really is A proceeding against the trustees under s 9 of the Act of 1871 is in fact, if not in form, a proceeding in ram against the property of the trade union In that sense it is an action against the union itself Judgments for damages against a trade union for torts committed by its agents, in whatever form the action may be brought, can only be satisfied out of the property vested in the trustees, and it was, I think, apprehended by the legislature that the wide and positive provisions of sub-s (1) might be taken as practically repealing in part s 9 of the Act of 1871, and conferring an immunity on the trustees as absolute as that conferred upon the union This sub-section, while qualifying their liability to some extent by the introduction of the provision common to ss 1, 2, and 3, was, I think, passed ex abundanti cautela to meet this possible danger, and, save as to that qualification, to preserve unimpaired the liability imposed on the trustees by s 9 of the Act of 1871.
In the view which I take of the provisions of s 6(1) it is not necessary to determine whether any evidence of the existence of a trade dispute is disclosed in the statement of claim, or any evidence that the alleged libel was published in contemplation or furtherance of such a dispute I wish, however, to point out that in a proceeding such as that adopted in this case, which is in truth somewhat of the nature of a demurrer to the statement of claim, the only facts which can be taken as admitted are those which are expressly or impliedly averred in the statement of claim itself Inferences of fact must be drawn by the jury, and no court can, for the purpose of such a proceeding, take as admitted a fact not averred, but one which is in truth an inference from facts which are averred in that pleading In this statement of claim it is not averred, expressly or impliedly, that a trade dispute existed or was in contemplation Neither is it averred that the act complained of was done in furtherance or contemplation of such a dispute In my opinion, therefore, this case must be disposed of on the assumption that no trade dispute existed, or was in contemplation, and that this libel was not published in contemplation or furtherance of such a dispute On the whole, I am of opinion that the appeal fails, and should be dismissed with costs.
By s 4(1) of the Trade Disputes Act, 1906, it is provided:
“An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court”
It is conceded that this action, which is against a trade union in respect of a tort, is within the class of actions there set forth, if the words of the sub-section mean what they say I think that the sub-section is neither self-contradictory nor .
repugnant to the other provisions of the Act, and that, as regards the words themselves, they are unambiguous, comprehensive, and imperative Were they ambiguous, other sections or sub-sections might have been invoked to clear up their meaning, but, being unambiguous, such a reference might distort that meaning, and so produce error; and of course this is a fortiori the case if a reference is suggested, not to something within, but to considerations extraneous to the Act itself If, for instance, it be argued that the mind of Parliament, looking before and after, having in view the past history of a question, and the future consequences of its language, must have meant something different from what it has said, then it must be answered that all this essay in psychological dexterity may be interesting, may help to whittle language down, or even to vaporise it, but is a most dangerous exercise for any interpreter like a court of law, whose duty is to accept loyally and to expound plainly the simple words employed I, therefore, agree entirely with LORD MACNAGHTEN in his view of this case.
The comprehensiveness is plain; the action against a trade union which no court is to entertain is “in respect of any tortious act,” &c To limit this to tortious acts of a particular character, or in respect of particular things, such as trade disputes, is to imply an addition to the language, and to import a limit to the comprehensiveness of the section, and so pro tanto to defeat the statute Nor is the imperative doubtful – no court is to entertain such an action Apart altogether from the pleadings it is pars judicis to stop the case whenever its true nature is revealed To entertain the action would be to disobey the legislature, and would constitute a usurpation on the part of the judiciary I content myself with these propositions, and do not enter into the details I refrain for this reason, that these details, together with what are, in my humble opinion, the proper conclusions to be derived therefrom, have been marshalled by KENNEDY, LJ, in a judgment to which I do not feel that I could usefully add anything For the judgment of KENNEDY, LJ, see post p 254.
I concur The only question raised by this appeal is, in my opinion, the proper construction of s 4(1) of the Trade Disputes Act, 1906 If it be construed in the manner contended for by the respondents it amounts to a statutory prohibition to all courts against entertaining an action of tort against a trade union This renders it obligatory upon the court to stay such an action so soon as it is made aware of its existence To allow it to come to trial would, in nay opinion, be “entertaining” it The statute so interpreted gives protection to trade unions against actions of tort, not by furnishing them with a defence, but by giving them complete immunity against legal proceedings The words of the sub-section appear to me to be free from any ambiguity when taken apart from their context in the Act At the date when the Act was passed it had been settled that trade unions could he sued in a representative action, or, if they were registered trade unions, under their registered name, and the plain meaning of the enactment is that, however the trade union be sued, the court shall not entertain the action if it is in respect of a tortious act alleged to have been committed by or on behalf of the trade union But the appellants say that when the whole Act is considered it will appear that this is not the right construction, and that, on the contrary, the general language of the section must be limited by implication from other parts of the Act It is, of course, a well-recognised principle in the interpretation of the statutes that a statute must be looked at as a whole, and I shall, therefore, as the matter is of great importance, proceed to consider in detail the arguments urged on behalf of the appellants for thus restricting the meaning of the enactment .
The Act is entitled “An Act to provide for the regulation of Trades Unions and Trade Disputes” It consists, substantially, of four enacting sections The first section amends the law as to combination, the second permits peaceful picketing, the third amends the law by which it was actionable to persuade servants or workmen to break contracts of employment There is a similarity in the objects.
of the three sections inasmuch as they all operate to increase the immunity of the individual in respect of acts such as usually occur in connection with trade disputes; but the sections have nothing else in common They are not parts of any integral scheme of legislation, but only amendments of specific points in the law as it then stood, partly by reason of the common law, and partly by reason of specific Acts of Parliament I am satisfied that these sections do not, either individually or collectively, throw any light on the interpretation of s 4, which relates to a wholly different subject Counsel for the appellants would have us limit the generality of the words “any tortious acts” by reading in or implying the limitation “in contemplation or furtherance of a trade dispute” He based his contention on three grounds: (i) The title of the Act; (ii) the presence of the words in sub-s (2) of s 4; and (iii) the argument ab inconvenienti He further urged us to treat the clause as consequential upon the first three sections of the Act, but with that contention I have already dealt The title of an Act is undoubtedly part of the Act itself And it is legitimate to use it for the purpose of interpreting the Act as a whole, and ascertaining its scope This is not the vase with the short title, which, in this case, is “The Trade Disputes Act, 1906” That is a title, given to the Act solely for flip purpose of facility of reference If I may use the phrase, it is a statutory nickname to obviate the necessity of always referring to the Act under its full and descriptive title It is not legitimate, in my opinion, to use it for the purpose of ascertaining the scope of the Act Its object is identification and not description The full title of the Act is, as I have said, “An Act to provide for the regulation of Trade Unions and Trade Disputes” The appellants ask us to read this as if it wore “for the regulation of trade unions as to trade disputes” and to treat the Act as though it related solely to trade disputes, so that s 4(1) must be road with that limitation I can see nothing to justify such an extraordinary mode of construing the Act The title as it stands is not only intelligible, but describes admirably the purposes of the Act Sections 1, 2, and J relate to trade disputes without any special reference to trade unions, and s 4 relates t, trade unions, whichever of the two rival interpretations of the section he adopted It is evident, therefore, that the title of the Act is amply accounted for, whatever be the view which the House takes of the matter in dispute, and, therefore, it cannot assist its in deciding between the two proposed constructions The point next urged on behalf of the appellants was that s 4 should be read as a whole and the limitation “in contemplation or furtherance of a trade dispute” should be treated as implied in sub-s (1) because it is present in sub-s (2) This contention appears to me to be directly contrary to the most elementary principles of the construction of statutes To my mind, as a matter of construction, the fact that sub-s (1) speaks of tortious acts generally, and sub-s (2) speaks of a certain class of tortious acts, creates a contrast between the two sub-sections which emphasises the generality of the one and the limited character of the other If there were any difficulty of grammatical construction or interpretation of the language of sub-s (1) it might be necessary to consider whether, taking the section as a whole, there was not some interdependence of one sub-section on the other But inasmuch as the language of sub-s (1) is clear and unambiguous, this is not open to us There are, no doubt, difficulties arising from the drafting of the section, and I shall consider them presently, but they arise exclusively in connection with sub-s (2) and afford no aid to the contention of the appellants.
Finally, the argument ab inconvenienti is pressed upon us It is urged that it is impossible to suppose that the legislature could have intended to give so wide an immunity to trade unions as that which follows from taking the words of sub-s (1) in their natural sense The argument ab inconvenienti is one which requires to be used with great caution There is a danger that it may degenerate into a mere judicial criticism of the propriety of the acts of the legislature We have to interpret statutes according to the language used therein, and though occasionally the respective consequences of two rival interpretations may guide us in our choice .
between them, it can only be where, taking the Act as a whole, and viewing it in connection with the existing state of the law at the time of the passing of the Act, we can satisfy ourselves that the words cannot have been used in the sense to which the argument points There is nothing of the kind here At the time of the passing of the Act the recognised state of the law was that a trade union could be sued in the wine way as any other association by the procedure of a representative action, or, in case it was a registered trade union, under its registered name That this was the state of the law had, no doubt, come as a surprise to large sections of the community Even in the courts themselves there had been a difference of opinion on the point, as is shown by the history of the Taff Vale (1) litigation Under these circumstances the Trade Disputes Act, 1906, was passed, and we find in it a plain provision that no action shall be entertained against a trade union by either of the two methods of procedure by which, at that time, such an action could be brought, in case the action is in respect of a tortious act Under such circumstances a court is not justified in allowing itself to be influenced by the argument ab inconvenienti The legislature has expressed its decision plainly that such should be the law.
I am further of opinion that too much has been made of the supposed gravity of the consequences of the enactment It will be seen that it does not affect the personal liability of any individual Trade unions, like other associations, must act through agents, and it is a fundamental principle of the English law that no tortfeasor can excuse himself from the consequences of his acts by setting up that he was acting only as the agent of another All that the section takes away is the power of proceeding against the association, or making its corporate funds liable The association, therefore, is in a position in some respects analogous to, though by no means identical with, the position of a statutory corporation with regard to contractual acts which are ultra vires No matter how completely the act may be in form an act (if the corporation, it cannot be made liable under the contract because it must act through agents, and it could give no authority to anyone to do on its behalf an act which was ultra vires Nor is such a provision of a wholly novel type in connection with trade unions In s 4 of the Trade Union Act 1871, we find a list of legal proceedings which, although the association had by that Act been made legal, the courts were not, on that account, permitted to entertain It is true that the Trade Disputes Act, 1908, makes an addition to the list which is of enormous importance, and does so in very peremptory language, but it cannot be said that, interpreted according to its plain language it is of a type wholly without precedent in past trade legislation.
The real difficulty in the interpretation of s 4 is found in sub-s (2) which reads as follows:
“Nothing in this section shall affect the liability of the trustees of a trade union to he sued in the events provided for by the Trade Union Act, 1871, s 9, except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute”
The difficulty is caused by the fact that there is nothing in sub-s (1) of s 4, which relates to suing the trustees of a trade union It only refers to suing the officials of a trade union when they are sued in a representative action, and that is not what is referred to in sub-s (2) One would be inclined to avoid the difficulty by saying that the sub-section was put in ex abundanti cautela only, were it not for the exception which it contains, which would seem to indicate that sub-s (1) would have granted immunity to the trustees in respect of actions of tort coming under s 9 of the Act of 1871, and that it was the intention of the legislature to limit that immunity to cases where the tort was committed by, or on behalf of, the union, in contemplation or in furtherance of a trade dispute Whether this is or is not the true interpretation of the section as a whole is not before us in the present appeal, but I have thought it right to indicate the real difficulty which exists in its interpretation.
It, I think, points either to imperfect drafting, or to some intermediate provision having been struck out without the proper consequential amendments being made in the language of sub-s (2) But the difficulty, however great, has no bearing on the point which is before the House The language of the section, so far as it relates to the present case, is clear and unambiguous, and, in my opinion, we must follow, it I am, therefore, of opinion that the decision of the Court of Appeal was right, on the lines adopted by KENNEDY, LJ, in his judgment (infra) and that this appeal should be dismissed with costs 3 April 1912 KENNEDY LJ, read the following judgment:- The plaintiffs, who are printers, sued the defendant society, which is a trade union, and two other defendants, who are respectively the secretary and the organising secretary of the defendant society, claiming damages for torts, which the plaintiffs allege to have been committed by all of the three defendants These torts, as stated in the plaintiffs’ pleading, consist of (i) libel, (ii) conspiracy to injure the plaintiffs as printers by the publication of the alleged libels The libels in every case but one consist of the contents of a document entitled “The Compositor’s Fair List and Guide to the London Printing Office,” sent by the defendants with covering letters to actual or possible customers of the plaintiffs In para 13 there is a further libel charged in respect of a letter therein set out which was addressed by the defendant Holmes, as agent (so the plaintiffs allege) of his co-defendants, as well as on his own behalf, to the United Committee for the Taxation of Land Values The plaintiffs in substance and effect allege in their statement of claim that the meaning and the purpose of all these communications was to injure the plaintiffs by representing that the plaintiffs had been guilty of unfair dealing in their business as printers; that they treated their employees harshly and unfairly, and never employed trade union compositors, and were not, therefore, persons fit to be intrusted with the execution of orders for printing For the purpose of deciding the matter of the present appeal it must be assumed that the plaintiffs can substantiate their charges of tort as pleaded by them in the statement of claim .
The application with which we have to deal is an application to strike out the name of the defendant society from the writ of summons and all subsequent proceedings in this action under Ord 25, rr 2, 4, on the ground that the case, as presented by the plaintiffs in their pleading, discloses no reasonable cause of action against the defendant society CHANNELL, J, in chambers dismissed this application, giving leave to appeal; and this court has to say whether that decision was right or not The question is undoubtedly one of importance, for it involves the interpretation of s 4(1) of the Trade Disputes Act, 1906 If I felt a doubt as to the meaning and effect of this enactment in relation to the present case, I should assuredly, whatever might be the inclination of my own mind as to the true interpretation, affirm my brother CHANNELL’S, decision, and leave the point to be argued at the hearing of the action I have, however, come to the conclusion that the meaning and effect of the enactment in relation to the plaintiffs’ action is not open to any doubt; that the statement of claim, every statement in which I assume, for the purpose of deciding the question before us, to be true, does not disclose any reasonable cause of action against the defendant society; and, therefore that this application to strike out its name as a defendant ought to be allowed Nothing, as it appears to me, could be clearer or more explicit than the language of the enactment itself:
“An action against a trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union shall not be entertained by any court”
The statement of claim alleges torts – libel and conspiracy – it sues this defendant, the trade union, in respect of those alleged torts It follows, as I venture to think, that we cannot allow such an action to be entertained by the High Court of Justice against this defendant without contravening the express provisions of the Act of Parliament.
What are the arguments against this view? I trust that I do not do any injustice to the case as it was presented to this court with his usual force and skill by counsel for the defendants, if I state the arguments put forward by the plaintiffs in the following propositions: (i) It is inconceivable, or at all events most improbable, on grounds of public policy, that the legislature should have accorded so large and special an immunity to a trade union, and the court therefore ought to presume in favour of any limitation which can reasonably be suggested in order to limit the effect of the enactment (ii) We may infer such a limitation from the presence in ss 1 and 3 of the words, “An Act done in contemplation or furtherance of a trade dispute,” and the presence of similar words in s 4(2) and from the provision in s 5 that “this Act may be cited as the Trade Disputes Act, 1906”; and, therefore, we may properly read into s 4(1) after the words “and tortious act alleged to have been committed by or on behalf of the trade union” the words “in contemplation or furtherance of a trade dispute” (iii) Section 4(2) is inconsistent with the attribution of its natural meaning to the language of s 4(1).
I must confess myself unable to attach weight to these arguments In regard to the alleged improbability of the legislature having meant what it appears from the natural and ordinary sense of the words in s 4(1) to have enacted, I say that I decline to speculate in regard to any statutory enactment which it becomes my duty to interpret as to what was the policy to which the legislature thought it was giving the force of law Nothing in my humble judgment could be more dangerous, if the words of a statute according to their natural grammatical sense are plain, than to allow oneself to drift into a wilderness of conjectures as to the priori probability or improbability of the legislature having intended to say what it has in fact said I agree entirely with the proposition that, in construing and applying s 4(1) inasmuch as it accords, as on any view it does, a novel immunity from legal proceedings to one particular kind of association, the enactment ought to be strictly construed I agree also that if a section in an Act of Parliament is either on its face ambiguous, or, if read in that which is prima facie the natural meaning of the words, is plainly inconsistent with the context and the very purpose of the Act of which it is part, it is legitimate, in construing the section, to treat the purpose of the Act as appearing in it as the governing element in the choice of interpretations, even although, in the latter of the two cases which I have put, a less natural meaning has in consequence to be imposed upon the language of the section But none of these considerations appear to me to avail the plaintiffs here Construex s 4(1) as strictly as one can its simplicity and freedom from ambiguity are, in my humble judgment, transparently clear; there is nothing in the purpose of the Act, and the Act must speak for itself, with which the natural interpretation of s 4(1) is inconsistent In this connection it is convenient to consider the limitations which the plaintiffs seek to introduce into s 4(1) and the arguments which they endeavour, as I have already stated, to draw from the language in ss 1, 3, and 5, and from the title of the Act itself in s 5 The plaintiffs propose to read into s 4(1) after the words “committed by or on behalf of the trade union,” the words “in contemplation or furtherance of a trade dispute,” or at any rate to add words to that effect Why? Because, they argue such words are to be found where, under ss 1, 3, and 4, sub-s (2) the legislature is granting a decree of immunity from legal liability for wrongdoing to individuals, and it is reasonable
to infer that it was only subject to the same limitation that the legislature intended to grant immunity from wrongdoing to the trade union I can only say that I see nothing to compel me to make such an assumption as to the intention of the legislature Knowing, as everyone does, the controversy as to the protection of trade union funds, I decline to infer from the limitation of the immunity of individuals in other sections that the legislature could not have intended to give an unlimited measure of immunity to the trade union, And, to my mind, the very fact that in each of those other parts of this short Act which are referred to by the plaintiffs we find the express insertion of the limitation makes it most improbable, to say the least, that the omission of such a limitation in s 4(1) was a casual slip and not intentional I am not impressed by the argument founded by the plaintiffs on the title of the Act and on the provision in s 5(1) that the Act may be cited as the Trade Disputes Act, 1906, If the Act is by its title an Act to provide for trade disputes, it is also by its title an Act to provide for the regulation of trade unions; if under s 5 it may be cited as the Trade Disputes Act, 1906, the Trade Union Acts of 1871 and 1876 and this Act, according to the same section, may be cited together as the Trade Union Acts, 1871 to 1906.
This brings me to the consideration of the last of the arguments which were put forward on behalf of the plaintiffs It is contended that s 4(2) shows, or tends to show, that some such limitation as the plaintiffs suggest must be read into s 4(1) I venture to think that the purposes for which this s 4(2) was inserted are not difficult to understand, and that nothing in its provisions requires or justifies a rejection of the natural interpretation of sub-s (1) The first half of sub-s (2) runs thus:
“Nothing in this section shall affect the liability of the trustees of a trade union to be sued in the events provided for by the Trade Union Act, 1871, s 9”
That section (so far as it is material to the present question) empowered the trustees of a trade union to bring or defend or cause to be brought or defended any action, suit, prosecution, or complaint, in any court of law or equity, touching or concerning the property, right, or claim to property of the trade union; and provided that they (that is, the trustees) should and might sue or be sued, plead or be impleaded, in any court of law or equity in their proper names without other description than the title of their office But for the provision of the first half of subs (2) of this Act, which preserves the liability of the trustees to be sued in the events provided for by s 9 of the Trade Union Act, 1871, it might have been successfully contended that the operation of the previous subsection was to deprive a person who has been injured in a matter touching or concerning the property of the trade union – as for example, by a nuisance – from any remedy This the legislature apparently did not desire, and the first half of s 4(2) effectually preserves the right of action for such torts But if the sub-s (2) had stopped at its first half an action could have been brought against, the trustees under s 9 of the Act of 1871 if the subject of claim was one touching or concerning the property of the union, even if the claim was based on tort which had been done in contemplation or furtherance of a trade dispute, and so an exception would have been introduced to the scheme of the Act which is contained in ss 1 and 3 of the Act of 1906 To prevent this the legislature enacted this second half of sub-s (2):
“except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute”
So s 9 of the Act of 1871 stands subject to the exception that the act complained of and forming the basis of claim cannot be made the subject of claim against the trustees of the union if that act is one done in contemplation or furtherance of a trade dispute.
In the result, the liability of the trustees under s 9 of the Trades Union Act, 1871, for wrongs touching or concerning the property of the trade union is preserved,
except where the alleged wrong Is committed in contemplation or furtherance of a trade dispute I am unable to see, therefore, in what way subs (2) assists the plaintiffs in their claim to insert such a limitation as they suggest in sub-s (1) In my opinion, the language of that sub-section must be read in its natural sense, without the introduction of any qualifying words, and this appeal should be allowed I have only to add, having had the opportunity of reading and considering the judgment of VAUGHAN WILLIAMS, LJ, that, if the insertion of any qualifying or modifying words into s 4(1) is justifiable, the insertion of “as such” after “trade union,” as the lord justice suggests, seems to me to he the one least open to any objection, and even if such an insertion were made, the defendants’ application succeeds, for the reason Which VAUGHAN WILLIAMS, LJ, himself stated in his judgment – namely, that the facts as alleged by the plaintiffs themselves in the statement of claim show that the alleged torts are such as were committed by a trade union as such I think, therefore, the appeal should be allowed