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wages, "interferes with" the employer carrying on his business; also every member of an employers' federation who persuades his co-employer to lock out his workmen must "interfere with " those workmen. Yet I do not think it will be argued that an action can be maintained in either case on account of such interference. But whatever meaning may be attached to the words "interfere with," I see no ground for saying that any different rule should be applied to cases of interference with a man when carrying on his trade or business, or when he is engaged in any other pursuit. In the Mogul Steamship Co. Case (1) there was an extreme case of interference with the plaintiff's business by methods which directly injured the plaintiffs in their trade for the express purpose of benefiting the defendants. The admitted interference was carried on by several defendants in a combination which in one sense amounted to a conspiracy, yet it was held by this House that no action could be maintained, for the acts done were not unlawful and the combination was not a criminal conspiracy.
My Lords, I abstain from passing in review the older cases which refer to interference with trade or business, for they have already been very fully reviewed and dealt with. I content myself with saying that I do not think they establish more than that the interference which is in itself unlawful constitutes a cause of action. It seems somewhat contrary to common sense that an interference which is rightful when applied to general subjects becomes wrongful when a trade or business is subjected to it.
The plaintiff's counsel, as I have already said, also relied strongly upon a passage in Lord Justice Bowen's judgment in the Mogul case in which after explaining that there can be no actionable tort without the violation of a legal right, his Lordship proceeded as follows:
No man whether trader or not, can, however, justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction and molestation are forbidden; so is the intentional procurement of a violation of individual rights, contractual or other, assuming always that there is no just cause for it.
This proposition is also said to be but a corollary from the more general proposition that intentionally to do any harm to another person without just cause is an actionable tort. It cannot, however, be too carefully borne in mind, when considering the above passage, that the judgment from which it was taken was subsequent to the decision of the Court of Appeal in Bowen v. Hall, and prior to the decision of the House of Lords
in Allen v. Flood.
Lord Justice Bowen followed, as he was bound to do, the decision in Bowen v. Hall, but the law laid down in this case was, as I have submitted, over-ruled by a majority of the Lords in Allen v. Flood.
Finally, if the question be considered on general principles and apart from the decision in Allen v. Flood, I submit that there is no general rule of law that a person who by some act intentionally does harm to another is prima facie liable to him. To make him liable it is necessary to show that the defendant has violated some right of the plaintiff, and a person has no more right to be unmolested in his trade, business or employment than he has when he is doing anything else, which he is at liberty to do. A workman, for reasons either good or bad, molests an employer by threatening to take part in a strike if he should continue to employ certain other workmen; could it be for a moment maintained that the employer or any such other workmen have any right of action? Again, a person for some reason or other induces a number of tradesmen to abstain from dealing with another tradesman or merchant; can it be contended that the merchant or tradesman thus molested is entitled to recover compensation? Indeed, that the general principle contended for by the plaintiff's counsel in Allen v. Flood does not form part of the common law almost necessarily follows from the judgment in Lumley v. Gye, for if it did, it would (as was observed by Lord Davey and Lord Watson) have certainly been known to the very eminent judges by whom that case was decided. Yet no mention of it is to be found in any of their elaborate judgments, although it would evidently have afforded an easy solution of the important question which that case involved.
No doubt a legal system may exist, or might be constructed, in which the law of tort was founded on the principle that intentionally to cause damage to another person is, in the absence of reasonable cause, an actionable tort, it being left to the judge to decide whether there is or is not a reasonable cause. It is, however, impossible, since the decision in Allen v. Flood, to maintain that such a principle is recognized in our existing legal system; for it would be evidently inconsistent with the legal proposition which, to use Lord Lindley's words, was so fully
and authoritatively established by that case; and which his Lordship stated in the following words:
An act otherwise lawful although harmful does not become actionable by being done from a bad motive and with intent to annoy or harm another.
Nor is it less evident that to introduce such a fundamental principle would be in the highest degree unwise and inexpedient, inasmuch as it would make the whole law of torts vague and uncertain, until a great quantity of new judge-made law had determined in what cases there is and in what cases there is not reasonable cause or justification.
The House of Lords recently decided that it has no power to over-rule one of its own decisions, but as there are numerous dicta throwing doubt on what was, unless I am mistaken, decided in Allen v. Flood, I think it should be expressly enacted, as is proposed in Sir C. Dilke's Bill that
A person shall not be liable for doing any act not in itself an actionable tort, only on the ground that it is an interference with another person's trade, business or employment.
Report by Sir Godfrey Lushington.
With all that is said in the Report on this case I am in complete accord. I hold it of great importance that in the conduct of strikes workmen should recognize their duty to conform to the law, and feel themselves to be not only workmen pursuing their own interest but members of society at large, and, like everybody else, responsible for their actions.
But for the same reason I dissent from the proposal in the Report that the Provident Funds of Trade Unions should be exempt from liability. No reason is given for this but the encouragement of thrift. Thrift is a good object; but thrift comes after payment of just debts, and certainly not least, debts incurred in consequence of wrong-doing to others. The case is only made the stronger by the attempt altogether to repudiate
debts of this character. That workmen should collectively do wrong, and be able to refuse to those who have suffered from such wrong any reparation out of the funds they have collectively saved for their own use and benefit, is contrary to justice. The proposed exception is quite anomalous. In the case of an individual debtor all insurance policies of which he is the beneficiary owner pass to his trustee in bankruptcy. The reservation, made in misericordiam, of a workman's tools and bedding, is an exception that marks the rule, and the value of such goods is trifling, whereas the Provident Funds of a Trade Union may amount to hundreds and thousands of pounds. So in the case of societies. Friendly societies are Provident societies; but the official rule in the case of a dividing society expressly provides that it shall be the duty of the Committee of Management to see that all claims upon the society existing at the time of any division of the funds thereof are met and provided for before any such division takes place. And the same principle would be followed in the event of a society being dissolved.
I may add that the practical difficulties in separating provident funds from other funds, or rather in securing that such separation has been made and observed, are very great indeed. Unregistered Trade Unions are not bound to keep any accounts. Registered Trade Unions are bound once a year to send in a return in a prescribed form. At no other time do the accounts come before the Registrar, and there is no provision for a public audit. The auditors are appointed as prescribed by the rules, and there is nothing to prevent members of the Union being chosen for the office.
The objection above stated applies still more strongly to Mr. Webb's suggestion that out-of-work funds should be also exempted. The term out-of-work-funds is an ambiguous one. On this point I may refer to the Trade Union Provident Funds Act, 56 and 57 Vic., c. 2, which in granting exemption from income tax to Trade Union Funds applicable and applied solely for the purpose of Provident Funds declared that the expression Provident Funds should include, inter alia, payments made to members out of work. The Bill was introduced into Parliament as a proposal to exempt Provident Funds pure and simple, and
as such passed through both Houses without any amendment or discussion. But the accounts of many Trade Unions show no difference between payment to members who are out of work from slackness of trade and payments to members who are out of work because of a strike. And there is reason to believe that, although strike pay is not officially regarded as pay to members out of work, there is an unknown number of cases in which what are virtually Strike funds are exempt from income tax.
The Report further recommends a special enactment to protect a Trade Union from undue liability on account of the acts of its Branches as its agents; and one or more of the Commissioners suggest a special enactment of a wider scope to comprehend the most important of such principles of responsibility for the acts of agents as are applicable to Trade Unions. Both of these proposals appear to me open to grave objection. doubt the law of Principal or Agent is from the nature of the subject necessarily complicated, and difficulties must be expected in applying it to trade unions, just as difficulties have been experienced in applying it to other societies and to individuals. But it is not suggested that the general law is really inappropriate for Trade Unions, or that its application has been found to produce injustice. It would in my judgment be impracticable to embody the law in a few clauses, more especially as it is not proposed to place any restrictions upon the liberty which Trade Unions now possess of adopting any form of internal organization or of relations between the Central Association and its Branches that they think fit. And, after all, the responsibility as Principal cannot in the case of a Trade Union be made to turn solely on the rules of the Society any more than in other cases it turns exclusively upon instructions given by the Principal to His Agent. The almost inevitable result of any such legislative attempt as is proposed would be to assign to Trade Unions some sort of peculiar rule of liability for the acts of their agents. This is much to be deprecated. A more stringent liability than is imposed on others as Principals would be a hardship to Trade Unions, whilst a laxer rule would be unjust to those who may suffer from the tortious acts of Trade Unions and would impair the salutary effect of the Taff Vale judgment.