3PLR – BONSOR V. MUSICIANS’ UNION

 

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BONSOR

V.

MUSICIANS’ UNION

HOUSE OF LORDS.

1955 June 27, 28, 29, 30; July 4; Nov. 7.

LN-e-LR/1955/8 (HL)

 

OTHER CITATIONS

[1956] A.C. 104

BEFORE THEIR LORDSHIPS:

LORD MORTON OF HENRYTON

LORD PORTER

LORD MACDERMOTT

LORD KEITH OF AVONHOLM and

LORD SOMERVELL OF HARROW.

 

REPRESENTATION

Lester for the appellant.

Lindner Q.C. and Schapiro for the respondent union.

Solicitors: Cecil Altman; Hall, Brydon, Egerton & Nicholas.

 

MAIN ISSUES

EMPLOYMENT AND LABOUR LAW:- Trade Union – Whether legal entity – Membership rights of a member – Whether protected – Expulsion of member – Where deemed ultra vires Rules of union –Whether claim for damages can be maintained

EMPLOYMENT AND LABOUR LAW – TRADE UNION:- Legal status of a trade union – Nature of contract between trade union and members – Whether contractual – Whether can sustain a claim in damages or tort against union by members

EMPLOYMENT AND LABOUR LAW – TRADE UNION:- Registered trade union – Whether consists of a number of individuals or possesses some sort of legal entity separate from its members – Whether can only be sued in a representative capacity through its trustees or authorized officers – Whether an unincorporated society which can be sued in its own name legal proceedings as well as for business and other purposes

EMPLOYMENT AND LABOUR LAW – TRADE UNION:- Action by a member of a trade union against the Union for the act of an agent of the union – Whether equivalent to the member suing his own agent and therefore suing himself, a thing he could not do

EMPLOYMENT AND LABOUR LAW – TRADE UNION:- Expulsion of a member from membership of a trade union – Where done in breach of union rules – Whether a breach of contract

COMPANY LAW – JURISTIC PERSONALITY:- A body statutorily vested with the right to sue and be sued as well as hire agents and employees – Whether a juristic personality without manifest intention of the legislator – Whether a body can be a legal entity and not a juristic body – Whether statutorily registered trade unions do not possess a status amounting to a legal personality distinct from their membership

COMPANY LAW – REGISTERED VOLUNTARY ORGANISATION:- Whether the registered name is nothing more than a collective name for all the members – Whether the registered name is one which may be used to denote the union as an unincorporated society in legal proceedings as well as for business and other purposes – Whether members or agents of the union are not liable personally for liabilities arising from acts of the union conducted through its employees and agents

LEISURE, ENTERTAINMENT, HOSPITALITY & SPORTS LAW:-  Registration of a union or voluntary organization for the advancement of creative persons – Liabilities arising from conducts of agents or employees of the organization – Liabilities of the artists members personally

CONSTITUTIONAL LAW AND JURISPRUDENCE – POWERS OF THE LEGISLATURE:- Power to create new legal statuses and personalities – even one not previously known to the law – Duty of court to respect such intention of the legislature where clear – Whether such intention can be inferred from indirect vesting of powers or from the whole circumstances of applicable statute

GOVERNMENT AND ADMINISTRATIVE LAW – LEGISLATURE:- Competence of the legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity to own property, act by agents, and employ servants which can inflict injury – Whether such capacity in the absence of express enactment to the contrary involves the necessary correlative liability of being suable in a court of law for injuries purposely done by its authority and procurement

COMMERCIAL LAW – AGENCY:- Majority members or officers of a union – Wrongful action in breach of rules of the union when done in name of union against the rights or interest of a member – Whether deemed to be acts of agents of every member of the union including the wronged party – Whether subsequent disavowal of such wrongful act by Union as a whole is relevant – When such wronged member will be entitled to damages against union for breach of contract

TORT AND PERSONAL INJURY – LIABILITY OF A TRADE UNION:- Whether an injunction grounded on tort could proceed against a trade union in favour of a non-member

NONPROFIT LAW – VOLUNTARY ORGANISATION:- Distinction between registered and unregistered voluntary organisations – Distinction between legal status of registered trade union and incorporated company – Trade Union – Distinction between registered trade union and other forms of voluntary organisations – Whether trade union a legal entity vis-à-vis members –

NONPROFIT LAW – TRADE UNIONS AS REGISTERED TRUSTEES:- Trade unions when registered – Status as quasi-corporations incorporated by statute rather than as voluntary associations of individuals merely bound together by contract or agreement, express or implied – Effect

LEISURE/ENTERTAINMENT/HOSPITALITY/SPORTS LAW:- Musician wrongfully ousted from membership of his union and therefore unable to practice his trade without great difficult – Whether entitled to a relief by way of damages for breach of contract

DEBTOR AND CREDITOR LAW:- Proceedings for recovery against a registered trade union – Status as voluntary association of individuals capable of suing and being sued in its registered name and of holding property, through trustees – Whether a creditor holding a decree against the trade union could levy execution against the union directly or its trustees – Whether a judgment creditor can look only to the funds of such a trade union to satisfy his debt, and to the extent to which the funds may be augmented from time to time by contributions of members, whether new or old

CHILDREN AND WOMEN LAW:- Women and Justice Administration – Widow – Wife of a musician wrongfully expelled from union of musicians and thus unable to fully his trade – Action for damages commenced by deceased husband – How treated  

ESTATE ADMINISTRATION:- Action for damages commenced by deceased person – Right of spouse of deceased person as Executor of Estate to maintain suit and claim award of damages – How treated

INTERPRETATION OF STATUTE:- Trade Union Act, 1871 (34 & 35 Vict. c. 31).

 

 

SUMMARY OF FACTS AND JUDGMENT

A member of a registered trade union was wrongfully expelled from it:-

Held, that he was entitled to maintain an action for damages for breach of contract against the union in its registered name.

 

Per Lord MacDermott, Lord Keith of Avonholm and Lord Somervell of Harrow: Although a registered trade union is not a juristic person distinguishable at any moment of time from the members of which it is at that time composed, (1) the action was not barred on the ground that in suing the union the expelled member was suing himself among others, since the agents of the union responsible for his expulsion could not in law be taken to have been acting as his agents, and (2) a registered trade union is capable of being sued in its own name (irrespective of its membership at any particular time); the damages, if any, would then be recoverable and only be recoverable from its funds.

 

Per Lord Morton of Henryton and Lord Porter: A registered trade union, though not an incorporated body, is capable of entering into contracts and of being sued as a legal entity, distinct from its individual members.

 

Per Lord Keith of Avonholm: The legal characteristics of a registered trade union differentiate it from other voluntary associations and may entitle it to be called a legal entity, while at the same time remaining an unincorporated association of individuals.

 

Kelly v. National Society of Operative Printers’ Assistants (1915) 84 L.J.K.B. 2236; 31 T.L.R. 632 overruled.

 

Taff Vale Railway Co. v. Amalgamated Society of Railway Servants [1901] A.C. 426; 17 T.L.R. 698; Amalgamated Society of Carpenters, Cabinet Makers and Joiners v. Braithwaite [1922] 2 A.C. 440; 38 T.L.R. 879 applied.

 

National Union of General and Municipal Workers v. Gillian [1946] K.B.
81; 62 T.L.R. 46; [1945] 2 All E.R. 593 approved.
Decision of the Court of Appeal [1954] Ch. 479; [1954] 1 All E.R. 822 reversed.

 

APPEAL from the Court of Appeal (Evershed M.R. and Jenkins L.J., Denning L.J. dissenting).

 

This was an appeal from a judgment of the Court of Appeal dated February 16, 1954, whereby the court dismissed the appeal of Harry Bonsor, the original appellant, against the judgment of Upjohn J. given on April 17, 1953, granting him a declaration and an injunction against the respondents, the Musicians’ Union, but rejecting his claim for damages in respect of his wrongful expulsion from membership of the respondent union, and made no order as to the costs of the appeal.

 

After the decision of the Court of Appeal had been delivered on March 5, 1954, the court was informed that the original appellant had died on the previous day. Accordingly, on March 16, an order was made, counsel for the respondents not objecting, that judgment be entered and ante-dated February 16, 1954. The original appellant’s widow, Mary Claire Bonsor, having obtained letters of administration on July 24, 1954, it was ordered on August 5, 1954, that the proceedings should be carried on between her as appellant and the respondents.

 

Mr. Bonsor joined the respondent union, which was a registered trade union, some time before the year 1947. In the year 1949 the union purported to expel him from its membership. The results of that expulsion were described by Upjohn J. in his judgment as follows:

“The plaintiff is aged some 50 years and has all his life been a professional musician. He joined the Musicians’ Union through the Liverpool branch some time before 1947. The Musicians’ Union is what is familiarly known as a ‘closed shop union.’ That is to say, it is virtually impossible to get employment or engagement as a musician unless the musician is a member of the union. That, indeed, has been strikingly illustrated in this case, for after his expulsion the plaintiff was unable to obtain any employment except at Cheltenham for a short time with a non-union orchestra. He was, apart from that, unable to get any employment and he has had to seek his livelihood in entirely different spheres. He was at one time even reduced to accepting employment to remove rust from a Brighton pier, and he is now earning a wage of some £6 a week in some engineering works, whereas formerly, earning his livelihood as a musician, he was earning sums certainly well in excess of £10 a week.”
On October 8, 1952, Mr. Bonsor issued the writ in the present action, claiming a declaration that his expulsion was wrongful, null and void, and, after obtaining an amendment of his claim, an injunction restraining the respondent, its servants and agents, from acting on the purported expulsion, damages and costs. Upjohn J. granted the declaration and injunction and costs, but dismissed the claim for damages, holding himself bound so to do by reason of the decision of the Court of Appeal in 1915 in Kelly v. National Society of Operative Printers’ Assistants.1

 

He held (_a_) that the secretary of the union’s Brighton branch, purporting to act under a particular rule dealing with members whose subscriptions were in arrear, erased Mr. Bonsor’s name from the register of membership on July 2, 1949, and (_b_) that the branch secretary was not empowered to act in this manner and had done so in breach of the rules.

 

The respondent union appealed against the part of the judgment which granted the declaration and injunction, and Mr. Bonsor cross-appealed against the dismissal of his claim for damages. The Court of Appeal dismissed the union’s appeal and dismissed the cross-appeal by a majority (Evershed M.R. and Jenkins L.J., Denning L.J., dissenting).

 

By rule XIX (1) of the union’s rules, dated 1952, dealing with “eligibility for membership”: “… any person following the profession of music … shall be eligible for membership.” By rule XXII, dealing with “entrance”: “The entrance fee for membership shall not be less than 10s., but the branch committee, subject to the approval of the executive committee, may … raise it … (1A) The branch committee may … resolve that any individual candidate before being admitted to membership shall in addition to paying the entrance fee … pay a premium, the amount of such premium to be determined by the branch committee or, if the branch committee so decide, by a general meeting of the branch. Any decision taken under section (1A) shall be subject to the endorsement of the executive committee. (2) Candidates for admission into this union shall make application in writing (on the form provided for the purpose) to one of the secretaries … (3) … Every admission to be decided by a
majority of the members of the executive committee or branch committee.”

 

The form of application for admission was addressed to the secretary of the branch and, when completed by him, was to be forwarded with the return of new members monthly to the national office of the union. It was admitted that there had been no material change in the rules since Mr. Bonsor’s admission.

 

Lester for the appellant.

The question is whether Kelly v. National Society of Operative Printers’ Assistants1 is binding. In these days, when unions are more and more adopting a “closed shop” policy, they can inflict great hardship on individuals, and it would be strange if the law provided no remedy in damages for a wrongfully expelled member of a trade union though there is authority that a member may be protected from wrongful expulsion by declaration and injunction. The respondents contend that in law a trade union is not a legal entity but only a convenient name for designating the members collectively. But in the face of the authorities dealing with declarations and injunctions this cannot be so. Unions have been given by law rights and duties and are to be regarded as legal entities. In law a person is any being which the law regards as capable of rights and duties. There is the natural person; there is also the incorporated body created and recognized by law.

 

Trade unions generally have been given by Act of Parliament extraordinary privileges and rights and have been made subject to duties. Taff Vale Railway Co. v. Amalgamated Society of Railway Servants2 is the starting point of the argument. There the status of a trade union was in question and Lord Brampton3 said in terms that it was “a legal entity.” Yorkshire Miners’ Association v. Howden4 was the first case where the parties were a trade union and a member concerned with preventing it from wrongfully dissipating its funds.

 

In Amalgamated Society of Railway Servants v. Osborne⁵ a member resisting a political levy by a trade union obtained a declaration and an injunction. A registered trade union was recognized as being able to act as a person. In Osborne v. Amalgamated Society of Railway Servants6 the plaintiff, who had been expelled, obtained a declaration and an injunction. This case was affirmed and approved in Amalgamated Society of Carpenters, Cabinet Makers and Joiners v. Braithwaite.⁷ As to the suggestion that a trade union is merely a collective name to designate the members, see Russell v. Amalgamated Society of Carpenters and Joiners.⁸ Kelly v. National Society of Operative Printers’ Assistants⁹ is on all fours with the present case, and the Court of Appeal, considering itself bound by it, held that the present claim for damages was not maintainable, because (1) it was said that the action was by the plaintiff against himself and the other members, and (2) the committee, since they were officers of the union, were officers of each and every member of the union and accordingly were the plaintiff’s agents. This case should be overruled. Alternatively, if it stands, it is distinguishable from the case of the present union, the rules of which amount to an agreement between it and the members and not solely to an agreement of the members inter se.

 

Kelly’s case⁹ was criticized in Rex v. Cheshire County Court Judge,¹⁰ and Scrutton L.J. said that he could not see any explanation why, if the member could not get damages, he could get any relief at all. But though Kelly’s case¹¹ was criticized, it was treated as binding on the Court of Appeal. In National Society of General and Municipal Workers v. Gillian¹² it was said that a registered trade union is a distinct legal person separate from the individuals comprising it. That is right. It is a juridical person and contracts with its members in terms of its rules. London Association for the Protection of Trade v. Greenlands Ltd.¹³ deals with the question of the authority of officers of an unincorporated body.

 

The relevant statutes are set out in Citrine on Trade Union Law in Appendix I: Trade Union Act, 1871; Trade Union Act (1871) Amendment Act, 1876; Trade Disputes Act, 1906; Trade Union Act, 1913; Trade Disputes and Trade Unions Act (Northern Ireland) Act, 1927 (similar to the Trade Disputes and Trade Unions Act, 1927, repealed in 1946); Societies (Miscellaneous Provisions) Act, 1940. In particular sections 15 and 16 of the Act of 1871 indicate that a registered trade union has a distinct legal personality since penalties are imposed on it and an offender must
be either a natural or an artificial person.

 

In the Court of Appeal¹⁴ it was conceded that section 4 of the Trade Union Act, 1871, does not prohibit the claim for damages for wrongful expulsion. [ Lindner Q.C. It is desired to keep that point open. One cannot concede a point of jurisdiction.]

 

It is wrong to consider an action against a trade union as a representative action against the members. It is immaterial whether the claim is for damages or a declaration; if the plaintiff were on both sides of the fence the action would be bound to fail.

 

Assuming that the officers of the trade union are the plaintiff’s agents, if he is treated unlawfully by them it cannot be said that they are acting on his behalf in so treating him. As to the other members, the mere association of persons together does not per se make one the agent of the other. Accordingly, the plaintiff was not debarred from claiming damages.

 

If the trade union is a legal entity for any purpose there is nothing to hinder it from entering into a contract with an incoming member. There is nothing in any Act of Parliament or any rule of law to prevent this. In the natural course of events that is what happens. An analogy is found in limited companies.
Mr. Bonsor, in joining the union, entered into a contract of membership with the union and not with his fellow members as distinct from the union.

 

The union, being registered, is a legal entity or quasi-corporation capable of suing in respect of wrongs done to itself and of being sued for breaches of the contract of membership by any of its members, subject to statutory limitations. The secretary of the union, in wrongfully expelling or excluding Mr. Bonsor, was acting on behalf of the union and not on behalf of all the individual members including Mr. Bonsor. From first to last the union adopted the attitude that Mr. Bonsor was rightly expelled and accordingly it could not say that the secretary was not its agent for that purpose.

 

The appellant’s submission does not result in any personal obligation on the members. The obligation is limited to the union funds. The case stands or falls on the point whether or not a registered trade union is a legal entity. A wrongfully expelled member of an unregistered trade union is in the same position as a wrongfully expelled member of a club. It is only if a trade union is treated as a legal entity that the authorities are consistent. It would be remarkable if the truth of the matter were that the contract was with an agglomeration of the members; this has never yet been previously recognized. A registered trade union is a legal entity, though not a corporation. It is a quasi-corporation.

 

This was a registered trade union. If it were unregistered the case would fail, for then the union would have no special rights given it by the statute. It is because of its special privileges given by statute that a registered trade union has its special quality. There are certain limitations on the powers of trade unions, but the expulsion of a member is intra vires provided it acts properly in the matter.

 

Lindner Q.C. and Schapiro for the respondent union.

It is not intended to take any point of jurisdiction derived from section 4 of the Trade Union Act, 1871, which does not apply to these proceedings. The appellant’s claim is based on a breach of a contract alleged to be between the union as one party and Mr. Bonsor as the other, and the  contention is that so far as the union was concerned it was clothed with a sufficient legal personality to enter into such a contract of membership.

 

It is said that by virtue of registration under the Act of 1871 it acquired a legal personality and status which enabled it to enter into the contract. The following questions arise:

(1)     Assuming that a trade union is neither a corporation nor a legal person by virtue of registration, can it enter into a valid contract of membership with a member?

(2)     Can it be sued in damages for a breach of contract?

(3)     Was Kelly’s case¹⁵ rightly decided?

 

It is first necessary to see what documents in fact constitute the contract and in particular whether they purport to be between Mr. Bonsor of the one part and the union as a legal entity on the other. Then it is necessary to look at the Acts of 1871, 1906 and 1913 to see whether the union is competent to enter into the contract as a party to it. With regard to the documents, the rules of the union constitute the basis of association of the persons associated together as its members. There is nothing in those rules to show that, however they become binding, the contract is between the union as a legal entity and a particular person becoming a member. The rules are quite neutral and merely form a code of association. The way Mr. Bonsor became bound by the rules and the code of association was by making application on the prescribed form, by election or a decision of a majority of the executive committee or branch committee, by communication of that decision to the national office and by granting him a membership card. The point of time at which he was deemed to have become a member is not material. The form of application was addressed to the secretary of the branch and not to the union itself. It could equally well be an application to become a member either of a union as a legal entity or of a voluntary association.

 

The language of the documents does not assist the appellant’s contention.
In law, the respondents submit, a registered trade union is an association of members with no legal entity of its own distinct from its members, and a member cannot sue himself and recover damages for a wrong committed by his own agent. The question to be decided is whether there is such a legal entity as a trade union at common law or under the Act of 1871 or the Act of 1906 or the Act of 1913 or as a result of all or any of them or of the judicial interpretation of them in the House of Lords.
There can be no doubt that a trade union is not a corporation, whether at common law or under the Acts judicially interpreted. So far as the common law was concerned, the whole point of the legislation (the result of a Royal Commission in 1867) was to remedy the disabilities under which trade unions laboured through not being legal personae of any description at all or legal entities. The form of this legislation, compared with the legislation relating to friendly societies, made it clear that incorporation was not intended. Neither at common law nor under the Acts was any lesser entity than a corporation created in law.
It was contended for the appellant that a trade union is something less than a corporation but nevertheless a legal entity. In this case the legislature deliberately refrained from creating trade unions corporations and in law it did not do so. The reason was to preclude trade unions from having anything in the nature of a separate legal existence distinct from their whole membership. It would be strange if by judicial interpretation it were found that a legal entity had been established without any defined rights or powers. The expression “quasi-corporation” has about as much precision as “what not.” The law knows only as legal entities the corporation and the individual. There is no such entity as a quasi-corporation. A legal personality is a creation of the law and one must look at the method of creation to see whether a corporation has in fact been created. There is no case of a legal entity being created in any other way, or of a legal personality being conferred on any association without any definition of powers, duties and attributes. If a trade union were to be held to be a legal person it would be essential to have such a definition. By the very use of the expression “quasi” a legal personality
as such is precluded.
For the background of the matter, see Lloyd on the Law of Unincorporated Associations, pp. 2, 4-5, 6 and 15. Against the background of the general principles there expressed the Act of 1871 must be considered. If the appellant is to establish something between a natural person and a corporation, it can only be done under the relevant statutes.
It is submitted that:

(1)     there is not a single word in the Act of 1871 which indicates that a trade union is to be a corporation or a body or a legal entity;

(2)     the pattern of the Act is such as to preclude that idea;

(3)     had the legislature intended that, whether registered or not, trade unions were to be legal entities or quasi-corporations, it would have said so;

(4)     the whole purpose of not incorporating trade unions was to prevent their members from treating them as legal entities.
One purpose of the legislation was to confirm the legality of trade unions and to preclude interference with their internal affairs: see Hedges and Winterbottom’s Legal History of Trade Unionism, p. 65, and Lloyd on the Law of Unincorporated Associations, p. 85. This appears also from section 4 of the Act of 1871 read against the background of sections 2 and 3. Its language is entirely inconsistent with incorporation. Since by that section a trade union cannot recover from any member by legal action the subscriptions from which its funds are derived, it cannot
have been intended to enable a member to recover damages out of those
funds. The section indicates an agreement between the members as such and
that precludes the idea of an agreement between the members and the union
as a legal entity. Subsection (1) indicates the contrary. See also section
5 of the Act and paragraph 2 of Schedule I and In re Amos16 and Rigby v.
Connol.17
If a suit against a registered trade union in its own name is regarded as merely a procedural device substituted for a representative action, it is, strictly speaking, unnecessary to adjudicate on whether a union is a corporation or a legal entity less than a corporation.
All the judges in Taff Vale Railway Co. v. Amalgamated Society of Railway Servants18 had in mind the distinction between a proceeding against a union by a third party outside the union and one by a member. Farwell J. was limiting his observations to the former.
As to the question of the liability of the members, if in an action by a third party against a union its funds were insufficient to meet the damages awarded, it is not necessary to commit oneself to any view, but the better view would seem to be that the individual members would be liable down to their last penny piece, provided that in committing the tort in question, say in the course of a strike, the officers of the union were acting within the scope of their authority: see Taff Vale Railway Co. case.¹⁹ In the cases in which a trade union has been sued the effect has been that the judgment was against every individual member, but operated on the funds gathered together by the members. In the case of a club the liability of the members for the commitments of the secretary depends on his authority. As to the limits of the liability of the trustees of a union’s property, see sections 8 and 9 of the Act of 1871, and Citrine on Trade Union Law, p. 231. See the Taff Vale Railway Co. case²⁰ as to a union’s liability to be sued.
When the legislature intends to grant a body of persons a legal personality it does so explicitly as in the case of industrial provident societies, friendly societies and building societies. There is nothing in the Act of 1876, any more than in the Act
of 1871, to suggest that the essential character of a trade union is that of a legal entity. The nature of the society was not altered by the statutes or by registration thereunder.

16 [1891] 3 Ch. 159; 7 T.L.R. 559.; 17 (1880) 14 Ch.D. 482.; 18 [1901] A.C. 426, 427, 430-431.; 19 Ibid. 438.; 20 Ibid. 434-435, 438, 439-440, 443.; [1956] 114

 

The definition in section 16 of the Act of 1876 includes both registered and unregistered trade unions. Not a single word in the Act of 1906 reflects any decision by the legislature to alter the nature of a trade union. It deals with a problem arising under the Taff Vale Railway Co. case²¹ and contemplates something in the nature of a representative action. Amalgamated Society of Railway Servants v. Osborne²² was followed by the Act of 1913, which contains nothing telling against the respondents.
Then came Kelly’s case,²³ which was rightly decided, having regard to the existing legislation and the authorities, on both points, viz., (1) that a trade union is not a legal entity, and (2) that a member cannot be awarded damages against a union for wrongful expulsion. The objects of the legislation were (1) to remove from trade unions criminal liability resting on the law of restraint of trade, and (2) to free them from certain civil disabilities. It was not intended to govern the contract of membership, however formed, nor to provide remedies for breach of it. The contract of membership was to be left to the members. Even if a trade union is to be regarded as a legal entity for some purposes, there is no indication that relief is given in respect of the contract of membership: see Rigby v. Connol²⁴ and Russell v. Amalgamated Society of Carpenters and Joiners.²⁵
However the contract of membership is constituted, it rests on the basis of the rules of the society. A court will not award damages for breach of a rule not to work for less than the rates of pay laid down in the rules. Nor will any court make an order compelling a member to participate in a strike under the rules. These are matters for the domestic forum. To enforce them might be said to be in restraint of trade. Similarly the court would not enforce rules laying down the limits of hours of work. It is remarkable that in the Act of 1876 there is nothing dealing with the rights of members, in contrast with the Friendly Societies Acts and the Companies Acts, which deal with the rights of members and shareholders.

21 [1901] A.C. 426.; 22 [1910] A.C. 87.; 23 84 L.J.K.B. 2236.; 24 14 Ch.D. 482.; 25 [1912] A.C. 421.

Much reliance is placed on section 2 (2) of the Trade Disputes and Trade Unions Act, 1927, which is contemplating the position where a member of a union has refused to participate in an illegal strike. The legislature does not confine his remedy to an injunction but gives him a right to damages. This would be unnecessary if under the existing law a member could get damages for wrongful expulsion. The subsection also indicates that the damages are relief in lieu of an injunction and not in addition to it.
The Act of 1871 does not deal with the contract of membership. The history of trade union legislation centres round the doctrine of restraint of trade and the difficulties arising from it. The Acts and the cases do not assist a member wrongfully expelled to get damages. Kelly’s case²⁶ was rightly decided. If the union is only the agglomeration of its members, the only way the members can act is by agents. This is so whether the union is registered or not. The agents who act on behalf of the union are the agents of all the members. Thus, if a breach of a rule by one of the union’s officers results in the wrongful expulsion of a member, that act is the act of the common agent of all the members, and it is as much the act of the aggrieved member as of the other members. The appointment of an agent is a joint appointment. As to the case of partnerships, see Lindley on Partnerships, 11th ed., p. 343, and R.S.C., Ord. 48, r. 10. If the court were to act on the analogy of partnership it would order a dissolution, but that would be wholly unreal in the case of a trade union. That is why the courts have shrunk from giving damages in such a case as this.
For wrongful expulsion a member of a voluntary society has a cause of action; the basis of the jurisdiction of the court to intervene is that he has been wrongfully deprived of a proprietary right. It is akin to a wrongful deprivation of an equitable right: see Wertheimer on Clubs, 5^th ed., c. 4, pp. 113 et seq., and Halsbury’s Laws of England, 3rd ed., vol. V, p. 264, para. 621. On this basis the plaintiff may get a declaration and an injunction. But, for the reasons given by Bankes L.J. in Kelly’s
case,²⁷ he cannot succeed in a claim for damages. There is no logical objection to applying his reasoning here, once one accepts the analogy of a voluntary society. X is expelled by the act of the agents of a trade union. Who are they? The only possible answer is that they are the collective agents of all the members. This deprives X of all right to damages. In the unusual case of all the members except X voting to expel him he would have a remedy. The position of the agents of a voluntary society can only be explained on the footing of collective responsibility: see Lee v. Showmen’s Guild of Great Britain.²⁸
It has been suggested that there is an inconsistency in granting a declaration and an injunction and yet not permitting a remedy in damages. But the injunction is not in lieu of damages; it is ancillary to a declaration of right of the expelled member; it is usually adequate to protect his rights. The respondents’ view is supported by Amalgamated Society of Carpenters, Cabinet Makers and Joiners v. Braithwaite.29
In law a registered trade union is an association of members with no legal entity of its own distinct from its members, one of whom cannot sue and recover damages for a wrong committed by its own agent. Further, the beneficiaries of a fund of a registered trade union are its members collectively and severally, and an individual member cannot recover damages against himself.
To allow this appeal would be to upset settled law. If damages were awarded here, it would be impossible to tell where the thing would stop. [ Abbott v. Sullivan30 was also referred to.]

 

Schapiro following.

It may be that in the Taff Vale Railway Co.’s case³¹ Lord Lindley took the view that the legislature intended that a third party damaged by the act of a trade union’s agents should be able to recover damages up to the amount of the union’s funds and that quoad third parties a union therefore had some sort of personality. But only Lord Brampton went so far as to say that a trade union was a legal entity. Lord Lindley said the reverse. That case was to a large extent made obsolete by the Act of 1906. After the House of Lords had interpreted the old Act the legislature altered the law. Similarly the Act of 1913 rendered the first Osborne case³² a matter of history and that case cannot help the House now.
On the question whether the action is a representative action against all the members, if a trade union is not registered, it is not that the action would fail; it would never start, since, though the plaintiff might sue several individuals, he would never get a representation order. The suggestion that Kelly’s case³³ was ill-founded because it seems to have accepted an erroneous statement of the law by Lord Macnaghten in Russell’s case³⁴ is not justified: see  per Evershed M.R. in the Court of Appeal³⁵ in the present case. The reasoning of Bankes L.J. was not thereby invalidated. Nor is any question of a representation action relevant to the present problem.  Bankes L.J. was proceeding on a basis different from that of the Taff Vale Railway case.³⁶
It was argued for the appellants that if once a member could be granted an injunction and costs, it was inconsistent not to grant him damages. Since Yorkshire Miners’ Association v. Howden³⁷ it can be said that the grant of an injunction in a case of wrongful expulsion does not amount to specific performance of the contract. Rigby v. Connol³⁸ had been followed until this decision, which laid the foundation of an action for an injunction.
The principle has been accepted in numerous cases. When the courts grant a declaration and an injunction they are not enforcing the contract. The injunction is ancillary to the declaration sought. In such cases the courts go outside the narrow limits of the contract of the members. If they did not, it would be impossible to apply, as they do, the principles of natural justice. The foundation of the matter is the contract, but the court in its supervisory jurisdiction is concerned to see that as between the parties it is observed in the spirit of natural justice. When a contract is silent on the principles of natural justice the court will nevertheless imply them. This goes beyond the contract. The Taff Vale Railway Co.’s case³⁹ added nothing to the rights of members, so far as action is concerned. The claim by a member for a declaration is a matter of interest to all the members, including himself. He is seeking to have the rules interpreted.
As to costs in such cases, these are, no doubt, paid out of union funds. No parallel can be drawn between awarding costs to be so paid and awarding damages. The essence of an award of damages would be that the plaintiff was claiming compensation out of the union funds for a wrong done to him. The essence of an award of costs is to decide where the burden of litigation is to fall. In a probate action the court may decide that the costs are to be paid out of the estate, but that does not amount to administering the estate. So it is right where there is a dispute between a member and the union officials as to the interpretation of the rules that, if he is correct, he should not bear the burden of the costs. As to the object of seeking a declaration, see Braithwaite’s case.⁴⁰ There is a distinction between a declaration with an ancillary injunction and specific performance of a contract: see Howden’s case.⁴¹ In the present case the plaintiff originally asked only for a declaration and an ancillary injunction with no vestige of a claim for specific performance. It was only on amendment that a claim for damages was added. There is a great difference between construing the rules of the union and granting compensation for breach of contract. It is one thing to come to the court and ask who is the union’s agent and who has acted wrongfully on the interpretation of the rules, and quite another thing to come to the court claiming damages for the wrongful act of one who is both the union’s agent and the plaintiff’s agent. In the former case the plaintiff does not have to show that the act of the agent in interpreting the rules is not his own act; in the latter case he does: see Braithwaite’s case.⁴² As to Kelly’s case,⁴³ see per Denning L.J. in the Court of Appeal in the present case.⁴⁴ Whatever the facts in Kelly’s case,45 it is not possible to say that here there was nothing else but the mere fact of association. At every stage the officers were elected and controlled by the members. Striking members off the roll is one of the duties of the secretary. In so doing he is acting as the agent of the member he strikes off, as well as of the other members. It is an example of the artificiality of unincorporated associations.
If damages were granted in such a case as this the just would suffer with
the unjust among the members, the majority of whom know nothing about
these matters. As a result their subscriptions might have to be increased
because of the depletion of the union’s funds. It might also make
relationship between unions and their members impossible if they had to
fear an action for damages every time a member was expelled. In the
present case several years have passed since the wrongful act and many of
the present members were not members then. An award of damages would
affect perfectly innocent members.
Lesterin reply. In English law anything (using the word “thing” in its widest sense) which the law regards as capable of rights and duties is an entity, a separate thing: see Salmond on Jurisprudence, 10th ed., p. 318. The difficulty put forward by the respondents is that because the Act of 1871 quite deliberately refrained from giving trade unions in terms a corporate quality, it is said that it could not properly be construed as giving them a separate legal entity. It is conceded that nothing in the Act expressly incorporates them, but it clearly gives them attributes which can only
exist in a legal entity, since they are in terms given powers and subjected to duties. If one finds the attributes of a legal entity clearly given in a statute a legal entity has been created by it. There are normal legal persons (viz., natural persons, human beings) and non-natural legal persons. If the latter are given powers and subjected to duties it is not necessary to find any express incorporation: see Cotter v. National Union of Seamen,⁴⁶ in which the law was correctly applied. The rule in Foss v. Harbottle⁴⁷ is inconsistent with the case of a mere voluntary society. The
Act of 1871 confers rights and imposes duties on trade unions. Section 4 (1) is not against the appellant. The actions which it prohibits are actions against a trade union. But in the section it is accepted that there can be an agreement between a member and the union. Section 7 supports the appellant, as does also section 8 in the words “benefit of such trade union and the members thereof,” which show that the union is more than the association of the members. Sections 15 and 16 impute liability to the union as such. The first Osborne case⁴⁸ would not have come before the House of Lords if the union had only been the agglomeration of the members. After the Act of 1913 a union was just as much an entity as before. The special right to damages given to members by the Act of 1927 does not necessarily mean that the legislature did not recognize the member’s right to recover damages in the ordinary case of breach of contract. Section 6 of the Societies (Miscellaneous Provisions) Act, 1940, is quite inconsistent with the view that a trade union is merely a voluntary association. In a voluntary association it is only by agreement of the members that the subscription can be raised so as to bind all members, unless there is any provision in the rules for such an alteration: see Harington v. Sendall.⁴⁹
Kelly’s case⁵⁰ was wrongly decided. It is wrong to base the judgment on the footing that the plaintiff could not recover because he was suing himself among others. If a trade union is a legal entity that disposes of all the reasons in Kelly’s case.⁵⁰ As to the question of agency, one should not confuse the authority and
position of the secretary of the union in relation to third parties on the one hand and members on the other. The authority given to the secretary is to act according to the rules.
If in relation to a member the secretary acts contrary to the rules the question arises who gave him authority to act thus. The plaintiff here did not give the secretary authority to expel him. The expulsion was contrary to the rules and there was no such implied authority. The union adopted the act of the secretary. In the very act of purporting to expel tire plaintiff the secretary committed such a breach of a fundamental tern of the agency as to bring it to an end.
Lindner Q.C.

In Cotter’s case⁵¹ the court went beyond what was necessary for its decision. In substance it was only following the Taff Vale Railway Co.’s case⁵² and the first Osborne case.⁵³ It was not necessary to hold that a trade union was a legal entity; it was only necessary to show that it was a body having by statute the right to sue in its own name. Their Lordships took time for consideration.
 

MAIN JUDGMENT

Nov. 7. LORD MORTON OF HENRYTON stated the facts and continued:

 

My Lords, the Master of the Rolls and Jenkins L.J. were of opinion, rightly, in my view, that Kelly v. National Society of Operative Printers’ Assistants1 was binding on the Court of Appeal, but Denning L.J. felt himself entitled to disregard that case and delivered a judgment in favour of Mr. Bonsor, which I have found of great assistance. It is the dismissal of the cross-appeal which gives rise to the appeal now before your Lordships’ House.
Mr. Bonsor died on March 4, 1954, and the present appellant is his widow and legal personal representative. On August 5, 1954, it was ordered that these proceedings should be carried on between the present appellant and the respondent union. It is convenient to turn at once to Kelly’s case.1 The plaintiff was a printer’s assistant, and the defendant was a trade union registered under the Trade Union Acts. The plaintiff claimed a declaration that a resolution expelling him from membership of the union was ultra vires and void, an injunction restraining the union from enforcing the said resolution, and damages. The case was first heard in the county court and there the plaintiff obtained a declaration and injunction as asked and £68 damages for loss of employment owing to his expulsion from the union. It is unnecessary for the present purpose to Lord Morton of Henryton refer to the proceedings on appeal in the Divisional Court, but when the case reached the Court of Appeal that court upheld the grant of the declaration and injunction but held that the plaintiff could not recover any damages. The union was ordered to pay the costs of the appeal.

 

My Lords, I can see no ground upon which Kelly’s case1 can be distinguished from the present case, but I am of opinion that Kelly’s case1 was wrongly decided in so far as the plaintiff’s claim for damages was rejected.

 

I think the basis of the decision appears most clearly in the following passage from the judgment of Phillimore L.J.²: “Damages for tort cannot be given since the Trade Disputes Act, 1906 (6 Edw. 7, c. 47). These damages can only be supported as damages for breach of contract. With whom did the plaintiff contract? Not, I think, with the trade union, which, as Lord Macnaghten says in Russell v. Amalgamated Society of Carpenters and Joiners,³ is merely an unincorporated society of individuals. I think that the plaintiff contracted with each and every of the members, and if anybody has broken any contract with him, it is each and every member. Further, the officers of the society are agents for him quite as much as for the other members, and if he sues the trade union for what it has done, he is suing himself among others. I am not sure whether, according to the very loose form in which the judgment is drawn up, there is any judgment against the trade union as such. But if there is, it is open to these objections. I also think that there can be no charge upon the funds  of the society for any breach of contract.“

 

My Lords, in my opinion the action in Kelly’s case⁴ was an action by a member against his union as an entity recognized by the law and distinct from the individual members thereof, for breach of a contract between the plaintiff and his union. If this is so, the foundation for the refusal to award damages is gone. I base the view which I have just expressed upon a line of authorities of which the first is the well-known case of Taff Vale Railway Co. v. Amalgamated Society of Railway Servants.⁵ In that case it was held by this House that a trade union registered under the Trade Union Acts, 1871 and 1876, could of Henryton be sued in tort for the wrongful conduct of its servants in the course of a strike. I find it unnecessary to set out the relevant provisions of these Acts, since they are sufficiently summarized for the present purpose in passages which I am about to quote from the judgment of Farwell J. in the Taff Vale case.5

 

That learned judge said⁶: “The defendant society have taken out a summons to strike out their name as defendants, on the ground that they are neither a corporation nor an individual, and cannot be sued in a quasi-corporate or any other capacity. … Now it is undoubtedly true that a trade union is neither a corporation nor an individual nor a partnership between a number of individuals; but this does not by any means conclude the case.”

 

After referring to section 16 of the Trade Union Act (1871) Amendment Act, 1876, and to an argument advanced on behalf of the defendant, the learned judge continued⁷: “The questions that I have to consider are what, according to the true construction of the Trade Union Acts, has the legislature enabled the trade unions to do, and what, if any, liability does a trade union incur for wrongs done to others in the exercise of its authorized powers? The Acts commence by legalizing the usual trade union contracts, and proceed to establish a registry of trade unions, give to each trade union an exclusive right to the name in which it is registered, authorize it through the medium of trustees to own a limited amount of real estate and unlimited personal estate ‘for the use and benefit of such trade union and the members thereof’; provide that it shall have officers and treasurers, and render them liable to account; require that annual returns be made to the registry of the assets and liabilities and receipts and expenditure of the society; provide that it shall have rules and a registered office, imposing a penalty on the trade union for non-compliance; and permit it to amalgamate with other trade unions, and to be wound up. The funds of the society are appropriated to the purposes of the society, and their misappropriation can be restrained by injunction: Wolfe v. Matthews⁸; and on a winding-up, such funds are distributed amongst the members in accordance with the rules of the Society: Strick v. Swansea Tin-plate Co.⁹ Further, the Act of 1871 contains a schedule of matters which must be provided for by the rules.” After referring to observations of Sir George Jessel in Rigby v. Connol,¹⁰ in regard to the limitations on legal proceedings imposed by section 4 of the Trade Union Act, 1871, the learned  judge continued¹¹: “But these limitations merely restrict the actual enforcement of trade union contracts by action or suit, and do not affect the question of the status of the association to which such members belong. Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say of such an association that it is unknown to the common law. The legislature has legalized it, and it must be dealt with by the courts according to the intention of the legislature.”

 

The Court of Appeal set aside the orders made by Farwell J., but this House was unanimous in restoring them, and the judgment of Farwell J. was accepted in toto by the Lord Chancellor (the Earl of Halsbury), Lord Shand and Lord Brampton.

 

Lord Halsbury said¹²: “My Lords, in this case I am content to adopt the judgment of Farwell J., with which I entirely concur; and I cannot find any satisfactory answer to that judgment in the judgment of the Court of Appeal which overruled it. If the legislature has created a thing which can own property, which can employ servants, and which can inflict injury, it must be taken, I think, to have impliedly given the power to make it suable in a court of law for injuries purposely done by its authority and procurement.”

 

Lord Shand referred¹³ to “the admirable judgment of Farwell J., in whose reasoning I entirely agree.”

 

Lord Brampton said¹⁴: “I entirely concur in the judgment and words of the Lord Chancellor in adopting the judgment of Farwell J.,” and added¹⁵ that the defendant society was a “legal entity … though not perhaps in the strict sense a corporation.”

 

Lord Macnaghten said¹⁶: “Although I should be well content to adopt the judgment of Farwell J. and the reasons he has given, I will venture to add a few words of my own, partly out of respect for the Master of the Rolls, from whose opinion I never dissent without the greatest hesitation, and partly in deference to the argument of counsel, which, before your lordships, has ranged over a wider field, and on the part of the respondents has, I think, assumed a somewhat bolder tone than in the court below.”

 

In the course of his speech the noble and learned Lord made some observations which would seem to indicate a view that the action was a representative one, wherein all the members of the union were sued in the registered name of the union. I think that these observations were obiter dicta, but, of course, I accord them the greatest respect. Nevertheless, I have formed the conclusion that they cannot be reconciled with the views of the majority of this House, expressed in the words of Farwell J. which I have just read. It seems to me that the majority of this House regarded the “entity” or “thing” which was being sued as something separate and distinct in law from the individual members of the society. Moreover, the opposite view gives rise to great difficulties. For instance, the membership of a trade union is constantly changing, as old members die and new members come in. If the suit is to be regarded as having been brought against the individual members, it must have been brought against those who were members at the time when the writ was issued. Yet some of these persons may not have been members at the time when the tort was committed, and the tort cannot therefore have been committed by their agents.

 

Lord Lindley’s speech contains passages which may be construed as expressing the view that all the members of the union were being sued in the name of the union, but he concluded his speech with these words¹⁷:
“Your Lordships have not now to consider how a judgment or order against a trade union in its registered name can be enforced. I see no difficulty about this; but, to avoid misconception, I will add that if a judgment or order in that form is for the payment of money it can, in my opinion, only be enforced against the property of the trade union, and that to reach such property it may be found necessary to sue the trustees.”

 

If the action had been against all the members of the union, it is difficult to see why an order made in the action for the payment of money could only be enforced against the property of the union. Surely, on the hypothesis just stated, each member of the union would be liable in damages for the wrong done. The proceedings before Farwell J. and in this House were interlocutory, but (as Denning L.J. points out) the case subsequently went for trial and a verdict was found for the plaintiffs against the union. The damages were assessed at £23,000 and that sum was paid out of the funds of the union.

 

My Lords, in my view the Taff Vale case¹⁸ goes far to decide the question now before your Lordships’ House. It may be that Lords Macnaghten and Lindley thought that an action against the union was an action against all the individual members – indeed, that view was expressed again by Lord Macnaghten in Russell’s case¹⁹ and by Lord Lindley in Yorkshire Miners’ Association v. Howden²⁰ – but I am satisfied that it has never been more than a minority view, inconsistent with the relevant authorities from the Taff Vale case²¹ onwards, with the solitary exception of Kelly’s case.²²

 

The Taff Vale case²³ differs from the present case only in two respects:
(1) The plaintiff was not a member of the defendant union, and (2) the action was based on tort, not on contract. Prima facie, I should not have thought that these were vital differences, and this view is borne out by the cases to which I shall shortly refer.

 

I need hardly say that I have not overlooked the provisions of section 4 (1) of the Trade Disputes Act, 1906, which enacted 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.” That section, however, had no operation as regards, for instance, a breach of contract, and it left undisturbed the
principles laid down in the Taff Vale case.²³ I now pass to the case of Yorkshire Miners’ Association v. Howden.²⁴ The decision in that case turned on the construction of section 4 of the Trade Union Act, 1871, but its importance for the present purpose lies in the fact that a member of a registered trade union got judgment against his union (and also against some of its officials and its trustees) for an injunction restraining a misapplication of the union’s funds. In none of the speeches in this House was it suggested that a member could not bring an action against his union. In Amalgamated Society of Railway Servants v. Osborne²⁵ this House granted an injunction, at the suit of a member of a trade union, restraining the union and its trustees from applying the funds of the union for procuring or supporting parliamentary representation. This particular application of its funds by the union was held to be ultra vires at the suit of one of its members, and Lord Atkinson said²⁶: “It is clear, in my view, that they” (i.e., trade unions) “are, when registered, quasi-corporations, resembling much more closely railway companies incorporated by statute than voluntary associations of individuals merely bound together by contract or agreement, express or implied.” In Osborne v. Amalgamated Society of Railway Servants²⁷ (“the second Osborne case”) Mr. Osborne, who had been expelled from his union, brought an action against the union and its trustees to obtain reinstatement as a member on the ground that his
expulsion was ultra vires and void. It was held by the Court of Appeal that the action was maintainable, and that the jurisdiction of the court to entertain it was not ousted by section 4 of the Trade Union Act, 1871.

 

This case carries the matter a stage further, since the plaintiff was asserting his own rights as a member against his union. The second Osborne case²⁷ was approved by this House in Amalgamated Society of Carpenters, Cabinet Makers and Joiners v. Braithwaite²⁸ and the House held that Braithwaite and the other plaintiffs could obtain an injunction against their respective unions to restrain a threatened expulsion.

 

My Lords, it seems to me that Braithwaite’s case²⁸ is really decisive of the present case. The action was based upon a breach of a contract between the plaintiffs and their respective unions, and a threatened breach of that contract was restrained by injunction. If the breach had actually taken place I see no reason why damages should have been refused. In the meantime, Kelly’s case²⁹ had been criticized by the Court of Appeal in Rex v. Cheshire County Court Judge.³⁰ Lord Sterndale M.R.³¹ described it as “a decision of this court, which binds us till the House of Lords reverses it.” Scrutton L.J.³² made some trenchant comments upon it, and Younger L.J. made it plain³³ that he would view its reversal with satisfaction. Finally, in the case of National Union of General and Municipal Workers v. Gillian,³⁴ the Court of Appeal, affirming Birkett J., held that a trade union can sue for a libel on itself, and Uthwatt J. said³⁵:

“That decision” (i.e., the decision in the Taff Vale case³⁶ “involves, to my mind, that a registered trade union is recognized by the law as a body distinct from the individuals who from time to time compose it.”

 

With that observation I agree, and all the cases to which I have referred, with the solitary exception of Kelly’s case,³⁷lead me to the following conclusions:-

(1)     The respondent union, though it is not an incorporated body, is capable of entering into contracts and of being sued as a legal entity, distinct from its individual members.

(2)     When Mr. Bonsor applied to join the respondent union, and his application was accepted, a contract came into existence between Mr. Bonsor and the respondent, whereby Mr. Bonsor agreed to abide by the rules of the respondent union, and the union impliedly agreed that Mr. Bonsor would not be excluded by the union or its officers otherwise than in accordance with the rules.

(3)     The respondent union broke this contract, by wrongfully expelling Mr. Bonsor, and Mr. Bonsor sued the union as a legal entity. He did not sue either all the members of the union at the date of the writ other than himself, many of whom must have joined since the breach of contract, or all the members of the union including himself.

(4)     There is no reason in law why Mr. Bonsor should not be granted against the respondent all the remedies appropriate to a breach of contract.

(5)     The Court of Appeal in Kelly’s case³⁷ should have awarded damages to the plaintiff.

 

I have not embarked upon a fresh and detailed examination of the trade union legislation, so often examined by this House in the past, for it seems to me that the decisions of this House to which I have referred have settled the law on the lines set out in the conclusions just stated.

 

I would allow the appeal and remit the case to the Chancery Division in order that the question of damages may be dealt with, on the basis that the respondent union has been guilty of a breach of contract and that the court has jurisdiction to award damages for that breach. The respondent union should, in my opinion, pay the appellant’s costs here and in the courts below, and the costs of any further proceedings in the Chancery Division should be dealt with by the judge before whom such proceedings come.

 

 

LORD PORTER. My Lords, the matter for your Lordships’ consideration in this case is to determine the status of a registered trade union or, to put the more limited question to be decided, whether a member of a registered trade union can recover from it damages for breach of contract. The facts have been set out and I need not repeat them. Admittedly Mr. Bonsor suffered from a breach of contract and damage was thereby caused to him, but the questions still remain who committed that breach, and whether that damage can be recovered from the union even if the commission was theirs. I should add that it is not contended that the appellant’s claim is nullified by the terms of section 4 of the Trade Union Act, 1871.

 

Though it is admitted that Mr. Bonsor’s contract was broken, the respondents submit that the union is not liable to pay damages for the breach. They are, they say, an unincorporated body of persons whose registered name is nothing more than a collective name for all its members. Moreover, they contend that Mr. Bonsor’s contract was with his fellow members and not with the union, and if he sued the union he was suing all the members including himself, and no man can sue himself.

 

It was on this ground that Kelly v. National Society of Operative Printers’ Assistants³⁸ was decided, and in determining the present case the Court of Appeal found themselves bound to follow that precedent. I agree with them that the two cases are not to be distinguished, and that so far as the Court of Appeal was concerned the problem has already been determined. But your Lordships are not bound by that decision and it is open to review in this House.

 

The question with whom the member’s contract is made is, I think, closely allied with the other inquiry whether the trade union as a trade union can contract at all, or whether the agreement which a member makes is with his fellow members and not with the trade union as such. It is admitted that the rules are neutral. They might, it is said, on their face indicate a contract either with the body itself or with the other members. The first question, therefore, is with whom was the contract of membership made.

 

Membership is obtained through the officials of the union, but except in Rules XIX and XXII and the application form therein mentioned, I cannot find any provision regulating the election of members or prescribing who can or cannot decide whether an applicant shall be elected or not. By Rule XXII (2), however, candidates have to make application in writing to one of the secretaries and prima facie, therefore, it is to the union whose secretaries they are and not to the individuals composing it to whom application for membership is to be made, and it is that body which accepts or rejects the election of a member.

 

It has still, however, to be determined whether that body consists of a number of individuals or possesses some sort of entity. If it were not for the decision in the Taff Vale case³⁹ it might be possible to contend that no action could be brought against a trade union itself, but that the only right was to sue the trustees or authorized officers under section 9 of the Act of 1871. Your Lordships’ House has, however, decided otherwise, and in the light of that decision it has to be determined whether a trade union possesses some kind of existence which enables it to contract and to sue and be sued for damages for breach of contract. In the Taff Vale case⁴⁰ Farwell J. said: “Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say of such an association that it is unknown to the common law.

 

The legislature has legalized it, and it must be dealt with by the courts according to the intention of the legislature.”

39 [1901] A.C. 426; 40 Ibid. 429.

 

Lord Macnaghten, whilst agreeing with Farwell J.’s judgment in the court of first instance, went on, however, to say⁴¹ “the registered name is nothing more than a collective name for all the members,” and Lord Lindley says⁴²: “My Lords, a careful study of the Act leads me to the conclusion that the Court of Appeal held, and rightly held, that trade unions are not corporations; but the court held further that, not being corporations, power to sue and be sued in their registered name must be conferred upon them; and further that the language of the statutes was not sufficient for the purpose. Upon this last point I differ from them. The Act appears to me to indicate with sufficient clearness that the registered name is one which may be used to denote the union as an unincorporated society in legal proceedings as well as for business and other purposes. The use of the name in legal proceedings imposes no duties and alters no rights: it is only a more convenient mode of proceeding than that which would have to be adopted if the name could not be used. I do not say that the use of the name is compulsory, but it is at least permissive.

 

On the other hand, Lord Brampton in that case and in National Union of General and Municipal Workers v. Gillian,⁴³ Birkett J. in the court of first instance, and Scott L.J. and Uthwatt J. in the Court of Appeal thought that the Act had created some sort of legal entity which, subject to the limitations prescribed by the Act itself, could sue or be sued like any other legal entity which had existence apart from being a mere nomenclature embracing its several members. Uthwatt J. called it a
“near-corporation.”

 

How far Lord Macnaghten intended to limit the status of a trade union I find it difficult to determine. He agreed with Farwell J., whose opinion more nearly accords with the view that the union possessed some sort of entity apart from its members, than with the view that it merely consisted of a number of individuals. Great as is the respect which must be paid to the authority of Lord Macnaghten and Lord Lindley, it has to be remembered that their opinions on this matter were obiter. It is true that they were careful to avoid giving corporate status to a trade union, but if they had meant that the Act merely provided a convenient name for a number of
individuals, they must, in my opinion, have dealt with the difficulty which would arise in many and perhaps in almost all cases, viz., that the individuals composing the society would have altered between the date of the wrong complained of and the time at which action was brought, inasmuch as the union under its trade name must, when action was brought, have been composed of those who joined since the act complained of was done, and no longer include those who had died or otherwise ceased to be members meanwhile. If, then, they regarded an action against a trade union in its trade name as equivalent to a representative action against its individual members, I cannot agree with their view.

 

In my opinion, therefore, the decision by the Court of Appeal in Kelly v. National Society of Operative Printers’ Assistants⁴⁴ is wrong and should be reversed, an opinion in which I am the more confirmed by the doubts cast upon it by the Court of Appeal in Rex v. Cheshire County Court Judge,⁴⁵ and by the opinion of the same body in National Union of General and Municipal Workers v. Gillian,⁴⁶ where they held that a trade union can sue for libel upon itself.

 

Apart from the question with whom did the member make his contract the Court of Appeal in Kelly v. National Society of Operative Printers’ Assistants⁴⁷ held that he was unable to sue because the agent of the society who had done him wrong was agent for himself as well as the other members, since the persons sued were an unincorporated body of which he was one. Looked at from this angle he was suing his own agent and therefore suing himself, a thing he could not do. If, however, there has been, as I think there has, a thing created by statute, call it what you
will, an entity, a body, a near-corporation, which by statute has in certain respects an existence apart from its members, then I do not see why that body should not be sued by one of its members for a breach of contract.

 

The exact limits of the power of a trade union to bind itself need not be determined. It may well be that it does not possess the full powers of an incorporated society. Its position is perhaps best expressed by Farwell J. in the Taff Vale case,⁴⁸ and I am content to adopt his wording as expressing my own view of a trade union’s status. It is true that in that case the plaintiff was an outside body and not one of its own members, but Farwell J.’s words seem to me to be wide enough to embrace its liabilities not only to third parties but also to its members, inasmuch as they imply an existence of the body apart from the members of which it is composed.

44 84 L.J.K.B. 2236.; 45 [1921] 2 K.B. 694.; 46 [1946] K.B. 81.; 47 84 L.J.K.B. 2236.; 48 [1901] A.C. 426.

 

It will be observed that I have refrained from relying upon those cases, such as Osborne v. Amalgamated Society of Railway Servants⁴⁹ and Yorkshire Miners’ Association v. Howden,⁵⁰ in which a member of a trade union has been held entitled to sue his union for wrongful expulsion, in order to avoid the suggestion that that decision depended upon the fact that the Act was ultra vires the society, but although those cases and Amalgamated Society of Carpenters, Cabinet Makers and Joiners v. Braithwaite⁵¹ may be said to have been determined on the ground that the unions sued were acting ultra vires in the steps which they had taken, yet they establish the right of a member to sue his own union.

 

I would allow the appeal.

 

 

LORD MACDERMOTT. My Lords, the nature and bearing of the difficult and important issues raised by this appeal will appear more plainly if a brief reference is first made to the history of the litigation. In 1951 Mr. Harry Bonsor sued the Musicians’ Union, a registered trade union which I shall speak of as “the union,” complaining that it had wrongfully expelled him from membership. He sought a declaration as to his rights and, after obtaining an amendment of his claim, an injunction and damages as well. The union defended the action, contending (inter alia) that Mr. Bonsor had been expelled in accordance with its rules, and that his statement of claim disclosed no right to damages. In the Chancery Division Upjohn J. held (a) that the expulsion occurred when the secretary of the union’s Brighton branch, purporting to act under a particular rule dealing with members whose subscriptions were in arrear, erased Mr. Bonsor’s name from the register of membership on July 2, 1949, and (b) that the branch secretary was not empowered to act in this manner and had done so in breach of the rules. He, accordingly, declared the expulsion to be null and void and granted an injunction restraining the union from acting upon it. But although it is clear from his careful judgment that
the direct effect of this expulsion was to cause Mr. Bonsor grave difficulty in earning his living as a musician, the union being what is known as “a closed shop,” the learned judge was constrained to dismiss the claim for damages on the authority of
Kelly v. National Society of Operative Printers’ Assistants,⁵² a case in which the Court of Appeal held that a member who had been wrongfully expelled by his trade union could not recover damages against it. Both parties appealed from the decision of Upjohn J., the union still contending that the expulsion was in conformity with its rules and Mr. Bonsor still maintaining his claim for damages. The Court of Appeal unanimously dismissed the union’s appeal, affirming Upjohn J. in his conclusion that the expulsion was contrary to the rules and wrongful. And by a majority (Evershed M.R. and Jenkins L.J.) it also dismissed Mr. Bonsor’s cross-appeal, holding that Kelly’s case⁵² was binding upon it and could not be distinguished. My Lords, I shall refer to the reasoning of Kelly’s case⁵² later, but for the purposes of this narrative it will suffice to say that it was based upon the view that a registered trade union is only an association of individuals, and that a member who sues it is suing the individuals who are his fellow-members. That view was challenged before the Court of Appeal on behalf of Mr. Bonsor in a submission to the effect that a registered trade union was a juridical person in itself, a complete entity, a body with a legal personality separate from that of its members and as competent to contract with them as they were to contract with each other. Such being the position, the argument proceeded, the difficulties in the way of a member suing the other members of his union for damages, which influenced the Court of Appeal in Kelly’s case,⁵² did not arise; the rules of the union constituted the terms of the contract between it, as one person, and the members, including Mr. Bonsor, as distinct persons; and there having been a breach of that contract on the part of the union it, as an entity, was liable in damages irrespective of the relationship of the individual members one to another. In the Court of Appeal the Master of the Rolls and Jenkins L.J. were not prepared to accept this argument; but Denning L.J. expressed himself in favour of it and was of opinion that Kelly’s case⁵²
had been wrongly decided on this as well as other grounds.

 

The union has not appealed from the decision of the Court of Appeal. Mr. Bonsor, unfortunately, died before it pronounced judgment dismissing his cross-appeal, but his widow and administratrix now appeals by leave from that dismissal. In these circumstances the only question for your Lordships’ determination concerns the only form of relief which can now have any practical value or effect. It is whether Mr. Bonsor was in law entitled to recover damages against the union for his wrongful expulsion. Though not so stated in the pleadings, this claim has been treated throughout as a claim for damages for breach of contract, and it is common ground that the terms of the relevant agreement are to be found in the rules of the union. But who the contracting parties were involves the question of the union’s status and is, therefore, in dispute. The rules themselves seem to me to stand neutral on that question. If the union is not a juridical person there is no difficulty in construing them as the terms of agreement between the members; but if, on the contrary, the union is a juridical person they appear equally capable of being read as the terms of agreement between the union on the one hand and its members on the other.

 

Such being the course of the case on its way to this House, it will be convenient to deal first of all with the issue respecting the legal nature of a registered union. Not only was this issue placed by Mr. Lester in the forefront of his argument on behalf of the appellant, but if he is right in his submissions upon it, and the union is to be regarded as a juridical person, distinct from its membership, and as having contracted with its members in the terms of its rules, then, as I see the matter, the foundation of the decision in Kelly’s case⁵² will disappear and the right to an award of damages will, in the circumstances, be established. If, however, the union is not a juridical person distinct from its membership, the basis of Kelly’s case⁵² will remain and the reasoning founded upon it will have to be examined.

 

My Lords, if a registered trade union is a juridical person – and to avoid confusion I should say that I propose to use that expression as connoting the characteristics and attributes of the complete legal entity for which Mr. Lester contended – it must be in consequence of the Trade Union Act, 1871, which provided for the voluntary registration of trade unions and conferred certain privileges upon unions taking advantage of that provision. There can be no question that a trade union which is not registered under that Act is not a juridical person. It is a voluntary association of persons, a combination for the purposes mentioned in the definition of “trade union” in section 23 of the Act of 1871, as modified by section 16 of the Trade Union Act (1871).  Amendment Act, 1876, and section 2 of the Trade Union Act, 1913. The first step, therefore, in ascertaining the effect of registration on the nature of a trade union must be to consider such of the provisions of the Act of
1871 as appear to have a bearing on the point.

 

Sections 2 and 3 throw no direct light on the question, but they were enacted to deal with a situation which has to be kept in mind in construing the Act. The objects of many trade unions included purposes which had been held to be in restraint of trade, with the result that the agreements between their members were unlawful and the members themselves within reach of the criminal law. Section 2 removed the danger of prosecution, and section 3 provided that the purposes of a trade union “shall not, by reason merely that they are in restraint of trade, be unlawful so as to render void or voidable any agreement or trust.” It was not, however, the policy of the legislature to make the whole range of trade union agreements enforceable at law. Section 4, accordingly, provides that nothing in the Act shall enable any court to entertain legal proceedings instituted with the object of directly enforcing or recovering damages for the breach of certain enumerated classes of agreement, the first of which reads as follows:

“(1)   Any agreement between members of a trade union as such, concerning the conditions on which any members for the time being of such trade union shall or shall not sell their goods, transact business, employ, or be employed.” Now, it is clear that section 4, like sections 2 and 3, is not confined in its application to unions which are registered under the subsequent provisions of the Act. It applies to trade unions within the definition to which I have already referred, and therefore to unions which are not registered and not juridical persons as well as to unions which are registered; and this, it may be added, holds good for all the classes of agreement which section 4 specifies, for there is nothing in the text to restrict any of these classes to a particular type of union. On this account section 4 can hardly be expected to furnish a positive answer to the question under discussion; nevertheless I think its description of class (1), though by no means conclusive, affords some indication of the intention of the legislature. That class of agreement is described in a manner which indicates that it was the policy of Parliament to keep the contracts of union members respecting the main purposes of their combination outside the jurisdiction of the courts. The description accords with what has long
been the generally accepted view of the bond by which the members of a trade union are held in association, namely, the contract between members which is formed on admission by an acceptance of the union rules.

 

But it does not refer to agreements between a union and its members. This omission seems natural if the only bond in contemplation was that just mentioned. But I do not think it is what one would expect if the intention was to make a juridical person of any union choosing to register, as in that case the registered union would, while the unregistered union would not, be free to circumvent this part of section 4 by the simple expedient of doing what the union here is said to have done and framing its rules so that the members were bound contractually to it; and that would be contrary to the policy of section 4, if I am right in the view already expressed that that section was meant to apply to trade unions generally
and irrespective of registration.

 

The other provisions of section 4 do not put the matter further and I need not detail them. But the section does prompt one general reflection which it will be appropriate to mention now. I would agree with Denning L.J.  that a trade union may be regarded as an entity in fact. In common parlance the term is habitually used to connote something that is in some way different from the individuals who form the combination; and I think it is right to say that the Act of 1871 (including section 4) speaks after this fashion and recognizes that a trade union and its membership may not always mean the same thing. But the same can be said of many groups which lay no claim to a legal personality, and since section 4 applies to both registered and unregistered unions, the Act’s recognition of the factual
entity can, in my opinion, offer no sound ground for making the registered union a legal entity as well.

 

Section 6 provides for registration, but neither in it nor in the fasciculus of sections, beginning with section 13, which deals with the machinery of registration and various obligations flowing therefrom, nor elsewhere, is any provision for incorporation to be found; this omission is all the more striking in view of section 5 which enacts that certain statutes, including the Companies Acts, 1862 and 1867, “shall not apply to any trade union, and the registration of any trade union under any of the said Acts shall be void.” Then section 7 says that it shall be lawful for
a registered trade union to purchase or take on lease in the names of its trustees any land not exceeding one acre and to sell, exchange, mortgage or let the same. And section 8 enacts that all the real and personal estate belonging to a registered trade union shall be vested in its trustees for the time being “for the use and
benefit of such trade union and the members thereof.” At first glance the enabling form of section 7 suggests that the legislature regarded a registered trade union as an entity apart from its members which, like certain incorporated bodies, required special authority to hold land. But against this must be set the provision made in both sections 7 and 8 for the holding of union property by the union trustees, which was relied upon by the union as a clear indication that Parliament did not intend to make the registered trade union a juridical person, and as such capable of holding its own assets in its own name. Section 9 was said to point in the same direction. It provides that the trustees of a registered trade union or any other officer who may be authorized by the rules to do so shall be empowered “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. …” If, as the appellant claims, this Act made the registered union a juridical person, in the sense in which I am using the expression, there seems no very convincing reason why it should not have been left to sue and be sued respecting its property without conferring these special powers upon its officers and trustees. Section 11 makes it obligatory for the treasurer and other officers of a trade union to account and hand over balances and books in their hands when required; and in the event of any failure to comply with these obligations the trustees are empowered to sue for the balance due, etc., and “to recover their full costs of suit, to be taxed as between attorney and client.” This, of course, is not in any way conclusive, but, again, it is scarcely what one would expect if the intention was to create a body which could take these steps for itself. Section 13 deals with applications for registration, and section 14 provides, inter alia, for the union having a name which can be registered. Section 15 requires a registered trade union to have a  registered office, and section 16 requires it to make annual returns. Each of these last two sections further provides that a trade union which fails to comply with its requirements shall be liable to a penalty. This was said to point to a registered trade union having a distinct personality as, at common law, an offender must be either a natural or an artificial person and must be named or otherwise identified as a person in the charge.

 

Reference may also be made in this connexion to sections 6 and 8 of the Act of 1876. Section 6 requires a registered trade union to be registered in that part of the kingdom where its registered office is, and provides that if it carries on business in another part of the kingdom it is not to enjoy there “any of the privileges” of the Acts of 1871 and 1876 until the rules have been recorded by the registrar of that other part. Thus, if the act of registration creates a juristic person, it could happen, to take an example, that a union active throughout Great Britain, with one membership and one set of rules, might find itself at the same time an association of individuals in Scotland and an artificial person, a distinct legal entity, in England – or vice versa, according to the location of the registered office. The power of Parliament to do even more than that cannot be questioned, but one would expect to find the intention to produce such an anomalous situation expressed in clear terms. Section 8 evokes a similar reflection. It makes provision whereby, inter alia, a registered trade union may have its certificate of registration withdrawn or cancelled at its request, and enacts that when this is done the union shall “absolutely cease to enjoy as such the privileges of a registered trade union, but
without prejudice to any liability actually incurred by such trade union, which may be enforced against the same as if such withdrawal or cancelling had not taken place.” I find it difficult to believe that the legislature ever intended that a trade union should be able to accomplish a fundamental change in its legal character by this simple procedure; yet such would be the result if the appellant’s contention were well founded.

 

It would be idle to say that these sections, considered in the context in which they must be placed make an end of the matter; but their operation is relevant, and their language suggests a further way of stating the issue. Did Parliament intend registration to create a new sort of trade union with a legal personality of its own, or merely to confer the privileges for which the Acts provide upon the unions as they were?

 

My Lords, if I have referred to the statutory position at some length it is because the problem under examination is essentially one of the meaning and effect of the relevant enactments and of the intention they manifest. Though this problem has produced numerous expressions of judicial opinion, these are in conflict and the state of the authorities is such that your Lordships are, I think, free to form a conclusion from the text on every material aspect of the matter save one. I do not, therefore, propose to embark on an exhaustive review of the cases cited in the course of the debate. I must, of course, refer to the decision of this House in Taff Vale Railway Co. v. Amalgamated Society of Railway Servants,⁵³ for it raises the exception which I have just mentioned; but after that it will be enough to direct attention to such of the pronouncements on the subject as suffice to define the issue and reveal the opposing views.

 

In the Taff Vale case⁵³ this House, affirming the decision of Farwell J. and reversing that of the Court of Appeal, held unanimously that a registered trade union may be sued in its registered name. That conclusion was reached as a matter of inference from the nature of trade unions and the terms of the Acts of 1871 and 1876, and though its practical importance has been much reduced by the Trade Disputes Act, 1906, the principle it established stands and must be respected in considering the
effect of the material statutes. Not only may a registered union, as provided by section 9 of the Act of 1871, sue and be sued concerning its property in the names of its trustees or authorized officers; it can be sued also in its registered name and in respect of claims which lie outside the scope of that section. For the appellant, Mr. Lester relied strongly upon this decision and there can be little doubt that it has the effect of endowing the registered union with one of the more important attributes of a juristic person, and that it detracts appreciably from the force of the argument advanced on behalf of the union, which was based on the express powers of litigating conferred by the Act of 1871 upon the trustees and authorized officers. But if this is so, it is, in my opinion, equally clear that the decision was not founded on the proposition that a registered union is a juristic person. At first instance Farwell J.⁵⁴ had based his conclusion on the ground that “it is competent to the legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents.”

 

And the learned judge then added: “It is beside the mark to say of such an association that it is unknown to the common law. The legislature has legalized it, and it must be dealt with by the courts according to the intention of the legislature.” I do not take this to mean that in the opinion of Farwell J. a registered trade union is a juristic person. He does not say that, and if he meant it I am at a loss to understand why, as is undoubtedly the case, he took the view that the Acts had not incorporated the registered union. The absence of express provision to that end certainly furnishes no explanation of this, as it has long been held that an intent to incorporate may be implied: see Tone River Conservators v. Ash.55 It seems to me that, far from attributing a separate personality to such a union, the reasoning of the learned judge recognizes the absence of such a personality and amounts in its substance to this – that although Parliament has not gone far enough to make the registered union other than an association of individuals, it has legalized its purposes and endowed it with powers and qualities to such an extent that an intention to fix it with corresponding responsibilities, enforceable by proceedings brought against it in its registered name, ought to be implied.

 

In this House Lord Halsbury L.C.⁵⁶ expressed his concurrence with the judgment of Farwell J. and added: “If the legislature has created a thing which can own property, which can employ servants, and which can inflict injury, it must be taken, I think, to have impliedly given the power to make it suable in a court of law for injuries purposely done by its authority and procurement.” Lord Macnaghten, having also agreed with the reasoning of Farwell J., then spoke in terms which leave no doubt as to his mind on the present issue. He said⁵⁷: “The further question remains:

“May a registered trade union be sued in and by its registered name? For my part, I cannot see any difficulty in the way of such a suit. It is quite true that a registered trade union is not a corporation, but it has a registered name and a registered office. The registered name is nothing more than a collective name for all the members. The registered office is the place where it carries on business. A partnership firm which is not a corporation, nor, I suppose, a legal entity, may now be sued in the firm’s name. And when I find that the Act of Parliament actually provides for a registered trade union being sued in certain cases for penalties by its registered name, as a trade union, and does not say that the cases specified are the only cases in which it may be so sued, I can see nothing contrary to principle, or contrary to the provisions of the Trade Union Acts, in holding that a trade union may be sued by its registered name.”

 

Lord Shand also adopted the reasoning of Farwell J., and in a brief opinion stated his conclusion⁵⁸ that “the power of suing and liability to be sued in the society’s name is clearly and necessarily implied by the provisions of the statutes.” Lord Lindley plainly based his concurrence on the ground, not of a new status, but of the effect of the statutory provisions. “The Act,” he said,⁵⁹ “appears to me to indicate with sufficient clearness that the registered name is one which may be used to denote the union as an unincorporated society in legal proceedings as well as for business and other purposes. The use of the name in legal proceedings imposes no duties and alters no rights: it is only a more convenient mode of proceeding than that which would have to be adopted if the name could not be used. I do not say that the use of the name is compulsory, but it is at least permissive.” Lord Brampton alone took the view now contended for by the appellant, his opinion on the point being thus expressed⁶⁰:

“I think that a legal entity was created under the Trades Unions Act, 1871, by the registration of the society in its present name in the manner prescribed, and that the legal entity so created, though not perhaps in the strict sense a corporation, is nevertheless a newly created corporate body created by statute, distinct from the unincorporated trade union, consisting of many thousands of separate individuals, which no longer exists under any other name.”

 

In Yorkshire Miners’ Association v. Howden,⁶¹ a decision on the scope of section 4 of the Act of 1871, Lord Lindley affirmed the view he had previously expressed in the Taff Vale case⁶² in a passage which reads as follows⁶³: “One thing, however, the Act of 1871 did not do. It did not incorporate trade unions even when registered under the Act with a name. A trade union holds property by trustees; but not being incorporated there is no one legal person or entity in whom the beneficial interest in the property of a trade union is vested. The beneficiaries are its members collectively and severally. This is plain from section 8, which vests the property of every registered trade union in trustees for the use and benefit of such trade union and the members thereof. A trade union is, and its name is only a convenient designation for, an unincorporated society of individuals, and this observation must not be lost sight of on the present occasion.”

 

In Amalgamated Society of Railway Servants v. Osborne⁶⁴ Lord Halsbury referred to a registered trade union as “a legalized combination having power to act as a person and to enforce its rules within the limits of the statute, whatever those limits are”; and in the same case Lord Atkinson⁶⁵ expressed the view that trade unions “are, when registered, quasi-corporations, resembling much more closely railway companies incorporated by statute than voluntary associations of individuals merely bound together by contract or agreement, express or implied.” These observations of Lord Halsbury and Lord Atkinson were canvassed in support of the appellant’s contention, as was also the dictum of Farwell L.J. (as he had then become) in Osborne v. Amalgamated Society of Railway Servants,66 that “A registered trade union is thus a statutory legal entity, anomalous in that, although consisting of a fluctuating body of individuals and not being incorporated, it can own property and act by agents.” But, in my opinion, these dicta fall short of imputing a full juridical personality to the registered union. They recognize, what must be recognized on any view of the matter, that the legislature has conferred upon such unions some of the characteristics of a juridical person, but they do not go the length of saying, and were not, in my opinion, intended to say, that the effect of the relevant legislation has been to give those unions a new status amounting to a legal personality distinct from their membership.

 

I come next to what was said in the Court of Appeal in National Union of General and Municipal Workers v. Gillian.⁶⁷ That case decided that a registered trade union could possess a character capable of being defamed and could maintain an action for damages for defamation in its registered name. The defendants having pleaded that the action was not maintainable at the suit of the plaintiff union, Birkett J. had held, on a pleading issue, that the suit was maintainable and had expressed the opinion⁶⁸ that the Act of 1871 had “designedly created a new entity in law, a new
persona” in the registered union. As at present advised, I do not think that Birkett J. needed to take this view in order to reach the conclusion he did. That, however, is by the way. The present relevance of the case lies in the support which this view obtained in the Court of Appeal. Scott L.J. expressed himself thus⁶⁹: “A trade union has many activities; it has some existence, and it is something.”

 

The omission of Parliament to christen it with some new generic name is immaterial, for Parliament has absolute sovereignty and can make new legal creatures if it likes. It is able, for instance, to create a persona juridica not previously known to the law, if it so chooses, or to clothe an existing association of natural persons with what may be called co-operative personality so as to give it the status of a persona juridica. In my view that is just what it did in 1871. It expressly assumed the possession by every trade union, when duly registered, of so many of the main attributes of judicial personality that I find any other inference of the intention of Parliament impossible.” And, again⁷⁰: “In my view, the true interpretation of the Acts is that a trade union is given all powers of a persona juridica except (_a_) those solely characteristic of a natural person, and (_b_) those which are expressly excepted by the creating or enabling statute.” MacKinnon L.J. concurred, and Uthwatt J. (as he then was) dealt with the matter in these terms⁷¹: “The point decided in Taff Vale Railway Co. v. Amalgamated Society of Railway Servants,⁷² was that a registered trade union might properly be named as a defendant to an action. That decision involves, to my mind, that a registered trade union is recognized by the law as a body distinct from the individuals who from time to time compose it. It is not a corporation; but it is very much like one. The association is not merely the aggregate of the persons who compose it, and the presence of the corporate fiction is not necessary to secure its individuality. In an age of neologism it might be called a ‘near-corporation’.” As I have already indicated, these expressions of opinion do not seem to me necessarily to involve the decision in Gillian’s case⁷³; but in the present suit Denning L.J. accepted them as well founded and they, no less than those I have quoted to the contrary effect, invite the most careful consideration.

 

My Lords, having endeavoured to give that to what has been said on the subject, both in the cases and at the Bar, I have come to the conclusion that the correct view is the view favoured by Lord Macnaghten and Lord Lindley and by the Master of the Rolls and Jenkins L.J. in the Court of Appeal. I base this opinion primarily on the statutes. The more closely they are examined the clearer it seems to be that the legislature, though minded to bestow upon registered unions some of the gifts and attributes of legal personality, had no intention of doing more and was, indeed, averse to the idea of going the whole length and making those unions new creatures, distinct in law from their membership, and fundamentally different from the “combination” of persons which the definition requires all trade unions to be. I need not go over the various provisions of the Acts again. If they point in more than one direction, on balance they seem to me to lead away from the appellant’s contention; and taken together it would, I think, be right to say of them that they make of registration and its results something of far less consequence than might fairly be expected had that process been meant to bring into being a new juridical person. The comparative ease with which the garb of registration may be donned and doffed hardly accords with the view that each change means the taking up or the laying down of a legal personality; there is, however, nothing so casual or anomalous about the position if all that happens is that the union concerned gains or loses, as the case may be, certain advantages or “privileges” with their attendant responsibilities. But perhaps the most weighty consideration of all lies in the fact that Parliament has made no effort to incorporate the registered trade union. In the latter half of last century incorporation was the recognized and usual way of conferring upon an association of persons the status of a distinct legal entity, and it is clear that the draftsman of the Act of 1871 had the Companies Act of 1862 before him. Yet there is not a word about the members becoming, on registration, a body corporate, and the only reference to a seal is in relation to the work of
the registry. Parliament is not, of course, restricted in its choice of possible methods for producing a given result. But when, as here, it studiously avoids a familiar and appropriate method without purporting to adopt another in its stead, its intention to reach that result may well be open to doubt. For these reasons I am of opinion that a registered trade union is not a juridical person.

 

Having come to this conclusion it is, I think, desirable to add some observations respecting the procedural consequences of the Taff Vale decision.⁷⁴ How a voluntary association of persons, such as a trade union, can be sued is hardly less important than its responsibility under the law. The numbers and the changing character of its membership may be such as to make it impracticable to sue the right persons individually and difficult to obtain an order appointing representative defendants. These difficulties are, perhaps, at their height in the case of trade unions of workmen where the membership often runs into many thousands and is subject to a constant fluctuation. Anyone – be he a member or an outsider – who seeks a remedy in the courts against an unregistered union of this nature may well be confronted at the outset with a formidable problem in determining how to constitute his suit. The Taff Vale decision74 removed this obstacle to the process of adjudication in the case of the registered union by holding that Parliament had allowed it to be sued in its registered name. Where this is done the party suing, if he is to succeed, has still, of course, to show that the union concerned is, as an organized combination, responsible for the act of which he complains; but he does not need to marshal the membership on any basis of individual liability as, for
example, by excluding those who are infants or who have joined since his cause of action arose or who, as a minority, have voted in his favour; nor (if a member) has he, in my opinion, even to make it clear on the face of the record that he excludes himself. The peculiarity of this procedure, like that under the rules of court in England and Northern Ireland whereby a partnership may be sued in its firm name, lies in the fact that it sanctions proceedings at law in a name which is not that of a juridical person, either natural or artificial. But that, as Farwell J. pointed out and as this House held in the Taff Vale case,⁷⁴ is the result of what Parliament has enacted and, anomalous though it may be, there can be little doubt that as a procedure it is a convenient and valuable aid to the administration of justice. It has, however, one consequence which ought not to be overlooked. If a union is sued to judgment in its registered name execution in respect of any sum it may be ordered to pay cannot, in my opinion, be levied on the assets of members and must be confined to the property of the union. That, as I read the judgment of Farwell J., was his view, and it was also the view of Lord Lindley, who said at the end of his speech75: “I will add that if a judgment or order in that form” – that is, against a trade union in its registered name –

“is for the payment of money it can, in my opinion, only be enforced against the property of the trade union …” Lord Lindley did not state his reasons for this conclusion. Subsequently, in delivering the judgment of the Judicial Committee in Wise v. Perpetual Trustee Co. Ld.,⁷⁶ he said, speaking of unincorporated member clubs: “They are societies the members of which are perpetually changing. They are not partnerships; they are not associations for gain; and the feature which distinguishes them from other societies is that no member as such becomes liable to pay to the funds of the society or to anyone else any money beyond the subscriptions required by the rules of the club to be paid so long as he remains a member.” It may be, taking the view he did of the legal nature of a registered union, that Lord Lindley considered its members to be, in this respect, in a position
similar to the members of a club. But I feel no certainty about that or as to whether the passage I have quoted was meant to apply to unliquidated claims. I have not, therefore, based my opinion on any analogy of this sort. I prefer to found it on what appears to me a simpler and less debatable ground. If the statutory right to sue a registered union in its registered name is exercised and a money judgment is obtained, there is no procedure available whereby execution may be levied on foot of such a judgment against the individual members. I find it hard to regard this omission as accidental but, however that may be, the fact is that Parliament has not provided any machinery for extending what I may call a registered name judgment so as to make it enforceable against members as such. The situation where the members are sued by name or by duly appointed representatives raises different and, as it seems to me, more difficult considerations, but as that situation does not arise here I express no opinion upon it.

 

My Lords, as counsel for the union conceded – very rightly as I think – that section 4 of the Act of 1871 did not apply to these proceedings, and as the competence of the courts to embrace a claim of this kind is not otherwise open to question, it only remains to inquire whether Kelly’s case⁷⁷ was properly decided. The foundation of that decision, the view that a registered trade union is not a juridical person but an association of individuals, having been accepted, this question turns on the soundness of the reasoning, based on that foundation, which led to the conclusion
that a member could not recover damages against his union for being expelled in breach of the contract contained in the rules.

 

My Lords, the salient facts in Kelly’s case⁷⁷ are so similar to those of the present appeal that I need not refer to them at length. In each case the party seeking redress had been actually expelled from his union; in each the expulsion was wrongful and in breach of the rules forming the contract between the members;.  and in each the union stood behind the expulsion and sought to justify it as warranted by the rules until it had to admit defeat on that issue before the Court of Appeal. In Kelly’s case,⁷⁷ it is true, the expulsion was the act of a committee, while here it was the act of an official; but in my opinion this difference is not important and may be disregarded.

 

What is important is to ascertain the ratio decidendi of Kelly’s case.⁷⁷ As to that, it will be convenient to refer first of all to two points which appear not to form part of the ratio though this, of course, does not necessarily impair their relevance. The first arises from the words of Phillimore L.J. concerning the plaintiff⁷⁸: “… if he sues the trade union for what it has done, he is suing himself among others.” This point is not mentioned in the other judgments and it may be that it was only made by way of emphasizing what I regard as the true ground of the decision. But if, as also seems possible, it is a procedural point and was meant to suggest that a member who sues his union in its registered name cannot succeed because he is also suing himself, I think it must be wrong.

 

The right of a member so to sue for a declaration and injunction regarding his expulsion is now well settled and I do not see how a claim for damages can be distinguished in this respect. The second matter arises on that part of the judgment of Bankes L.J. in which he says^79: “Further than this, the very ground on which the plaintiff succeeds in obtaining an injunction is fatal to his claim for damages. He succeeds in that claim because he has established that the London committee and the executive committee in expelling him from the society acted without authority and in defiance of the rules. Having established that fact, it is not possible to contend that they were at the same time the authorized agents of his fellow members to do the acts which he complains of as constituting breaches of his contract.” I have no doubt that this point, which is not taken by the other members of the court, is outside the ratio of its decision; but I have considerable difficulty in seeing how it can be applied to the facts of Kelly’s case⁸⁰ if I have gathered them aright. Had the union there disavowed the action of the committee the reasoning of this passage would be plainer, but instead of doing that the union appears from the reports to have approved the views of the committee and to have adopted what it had done. Here the relevant facts preclude the point, if anything more clearly.

 

There is little more the Musicians’ Union could have done to identify itself with the expulsion of Mr. Bonsor. It has made the act of the branch secretary its act and cannot now say that because the expulsion was unauthorized by the rules it has no responsibility for it.

 

With these points out of the way the ratio of Kelly’s case⁸⁰ is, I think, clear. It is, in my opinion, accurately described in that part of the headnote which says: “A member of a trade union who has been illegally expelled by the committee … cannot recover damages for breach of the contract contained in the rules, since the committee who were responsible for breaking the contract were acting as agents for the plaintiff equally with his fellow members.” As I read the judgments of the Court of Appeal, this was regarded by all the learned judges as the outstanding reason why the claim for damages failed. Bankes L.J. stated it more fully than the
other members in saying⁸¹: “The plaintiff’s case is that this contract has been broken, not by all the other members personally, but by the London committee and the executive committee acting as the agents of those other members. It is here, I think, that the plaintiff fails. It is true that both these bodies were appointed by the general body of members, and as such they are the agents of the members, but they are just as much the agents of the plaintiff as the agents of his fellow members whom he seeks to make liable under their collective name.”

 

My Lords, as I follow it, this reasoning is not based on any concept peculiar to the law of trade unions. It appears to be founded on a general proposition to the effect that a member of a voluntary association who is injured by some wrongful act done by an agent of the association on behalf of its members, including himself, cannot recover against his fellow members whose responsibility, in the circumstances, will be no greater than his own. For the purposes of this appeal I am prepared to accept that proposition without inquiry as to what, if any, are the limits to be put upon it. But one of its essential ingredients is that the act complained of should be done by the agent on behalf of the injured member. Was the Court of Appeal right in holding that the committee which expelled Mr. Kelly was, in so doing, acting as his agent? In the present case Denning L.J. answered that question thus⁸²: “I cannot,” he said, “understand this line of reasoning. I cannot understand how it can be said that the committee, when they were excluding Kelly, were acting as agents on his behalf. They were acting against him, not for him.”

80 84 L.J.K.B. 2236..

My Lords, I think this criticism is well founded and I agree with it. Expulsion from membership of a trade union stands, as a breach of contract, in a special category. It may be that a union committee or official, while investigating a complaint against a member, can be said to be acting on his behalf. I do not need to decide that or to say where the line is to be drawn. We are now concerned with a later stage, with the act of expulsion, when what is being done is to thrust a party to the contract out of the combination on the ground that he is no longer entitled to any of the rights or privileges of membership. To say that that is done on behalf of the person expelled seems to me an unwarranted extension of the agency and quite out of keeping with reality.

 

For this reason I think Kelly’s case⁸³ was wrongly decided, and as I see nothing else to stand in the way of an award of damages, I would therefore allow the appeal and remit the case for the purpose of assessing the amount to be recovered.
LORD KEITH OF AVONHOLM.

My Lords, much of the discussion on this appeal has been directed to the question of the status of a registered trade union. On the one side it is said that such a trade union is a legal entity capable of being sued by a member for breach of his contract of membership. On the other side it is said that such a union is only a voluntary unincorporated association of individuals incapable of being sued by a member, qua member, for breach of contract. My Lords, I think that the decisions of this House show that, in a sense, a registered trade union is a legal entity, but not that it is a legal entity distinguishable at any moment of time from the members of which it is at that time composed. It remains a voluntary association of individuals but it is
capable of suing and being sued in its registered name; it holds property, through trustees, against which a creditor holding a decree against it could levy execution; it acts by agents; and it has other rights and is subject to other liabilities set out in the Trade Union Acts. It differs from an unincorporated association in that it is unnecessary to consider who were the members at any particular time. For instance, it is immaterial who were the members at the time that any cause of action arose, or what members have joined the union since the cause of action arose. The registered trade union may be said to assume a collective responsibility for all members past, present and future, in respect of any cause of action for which it may be made liable, irrespective of the date of the cause of action. On the other hand, the judgment creditor can look only to the funds of such a trade union to satisfy his debt, and to the extent to which these may be augmented from time to time by contributions of members, whether new or old, they will still be available for the unsatisfied judgment creditor.

 

These are important attributes, or characteristics, of a registered trade union which, in my opinion, differentiate it from other voluntary associations and may entitle it to be called a legal entity, while at the same time remaining an unincorporated association of individuals. As an association its membership is constantly changing but as a registered trade union it has a permanent identity and represents its members at any moment of time. It would not, I think, be wrong to call it a legal entity.

 

The view which I have endeavoured to formulate is, I think, entirely consistent with the decisions and dicta in earlier trade union cases which have come before this House. In the Taff Vale Railway case⁸⁴ Farwell J., whose judgment was upheld by this House, does not describe a registered trade union as a legal entity, though he does so in another case to which I refer later. He uses language, however, from which, I think, the conception of such a union as a legal entity arose. For instance, he says⁸⁵: “Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say of such an
association that it is unknown to the common law. The legislature has legalized it, and it must be dealt with by the courts according to the intention of the legislature.” In other places he refers to it as a creature of statute. In this House Lord Halsbury L.C.⁸⁶ expressly adopted the judgment of Farwell J., and in a short sentence referred to such a trade union as a thing created by the legislature. Lord Macnaghten, Lord Shand and Lord Brampton also accepted the judgment of Farwell J.  the exception of Lord Brampton, however, none of their Lordships, in my opinion, uses language which necessarily leads to the view that he regards a registered trade union as having a legal persona separate from that of the members of which it is composed. Lord Macnaghten and Lord Lindley clearly regarded a registered trade union as a voluntary association of individuals. Lord Macnaghten says87: “The registered name is nothing more than a collective name for all the members.” Lord Lindley says^88: “The Act appears to me to indicate with sufficient clearness that the registered name is one which may be used to denote the union as an unincorporated society in legal proceedings as well as for business and other purposes.
The use of the name in legal proceedings imposes no duties and alters no rights: it is only a more convenient mode of proceeding than that which would have to be adopted if the name could not be used.” He points out, however, that the liability of a registered trade union is limited to the union funds. The decision of this House was to uphold an injunction granted by Farwell J. against a trade union in its registered name, but that injunction was grounded on tort and it is clearly implicit in the judgment of this House that such a trade union could be made liable in damages for tortious acts against a non-member. In fact, a very large award of damages was made against the particular trade union in that case.

 

In Yorkshire Miners’ Association v. Howden⁸⁹ Lord Lindley said: “A trade union is, and its name is only a convenient designation for, an unincorporated society of individuals,” and referring to the Taff Vale case⁹⁰ he said⁹¹: “But care was taken in that case to point out that a trade union is not an incorporated society, although it may be sued in its registered name.” In Amalgamated Society of Railway Servants v. Osborne⁹² the powers of a registered trade union were assimilated to the powers of a limited company or a corporation, but that was only on the question whether its rules were ultra vires of the statute. In that case, Lord Halsbury⁹³ referred to a registered trade union as being a “legalized combination having power to act as a person.” In Russell v. Amalgamated Society of Carpenters and Joiners⁹⁴ Lord Macnaghten again took occasion to re-affirm that a “trade union is merely an unincorporated society of individuals.” Lastly, I should refer to what Farwell L.J. said in Osborne v. Amalgamated Society of Railway Servants95: “A registered trade union is thus a statutory legal entity, anomalous in that, although consisting of a fluctuating body of individuals and not being incorporated, it can own property and act by agents.” These words, in my opinion, indicate that Farwell L.J., in calling a registered trade union a statutory legal entity, recognizes that it is at the same time an unincorporated association of individuals, and not something standing separate and apart from the individuals of which it is composed.

 

This view is, in my opinion, supported by a consideration of the terms of section 4 of the Act of 1871, which prevents any court from entertaining any legal proceedings instituted with the object of directly enforcing or recovering damages for the breach of, inter alia, “any agreement between members of a trade union as such, concerning the conditions on which any members for the time being of such trade union shall or shall not sell  their goods, transact business, employ, or be employed.” This provision is applicable alike to registered and unregistered trade unions and is only consistent with the view that in the matters covered by this head of section 4 the rules are agreements between the members. The definitions also of a trade union in the Acts of 1871, 1876 and 1913 apply equally to registered and unregistered trade unions. This may not be conclusive, but it shows that the essential quality, or inherent structure, of the two bodies remains the same.

 

Reference was made in the course of the argument and by Denning L.J. in the Court of Appeal to passages in the judgments of Birkett J., Scott L.J. and Uthwatt J. (as he then was) in National Union of General and Municipal Workers v. Gillian96 on the legal status of registered trade unions. In my opinion, these passages go further than is warranted by previous authority and cannot be supported.

 

In the result, then, my view is that Mr. Bonsor’s contract of membership was a contract between himself and the other members of the union. On the view I have endeavoured to express it may be regarded also as a contract with the trade union, for the trade union, in its registered capacity, is representative of all the members. So long as this is kept in view it is convenient to talk of a member’s contract of membership as a contract with his trade union. Has, then, the plaintiff a right to sue the trade union for breach of contract?

 

The Court of Appeal has held itself bound by the decision in Kelly v. National Society of Operative Printers’ Assistants⁹⁷ and the question is whether Kelly’s case⁹⁷ was rightly decided. That case was decided in the Court of Appeal by a strong court. On its facts it is indistinguishable from the present case. Kelly sought against a registered trade union a declaration, an injunction and damages in respect of illegal expulsion from the union. He was held entitled to a declaration and injunction, but his claim for damages was refused. I find it unnecessary to analyse the judgments in detail. The ratio of all the judgments appears to me to be that in complaining of the action of the officers of the union in expelling him the plaintiff was complaining of the conduct of agents of all the members of the union, including himself, and that in suing the trade union he was suing himself among others. In my opinion this reasoning suffers from an underlying fallacy. A simple example will illustrate the point. Take the case of a member who has been illegally expelled by a majority of members at a general meeting which is sufficient to bind the union. No question of agency arises here. The member may be entitled to sue the individuals of the majority for damages in some form of action. I do not find it necessary, however, to decide this point. He could not, it is clear, sue the individuals of the minority. But I see no reason why, if the union is bound by the voice of the majority, the member  should not be able to sue the union as here for a declaration and injunction, and the question would then arise, clear of any question of agency, whether he could sue it for damages and recover against the union funds. If the expulsion takes place on the initiative of the union officials it appears to me that it reduces the position to an absurdity to say that the officials were acting as the expelled member’s agents in the matter of the expulsion. They are no more his agents in the matter complained of than would be a majority who expelled him in a general meeting. There may be cases where a trade union disclaims the action of an official or officials and in which, accordingly, the conduct complained of cannot be said to be the act of that trade union. But in such a case the member would be speedily restored to his status as a union member and would, presumably, in the matter of any claim of damages, have to proceed against the individual or individuals concerned. But that can hardly apply in this case, where Mr. Bonsor was excluded from his union for over four years, and where the trade union has maintained up to the Court of Appeal the validity of his expulsion.

 

This leaves the way clear for consideration whether there is any other reason why a registered trade union cannot be sued by a member in damages for breach of his contract of membership. The decision of this House in the Taff Vale case⁹⁸ leads inevitably to the conclusion that prior to 1906 a trade union could be sued, as such, in its registered name for damages for tort committed against a third party. Liability for tort was subsequently abolished by statute, but liability in contract remained, and, in principle, there is no reason why a member of such a trade union should not have the right to sue for damages for an act committed by the trade union in breach of his contract of membership under the rules. As I have said, such a union assumes a collective responsibility for all its members. It provides the element of continuing responsibility no matter how its membership changes. In no other way, in my opinion, is it possible to support the result implicit in the judgment in the Taff Vale case⁹⁸ that a trade union as constituted at the date of the action, or at the date of the judgment decree, or at the date of enforcement of the decree, is responsible for its tortious acts whenever committed and however much its membership has changed since the date of the tort.
In my opinion, the case of Kelly⁹⁹ was wrongly decided. A member of a registered trade union who has been damnified by breach of his contract of membership is entitled, in my opinion, to sue his union for damages provided his claim is not struck at by any of the provisions of section 4 of the Act of 1871. Counsel for the respondents declined, no doubt wisely, to argue that this action was so excluded, although his attention was drawn to the Scottish case of Berry v. Transport and General Workers’ Union.¹⁰⁰ That case is very shortly reported both on the facts and on the grounds of judgment, and there may be facts undisclosed in the report that would explain the judgment. But, considering the matter independently, I agree that an action of damages by a member of a trade union for breach of contract of membership is not necessarily excluded by the statute. Much may depend on how the claim is formulated. The basis and quantification of the claim in this case has still to be considered.

 

I would allow the appeal. My Lords, this appeal raises two questions. First, has a member of a registered trade union who is wrongfully expelled a right to claim special damage if he can prove that he has suffered any?

 

If the answer is “Yes,” then can judgment be obtained in proceedings against the union under its registered name?

 

The position in law of trade unions under the various Acts of Parliament is a special one. To import into the subject such general phrases as “legal personality,” “legal entity,” “quasi-corporation,” whatever “quasi” may mean, may well serve to obscure that which is not in any case particularly easy to discern. I will therefore endeavour to summarize the effect of the decisions as I understand them so far as is relevant to this appeal.

 

It was decided in the Taff Vale case¹⁰¹ that an action lay against a trade union in its registered name for torts committed by its agents. Section 4 of the Trade Disputes Act, 1906, removed this liability, but the procedural importance of the decision remains. Lord Lindley said¹⁰²: “The Act appears to me to indicate with sufficient clearness that the registered name is one which may be used to denote the union as an unincorporated society in legal proceedings as well as for business and other purposes The use of the name in legal proceedings imposes no duties and alters no rights: it is only a more convenient mode of proceeding than that which would have to be adopted if the name could not be used.” Lord Lindley added that, in his opinion, a judgment against the union, eo nomine, could only be enforced against the property of the union. The “suability,” coupled with this limitation, avoided, apparently, any question of limiting the liability to the members, or the funds the property of the members, at the date of the tort. Although Lord Brampton¹⁰³ used the words “newly created corporate body,” it is clear from the speeches of Lord Macnaghten, Lord Lindley and, I think, Lord Shand, that the association or “combination” of members remained an unincorporated association or combination. The nature of the association was unaffected by registration. Lord Halsbury adopted the judgment of Farwell J. Lord Macnaghten agreed with that judgment and clearly thought that Farwell J. had proceeded on the basis that a trade union remained a voluntary association of members, though he had not expressly so stated.

 

In Osborne v. Amalgamated Society of Railway Servants¹⁰⁴ (usually referred to as the second Osborne case) the plaintiff brought proceedings against the union in its registered name in respect of their alleged wrongful expulsion. He claimed declarations and an injunction. The case, as reported, was heard on two preliminary points. First, were the rules of the union in restraint of trade? If not, then its legality did not depend on the Act of 1871, and section 4 of that Act did not apply. If the rules were in restraint of trade, then it was submitted that the plaintiff’s claim was a proceeding instituted with the object of directly enforcing an agreement for the application of the funds of the trade union to provide benefits to members, a proceeding which was prohibited by section 4 of the Act. The Court of Appeal considered both points, although success on either would have entitled the plaintiff to proceed to trial. It held that a wrongful expulsion action was not prohibited by section 4 of the Act of 1871. It was never suggested that proceedings in respect of the alleged wrongful expulsion were not properly brought against the union under its registered name.

 

The question whether section 4 of the Act of 1871 was a bar to a wrongful expulsion claim came before your Lordships’ House in Amalgamated Society  of Carpenters, Cabinet Makers and Joiners v. Braithwaite.¹⁰⁵ It was held that the section was not a bar, approving the decision of the Court of Appeal in tire second Osborne case.¹⁰⁶ The action was one to restrain a threatened expulsion, so no question of damages could arise. It was again accepted that the trade union, in its registered name, was the proper defendant in wrongful expulsion proceedings.

 

In the meantime, the Court of Appeal had decided in Kelly v. National Society of Operative Printers’ Assistants¹⁰⁷ that a member of the defendant society wrongfully expelled was entitled to a declaration and injunction but not to damages.

 

Your Lordships were invited by the appellant to distinguish the Kelly case¹⁰⁷ on the ground that the rules of the defendant union in the present case amounted to an agreement between the members and the union and not, or not solely, to an agreement of the members inter se. I do not accept this suggestion, for reasons which I will state briefly later. I propose to consider the Kelly case¹⁰⁷ on the basis that the rules contain a contract between the members. If that contract is broken by a wrongful expulsion prima facie, as it seems to me, the party aggrieved can claim nominal damages and special damages if he could prove any. The main defence in the Kelly case¹⁰⁷ was based on the construction of the rules and does not assist in the present appeal. The expulsion was held to have been wrongful and damages had been awarded by the county court decision.

 

The point with which your Lordships are concerned was taken, apparently, by the court in the Court of Appeal. The reasons given by the Lords Justices have already been set out and, with respect, I am unable to accept them. If, under a contract to which there are a number of parties, the many by themselves, or through the agents of the association, purport to deprive the one of his contractual rights, the one, subject to possible procedural difficulties, must be entitled to the rights, including that to special damage, which our law confers in respect of breach of contract. It cannot, as it seems to me, be right to identify the plaintiff in such a case with those of whose acts, or of whose agent’s acts, he complains, so  as to deprive him of his ordinary remedies. So far as procedure is concerned, if the union in its registered name is the proper defendant for a declaration and injunction, it would seem to me to be the proper defendant also in a claim for damages, though it would, I think, be right that the trustees should be added as parties. The damages, if any, will be recoverable only from the funds.

 

I turn to the appellant’s primary submission that the contract of each member was in the present case with the union as a contracting party. It raises two issues. First, do the rules, on their true construction, purport to effect such a contract? Secondly, has the union power under the statutes to be such a contracting party?

 

Even if the answer to the second question were “Yes,” it would still, of course, be open to the members so to draft the rules as to constitute a contract inter se only and not a contract with the union.

 

In considering the rules it may be helpful to consider the general form that rules of any voluntary association, such as a members’ club, would take. In such a case the name of the association plainly does not and cannot denote a contracting party, but it would be difficult not to use words which would be apt if the “name” could be a contracting party. I do not think the present rules, in their reference to the union, go beyond this. I would not myself construe them as having any other basis than a
contractual one as between members. On the second question, whether a union would have power so to contract, I agree with the reasoning and conclusions of my noble and learned friend, Lord MacDermott, on that point and on the general position.

 

I, therefore, would allow the appeal, and the matter should be remitted for the appellant to prove, if she can, special damage in law from the wrongful expulsion.

 

Appeal allowed. _

 

C.