Sheffield Daily Telegraph – Wednesday 03 February 1904

The Action Against The Miners’ Association

Speech For The Defence Resumed

The action brought by the Denaby and Cadeby Main Collieries (Limited) against the Yorkshire Miners’ Association and others was again heard in the King’s Bench Division of the High Court yesterday by Mr. Justice Lawrance and a special jury. The plaintiffs claimed £150,000 as damages for alleged conspiracy and unlawful combination on the part of the defendants to induce the plaintiffs’ workmen to break their contracts.

Mr. Rufus Isaacs, K.C., who appeared for the Miners’ Association, continued his arguments following upon the conclusion of the plaintiffs’ case. He said he had already dealt with the question of law upon the events which led to the tendering of the men for work on the 17th of July, and he submitted that that part of the case ought to be deleted from the inquiry, otherwise he should have to lead evidence upon it.

The other part of the case was with reference to the events which happened between the 17th of July and the end of February, after the decision of the Court of Appeal in Howden’s case relating to the alleged illegality of the payment of strike pay. The course of events from the 24th of July, when the Union first paid strike pay, was a more difficult matter for him to deal with.

In the consideration of this matter, if his view were upheld, all the preceding events, such as the assaults, fell to the ground. The plaintiffs’ case upon that was based upon two views. One was that the acts in themselves, as apart from the strike pay, were illegal. Certain acts, he agreed, were illegal; but the question of the responsibility of the association was a different matter.

His learned friends on the other side, however, said that the payment of strike pay was an illegal or unlawful act, because the Union had no right to pay the strike pay, as the Court of Appeal had held. Therefore the Union was responsible for the consequences of the strike from that time. It was in that way that it was sought to establish the liability of the association for the acts of violence, intimidation, and so forth.

He submitted that it could not be held in this case that the payment of strike pay was illegal. It was merely as between the parties to the contract, the members of the union and the union, a payment which was in breach of the contractual rights upon which the association rested, and, except for that, the fact that strike pay was paid by the union was not relevant to this matter, because the union was entitled to pay, and existed for the purpose of paying strike pay to the men, under proper conditions.

If there was a strike which was conducted according to the rules they were bound to pay, and the fact that they took a wrong view as to the meaning of their rules, and the legal position of the men, who were out of work from the 15th of July, was quite immaterial for the purpose of this case. It was a great straining of the law to say, as his learned friends did, that according to Howden’s case, the union was doing illegal acts.

Counsel further contended that he was entitled to know what were the acts upon which his learned friends relied to show the alleged conspiracy between the association and the other defendants. His learned friends said that the conspiracy was rendered illegal by reason of what happened afterwards, but so far there was no evidence of any act of the union which proved a conspiracy.

The question of the payment of strike pay did not become any evidence against the union of a wrongful conspiracy to injure the masters.

Mr. Atherley Jones, K.C., followed on behalf of the defendants Hall and Frith, the former the treasurer of the union, and contended that there was no evidence offered by the plaintiffs against either of these defendants. As a matter of fact, Mr. Frith did not intervene in the dispute in any way, and as to Mr. Hall, who paid out the money for the purpose of maintaining the men when out of work, no evidence was given to that effect.

With regard to the defendants Parrott, Wadsworth, and Pickard, he was not sure that his learned friends alleged that they were in any way responsible for the initiation of the strike on the 29th of June. But whatever evidence there was went to show that they discouraged and disapproved of the strike.

Counsel emphasised the fact that he was dealing with the personal responsibility of the gentlemen he represented. Mr. Wadsworth did attend a meeting on July 14, and strongly urged the men to resume work. What he submitted to his Lordship was this—that there was nothing unlawful in these men, any one of them, refusing to enter into a contract for employment. They were perfectly within their rights to refuse to enter into any contract with their masters, and they were equally entitled to resolve that if they did enter into their contract to lawfully determine that contract of employment, that was to say, to determine it by notice.

There was abundant authority which established that there was nothing unlawful, either in an individual or a number of individuals, advising men who were workmen not to enter into a contract of employment, or to lawfully determine it. Of course, to advise a breach of the contract would be unlawful, and indeed actionable.

Now putting the case at the highest against himself, the most against Mr. Wadsworth or Mr. Pickard, two gentlemen immediately concerned in the matter, was that they advised the men not to enter into a contract for employment, that was to say, advised them to sign a document, which made fresh employment between the proprietors at the Cadeby Pit and the workmen.

There was no evidence whatever to connect either Mr. Wadsworth or Mr. Parrott with acts of an unlawful nature, and they had said nothing which conduced to the perpetration of those acts. Therefore, he asked his Lordship, so far as they were concerned, that they should be dismissed from the action.

Mr. Eldon Bankes said he doubted whether this discussion would turn out to serve any useful purpose at all, because all his learned friends were entitled to do at this stage was to say there was no evidence to go to the jury. Having regard to the evidence which had been given, it was absolutely impossible for anyone to say that there was not abundant evidence to go to the jury upon all the grounds set out in the statement of claim, as a separate and independent cause of action.

Mr. Isaacs had introduced another question altogether, and rather appealed to him as to whether he did not consider it his duty to assist him and his Lordship as to the points for the jury. Of course he would do so at the right time, but the right time to do so, and also to address his Lordship, upon points of law was when the evidence—

His Lordship: This is only a small beginning. (Laughter.)

Mr. Isaacs said he did not ask his learned friend to give him any assistance on a question of fact, but what he did ask was that he should say what were the questions of fact which he said were necessary to get the questions of law decided upon.

His submission was that some of the questions of fact were wholly immaterial to the cause of action, and unless he insisted upon them, there was no necessity to take up time with them.

Mr. Bankes replied that the jury would have to decide when all the questions had been heard. If his Lordship wished him to address him as to whether there was evidence to go to the jury he would do so by this statement: It was quite clear, upon the law as it stood at present, that certain acts were actionable, if they were unlawful and malicious acts on the part of the persons who did them, and there were also a class of acts which were actionable if done by a combination of persons which would not be actionable if done by an individual.

One of the acts which was universally admitted as being actionable was the procuring a man to break his contract. No combination was necessary for that. When it was done by an individual it was actionable, if done unlawfully and maliciously.

Now, the first point was this: Did anybody procure the men to break their contract of the 29th June? Secondly, if yes, who did it? Thirdly, was the union responsible for the acts of the persons who did it?

Now, on the third point, the question of agency arose, and that was, he supposed, a mixed question of fact and law, and his learned friend had submitted as a matter of law, for the Union could not be responsible either for the acts of the council, acting individually, or for the acts of the local committees. That point, he submitted, was now beyond dispute.

It had been held by Mr. Justice Walton in a recent case that when an official did anything in opposition to the rules of the Union the Union were responsible. He thought the Union were responsible in this case, because the men were acting as the officers of the Union and on their behalf. It was for his Lordship to say whether they could be agents, but if that was so, there was abundant evidence to go to the jury.

The next point was, were they right in saying that the strike had been procured by the Union when the Union ratified and adopted the acts of the branches? The second question was, did they wrongly intermeddle after the strike had been commenced, and do a great many acts which were actionable.

There was a further point as to intimidation. Even assuming that they were justified in intermeddling, they were not justified in using unlawful means, and here he submitted there was abundant evidence of unlawful means—not only the illegal paying of strike pay, but the various acts of persuasion.

Mr. Lush briefly followed with some legal argument in support of Mr. Bankes’s contentions.

Mr. Isaacs said they had not answered his point. What they had presumed to say was that his Lordship must not stop the case, because there might be parts of the case which should go to the jury. He thought he was entitled to say no case had been made out by the plaintiffs.

His Lordship said the evidence in the case was to show conspiracy. They knew what an open door that meant. He was in a difficulty, and could not put his finger down upon one particular point, but he thought there was evidence upon all points to go to the jury.

The questions were: Was there a conspiracy to induce the men to break their existing contracts; and, secondly, if they wrongly induced them not to enter into contracts? That was probably the plaintiffs’ case, and it seemed to him to override the whole thing.

Mr. Bankes said that he and his learned friends had drafted certain questions which might be put to the jury at the close of the case. These were: (1) Did defendants, Nolan and Humphreys, or either of them, unlawfully and maliciously procure the men to break their contracts by coming out on strike on June 29th, 1902, without giving proper notice? (2) Did the defendant association, by its agents, unlawfully and maliciously procure the men to break their contracts by coming out? (3) Did the defendant association ratify the action of the committees of Denaby and Cadeby, or any of their members, in so procuring the men to break their contracts? (4) Did the defendant association by its agents unlawfully and maliciously maintain the strike, and induce the men to continue the strike? (5) Did the defendants unlawfully and maliciously conspire to induce the plaintiffs’ workmen not to enter into fresh contracts to return to work? (6) Did the defendants unlawfully and maliciously conspire to molest and injure the plaintiffs in carrying on their business? and (7) did the defendants induce workmen not to enter into contracts with the plaintiffs by unlawful or illegal means or otherwise?

Mr. Isaacs said there was not one of those questions which did not give rise to the very points they had been discussing.

His Lordship said if those questions were decided upon at last he should have to direct the jury, and if he were wrong the parties could go further.

Mr. Isaacs then proceeded to open the case for the Yorkshire Miners’ Association. This action, he said, was one of a class with which the courts had become familiar in very recent times. Nothing could be more important to employers and workmen than that the law should be precisely laid down with reference to the rights of officials of a trade union and the union itself.

If one thing stood out more clearly than another in this case it was that the result of the argument of his learned friend that day, stated absolutely and in the most unmistakable language, came to this—that they might just as well, for all practical purposes, take the Trade Union Acts and tear them up. If his learned friend’s contention was right there never could be a strike or any combination among the men not to work. That meant that they never could have a strike without the trade union becoming responsible for the damage done to the employer or anyone else in consequence of the strike.

There might be people who thought that would be a very good thing, but that would not be a just thing, and it was not the law of this country. The case as presented by the plaintiffs had been encumbered with prejudice, which helped in some sort of way to inflame people’s minds against the workmen and the union.

Counsel then reviewed the history of the strike, and contended that the union, so far from continuing the strike, did all they could to put an end to it, and on the 15th of July they were sending men down to put things in order.

A little common-sense and a little give and take would have settled the question right at the beginning. Insistence, however, was placed on the signing of new contracts, and the men, or some of them, became suspicious.

With regard to the acts of violence and intimidation, he was justified in saying that there was as little violence shown in this strike as was ever shown in any other strike, and there was not here, as there often was, the restraining influence which must be put on the men to keep them from the acts of violence that were usually committed.

Counsel also contended that not a single member of the Executive Council was present at any of the meetings of the men, or on any occasion when assaults were committed.

Mr. Isaacs had not finished his speech before the court rose, which it did about one o’clock.