Rookes v Barnard (No 1)

Factual and Procedural Background

The Appellant had worked for many years as a skilled draftsman in the drawing office of Company A at The City airport. All draftsmen in that office were members of a trade union (“The Union”). After becoming dissatisfied with the Union’s conduct, the Appellant and one colleague resigned. The Union wished to preserve a fully unionised workforce and, after the colleague re-joined, focussed pressure on the Appellant to return.

On 10 January 1956 The Union unanimously resolved that, unless the Appellant was removed from the design office by 13 January, all Union members would withdraw their labour. Because every member’s contract incorporated a 1949 agreement prohibiting strikes and requiring arbitration, any such withdrawal would have been a breach of contract.

The Respondents – two workplace representatives and one full-time Union official – presented the strike resolution to Company A. Fearing disruption, Company A first suspended, then lawfully dismissed the Appellant by notice. The Appellant sued the Respondents for the tort of intimidation, alleging that their threat of strike action unlawfully induced his dismissal. A jury before Judge Sachs awarded £7,500. The Court of Appeal reversed, holding that no tort had been committed. The Appellant appealed to the House of Lords.

Legal Issues Presented

1. Does a threat by employees to break their contracts (i.e., strike in breach of a no-strike clause) amount to the unlawful “means” necessary for the tort of intimidation?
2. If intimidation is established, do sections 1 and 3 of the Trade Disputes Act 1906 confer immunity because the acts were “in contemplation or furtherance of a trade dispute”?
3. What are the proper limits of exemplary (punitive) damages in civil actions, and were the jury correctly directed on that head?

Arguments of the Parties

Appellant’s Arguments

• The Respondents used unlawful means—threatening a strike that would breach their employment contracts—to coerce Company A into dismissing the Appellant.
• A threat to break a contract is as much an unlawful means as a threat to commit a tort; therefore the tort of intimidation is made out.
• Sections 1 and 3 of the 1906 Act do not protect intimidation by unlawful means; those provisions only shield conduct that is otherwise lawful.
• The jury were entitled to award damages, but any misdirection on exemplary damages should result only in a new assessment of quantum, not the loss of liability.

Respondents’ Arguments

• The common law tort of intimidation is confined to threats of violence or of inherently tortious acts; a threatened breach of contract falls outside its scope.
• Even if intimidation existed, sections 1 and 3 of the Trade Disputes Act 1906 bar any action because the conduct occurred in furtherance of a trade dispute.
• The jury’s award was fatally tainted by misdirection on exemplary damages; if liability subsists a complete re-trial is required.

Table of Precedents Cited

Court’s Reasoning and Analysis

1. Existence and Scope of the Tort of Intimidation. The Law Lords unanimously confirmed that intimidation is a recognised tort. A threat to commit any unlawful act directed at a third party, calculated to cause and actually causing loss to the plaintiff, is actionable. They held that a threatened breach of contract is an “unlawful act” for this purpose; there is no principled distinction between threatening a tort and threatening an actionable breach of contract.

2. Application to the Facts. The jury’s findings bound the House: each Respondent threatened that all Union members would strike in breach of their contracts unless the Appellant were removed, and Company A dismissed him as a direct result. The threats therefore constituted intimidation.

3. Trade Disputes Act 1906. Section 1 removes only the element of conspiracy where the underlying act is lawful; here the underlying act (the threat of an unlawful strike) was itself tortious, so section 1 gave no immunity. Section 3 protects acts actionable only because they induce breach of contract or interfere with trade; it does not protect acts made independently tortious by unlawful means such as intimidation. Lord Loreburn’s interpretation in Conway v. Wade was adopted: threats or violence fall outside the statutory shield.

4. Exemplary Damages. The majority (especially Judge Devlin) re-examined the legitimacy of punitive awards. They limited exemplary damages to two common-law classes: (a) oppressive, arbitrary or unconstitutional action by government servants; and (b) conduct calculated to make a profit exceeding compensatory damages. The present case fitted neither class. The trial judge had therefore misdirected the jury by inviting them to award exemplary damages merely because the Respondents’ conduct was deliberate and unlawful.

Holding and Implications

Holding: Appeal allowed in part. The Respondents are liable for the tort of intimidation; sections 1 and 3 of the Trade Disputes Act 1906 do not afford a defence. The verdict on liability is restored, but the damages award is set aside. A new trial is ordered limited to the assessment of compensatory (not exemplary) damages. Costs before the House and the Court of Appeal are awarded to the Appellant; costs of both trials to be dealt with by the trial judge.

Implications:

• Establishes definitively that a threatened breach of contract can constitute the unlawful means element of the tort of intimidation.
• Clarifies that statutory immunity under the Trade Disputes Act 1906 does not extend to intimidation or other torts involving unlawful means, even when connected to a trade dispute.
• Narrows the circumstances in which exemplary damages may be awarded, confining them to two specific categories and overruling earlier authority that had permitted wider punitive awards in civil cases.
• Affirms that trade unions and their officials remain answerable in tort where they deploy illegal strike threats to coerce employers.