Quinn v. Leathem

Trade union officers and members pressed a Lisburn butcher to dismiss non-union men. They threatened his regular customer, circulated black lists and drew away his employees. A jury found a conspiracy (a combination to injure) that caused him loss. The House of Lords held he could sue, and it read Allen v. Flood narrowly.

Quick Revision

Read the full judgment: BAILII

Parties

Quinn — appellant, defendant; treasurer of the Belfast Journeymen Butchers and Assistants' Association, and the sole appellant in the House of Lords.

Leathem — respondent, plaintiff; a butcher of Lisburn, near Belfast. He had carried on business there for over twenty years.

Craig, Davey, Dornan and Shaw — co-defendants in the High Court in Ireland. Craig was president of the society and Davey its secretary. Dornan and Shaw were ordinary members. Craig had died by the time of the appeal.

Munce — Leathem's regular customer, who kept a butcher's shop at Belfast. He had died by the time of the appeal.

Dickie, Rice and McDonnell — Leathem's assistants who left his service.

Procedural History

1. Leathem sued Quinn and four others in the High Court in Ireland for damages for wrongful interference with his business as a butcher. He also claimed an injunction (Lord Brampton).
2. Trial was at the Belfast Assizes in July 1896, before FitzGibbon L.J. and a special jury (Lord Brampton).
3. The counsel for the defendants asked for a nonsuit (a ruling that the plaintiff has no case for the jury). The Lord Justice refused (Lord Brampton).
4. No evidence was called for the defendants (Lord Brampton).
5. The jury answered all three questions for Leathem. Damages were £200 against all defendants, and a further £50 against Dornan, Davey and Shaw for the black list. Judgment followed the verdict (Lord Brampton).
6. The verdict and judgment were upheld in the Queen's Bench, where Andrews J. gave a judgment, and in the Court of Appeal in Ireland. Holmes L.J. and Walker L.J. gave judgments there (Lord Macnaghten, Lord Lindley, Lord Robertson).
7. One judge dissented below. He held that Allen v. Flood had made lawful what was clearly actionable before it (Lord Halsbury).
8. Lord Halsbury refers to the Chief Baron's inflexible logic. Lord Macnaghten refers to the arguments of the Lord Chief Baron and the strong language of the late O'Brien J. (Lord Halsbury, Lord Macnaghten).
9. Quinn alone appealed to the House of Lords. The House took time for consideration and gave judgment on 5 August 1901.

Facts

1. Leathem had carried on business at Lisburn for over twenty years before July 1895. Munce, a Belfast butcher, was one of his regular customers, and bought twenty or thirty pounds' worth of the best meat each week.
2. Leathem employed several assistants at weekly wages.
3. In February 1893 a trade union society was registered under the Trade Union Acts, 1871 and 1876. Its name was The Belfast Journeymen Butchers and Assistants' Association.
4. Craig was president, Quinn treasurer and Davey secretary. Dornan and Shaw joined later as ordinary members.
5. Leathem and his assistants were not members.
6. Members had adopted an unregistered rule. They would not work with non-union men, and would not cut up meat from a place employing non-union hands. Before July 1895 there was no evidence that this had caused any conflict with Leathem's men.
7. Early in July 1895, Leathem attended a society meeting at Lisburn on Davey's invitation. All the defendants were present.
8. Leathem offered to pay all fines, debts and demands against his men and asked that they be admitted to the society.
9. Shaw objected. He said the men should be put out of Leathem's employment and should walk the streets for twelve months. Leathem replied that it was a hard case to make a man walk the streets with nine small children.
10. Shaw moved a resolution that Leathem's assistants be called out. It was seconded and carried, with Craig in the chair.
11. Craig proposed other men who could work for Leathem. Leathem said they were not suitable and he would keep his own men.
12. Craig told Leathem that his meat would be stopped at Munce's if he did not comply.
13. Dickie had been in Leathem's employment for ten years. He was a family man with young children.
14. On 6 September the secretary wrote to Leathem asking whether he had decided to continue to employ non-union labour. The letter warned that the society would be obliged to adopt extreme measures.
15. On 13 September the secretary wrote to Munce. He said a deputation had been appointed to decide Munce's purchase of meat from Leathem and Sons.
16. On 14 September Munce replied that it was outside his province to interfere with any man's liberty. He asked why the society came to him when it was Leathem it wished to interfere with.
17. A deputation of Craig, Quinn, Shaw and Dornan met a son of Munce. On 17 September he wrote that his father could not bring pressure on Leathem by refusing to buy meat. That would be outside his province and would interfere with another man's liberty.
18. On 18 September the secretary told Munce that the society had failed to reach an arrangement with Leathem. It would instruct Munce's employees to cease work when Leathem's beef arrived.
19. On 20 September Munce telegraphed Leathem that he need not send any beef that week, as the men were ordered to quit work. From that day Munce took no more meat from Leathem, to his substantial loss.
20. Several defendants published black lists in the Lisburn district. The lists named Leathem and also those who dealt with him. People were told their names would be removed only if they stopped dealing with him or any other non-society shop.
21. McBride, a customer, stopped dealing with Leathem because of the lists. Attempts were made through the lists to influence two others, Davis and Hastings.
22. Two weekly servants, Rice and McDonnell, were non-union men. They were induced to join the society and leave Leathem's service, after giving due notice. The society paid them weekly sums while they were out of work, as compensation for the wages they would have earned.
23. Dickie left without notice in the middle of a week. Rice brought him to a society meeting in a room over Dornan's shop, where Shaw was present. They wanted him to leave because the rest were out, and they promised to pay him what he had from Leathem. He left, was paid by Rice for the society, and then was in Dornan's service.
24. Leathem had no dispute with his men, and they had none with him. He was willing for all his men to join the union and offered to pay their fines and entrance money. He objected to the punishment proposed for some men for not joining sooner (Lord Macnaghten, Lord Lindley).
25. There was no trade dispute at all in the case of Munce (Lord Macnaghten).

Issues Raised

1. Did the decision in Allen v. Flood make lawful a combination to injure a person by threats and inducements, where the same acts would have been actionable before that decision?
2. Does a conspiracy to injure, resulting in damage, give rise to civil liability?
3. Was Lumley v. Gye rightly decided, so that interference with contractual relations without sufficient justification is actionable?
4. Was the jury properly directed and were the right questions put to it? The appellant complained that further questions were not put.
5. Can the defendants rely on section 3 of the Conspiracy and Protection of Property Act, 1875, and on the protection of trade unions, against a civil action?
6. Should the damages be disturbed?

Arguments Contended

The reported opinions do not set out counsel's arguments in full. The points below are those the opinions record.

For the appellant (Quinn and the defendants)

1. Allen v. Flood laid down that a lawful act does not become actionable through malice (a wrongful motive). By logical reasoning from passages in that case, boycotting by trade unions is lawful and gives no cause of action (Lord Halsbury, Lord Lindley).
2. If one person doing the acts would not be liable, the fact that many act in concert makes no difference (Lord Lindley).
3. At the trial, counsel submitted for a nonsuit on three grounds. There was no evidence of a contract between Munce and Leathem. There was no evidence of pecuniary damage. The acts of the defendants were legitimate (Lord Brampton).
4. Counsel objected to the charge on four grounds. There was no definition of damage. The judge said liability depended on a question of law. The black list question should be left separately. There was no evidence of a binding contract broken through the defendants' action (Lord Brampton).
5. FitzGibbon L.J. did not put all the questions needed to raise every point counsel wished to argue (Lord Halsbury).
6. The judge did not distinguish between coercion to break contracts of service, coercion to break other contracts, and coercion not to enter into contracts (Lord Lindley).
7. The appellant relied on Kearney v. Lloyd, Huttley v. Simmons, the Scottish Co-operative Society case and the later decision in Lyons v. Wilkins (Lord Lindley).
8. Section 3 of the Conspiracy and Protection of Property Act, 1875, protected the combination (Lord Macnaghten, Lord Shand, Lord Lindley).
9. The defendants called no witnesses. Lord Lindley says it may be assumed in their favour that they acted for what they considered the interests of union men (Lord Lindley).

For the respondent (Leathem)

The reported opinions do not record the arguments of counsel for Leathem separately. Their Lordships' opinions set out the grounds on which the plaintiff's verdict was upheld.

Court's Reasoning

Six Lords delivered opinions. They are given in the order of the report. Lord Macnaghten's opinion was read by Lord Brampton in his absence. Lord Shand's, Lord Robertson's and Lord Lindley's opinions were read by Lord Davey in their absence. The judgment has no numbered paragraphs, so no paragraph numbers are cited.

Earl of Halsbury, L.C.

1. Noted: The plaintiff pleaded properly. He proved to the satisfaction of a jury that the defendants wrongfully and maliciously induced customers and servants to cease dealing with him.
2. Noted: The defendants did this under a conspiracy framed among them. It was done with malice to injure the plaintiff, and it did injure him.
3. Noted: Without a remedy on those facts, the law could hardly be called that of a civilised community. Before Allen v. Flood, no one doubted that these facts gave a cause of action.
4. Held: Every judgment must be read as applying to the facts proved or assumed. General expressions in it are governed and qualified by those facts.
5. Held: "a case is only an authority for what it actually decides." A case cannot be cited for a proposition that only seems to follow logically. The law is not always logical.
6. Noted: Allen v. Flood was decided by the majority on the assumption that the defendant made no threat at all. He only warned the employers of what the men had already decided to do.
7. Noted: The trade union had passed no resolution, and the official had no authority to call the men out. There was no conspiracy or combination. There was only the independent action of one defendant, who wished to express his views for his fellow members.
8. Noted: Lord Halsbury personally did not accept that view of the facts. But the Court must look at the assumption on which the majority decided.
9. Noted: He accepts with cordiality the statement of the facts of Allen v. Flood prepared by Lord Brampton and Lord Lindley.
10. Held: In this case, if the verdict stands, there was conspiracy, threats and threats carried out. Loss of business and interference with the plaintiff's legal rights are abundantly proved.
11. Noted: The dissenting judge below did not doubt any of these points. His view rested on the belief that Allen v. Flood had made lawful what was clearly actionable before.
12. Held: Lord Halsbury cannot agree. If some observations in Allen v. Flood were pushed to their logical conclusion, it would be hard to resist the Chief Baron's inflexible logic. He cannot concur with it.
13. Held: This case differs on its essential facts from Allen v. Flood. On the theory of that case, the majority would have held this to be actionable injury inflicted without any excuse.
14. Held: On the subordinate question, the Lord Justice's charge was absolutely accurate. He put the questions counsel for the defendant wanted. It would be intolerable to complain that he did not put others he was not asked to put.
15. Held: There is no difficulty in the case. The appeal is to be dismissed with costs.

Lord Macnaghten (read by Lord Brampton)

1. Noted: Despite the strong language of the late O'Brien J. and the arguments of the Lord Chief Baron, Allen v. Flood has little to do with this question.
2. Held: Allen v. Flood laid down no new law. It brushed aside dicta contrary to principle and unsupported by authority.
3. Noted: The dicta are found in Lord Esher's judgment in Bowen v. Hall, repeated in Temperton v. Russell. They were not necessary to the decision in either case.
4. Noted: They formed the ground of decision in the early stages of Allen v. Flood. In the end the law was restored to its condition before those views were accepted by the Court of Appeal.
5. Noted: The head-note of Allen v. Flood might have run in words used by Parke B. in Stevenson v. Newnham. The report's text of those words is cut off after the words an act which does. Lord Macnaghten calls this the sum and substance of Allen v. Flood, apart from the charge, the jury's findings and the discussion of evidence.
6. Held: The case really under review is Temperton v. Russell. Its facts are in substance identical to the present case, so the grounds of decision must be the same.
7. Noted: Temperton v. Russell was not overruled by Allen v. Flood, and its authority is not shaken. Without Lord Esher's unfortunate expressions, it stands on surer ground.
8. Noted: Lord Watson, whose opinion best represents the majority, approved it. He thought it very doubtful whether the effect of the actor's animus was in question. He noted two jury findings in it: malicious inducement to break contracts, and malicious conspiracy to induce people not to make contracts.
9. Noted: The second reference to Lumley v. Gye in that passage is probably a slip. It does not impair Lord Watson's meaning. He was convinced that a conspiracy to injure may give civil liability even where the acts, apart from concerted action, are not a legal wrong.
10. Held: Lumley v. Gye was rightly decided. The reason is not malicious intention. A knowing violation of legal right is a cause of action, and interference with contractual relations recognised by law, without sufficient justification, violates legal right.
11. Held: A conspiracy to injure, resulting in damage, gives rise to civil liability. There is authority for this, and it is founded on good sense.
12. Noted: Authorities are Gregory v. Duke of Brunswick, and the charges of Erle J. in Duffield's Case and Rowland's Case, trade union outrages. There are weighty observations in Lord FitzGerald's charge in Reg. v. Parnell and Others.
13. Noted: A conspiracy to injure differs widely from an invasion of civil rights by one individual. A man can resist one wrongdoer, with the support of friends and neighbours. It is very different when one man must defend himself against many combined to do him wrong.
14. Noted: He agrees in substance with Bowen L.J., Lord Bramwell and Lord Hannen in the Mogul Case.
15. Held: He agrees generally with the judgments in the Courts below. In particular he agrees with Andrews J. in the Queen's Bench and Holmes L.J. in the Court of Appeal.
16. Held: The acts were not done in contemplation or furtherance of a trade dispute between employers and workmen. There was no trade dispute at all.
17. Noted: Leathem had no difference with his men, and they had no quarrel with him. He was willing for all of them to join the union and offered to pay their fines and entrance moneys. He objected to a cruel punishment proposed for some of them for not joining sooner.
18. Noted: There was no trade dispute in the case of Munce. But the defendants conspired to harm Munce to compel him to harm Leathem, and so to take revenge on Leathem's servants who were not members.
19. Held: The provision in the Conspiracy and Protection of Property Act, 1875, that certain agreements are not indictable as a conspiracy has nothing to do with civil remedies.

Lord Shand (read by Lord Davey)

1. Noted: After the full opinions of the Irish Court of Appeal, his grounds can be stated shortly. He avoids detailed reference to the many cases cited in argument. He concurs with the majority below.
2. Noted: In Allen v. Flood, he said that combination in pursuit of a trade object is lawful, even if it injures others as competition in labour does. But a combination in pursuit merely of a malicious purpose to injure another is clearly unlawful. This opinion is confirmed.
3. Noted: The trial judge told the jury that the words wrongfully and maliciously raised questions of fact. They included whether the defendants intended to injure the plaintiff in his trade, or intended to advance their own interests legitimately.
4. Held: The verdict affirms that the intention was to injure the plaintiff. After the direction, no other meaning can be given to the finding.
5. Held: The real question is whether, after Allen v. Flood, a combination to injure or ruin another, and not to advance the parties' own trade interests, gives no action even when injury results. In popular form: has Allen v. Flood made boycotting lawful?
6. Noted: Without Allen v. Flood, the Irish judges would have been unanimous in affirming the principle applied by FitzGibbon L.J.
7. Noted: The general law is best stated in the passage of Lord Bowen's judgment in the Mogul Case. The Lord Chancellor quoted it with strong approval in Allen v. Flood, and Lord Shand approves it. He also approves Sir William Erle's views in his work on Trade Unions. He read the passage.
8. Noted: In some cases injury to another requires a combination or conspiracy to be effective. That was not so in all of Lord Bowen's examples, but no such question arises here.
9. Held: On the evidence and the verdict, the defendants by combined action wrongfully and maliciously induced a number of persons to refrain from dealing with the plaintiff. That is sufficient for the decision. In his opinion it was further proved that they induced a servant and a customer to break existing contracts.
10. Held: The defendants were guilty of unlawful acts unless Allen v. Flood made such acts lawful.
11. Held: The vital distinction is stated in one sentence. In Allen v. Flood the defendant's purpose was to promote his own trade interest, which he was entitled to do. Here the purpose was to injure the plaintiff in his trade, as distinguished from legitimately advancing their own interests.
12. Noted: Lord Herschell said in Allen v. Flood that the object in view was what the defendant and those he represented believed to be the interest of their class. The step taken was a means to that end. The other majority Lords expressed themselves to a similar effect.
13. Noted: Lord Shand himself said that the defendant in Allen v. Flood was bent exclusively on furthering the interests of those he represented. It was not a desire to do mischief to the plaintiffs in their lawful calling. It was competition in labour, analogous to competition in trade.
14. Noted: The majority ground was that Allen exercised the right of himself and his fellow workmen as competitors in the labour market. Injury caused to others from legitimate competition was not a legal wrong.
15. Held: The defendants here have no defence of legitimate trade competition. They acted by conspiracy, not to advance their own interests as workmen, but for the sole purpose of injuring the plaintiff in his trade.
16. Held: The law prohibits such acts as unjustifiable and illegal. The defendants clearly violated the plaintiff's rights and caused serious injury. Allen v. Flood, a case of legitimate competition in the labour market, is essentially different.
17. Held: There is no sufficient ground for disturbing the verdict on damages. Section 3 of the Conspiracy Act of 1875 does not apply to these circumstances.

Lord Brampton

1. Noted: The case has little pecuniary concern for the parties. It raises questions of wide importance to every trader, employer and servant in trade.
2. Noted: He sets out the facts: the action, the parties, the society, the meeting, the letters, the black lists and the inducements to Leathem's servants. Leathem told the jury his account of the meeting in his own words.
3. Noted: Munce sent a very sensible reply, saying it was fair to complain of Leathem rather than himself. Craig's warning about Munce came true. On 20 September Munce was forced to stop taking Leathem's meat.
4. Noted: Rice and McDonnell gave due notice, so no separate cause of action arose for them. But it is significant that the society paid them compensation while they were out of work.
5. Noted: Dickie left without notice and so broke his contract. There was abundant evidence that the defendants' unjustifiable influence induced it.
6. Noted: The pleadings had five counts. Four charged separate causes of action: procuring Munce to break contracts; publishing black lists; intimidating Munce and others to break their contracts; and coercing Dickie and other servants to leave. The fifth charged a conspiracy to do the acts in the earlier counts.
7. Held: The Lord Justice rightly refused a nonsuit. There was evidence for the jury on one or more, in his view all, of the causes of action. The point was practically disposed of during argument in the House.
8. Noted: No shorthand note of the summing-up was supplied. The judge's own notes show every reasonable indulgence was given to counsel. Counsel must be taken to have accepted the form of the questions left to the jury.
9. Noted: The judge told the jury to consider whether the defendants went beyond lawful limits. Securing or advancing their own interests by reasonable means, including lawful combination, was not actionable.
10. Noted: The question was whether the acts were intended and calculated to injure the plaintiff through a combination and common purpose. The aim was to prevent the free action of his customers and servants, and actually to injure him.
11. Noted: Acts done to raise profits or wages by reasonable and legitimate means were lawful, unless a wrongful act was maliciously done, meaning intentionally, to injure a third party.
12. Noted: For a wrongful act, the jury had to find a conspiracy, a common intention and a combination to injure the plaintiff. Acts in furtherance had to inflict actual money loss.
13. Held: The charge was given before Allen v. Flood was decided. In substance it was correct, though in some respects a little too favourable to the defendants. The defendants' counsel was allowed to object then and there.
14. Noted: Counsel made four objections. He said the judge gave no definition of damage, and that liability depended on a question of law. These were conclusively answered in the summing-up.
15. Noted: A third objection was that the black list should be left separately. It was so left. The judge said there was not sufficient evidence to connect Quinn and Craig with the lists as an independent cause of action.
16. Held: Quinn was still affected by the lists as overt acts of the conspiracy, for which every conspirator is liable. The evidence about them was admissible under the conspiracy count.
17. Noted: A fourth objection was that there was no evidence of a binding contract broken. The judge rightly refused to withdraw the question then. Later he rightly did not put it, since the conspiracy count made it unnecessary.
18. Noted: At counsel's request, the single question was divided into three. They asked whether the defendants induced customers or servants to refuse to deal; whether they conspired to induce them; and whether Davey, Dornan and Shaw published the black list.
19. Noted: The jury answered all three in the affirmative. It awarded £200 against all defendants, and a further £50 against Dornan, Davey and Shaw only.
20. Held: Where all parties accept one general question, neither side can go back to the separate issues on the record. The real question was whether an unlawful conspiracy existed, and whether Leathem was specially injured by it.
21. Held: The other wrongful acts were overt acts of the conspiracy. To support the conspiracy count, it was not essential to prove every overt act. The Lord Justice told the jury that proof of a conspiracy was essential.
22. Held: In substance the verdict was a general verdict against all the defendants, with £200 damages. The black list issue carried separate damages of £50 against three of them.
23. Held: Rightly understood, Allen v. Flood is harmless to this case. To understand it, one must find the facts the majority assumed and the principles applied to them.
24. Noted: The judges assisting the House were asked one question only. It was whether, on the plaintiffs' evidence, there was any evidence of a cause of action fit to go to the jury. Views on the facts differed, and reconciling them would be an endless task.
25. Noted: Some confusion arose from the trial. All questions of conspiracy, intimidation, coercion or breach of contract were withdrawn from the jury. The jury found only that Allen maliciously induced the Glengall Company to discharge Flood and Taylor, and assessed damages of £20 for each.
26. Noted: The majority assumed that the Glengall Company had no contract to keep the plaintiffs for any duration. Allen did only what he had a legal right to do. They held that malice could not turn a rightful act into a wrongful one.
27. Held: The exercise of an absolutely legal right is not actionable merely because malice prompted it. This was established by Bradford Corporation v. Pickles. It is too late to dispute it.
28. Held: Malice is not immaterial in all cases. It is commonly used to defeat a defence of privilege.
29. Noted: Malice is used to defeat privilege. In malicious prosecution (prosecuting without reasonable cause and with malice), a prosecutor who honestly believes in reasonable cause acts rightfully. If he lacks it and acts from personal spite, the act becomes wrongful. Bayley J.'s definition of malice in Bromage v. Prosser applies where he knew he had no ground.
30. Held: The cause of action here differs from Allen v. Flood. It does not depend on coercion to break a particular contract. The real cause is an unlawful conspiracy to harass a trader in his business and invade his undoubted right.
31. Noted: Alderson B. said in Hilton v. Eckersley that it is prima facie a trader's privilege to regulate how he carries on his business. Only the general law may restrain his free discretion.
32. Noted: He adds the Lord Chancellor's words in the Mogul Case that all are free to trade on what terms they will. Lord Bramwell said in Reg. v. Druitt that the liberty of a man's mind and will is as much protected as his body. Sir W. Erle said each person has a right to full freedom in disposing of his own labour or capital.
33. Held: He rests his judgment on these principles and seeks no more. He quotes Lord Watson: any invasion of civil rights is itself a legal wrong, with liability to repair its natural consequences.
34. Held: The acts were a serious and wrongful invasion of the plaintiff's trade rights. He cannot see any ground on which the defendants seek to justify them.
35. Held: Union members have no more legal right to commit wrongs than if the association did not exist. They have no right to coerce others to join the society or adopt its rules.
36. Held: The Trade Union Acts, 1871 and 1876, only let unions make rules for their own conduct and mutual assistance. They give no licence to obstruct others in business or labour. No protection is given to a combination that would have been criminal before the 1871 Act for other reasons.
37. Held: Nothing in the Trade Union Acts or the Conspiracy Act of 1875 sanctions this conduct. Section 7 of the 1875 Act imposes penalties for undue coercion and intimidation, so it protects those coerced. Section 3 does not apply to civil actions.
38. Noted: The Mogul Case holds much valuable law on how far competing traders may go. It gives no justification for active interference with the right of every trader to carry on business in his own manner.
39. Noted: He adopts the Lord Chancellor's summary of the Mogul Case: what legal right was interfered with, and what coercion of mind, will or person? Competition is not even suggested here. These were acts of wanton aggression from a malicious conspiracy.
40. Noted: It was not suggested that the acts furthered the union's registered lawful objects, fair hours or wages, or the settling of any dispute. It would be strange to promote good understanding by coercing a tradesman's customers to leave him because he would not dismiss men who wished to stay.
41. Held: A conspiracy is an unlawful combination of two or more persons "to do that which is contrary to law". It also covers doing that which is wrongful and harmful to another, or a lawful object by unlawful means.
42. Held: A conspiracy is punished by indictment, or civilly by an action on the case if damage occurs. The elements are the same in both, but an action needs special damage. This is the substance of Barber v. Lesiter.
43. Noted: He adopts the definition of Willes J. in Mulcahy v. Reg., adopted by the House. A conspiracy is an agreement to do an unlawful act, or a lawful act by unlawful means. The plot is an act in itself, and number and compact give weight and cause danger.
44. Noted: Those words were used in a criminal case, but they apply to civil conspiracies too. Cockburn C.J. said in Reg. v. Warburton that the acts agreed need not be criminal. It is enough that they are wrongful, a civil wrong.
45. Held: Suppose a conspiracy to harm is carried out by overt acts, none actionable alone. The acts become actionable if done under the conspiracy and cause substantial damage. The conspiracy is unlawful and criminal from its formation, but actionable only if damage results.
46. Held: The overt acts are no part of the conspiracy. If they accomplish its object, it does not matter that singly they would be innocent. It is the wilful doing of mischief, with resulting damage, that is the cause of action.
47. Noted: A grain of gunpowder is harmless but a pound may destroy. One grain of a drug may heal, but frequent larger doses to harm may be fatal.
48. Noted: The whole subject was discussed at each stage of the Mogul Case. Rex v. Journeymen Tailors of Cambridge upheld an indictment for conspiracy to raise wages, though the object might be lawful without conspiracy.
49. Noted: In Rex v. Eccles, before Lord Mansfield, the indictment was for conspiracy to hinder Booth, a tailor, from his trade. It was unnecessary to set out the means, since the illegal combination is the gist of the offence. He also cites Grose J. in R. v. Mawbey.
50. Held: Darling J. in Huttley v. Simmons treated Allen v. Flood as binding, and held the object of that conspiracy not unlawful. That was right. Lord Brampton would have differed if Darling J. had held that lawful overt acts made the conspiracy lawful.
51. Held: The law is with Leathem, and the damages are very moderate. A conspiracy of unscrupulous enemies is a powerful and dangerous engine for organised and ruinous oppression. The judgment below should be affirmed and the appeal dismissed with costs.

Lord Robertson (read by Lord Davey)

1. Held: The judgment appealed against was right for the reasons given by Holmes L.J.

Lord Lindley (read by Lord Davey)

1. Noted: Allen v. Flood bears so heavily on the appeal that one must find what the House really decided. It was an action by two workmen of an iron company against three union members for maliciously inducing the company to discharge them.
2. Noted: Kennedy J. ruled there was no evidence of conspiracy, intimidation, coercion or breach of contract for the jury. The plaintiffs got a verdict against Allen alone. The jury found only that he maliciously induced their employers to discharge them.
3. Noted: The Lords differed on Allen's authority to call out union members and on his means. But the majority held that he only informed the employers that most workmen would leave unless the plaintiffs were discharged.
4. Noted: As no conspiracy, intimidation, coercion or breach of contract was before the House, the majority held that no action lay against Allen. He had infringed no right and had done nothing he had no legal right to do. His malice and intent to injure did not, without more, give the action.
5. Held: Allen v. Flood establishes two propositions. One is a far-reaching proposition of law. The other is a comparatively unimportant proposition of mixed law and fact, useful as a guide.
6. Held: The first proposition: "an act otherwise lawful, although harmful, does not become actionable by being done maliciously." The doctrine is not new but had never been so fully expounded.
7. Noted: In applying it, remember two things. Criminal responsibility was not considered in Allen v. Flood. It would revolutionise criminal law to say that criminal liability never depends on intention.
8. Noted: In civil cases the proposition applies only to acts otherwise lawful, meaning acts involving no breach of duty and no wrong to anyone.
9. Held: The second proposition: what Allen did infringed no right of the plaintiffs, even if he acted maliciously. On the majority's view of the facts that is unavoidable, because informing a person that others will injure him unless he acts in a way cannot be actionable.
10. Noted: How much power Allen had, and what he did, are questions of fact. No court or jury is bound in law to draw the same inferences of fact as the Lords drew.
11. Noted: He will consider the plaintiff's rights, the defendants' conduct and whether that conduct infringed the rights. He considers them first apart from the statute that legalises strikes, and then with reference to it.
12. Held: The plaintiff had the ordinary rights of a British subject. He was free to earn his living in his own way, and so to deal with others who were willing to deal with him. Its correlative is the duty of everyone not to prevent that liberty, except as his own liberty of action justifies.
13. Held: A person's liberty to deal with others is worthless unless they are free to deal with him. Interference with their liberty affects him. If the interference is justified in law, he has no redress.
14. Noted: If the interference is wrongful, usually only the person immediately affected can sue. Another who suffers has no redress because the damage is too remote, and it would be impractical to give redress to all.
15. Held: But if the interference is wrongful and intended to damage a third person, and he is damaged, the case changes. He is wrongfully and intentionally struck at through others, and his rights are infringed indirectly. The damage is direct, not remote or unforeseen. Our law gives him an action.
16. Noted: Support is in the old actions on the case and Bowen L.J.'s illustrations in the Mogul Steamship Company's Case. He does not read Allen v. Flood as opposed to it.
17. Held: Lumley v. Gye was rightly decided. Its principle is not limited to inducing breach of service contracts or any contract. It reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him.
18. Held: Temperton v. Russell may be upheld on this principle. It was rightly criticised in Allen v. Flood for making liability depend on motive alone, as Lord Esher's judgment did. But there was a wrongful act, conspiracy and unjustifiable interference with Brentano.
19. Noted: The jury found that the defendants wrongfully and maliciously induced the plaintiff's customers to refuse to deal, and maliciously conspired to induce them not to deal. There were similar findings about servants.
20. Noted: The defendants threatened to call out the union workmen of the plaintiff and his customers unless he discharged some non-union men. They would put the plaintiff, his customers and their workers to all the inconvenience possible without violence.
21. Noted: The conduct was more blameworthy because Leathem offered to pay the fees for his non-union men to join the union, and the defendants refused.
22. Held: The facts differ entirely from Allen v. Flood. There was no dispute between the plaintiff and his men, or the customers and their men, or the plaintiff and his customers. The defendants called no witnesses, and nothing justified or excused their conduct.
23. Noted: It may be assumed in their favour that they acted for what they saw as the interests of union men. That is all that can be said for them. The verdict was amply warranted.
24. Noted: He says nothing about the black list because the trial judge thought the evidence did not connect the appellant with it. But it was a very important feature of the case.
25. Held: The conduct plainly infringed the plaintiff's rights. The defendants dictated to the plaintiff, his customers and servants what to do. They violated their duty to leave them undisturbed in their liberty of action. No excuse was alleged or could be found.
26. Held: The damage was immediate and intended, not remote. The intention to injure rules out all excuses and any question of remoteness. "Your Lordships have to deal with a case, not of damnum absque injuria, but of damnum cum injuria." The damnum sine injuria (loss without legal wrong) rule therefore does not apply.
27. Held: Every element of a cause of action on ordinary principles is present. All authorities were examined in the Mogul case and Allen v. Flood. No decision before Allen v. Flood favours the appellant. His sheet-anchor, Allen v. Flood, can cover this case only if greatly extended.
28. Noted: It was argued that what many do together is not actionable if it would not be actionable by one. One man alone could not have done what the defendants did.
29. Held: One person exercising the same control over others as the defendants would have committed a wrong. So the concert of many does not matter here.
30. Noted: In Allen v. Flood Lord Herschell said it was immaterial whether Allen said he would call the men out. That may hold where Allen had no power and the men had decided to strike. But there is a difference in law between giving information that men will strike and threatening to make them strike, when they do not want to.
31. Noted: Peaceable persuasion may become commanding orders with threats. Black lists are real instruments of coercion.
32. Held: A combination not to work is lawful. A combination to prevent others from working, by annoying them if they do, is prima facie unlawful. A threat to call men out is coercion, intimidation, molestation or annoyance that needs justification. None was offered.
33. Held: Conduct not actionable by one is not necessarily lawful in many. "numbers may annoy and coerce where one may not." Annoyance and coercion by many may be so intolerable as to become actionable.
34. Noted: The law of conspiracy has difficulties in its criminal and civil aspects. Older views have been beneficially modified by decisions in America and England. He refers to Vegelahn v. Guntner, where coercion by other means than violence was unlawful.
35. Held: By the Mogul Steamship case, no action for conspiracy lies against persons who act in concert. It fails where they merely exercise their own rights and infringe no right of others, though another is damaged. Allen v. Flood stresses the same doctrine.
36. Noted: In Scottish Co-operative Society v. Glasgow Fleshers' Association, butchers induced salesmen not to sell meat to the plaintiffs by threatening to stop buying from them. That was not unlawful, so there was no cause of action, though the butchers acted in concert.
37. Held: The cardinal distinction is that in such cases no one's right was infringed. Here the coercion of the plaintiff's customers and servants infringed their liberty and his.
38. Held: Intentional damage arising from the mere exercise of the rights of many is not actionable. Otherwise one set of persons' liberty would be restricted to uphold another's. Competition between individuals and associations is allowed if nobody's rights are infringed.
39. Held: The law is the same for masters and men. Coercion by threats, open or disguised, of serious annoyance and damage is prima facie a wrong to those coerced, and numbers cannot be disregarded.
40. Noted: Kearney v. Lloyd involved no coercion of the plaintiff's employer, customers or servants, as the judgments under review show.
41. Noted: In Huttley v. Simmons, a cab-driver sued four union members for inducing the cab-owner not to employ him. The report does not state the means. The judge held that no action lay, since the one against whom the jury found had done nothing wrong apart from motive. Little can be drawn as material facts are missing.
42. Held: The direction to the jury was correct on the common law. The appellant's objection, that the judge did not distinguish contracts of service, other contracts and not entering contracts, is untenable.
43. Noted: The 1875 Act (38 & 39 Vict. c. 86) recognises the legality of strikes and lock-outs to a point. Workmen may combine not to work except on their own terms. Force or threats of violence to stop others working are illegal.
44. Noted: Many ways short of violence can compel people. Picketing is a distinct annoyance and an actionable nuisance (a wrong that interferes with others) at common law if damage results. Section 7 makes it lawful if confined to obtaining or communicating information.
45. Held: A combination to annoy a person's customers so as to make them leave him is not forbidden by section 7, and cannot be permitted by section 3. The Court of Appeal decided this in Lyons v. Wilkins, on the Schoenthal case, referred to by Walker L.J.
46. Noted: That point was not reconsidered when Lyons v. Wilkins returned after Allen v. Flood. Byrne J. modified the injunction to watching and besetting only. He could safely have gone further. The strike was over and no one objected, so it is no authority for the appellant.
47. Noted: If one person had done what the defendants did, it would not be a crime. He sees no trade dispute between employers and workmen within section 3. He will not say officers who create strife with an employer with whom no member has a dispute can invoke that section even on an indictment.
48. Held: Assuming a trade dispute, an indictment for conspiracy differs from an action for damages. An illegal agreement is essential in a criminal case. The damage done by persons acting together is the important element in the action. Section 3 is confined to criminal proceedings and does not apply to civil actions.
49. Held: It is not true that civil liability depends on criminality. Annoyances that are not indictable may be actionable. The law of nuisances shows this. He agrees with Andrews J. and those who concurred.
50. Noted: Allen v. Flood is a valuable decision, but may be misunderstood and carried too far. The appellant asks the House to extend it and destroy the individual liberty the law guards.
51. Held: Holding that boycotting by trade unions in one of its most objectionable forms is lawful would be contrary to well-settled principles of English law. No statute or decision has authorised it. The appeal ought to be dismissed with costs.

Authorities

• Allen v. Flood ([1898] AC 1): distinguished, and read narrowly, by all the Lords. Its majority assumed no threat, no conspiracy and no combination. It is authority only for what it decided (Halsbury, Macnaghten, Shand, Brampton, Lindley).
• Bowen v. Hall (6 QBD 333): Lord Esher's dicta brushed aside in Allen v. Flood (Macnaghten).
• Temperton v. Russell ([1893] 1 QB 715): identical in substance and not overruled. Lord Macnaghten and Lord Lindley uphold it, but on principle, not motive alone (Macnaghten, Lindley).
• Stevenson v. Newnham ((1853) 13 CB 297): Parke B.'s words on an act that is no legal wrong, used as a head-note (Macnaghten).
• Lumley v. Gye (2 E. & B. 216): held rightly decided (Macnaghten, Lindley). Also mentioned in Lord Watson's passage (Macnaghten).
• Gregory v. Duke of Brunswick (6 M. & G. 205, 953): authority that a conspiracy to injure is actionable (Macnaghten).
• Duffield's Case ((1851) 5 Cox CC 404) and Rowland's Case ((1851) 5 Cox CC 436): Erle J.'s charges on trade union outrages (Macnaghten).
• Reg. v. Parnell and Others ((1881) 14 Cox CC 508): Lord FitzGerald's charge on combined wrong (Macnaghten).
• Mogul Steamship Co. v. MacGregor (23 QBD 598; [1892] AC 25): Bowen L.J.'s statement of the law approved (Shand). It contains no justification for active interference with a trader's business (Brampton). It holds no action lies for a concerted exercise of own rights (Lindley).
• Bradford Corporation v. Pickles ([1895] AC 587): the exercise of an absolutely legal right is not actionable because of malice (Brampton).
• Bromage v. Prosser (4 B. & C. 247): Bayley J.'s definition of malice (Brampton).
• Hilton v. Eckersley (6 E. & B. 74): Alderson B. on a trader's freedom to run his business (Brampton).
• Reg. v. Druitt (10 Cox CC 600): Lord Bramwell on liberty of mind and will (Brampton).
• Reg. v. Rowlands ((1851) 2 Den CC 364): Erle J. on the freedom of others in business (Brampton).
• Barber v. Lesiter (7 C.B. (N.S.) 175): elements of criminal and civil conspiracy are the same (Brampton; also cited by Lindley).
• Mulcahy v. Reg. ((1868) LR 3 HL, at 317): Willes J.'s definition of conspiracy (Brampton).
• Reg. v. Warburton (LR 1 CC 276): acts agreed need not be criminal but only wrongful (Brampton).
• Rex v. Journeymen Tailors of Cambridge ((8 Geo. 1) 8 Mod. 11): conspiracy by workmen to raise wages (Brampton).
• Rex v. Eccles (1 Lea CC 274): the illegal combination is the gist of the offence (Brampton).
• R. v. Mawbey ((1796) 6 TR 619; 3 RR 282): cited for Grose J. (Brampton).
• Huttley v. Simmons ([1898] 1 QB 181): Darling J. treated Allen v. Flood as binding (Brampton). The report lacks material facts (Lindley).
• Vegelahn v. Guntner (167 Mass. 92): American case where coercion short of violence was unlawful (Lindley).
• Scottish Co-operative Society v. Glasgow Fleshers' Association (35 Sc. LR 645): threats to stop buying held lawful (Lindley).
• Kearney v. Lloyd (26 LR Ir 268): no coercion was involved (Lindley).
• Lyons v. Wilkins ([1896] 1 Ch 811; [1899] 1 Ch 255): Court of Appeal on annoying customers and modification of an injunction (Lindley).
• Erle on Trade Unions (p. 12): a person's right to dispose of his labour or capital (Shand, Brampton).
• Also cited in footnotes: 1 Wm. Saund. 229 b, 230 (Lindley, with Barber v. Lesiter); page references to Allen v. Flood by Lord Watson, Lord Herschell, Lord Macnaghten, Lord Shand, Lord Davey and Lord James (Lindley).

Provisions mentioned

• Trade Union Acts, 1871 and 1876: registered unions, and their rules for their own members. The Acts give no licence to obstruct others (Brampton).
• Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86), section 3: says certain agreements or combinations in a trade dispute are not indictable as a conspiracy. The Lords held it has no application to civil actions (Macnaghten, Shand, Brampton, Lindley).
• Section 7 of the same Act: penalties for undue coercion and intimidation. Picketing confined to obtaining or communicating information is lawful under it (Brampton, Lindley).

Judgement

1. The appeal is dismissed with costs (Lord Halsbury, Lord Brampton, Lord Lindley).
2. The judgment below is affirmed (Lord Shand, Lord Brampton, Lord Robertson).
3. The verdict of £200 against all defendants stands, with a further £50 against Dornan, Davey and Shaw for the black list. The Lords found no sufficient ground for disturbing damages (Lord Shand, Lord Brampton).
4. Lord Macnaghten and Lord Robertson agree with the judgments below. The report does not state a separate order on the injunction claimed.

Legal Principle / Ratio

A combination to injure a person in his trade is actionable. That holds where the defendants use threats and inducements, act with intent to injure, and have no justification. A case is only an authority for what it decides, so Allen v. Flood, which had no combination or threat, does not protect them.

Key holding: "it is the wilful doing of that mischief, coupled with the resulting damage, which constitutes the cause of action" (Lord Brampton).

Critical Analysis

Analysis based on the judgment text.

• The Lords gave separate reasons. Lord Macnaghten treated Temperton v. Russell as the real case, while Lord Lindley rested on infringement of the plaintiff's liberty. The report does not merge these into one test.
• Lord Lindley left open whether officers who create strife with an employer having no dispute with any member can ever invoke section 3, even on an indictment.
• Lord Halsbury said the dissenting judge's logic would be hard to resist if Allen v. Flood were pushed logically. The result rests on limiting that case to its facts, not on overruling it.

Significance

• The House confined Allen v. Flood to its own facts, and held a case is authority only for what it decides.
• It confirmed civil liability for a conspiracy to injure that causes damage.
• It held that Lumley v. Gye was rightly decided.
• It held section 3 of the 1875 Act gives no defence in a civil action.

Exam-Important Points

• Rule: a combination to injure a person in his trade, using threats, without justification and causing loss, is actionable.
• Trap: Allen v. Flood decided a lawful act is not actionable through malice. It had no combination or threat, and is not authority for this case.
• Rule: numbers may annoy and coerce where one may not, so combination matters.
• Trap: section 3 of the 1875 Act protects against indictment only. It gives no defence to a civil action.
• Distinguish Mogul Steamship: there, the combination exercised its own rights in competition. Here, nobody's rights were exercised, but Leathem's were infringed.

Prepared from the full text of the judgment. The judgment has no numbered paragraphs, so opinions are cited by judge. The citation [1901] AC 495 is not in the judgment text.