*302 Greig and Others v Insole and Others 1977 G. No. 22461977 J ...

[1978] 1 W.L.R. 302 Page 11
[1978] 1 W.L.R. 302 [1978] 3 All E.R. 449 (1978) 122 S.J. 162 [1978] 1 W.L.R. 302 [1978] 3 All E.R. 449 (1978)
122 S.J. 162
(Cite as: [1978] 1 W.L.R. 302)
ternative grounds which I have stated, but also a declaration
that they are or would be an unlawful inducement
to the players involved to break their
contracts with World Series Cricket.
When the trial began, it was, I think, assumed
by all parties to both actions (including the defendants
themselves) that the claims involved and the
defences to them would fall to be argued and decided
without reference to any statutory legislation.
By the fourth day of the trial, however, a possible
new line of defence had occurred to the defendants'
advisers. On that day they gave notice to the
plaintiffs in both actions that they intended to apply
for leave to amend their defences by pleading that
each of them is an “employers' association” within
the meaning of section 28 (2) of the Trade
Union and Labour Relations Act 1974 , and
relying on section 3 (5) in both actions
and also, in the second action, on section 14
of that Act. In due course, in the face of some
adverse comment but no opposition from the
plaintiffs' counsel, the defendants were duly given
such leave. Though I shall have to refer later to the
statutory definition of “employers' association,”
this will be a convenient moment to explain how
the Act of 1974 may be relevant.
*313
Subject to certain immaterial exceptions,
section 14 of the Act provides:
“(1)… no action in tort shall lie in respect of any
act —(a)alleged to have been done … by or on behalf
of an unincorporated employers' association; or
…(c)
alleged to be threatened or to be
intended to be done as mentioned in paragraph (
a
) … above; against the …
association in its own name … or against any members
or officials of the … association on behalf of
themselves and all other members of the … association.”
By their alternative plea based on
section 14 of the Act, the defendants in
the second action in effect say that since, first, they
are “employers' associations” and, secondly, an action
for inducement of breach of contract is an action
in tort, the claim based on inducement of
breach of contract, however proved and justified it
would otherwise be, is not maintainable, because
the defendants enjoy a statutory immunity from this
class of claim. If the defendants are correct in their
assertion that they constitute “employers' associations,”
such immunity must indisputably follow.
Section 3 (5) of the Act confers on unincorporated
“employers' associations” certain further,
far-reaching immunities from the ordinary processes
of the law. So far as material for present purposes,
it provides:
“… nor shall any rule of an unincorporated employers'
association … be unlawful or unenforceable by
reason only that it is in restraint of trade.”
The defendants in both actions assert in effect
that, if contrary to their contention, their new
rules or proposed new rules would otherwise be unlawful
as being in restraint of trade, section 3
(5) operates to render the new rules lawful.
In this instance, however, the plaintiffs in each action
have countered this assertion in argument not
only by a refusal to accept that either of the defendants
is an “employers' association,” but also by a
submission that, in any event, the unlawfulness of
the new or proposed new rules does not arise by
reason only of their being “in restraint of trade”
within the wording of the subsection. They submit
in the alternative that the rules are invalid as denying
the players involved the right to work and that
invalidity arising on these particular grounds is not
removed by section 3 (5) , when it is
properly construed.
It is common ground that, if the plaintiffs are to
succeed on any cause of action, they must establish
that all the essential elements necessary to establish
such cause of action were present at the date when
the writs were issued, August 3, 1977. This point of
date has particular relevance in relation to the
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