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

[1978] 1 W.L.R. 302 Page 55
[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)
633 suggest that, where an association exercises
a virtual monopoly in an important field of
human professional activity and seeks to exclude
classes of men or women from such activity, the
courts may intervene on broad grounds of public
policy if the power is abused, without relying on
the narrower doctrine of restraint of trade: see, for
example, per Lord Denning M.R.,
at p. 644, and per Danckwerts
L.J., at p. 650. As Danckwerts L.J. said:
“… the courts have the right to protect the right of a
person to work when it is being prevented by the
dictatorial exercise of powers by a body which
holds a monopoly.”*363
Though section 3 (5) of
the Act provides a defence to a claim that rules of
an “employers' association” are void “by reason
only that they are in restraint of trade,” it may well
be that the subsection would provide no defence to
a claim that they were void on the broader ground
of general public policy. The broader the construction
which the court felt compelled to place on the
statutory definition of “employers' association,”
surely the narrower would be the construction
which it would incline to place on the phrase
“restraint of trade” in the context of
section 3 (5) . I need, however,
express no conclusion on these points. In the event
question (H) above does not arise for decision.
XIX
question (I) above
The relief to be granted:
In the light of my foregoing decisions, it is
now necessary to consider the relief that should appropriately
be granted. Only one outstanding question
of law falls to be decided in this context — that
is, whether World Series Cricket is entitled to a declaration
in the second action relating to the invalidity
of the rules or proposed rules on the
grounds of unreasonable restraint of trade. I can
deal with this very shortly. Lord Denning M.R. in
Boulting v. Association of Cinematograph,
Television and Allied Technicians [1963] 2 Q.B.
606 , 629, referred to “the power of the
court in its discretion to make a declaration of right
whenever the interest of the plaintiff is sufficient to
justify it.” Following this and other judicial dicta,
Wilberforce J. in
Eastham v. Newcastle
United Football Club Ltd. [1964] Ch. 413 ,
446, held that the court had jurisdiction to grant to
the employee a declaratory judgment not only
against the employer who was in contractual relationship
with the employee, but also against the
Football Association and the Football League
whose rules or regulations placed an unjustifiable
restraint on his liberty of employment. Wilberforce
J. in due course in exercise of his discretion further
proceeded to grant appropriate declarations. I feel
no doubt that in accordance with the principles applied
in that decision, the court has jurisdiction to
grant declarations relating to the invalidity of the
relevant rules not only in favour of the individual
plaintiff cricketers, but also to World Series Cricket.
For these rules, according to my findings of fact,
are specifically directed against that company, in
the sense that one of their principal objects is to
persuade cricketers not to perform their existing
contracts with it and to prevent others from contracting
with it in the future; indeed, the resolution
of “disapproval” passed by the ICC specifically
named it. In these circumstances, appropriate declarations
can and should in my judgment be granted
both to the individual plaintiffs and to World
Series Cricket.
Mr. Kempster, on behalf of the defendants, indicated
that, subject to any appeal, they would abide
by any declaration which the court saw fit to make
in either action. I know of no reason to doubt that
they will faithfully do so and correspondingly think
that no grant of any immediate injunction is called
for.
In the result, subject to any discussion as
to the precise form of the order, I propose in the
first action to grant to the three plaintiffs (i) a declaration
that all the changes of the rules of the ICC
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