Collen Construction Ltd v Building and Allied Trades Union and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 16 May 2006
• Neutral Citation: [2006] IEHC 159
• Docket Number: [No. 572 P/2006]
• Court: High Court
• Date: 16 May 2006

[2006] IEHC 159

THE HIGH COURT

[No. 572 P/2006]

[No. 760 P/2006]

COLLEN CONSTRUCTION LTD v BUILDING & ALLIED TRADES UNION & ORS

BETWEEN

COLLEN CONSTRUCTION LIMITED

PLAINTIFF

AND

BUILDING AND ALLIED TRADES UNION, JOSEPH DOYLE, WILLIAM McCLURG, KEITH KELLY AND ANDREW CLARKE

DEFENDANTS

AND

BETWEEN

COLLEN CONSTRUCTION LIMITED

PLAINTIFF

AND

BUILDING AND ALLIED TRADES UNION AND DANIEL O'CONNELL

DEFENDANTS

TRADE UNIONS

Injunction

Trade dispute - Control of members - Fair issue - Evidence - Whether union in control of members - Whether evidence sufficient -Whether fair issue established on evidence -Injunction refused (2006/572P & 760P -Clarke J - 16/5/2006) [2006] IEHC 159 Collen Construction Ltd v Building and Allied Trades Union

Facts: the plaintiff sought an interim injunction against the defendants from interfering with business at various construction sites where it was operating as a contractor. The first defendant gave an interim undertaking pending the interlocutory hearing. The plaintiff then sought an interlocutory injunction against the first defendant. The first defendant contended that it had no involvement in the matters complained of and that it did not intend to do any of the acts complained of by the plaintiff and in those circumstances it was not appropriate that it be required to give any continuing undertaking to the court. The plaintiff relied on unidentified hearsay evidence that the first defendant was covertly directing other persons to carry out the acts complained of whilst maintaining a public position of compliance with the law.

Held by Clarke J in refusing the order sought that it had not been established that there was a fair issue to be tried by the plaintiff as, whilst it was permissible to include hearsay evidence in affidavits sworn for interlocutory applications, ordinarily, no reliance should be placed on hearsay attributed to unnamed persons. In order for a conclusion to be reached that the true position of the first defendant was different from that formally taken by it, there would have to be sufficient evidence to warrant a conclusion that the body concerned had acted in consort with those junior officials or members.

Obiter dictum: as the events which gave rise to the proceedings had abated the interlocutory injunction sought more resembled a quia timet injunction. As the first defendant had not asserted a right to do any of the acts complained of, no prejudice would be caused by restraining it from carrying out such acts, however, a party should not be subjected to a court order, even one which restrained it from doing acts which it stated it intended not to do, unless there was a proper legal and evidential basis for the making of the order concerned.

Reporter: P.C.

Mr. Justice Clarke

1 2 1.1 These two actions involve connected events in which building sites at which the plaintiff ("Collen") was engaged as contractor were subjected to a campaign designed to bring about a change in the manner in which Collen engaged persons to work on their sites. There is little doubt on the evidence but that some of the methods used in furtherance of certain aspects of the campaign were unlawful. Indeed some personal defendants were committed for contempt arising out of the breach of orders made restraining unlawful activity.

2 3 1.2 However the issues between Collen and the various personal defendants are not, currently, before the court. The contempt which gave rise to committal has been purged and the relevant parties released. Collen's application for an interlocutory injunction as against the personal defendants has been disposed off.

3 4 1.3 What is now before the court is an application on behalf of Collen for an interlocutory injunction against the first named defendant in each of the proceedings ("BATU"). BATU, as its name implies, is a trade union which has a representative role in respect of workers in the building area and in particular brick layers. When the proceedings were commenced a slightly different course of action was followed in each of the two cases. However on 13th February, 2006 an undertaking was given on behalf of BATU to refrain from:-

4 a "1(a) breaching the grievance and disputes procedures as embodied in the registered agreement

5 (b) directing and/or sanctioning the participation of its membership in industrial action against the plaintiff

6 (c) providing funding or other financial assistance to its members engaging in industrial action against the plaintiffs

7 2. interfering with the performance of the plaintiff's commercial contracts and economic relations

3. Engaging in industrial action against the plaintiff

8 4. Watching or besetting or picketing the plaintiff's sites situated at Wyattville Road/Laurel Avenue, Ballybrack, Co. Dublin.

9 5. Interfering with access or egress from the plaintiff's said sites situated at Wyattville Road/Laurel Avenue, Ballybrack, Co. Dublin.

10 6. Portraying or communicating whether by recourse to pickets or posters or otherwise that they have a trade dispute with the plaintiff

11 7. Trespassing on the plaintiff's said sites situated at Wyattville Road/Laurel Avenue, Ballybrack, Co. Dublin".

12 That undertaking was given in proceedings 2006 No. 572 P.

13 2 1.4 While the case as against the individual defendants was progressing, the matter as against BATU rested on foot of those undertakings with the interlocutory application being adjourned from time to time.

14 3 1.5 It would now appear that the agitation which gave rise to these proceedings has abated. However Collen now seeks an interlocutory injunction in the terms of the undertaking previously given by BATU pending the hearing of the interlocutory application. It is BATU's case that it had no involvement in the matters complained of by Collen and in those circumstances BATU contends that it is not appropriate that it should be required to give any continuing undertaking to the court. In those circumstances it is necessary to determine whether Collen is entitled to an interlocutory injunction.

15 2 2.1 As indicated above there is no doubt but that significant unlawful activity took place directed against Collen. For the purposes of this interlocutory application it is sufficient to state that Collen has established a fair issue to be tried as to the unlawfulness of much of the activities directed against it. I did not understand counsel for BATU to contend otherwise. However so far as the issue of there being a fair question to be tried is concerned, the dispute between the parties is as to whether Collen has put before the court sufficient evidence as to an involvement on the part of BATU to warrant a conclusion that there is, at present, shown to be a fair issue to be tried as to the involvement of BATU in any unlawful activity and as to a reasonable apprehension of BATU being involved in future similar activity sufficient to warrant court intervention at this stage.

16 3 2.2 Between the two sets of proceedings the following matters appear to be identified as evidence which, it is contended, establishes a connection between BATU and the unlawful activity complained of.

17 4 2.3 Firstly it would appear that some brief period prior to the commencement of the protests and other actions directed against Collen, it is common case that a Mr. Andrew Smith, a Regional Organiser of BATU, attended at the site office of Collen at UCD and, subsequently on the same day, also at the site office of Collen at Goatstown and indicated to the respective site managers that he would be seeking, on behalf of BATU, the agreement of Collen to an arrangement concerning the...