Educational Company of Ireland Ltd v Fitzpatrick and Others

CourtSupreme Court
Judgment Date01 January 1962
Date01 January 1962
Docket Number(1960. No. 330 P.)
Educational Company of Ireland Ltd. v. Fitzpatrick and Others.
(1960. No. 330 P.)

High Court.

Supreme Court.

Trade union - Picketing of employers' premises - Injunction - Effort by trade union to compel full union membership - Effort to force non-union members to join union - Trade dispute - Whether sufficient facts before Court to decide action - Balance of convenience - Trade Disputes Act, 1906 (6 Edw.7, c. 47), s. 2, sub-s. 1; s. 5, sub-s. 3.

The plaintiff Companies had in their employment 45 clerical workers of whom 16 were members of a trade union. The union members made efforts to persuade 9 other members of the clerical staff who were specified by them to join the union. The said 9 men refused and the union endeavoured to force the employers either to dismiss the men or to compel them to join the union. This the employers refused to do, and accordingly the union served strike notice and subsequently called their members out on strike and picketed the premises of the plaintiff Companies in the customary manner.

The plaintiff Companies sought and obtained from the High Court, firstly an interim injunction and then an interlocutory injunction, restraining the defendants from picketing the plaintiffs' premises pending the trial of the action. From that order the defendants appealed to the Supreme Court.

Held by the Supreme Court (Lavery, Kingsmill Moore, Ó Dálaigh ó dálaigh and Maguire JJ.; Maguire C.J. dissenting) that the balance of convenience required that the interlocutory injunction should be continued as it was not agreed between the parties that all the facts necessary to decide the issue in the case were properly established or admitted before the Court.

The order of the High Court granting the interlocutory injunction was accordingly affirmed.

Plenary Summons.

The plaintiffs, the Educational Company of Ireland Ltd. and Edward Hely and Co. Ltd., carried on the business, inter alia, of manufacturing stationery and the production of school textbooks. They employed forty-five clerical workers of whom sixteen were members of the Irish Union of Distributive Workers and Clerks. A discussion took place between Mr. Corish, branch secretary of the Union and Mr. Fitzsimmons, a director of the first-named plaintiff Company. Mr. Fitzsimmons, on behalf of the management of both Companies, agreed that the Union was entitled to make every effort to recruit members of the staff. He also agreed that the Companies would make no effort to prevent any or all of the staff from joining the Union; that it was a matter for each individual to decide for himself and that the Companies would not interfere in any way.

At a meeting held subsequently on the 6th February, 1960, which was attended by fourteen out of the sixteen Union members, these members passed a resolution refusing to remain at work with nine other members (who were named) of the clerical staff who were not members of the Union. On the 9th February a letter was written by Mr. Corish to Mr. Fitzsimmons acquainting him of the result of the meeting, and on the 10th February a letter was written by Mr. Fitzpatrick, general secretary of the Union, referring to the meeting and to the vote and suggesting a conference between the representative of the executive committee of the Union and the management of the Companies. To this Mr. Fitzsimmons replied, on the 11th February, stating that he was prepared to hear anything put forward but that the Companies would once again repeat that they could not, nor were they prepared to, compel any member of their staff either to join or to stay out of the Union. The Union took this to mean—and so communicated by letter dated the 17th February to Mr. Fitzsimmons—that the Companies felt that a conference would not achieve any change of attitude on the part of the management in the matter. The Union further stated that unless the nine members mentioned had joined the Union in the meantime, the Union members would be instructed not to resume duty after finishing time on Saturday, the 27th February. On the 29th February, the sixteen members of the Union did not turn up for work and a picket was placed on the plaintiffs' premises in the customary way.

On the 1st March the plaintiffs issued a summons, in the High Court, naming Mr. Fitzpatrick and the sixteen Union members as defendants, claiming an injunction restraining the defendants and each of them from attending at or near the plaintiffs' premises at 86/89 Talbot Street in the City of Dublin and at Beresford Lane off Lower Gardiner Street in the City of Dublin for the purpose of watching or besetting or picketing the said premises and from disturbing the plaintiffs in the conduct of the business carried on by them in the said premises and from interfering with or attempting to interfere with the plaintiffs, their employees or customers or any of them, in any way which would, or would tend to be, a nuisance or annoyance to the plaintiffs, their employees or customers or any of them. Damages and ancilliary relief were also claimed.

On the same day as the summons was issued it came before Mr. Justice Haugh, who granted an interim injunction in the terms of the claim as set out above and gave the plaintiffs liberty to serve the defendants with short notice of motion, returnable for the 7th March, 1960, for an interlocutory injunction. Mr. Justice Haugh also gave liberty to the plaintiffs prior to the service of the order upon the defendants to give notice thereof by telephone or telegram or both directed to the said defendants respectively. On the 8th March an order was made by Mr. Justice Teevan, sitting for Mr. Justice Budd, granting an interlocutory injunction in the above terms.

Teevan J. :—

I am satisfied that the main consideration which I should bear in mind in approaching the present application is the balance of the convenience and inconvenience which is likely to result to the parties from the granting or refusing of the order sought. In this respect, and indeed in regard to the question of the damage which is likely to result to the respective parties as a result of my decision on this application, Mr. McKenna's statement as to the intentions of his clients in regard to the members of their staff who have gone on strike simplifies my task very considerably.

Mr. FitzGerald, appearing for the defendants, submits that the legal position is crystal clear; that the facts before the Court bring the case within the judicial pronouncement in the decisions in this branch of law, and that there is nothing left which can be said to be in doubt or in issue in the case. He contends that it is clearly established that there is a trade dispute in existence, and that such being the case I should not continue the injunction.

In my opinion there are certain matters which can be made the basis of contentious issues in the case. The question of fact as to whether an agreement was made between the plaintiffs and the Union as outlined in the correspondence commencing with the letter of the 16th November, 1959, is in issue between the parties. There is also the question as to why only nine non-union members are singled out by the Union. There may be some explanation for this matter; however, the plaintiffs say that the matter warrants investigation at a full hearing of the action. Furthermore, legal issues of some importance, and which the plaintiffs seek an opportunity to debate at a full hearing of the case, may well arise for decision. Cogent arguments have been advanced for distinguishing the present case from that of Ryan v. Cooke and Quinn(1). However,Ryan v. Cooke and Quinn(1) is the law in this country, and it is not criticised in the subsequent cases. Some distinguishing features are mentioned in the judgment of O'Byrne J. in Riordan v. Butler and Others(2), but he does not disagree with the earlier decision. In addition, whether a trade dispute exists is always a question of fact, as is made clear by the decision of the House of Lords in Whitev. Riley(3). There are clearly some matters in issue between the parties.

On the other hand, the position as regards damages and the balance of convenience is made very simple. I have a clear undertaking from the plaintiffs that the members of their staff who are on strike will be taken back to their pre-strike jobs at their usual wages pending the hearing of this action, and that return to work will not be used in any way to prejudice the defendants' position in this action. It appears to me to be clear that a continuation of picketing pending the hearing of this action will cause grave and irreparable damage to the plaintiffs. The defendants if they avail of the offer will suffer no loss other than the loss of wages which they have already voluntarily suffered. Accordingly, the defendants are not prejudiced and are in a position to avoid all damage and inconvenience, if the injunction is continued. The plaintiffs, on the other hand, will suffer irreparable damage and considerable inconvenience if the present application is refused. I cannot see that these employees—the most junior of whom, in regard to length of time in employment with the plaintiffs, has waited seven years before feeling that he could not work with non-union workers—will suffer inconvenience or disturbance if I continue the injunction as requested, and whilst I do not base my decision on the attitude of the Union, I do not see that they will suffer serious inconvenience by the making of such an order. In my opinion justice demands that the parties should have an opportunity of having...

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