Ferguson v O'Gorman and Others

• Jurisdiction: Ireland
• Judgment Date: 13 December 1937
• Date: 13 December 1937
• Court: Supreme Court (Irish Free State)

Supreme Court.

Supreme Court.

Supreme Court.

Ferguson v. O'Gorman and Others.

L. L. FERGUSON, LIMITED

Plaintiffs

and

THOMAS O'GORMAN and OTHERS

Defendants.

Trade union - Trade dispute - "Peaceful picketing" - Trade Disputes Act,1906 (6 Ed. 7, c. 47), sect. 2 - Meaning of the words "attend at or near" - Whether prolonged and continuous picketing protected by the Trade Disputes Act, 1906 - Highway - Rights of adjoining landowners ad medium filum viae - Whether "peaceful picketing" thereon a trespass or a lawful user of that portion of highway.

Witness Action.

By an agreement, dated the 24th day of June, 1934, James W. Erwin and Arthur Stanmore agreed to purchase from the executors of the late Boniface de Hosson, who died on the 19th day of December, 1932, the premises No. 3, Winthrop Street, Cork, and also the business of hairdresser and manufacturer of perfumery formerly carried on for several years by the deceased in the said premises, which were held by him under an indenture of lease, dated the 16th day of September, 1867, for the term of 96 years from the 29th day of September, 1856. The said James W. Erwin and Arthur Stanmore entered into possession on the 1st day of July, 1934, and proceeded to carry on the said business. Shortly after commencing business a dispute arose between the local branch of the Irish Union of Distributive Workers and Clerks, of which several of the defendants were members, and the defendant Thomas O'Gorman was secretary, and the proprietors, in relation to the employment of non-union and non-national labour. On the 11th day of August the dispute was aggravated by the dismissal of the defendant Jerome Busby, and on the 16th day of August the proprietors served notice terminating the employment of their staff on the 25th day of August, stating that they were closing down their business for good; but before closing down, they informed the staff that a company was being formed to take over their business and that application for re-employment by the company would be favourably considered. On the 24th day of August the executive committee of the trade union demanded the re-instatement of Busby, threatening to call out on the 27th of August such of the staff as were members of the union. This demand not being acceded to, one or two members of the union commenced to picket the premises in the interval between the 27th of August and the re-opening on the 14th of September, during which time the proprietors endeavoured to carry out certain repairs to the premises. The plaintiff Company, which was incorporated on the 14th of September with the principal object of acquiring the said business and premises, entered into an agreement on the 15th of September with the proprietors for the purchase of same. The sale was completed on the 18th of March, 1935, but already, on the date of incorporation and pending the completion of the sale, the plaintiffs, by arrangement with the vendors, entered into possession and commenced business, Erwin being employed by them as general manager and Stanmore as one of the staff. On commencing business the plaintiffs also took into their employment several persons who had been previously employed in connection with the business, but none of the defendants were ever in their employment or applied to them for employment.

The following additional facts were pleaded in the statement of claim:—

"8. Ever since the plaintiffs commenced business the said premises No. 3 Winthrop Street have been 'picketed' during business hours by members of the said Union, and the defendants (other than the said Thomas O'Gorman) have taken a prominent part in the picketing. The usual business hours of the plaintiffs are from 9 a.m. to 6.30 p.m. during week-days except on Wednesdays when the working hours are from 9 a.m. to 1 p.m. and on Saturdays from 9 a.m. to 7 p.m. In addition a male member of the staff is required to work from 8.30 a.m. to the usual time and this duty is undertaken by the staff in turns. [A mistake was made in numbering the paragraphs of this statement of claim; there was no paragraph 9.]

10. The picketing was carried out in pursuance of an alleged strike, and the pickets usually consisted of several persons, including the defendants other than the said Thomas O'Gorman, who kept walking up and down immediately in front of the plaintiffs' premises in processional order two abreast generally on the carriage way. The members of the picket usually carried placards bearing printed notices with the words "Strike on here," "Dispute with Ferguson & Maison Boni," "Protest against unjust dismissal," and other phrases, with a view to conveying to members of the public, including the plaintiffs' customers and employees, that there was a strike, and that the persons on strike objected to customers and employees resorting to plaintiffs' premises during the progress of the strike.

11. The defendant Thomas O'Gorman, in his capacity as Secretary of the Local Branch of the Trades Union, was the leader of the defendants and other members of the Union, and directed the defendants and others to picket the plaintiffs' premises in the manner aforesaid, and he claimed, and claims, on behalf of the defendants and the Trades Union, the right to picket the plaintiffs' premises in the manner aforesaid, and he also claims the right on the part of the picket to convey by word of mouth or by placards or notices to all persons resorting to the plaintiffs' premises the objection of the members of the picket to their doing business with the plaintiffs so long as the efforts of the picket are confined to peaceful persuasion, and he also claims the right to use for that purpose the public highway immediately in front of the plaintiffs' premises even if the ownership of the soil of the highway is vested in the plaintiffs. The defendants and those associated with them in picketing did continually every day and are still continuing to do all the acts and things which the defendant Thomas O'Gorman claimed the right to do as aforesaid, and the acts above complained of were done in assertion of these alleged rights, and the defendant Thomas O'Gorman challenged the plaintiffs to prevent such picketing and other acts above referred to in a Court of Law.

12. By reason of the picketing of the premises in the manner aforesaid the defendants were successful in preventing persons from taking employment with the plaintiffs and in preventing customers from resorting to the plaintiffs' premises and in preventing persons from resorting to the plaintiffs' premises for other business purposes such as the delivery of goods or the doing of other necessary work.

13. [The said lease of 16th September, 1867, under which the plaintiffs held the premises, was recited.]

14. It is part of the plaintiffs' claim that the description of the premises in the said lease operated in law to vest in the lessee the soil of the highway ad medium filium viae, and the plaintiffs further say that the defendants by parading up and down immediately in front of the said shop and picketing the plaintiffs' premises in the manner aforesaid were trespassing on property of which the plaintiffs were in possession and occupation.

15. The plaintiffs further say that the members of the picket, including the defendants, shouted in chorus whenever any person entered or left the said shop and shouted in such a way as to frighten and over-awe the persons entering or leaving, and some of the defendants took notes of the persons entering and leaving the said premises or pretended to do so with a view to intimidating and frightening such persons and preventing them transacting business with the plaintiffs, and members of the picket frequently left the carriage way and got on to the foot path and shouted and otherwise interfered with and intimidated customers and others entering and leaving the said premises.

16. The defendants and other members of the picket also by shouting and other wrongful acts intimidated and prevented people from delivering goods to the plaintiffs' premises, as a result of which the plaintiffs were unable to obtain delivery of the goods.

17. On occasions the picket consisted of an excessive number of persons and at all times the members of the said picket by walking up and down outside the plaintiffs' premises constituted an obstruction to the plaintiffs' premises and prevented people from crossing the street and entering the plaintiffs' premises and prevented cars and vehicles from pulling up outside the plaintiffs' premises and by their actions, words and conduct constituted a nuisance and prevented the plaintiffs from carrying on their business.

18. The plaintiffs say that the defendants unlawfully watched and beset the plaintiffs' premises and further that the said wrongful acts complained of were done by the defendants in pursuance of a conspiracy between the defendants and other persons associated with them to injure the plaintiffs and prevent them carrying on their business. The said wrongful acts are still continuing.

19. The defendant Jerome Busby since the institution of these proceedings has opened a hairdresser's establishment in the same street, and has taken into his employment and still employs several of the other defendants, but the picketing of the plaintiffs' premises is nevertheless continued by others associated with or co-operating with the defendants and in pursuance of the said conspiracy and for the purpose of furthering the objects thereof, one of which was to enable the defendant Jerome Busby and those employed by him to capture the trade and goodwill of the plaintiffs."

The plaintiffs claimed:—

1. A declaration that the property comprised in and demised by the said lease includes the soil of the highway immediately in front of the said premises ad medium filum viae.

2. A declaration that the defendants' claim to use the highway for the purpose of picketing the plaintiffs'...