Murtagh Properties Ltd v Cleary

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 06 March 1972
• Date: 06 March 1972
• Docket Number: [1971. No. 4031 P.]

[1971. No. 4031 P.]

Murtagh Properties v. Cleary

MURTAGH PROPERTIES LIMITED

Plaintiffs

and

MICHAEL CLEARY

Defendant.

Injunction - Picketing - Trade dispute - Interlocutory injunction - Public-house - Objection by trade union to employment of women - Whether prima facie evidence of facts establishing defendant's right to picket plaintiffs' premises - Equality before the law - Right to earn a livelihood - Trade Disputes Act,1906 (6 Edw. 7, c. 47), ss. 2, 3, 5 - Constitution of Ireland,1937, Articles 40, 45.

Motion on Notice.

The facts have been summarised in the head-note and they appear in the judgment of Kenny J., post. On the 18th November, 1971, the plaintiffs issued a plenary summons in which they claimed a perpetual injunction to restrain the Irish National Union of Vintners, Grocers and Allied Trades Assistants, and the defendant, Cleary, from picketing or authorising the picketing of the plaintiffs' public house. The plaintiffs were members of the Licensed Grocers and Vintners Association, and the Union was a registered trade union and the holder of a negotiating licence under the Trade Union Act, 1941. On the 19th November the High Court (Kenny J.) granted the plaintiff an interim injunction. By notice of motion dated the 23rd November the plaintiffs applied for an interlocutory injunction, pending the hearing of the action, to restrain the defendant Cleary from authorising the further picketing of the plaintiffs' premises. On the 6th December the plaintiffs discontinued their claim against the Union.

The plaintiffs' application for an interlocutory injunction was heard on the 25th January, 1972, with two similar applications in two other actions (Nos. 4032 P and 4033 P of 1971) and the judgment of Kenny J., post, ruled the other two applications also. The issue in the plaintiffs' application involved the consideration of a conflict between a right arising under the Trade Disputes Act, 1906, and a right guaranteed by the Constitution of Ireland: see alsoEducational Company of Ireland Ltd. v. Fitzpatrick (No. 2)1 and Crowley v. Cleary.2

The order made by Kenny J. on the 6th March pursuant to his judgment restrained the defendant Cleary "until after judgment in this action or until further order from authorising or directing anyone to attend at or near the plaintiffs' premises known as 'O'Byrne's' at 2/5 Rathgar Road in the City of Dublin for the purpose of watching or picketing the same." On the 20th November, 1972, by consent of the parties Kenny J. granted the plaintiffs a perpetual injunction in the general terms of the order of the 6th March.

The defendant was the secretary of a trade union which represented bar waiters and others who were employed in public houses. The plaintiffs carried on business as publicans in a public house in Dublin and employed some part-time bar waitresses to serve customers on the public's side of the bar counter in the public house. The trade union objected to the employment of women and contended that such employment was a breach of an agreement between an employers association and the trade union. The defendant authorised members of the union to picket the plaintiffs' public house in furtherance of the dispute and the plaintiffs, having sued the defendant, applied to the High Court for an interlocutory injunction restraining the defendant from authorising the further picketing of the public house pending the hearing of the action.

Held by Kenny J., in granting an interlocutory injunction, 1, that the provisions of Article 40, s. 1, of the Constitution were not applicable in the circumstances.

2. That, although Article 45 of the Constitution prevented the courts from questioning the application of the principles of social policy there stated, it was permissible for the Court to examine the provisions of that Article to discover whether they recognised any relevant "personal rights" within the meaning of Article 40, s. 3, of the Constitution; and that such examination showed that one of the personal rights of a citizen was a right to earn a livelihood.

Ryan v. The Attorney General [1965] I.R. 294 considered.

3. That the picketing, although taking place in furtherance of a trade dispute, appeared to be unlawful on the ground that it was designed to compel the plaintiffs to dismiss the bar waitresses because they were women, in breach of their said personal rights under the Constitution.

Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) [1961] I.R. 345 applied.

Cur. adv. vult.

Kenny J.:—

In these three15 actions the plaintiffs, who are licensed vintners, seek in junctions to restrain the defendant, who is the secretary of the Irish National Union of Vintners, Grocers and Allied Trades Assistants, from authorising picketing of the plaintiffs' premises in Dublin where they carry on their business. Two of the plaintiffs are members of the Licensed Grocers and Vintners...