Rookes v Barnard

Facts

Rookes was a draughtsman employed by a nationalised airline who left his trade union. The union and the airline had an informal closed-shop understanding, and union officials, including Barnard, threatened that the union's members would strike unless he was removed. The airline, fearing a strike, which would have breached the employees' contracts, dismissed Rookes with notice. He sued the union officials for the tort of conspiracy and intimidation.

History

A jury at trial found for Rookes and awarded substantial damages. The Court of Appeal allowed the defendants' appeal, and Rookes appealed to the House of Lords.

Issue

Whether a threat to break a contract, as opposed to a threat of violence, constitutes the tort of intimidation, whether the statutory immunity for trade disputes protected the defendants, and whether exemplary damages were available.

Held

Appeal allowed. The defendants were liable in tort for intimidation and the 1906 Act gave no protection. The award of damages was set aside because the trial judge had been wrong in directing the jury that exemplary damages could be awarded, and damages were to be reassessed.

Ratio

• The tort of intimidation includes a threat to commit a breach of contract, and a defendant who threatens a third party with an unlawful act in order to coerce that party into acting to the claimant's detriment is liable to the claimant.
• The statutory immunity in section 3 of the Trade Disputes Act 1906 for inducing a breach of contract in contemplation of a trade dispute does not extend to intimidation by threatening to break a contract.
• Exemplary damages may be awarded only in three categories: oppressive, arbitrary or unconstitutional action by servants of the government; conduct calculated by the defendant to make a profit exceeding the compensation payable to the claimant; and cases where statute authorises them.

The judgments

Key reasoning

• The wrong of intimidation lies in coercing a person by an unlawful threat to act to the claimant's injury, and there is no principled reason to limit unlawful threats to threats of violence or criminal acts.
• The statutory protection extends to inducing a breach of contract in a trade dispute but does not remove liability for threatening a breach of contract in order to coerce, since a threat of breach is itself unlawful.
• Exemplary damages are anomalous in a system that aims to compensate, and so should be confined to the situations in which they were established by authority before the modern law of damages developed.

Where it fits in the module

For FHS Tort, Rookes is the starred case on intimidation and a leading authority in the economic torts. It tests the boundaries of unlawful means and the relationship between economic torts and trade union immunities, and it started a long debate about whether exemplary damages belong in English law. Students should link it to the Trade Disputes Act 1965, which Parliament passed to reverse its effect on trade disputes, and to the later treatment of intimidation and unlawful means in OBG Ltd v Allan [2007] UKHL 21.

Criticisms

• The extension of intimidation to threats to break a contract blurred the line between the torts of inducing breach of contract and intimidation, and its relationship with unlawful means conspiracy remained unclear.
• The categories for exemplary damages are arbitrary and were drawn from earlier authority in a way that excludes cases of comparable outrageousness, and the limits were not followed in several other common law jurisdictions.
• The decision's result in the trade dispute context was swiftly reversed by Parliament, which suggests that the court gave insufficient weight to the policy of the trade dispute immunities.