''Rookes v Barnard''

964 Year 964 ( CMLXIV) was a leap year starting on Friday (link will display the full calendar) of the Julian calendar. Events Byzantine Empire * Arab–Byzantine War: Emperor Nikephoros II continues the reconquest of south-eastern Anatoli ...

AC 1129 is a

UK labour law United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK can rely upon a minimum charter of employment rights, which are found in Acts of Parliament, Regulations, common law and equit ...

and

English tort law English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requi ...

case and the leading case in

English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...

punitive damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...

and was a turning point in judicial activism against trade unions. The case was almost immediately reversed by the

Trade Disputes Act 1965 The Trade Disputes Act 1965 is an Act of Parliament of the United Kingdom, which supported closed shop practices in industrial relations. The principal effect was to reverse the legal position established by '' Rookes v Barnard'' in 1964, in which ...

insofar as it decided on economic torts, although the law on punitive damages remains authoritative.

Facts

Douglas Rookes was a draughtsman, employed by

British Overseas Airways Corporation British Overseas Airways Corporation (BOAC) was the British state-owned airline created in 1939 by the merger of Imperial Airways and British Airways Ltd. It continued operating overseas services throughout World War II. After the passi ...

(BOAC). He resigned from his union, the Association of Engineering and Shipbuilding Draughtsman (AESD), after a disagreement. BOAC and AESD had a

closed shop A pre-entry closed shop (or simply closed shop) is a form of union security agreement under which the employer agrees to hire union members only, and employees must remain members of the union at all times to remain employed. This is different fro ...

agreement, and AESD threatened a strike unless Rookes resigned also from his job or was fired. BOAC suspended Rookes and, after some months, dismissed him with one week's salary in lieu of proper notice. Rookes sued the union officials, including Mr Barnard, the branch chairman (also the divisional organiser Mr Silverthorne and the shop steward Mr Fistal). Rookes said that he was the victim of a tortious intimidation that had used unlawful means to induce BOAC to terminate his contract. The strike was alleged to be the unlawful means.

Judgment

At first instance, before Sachs J, the action succeeded. This was overturned in the Court of Appeal. The House of Lords reversed the court of appeal, finding in favour of Rookes and against the union. Citing a case from the 18th century entitled ''Tarelton v M'Gawley'' (1793) Peake 270 where a ship fired a cannonball across the bow of another, Lord Reid said the union was guilty of the tort of intimidation. It was unlawful intimidation "to use a threat to break their contracts with their employer as a weapon to make him do something which he was legally entitled to do but which they knew would cause loss to the plaintiff". A corollary to the main issue in the case, but of greater lasting importance, was

Lord Devlin Patrick Arthur Devlin, Baron Devlin, PC, FBA (25 November 1905 – 9 August 1992) was a British judge and legal philosopher. The second-youngest English High Court judge in the 20th century, he served as a Lord of Appeal in Ordinary fro ...

's pronouncements on when punitive damages are applied. The only three situations in which damages are allowed to be punitive, i.e. with the purpose of punishing the wrongdoer rather than aiming simply to compensate the claimant, are in cases of, #Oppressive, arbitrary or unconstitutional actions by the servants of government. #Where the defendant's conduct was "calculated" to make a profit for himself. #Where a statute expressly authorises the same. This aspect of ''Rookes v Barnard'' has not been followed in

Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...

New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...

Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...

.See ''Australian Consolidated Press Ltd v Uren'' (1967) 117 CLR 221, where the Privy Council upheld the Australian rejection of ''Rookes v Barnard'' In '' Broome v Cassell'',

Lord Denning Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when ...

in the Court of Appeal called Lord Devlin's approach "unworkable" and suggested it was decided ''

per incuriam ''Per incuriam'', literally translated as "through lack of care" is a device within the common law system of judicial precedent. A finding of ''per incuriam'' means that a previous court judgment has failed to pay attention to relevant statutory pr ...

''. He was strongly criticised in the House of Lords, which upheld ''Rookes v Barnard''.

Significance

The case was met with immediate outrage for creating, or reviving, economic torts as a weapon to undermine the right to strike. It was reversed by the

Notes

References

LH Hoffmann Leonard Hubert "Lennie" Hoffmann, Baron Hoffmann (born 8 May 1934) is a retired senior South African–British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009. Well known for his lively decisions and willingness to break ...

, 'Rookes v Barnard' (1965) 81 LQR 116, regarding punitive damages * *E. McGaughey, ''A Casebook on Labour Law'' (Hart 2019) ch 12, 567 {{Law English tort case law United Kingdom labour case law 1964 in England House of Lords cases 1964 in case law 1964 in British law United Kingdom trade union case law

Facts

Judgment

Significance

See also

Notes

References