Picketing on highway of Islington estate agents’ offices prima facie unlawful, being of a substantial character and unauthorised by statute–Interlocutory injunction granted against property action group
In these
proceedings Mr Ronald Frederick Hubbard, Mr Christopher Eliades and Mr Robert
Malcolm Owen, trading as Prebble & Co, estate agents, plaintiffs in an
action alleging conspiracy, nuisance and defamation, sought an interlocutory
injunction restraining the defendants, Mr James Pitt and eight others, by themselves,
their servants or agents, from besetting the plaintiffs’ premises at 108-109
Upper Street, Islington; 82 Parkway, Camden; and 543 High Road, Tottenham,
London, by picketing on the highway, or otherwise interfering with the
plaintiffs’ use of the premises.
Mr A T
Hoolahan QC and Mr R A Rampton (instructed by B Greenby) appeared for the
plaintiffs, and Lord Gifford (instructed by Clinton Davis & Co and Seifert
Sedley & Co) represented the defendants.
Giving a
reserved judgment, FORBES J said that the case was concerned with the Islington
district of London. Like many other areas of the metropolis, this district
possessed dwelling-houses which presented an interesting social history in
miniature. Many of them were terraced houses built in Victorian days as family
homes. Over the years Islington became less fashionable. Many houses had become
subdivided into smaller units let at low rents. The tenants of these properties
were people with low incomes. More recently, however, Islington had returned to
fashion. Terraced houses with many tenants to each house had been converted
back to single-family homes. Restored and renovated, they had been sold to
people who could afford to buy such properties. Islington had thus become what
house agents called an ‘improving’ area. In addition there had been the
demolition of older properties and their replacement by modern blocks of flats
or offices. No doubt the conversion of down-at-heel tenanted properties to
well-maintained owner-occupied houses improved the aesthetics of the urban
scene. It also had the effect of drastically reducing the stock of
dwelling-houses available for letting at low rents. Still other effects had
followed. The high prices which restored and renovated houses fetched when they
could be sold with vacant possession represented a powerful incentive to
landlords of tenanted property to obtain possession from their tenants. Many of
those tenants had some security under various statutory provisions. Some
practices designed to obtain possession from tenants were classed as harassment
and were illegal. But there were other ways in which landlords could put
pressure on tenants which were not illegal. Some people regarded the use of
such practices, though legal, as morally unjustifiable.
It was
important to see the case against that background, for the defendants were
among a group of people concerned at the social problems caused by
redevelopment in Islington. It was a loosely-knit collection of individuals who
called themselves the Islington Tenants Campaign or Crusade. They felt deeply
about the activities of property developers in Islington; they also considered
that estate agents who assisted property developers were acting indefensibly.
The plaintiff firm was prominent in Islington, so the group decided to picket
its offices. On three consecutive days in March 1974 some of the group attended
on the public footway in front of the plaintiffs’ offices at 108-109 Upper
Street, Islington. They held placards and distributed leaflets. Both the
placards and the leaflets referred to the plaintiffs in opprobrious terms.
Subsequently pickets carrying similar placards and leaflets attended at the
same place on every Saturday. All the defendants had at various times been on
those picket lines. In those circumstances the plaintiffs had started an action
against the defendants. Their statement of claim disclosed three main heads of
claim: in conspiracy, nuisance and defamation. They (the plaintiffs) maintained
that the picketing was the result of a conspiracy, an agreement to do an
unlawful act. The unlawful act complained of was standing on the highway in
front of the plaintiffs’ premises with placards, and so on. That, said the
plaintiffs, was an unlawful user of the highway. The claim in nuisance also
involved unlawful user of the highway, but the plaintiffs accepted that they
must prove in the ordinary way that they as occupiers of premises adjoining the
highway suffered greater damage than the generality of Her Majesty’s subjects.
The claim in defamation was based on the terms of placards carried by the
pickets and of leaflets which they handed out. It was answered in the defences
by a plea of justification. So far as the other claims were concerned, the
defendants maintained that they had a lawful right to do what they were doing.
On the main
issues, the plaintiffs’ contentions were (1) that the highway was a piece or
strip of land dedicated to the use of the public over which each member of the
public had a right to pass or repass and do things reasonably incidental
thereto; (2) that any person who entered upon a highway and did or intended to
do anything which was not within the above right was a trespasser unless he
could show either that the special right was given in the grant of dedication
or had been authorised by statute; (3) that a trespasser might not necessarily
incur liability, for instance for public nuisance, unless the trespass
constituted an unreasonable user of the highway; (4) that there was no right to
use the highway to stand, or to stand in line, or to place placards thereon, or
to stop pedestrians or to picket, nor was there any right to do any act with a
view to compelling a shopkeeper, for instance, to comply with the demands of
the person using the highway. Four propositions were put forward on behalf of
the defendants: (1) that picketing was not unlawful or actionable unless it
took the form of a common law nuisance; (2) that for that purpose, and so far
as related to user of a highway, common law nuisance was equivalent or
synonomous with unreasonable user of the highway; (3) that the mode of user of
the defendants was not unreasonable; and (4) that if it
argument was represented by the following propositions: (1) that to amount to
common law nuisance on the highway, any conduct had to be unreasonable; (2)
that picketing was a reasonable user of the highway, because there was a
special kind of democratic right to picket which was analogous to the right of
free speech; and (3) that picketing only became unreasonable, and therefore a
nuisance, if it was accompanied by violence or intimidation or amounted to
physical obstruction of the highway.
He (his
Lordship) was of opinion that one might define the right of the public to use a
highway as a right to use it reasonably for passage and repassage and for any
other purpose reasonably incidental thereto. If an incidental use was
unreasonable in extent, it went beyond the purpose for which the highway was
dedicated and became a trespass and therefore unlawful. What conduct in
relation to a highway constituted a public nuisance? The defendants said that they were behaving
reasonably in the sense that they were not resorting to violence or intimidation
and did not station themselves so as completely to obstruct the footpath or the
entrance to the plaintiffs’ office. But one was not considering what was the
behaviour to be expected of a reasonable picket, but whether or not the
behaviour of those pickets amounted to an unreasonable user of the highway.
Leaving aside for the moment the proposition that there was a democratic right
to picket, the defendants based their claim that they had acted lawfully on the
assertion that they conducted themselves without violence or intimidation and
in a manner which did not obstruct the highway. But it was only necessary to
look at the photographs to see that the defendants by their mere presence might
well deter clients and potential clients of the plaintiffs from entering the
plaintiffs’ offices. It was not sufficient to say that the public could easily
get by the obstruction, which was one of the claims made by the defendants. The
law seemed to be clear: the public had a right to go on every part of the
highway, and any act which made it ‘less commodious’ (see Hawkins’s Pleas of
the Crown, 8th ed, book 1, chap 32, s 10) was a public nuisance unless it
could be said to be so fleeting and so inappreciable as to fall within the de
minimis rule. The defendants relied on the judgment of Moulton LJ in Ward
Lock & Co Ltd v Operative Printers Assistants (1906) 22 TLR 327,
in which it was held that there was no cause of action against a union which
stationed pickets outside a printing works, there being no evidence that any
annoyance or molestation took place. But it was quite impossible to say that
that case, which depended for its decision on the facts, was authority for the
wide proposition for which the defendants contended.
So far as the
general law of picketing was concerned, section 2 of the Trades Disputes Act of
1906 provided: ‘It shall be lawful for one or more persons, acting on their own
behalf or on behalf of a trade union or of an individual employer or firm in
contemplation or furtherance of a trade dispute, to attend at or near a house
or place where a person resides or works or carries on business or happens to
be, if they so attend merely for the purpose of peacefully obtaining or
communicating information, or of peacefully persuading any person to work or
abstain from working.’ The important
words were ‘in contemplation or furtherance of a trade dispute,’ for if
peaceful picketing was a lawful exercise when performed by any citizen, it
would be unnecessary to pass an enactment which legalised such an exercise only
when performed in contemplation or furtherance of a trade dispute. The
provisions of the 1906 Act were in their turn repealed by the Industrial
Relations Act 1971, and section 134 of that Act provided in somewhat more
extended terms an exemption for peaceful picketing from proceedings under an
earlier statute and from civil liability for tort; but again only when the
picket was conducted ‘in contemplation or furtherance of an industrial
dispute.’ The statutory position was now
governed by section 15 of the Trades Union and Labour Relations Act of 1974,
which broadly re-enacted the provisions of section 2 of the Act of 1906. He
(Forbes J) had reached the conclusion, in the light of the legislation referred
to, that the defendants’ conduct, which was not in furtherance of any trade dispute,
was not authorised by statute, amounted to an unreasonable use of the highway,
and was therefore unlawful unless it could be justified on some other
principle.
In these
circumstances, the defendants contended that it was the inalienable right of
anyone in a democratic society who felt deeply enough about a subject, or
disapproved strongly enough of someone’s behaviour, to picket any place,
whether public or private, in order to express those feelings and to draw
public attention towards a matter of substantial public interest and concern.
In support of that proposition they relied firstly on an analogy with the
principles of freedom of speech, and secondly, on a comparison of their actions
with those who, on occasions, picketed the Houses of Parliament or 10 Downing
Street or the Soviet Embassy, or those who, by way of demonstration, marched
through the streets before holding a public meeting outside the premises of
some organisation or power which had attracted particular approbation or
disfavour. But it was necessary to remember that there was no such thing in law
as unfettered freedom of speech. One’s right to say what one liked was
circumscribed by, for instance, the laws relating to sedition, contempt of
court, obscenity and defamation. Similarly, one’s right to be on the highway
was subject to the law relating to highways. Whereas the passage of years might
make a difference in the utterances which were regarded as obscene, defamatory,
contemptuous or even seditious, no such alteration was possible in the law of
highways: nothing was better settled than that it was impossible to obtain a
prescriptive right to obstruct a highway. The picketing of public buildings,
embassies, and so on, and demonstrations, were common and permitted: ergo, said
the defendants, they must be lawful. In examining this part of the case it was
necessary to make a distinction between the march or procession on the one
hand, and the assembly on the highway in front of some premises on the other.
It seemed to him (his Lordship) that while an orderly procession could be
regarded as a use of the highway for the purpose of passage, and therefore, so
long as it was reasonable in extent, a use which fell within the purposes of
dedication, the stationing of pickets on the public highway was not a legal
exercise of the right of passage and, if it rendered the highway less
commodious, amounted to a public nuisance. Further, it was no use adopting a
colourable pretence at passage by (for instance) having pickets move around in
a circle.
The true
reason why demonstrations involving stationary assemblies on the highway were
permitted was not that they were not illegal; it was that they were matters in
respect of which the remedies available were simply not put into operation. It
might well be that the occupiers of 10 Downing Street and the Soviet Embassy
regarded it as politically inexpedient to take action. It was quite wrong to
argue that a disinclination by those operating in the political field to set
proceedings in motion to restrain political conduct of a particular kind meant
that such conduct became clothed with a legality which it would not possess in
a non-political context. The law appeared to be clear: at common law the use of
the highway for picketing was illegal, as it was a use not referable to the
purposes for which the highway was dedicated. It was therefore at least a
trespass. It might also be an unreasonable user of the highway and therefore a
common law nuisance. That would always be a question of fact, and what was or
was not a reasonable user of the highway would be determined by reference to
the purposes for which the highway was dedicated. As picketing was a use of the
highway wholly unconnected with the purposes of dedication, and was, in fact,
designed to interfere with the rights of an adjoining owner to have unimpeded
access from the highway, it was likely to be found to be an unreasonable user
unless it was so fleeting and so insubstantial that it would be ignored under
the de minimis rule. By statute, picketing on the highway was
nevertheless legal so long as it was in contemplation or furtherance of a trade
dispute and satisfied the other provisions of section 15 of the Trades Union
and Labour Relations Act 1974. Put shortly, therefore, the use of the highway
for picketing was illegal unless (1) it was in contemplation or furtherance of
a trade dispute in the circumstances set out in the statute, or (2) it was
found as a fact it was insubstantial. The defendants were clearly not acting in
contemplation or furtherance of a trade dispute, and looking at the affidavits
and the photographs, he (his Lordship)
The photographs showed a fairly formidable array outside the plaintiffs’
office, and he had no doubt that the impact was intended to be, and was,
considerable. Prima facie, therefore, the activities of the defendants
in picketing the plaintiffs’ office were themselves unlawful as an unreasonable
use of the highway, and further, the defendants’ agreement to engage in those
activities amounted to an unlawful conspiracy.
There remained
two final matters. Had the plaintiffs sufficiently demonstrated that they had
suffered damage, so as to be entitled to an injunction, and should such an
injunction be granted as interlocutory relief?
The picket lines shown on the photographs would inevitably have had some
substantial effect on the resort by customers to the plaintiffs’ office, and a
regular picket for three hours every Saturday could not properly be called
fleeting or evanescent. The matter was really put beyond doubt, moreover, by
the terms of a leaflet used by the pickets. Then should an interlocutory
injunction be granted? On the material
before the court, and even on the basis of accepting nearly everything in the
defendants’ affidavits where there was conflict with the plaintiffs, it seemed
to him (his Lordship) that the plaintiffs would still be entitled to an
injunction if this were the trial of the action. The basis on which the court
would grant interlocutory injunctions was well settled. The principle was
usually referred to as that of the balance of convenience. He (Forbes J) would
emphasise that he had not been concerned with approval or disapproval of either
the defendants’ attitudes to housing questions in Islington or those of the
plaintiffs. The sole issue had been whether or not the use of the highway for
picketing which was not in contemplation or furtherance of a trade dispute was
a lawful operation.
The
plaintiffs were granted an injunction in the terms sought until trial of the
action or further order. Costs were reserved to the trial judge.
