Grant of interlocutory injunction prohibiting picketing of Islington estate agents’ premises upheld on appeal by majority–Lord Diplock’s speech in the Cyanamid case applied–Per Stamp LJ: Zeal for preserving liberty to assemble, speak etc will not prevent a court from restraining a defendant from exercising those liberties in the plaintiff’s front garden
These were
appeals by James Michael Bousfield Pitt, Martin McEnery, Margaret Ryan and
David Sternberg, four of nine defendants to the original action, from an order
of Forbes J on November 11 1974 restraining them, until trial or further order,
on the application of the plaintiffs, three partners in the firm of Prebble
& Co, estate agents, from (1) besetting the plaintiffs’ premises in
Islington, Camden and Tottenham; (2) otherwise molesting the plaintiffs, their
servants, agents or clients or tenants of such clients or any other person
transacting or seeking to transact business with them at their premises; (3)
committing any nuisance against them in respect of the premises; and (4)
wrongfully interfering at the premises with their contractual relations with
their clients or any other persons and aiding and abetting others to do such
acts.
Mr Pitt and Mr
McEnery appeared in person. Mr D Turner-Samuels QC and Lord Gifford (instructed
by Clinton Davis, Simons & Co and Seifert, Sedley & Co) appeared for
Margaret Ryan and Mr Sternberg, and Mr A T Hoolahan QC and Mr J R A Rampton
(instructed by Basil Greenby & Co) represented the respondents.
Giving
judgment, LORD DENNING said that some years ago Islington was run down in the
world. Its houses were dilapidated, tenanted by many poor families. Recently,
however, it had become a desirable area. Property men had stepped in, bought up
the houses, and persuaded the tenants to leave. They had done the places up and
sold them at a profit. Now they were occupied by well-to-do single families. A
group of social workers deplored that development and tried to stop it. They
had conducted a campaign against it, the ‘Islington Tenants’ Campaign.’ They accused the property men of harassing
tenants so that they would leave. Such harassment was unlawful under section 30
of the Rent Act 1965. They also accused the property men of ‘winkling out’ the
tenants by offering them money to induce them to leave, or by other means. The
social workers had submitted a list of demands to local estate agents: ‘(1) No
property to be handled by estate agents if any tenant has been evicted or
harassed. (2) All houses for sale to be offered to sitting tenants before going
on the market. (3) All rent books to be properly filled in, according to the
law: tenants to be notified of any change of landlord. (4) No tenants to be
visited except by arrangement: all visitors to carry written authorisation and
to state their business. (5) All offers and requests by estate agents to
tenants to be in writing accompanied by a written statement of tenants’ legal
rights, approved by the Islington Tenants’ Association.’
If the tenants
had been subjected to any undue pressure by estate agents, those demands
did not seem to be very unreasonable. Some of them only stated what the law
already required. There might be some discussion of details, but otherwise the
demands seemed reasonable enough. The group had singled out as their chief
target Prebble & Co, a leading firm of estate agents in Islington. These
agents had shown themselves quite willing to discuss the demands, but the
social workers–as he (his Lordship) thought, quite unreasonably–had required
the partners to go to their premises for the meeting. So nothing was achieved.
Now came the crunch. The social workers had picketed Prebbles’ offices. The
word ‘picket’ was no doubt used because of the example of workers who, in a
trade dispute, picketed in support of their demands. But the ‘pickets’ here
consisted of a small number of men and women, mostly young, sometimes four and
occasionally up to eight. They stood about on the pavement in front of
Prebbles’ offices. They only did it for about three hours on Saturday mornings,
different persons on different Saturdays. They carried placards with the words,
‘Tenants watch out, Prebbles about,’ and, ‘If Prebbles in, you’re out.’ They also handed leaflets to passers-by which
explained their reasons for the picketing. The pickets behaved in an orderly
and peaceful manner throughout, and the picketing was arranged with the full
knowledge and agreement of the local police. But on June 26 1974 the partners
in Prebbles brought an action against 10 of the persons who had picketed their offices.
Forbes J held that the use of the highway for picketing was not a lawful
operation unless it was done in contemplation or furtherance of a trade
dispute. He granted an interim injunction restraining the defendants from
‘besetting’ the plaintiffs’ premises or aiding or abetting others to do so. The
defendants appealed. They said that they always had been anxious to do nothing
unlawful. They were ready to undertake not to obstruct, molest or intimidate
anyone and not to attend at or near the plaintiffs’ premises save for the
purpose of communicating information. So here was the point. The plaintiffs
said that the defendants were, by standing at or near the premises on Saturday
mornings with their placards, ‘besetting’ the premises and should be restrained
from doing so. The defendants said that they were doing nothing unlawful, but
only exercising a right of protest, and should not be restrained. What were the
restrictions placed by the law on such activities?
The first
possibility was libel. By the placards and leaflets, the defendants were
undoubtedly casting serious slurs on the plaintiffs. If the words were untrue,
the defendants could be restrained from repeating them. But they asserted that
they were ready to prove that the words were true. In such a situation the
courts never granted an interim injunction before the trial: see Crest Homes
Ltd v Ascott (The Times, February 5 1975). The principle on which
the court proceeded was stated many years ago by a strong Court of Appeal of
five in
the right of free speech was one which it was for the public interest that
individuals should possess and exercise without impediment so long as no
wrongful act was done, and that ‘unless an alleged libel is untrue, there is no
wrong committed, but on the contrary, often a very wholesome act is performed
in the publication and repetition of the alleged libel.’ The right of protest was one aspect of the
right of free speech. It was a right the defendants claimed. They said the
words were true and the matter was of public concern. They thought the tenants
should be warned about Prebbles’ activities. They had chosen their offices as
the most effective place at which to make their protest. He (his Lordship) saw
nothing in the law of libel to stop them, or not, at least, until there was a
trial of the issue whether the words were true or not.
Then there
were a number of possible offences under the law of the highway: an action for
a public nuisance, trespass to the highway, and conspiracy, with which Prebbles
charged the defendants in their statement of claim. As the argument had
developed, the plaintiffs had relied chiefly on the tort of private nuisance,
relying on the principle stated by Lindley MR in Lyons & Sons v Wilkins
[1899] 1 Ch 255 at 262 that ‘to watch or beset a man’s home with a view to
compel him to do or not to do what is lawful for him not to do or to do is
wrongful and without lawful authority unless some reasonable justification for
it is consistent with the evidence.’
That statement had not stood the test of time. Later authority showed
that watching or besetting was only wrongful if it was combined with other
conduct, such that the whole conduct amounted to a nuisance. It was so decided
seven years later in Ward, Lock & Co Ltd v Operative Printers’
Assistants’ Society (1906) 22 TLR 327, which was concerned with picketing
by trade unionists to get employers to pay union wages and employ union men.
The Court of Appeal made clear that its decision that the plaintiffs had no
cause of action was given according to the common law of tort. It was not
decided on any immunity given to pickets in trade union disputes but was a
decision on the legality of picketing at common law and covered picketing in
furtherance of disputes and causes other than trade disputes.
The root
question was, were the defendants guilty of a common law nuisance? There was no obstruction, no violence, no
intimidation, no molestation, no noise, no smells, nothing except a group of
six or seven people standing about with placards and leaflets outside the
plaintiffs’ premises, all quite orderly and well-behaved. That could not be a
nuisance at common law. The question could be tested by supposing that the
placards and leaflets had commended Prebbles and their services. No one could
then suggest that there was a nuisance at common law. The judge had held, on
what he said was ‘the sole question,’ that the use of the highway for picketing
which was not in contemplation or furtherance of a trade dispute was not a
lawful operation. That ruling was so significant that he (his Lordship) did not
think it should be allowed to stand. He saw no valid reason for distinguishing
between picketing in furtherance of a trade dispute and picketing for other
causes. Why should workers be allowed to picket and other people not? Picketing was lawful so long as it was done
merely to obtain or communicate information or peacefully to persuade, and was
not such as to submit any other person to any restriction on his personal
freedom.
The plaintiffs
had placed much reliance on the recent House of Lords decision in American
Cyanamid Co v Ethicon Ltd [1975] 2 WLR 316, which it was suggested
had revolutionised the approach to interlocutory injunctions. In Fellowes
& Son v Fisher [1975] 3 WLR 184 he (Lord Denning) had tried to
reconcile the House of Lords authorities on interlocutory relief. He would say
only that he did not think the present case came within the Cyanamid
ruling, and that the Cyanamid case itself recognised the fact that there
might be special factors operating in different circumstances. He thought the
present case one where the court should assess the relative strength of the
parties’ cases before deciding whether to grant an interlocutory injunction,
particularly where the ‘uncompensatable disadvantages’ were so evenly balanced.
His reasons were, first, that on the facts, so far as the picketing was
concerned, there was virtually no dispute. The only dispute was whether the
words on the placards and leaflets were justified or not. Secondly, if an
interlocutory injunction were granted, it would virtually decide the whole
action in favour of the plaintiffs, because the defendants would be restrained
until the trial–which might mean two years or more–from picketing the
plaintiffs’ premises, by which time the campaign would be over. Finally, the
plaintiffs’ real grievance was about the placards and leaflets. To restrain
those by an interlocutory injunction would be contrary to the Bonnard v Perryman
principle, which had been repeatedly applied. That case spoke of the right of
free speech. Here the court had to consider the rights to demonstrate and to
protest on matters of public concern. Those were rights which it was in the
public interest that individuals should possess, and indeed that they should
exercise without impediment so long as no wrongful act was done. It was often
the only means by which grievances could be brought to the knowledge of those
in authority–at any rate with such impact as to gain a remedy.
Our history
was full of warnings against suppression of those rights. Most notable was the
demonstration in St Peter’s Fields, Manchester, in 1819 in support of universal
suffrage. The Court of Common Council of London affirmed ‘the undoubted right
of Englishmen to assemble together for the purpose of deliberating upon public
grievances.’ Such was the right of
assembly. So also was the right to meet together, to go in procession, to
demonstrate and to protest on matters of public concern. So long as all was
done peaceably and in good order, without threats or incitement to violence or
obstruction to traffic, it was not prohibited. He (the Master of the Rolls)
stressed the need for peace and good order. Only too often violence might break
out. Then it should be firmly handled and severly punished. But so long as good
order was maintained, the right to demonstrate must be preserved. In the recent
report on contempt of court, the committee considered the Sunday Times
campaign about thalidomide and said that the issues were ‘a legitimate matter
for public comment.’ It recognised that
it was important to maintain the ‘freedom of protest on issues of public
concern.’ It was time for the courts,
too, to recognise that. They should not interfere by interlocutory injunction
with the right to demonstrate and to protest any more than they interfered with
the right of free speech, provided all was done peaceably and in good order. Mr
Pitt was ready to give an undertaking not to obstruct, molest or intimidate
anyone, and not to attend at or near Prebbles’ premises save for the purposes
of communicating information. The other defendants, it must be presumed, would
give like undertakings. On their being given, he (his Lordship) would allow the
appeal and discharge the injunction.
STAMP LJ said
that the statement of claim appeared to allege that the defendants were
committing the common law tort of nuisance. That was the issue that would fall
to be decided at the trial, when Prebbles would seek to bring themselves within
the judgments in Lyons & Sons v Wilkins. Much of Forbes J’s
judgment had been directed, not to the common law tort of private nuisance, but
to the extent of the right of the public to use a highway. He (his Lordship)
could not regard the judge’s conclusions of law as a satisfactory application
of the law to the facts that he assumed, but in the end the question was
whether it was right to grant an interlocutory injunction. The judge did not
have the advantage the court had had of reading Lord Diplock’s speech in the Cyanamid
case, but following the usual practice, reviewed the facts and the law and
concluded that Prebbles had made out a prima facie case, and then on
balance of convenience concluded that they should have the interlocutory
injunction which they sought. Judges were now, in his (Stamp LJ’s) judgment,
constrained by Cyanamid to adopt a course which was convenient and
formerly often adopted. In accordance with Lord Diplock’s speech, they must
first consider whether the material available to the court failed to disclose
that the plaintiff had any real prospect of succeeding in his claim for a
permanent injunction at the trial. If that were not so, they should go on to
consider the question of the balance of convenience.
Applying that
principle to the instant case, the material available to the court included an
affidavit by Prebbles’ senior partner stating that on March 16 1974 the
Islington Tenants’ Campaign organised a march through Islington which paused at
Prebbles’ Upper Street office, and on every Saturday since then (except two
when the offices were closed) their offices had been picketed by people who
were apparently members of the campaign. The picketing, he said, had seriously
interfered with their business; members of their staff and other persons had
been molested and intimidated by the pickets; and the pickets had displayed
placards and distributed leaflets which were seriously defamatory of Prebbles.
He had given 18 examples, from his own knowledge and from what he had been told
by the other partners and members of the staff, of the effect of the picketing
on Prebbles’ business and of the way members of the staff and others had been
molested and intimidated. Which side of the line the case fell must depend on
the facts found at the trial. Forbes J had remarked that looking at the
affidavits and the photographs he was quite unable to say that the picketing
could be regarded as de minimis. In his (Stamp LJ’s) view it was
impossible to assume that the trial judge might not, after hearing the oral
evidence, come to a similar conclusion. Accordingly it must be held that the
material available to the court did not, to apply Lord Diplock’s speech, fail
to disclose that the plaintiffs had any real prospects of succeeding in their
claim for a permanent injunction at the trial, and so, following Lord Diplock’s
counsel again, the court ‘must go on to consider whether the balance of
convenience lies in granting or refusing the interlocutory relief . . .
sought.’
On that issue,
he (his Lordship) could only conclude that if the plaintiffs were to succeed at
the trial in establishing their right to a permanent injunction, they would not
be adequately compensated by an award of damages for the loss they would have
sustained if the defendants were allowed to resume and continue until the trial
what was sought to be enjoined. He (Stamp LJ) could not doubt that damage might
be caused to the plaintiffs in the way of their trade. Nor was there reason to
think that the defendants would be in a position to pay any damages awarded. On
the other factors affecting the balance of convenience he agreed with Forbes J
that it was overwhelmingly in favour of granting an injunction. The Master of
the Rolls had not thought it right to treat the passages from Lord Diplock’s
speech in Cyanamid as of general application, and had pointed to a
passage observing that ‘there may be many other special factors to be taken
into account in the particular circumstances of individual cases.’ But Lord Diplock was not there referring to
special factors enabling the court to ignore the general principles laid down
in Cyanamid or to ignore in a case like the present the House of Lords’
admonition not to require of a party seeking an interlocutory injunction that
he should have made out a prima facie case. He (his Lordship) thought it
was the duty of the Court of Appeal to follow and apply the practice laid down
in Cyanamid. The House might depart from its own decisions, and if it
did so, all courts must follow the decision in later cases. In Kwik Lok
v WBW Engineers (March 10 1975, unreported), where it was not suggested
that Cyanamid was otherwise than applicable, the Court of Appeal
(Russell and Stamp LJJ), rejoicing that the House of Lords had authoritatively
and with one voice laid down the correct approach in interlocutory matters, had
unhesitatingly adopted that approach.
The temporary
interference with the right of free speech which might be effected in the
present case if, in the end, the derogatory material turned out to be true might
be regarded as minimal when weighed against the damage wrongly done to the
plaintiffs’ business if, in the event, the derogatory material turned out to be
defamatory and untrue. Judges might ardently believe in the liberty to speak,
the liberty to assemble and the liberty to protest or communicate information.
But the necessity to preserve those liberties would not constrain the court to
refuse a plaintiff an injunction to prevent the defendants from exercising
those liberties in his front garden. The injunction was no wider than was
necessary to give the plaintiffs the protection which they ought to have. He
(his Lordship) would therefore dismiss the appeal.
Agreeing with
the dismissal of the appeal, ORR LJ said that he had no doubt that it was the
court’s duty to follow the Cyanamid case.
The appeal
was dismissed. Leave to appeal to the House of Lords was refused.
