Scottish Court of Session Decisions

John Drennan, Ellangowan Road, Shawlands, Glasgow, and others, pursuers,

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brought an action against The Associated Ironmoulders of Scotland, registered pursuant to the Trades Union Acts 1871 to 1913, and also against the President, Vice-President, Secretary, and Treasurer of the Executive Council of the Association, and as such representing the Association, defenders. The conclusions of the summons were as follows—“( First) it ought and should be found and declared … that there is no warrant or authority in the rules of the Association and no agreement between the pursuers and defenders under or by virtue of which the decision of a majority of a shop either to work or not to work on any day is binding or obligatory on the minority of the shop; ( second) ( a) it ought and should be found and declared … that the resolution or pretended resolution made and passed by the South-Western Glasgow District Committee of the defenders' Association at a meeting held in Coat's Club Room, Cornwall Street, Glasgow, S.S., on or about May 12th, 1919, and bearing to be confirmed at a general meeting of the South-Western District of the defender's Association held in Neptune Rooms, Weir Street, Kingston, Glasgow, S.S., on or about 5th June 1919, and at a meeting of the executive council of said Association held in the society's rooms, 221 West George Street, Glasgow, on or about 18th June 1919, whereby it was resolved that the pursuers should each be fined in the sum of fifteen shillings, was ultra vires of the defenders' Association, and was and is now in all time coming null and void and of no avail; ( b) the defenders ought and should be decerned and ordained … to exhibit and produce … the minutes or other writings containing said resolution and the confirmation thereof by said general meeting and executive council, and the said resolution and all that has followed thereon ought and should be reduced … and the pursuers reponed and restored there-against in integrum; and ( c) the defenders ought and should be interdicted … from carrying into effect or acting upon or enforcing the said resolution; ( third) it ought and should be found and declared … that the secretary of the defenders' association is, in terms of rule 39, bound, in cases of appeal against the decision of a general meeting to the executive council, to prepare the case of appeal setting forth the grounds of decision of the general meeting, and to submit both that case and the appellants' case, lodged in terms of said rule, to the next general meeting; and ( fourth) it ought and should be found and declared … that where the question of imposing a fine on any member of the Association is to be considered by a district committee of said Association notice must be given to such member and an opportunity given to him of appearing and being heard in his defence, and that in respect that no notice was given to the pursuers of the proposal of said district committee to fine them, and that no opportunity was given to them of being heard in their defence, the resolution specified in the second conclusion hereof was and is now and in all time coming null and void and of no avail.”

The pursuers averred—“…(Cond. 2) In or about April 1918 the question as to whether the 1st of May of that and subsequent years should be observed as a general public holiday in the trade was considered. Under rule 43 the question was put to a vote of the trade, which is a vote of all members of the Association. By a majority it was decided that said day should not be observed as a holiday. In 1919 the same question arose, but no vote of the members was taken. Instead, a recommendation was made by the executive council that 1st May should be observed as a general holiday. (Cond. 3) Some of the shops in the Glasgow district took no action with regard to said recommendation and worked as usual on 1st May. Other shops took a vote on the subject. In most of the shops where a vote was taken it resulted by majorities in a decision to work. (Cond. 4) A vote was taken on 30th April 1919 in the shop of James Howden & Company, Limited. Of 128 members of the Association working in said shop 90 were present at the shop meeting. The result of the vote was that 50 voted for observing said day as a holiday and 40 voted against. The pursuers were amongst those who voted against observing the holiday. They were informed that the works would be open on 1st May as usual, and they accordingly all worked on that day.… (Cond. 5) In terms of the decision of a shop meeting held early in May the pursuers were reported to the district committee of the Association for acting against the shop vote, while others in the same district who acted in like manner were not reported. Without giving any notice to the pursuers, or allowing them an opportunity of being heard in their defence, the committee by the casting vote of the chairman at a meeting held in Coats Club Room, Cornwall Street, Glasgow, S.S., on 12th May 1919, passed a resolution fining the pursuers 15s. each for working on said day. The said resolution was ultra vires of the Association and of the district committee.… (Cond. 6) The pursuers being aggrieved at the arbitrary and illegal action of the district committee appealed to the first general meeting of the members of the southwestern district with the object of having the decision reversed and the fine cancelled. The general meeting held in Neptune Rooms, Weir Street, Kingston, Glasgow, S.S., on 5th June 1919, however, most wrongously and illegally confirmed the decision of the district committee. The pursuers were not allowed to vote on the question, but those members of the shop who had voted at the shop meeting for observing the holiday were allowed to vote. Had the pursuers been allowed to vote, or had the other members of the shop been prevented from voting, as they should have been, the decision of the district committee would have been reversed. Had the votes of all those who had taken part in the shop vote been excluded the decision of the district committee would have been reversed. (Cond. 7) The pursuers appealed to the executive council, and in so appealing conformed to the provisions of rule 39 under which it was provided that they should

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specify the ground of their appeal in writing. In the same rule it is provided that the secretary shall prepare a case showing the grounds of decision of the general meeting. This he failed to do. Further, in terms of said rule the question at issue fell to be laid before the next general meeting and reconsidered by them. This was not done. (Cond. 8) The appeal was considered by the executive council, although in view of the failure of the secretary to prepare a case as aforesaid it was incompetent for the executive council to consider the appeal. They refused most wrongously and illegally to interfere with the decision of the district committee and confirmed the same.… (Cond. 9) There is no rule of the Association to the effect that the majority of members in a shop are entitled to dictate to the minority. Nor is there any agreement between the pursuers and defenders to that effect. The pursuers were accordingly under no agreement to conform to the decision of the majority of those voting at the shop meeting. In other shops the minority did not conform to the decision of the majority, but no proceedings were taken nor fine imposed in these cases.… (Cond. 10) the pursuers are aggrieved by the illegal and unfair manner in which they have been treated. They have repeatedly requested the Association to cancel the resolution fining them, but the executive council have refused to do so. The pursuers are satisfied that the majority of the members of the Association would approve of the concellation of said resolution, but no method of testing the views of the members is open to the pursuers. Further, the pursuers have complained to the defenders of the irregularities which took place in considering their case, in particular with regard to the failure of the district committee to give the pursuers notice of the proposal to fine them, and with regard to the failure of the secretary to conform to the provisions of rule 39. The defenders dispute that irregularities have taken place, and maintain that everything was done in accordance with the rules. In these circumstances the pursuers have reluctantly been forced to raise the present proceedings against the Association to vindicate their rights.”

In their answers the defenders, inter alia, stated—“By rule 8 of the Association it is provided that should ‘any difference arise in this Association … between any member and the executive, such difference must be submitted to the decision of an arbitration committee on the following condition that both parties bind themselves in writing to agree to the decision of the arbitration committee.’ The said rules also provide for the constitution of the said arbitration committee and for the summoning of the members thereof. By rule 3, section 7, it is provided that the council shall have power in any cases that arise whereon the rules are silent of deciding every such case on its own merits, subject to the right of appeal to the arbitration committee. The pursuers have taken no steps to submit the difference between them and the executive to such an arbitration committee.”

The pursuers pleaded—“1. The resolution fining the pursuers having been illegal, oppressive, and ultra vires, decree should be pronounced in terms of the first and second conclusions of the summons. 2. The rules of the Association, and in particular rule 39, having provided the manner in which an appeal should be taken from the first decision of the general meeting, and the defenders and their officials having refused or failed to conform thereto, and maintained their right to do so, the pursuers are entitled to decree in terms of the third conclusion of the summons. 3. The defenders and their various committees being bound both under the rules and at common law to give notice to any member whom it is proposed to fine of the place and time where and when his case is to be considered, and to allow such member an opportunity of being heard in his defence, having refused or failed to give the pursuers notice of the proposal to fine them or allow them to be heard in their defence, and having nevertheless passed the resolution fining the pursuers, of which complaint is made, and having maintained their right to do so, decree should be pronounced in terms of the fourth conclusion of the summons. 4. The defences being irrelevant should be repelled.”

The defenders pleaded—“1. The action being incompetent should be dismissed. 2. The defenders being a trade union under the Trade Union Acts 1871 to 1913, the jurisdiction of the Court is excluded by ( a) section 4 of the Trade Union Act 1871, and ( b) section 4 of the Trade Disputes Act 1906, and accordingly the action should be dismissed. 3. Separatim—The action being excluded by the arbitration clause referred to in answer 8 should be dismissed. 4. The pursuers' averments being irrelevant and insufficient to support the conclusions of the summons the action should be dismissed. 5. The pursuers' averments, so far as material, being unfounded in fact, the defenders should be assoilzied. 6. The pursuer having been fined by the trade committee of the defenders' Association in accordance with the rules, the defenders are entitled to absolvitor.”

On 18th March 1920 the Lord Ordinary ( Sands) pronounced an interlocutor in which he sustained the third and fourth pleas-in-law for the defenders and dismissed the action.

Opinion.—“The object of this action is to have reduced a minute containing a resolution by a district committee of defenders' association whereby the pursuers were each fined fifteen shillings, and the minutes of a general meeting and of the executive council whereby the local committee's resolution was confirmed.

It appears that the pursuers had worked upon 1st May 1919, which was not a general holiday in the trade, but upon which day the majority in the shop in which they were employed had resolved to take a holiday. The minute of the committee which imposed the fine has now been produced. It appears

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that at a meeting of the committee a complaint was made in absence against the pursuers, and the statements of the complainers were received and recorded. Thereafter it was moved and seconded that the parties complained against should be summoned to next meeting. A counter motion was moved to fine them at once. Upon this, for some unexplained reasons, four out of six members of the committee present withdrew from the meeting, and another gentleman was impressed to make a quorum of committee. Thereupon the resolution to fine the pursuers was passed.

Next, the case of one of the pursuers, Robert Cuthill, who apparently was deemed an arch offender, was considered, and it was resolved to fine him £1, a motion to allow him a hearing being negatived by the casting vote of the chairman. Thereupon the minute naively proceeds—‘Parties were recalled'—the only parties being the complainers—‘and decision given.’

An appeal against the resolutions arrived at by these extraordinary proceedings was taken to a general district meeting, when apparently, after the pursuers had been heard, the resolutions were confirmed. A like fate befel an appeal to the executive council.

The question which the Court is called upon to consider in the first instance is not the regularity or the justice of the proceedings, but whether the matter is one in which the Court can interfere.

Under section 4 of the Trade Union Act 1874 the fine complained of is not enforceable. So far as legal enforcement goes the resolution is a nullity. The committee might as well have sentenced the pursuers to be banished or to be decapitated, the Court will take no account of the determination by way of enforcing it. The pursuers set forth no patrimonial injury other than this unenforceable fine. It may be that consequences may follow, or have followed its infliction or its non-payment, but these are not set forth, and it is not for the Court to hunt through the rules to find them, or to judge of their applicability in the circumstances. In these circumstances I am of opinion that an action to try the validity or regularity of the resolution cannot be sustained.

I am further of opinion that the action is excluded by rule 8, as the present case has developed into a dispute between the executive council and the pursuers as members, which falls to be determined by arbitration. The only case to which I was referred on this branch of the argument was M'Ellistrim v. Ballymacalligott Co-operative Agricultural and Dairy Society Limited, 1919 A.C. 548. That case is not, however, in point, for there, as pointed out by the Lord Chancellor, the question was involved of whether the Association was legally constituted. That case seems in harmony with Lord Skerrington's judgment in Johnston v. The Associated Ironmoulders of Scotland, 1911, 2 S.L.T. 478, and with M'Gowan v. City of Glasgow Friendly Society, 1913 S.C. 991. Other cases are— Heard v. Parkthorn, 1913, 3 K.B. 299; Andrews v. Mitchell,. 1905 AC 78; Catt v. Wood, 1910 AC 404; Cox v. Hutchison, 1910, 1 Ch. 513. Heard and Andrews are cases favourable to judicial interference. But in the case of Heard. Lord Justice Vaughan Williams, who gave the leading judgment, said—‘There was the suggestion made that even if the particular thing complained of was ultra vires and beyond the powers of the friendly society, yet if it was with reference to domestic matters and the internal administration of the business of the society, there could not be an injunction issued, even though it was asked for on the ground that it was ultra vires. I quite agree there. There are such matters—matters of internal administration—in respect to which there ought not to be an injunction granted. These things are properly left to be decided by arbitration.’ In this view I respectfully concur. I am unable to accede to the opposite contention, viz., that whenever the question at issue is whether certain actions were ultra vires, or whether certain procedure was regular and in accordance with the rules, the arbitration clause is excluded. The case of Andrews is different. There a member against whom some minor charge was being investigated was expelled without hearing upon a serious charge of which he had no notice. The House of Lords held that the arbitration provision did not apply to such a case and that the courts of law could give redress. The case is referred to by Mr Justice Warrington in Cox v. Hutchison, and by the Lord Chancellor (Loreburn) in Catt v. Wood. The ground upon which the decision is deemed to have proceeded is that the proceedings were contrary to ‘natural justice.’ In that respect, no doubt, Andrews has resemblance to the present case in one of its aspects. But when we get into the region of ‘natural justice’ regard must be had to the size of the matter. In the case of Andrews it was a question of the expulsion of a member for an alleged odious offence. I cannot think that the plea of ‘contrary to natural justice’ can be invoked as a ground of judicial interposition in disregard of an arbitration clause in relation to proceedings about small fines and other matters of administration not of capital importance. Further, in the present case, though denied the natural justice of a hearing by the committee, the pursuers before coming to the Court had recourse to two of the domestic tribunals—the general district meeting and the executive council—and apparently they stated their views of the matter to the former and made a written representation to the latter.

I shall accordingly sustain the third and fourth pleas-in-law for the defenders and dismiss the action, with expenses. I need not say that in doing so I proceed upon the statutory rules, and that my judgment is not incompatible with repugnance against such procedure as is disclosed in the minute complained of.”

The pursuers reclaimed, and argued—There was nothing in the rules of the Association to enable a majority in a shop to dictate to a minority, and the defenders'

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actings were ultra vires. The action was relevant. The Court had jurisdiction to determine whether the particular actings of an association were within the rules of the association. Section 4 of the Trade Union Act 1871 (34 and 35 Vict. cap. 31) was inapplicable— Yorkshire Miners' Association v. Howden, [1905] AC 256, per Lord Macnaghten at pp. 262, 263, and 266, and Lord Chancellor (Halsbury) at p. 260. The question in the present case was the same as in that case. The pursuers had both title and interest to sue— Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company, [1894] AC 535, per Lord Macnaghten at p. 565. An action to enforce an agreement was competent provided that it did not fall within one of the five statutory exceptions, and it was immaterial that indirectly one of the exceptions might be affected— Osborne v. Amalgamated Society of Railway Servants, [1911] 1 Ch 540, per Fletcher Moulton, L.J., at pp. 557 and 558; Kelly v. National Society of Operative Printers' Assistants, (1915) 84 L.J., 2236, 31 T.L.R. 632; Burn v. National Amalgamated Labourers' Union, [1920] 2 Ch. 364. With regard to the first conclusion of the summons, the pursuers had a patrimonial interest to obtain it because the decision of the majority of the shop deprived the pursuers of their right to work, and moreover it prevented them from fulfilling their contract with their employer. A declarator asserting a negative was competent— North British Railway Company v. Birrell's Trustees, 1918 S.C. (H.L.) 33, 55 S.L.R. 102, per Lord Dunedin at 1918 S.C. 47, 55 S.L.R. 104; Edinburgh and Glasgow Railway Company v. Meek, 1849, 12 D. 153, per Lord Jeffrey at p. 162. With regard to the second conclusion of the summons, the mere fact that the resolution related to a fine did not matter, because the pursuers had come under no agreement to pay it— Wilkie v. King, 1911 S.C. 1310, 48 S.L.R. 1057, per Lord President (Dunedin) at 1911 S.C. 1314, 48 S.L.R. 1059, and Lord Kinnear at 1911 S.C. 1316, 48 S.L.R. 1060. The third conclusion of the summons was founded on rule 39 of the Association and the fourth conclusion on “natural justice.” Rule 3, section 7, of the Association had no application. The council of the Association could not decide a case between parties to the effect of altering the constitution or rules of the Association, and could not impose a fine under that rule. The action was not excluded by rule 8 of the Association. The arbitration clause was only conditional on both parties binding themselves in writing to agree to the decision of the arbitration committee, which the pursuers had refused to do. Moreover, the rule referred to a dispute between any member and the executive, whereas the present dispute was between members and the Association, and accordingly did not fall under the rule— M'Gowan v. City of Glasgow Friendly Society, 1913 S.C. 991, 50 S.L.R. 783, per Lord Salvesen at 1913 S.C. 996 and 997, 50 S.L.R. 786; Johnstone v. The Associated lronmoulders of Scotland and Others, 1911, 2 S.L.T. 478, per Lord Skerrington (Ordinary) at p.479; M'Ellistrim v. Ballymacelligott Co-operative Agricultural and Dairy Society, [1919] A.C. 548, per Lord Chancellor (Birkenhead) at p. 561 and Lord Atkinson at p. 585; Heard v. Parkthorn, [1913] 3 KB 299, per Vaughan Williams, L.J., at p. 306, and Hamilton, L. J., at p. 312; Andrews v. Mitchell, [1905] AC 78.

Argued for the respondents—The action was irrelevant. The Trades Union Act 1871, section 4, struck at an attempt to enforce an agreement. The agreement which the pursuers were seeking to enforce was the general agreement which comprised the rules so far as bearing on the topic under consideration. It made no difference that the declarator was in the negative form. The pursuers could only ask the Court to declare the existence of an agreement as to restraint of trade, and the Court could not give them any remedy. The fine was purely voluntary and did not involve patrimonial rights which the Court could take cognisance of— Magistrates of Edinburgh v. Warrender, 1863, 1 Macph. 887, per Lord Neaves at 896; Aitken v. Associated Carpenters and Joiners of Scotland, 1885, 12 R. 1206, 22 S.L.R. 796, per Lord President (Inglis) at 12 R. 1212, 22 S.L.R. 800, and Lord Lee (Ordinary) at 12 R. 1208, 22 S.L.R. 797; Skerrat v. Oliver, 1896, 23 R. 468, 33 S.L.R. 323, per Lord President (Robertson) at 23 R. 490, 33 S.L.R. 336; Smith v. Scottish Typographical Association, 1919 S.C. 43, 56 S.L.R. 46, per Lord Mackenzie at 1919 S.C. 53, 56 S.L.R. 51; G. & J. Rae v. Plate Glass Merchants' Association, 1919 S.C. 426, 56 S.L.R. 315, per Lord Justice-Clerk (Scott Dickson) at 1919 S.C. 430, 56 S.L.R. 318; Yorkshire Miners' Association v. Howden ( cit.), per Lord Macnaghten at 262; Cope v. Crossingham, [1909] 2 Ch 148; Osborne v. Amalgamated Society of Railway Servants, [1911] 1 Ch 540 ( cit.), per Moulton, L.J., at 560, and Buckley, L.J., at 565, 569, and 570. In Kelly v. National Society of Operative Printers' Assistants the expulsion of the members involved property rights, and property rights were not struck at by the Trades Union Act 1871, sec. 4. The action was excluded by rule 8 of the Association. Consent in writing was not a condition-precedent to arbitration. It was simply a mode of setting the arbitration machinery to work. The rule required matters in dispute to be submitted to the arbitration committee, but to get redress the parties must bind themselves in writing. Where, as in the present case, there was a domestic scheme for settling disputes, the domestic tribunals must be exhausted before resort could be had to the Court— Andrews v. Mitchell; Cox v. Hutchinson, [1910] 1 Ch 513; Amalgamated Society of Railway Servants v. Osborne, [1910] A C 87, per Lord Macnaghten at 97; Catt v. Wood, [1910] AC 404; M'Gowan v. City of Glasgow Friendly Society.

On 25th November 1920 counsel for the defenders and respondents lodged a minute stating that the said Associated Ironmoulders of Scotland had in June 1920, along with other two societies, formed themselves into the National Union of

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Foundry Workers of Great Britain and Ireland, with their registered general office in Manchester and a branch office in Glasgow, and he craved the Court to sist the said National Union as defenders and respondents in room and place of the said Associated Ironmoulders of Scotland. The Court sisted the National Union of Foundry Workers of Great Britain and Ireland as craved.

At advising—