Rookes v Barnard

The tort of intimidation is committed where a defendant, intending thereby to injure the claimant, uses a threat of an act unlawful against the person threatened, coerces that person to act, and causes loss to the claimant. The unlawful act may be a breach of contract as well as a crime or tort.

Sections 1 and 3 of the Trade Disputes Act 1906 do not protect intimidation by independently unlawful means. Exemplary damages at common law are confined to oppressive, arbitrary or unconstitutional governmental action and profit-seeking wrongdoing where compensation would not remove the wrongdoer's expected gain. Statutory authorisation forms an additional category.

The appellant resigned from his trade union while employed by B.O.A.C. The respondents, who were union officials or office-holders, threatened that union members would withdraw their labour unless B.O.A.C. removed him. A collective agreement, incorporated into the members' employment contracts, prohibited a strike and prescribed dispute-resolution machinery. B.O.A.C. therefore faced a threatened breach of contract. It suspended the appellant and later lawfully dismissed him on notice.

A jury found that each respondent participated in the conspiracy and threat, that the threat caused the dismissal, and that the appellant should receive £7,500. Sachs J held the respondents liable in intimidation. The Court of Appeal reversed that decision because it considered that intimidation did not extend to threats of breach of contract.

The House considered the scope of intimidation, the immunities in sections 1 and 3 of the Trade Disputes Act 1906, and the availability of exemplary damages.

1. Disposition. The House unanimously allowed the appeal, set aside the Court of Appeal's order and restored Sachs J's determination of liability. The award of damages could not stand because the jury had been misdirected about exemplary damages. The cause was remitted to the Queen's Bench Division for a new trial on damages only.

2. Intimidation. Lord Reid, Lord Evershed, Lord Hodson, Lord Devlin and Lord Pearce agreed that intimidation is a tort. A defendant may be liable where an unlawful threat coerces another person into taking lawful action which the defendant intends to cause, and which does cause, loss to the claimant. The claimant may be the person threatened or an intended third-party victim. The relevant dividing line is between threatened conduct which the threatener has a legal right to undertake and conduct which is unlawful against the person threatened.

3. Breach of contract as the threatened act. All five Law Lords held that a threat to break a contract can constitute unlawful intimidation. The claimant does not sue upon the threatened person's contract. His cause of action arises from the deliberate use of an unlawful threat to procure the intermediate person's submission and consequent injury to him. On the jury's findings, each respondent made an effective threat of a strike which would breach the employees' contracts, B.O.A.C. submitted to that threat, and the appellant lost his employment.

4. Trade-dispute immunities. Per Lord Reid, Lord Hodson, Lord Devlin and Lord Pearce, section 1 of the Trade Disputes Act 1906 removes liability founded merely upon combination; it does not protect an act, such as intimidation, which is independently actionable by an individual. Section 3 protects the specified torts of inducing breach of an employment contract and interference with trade or employment when they stand alone. Its words “on the ground only” do not license tortious means used to achieve those results. Lord Evershed expressed substantial doubts about the section 3 construction, but did not dissent from it.

5. Damages. Lord Devlin, whose analysis the other Law Lords accepted, distinguished aggravated damages, which remain compensatory, from exemplary damages, which punish and deter. At common law exemplary damages are confined to (i) oppressive, arbitrary or unconstitutional conduct by servants of government and (ii) wrongdoing calculated to secure a benefit which may exceed the compensation payable. Express statutory authorisation supplies any further category. The claimant must be the victim of the punishable conduct, the award must be restrained, and the parties' means are relevant. This private trade-union dispute fell within neither common-law category.

1. House of Lords: The appeal was allowed unanimously. The Court of Appeal's order was set aside, liability was restored, and the cause was remitted for a new trial on damages only.
2. Court of Appeal: The court reversed Sachs J, holding that intimidation existed as a tort but did not extend to a threat to break a contract.
3. Queen's Bench Division: Sachs J, sitting with a jury, held the respondents liable in intimidation. The jury awarded £7,500, including an unidentified exemplary element.