Brimelow v Casson [1924] 1 Ch 302
Chancery Division, 21 December 1923 — justification for inducing breaches of contract.
Facts
Brimelow managed a touring theatrical company. Its chorus performers worked under weekly arrangements providing for a percentage of net takings, a guaranteed minimum of £1 10s a week, one week’s unpaid rehearsal and no payment when there was no performance. In practice, the performers never received more than the guaranteed amount.
The Actors’ Association sought a minimum of £2 10s a week for chorus performers. This was a standard promoted by the association, rather than a statutory minimum wage. Its concern was that inadequate earnings left young women unable to support themselves and could drive them to prostitution.
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The Joint Protection Committee brought together representatives of five theatrical associations, including employers as well as trade unions. Casson represented the Association of Touring Managers; the other committee defendants were Voyce and Fry. The committee investigated Brimelow’s company and sought to prevent him touring unless he paid the association’s minimum.
Fry persuaded Kennedy, who owned theatres at Dudley and West Bromwich, not to honour his bookings with Brimelow. No threats were made to Kennedy. The committee defendants admitted that they intended to persuade theatre owners both to break existing contracts and to refuse new bookings until Brimelow changed his pay arrangements.
Brimelow sought an injunction against the committee defendants and damages for breach of contract from Kennedy.
Issues and decision
The principal question was whether the interference with Brimelow’s contracts was justified in the particular circumstances. The defendants also relied on the Trade Disputes Act 1906. Kennedy had a separate defence arising from how Brimelow had obtained the bookings.
Russell J dismissed the action with costs. Casson, Voyce and Fry established justification for their intervention. The claim against Kennedy failed because Brimelow had obtained the contracts through a statement which he knew was false.
Why the interference was justified
Russell J accepted that intentional interference with contractual rights could be actionable unless sufficient justification existed. He drew on the earlier authorities, including Glamorgan Coal Co v South Wales Miners’ Federation, which required the court to examine the circumstances rather than apply a single exhaustive definition of justification.
Relevant considerations included the nature of the contract, the parties’ positions, the reasons for the breach, the means used to procure it, and the intervener’s purpose and relationship to those involved.
The judge found that the harmful consequences which the associations feared from inadequate pay were present in Brimelow’s company. His conclusion rested on the evidence before him, including the precarious conditions of the performers and the circumstances of particular young women. It was not simply an assumption that every member of the company had resorted to prostitution.
The defendants sought to protect performers and the theatrical profession. On the facts, persuading theatre owners to withhold their premises was the only means available to stop the underpayment. Russell J considered that the defendants owed a duty to their calling and its members to take the necessary peaceful steps. Their conduct was therefore justified.
The duty discussed in this reasoning was part of the justification for interference with contracts. It was not a finding that the defendants owed a negligence duty of care, or a general permission to procure breaches whenever an outsider considered a contract unfair.
The Trade Disputes Act defence
The successful justification defence made it unnecessary to decide the statutory defence. Russell J nevertheless indicated his views in case the matter went further.
He considered theatrical performances for profit capable of being a trade or industry under the Act, and accepted that there was a dispute about wages between the Actors’ Association and Brimelow. The presence of employer representatives on the committee did not change its nature.
However, he also considered that section 3 did not protect the procurement of a breach of a contract which was not a contract of employment. The theatre-booking contracts raised that difficulty. The decision in favour of the committee defendants consequently rested on justification, without needing the statutory defence.
Why Kennedy was not liable
Before the theatre contracts were made, Brimelow was asked about his position with the association. He said that everything was satisfactory and that no association had approached him while he had been touring. The judge found that statement knowingly false and that it had brought about the contracts. Brimelow’s counsel accepted that, on that finding, he could not recover against Kennedy.
