Bonsor v Musicians Union

- Nov. 7. Lorp Morton or HEnryron stated the facts and
continued: My Lords, the Master of the Rolls and Jenkins L.J.
were of opinion, rightly, in my view, that Kelly v. National
Society of Operative Printers' Assistants' was binding on the
Court of Appeal, but Denning L.J. felt himself entitled to
disregard that case and delivered a judgment in favour of Mr.
Bonsor, which I have found of great assistance. It is the dis-
missal of the cross-appeal which gives rise to the appeal now
before your Lordships' House.

Mr. Bonsor died on March 4, 1954, and the present appellant
is 'his widow and legal personal representative. On August 5,
1954, it was ordered that these proceedings should be carried on
between the present appellant and the respondent union.

It is convenient to turn at once to Kelly's case.t The
plaintiff was a printer's assistant, and the defendant was a trade
union registered under the Trade Union Acts. The plaintiff
claimed a declaration that a resolution expelling him from
membership of the union was ultra vires and void, an injunction
restraining the union from enforcing the said resolution, and
damages. The case was first heard in the county court and
there the plaintiff obtained a declaration and injunction as asked
and £68 damages for loss of employment owing to his expulsion
from the union. It is unnecessary for the present purpose to

51 [1929] 2 Ch. 58. 1 (1915) 84 LJ.K.B. 2236; 31

52 [1901] A.C. 426. T.L.R. 682.
59 [1910] A.C. 87.

A.C. AND PRIVY COUNCIL.

121

refer to the proceedings on appeal in the Divisional Court, but H. L. (E.)

when the case reached the Court of Appeal that court upheld
the grant of the declaration and injunction but held that the
plaintiff could not recover any damages. The union was ordered
to pay the costs of the appeal.

My Lords, I can see no ground upon which Kelly's case ! can
be, distinguished from the present case, but I am of opinion that
Kelly's case' was wrongly decided in so far as the plaintift's
claim for damages was rejected.

I think the basis of the decision appears most clearly in
the following passage from the judgment of Phillimore L.J.?:
""Damages for tort cannot be given since the Trade Disputes
"Act, 1906 (6 Edw. 7, c. 47). These damages can only
""be supported as damages for breach of contract. With
""whom did the plaintiff contract? Not, I think, with the
""trade union, which, as Lord Macnaghten says in Russell v.
""Amalgamated Society of Carpenters and Joiners,* is merely
""an unincorporated society of individuals. I think that the
'"' plaintiff contracted with each and every of the members,
"and if anybody has broken any contract with him, it is each
""and every member. Further, the officers of the society are
""agents for him quite as much as for the other members, and
''if he sues the trade union for what it has done, he is suing
'"himself among others. J am not sure whether, according to
'the very loose form in which the judgment is drawn up, there
"is any judgment against the trade union as such. But if
'' there is, it is open to these objections. I also think that there
'"ean be no charge upon the funds of the society for any breach
'of contract. . . ."' My Lords, in my opinion the action in
Kelly's case* was an action by a member against his union as
an entity recognized by the law and distinct from the individual/,
members thereof, for breach of a contract between the plaintiff.
and his union. If this is so, the foundation for the refusal to
award. damages is gone.

I base the view which I have just expressed upon a line of
authorities of which the first is the well-known case of Taff Vale
Railway Co. v. Amalgamated Society of Railway Servants.°
In that case it was held by this House that a trade union
registered under the Trade Union Acts, 1871 and 1876, could

1 84 L.J.K.B. 2236. 4 84 L.J.K.B. 2236.
2 Ibid. 2238. 5 [1901] A.C. 426; 17 T.L.R.
3 [1912] A.C. 421, 429; 28 T.L.R. 698.

276.

i
|

1955

Bonsor
v.
MUsIcIANS'
UNION.

Lord Morton
of Henryton.

122

isl, 10% X03)
1955

Bonsor
0.
MUSICIANS'
UNION.

Lord Morton
of Henryton.

HOUSE OF LORDS [1956 |

be sued in tort for the wrongful conduct of its servants in the
course of a strike. I find it unnecessary to set out the relevant
provisions of these Acts, since they are sufficiently summarized
for the present purpose in passages which I am about to quote
from the judgment of Farwell J. in the Taff Vale case.* That
learned judge said®: '' The defendant society have taken out
'a summons to strike out their name as defendants, on
'"the ground that they are neither a corporation nor an
'""individual, and cannot be sued in a quasi-corporate or any
"'other capacity. . . . Now it is undoubtedly true that a
'"trade union is neither a corporation nor an individual nor a
'partnership between a number of individuals; but this does
""not by any means conclude the case.'' After referring to
section 16 of the Trade Union Act (1871) Amendment Act, 1876,
and to an argument advanced on behalf of the defendant, the
learned judge continued': '' The questions that I have to con-
'' sider are what, according to the true construction of the Trade
""Union Acts, has the legislature enabled the trade unions to
'"do, and what, if any, liability does a trade union incur for
'" wrongs done to others in the exercise of its authorized powers?
"The Acts commence by legalizing the usual trade union con-
'' tracts, and proceed to establish a registry of trade unions, give
'to each trade union an exclusive right to the name in which it
"is registered, authorize it through the medium of trustees to
""own a limited amount of real estate and unlimited personal
"" estate 'for the use and benefit of such trade union and the
""*"members thereof'; provide that it shall have officers and
"treasurers, and render them liable. to account; require that
'"annual returns be made to the registry of the assets and
"liabilities and receipts and expenditure of the society; provide
"that it shall have rules and a registered office, imposing a
"penalty on the trade union for non-compliance; and permit it
"to amalgamate with other trade unions, and to be wound up.
""The funds of tthe society are appropriated to the purposes of
"the society, and their misappropriation can be restrained by
"injunction: Wolfe v. Matthews*; and on a winding-up, such
'' funds are distributed amongst the members in accordance with
"the rules of the Society: Strick v. Swansea Tin-plate Co.°
'' Further, the Act of 1871 contains a schedule of matters which

5 [1901] A.C. 426. 8 (1882) 21 Ch.D. 194.
6 [1901] A.C. 426, 427. ® (1887) 36 Ch.D. 558.
7 Ibid. 427-8.

A.C. AND PRIVY COUNCIL.

'

'must be provided for by the rules.'' After referring to observa-
tions of Sir George Jessel in Rigby v. Connol,! in regard to the
limitations on legal proceedings imposed by section 4 of the
Trade Union Act, 1871, the learned judge continued": '' But
"these limitations merely restrict the actual enforcement of
"trade union contracts by action or suit, and do not affect the
'" question of the status of the association to which such mem-
'bers belong. Now, although a corporation and an individual
"or individuals may be the only entity known to the common
""law who can sue or be sued, it is competent to the legislature
""to give to an association of individuals which is neither a
"corporation nor a partnership nor an individual a capacity for
"owning property and acting by agents, and such capacity in
"the absence of express enactment to the contrary involves the
"" necessary correlative of liability to the extent of such property
'"" for the acts and defaults of such agents. It is beside the
""mark to say of such an association that it is unknown to the
""common law. The legislature has legalized it, and it must be
""dealt with -by the courts according to the intention of the
"* legislature."'

The Court of Appeal set aside the orders made by Farwell J.,
but this House was unanimous in restoring them, and the judg-
ment of Farwell J. was accepted in toto by the Lord Chancellor
(the Earl of Halsbury), Lord Shand and Lord Brampton.

Lord Halsbury said ??: '"' My Lords, in this case I am con-
'tent to adopt the judgment of Farwell J., with which I entirely
'" concur; and I cannot find any satisfactory answer to that judg-
''ment in the judgment of the Court of Appeal which over-
"'ruled it. If the legislature has created a thing which can
'own property, which can employ servants, and which can
'' inflict injury, it must be taken, I think, to have impliedly
'* given the power to make it suable in a court of law for injuries
'* purposely done by its authority and procurement."'

Lord Shand referred!* to ''the admirable judgment of
'' Farwell J., in whose reasoning I entirely agree.''

Lord Brampton said: ''I entirely concur in the judgment
''and words of the Lord Chancellor in adopting the judgment of
'' Farwell J.,'' and added?* that the defendant society was a
''legal entity . . . though not perhaps in the strict sense a
'* corporation."'

10 (1880) 14 Ch.D. 482, 489-90. 13 Tbid. 440.

11 [1901] A.C. 426, 429. 14 Tbid. 441.
12 [bid. 436. 15 Ibid. 442.

123

H. L. (E.)
1955

BonsoR
v.
Musicians'
UNION.

Lord Morton
of Henryton.

124

H. L. (B.)
1955

Bonsor
0.
MUSICIANS'
UNION.

Lord Morton
of Henryton.

HOUSE OF LORDS [1956 |

Lord Macnaghten said 1*: '' Although I should be well con-
'tent to adopt the judgment of Farwell J. and the reasons he
''has given, I will venture to add a few words of my own, partly
' out of respect for the Master of the Rolls, from whose opinion I
'« never dissent without the greatest hesitation, and partly in defer-
'ence to the argument of counsel, which, before your lordships,
'' has ranged over a wider field, and on the part of the respondents
''has, I think, assumed a somewhat bolder tone than in the
'" court below.'' In the course of his speech the noble and learned
Lord made some observations which would seem to indicate
a view that the action was a representative one, wherein all the
members of the union were sued in the registered name of the
union. I think that these observations were obiter dicta, but, of
course, I accord them the greatest respect. Nevertheless, I
have formed the conclusion that they cannot be reconciled with
the views of the majority of this House, expressed in the words
of Farwell J. which I have just read. It seems to me that the
majority of this House regarded the '' entity '' or '' thing '' which
was being sued as something separate and distinct in law from
the individual members of the society. Moreover, the opposite
view gives rise to great difficulties. For instance, the member-
ship of a trade union is constantly changing, as old members
die and new members come in. If the suit is to be regarded

_ as having been brought against the individual members, it must

have been brought against those who were members at the time
when the writ was issued. Yet some of these persons may not
have been members at the time when the tort was committed,

'and the tort cannot therefore have been committed by their

agents.

Lord Lindley's speech contains passages which may be con-
strued as expressing the view that all the members of the union
were being sued in the name of the union, but he concluded his
speech with these words 17: '' Your Lordships have not now to
'""consider how a judgment or order against a trade union in its
"registered name can be enforced. I see no difficulty about
"this; but, to avoid misconception, I will add that if a judg-
'""ment or order in that form is for the payment of money
'it can, in my opinion, only be enforced against the property
"of the trade union, and that to reach such property it may be
'"found necessary to sue the trustees.''

16 [1901] A.C, 426, 436-4387. 17 Ibid. 445.

A.C. AND PRIVY COUNCIL. 125

If the action had been against all the members of the union, H. L. (E.)
it is ditheult to see why an order made in the action for the pay-

1955
ment of money could only be enforced against the property of the
union. Surely, on the hypothesis just stated, each member of met

"the union would be liable in damages for the wrong done. The Mustcrans'

UNION.

proceedings before Farwell J. and in this House were interlocu-

tory, but (as Denning L.J. points out) the case subsequently went of Henry bone
for trial and a verdict was found for the plaintiffs against the
union. The damages were assessed at £23,000 and that sum
was paid out of the funds of the union.

My Lords, in my view the Taff Vale case 18 goes far to decide
the question now before your Lordships' House. It may be that
Lords Macnaghten and Lindley thought that an action against
the union was an action against all the individual members—
indeed, that view was expressed again by Lord Macnaghten in
Russell's case1® and by Lord Lindley in Yorkshire Miners'
Association v. Howden **—but I am satisfied that it has never
been more than a minority view, inconsistent with the relevant
authorities from the Taff Vale case?! onwards, with the solitary
exception of Kelly's case.??

The Taff Vale case ** differs from the present case only in two
respects: (1) The plaintiff was not a member of the defendant
union, and (2) the action was based on tort, not on contract.
Prima facie, I should not have thought that these were vital
differences, and this view is borne out by the cases to which I
shall shortly refer.

I need hardly say that I have not overlooked the provisions
of section 4 (1) of the Trade Disputes Act, 1906, which enacted«
that: "' An action against a trade union . . . in respect of any
'"" tortious act alleged to have been committed by or on behalf
'"of the trade union, shall not be entertained by any court."'
That section, however, had no operation as regards, for instance,
a breach of contract, and it left undisturbed the principles laid
down in the Taff Vale case.**

I now pass to the case of Yorkshire Miners' Association v.
Howden.** The decision in that case turned on the construction
of section 4 of the Trade Union Act, 1871, but its importance for
the present purpose lies in the fact that a member of a registered

18 [1901] A.C. 426. 21 [1901] A.C. 426.
19 [1912] A.C. 421, 429. 22 84 L.J.K.B. 2236.
20 [1905] A.C. 256, 280; 21 T.L.R. 23 [1901] A.C. 426.

431. 24 [1905] A.C. 256.

126

Jal, UR (G95)
1955

Bonsor
v.
MosIcrans'
UNION.

Lord Morton
of Henryton.

HOUSE OF LORDS [1956 |

trade union got judgment against his union (and also against some
of its officials and its trustees) for an injunction restraining a mis-
application of the union's funds. In none of the speeches in this
House was it suggested that a member could not bring an action
against his union. In Amalgamated Society of Railway Servants
v. Osborne 2° this House granted an injunction, at the suit of a
member of a trade union, restraining the union and its trustees
from applying the funds of the union for procuring or supporting
parliamentary representation. This particular application of its
funds by the union was held to be ultra vires at the suit of one
of its members, and Lord Atkinson said 7*: '' It is clear, in my
''view, that they' (i.e., trade unions) "' are, when registered,
'* quasi-corporations, resembling much more closely railway com-
'' panies incorporated by statute than voluntary associations of
"individuals merely bound together by contract or agreement,
'"express or implied.'' In Osborne v. Amalgamated Society of
Railway Servants 27 ('' the second Osborne case '') Mr. Osborne,
who had been expelled from his union, brought an action against
the union and its trustees to obtain reinstatement as a member
on the ground that his expulsion was ultra vires and void. It
was held by the Court of Appeal that the action was maintainable,
and that the jurisdiction of the court to entertain it was not
ousted by section 4 of the Trade Union Act, 1871. This case
carries the matter a stage further, since the plaintiff was asserting
his own rights as a member against his union. The second
Osborne case *" was approved by this House in Amalgamated
Society of Carpenters, Cabinet Makers and Joiners v. Braith-
waite,?® and the House held that Braithwaite and the other
plaintiffs could obtain an injunction against their respective unions
to restrain a threatened expulsion.

My Lords, it seems to me that Braithwaite's case ?* is really
decisive of the present case. The action was based upon a breach
of a contract between the plaintiffs and their respective unions,
and a threatened breach of that contract was restrained by injunc-
tion. If the breach had actually taken place I see no reason why
damages should have been refused.

In the meantime, Kelly's case *® had been criticized by the
Court of Appeal in Rex v. Cheshire County Court Judge.*° Lord

25 [1910] A.C. 87; 26 T.L.R. 177. 28) [1922] 12 (A.C. 4405/38 MER.

26 [1910] A.C. 87, 102. 879.
27 [1911] Lh. 640; 27 Ta R. 29 84 L.J.K.B. 2286.
989. 30 [1921] 2 K.B. 694; sub nom. R.

v. Parsons, 87 T.U.R. 546.

A.C. AND PRIVY COUNCIL.

Sterndale M.R.*! described it as '' a decision of this court, which
"binds us till the House of Lords reverses it.'' Scrutton L.J.*?
made some trenchant comments upon it, and Younger L.J. made
it plain ** that he would view its reversal with satisfaction.
Finally, in the case of National Union of General and Municipal
Workers v. Gillian,** the Court of Appeal, affirming Birkett J.,
held that a trade union can sue for a libel on itself, and Uthwatt J.
said **: '' That decision'' (i.e., the decision in the Taff Vale
case **) "' involves, to my mind, that a registered trade union is
"recognized by the law as a body distinct from the individuals
""who from time to time compose it.' With that observation
I agree, and all the cases to which I have referred, with the
solitary exception of Kelly's case,*7 lead me to the following
conclusions :—

127

He Ls (EB)
1955

Bonsor
DB.
MUSICIANS'
UNION.

Lord Morton
of Henryton.

(1) The respondent union, though it is not an incorporated

body, is capable of entering into contracts and of being sued as a
legal entity, distinct from its individual members.

(2) When Mr. Bonsor applied to join the respondent union,
and his application was accepted, a contract came into existence
between Mr. Bonsor and the respondent, whereby Mr. Bonsor
agreed to abide by the rules of the respondent union, and the
union impliedly agreed that Mr. Bonsor would not be excluded

by the union or its officers otherwise than in accordance with the

rules.

(8) The respondent union broke this contract, by wrongfully
expelling Mr. Bonsor, and Mr. Bonsor sued the union as a legal
entity. He did not sue either all the members of the union at
the date of the writ other than himself, many of whom must have
joined since the breach of contract, or all the members of the
union including himself.

(4) There is no reason in law why Mr. Bonsor should not be
granted against the respondent all the remedies appropriate to a
breach of contract.

(5) The Court of Appeal in Kelly's case *" should have awarded
damages to the plaintiff.

I have not embarked upon a fresh and detailed examination
of the trade union legislation, so often examined by this House
in the past, for it seems to me that the decisions of this House

31 [1921] 2 K.B. 694, 702. 35 [1946] K.B. 81, 87-8.
32 Tbid. 709-10. 36 [1901] A.C. 426.
33 Ibid. 712. 37 84 L.J.K.B. 2236.

34 [1946] K.B. 81; 62 T.L.R. 46;
[1945] 2 All E.R. 593.

128 HOUSE OF LORDS [1956 |

H. L. (E.) to which I have referred have settled the law on the lines set out

1955 in the conclusions just stated.

I would allow the appeal and remit the case to the Chancery
Division in order that the question of damages may be dealt with,
Mustouaxs' on the basis that the respondent union has been guilty of a breach

of contract and that the court has jurisdiction to award damages

of Mangione for that breach. The respondent union should, in my opinion,
yin pay the appellant's costs here and in the courts below, and the
costs of any further proceedings in the Chancery Division should

be dealt with by the judge before whom such proceedings come.

a

Lorp Porter. My. Lords, the matter for your Lordships'
consideration in this case is to determine the status of a
registered trade union or, to put the more limited question to be
decided, whether a member of a registered trade union can recover
from it damages for breach of contract.

The facts have been set out and I need not repeat them.
Admittedly Mr. Bonsor suffered from a breach of contract and
damage was thereby caused to him, but the questions still remain
who committed that breach, and whether that damage can be
recovered from the union even if the commission was theirs. I
should add that it is not contended that the appellant's claim is
nullified by the terms of section 4 of the Trade Union Act, 1871.

Though it is admitted that Mr. Bonsor's contract was broken,
the respondents submit that the union is not liable to pay damages
for the breach. They are, they say, an unincorporated body of
persons whose registered name is nothing more than a collective
name for all its members. Moreover, they contend that Mr.
Bonsor's contract was with his fellow members and not with the
union, and if he sued the union he was suing all the members
including himself, and no man can sue himself.

It was on this ground that Kelly v. National Society of
Operative Printers' Assistants ** was decided, and in determining
the present case the Court of Appeal found themselves bound to
follow that precedent. I agree with them that the two cases are
not to be distinguished, and that so far as the Court of Appeal
was concerned the problem has already been determined. But
your Lordships are not bound by that decision and it is open to
review in this House.

The question with whom the member's contract is made is, I
think, closely allied with the other inquiry whether the trade

38 84 L.J.K.B. 2236.

A.C. AND PRIVY COUNCIL.

union as a trade union can contract at all, or whether the agree-
ment which a member makes is with his fellow members and not
with the trade union as such. It is admitted that the rules are
neutral. They might, it.is said, on their face indicate a contract
either with the body itself or with the other members. The
first question, therefore, is with whom was the contract of
membership made.

Membership is obtained through the officials of the union, but
except in Rules XIX and XXII and the application form therein
mentioned, I cannot find any provision regulating the election of
members or prescribing who can or cannot decide whether an
applicant shall be elected or not. By Rule XXII (2), however,
candidates have to make application in writing to one of the
secretaries and prima facie, therefore, it is to the union whose
secretaries they are and not to the individuals composing it to
whom application for membership is to be made, and it is that
body which accepts or rejects the election of a member.

It has still, however, to be determined whether that body
consists of a number of individuals or possesses some sort of
entity. If it were not for the decision in the Taff Vale case *° it
might be possible to contend that no action could be brought
against a trade union itself, but that the only right was to sue the
trustees or authorized officers under section 9 of the Act of 1871.
Your Lordships' House has, however, decided otherwise, and in
the light of that decision it has to be determined whether a
trade union possesses some kind of existence which enables it to
contract and to sue and be sued for damages for breach of
contract.

In the Taff Vale case *° Farwell J. said: '' Now, although a cor-
"poration and an individual or individuals may be the only entity
''known to the common law who can sue or be sued, it is com-
'" petent to the legislature to give to an association of individuals
''which is neither a corporation nor a partnership nor an
"* individual a capacity for owning property and acting by agents,
''and such capacity in the absence of express enactment to the
'' contrary involves the necessary correlative of liability to the
'* extent of such property for the acts and defaults of such agents.
'Tt is beside the mark to say of such an association that it is
'* unknown to the common law. 'The legislature has legalized it,
''and it must be dealt with by the courts according to the
''intention of the legislature.'' Lord Macnaghten, whilst

39 [1901] A.C. 426 40 Tbid. 429.

129

HL. (ES

1955

Bonsor
v.
Mosicrans'
UNION.

Lord Porter.

130 HOUSE OF LORDS [1956 |

H. L. (E.) agreeing with Farwell J.'s judgment in the court of first instance,

1955 went on, however, to say'! '' the registered name is nothing
phon ''more than a collective name for all the members,'' and Lord
0. Lindley says 42: '' My Lords, a careful study of the Act leads me
ames 'to the conclusion that the Court of Appeal held, and rightly

'' held, that trade unions are not corporations; but the court held

Pee Sunther that, not being corporations, power to sue and be sued
''in their registered name must be conferred upon them; and
'' further that the language of the statutes was not sufficient for
'the purpose. Upon this last point I differ from them. The
'* Act appears to me to indicate with sufficient clearness that the
'' registered name is one which may be used to denote the union
'""as an unincorporated society in legal proceedings as well as for
''business and other purposes. The use of the name in legal
'' proceedings imposes no duties and alters no rights: it is only
'"a more convenient mode of proceeding than that which would
'"have to be adopted if the name could not be used. I do not
"say that the use of the name is compulsory, but it is at least
"" permissive.'' .

On the other hand, Lord Brampton in that case and in
National Union of General and Municipal Workers v. Gillian,*5
Birkett J. in the court of first instance, and Scott L.J. and
Uthwatt J. in the Court of Appeal thought that the Act had
created some sort of legal entity which, subject to the limitations
prescribed by the Act itself, could sue or be sued like any other
legal entity which had existence apart from being a mere nomen-

_ clature embracing its several members. Uthwatt J. called it a
_ ' near-corporation."'

How far Lord Macnaghten intended to limit the status of a
trade union I find it difficult to determine. He agreed with
Farwell J., whose opinion more nearly accords with the view that
the union possessed some sort of entity apart from its members,
than with the view that it merely consisted of a number of
individuals. Great as is the respect which must be paid to the
authority of Lord Macnaghten and Lord Lindley, it has to be
remembered that their opinions on this matter were obiter. It
is true that they were careful to avoid giving corporate status
to a trade union, but if they had meant that the Act merely
provided a convenient name for a number of individuals, they
must, in my opinion, have dealt with the difficulty which would

41 [1901] A.C. 426, 439-40. 43 [1946] K.B. 81.
42 Thid, 445.

A.C. AND PRIVY COUNCIL.

131

arise in many and perhaps in almost all cases, viz., that the H. L. (B.)

individuals composing the society would have altered between the
date of the wrong complained of and the time at which action
was brought, inasmuch as the union under its trade name must,
when action was brought, have been composed of those who
joined since the act complained of was done, and no longer
include those who had died or otherwise ceased to be members
meanwhile. If, then, they regarded an action against a trade
union in its trade name as equivalent to a representative action
against its individual members, I cannot agree with their view.

In my opinion, therefore, the decision by the Court of Appeal
in Kelly v. National Society of Operative Printers' Assistants +4
is wrong and should be reversed, an opinion in which I am the
more confirmed by the doubts cast upon it by the Court of Appeal
in Rex v. Cheshire County Court Judge,**® and by the opinion of
the same body in National Union of General and Municipal
Workers v. Gillian,*® where they held that a trade union can
sue for libel upon itself.

Apart from the question with whom did the member make his
contract the Court of Appeal in Kelly v. National Society of
Operative Printers' Assistants *7 held that he was unable to sue
because the agent of the society who had done him wrong was
agent for himself as well as the other members, since the persons
sued were an unincorporated body of which he was one. Looked
at from this angle he was suing his own agent and therefore suing
himself, a thing he could not do. / If, however, there has been,
as I think there has, a thing created by statute, call it what you
will, an entity, a body, a near-corporation, which by statute
has in certain respects an existence apart from its members, then
I do not see why that body should not be sued by one of its
members for a breach of contract.

The exact limits of the power of a trade union to bind itself
need not be determined. It may well be that it does not possess
the full powers of an incorporated society. Its position is perhaps
best expressed by Farwell J. in the Taff Vale case,** and I am
content to adopt his wording as expressing my own view of a
trade union's status. It is true that in that case the plaintiff
was an outside body and not one of its own members, but
Farwell J.'s words seem to me to be wide enough to embrace its

44 84 L.J.K.B. 2236. 47 84 L.J.K.B. 2236.
45 [1921] 2 K.B. 694. 48 [1901] A.C. 426.
46 [1946] K.B. 81.

1955

Bonsor
v.
MuUsIcIANs'
UNION.

Lord Porter.

182

Hale)
1955

Bonsor
v.
MUSICIANS'
UNION.

Lord Porter.

HOUSE OF LORDS [1956 |

liabilities not only to third parties but also to its members, inas-
much as they imply an existence of the body apart from the
members of which it is composed.

It will be observed that I have refrained from relying upon
those cases, such as Osborne v. Amalgamated Society of Railway
Servants #2 and Yorkshire Miners' Association v. Howden,*® in
which a member of a trade union has been held entitled to sue
his union for wrongful expulsion, in order to avoid the suggestion
that that decision depended upon the fact that the Act was ultra
vires the society, but although those cases and Amalgamated
Society of Carpenters, Cabinet Makers and Joiners v. Braith-
waite *! may be said to have been determined on the ground that
the unions sued were acting ultra vires in the steps which they
had taken, yet they establish the right of a member to sue his
own union.

I would allow the appeal.

Lorp MacDermorr. My Lords, the nature and bearing of the
difficult and important issues raised by this appeal will appear
more plainly if a brief reference is first made to the history of
the litigation.

In 1951 Mr. Harry Bonsor sued the Musicians' Union, a
registered trade union which I shall speak of as "' the union,"'
complaining that it had wrongfully expelled him from member-
ship. He sought a declaration as to his rights and, after obtaining
an amendment of his claim, an injunction and damages as well.
The union defended the action, contending (inter alia) that Mr.
Bonsor had been expelled in accordance with its rules, and that
his statement of claim disclosed no right to damages. In the
Chancery Division Upjohn J. held (a) that the expulsion occurred
when the secretary of the union's Brighton branch, purporting to
act under a particular rule dealing with members whose subscrip-
tions were in arrear, erased Mr. Bonsor's name from the register
of membership on July 2, 1949, and (b) that the branch secretary
was not empowered to act in this manner and had done so in
breach of the rules. He, accordingly, declared the expulsion to
be null and void and granted an injunction restraining the union
from acting upon it. But although it is clear from his careful
judgment that the direct effect of this expulsion was to cause
Mr. Bonsor grave difficulty in earning his living as a musician,
the union being what is known as ''a closed shop,'' the learned

49 [1911] 1 Ch. 540. 51 [1992] 2 A.C. 440.
50 [1905] A.C. 256.

A.C. AND PRIVY COUNCIL. 133

judge was constrained to dismiss the claim for damages on the 4H. L. (H.)

authority of Kelly v. National Society of Operative Printers' 1955
Assistants,*? a case in which the Court of Appeal held that a

: Bonsor
member who had been wrongfully expelled by his trade union o)

could not recover damages against it. Both parties appealed pas

from the decision of Upjohn J., the union still contending that —
the expulsion was in conformity with its rules and Mr, Bonsor MacDermott.
still maintaining his claim for damages. The Court of Appeal
unanimously dismissed the union's appeal, affirming Upjohn J.

in his conclusion that the expulsion was contrary to the rules and
wrongful. And by a majority (Evershed M.R. and Jenkins L.J.)

it also dismissed Mr. Bonsor's cross-appeal, holding that Kelly's
case °? was binding upon it and could not be distinguished. My |)
Lords, I shall refer to the reasoning of Kelly's case °* later, but
for the purposes of this narrative it will suffice to say that it was |
based upon the view that a registered trade union is only an )
association of individuals, and that a member who sues it is (|
suing the individuals who are his fellow-members. That view
was challenged before the Court of Appeal on behalf of Mr.
Bonsor in a submission to the effect that a registered trade union
was a juridical person in itself, a complete entity, a body with
a legal personality separate from that of its members and as
competent to contract with them as they were to contract with
each other. Such being the position, the argument proceeded,
the difficulties in the way of a member suing the other members
of his union for damages, which influenced the Court of Appeal
in Kelly's case,*? did not arise; the rules of the union constituted
the terms of the contract between it, as one person, and the
members, including Mr. Bonsor, as distinct persons; and there
having been a breach of that contract on the part of the union
it, as an entity, was liable in damages irrespective of the relation-
ship of the individual members one to another. In the Court of
Appeal the Master of the Rolls and Jenkins L.J. were not prepared
to accept this argument; but Denning L.J. expressed himself in
favour of it and was of opinion that Kelly's case*? had been
wrongly decided on this as well as other grounds.

The union has not appealed from the decision of the Court of
Appeal. Mr. Bonsor, unfortunately, died before it pronounced
judgment dismissing his cross-appeal, but his widow and
administratrix now appeals by leave from that dismissal. In

tt
4s

52 84 L.J.K.B. 2286.
A.C. 1956. 10

134

H! L.) (8)
1955

Bonsor
0.
Musicians'
UNION.

Lord
MacDermott.

HOUSE OF LORDS [1956 |

these circumstances the only question for your Lordships' deter-
mination concerns the only form of relief which can now have
any practical value or effect. It is whether Mr. Bonsor was in
law entitled to recover damages against the union for his wrongful
expulsion. Though not so stated in the pleadings, this claim has
been treated throughout as a claim for damages for breach of
contract, and it ig common ground that the terms of the relevant
agreement are to be found in the rules of the union. But who
the contracting parties were involves the question of the union's
status and is, therefore, in dispute. The rules themselves seem
to me to stand neutral on that question. If the union is not a
juridical person there is no difficulty in construing them as the
terms of agreement between the members; but if, on the contrary,
the union is a juridical person they appear equally capable of
being read as the terms of agreement between the union on the
one hand and its members on the other.

Such being the course of the case on its way to this House, it
will be convenient to deal first of all with the issue respecting the
legal nature of a registered union. Not only was this issue placed
by Mr. Lester in the forefront of his argument on behalf of the
appellant, but if he is right in his submissions upon it, and the
union is to be regarded as a juridical person, distinct from its
membership, and as having contracted with its members in the
terms of its rules, then, as I see the matter, the foundation of
the decision in Kelly's case >? will disappear and the right to an
award of damages will, in the circumstances, be established. If,
however, the union is not a juridical person distinct from its
membership, the basis of Kelly's case*? will remain and the
reasoning founded upon it will have to be examined.

My Lords, if a registered trade union is a juridical person—
and to avoid confusion I should say that I propose to use that
expression as connoting the characteristics and attributes of the
complete legal entity for which Mr. Lester contended—it must
be in consequence of the Trade Union Act, 1871, which pro-

| vided for the voluntary registration of trade unions and conferred

certain privileges upon unions taking advantage of that provision.
There can be no question that a trade union which is not regis-
tered under that Act is not a juridical person. It is a voluntary
association of persons, a combination for the purposes mentioned
in the definition of '' trade union '"' in section 23 of the Act of
1871, as modified by section 16 of the Trade Union Act (1871)

52 84 L.J.K.B. 2236.

A.C. AND PRIVY COUNCIL. 135

Amendment Act, 1876, and section 2 of the Trade Union Act, H. L. (B.)
1913. The first step, therefore, in ascertaining the effect of 1955
registration on the nature of a trade union must be to consider —————-
such of the provisions of the Act of 1871 as appear to have a" aap?
bearing on the point. Musicians'
Sections 2 and 3 throw no direct light on the question, but ie)
they were enacted to deal with a situation which has to be kept
in mind in construing the Act. The objects of many trade unions
included purposes which had been held to be in restraint of trade,
with the result that the agreements between their members were
unlawful and the members themselves within reach of the criminal
law. Section 2 removed the danger of prosecution, and section 8
provided that the purposes of a trade union " shall not, by reason
""merely that they are in restraint of trade, be unlawful so as to
""render void or voidable any agreement or trust.'' It was not,
however, the policy of the legislature to make the whole range
of trade union agreements enforceable at law. Section 4,
accordingly, provides that nothing in the Act shall enable any
court to entertain legal proceedings instituted with the object of
directly enforcing or recovering damages for the breach of certain
enumerated classes of agreement, the first of which reads as
follows: '* (1) Any agreement between members of a trade union
""as such, concerning the conditions on which any members for
"the time being of such trade union shall or shall not sell their
'"" goods, transact business, employ, or be employed.'"' Now, it
is clear that section 4, like sections 2 and 3, is not confined in its
application to unions which are registered under the subsequent
provisions of the Act. It applies to trade unions within the
definition to which I have already referred, and therefore to
unions which are not registered and not juridical persons as well
as to unions which are registered; and this, it may be added,
holds good for all the classes of agreement which section 4
specifies, for there is nothing in the text to restrict any of these
' classes to a particular type of union. On this account section 4
\can hardly be expected to furnish a positive answer to the
'question under discussion; nevertheless I think its description
of class (1), though by no means conclusive, affords some indica-
tion of the intention of the legislature. That class of agreement
is described in a manner which indicates that it was the policy
ofParliament to keep the-contracts of union members respecting
the_main-purposésof their combination outside the jurisdiction
of the courts. The description accords with what has long been
the generally accepted view of the bond by which the members

Lord
MacDermott.

136

Ist) hy {03%))
1955

Bonsor
v.
MosIciANs'
UNION.

Lord
MacDermott.

HOUSE OF LORDS [1956 |

of a trade union are held in association, namely, the contract
between members)which is formed on admission by an acceptance
of the union rules. But-it does.not_refer-to agreements between
a union and its members. This omission seems natural if the
only bond-in-eontémplation was that just mentioned. But I do
not think it is what one would expect if the intention was to make
a juridical person of any union choosing to register, as in that
case the registered union would, while the unregistered union
would not, be free to circumvent this part of section 4 by the
simple expedient of doing what the union here is said to have
done and framing its rules so that the members were bound
contractually to it; and that would be contrary to the policy of
section 4, if I am right in the view already expressed that that
section was meant to apply to trade unions generally and
irrespective of registration.

The other provisions of section 4 do not put the matter further
and I need not detail them. But the section does prompt one
general reflection which it will be appropriate to mention now.
I would agree with Denning L.J. that a trade union may be
regarded as an entity in fact,. In common parlance the term is
habitually used to connote something that is in some way different
from the individuals who form the combination; and I think it is
right to say that the Act of 1871 (including section 4) speaks
after this fashion and recognizes that a trade union and its
membership may not always mean the same thing. But the

| same can be said of many groups which lay no claim to a legal

personality, and since section 4 applies to both registered and
unregistered unions, the Act's recognition of the factual entity

_can, in my opinion, offer no sound .ground for making the
'registered union a legal entity as well.\|

Section 6 provides for registration, but neither in it nor in the
fasciculus of sections, beginning with section 18, which deals with
the machinery of registration and various obligations flowing
therefrom, nor elsewhere, is any provision for incorporation to be
found; this omission is all the more striking in view of section 5
which enacts that certain statutes, including the Companies Acts,
1862 and 1867, ''shall not apply to any trade union, and the
"registration of any trade union under any of the said Acts shall
"be void.'' Then section 7 says that it shall be lawful for a
registered trade union to purchase or take on lease in the names
of its trustees any land not exceeding one acre and to sell,
exchange, mortgage or let the same. And section 8 enacts that
all the real and personal estate belonging to a registered trade

A.C. AND PRIVY COUNCIL.

"e

use and benefit of such trade union and the members thereof."'
At first glance the enabling form of section 7 suggests that the
legislature regarded a registered trade union as an entity apart

from its members which, like certain incorporated bodies, required sr

special authority to hold land. But against this must be set the

137

union shall be vested in its trustees for the time being ''for the H. L. (E.)

1955
Bonsor
v.
USICIANS'
UNION.

ois ¢ 3 > 3 Lord
provision made in both sections 7 and 8 for the holding of union MacDermott.

property by the union trustees, which was relied upon by the
union as a clear indication that Parliament did not intend to
make the registered trade union a juridical person, and as such
capable of holding its own assets in its own name. Section 9
was said to point in the same direction. It provides that the
trustees of a registered trade union or any other officer who may
be authorized by the rules to do so shall be empowered "' to
"" bring or defend, or cause to be brought or defended, any action,
'suit, prosecution, or complaint in any court of law or equity,
'"" touching or concerning the property, right, or claim to property
'' of the trade union. . " Tf, as the appellant claims, this Act
made the registered union a juridical person, in the sense in which
I am using the expression, there seems no very convincing reason
why it should not have been left to sue and be sued respecting
its property without conferring these special powers upon its
officers and trustees. Section 11 makes it obligatory for the
treasurer and other officers of a trade union to account and hand
over balances and books in their hands when required; and in
the event of any failure to comply with these obligations the
trustees are empowered to sue for the balance due, etc., and
'*to recover their full costs of suit, to be taxed as between
"attorney and client.'' This, of course, is not in any way
conclusive, but, again, it is scarcely what one would expect if
the intention was to create a body which could take these steps
for itself. Section 13 deals with applications for registration, and
section 14 provides, inter alia, for the union having a name which
can be registered. Section 15 requires a registered trade union
to have a registered office, and section 16 requires it to make
annual returns. Each of these last two sections further provides
that a trade union which fails to comply with its requirements
shall be liable to a penalty. This was said to point to a regis-
tered trade union having a distinct personality as, at common
law, an offender must be either a natural or an artificial person
and must be named or otherwise identified as a person in the
charge.

138

Hi 'Li. | (B.)
1955

Bonsor
v.
MosiIcians'
UNIon.

Lord
MacDermott.

HOUSE OF LORDS [1956 |

Reference may also be made in this connexion to sections 6
and 8 of the Act of 1876. Section 6 requires a registered trade
union to be registered in that part of the kingdom where its
registered office is, and provides that if it carries on business in
another part of the kingdom it is not to enjoy there '' any of the
'* privileges '' of the Acts of 1871 and 1876 until the rules have
been recorded by the registrar of that other part. Thus, if the
act of registration creates a juristic person, it could happen, to
take an example, that a union active throughout Great Britain,
with one membership and one set of rules, might find itself at
the same time an association of individuals in Scotland and an
artificial person, a distinct legal entity, in England—or vice versa,
according to the location of the registered office. The power of
Parliament to do even more than that cannot be questioned,
but one would expect to find the intention to produce such an
anomalous situation expressed in clear terms. Section 8 evokes
a similar reflection. It makes provision whereby, inter alia, a
registered trade union may have its certificate of registration with-
drawn or cancelled at its request, and enacts that when this is
done the union shall '' absolutely cease to enjoy as such the
"* privileges of a registered trade union, but without prejudice to
"any liability actually incurred by such trade union, which may
'" be enforced against the same as if such withdrawal or cancelling
""had not taken place.'' I find it difficult to believe that the
legislature ever intended that a trade union should be able to
accomplish a fundamental change in its legal character by this
simple procedure; yet such would be the result if the appellant's
contention were well founded. It would be idle to say that these
sections, considered in the context in which they must be placed,
make an end of the matter; but their operation is relevant, and
their language suggests a further way of stating the issue. Did
Parliament intend registration to create a new sort of trade union
with a legal personality of its own, or merely to confer the
privileges for which the Acts provide upon the unions as they
were ?

My Lords, if I have referred to the statutory position at some
length it is because the problem under examination is essentially
one of the meaning and effect of the relevant enactments and of
the intention they manifest. Though this problem has produced
numerous expressions of judicial opinion, these are in conflict and
the state of the authorities is such that your Lordships are, I
think, free to form a conclusion from the text on every material
aspect of the matter save one. I do not, therefore, propose to

A.C. AND PRIVY COUNCIL.

139

embark on an exhaustive review of the cases cited in the course H. L. (E.)

of the debate. I must, of course, refer to the decision of this
House in Taff Vale Railway Co. v. Amalgamated Society of
Railway Servants,** for it raises the exception which I have just
mentioned ; but after that it will be enough to direct attention to
such of the pronouncements on the subject as suffice to define
the issue and reveal the opposing views.

In the Taff Vale case**? this House, affirming the decision
of Farwell J. and reversing that of the Court of Appeal, held
unanimously that a registered trade union may be sued in its
registered name. That conclusion was reached as a matter of
inference from the nature of trade unions and the terms of the
Acts of 1871 and 1876, and though its practical importance has
been much reduced by the Trade , Disputes Act, 1906, the principle
it established stands and must be respected in considering the
effect of the material statutes. Not only may a registered union,
as provided by section 9 of the Act of 1871, sue and be sued
concerning its property in the names of its trustees or authorized
officers ; it can be sued also in its registered name and in respec
of claims which lie outside the scope of that section. For the
appellant, Mr. Lester relied strongly upon this decision and there
can be little doubt that it has the effect of endowing the registered
union with one of the more important attributes of a juristic
person, and that it detracts appreciably from the force of the
argument advanced on behalf of the union, which was based on
the express powers of litigating conferred by the Act of 1871 upon

the trustees and authorized officers. But if this is so, it is, in ,
my opinion, equally clear that the decision was not founded on y

the proposition that a registered union is a juristic person. At/
first instance Farwell J.5¢ had based his conclusion on the ground
that '' it is competent to the legislature to give to an association
'* of individuals which is neither a corporation nor a partnership
"'nor an individual a capacity for owning property and acting by
'' agents, and such capacity in the absence of express enactment
"*to the contrary involves the necessary correlative of liability to
"'the extent of such property for the acts and defaults of such
"'agents.'' 'And the learned judge then added: '"'It is beside
"the mark to say of such an association that it is unknown to the
''common law. The legislature has legalized it, and it must be
"dealt with by the courts according to the intention of the legis-
'"Jature.'' I do not take this to mean that in the opinion of

53 [1901] A.C. 426. 54 Tbid. 429.

1955

Bonsor
0.
Musicians'
Union.

Lord
MacDermott.

140

EPI (Es)
1955

Bonsor
v.
MUsIcIANs'
UNION.

Lord
MacDermott.

HOUSE OF LORDS [1956 |

Farwell J. a registered trade union is a juristic person. He does
not say that, and if he meant it I am at a loss to understand why,
as is undoubtedly the case, he took the view that the Acts had
not incorporated the registered union. The absence of express
provision to that end certainly furnishes no explanation of this,
as it has long been held that an intent to incorporate may be
implied: see Tone River Conservators v. Ash.®> It seems to me
that, far from attributing a separate personality to such a union,
the reasoning of the learned judge recognizes the absence of such
a personality and amounts in its substance to this—that although
Parliament has not gone far enough to make the registered union
other than an association of individuals, it has legalized its pur-
poses and endowed it with powers and qualities to such an extent
that an intention to fix it with corresponding responsibilities,
enforceable by proceedings brought against it in its registered
name, ought to be implied.

In this House Lord Halsbury L.C.°* expressed his concurrence
with the judgment of Farwell J. and added: '' If the legislature
'""has created a thing which can own property, which can employ
"servants, and which can inflict injury, it must be taken, I
'" think, to have impliedly given the power to make it suable in.
""a court of law for injuries purposely done by its authority" and™
'procurement.'' Lord Macnaghten, having also agreed with the
reasoning of Farwell J., then spoke in terms which leave no doubt
as to his mind on the present issue. He said *': '' The further
"question remains: May a registered trade union be sued in
""and by its registered name? For my part, I cannot see any
"difficulty in the way of such a suit. It is quite true that a
"" registered trade union is not a corporation, but it has a regis-
""tered name and a registered office. The registered name is
"nothing more than a collective name for all the members. The
"registered office is the place where it carries on business. A
"partnership firm which is not a corporation, nor, I suppose, a
"legal entity, may now be sued in the firm's name. And when
"TI find that the Act of Parliament actually provides for a regis-
"tered trade union being sued in certain cases for penalties by
"its registered name, as a trade union, and does not say that the
'cases specified are the only cases in which it may be so sued,
"I can see nothing contrary to principle, or contrary to the provi-
'sions of the Trade Union Acts, in holding that a trade union
'may be sued by its registered name.'' Lord Shand also adopted

'

'

'

55 (1829) 10 B. & ©. 349. 57 Ibid. 489-40.
56 [1901] A.C. 426, 436.

A.C. AND PRIVY COUNCIL.

the reasoning of Farwell J., and in a brief opinion stated his
conclusion ** that '' the power of suing and liability to be sued in
'the society's name is clearly and necessarily implied by the
"provisions of the statutes.'' Lord Lindley plainly based his
concurrence on the ground, not of a new status, but of the effect
of the statutory provisions. '' The Act,'' he said,°® '' appears
""to me to indicate with sufficient clearness that the registered
'""name is one which may be used to denote the union as an unin-
""corporated society in legal proceedings as well as for business
"and other purposes. The use of the name in legal proceedings
"imposes no duties and alters no rights: it is only a more con-
"" venient mode of proceeding than that which would have to be
"" adopted if the name could not be used. I do not say that the
""use of the name is compulsory, but it is at least permissive.''
Lord Brampton alone took the view now contended for by the
appellant, his opinion on the point being thus expressed *: '' I
"" think that a legal entity was created under the Trades Unions
"* Act, 1871, by the registration of the society in its present name
'""in the manner prescribed, and that the legal entity so created,
"" though not perhaps in the strict sense a corporation, is never-
""theless a newly created corporate body created by statute,
"distinct from the unincorporated trade union, consisting of
'"many thousands of separate individuals, which no longer exists
"under any other name.''

In Yorkshire Miners' Association v. Howden,® a decision on
the scope of section 4 of the Act of 1871, Lord Lindley affirmed
the view he had previously expressed in the Taff Vale case ®? in
a passage which reads as follows **: '' One thing, however, the
'* Act of 1871 did not do. It did not incorporate trade unions
''even when registered under the Act with a name. A trade
'"union holds property by trustees; but not being incorporated
'' there is no one legal person or entity in whom the beneficial
'* interest in the property of a trade union is vested. The bene-
'* ficiaries are its members collectively and severally. This is plain
'* from section 8, which vests the property of every registered
'"'trade union in trustees for the use and benefit of such trade
'" union and the members thereof. A trade union is, and its name
''is only a convenient designation for, an unincorporated society
'* of individuals, and this observation must not be lost sight of on

''the present occasion.'' In Amalgamated Society of Railway
58 [1901] A.C. 426, 441. 61 [1905] A.C. 256.
59 Tbid, 445. 62 [1901] A.C. 426.

60 Tbid. 442. 63 [1905] A.C. 256, 279-80.

141

Ho Lhd
1955

Bonsor
v.
MusIcIaANns'
UNION.

Lord
MacDermott.

142

fs. 15
1955

BONSOR
v.
MUSICIANS
UNION.

,

Lord
MacDermott.

HOUSE OF LORDS [1956 |

Servants v. Osborne ** Lord Halsbury referred to a registered
trade union as '' a legalized combination having power to act as
'' a person and to enforce its rules within the limits of the statute,
'' Whatever those limits are''; and in the same case Lord Atkin-
son ®° expressed the view that trade unions '' are, when registered,
'* quasi-corporations, resembling much more closely railway com-
'' panies incorporated by statute than voluntary associations of
'' individuals merely bound together by contract or agreement,
''express or implied.'' These observations of Lord Halsbury
and Lord Atkinson were canvassed in support of the appellant's
contention, as was also the dictum of Farwell L.J. (as he had
then become) in Osborne v. Amalgamated Society of Railway
Servants,** that '' A registered trade union is thus a statutory legal
'' entity, anomalous in that, although consisting of a fluctuating
'"'body of individuals and not being incorporated, it can own
'* property and act by agents.'' But, in my opinion, these dicta
fall short of imputing a full juridical personality to the registered
union. They recognize, what must be recognized on any view
of the matter, that the legislature has conferred upon such unions
some of the characteristics of a juridical person, but they do not
go the length of saying, and were not, in my opinion, intended
to say, that the effect of the relevant legislation has been to give
those unions a new status amounting to a legal personality distinct
from their membership. ,

I come next to what was said in the Court of Appeal in
National Union of General and Municipal Workers v. Gillian.*7
That case decided that a registered trade union could possess a
character capable of being defamed and could maintain an action
for damages for defamation in its registered name. The defen-
dants having pleaded that the action was not maintainable at
the suit of the plaintiff union, Birkett J. had held, on a pleading
issue, that the suit was maintainable and had expressed the
opinion ** that the Act of 1871 had '' designedly created a new
'"' entity in law, a new persona '"' in the registered union. As at
present advised, I do not think that Birkett J. needed to take
this view in order to reach the conclusion he did. That, how-
ever, is by the way. The present relevance of the case lies in
the support which this view obtained in the Court of Appeal.
Scott L.J. expressed himself thus ®: '' A trade union has many
"activities; it has some existence, and it is something. The

64 [1910] A.C. 87, 93. 67 [1946] K.B. 81.
65 Tbid. 102. 68 [1945] 2 All E.R. 598, 594.
66 [1909] 1 Ch. 163, 191. 69 [1946] K.B. 81, 85.

A.C. AND PRIVY COUNCIL.

"omission of Parliament to christen it with some new generic
'name is immaterial, for Parliament has absolute sovereignty
"and can make new legal creatures if it likes. It is able, for
instance, to create a persona juridica not previously known to
'the law, if it so chooses, or to clothe an existing association of
natural persons with what may be called co-operative personality
"so as to give it the status of a persona juridica. In my view
"that is just what it did in 1871. It expressly assumed the
"possession by every trade union, when duly registered, of so
many of the main attributes of judicial personality that I find
any other inference of the intention of Parliament impossible.''
And, again': "' In my view, the true interpretation of the Acts
""is that a trade union is given all powers of a persona juridica
"" except (a) those solely characteristic of a natural person, and
""(b) those which are expressly excepted by the creating or
"enabling statute.'' MacKinnon L.J. concurred, and Uthwatt J.
(as he then was) dealt with the matter in these terms 71: '' The
"" point decided in Taff Vale Railway Co. v. Amalgamated Society
"of Railway Servants,'? was that a registered trade union might
"* properly be named as a defendant to an action. That decision
"" involves, to my mind, that a registered trade union is recognized
""by the law as a body distinct from the individuals who from
*' time to time compose it. It is not a corporation; but it is very
""much like one. The association is not merely the aggregate of
''the persons who compose it, and the presence of the corporate
'" fiction is not necessary to secure its individuality. In an age
'"of neologism it might be called a 'near-corporation'.'' As I
have already indicated, these expressions of opinion do not seem
to me necessarily to involve the decision in Gillian's case **; but
in the present suit Denning L.J. accepted them as well founded
and they, no less than those I have quoted to the contrary effect,
invite the most careful consideration.

My Lords, having endeavoured to give that to what has been
said on the subject, both in the cases and at the Bar, I have come
to the conclusion that the correct view is the view favoured by
Lord Macnaghten and Lord Lindley and by the Master of the
Rolls and Jenkins L.J. in the Court of Appeal. I base this
opinion primarily on the statutes. The more closely they are
examined the clearer it seems to be that the legislature, though
minded to bestow upon registered unions some of the gifts and
attributes of legal personality, had no intention of doing more and

'
oe

se

ae

"e

70 [1946] K.B. 81, 86. 72 [1901] A.C. 426.
71 Ibid. 87-88. 73 [1946] K.B. 81.

143

jell GE, (di
1955
Bonsor
Vv.

MusIcrAns'
UNION.

Lord
MacDermott.

144

HL. (H:)
1955

Bonsor
0.
MUSICIANS'
UNION.

Lord
MacDermott.

HOUSE OF LORDS [1956 |

was, indeed, averse to the idea of going the whole length and
making those unions new creatures, distinct in law from their
membership, and fundamentally different from the '' combina-
'' tion'? of persons which the definition requires all trade unions
to be. I need not go over the various provisions of the Acts
again. If they point in more than one direction, on balance they
seem to me to lead away from the appellant's contention; and
taken together it would, I think, be right to say of them that
they make of registration and its results something of far less
consequence than might fairly be expected had that process been
meant to bring into being a new juridical person. The compara-
tive ease with which the garb of registration may be donned and
doffed hardly accords with the view that each change means the
taking up or the laying down of a legal personality; there is,
however, nothing so casual or anomalous about the position if all
that happens is that the union concerned gains or loses, as the
case may be, certain advantages or " privileges'' with their
attendant responsibilities. But perhaps the most weighty con-
sideration of all lies in the fact that Parliament has made no effort
to incorporate the registered trade union. In the latter half of
last century incorporation was the recognized and usual way of
conferring upon an association of persons the status of a distinct
legal entity, and it is clear that the draftsman of the Act of 1871
had the Companies Act of 1862 before him. Yet there is not -
a word about the members becoming, on registration, a body
corporate, and the only reference to a seal is in relation to the
work of the registry. Parliament is not, of course, restricted in
its choice of possible methods for producing a given result. But
when, as here, it studiously avoids a familiar and appropriate
method without purporting to adopt another in its stead, its
intention to reach that result may well be open to doubt. For
these reasons I am of opinion that a registered trade union is not
a juridical person.

Having come to this conclusion it is, I think, desirable to add
some observations respecting the procedural consequences of the
Taff Vale decision.7* How a voluntary association of persons,
such as a trade union, can be sued is hardly less important than
its responsibility under the law. The numbers and the changing
character of its membership may be such as to make it imprac-
ticable to sue the right persons individually and difficult to obtain
an order appointing representative defendants.,/ These difficulties

74 [1901] A.C. 426.

A.C. AND PRIVY COUNCIL.

_ are, perhaps, at their height in the case of trade unions of work-
men where the membership often runs into many thousands and
is subject to a constant fluctuation. Anyone—be he a member
or an outsider—who seeks a remedy in the courts against an
unregistered union of this nature may well be confronted at the
outset with a formidable problem in determining how to constitute
his suit. The Taff Vale decision "4 removed this obstacle to the
process of adjudication in the case of the registered union by
holding that Parliament had allowed it to be sued in its registered
name. Where this is done the party suing, if he is to succeed,
has still, of course, to show that the union concerned is, as an
organized combination, responsible for the act of which he com-
plains ; but he does not need to marshal the membership on any
basis of individual liability as, for example, by excluding those
who are infants or who have joined since his cause of action arose
or who, as a minority, have voted in his favour; nor (if a member)
has he, in my opinion, even to make it clear on the face of the
record that he excludes himself. The peculiarity of this pro-
cedure, like that under the rules of court in England and Northern
Ireland whereby a partnership may be sued in its firm name, lies
in the fact that it sanctions proceedings at law in a name which
is not that of a juridical person, either natural or artificial. But
that, as Farwell J. pointed out and as this House held in the
Taff Vale case,'* is the result of what Parliament has enacted
and, anomalous though it may be, there can be little doubt that
as a procedure it is a convenient and valuable aid to the adminis-
tration of justice. It has, however, one consequence which ought
not to be overlooked. If a union is sued to judgment in its
registered name execution in respect of any sum it may be

ordered to pay cannot, in my opinion, be levied on the assets of |

members and must be confined to the property of the union.
That, as I read the judgment of Farwell J., was his view, and
it was also the view of Lord Lindley, who said at the end of his
speech 7°; '' I will add that if a judgment or order in that form "'
—that is, against a trade union in its registered name—"' is for
''the payment of money it can, in my opinion, only be enforced
''against the property of the trade union... .'' Lord Lindley
did not state his reasons for this conclusion. Subsequently, in
delivering the judgment of the Judicial Committee in Wise v.
Perpetual Trustee Co. Ld.,7° he said, speaking of unincorporated
member clubs: '' They are societies the members of which are
74 [1901] A.C. 426. 76 [1903] A.C. 189, 149; 19 T.L.R.
75 Tbid. 445. 125.

145

Jel aby, (Ga,))
1955
BoNnsoR
v

MUSICIANS'
UNION.

Lord
MacDermott.

146

Hel, ()
1955

Bonsor
v.
MUSICIANS'
UNION.

Lord
MacDermott.

HOUSE OF LORDS [1956 |

'

'perpetually changing. They are not partnerships; they are
''not associations for gain; and the feature which distinguishes
''them from other societies is that no member as such becomes
''liable to pay to the funds of the society or to anyone else any
''money beyond the subscriptions required by the rules .of the
'' club to be paid so long as he remains a member.'' It may be,
taking the view he did of the legal nature of a registered union,
that Lord Lindley considered its members to be, in this respect,
in a position similar to the members of a club. But I feel no
certainty about that or as to whether the passage I have quoted
was meant to apply to unliquidated claims. I have not, there-
fore, based my opinion on any analogy of this sort. I prefer to
found it on what appears to me a simpler and less debatable
ground. If the statutory right to sue a registered union in its
registered name is exercised and a money judgment is obtained,
there is no procedure available whereby execution may be levied
on foot of such a judgment against the individual members. I
find it hard to regard this omission as accidental but, however
that may be, the fact is that Parliament has not provided any
machinery for extending what I may call a registered name judg-
ment so as to make it enforceable against members as such.
The situation where the members are sued by name or by duly
appointed representatives raises different and, as it seems to me,
more difficult considerations, but as that situation does not arise
here I express no opinion upon it.

My Lords, as counsel for the union conceded—very rightly as
I think—that section 4 of the Act of 1871 did not apply to these
proceedings, and as the competence of the courts to embrace a
claim of this kind is not otherwise open to question, it only
remains to inquire whether Kelly's case 7" was properly decided.
The foundation of that decision, the view that a registered trade
union is not a juridical person but an association of individuals,
having been accepted, this question turns on the soundness of
the reasoning, based on that foundation, which led to the conclu-
sion that a member could not recover damages against his union
for being expelled in breach of the contract contained in the rules.

My Lords, the salient facts in Kelly's case 77 are so similar to
those of the present appeal that I need not_refer to them at
length. In each case the party seeking redress had been actually
expelled from his union; in each the expulsion was wrongful and
in breach of the rules forming the contract between the members;

7 84 L.J.K.B. 2286.

A.C. AND PRIVY COUNCIL.

147

and in each the union stood behind the expulsion and sought to H. L. (E.)

justify it as warranted by the rules until it had to admit defeat
on that issue before the Court of Appeal. In Kelly's case,77 it is
true, the expulsion was the act of a committee, while here it was
the act of an official; but in my opinion this difference is not
important and may be disregarded. What is important is to
ascertain the ratio decidendi of Kelly's case.77_ As to that, it will
be convenient to refer first of all to two points which appear not
to form part of the ratio though this, of course, does not neces-
sarily impair their relevance. The first arises from the words of
Phillimore L.J. concerning the plaintiff 7*: ''.
i, trade union for what it has done, he is suing himself among
lik others.'' This point is not mentioned in the other judgments
"and it may be that it was only made by way of emphasizing what
I regard as the true ground of the decision. But if, as also seems
possible, it is a procedural point and was meant to suggest that a
member who sues his union in its registered name cannot succeed
because he is also suing himself, I think it must be wrong.
The right of a member so to sue for a declaration and injunction
regarding his expulsion is now well settled and I do not see how
a claim for damages can be distinguished in this respect. The
second matter arises on that part of the judgment of Bankes L.J.
in which he says'*: '' Further than this, the very ground on
"* which the plaintiff succeeds in obtaining an injunction is fatal to
'"his claim for damages. He succeeds in that claim because he
'"has established that the London committee and the executive
'"committee in expelling him from the society acted without
'authority and in defiance of the rules. Having established that
'' fact, it is not possible to contend that they were at the same
''time the authorized agents of his fellow members to do the
''acts which he complains of as constituting breaches of his
"* gontract.'' I have no doubt that this point, which is not taken
by the other members of the court, is outside the ratio of its
decision; but I have considerable difficulty in seeing how it can
be applied to the facts of Kelly's case *° if I have gathered them
aright. Had the union there disavowed the action of the com-
mittee the reasoning of this passage would be plainer, but instead
of doing that the union appears from the reports to have approved
the views of the committee and to have adopted what it had
done. Here the relevant facts preclude the point, if anything
more clearly. There is little more the Musicians' Union could

'

77 84 L.J.K.B. 2236. 79 Tbid. 2239.
78 Tbid. 2238. 80 84 L.J.K.B. 2236.

. lf he sues the !

1955

Bonsor
v.
Musicians'
UNION.

Lord
MacDermott.

\

148

HL. (B)
1955

Bonson
v.
MusIcIANS'
UNION.

Lord
MacDermott.

HOUSE OF LORDS [1956 |

have done to identify itself with the expulsion of Mr. Bonsor. It
has made the act of the branch secretary its act and cannot now
say that because the expulsion was unauthorized by the rules it
has no responsibility for it.

With these points out of the way the ratio of Kelly's case *°
is, I think, clear. It is, in my opinion, accurately described in
that part of the headnote which says: '' A member of a trade
''union who has been illegally expelled by the committee .. .
'cannot recover damages for breach of the contract contained
'in the rules, since the committee who were responsible for
'breaking the contract were acting as agents for the plaintiff
'' equally with his fellow members.'' As I read the judgments
of the Court of Appeal, this was regarded by all the learned judges
as the outstanding reason why the claim for damages failed.
Bankes L.J. stated it more fully than the other members in
saying §1: '' The plaintiff's case is that this contract has been
'broken, not by all the other members personally, but by the
'* London committee and the executive committee acting as the
'"acents of those other members. It is here, I think, that the
'' plaintiff fails. It is true that both these bodies were appointed
'""by the general body of members, and as such they are the
""agents of the members, but they are just as much the agents
"of the plaintiff as the agents of his fellow members whom he
"" seeks to make lable under their collective name."'

My Lords, as I follow it, this reasoning is not based on any
concept peculiar to the law of trade unions.,At appears to be
founded on a general proposition to the effect that a member of
a voluntary association who is injured by some wrongful act done
by an agent of the association on behalf of its members, including
himself, cannot recover against his fellow members whose respon-
sibility, in the circumstances, will be no greater than his own.
For the purposes of this appeal I am prepared to accept that
proposition without inquiry as to what, if any, are the limits to
be put upon it. But one of its essential ingredients is that the
act complained of should be done by the agent on behalf of the
injured member. Was the Court of Appeal right in holding that
the committee which expelled Mr. Kelly was, in so doing, acting
as his agent? In the present case Denning L.J. answered that
question thus *?:; '' I cannot,'' he said, '' understand this line of
'""reasoning. I cannot understand how it can be said that the
"committee, when they were excluding Kelly, were acting as

'

«

80 84 L.J.K.B. 22386. 82 [1954] Ch. 479, 518; [1954] 2
81 Tbid. 2239. W.L.R. 687; [1954] 1 All E.R. 822.

A.C. AND PRIVY COUNCIL.

"agents on his behalf. They were acting against him, not for
'""him.'' My Lords, I think this criticism is well founded and I
agree with it. Expulsion from membership of a trade union
stands, as a breach of contract, in a special category. It may
be that a union committee or official, while investigating a com-
plaint against a member, can be said to be acting on his behalf.
I do not need to decide that or to say where the line is to be
drawn. We are now concerned with a later stage, with the act
of expulsion, when what is being done is to thrust a party to the
contract out of the combination on the ground that he is no longer
entitled to any of the rights or privileges of membership. To say
that that is done on behalf of the person expelled seems to me
an unwarranted extension of the agency and quite out of keeping
with reality.

For this reason I think Kelly's case ** was wrongly decided,
and as I see nothing else to stand in the way of an award of
damages, I would therefore allow the appeal and remit the case
for the purpose of assessing the amount to be recovered._/

Lorp Keita or AvonHotm. My Lords, much of the discus-
sion on this appeal has been directed to the question of the
status of a registered trade union. On the one side it is said that
such a trade union is a legal entity capable of being sued by a
member for breach of his contract of membership. On the other
side it is said that such a union is only a voluntary unincorporated
association of individuals incapable of being sued by a member,
qua member, for breach of contract. My Lords, I think that
the decisions of this House show that, in a sense, a registered
trade union is a legal entity, but not that it is a legal entity
distinguishable at any moment of time from the members of
which it is at that time composed. It remains a voluntary
association of individuals but it is capable of suing and being
sued in its registered name; it holds property, through trustees,
against which a creditor holding a decree against it could levy
execution; it acts by agents; and it has other rights and is subject
to other liabilities set out in the Trade Union Acts. It differs
from an unincorporated association in that it is unnecessary to
consider who were the members at any particular time. For
instance, it is immaterial who were the members at the time that
any cause of action arose, or what members have joined the
union since the cause of action arose. The registered trade union

83 84 L.J.K.B. 2236.
A.C. 1956. 11

149

H. L. (#.)
1955

Bonsor
v.
Musicians'
UNION.

Lord
MacDermott.

150 HOUSE OF LORDS [1956 |

H. L. (E.) may be said to assume a collective responsibility for all members
1955 past, present and future, in respect of any cause of action for
which it may be made liable, irrespective of the date of the cause
BPO of action. On the other hand, the judgment creditor can look
Mustorans' only to the funds of such a trade union to satisfy his debt, and
UNION. to the extent to which these may be augmented from time to
ord Keith time by contributions of members, whether new or old, they will
still be available for the unsatisfied judgment: creditor.

These are important attributes, or characteristics, of a
registered trade union which, in my opinion, differentiate it from
other voluntary associations and may entitle it to be called a legal
entity, while at the same time remaining an unincorporated
association of individuals. As an association its membership is
constantly changing but as a registered trade union it has a
permanent identity and represents its members at any moment of
time. It would not, I think, be wrong to call it a legal entity.

The view which I have endeavoured to formulate is, I think,
entirely consistent with the decisions and dicta in earlier trade
union cases which have come before this House. In the Taff
Vale Railway case ** Farwell J., whose judgment was upheld by
this House, does not describe a registered trade union as a legal
entity, though he does so in another case to which I refer later.
He uses language, however, from which, I think, the conception
of such a union as a legal entity arose. For instance, he says **:
'""Now, although a corporation and an individual or individuals
'"may be the only entity known to the common law who can sue
"or be sued, it is competent to the legislature to give to an
"association of individuals which is neither a corporation nor a
'* partnership nor an individual a capacity for owning property and
'acting by agents, and such capacity in the absence of express
""enactment to the contrary involves the necessary correlative of
"liability to the extent of such property for the acts and defaults
"of such agents. It is beside the mark to say of such an associa-
"tion that it is unknown to the common law. The legislature
""has legalized it, and it must be dealt with by the courts
"according te the intention of the legislature.'' In other places

_ he refers to it as a creature of statute. In this House Lord
Halsbury L.C.** expressly adopted the judgment of Farwell J.,
and in a short sentence referred to such a trade union as a thing
created by the legislature. Lord Macnaghten, Lord Shand and
Lord Brampton also accepted the judgment of Farwell J. With

84 [1901] A.C. 426. 86 Tbid. 436.
85 Tbid. 429,

A.C. AND PRIVY COUNCIL.

the exception of Lord Brampton, however, none of their Lord-
ships, in my opinion, uses language which necessarily leads to the
view that he regards a registered trade union as having a legal
persona separate from that of the members of which it is
composed. Lord Macnaghten and Lord Lindley clearly regarded
a registered trade union as a voluntary association of individuals.
Lord Macnaghten says $7: '' The registered name is nothing more
"than a collective name for all the members.'' Lord Lindley
says **: "' The Act appears to me to indicate with sufficient
"clearness that the registered name is one which may be used
"to denote the union as an unincorporated society in legal
"proceedings as well as for business and other purposes. The
"use of the name in legal proceedings imposes no duties and
'alters no rights: it is only a more convenient mode of proceed-
"ing than that which would have to be adopted if the name
"could not be used.'' He points out, however, that the liability
of a registered trade union is limited to the union funds. The
decision of this House was to uphold an injunction granted by
Farwell J. against a trade union in its registered name, but that
injunction was grounded on tort and it is clearly implicit in the
judgment of this House that such a trade union could be made
liable in damages for tortious acts against a non-member. In
fact, a very large award of damages was made against the
particular trade union in that case.

In Yorkshire Miners' Association v. Howden **® Lord Lindley
said: '' A trade union is, and its name is only a convenient designa-
"tion for, an unincorporated society of individuals,'' and
referring to the Taff Vale case *° he said *!: '' But care was taken
''in that case to point out that a trade union is not an incor-
'' porated society, although it may be sued in its registered
'""name.'' In Amalgamated Society of Railway Servants v.
Osborne °? the powers of a registered trade union were assimilated
to the powers of a limited company or a corporation, but that
was only on the question whether its rules were ultra vires of the
statute. In that case, Lord Halsbury ** referred to a registered
trade union as being a "' legalized combination having power to
''act as a person.'' In Russell v. Amalgamated Society of
Carpenters and Joiners ** Lord Macnaghten again took occasion
to re-affirm that a '' trade union is merely an unincorporated

87 [1901] A.C. 426, 439-440. 91 [1905] A.C. 256, 280.
8 Ibid. 445. 2 [1910] A.C. 87.

9 [1905] A.C. 256, 280. 3 Ibid. 93.

90 [1901] A.C. 426. 4 [1912] A.C. 421, 429

co)
©

o
o

o

151

H. L. (B.)
1955

Bonsor

0.

MUSICIANS'
UnNIon.

Lord Keith
of Avonholm.

152

Leela (Eis)
1955

BonsoR
v.
MUSICIANS'
UNION.

Lord Keith
of Avonholm.

HOUSE OF LORDS [1956]

"society of individuals.'' Lastly, I should refer to what
Farwell L.J. said in Osborne v. Amalgamated Society of Railway
Servants *: '' A registered trade union is thus a statutory legal
'' entity, anomalous in that, although consisting of a fluctuating
''body of individuals and not being incorporated, it can own
'' property and act by agents.'' These words, in my opinion,
indicate that Farwell L:J., in calling a registered trade union a
statutory legal entity, recognizes that it is at the same time an
unincorporated association of individuals, and not something
standing separate and apart from the individuals of which it is
composed.

This view is, in my opinion, supported by a consideration of
the terms of section 4 of the Act of 1871, which prevents any
court from entertaining any legal proceedings instituted with the
object of directly enforcing or recovering damages for the breach
of, inter alia, ''any agreement between members of a trade
'"" union as such, concerning the conditions on which any members
'"' for the time being of such trade union shall or shall not sell
'"' their goods, trarisact business, employ, or be employed.'' This
provision is applicable alike to registered and unregistered trade
unions and is only consistent with the view that in the matters
covered by this head of section 4 the rules are agreements
between the members. The definitions also of a trade union
in the Acts of 1871, 1876 and 1913 apply equally to registered
and unregistered trade unions. This may not be conclusive, but
it shows that the essential quality, or inherent structure, of the
two bodies remains the same.

Reference was made in the course of the argument and by
Denning L.J. in the Court of Appeal to passages in the judgments
of Birkett J., Scott L.J. and Uthwatt J. (as he then was) in
National Union of General and Municipal Workers v. Gillian °6
on the legal status of registered trade unions. In my opinion,
these passages go further than is warranted by previous authority
and cannot be supported. :

In the result, then, my view is that Mr. Bonsor's contract of
membership was a contract between himself and the other
members of the union. On the view I have endeavoured to
express it may be regarded also as a contract with the trade
union, for the trade union, in its registered capacity, is repre-
sentative of all the members. So long as this is kept in view it is
convenient to talk of a member's contract of membership as a

95 [1909] 1 Ch. 163, 191. 96 [1946] K.B. 81.

A.C. AND PRIVY COUNCIL.

contract with his trade union. Has, then, the plaintiff a right to
sue the trade union for breach of contract?

The Court of Appeal has held itself bound by the decision
in Kelly v. National Society of Operative Printers' Assistants 7
and the question is whether Kelly's case °7 was rightly decided.
That case was decided in the Court of Appeal by a strong court.
On its facts it is indistinguishable from the present case. Kelly
sought against a registered trade union a declaration, an injunc-
tion and damages in respect of illegal expulsion from the union.
He was held entitled to a declaration and injunction, but his
claim for damages was refused. I find it unnecessary to analyse
the judgments in detail. The ratio of all the judgments appears
to me to be that in complaining of the action of the officers of the
union in expelling him the plaintiff was complaining of the
conduct of agents of all the members of the union, including
himself, and that in suing the trade union he was suing himself
among others. In my opinion this reasoning suffers from an
underlying fallacy. A simple example will illustrate the point.
Take the case of a member who has been illegally expelled by a
majority of members at a general meeting which is sufficient to
bind the union. No question of agency arises here. The member
may be entitled to sue the individuals of the majority for damages
in some form of action. I do not find it necessary, however, to
decide this point. He could not, it is clear, sue the individuals
of the minority. But I see no reason why, if the union is bound
by the voice of the majority, the member should not be able to
sue the union as here for a declaration and injunction, and the
question would then arise, clear of any question of agency,
whether he could sue it for damages and recover against the
union funds. If the expulsion takes place on the initiative of the
union officials it appears to me that it reduces the position to an
absurdity to say that the officials were acting as the expelled
member's agents in the matter of the expulsion. They are no
more his agents in the matter complained of than would be a
majority who expelled him in a general meeting. There may be
cases where a trade union disclaims the action of an official or
officials and in which, accordingly, the conduct complained of
cannot be said to be the act of that trade union. But in such a
case the member would be speedily restored to his status as a
union member and would, presumably, in the matter of any claim
of damages, have to proceed against the individual or individuals
concerned. But that can hardly apply in this case, where Mr.

97 84 L.J.K.B. 2236.

153

H. L. (E.)
1955

Bonsor
v.
MUosIcIANs'
UNION.

Lord Keith
of Avonholm.

154 HOUSE OF LORDS [1956]

H. L. (E.) Bonsor was excluded from his union for over four years, and
where the trade union has maintained up to the Court of Appeal
the validity of his expulsion.
BoNece This leaves the way clear for consideration whether there is
Musictans' any other reason why a registered trade union cannot be sued by
UNION. a member in damages for breach of his contract of membership.
or rd Keith ~The decision of this House in the Taff Vale case °° leads inevit-
ably to the conclusion that prior to 1906 a trade union could be
sued, as such, in its registered name for damages for tort
committed against a third party. Liability for tort was subse-
quently abolished by statute, but liability in contract remained,
and, in principle, there is no reason why a member of such a
trade'union should not have the right to sue for damages for an
act committed by the trade union in breach of his contract of
membership under the rules. As I have said, such a union
assumes a collective responsibility for all its members. It
provides the element of continuing responsibility no matter how
its membership changes. In no other way, in my opinion, is it
possible to support the result implicit in the judgment in the
Taff Vale case ** that a trade union as constituted at the date of
the action, or at the date of the judgment decree, or at the date
of enforcement of the decree, is responsible for its tortious acts
whenever committed and however much its membership has
changed since the date of the tort.

In my opinion, the case of Kelly °*® was wrongly decided. A
member of a registered trade union who has been damnified by
breach of his contract of membership is entitled, in my opinion,
to sue his union for damages provided his claim is not struck at
by any of the provisions of section 4 of the Act of 1871. Counsel
for the respondents declined, no doubt wisely, to argue that this
action was so excluded, although his attention was drawn to the
Scottish case of Berry v. Transport and General Workers'
Union.2°° That case is very shortly reported both on the facts
and on the grounds of judgment, and there may be facts undis-
closed in the report that would explain the judgment. But,
considering the matter independently, I agree that an action of
damages by a member of a trade union for breach of contract of
membership is not necessarily excluded by the statute. Much
may depend on how the claim is formulated. The basis and
quantification of the claim in this case has still to be considered.

I would allow the appeal.

1955

98 [1901] A.C. 426. 100 1933 Session Notes 110.
99 84 L.J.K.B. 2286.

A.C. AND PRIVY COUNCIL.

155

Lorp SoMERVELL OF Harrow. My Lords, this appeal raises H. L. (E.)

two questions. First, has a member of a registered trade union
who is wrongfully expelled a right to claim special damage if he
can prove that he has suffered any? If the answer is '' Yes,"'
then can judgment be obtained in proceedings against the union
under its registered name?

The position in law of trade unions under the various Acts of
Parliament is a special one. To import into the subject such
general phrases as "' legal personality,'' '' legal entity,'' '' quasi-
"" corporation,'' whatever '' quasi'' may mean, may well serve to
obscure that which is not in any case particularly easy to discern.
I will therefore endeavour to summarize the effect of the decisions
as I understand them so far as is relevant to this appeal.

It was decided in the Taff Vale case }°! that an action lay
against a trade union in its registered name for torts committed
by its agents. Section 4 of the Trade Disputes Act, 1906,
removed this liability, but the procedural importance of the deci-
sion remains. Lord Lindley said 1°: '' The Act appears to me to
"indicate with sufficient clearness that the registered name is one
"" which may be used to denote the union as an unincorporated
"" society in legal proceedings as well as for business and other
""purposes. The use of the name in legal proceedings imposes
""no duties and alters no rights: it is only a more convenient
"" mode of proceeding than that which would have to be adopted if
""the name could not be used.'' Lord Lindley added that, in his
opinion, a judgment against the union, eo nomine, could only
be enforced against the property of the union. The " suability,''
coupled with this limitation, avoided, apparently, any question of
limiting the liability to the members, or the funds the property
of the members, at the date of the tort. Although Lord
Brampton !°* used the words '' newly created corporate body,''
it is clear from the speeches of Lord Macnaghten, Lord Lindley
and, I think, Lord Shand, that the association or '' combination "'
of members remained an unincorporated association or combina-
tion. The nature of the association was unaffected by registra-
tion. Lord Halsbury adopted the judgment of Farwell J. Lord
Macnaghten agreed with that judgment and clearly thought that
Farwell J. had proceeded on the basis that a trade union remained
a voluntary association of members, though he had not expressly
so stated.

101 [1901] A.C. 426. 103 Tbid. 442.
102 bid. 445.

1955

Bonsor
v.
MosiIcrans'
UNION.

156 ; HOUSE OF LORDS [1956 |

H. L. (E.) In Osborne v. Amalgamated Society of Railway Servants *°*
1955 (usually referred to as the second Osborne case) the plain-
tiff brought proceedings against the union in its registered

jets name in respect of their alleged wrongful expulsion. He

Musicrans' claimed declarations and an injunction. The case, as reported,
UNON: was heard on two preliminary points. First, were the rules of
sort, the union in restraint of trade? If not, then its legality did not
of Harrow. depend on the Act of 1871, and section 4 of that Act did not

apply. If the rules were in restraint of trade, then it was sub-
mitted that the plaintiff's claim was a proceeding instituted with
the object of directly enforcing an agreement for the application
of the funds of the trade union to provide benefits to members,
a proceeding which was prohibited by section 4 of the Act. The
Court of Appeal considered both points, although success on either
would have entitled the plaintiff to proceed to trial. It held that
a wrongful expulsion action was not prohibited by section 4 of the
Act of 1871. It was never suggested that proceedings in respect
of the alleged wrongful expulsion were not properly brought
against the union under its registered name.

The question whether section 4 of the Act of 1871 was a bar
to a wrongful expulsion claim came before your Lordships' House
in Amalgamated Society of Carpenters, Cabinet Makers and
Joiners v. Braithwaite.t°> It was held that the section was not
a bar, approving the decision of the Court of Appeal in the second
Osborne case.'°® The action was one to restrain a threatened
expulsion, so no question of damages could arise. It was again
accepted that the trade union, in its registered name, was the
proper defendant in wrongful expulsion proceedings.

In the meantime, the Court of Appeal had decided in Kelly
v. National Society of Operative Printers' Assistants }°' that a
member of the defendant society wrongfully expelled was entitled
to a declaration and injunction but not to damages.

Your Lordships were invited by the appellant to distinguish
the Kelly case 1°' on the ground that the rules of the defendant
union in the present case amounted to an agreement between the
members and the union and not, or not solely, to an agreement
of the members inter se. I do not accept this suggestion, for
reasons which I will state briefly later. I propose to consider
the Kelly case '°7 on the basis that the rules contain a contract
between the members. If that contract is broken by a wrongful
expulsion prima facie, as it seems to me, the party aggrieved can

104 [1911] 1 Ch. 540. 106 [1911] 1 Ch. 540.
105 [1922] 2 A.C. 440. 107 84 L.J.K.B. 2236.

A.C. AND PRIVY COUNCIL.

157

claim nominal damages and special damages if he could prove H. L. (E.)

any. The main defence in the Kelly case }°' was based on the
construction of the rules and does not assist in the present
appeal. The expulsion was held to have been wrongful and
damages had been awarded by the county court decision. The
point with which your Lordships are concerned was taken,
apparently, by the court in the Court of Appeal. The reasons
given by the Lords Justices have already been set out and, with
respect, I am unable to accept them. If, under a contract to
which there are a number of parties, the many by themselves,
or through the agents of the association, purport to deprive the
one of his contractual rights, the one, subject to possible pro-
cedural difficulties, must be entitled to the rights, including that
to special damage, which our law confers in respect of breach of
contract. It cannot, as it seems to me, be right to identify the
plaintiff in such a case with those of whose acts, or of whose
agent's acts, he complains, so as to deprive him of his ordinary
remedies. So far as procedure is concerned, if the union in its
registered name is the proper defendant for a declaration and
injunction, it would seem to me to be the proper defendant also
in a claim for damages, though it would, I think, be right that
the trustees should be added as parties. The damages, if any,
will be recoverable only from the funds.

I turn to the appellant's primary submission that the contract
of each member was in the present case with the union as a
contracting party. It raises two issues. First, do the rules, on
their true construction, purport to effect such a contract?
Secondly, has the union power under the statutes to be such a
* contracting party?

Even if the answer to the second question were "' Yes,'' it
would still, of course, be open to the members so to draft the
rules as to constitute a contract inter se only and not a contract
with the union.

In considering the rules it may be helpful to consider the
general form that rules of any voluntary association, such as a
members' club, would take. In such a case the name of the
association plainly does not and cannot denote a contracting
party, but it would be difficult not to use words which would be
apt if the '' name "' could be a contracting party. I do not think
the present rules, in their reference to the union, go beyond this.
I would not myself construe them as having any other basis than
a contractual one as between members. On the second question,

107 84 L.J.K.B. 2236.

1955
Bonsor

MUSICIANS'
UNION.

Lord
Somervell
of Harrow.

158

H. L. (£.)
1955
Bonsor

oD.
Mosicians'
UNION.

do Wie

1955
Dec. 15.

1956
Jan. 11.

HOUSE OF LORDS [1956]

whether a union would have power so to contract, I agree with
the reasoning and conclusions of my noble and learned friend,
Lord MacDermott, on that point and on the general position.

I, therefore, would allow the appeal, and the matter should
be remitted for the appellant to prove, if she can, special damage
in law from the wrongful expulsion.

Appeal allowed.