Mexborough and Swinton Times April 15, 1905
The Denaby Strike
Another Legal Echo
Companies Action in the Court of Appeal
The Oft Reiterated Tale
Was it Bag – dirt? – Was it 10%?
Motion for a New Trial
Analytical Argument by Mr Rufus Isaacs K.C.
The Court of Appeal cannot have been intended by its creators, who evolved the judicative Amendment Act, to loom very largely on the horizon of British jurisprudence, for the observant person of average intelligence, who has wandered through the more less stately pile which the late Sir William Street erected in the Strand, must be of opinion that the Court was forgotten altogether until the last moment, and added both by the legislature and the architect as an afterthought.
Actually, the Court of Appeal occupies a very insignificant position. It is accommodated into chambers, both of which together might be put inside Doncaster West Riding Police Court, and easily overlooked. Neither of the two Courts seem to have any relation to the other, or to any other Court in the wilderness of architecture which Street built.
Court number one, whether Master of the Roles usually presides, and in which the Lord I Chancellor of England would sit if ever he became energetic enough to exercise the full judicial function and his right to preside over the Court of Appeal.
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Proceedings in the Court of Appeal strongly resembled the Acts of the House of Lords. Kings Council,, appear in the curled bag wig, which is everyday wear of the bar, instead of in the full buttoned wig of judicial full dress. But if their hirsute adornments are curtailed their eloquence is not. In the Court of Appeal they tolerate more of what in Yorkshire we call “chin music” than they do in a gilded chamber, and it is rarely that a Lord of Appeal is awake long enough to instruct the council with an intelligible question or an understandable retort – and by the way, the tort and the retort are things they talk a lot about in the Court of Appeal, it being, so far as we can understand, a tort to call a man a liar, and retort when he replies, “you’re another.”
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Mr Rufus Isaacs, K.C., M.P., Mr Danckwerts, K.C., and Mr Clement Edwards appeared for the appellant Association.
Mr Atherley Jones, K.C., M.P., Mr S.T.Evans, K.C., M.P., and Mr Compston appeared for the personal defendant
Mr Eldon Bankes, K.C., Mr Montague Lush, K.C., Mr H.T.Wadi and Mr Cantley, M.P.appeared for the Colliery Company.
The appeal was not reached until just before the adjournment of the Court late in the afternoon. They will then present in court Messrs W. Parrott, M.P., P.Hall, J.Wadsworth, representing the Yorkshire miners Association; Mr J Wilkie, representing the Denaby and Cadeby Collieries Ltd.
Mr Rufus Isaacs K.C., M.P., in opening the case, said the action had arisen out of certain facts, the greater part of which had already been before their Lordships.
Lord Justice Matthews: One.
Mr Isaacs: one of their Lordships, and that case has since been to the house of lords, where it had been heard, but judgement had not yet been given. Many of the facts in that case were the same as in the present case and he only proposed in the course of what he had to say to state them very briefly.
The action arose in this way. At Denaby Colliery there was among the collieries employed by the plaintiff company a grievance which had existed for a number of years. It related to the question of getting what is called “bag dirt” and to the money which was to be paid to the men for the work.
Sometimes it came very easily, and sometimes it was a job for the pick, and was as difficult for the collier as if he was getting coal. The great difficulty which arose was that the Company sought to hold the men to an agreement which had been entered into between them when the bag dirt was easy to get, and which the men said should no longer hold good when it became difficult. This question had been a bone of contention for years and the men would always say they ought to be paid an extra amount for getting the bag dirt. There was no contract in existence which was always set up against the men, and when they complained about having to get this bag dirt the employer always said, “We are paying you what you are entitled to under the contract.”
No doubt they were, but the men said the conditions had changed since the contract was entered into. The matter had been before the courts twice. In February, 1902, the employees had deducted some amount from the collieries wages on account of this bag dirt, and an action was brought in the County Court in respect of the sum in dispute, which was about £40. The verdict was against the men, the employers winning on the contract, but the Judge throughout the suggestion to the men and masters that the time come when they might settle some new contract. The men, in consequence of this, waited on Mr Chambers, the colliery manager, but he refused to discuss the question. He said: “There is the contract, I will not deviate from it.”
The matter went on until June 1902, when a sum of £8.15 was deducted from the wages of the men employed, in four of the stalls and that led at once to a meeting of all the men employed at the colliery, and the decision was that they would not work further until they could get their grievance redressed.
There was no doubt when they stopped work they were committing a breach of their contract, and as soon as the Association became aware of it they sent word that it would not do; but that they must go back to work and put themselves in order, and if they determined that they wanted to come out they must give notice in proper form, and leave at the end of their notice.
One very material point which had arisen was whether the defendant Association could be made responsible for the acts of Nolan and Humphreys, two of the defendants to the action, who had put in no defence. They were the branch delegates, and it was common ground, he believed that these two men caused the strike and caused the men to break their contract.
Lord Justice Matthew: it was held in the former case that when the men struck the employers accepted that as the termination of the contract.
Mr Rufus Isaacs: I accept that my lord.
Lord justice Matthew: I should think you did. (laughter)
Nolan and Humphries action
Mr Isaacs was proceeding to argue that the acts of Nolan and Humphries being contrary to the rules of the Association, and committed without consulting the Association, could not be saddled upon the Association when the Court adjourned until Wednesday.
Resuming his argument Wednesday morning, Mr Rufus Isaacs said on the previous day he had indicated what one of the main points in the case must be, they regarded it as one of the main points because he thought if he can satisfy their lordship that the view his client’s took was right, that it will be unnecessary to enquire into greater part of the case. The point was as to how far the branch delegate or branch committee met, could make the Association responsible for acts which were clearly not within the powers of the branch delegates.
Lord Justice Cozens-Hardy: We had something like this a few weeks ago.
Mr Isaacs: I remember my Lord, and that case involved a point is raised in this case, almost similarly. The learner Council, continue, said if you were right in saying there was no authority to Nolan and Humphries, were the branch delegates, to bind the Association by their acts, which were said to be unlawful acts, and he brought the Association out of the responsibility which was sought to be forced upon it for £150,000 damages.
The case presented against the Association was that the strike in June 1902 was produced, not by the Council of the Association, or by the Executive Committee, but by two of the branch delegates, and that these two men having induced the colliers to break their contract with the plaintiffs had committed a tort for which the Association became responsible. The Association plaintiffs allege, was responsible for all the damage which are being caught from the date of the strike, and had been guilty of an unlawful conspiracy in connection with the strike. It would be more convenient to deal with the case in two parts, because there was a period at which some acts were done and must live by that Association.
Those acts began on 15 July, when the strike had been in operation for a fortnight. From that time onward the fact which was relied upon against him was, so far as that evidence was concerned, the fact that the Association distributed strike pay to the men who refused to go back to work. The men then were under no contract, and they were entitled to work or not as they pleased. The men refused to go back, and then the Association paid the strike pay. It had been held by the Court that the fact proved did not bring the men within the operation of the rules which entitled the Association to pay strike pay. Because the Association pit strike pay for 24 July to the end of the site, it was said, first, that it ratified – whatever that might mean under the circumstances that are adopted the strike of 29 June, and that, therefore, it became responsible in some way which he (counsel) confessed he had always failed to appreciate.
It was said the Association became responsible from the beginning of the strike, although they set their face against it at the beginning. The case had been dealt with in such way in the Court below as to cause the greatest and fairest prejudice against the Association. It was pressed by the learners friends, although he argued against it all through the trial, that the strike had nothing whatever to do with the question of bag dirt but that it was really brought about because of an award of Lord James of Hereford by which the men at this colliery and every other colliery in the federated area, would have to submit to a reduction of 10% their wages. He had contended strenuously that this point was not relevant, but the learning judge not only allowed it to be dealt with by his learning friends, but in his summing up dwelt upon it and himself impressed the importance on the jury.
The Bag Dirt Grievance
The grievance amongst the men he said, with regard to the “bag dirt” had existed for a number of years and that was the matter on which the men went out on strike. It happened now, that by 28 June an had been made by Lord James of Hereford with regard to the wages of the colliers in all collieries except those in Northumberland and Durham. By that award there was to be a reduction of 10% in wages. The award was dated 14 June, and it came into force on 2 July, but the court will see that before 14 June the men at Denaby and Cadeby were wanting to strike an account of the “bag dirt” question. The contention of the plaintiffs Council which was very seriously prejudice the Association, was this:
The men may say they went on strike because of the “bag dirt” but that is only a pretext and a blind; the men went on strike because they wanted to get rid of the 10% reduction, which was to come into force later on in consequence of the war by Lord James of Hereford. Proceeding, counsel submitted that such a statement was totally untrue. It was totally disproved by the whole of the documentary evidence, and by the plaintiff’s own evidence. The only suggestion of evidence as to that was in the speeches of two of the men, were amongst a number and make speeches at various times deal with their grievance, namely, the 10% reduction wages by the award of Lord James of Hereford. Counsel submitted that the 10% reduction in the water nothing whatever to do with the strike. Assuming that the 10% reduction acted unfairly to the men, what reason in law was a that they should not agitate against the reduction, should not strike and refused to work till the 10% reduction was restored? In law the men would have been perfectly entitled after the award had been made to try to prevent the reduction. The question as to the 10% award, was quite immaterial to the issues which were before the Court and it ought to have been ruled out.
No Evidence Against the Association
Proceeding, counsel, then dealt in detail with finding of the jury in the Court below:
- that the defendants Nolan and Humphries, unlawfully and maliciously procured the men to break their contract of employment by going out on strike on June 29, without giving notice.
- That Nolan and Humphries in doing so purported to act as the agents of the Association and for its benefit
- that the members of the committee of the Denaby and Cadeby branches unlawfully and maliciously procured the men to break their contract of employment by going out on strike in June 29, without giving notice.
- That the members of the committee in doing so purported to act as agents of the Association of for its benefit
- that the defendants Association, by its executive Council and by its officials, ratified the acts of Nolan and Humphries, and the members of the committee is so procuring the men to break their contracts.
- That the defendant Association, by its officials by the members of the committees of the Denaby and Cadeby branch, maintain, are assisted in maintaining the strike by unlawful means.
- That the defendants Wadsworth, Parrott, Frith and Hall had not personally, but as servants of the Association, maintained or assisted in maintaining the strike by unlawful means.
- That the defendants had conspired with each other always workmen in the employment of the plaintiffs, to do the things in question, that the defendants have unlawfully and maliciously conspired together, and with workmen formally in the employ of the plaintiffs to molest and injure the plaintiffs in the carrying on of their business, and the plaintiffs were so molested or injured.
Counsel’s main point was that there was no evidence to justify the fines against the Association. Such directions as the Judge gave on the point of law were quite wrong. The Judge ruled that the main point the jury had to determine was whether the strike had been caused by the 10% reduction in the award by Lord James of Hereford. Such a ruling Counsel submitted was wrong in law. The learned judge ought to have directed the jury that that matter was wholly irrelevant. Even if the facts justify what was said by the plaintiffs, the men very tired to strike to get rid of any reduction of wages did not make anything the men did unlawful because one or two of them might have in their minds the 10% reduction as another grievance
The Main Cause of the Strike
Proceeding to refer to the correspondence counsel submitted that the resolutions and minutes proved beyond all possible controversy that the real and only question which caused the strike was the “bag dirt” question. Dealing with the rules of the Association Council said the authority of the committee of the local branches was limited to the rules and minutes of the General Council. He gave details of the many formalities necessary to gone through before the strike was permissible and traversed the facts of the dispute, which had been published at previous hearings. When counsel pointed out that after a brief absence from work the may refuse to sign on again.
The Master of the Rolls said he saw no reason why the owner should not insist on a signature to a contract before the men resumed work.
Mr Isaacs thought the order was perfectly entitled to do that. He did not think it was necessary to determine whether Mr Chambers was right or whether Mr Pickard was right as the question on signing on again. The only reason why those matters became material was for the purpose of showing that the Association was doing what it thought right and best for the purpose of arriving at a settlement.
The Master of the Rolls: the only bearing it may have is on the question as to damages.
Lord Justice Matthew: And that important question we don’t touch. We have heard nothing of the happy termination of the strike. (Laughter) What was done in the end?
The Howden Case.
Mr Isaacs said an injunction was granted by which the Association could no longer pay strike pay. The men are nothing to live on. For a time there were voluntary levies, but when the men could no longer get 9 shillings or 10 shillings a week the strike collapsed for want of funds. Great number of the men had been evicted from their homes, which belong to the plaintiffs. This led to great deal of friction towards November and December. The men had to live in tents, and that been the state of things, the plaintiffs were enabled to get hold of a man named Howden. They gave him £4 a week and putting forward as the man who was to bring the action to restrain the union from acting contrary to the rules. That was how Howden’s action came into court.
Proceeding, counsel argued that the payment of strike money in breach of rules was a matter as between this Association and its own members it did not really affect the plaintiffs in anyway. He submitted that there was not a tittle of evidence to show that the Association took any part in molesting or intimidating the men, are causing them to be intimidated. With regard to the six question left to the jury, there was no evidence here of any finding of conspiracy intent to injure, which was an essential element, nor was there any finding that the Association maliciously induced the men to break their contracts with the plaintiffs.
Molesting or Intimidation
With regard to the question of molesting or intimidating, there was not a single scrap of evidence to justify a finding against the Association of the council officials of the Association. There was some evidence that Nolan and Humphries and some members of the committee of the branches were present in the crowds on some of the occasions when the assaults were committed. That was the way in which it was sought to fasten the assaults upon the Association. Before the Association could be held liable for those criminal acts of molestation and intimidation there must be evidence which so connected the Association as to lead to the reasonable inference that it was responsible for those Acts if the law was to be as plenty is represented, it will be almost impossible for any strike to be conducted in this country.
At this point the Court rose for the day.
Mr Rufus Isaacs, K.C., on Thursday resumed is addressed to the Court, and at once dealt with the summing up of Mr Justice Lawrence in the court below. He submitted, with respect, that the learner judge misdirected the jury on the most important point at issue to his clients and the plaintiff company, it was on this ground that he asked for a new trial as an alternative to judgement in his favour.
The summing up of the learned Judge, he said, with all respect, was more remarkable for its inaccuracies and misconceptions than in anything else. The learned gentlemen then proceeded to read Mr Justice Lawrence is summing up, and almost at the outset of his perusal, pointed out that his Lordship was in error. He had informed the jury that Mr John Wadsworth, one of the personal defendant, was President of the Yorkshire Miners Association during the whole of the time of events which were the subject of this action transpired. That was not correct. Mr Cowey, who was one of the original defendants to the action, was President at the time; he had died since, and Mr John Wadsworth, was only a member of the Executive Committee, had been elected in his place will stop the government of the Association you wish to point out, was in the hands of the Council, which consisted of about 150 delegates from various collieries. The officials were present at the deliberations of the Council, but none of them and thoughts.
Nolan and Humphries, as branch delegates were members of the Council, but there was an executive committee which dealt with question arising between one Council meeting and another, and neither Nolan or Humphries were members of this Executive Committee.
Proceeding, the learned gentlemen said one of the points put by the learned judge to the jury was well it was a brawny Friday strike by the men themselves, or was it a strike adopted and ratified by the Association, the suggestion being that the Association knew what they was going on, being informed every day, and that they sanction the proceedings of the branches. With that he, in a measure, agreed, but the Association, so far from ratifying the strike continually said to the men:
“You are wrong, you must go back to work, you have broken your rules.”
It his summing up, the learned judge read to the jury a telegram from Smith to Pickard, the former being the secretary of the Denaby branch, and the latter the secretary of the Association, and at that time a member of Parliament. He was sorry to say Mr Pickard was dead, that he, in fact, died during the trial in the Court below before he could be called to give evidence. In directing the jury, however, the learned judge had omitted the most important part of that telegram. He read to them:
“Pit playing over stoppage,” but then came the words which the judge did not read: “Bag dirt question.” This was followed by a telegram from Mr Cowey, the president of the Association sent upon the instruction of the Aggressive committee, telling the men that they weren’t out contrary to the rules and resolutions of the Association.
He wished to call particular attention to this, because it was his contention that such a telegram effectively disposed of the contention that the Association had conspired to provoke or procure the strike. The very action of the Association, when they first heard of the strike, was to disclaim the credit for it and to tell the men that they were breaking the rules, yet it was now sought to be fastened upon the Association that they procured the strike and having procured it, did, by an illegal conspiracy, keep it going on in the effort to make it effective. He (Mr Isaacs) submitted to the learned judge that there was no case to go to the jury on the question of conspiracy, but his Lordship decided against it; and he therefore was obliged to call the defendant who were personally cited in the writ.
Each of these men were called and he regarded it as curious that the plaintiff’s counsel did not put a single question one of them with a view of showing that they knew the men were going on strike on 29 June. He would go further than that – there was evidence that the men had a difficulty in getting the Association to recognise the strike and grant them strike pay. One would have thought – if the theory of the other side was correct, that the Association procured the strike – the men would once have said “We are only acting upon your instructions, and you cannot stop our strike pay.”
The learned judge somehow seem to have been imbued with the idea that the Association wish to foster the strike, in order to get rid of the 10% reduction. With all respect to the learned judge, he would suggest that this was obviously absurd. If a strike against the 10% reduction was intended, the Association would have called out the whole of the collieries; in fact it would have been a strike throughout the whole of the Federated area, which included the whole of England and Wales, except Northumberland and Durham.
Mr Lush, K.C.: not Wales, I think
Miss Isaac: I am informed by those who know more about it than I do, that Wales is in the Federation.
Mr Lush: Mr Pope tells me not.
Mr Isaacs: This is a Pope which is not infallible. (Laughter)
Proceeding Mr Isaacs said the plaintiffs had not been able to point to a single instance in which the men at this time/, at any other colliery, on the question of the 10% reduction. A great deal was made of the fact that about this time there were strikes of the collieries in Yorkshire, some 20 altogether, but it was proved in evidence that the strikes were brought about by the pit lads, who had a grievance that they were going to lose a penny halfpenny per day.
The Master of the Rolls: I cannot myself see any connection between the 10% question and the Bag dirt question. I think you had better leave the other side to go into that.
Mr Isaacs: I quite agree with your lordship, but at the trial it was made a strong point by the plaintiffs. Proceeding with its criticism of the judges summing up, the learned gentlemen said the mere fact that there was damage and concert was not sufficient. They must have a concert to do an unlawful act, they must have the element of illegality. The old question was whether the man Nolan and Humphries were, prior to due 29th, acting as agents of the Association and that was exactly what was in dispute. Counsel then proceeded to go through the evidence taken at the trial, and contended that the effect of it was to prove that the strike originated from the Bag dirt question, that the defendants did not procure the strike at all, but did all in their power to make them their members conform to their own rules.
Council argument was not concluded when the Court adjourned.
To be continued …