Express Newspapers Ltd v McShane: HL 1980 @LEXCLIQ BY KANUPRIYA BHARGAVA

Express Newspapers Ltd v McShane: HL 1980



There had been a wage dispute between the owners of local newspapers and the journalists who worked for them, the vast majority of whom were members of a trade union, the NUJ. Local newspapers were subjected to a strike. The Press Association, a London-based news agency staffed by journalists, provided news content to those publications. To make the strike more effective, the NUJ called for journalists from the Press Association to go on strike, which would affect both national publications and smaller newspapers. When about half of the Press Association’s journalists stayed at work, the NUJ urged on its members working for national newspapers, including the plaintiffs’ newspapers, to refuse to use Press Association content. The NUJ argued that it was engaging in the ‘furtherance of a trade dispute’ under the relevant legislative clause when it filed an application for an interlocutory injunction. Both in first instance and in the Court of Appeal, the plaintiffs prevailed.



The House granted the appeal, ruling that the defendants’ actions were not actionable since they were done in furtherance of a trade dispute. In the section at issue, the phrase ‘in… furtherance of a trade dispute’ refers to the subjective state of mind of the person doing the act and means that he does so with the intention of assisting parties to the dispute in achieving their objectives in the honest and reasonable belief that it will do so.

Lord Wilberforce, dissenting, stated that the test was objective and, to some degree, based on distance, but that the correct objective test is whether the act done, according to the general aim, is fairly capable of accomplishing its objective, as the head note indicated. Both Lord Diplock and Lord Scarman’s comments emphasise the challenges that a court would have in attempting to objectively determine what is in the “furtherance” of a trade dispute in light of the dynamics of industrial action in a specific environment.

Lord Diplock highlighted the reasoning for the subjective test approach, saying, ‘Given the existence of a trade dispute (the test of which, however wide, is still objective… ), this renders the test of whether an act was done ‘in… furtherance of’ it entirely subjective. If the party who commits the act honestly believes at the time that it will assist one of the parties to the trade dispute in achieving their goals and does it for that purpose, he is protected by the provision. I say ‘may’ rather than ‘will’ assist because the nature of industrial action makes it impossible to anticipate success in attaining its goals. Furthermore, nothing in the section requires any proportionality between, on the one hand, the extent to which the act is likely to, or is capable of, increasing the ‘industrial muscle’ of one side to the dispute, and, on the other hand, the damage caused to the victim of the act, which would have been tortious but for the section. The perpetrator may be well aware that the conduct will have just a tiny impact on resolving the trade dispute in his favour, but it will undoubtedly cause catastrophic loss to the victim, who may be a stranger to the issue and has no stake in its result. Nonetheless, the act is entitled to immunity.

If he is behaving honestly, Parliament leaves the decision to him. I must admit that I am relieved to learn that this is the law. It would be an odd and unpleasant assignment for a judge to be asked to evaluate a party’s tactics in a trade dispute and determine if, in the court’s opinion, the strategy utilised was likely to assist, or advance, that party’s side of the dispute… To persuade me that Parliament intended for the courts to serve as a type of backseat driver in trade conflicts, very specific legislative wording would be required.’

Wilberforce, Diplock, and Scarman L.L.C.


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