Metrobus Ltd v Unite the Union, Court of Appeal - Civil Division, July 31, 2009, [2009] EWCA Civ 829

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Metrobus Ltd v Unite the Union, Court of Appeal - Civil Division, July 31, 2009, [2009] EWCA Civ 829

Neutral Citation Number: [2009] EWCA Civ 829

Case No: A2 2008/3018

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MR JUSTICE KING

HQ08X03948

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31 July 2009

Before:

THE PRESIDENT OF THE FAMILY DIVISION

LORD JUSTICE MAURICE KAY

and

LORD JUSTICE LLOYD

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Between:

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(Transcript of the Handed Down Judgment of

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John Hendy Q.C. and Simon Gorton (instructed by EAD solicitors LLP) for the Appellant

Charles Béar Q.C. and Paul Gott (instructed by Bircham Dyson Bell LLP)

for the Respondent

Hearing dates: 1 and 2 July 2009

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JudgmentLord Justice Lloyd:

1. This appeal is against an order of Mr Justice King made on 9 October 2008, by which he granted an interim injunction restraining the Defendant trade union (to which I will refer as UNITE) from calling a strike. The point of the appeal is not as to whether that strike should go ahead; there is no question of that. However, UNITE takes the view that the grounds on which the judge decided to grant the injunction constitute a serious impediment on its ability and that of any other trade union to call a strike. On that basis permission to appeal was granted by Sedley LJ on the main two grounds of appeal. He adjourned to the full hearing the application for permission to appeal in respect of a third ground, going to the judge's exercise of his discretion. Since then the ambit of the appeal has been widened by an amendment to the grounds of appeal to bring in article 11 of the ECHR. As a result we have been shown decisions of the European Court of Human Rights about article 11, one as recent as April this year, and also texts and materials from the International Labour Organisation, the European Social Charter, and other international bodies. We have also granted permission to UNITE to adduce evidence which was not before the judge because of the very short notice given of the application before him.

The facts in outline

2. UNITE represented bus drivers working for a number of different bus companies in and around London. It sought to improve the pay and conditions of all of them to a uniform level. To that end, it submitted a claim for improved terms to the Claimant, Metrobus, in 2008. Dissatisfied with Metrobus' response, on 8 August 2008 UNITE gave notice to Metrobus that it intended to hold a ballot for industrial action. The notice was given by a letter from Mr John Griffiths, who was the relevant Regional Industrial Organiser for UNITE, based at the union's Dagenham office, to Mr Alan Eatwell, Managing Director of Metrobus. That letter gives rise to the first of the points that we have to decide.

3. The ballot was held between 18 August and 1 September 2008. On 3 September Mr Griffiths wrote again to Mr Eatwell, informing him of the result of the ballot, enclosing the scrutineers' report (which showed a 90% vote in favour of action), and giving notice of industrial action to take place for 24 hours from 3am on Friday 12 September. Mr Griffiths' letter of 3 September gives rise to the other two main points that we have to consider.

4. The strike took place. However, Metrobus still proved intractable, from UNITE's point of view, and on 2 October 2008 Mr Griffiths wrote again to Mr Eatwell giving notice of a further strike, for 24 hours from 3am on Friday 10 October. On 3 October 2008 Mr Eatwell replied to that letter, as well as (in terms) to the earlier letters dated 8 August and 3 September. He said he had taken legal advice, and his long letter (9 pages) set out a number of legal issues about the ballot and the past and proposed strikes. He asked for confirmation by return that UNITE would not call any further action in reliance on the ballot and that the latest strike notice would be withdrawn. He asked to hear from Mr Griffiths as a matter of urgency, though he did not threaten proceedings as such. He copied his letter to Mr Tony Woodley, General Secretary of UNITE.

5. On 6 October Mr Griffiths acknowledged the letter by email and said he hoped to be able to respond by the next day. In fact he did not do so until 8 October, when he sought to meet each of the points which had been made. On the same day Mr Eatwell wrote again, to tell Mr Griffiths that Metrobus intended to apply to the High Court for an injunction, hoping to serve evidence later that day for a hearing the next day.

6. That is what happened. The judge heard the application on 9 October, on evidence consisting of a witness statement of Mr Eatwell to which he exhibited the documents to which ...

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