Therefore, the trade union official had never threatened a breach of contract because the contracts began afresh with a new day's work.. Kennedy J presided over the trial where the jury found that the plaintiffs had suffered damage to the extent of £20 each, and assessed the damage accordingly.
But a perusal of the judgments delivered by the learned judges in Lumley v. Gye shews that in their opinion at any rate it was vital to the plaintiffs' case that there was a subsisting contract of service.
Crompton J. says that a person who maliciously interrupts the relation subsisting between master and servant during the time stipulated as the period of service commits a wrongful act for which he is responsible at law.
And answering the argument that the rule did not apply where the service had not commenced, although there was an existing contract, the learned judge says: “I think that the relation of master and servant subsists sufficiently for the purpose of such an action during the time for which there is in existence a binding contract of hiring and service between the parties.” Erle J. states the general principle thus: “He who maliciously procures a damage to another by violation of his right ought to be made to indemnify, and that whether he procures an actionable wrong or a breach of contract.” An employer may discharge a workman (with whom he has no contract), or may refuse to employ one from the most mistaken, capricious, malicious, or morally reprehensible motives that can be conceived, but the workman has no right of action against him.
In another leading tort case in the context of union strike action, Rookes v Barnard,[3] Lord Devlin expressed disapproval.