Torquay Hotel Co Ltd v Cousins [1968] EWCA Civ 2 (BAILII) [1] is a UK labour law case concerning the liability of a union when its members take industrial action.

This was not there before, because economic torts had only existed where the result of some action was unlawful, for instance the breach of a contract, intimidation (see Tarleton v McGawley (1793) 1 Peake 270) or conspiracy to injure.

The House of Lords has subsequently rejected the existence of a separate tort for interference with a contract which can be constituted without unlawful actions or without a contractual breach.

Mr. Cousins told them: "You will have a struggle for recognition but at least you know you got through the first round" (referring, I expect, to the strike at the Palace Hotel in August, 1967).

No doubt, at that time Mr. Cousins and Mr. Nethercott knew of the arrangements to call a strike at the Torbay Hotel: for it was to start the very next day, January 28, 1968.

Mr. Pedley spoke to the shift supervisor, who took down this message: "Mr. Priestley" (union representative) "phoned this plant today to advise that there is an official dispute with the Imperial Hotel, Torquay.

Mr. Pedley also saw newspaper reporters and told them: "We are pleased that Mr. Chapman has come out into the open against us because we think he is the real nigger in the woodpile, preventing us from making progress."

This was followed up by a letter a day or two later from Mr. Bevan to Mr. Chapman, saying: "I refer to your recent esteemed order, but very much regret that we are unable to execute delivery owing to circumstances beyond our control."

Those circumstances were clearly these: The Esso drivers were all members of the Transport Union and would not cross the picket lines outside the hotel.

After much difficulty, he found a firm in Cheshire, called Alternative Fuels Ltd., who got oil from various sources, and whose drivers were not members of the Transport Union.

On Monday evening, February 12, Alternative Fuels managed to make a delivery of oil to the Imperial Hotel.

After a day or two there was a further conversation on Thursday or Friday, February 15 or 16, when Mr. Davies, the union representative in Cheshire, spoke to Mr. Sayers, a director of Alternative Fuels in Cheshire The union representative told Mr. Sayers that the Imperial Hotel was "black" and that "London" were very annoyed.

He made it quite clear that serious repercussions affecting Alternative Fuels would arise if further supplies were made to the hotel.Lord Denning MR held that for the purpose of the trade union's liability, they were unable to rely on that clause to absolve themselves from liability for the economic loss they caused.

It seems probable that the letter reached the Transport Union officials in time for them to withdraw the "blacking" instructions.

The judge put the case on the broad ground that the defendants were proposing, without justification, to interfere with the contractual relations of the Imperial Hotel, ante, P. 118E-G.

No doubt Mr. Chapman sympathised with the employers at the Torbay, but sympathy with one side or the other does not make a person a party to the dispute.

It is plain that, if delivery was hindered or prevented by labour disputes, as, for instance, because their drivers would not cross the picket line, Esso could rely on that exception clause as a defence to any claim by Imperial.

But I do not think that would exempt the trade union officials from liability if they unlawfully hindered or prevented Esso from making deliveries.

Her non-performance, being occasioned by sickness, was not a breach of contract on her part: but it was held to excuse the theatre company from continuing to employ her.

So here I think the trade union officials cannot take advantage of the force majeure or exception clause in the Esso contract.

They could not rely on an excuse of which they themselves had been "the mean" to use Lord Coke's language: see New Zealand Shipping Co Ltd v Société des Ateliers et Chantiers de France [1919] AC 1, 7, 8.

That principle was extended a step further by Lord Macnaghten in Quinn v Leathem [1901] A.C. 495, so that each of the parties has a right to have his "contractual relations" with the other duly observed.

The time has come when the principle should be further extended to cover "deliberate and direct interference with the execution of a contract without that causing any breach."

The person must know of the contract or, at any rate, turn a blind eye to it and intend to interfere with it: see Emerald Construction Co v Lowthian [1966] 1 W.L.R.

On reconsideration of the Daily Mirror case [1968] 2 QB 762, I think that the defendants there interfered directly by getting the retailers as their agents to approach the wholesalers.

Lord Reid said, at p. 324: The respondents' action made it practically impossible for the appellants to do any new business with the barge hirers.

It seems to me that the trade union officials deliberately and directly interfered with the execution of the contract between the Imperial Hotel and Esso.

By threatening "repercussions" they interfered unlawfully with the performance of any future order which Imperial Hotel might give to Alternative Fuels.

But I think it plain that the London headquarters were consulted on developments at Torquay, and took an active part in the action taken against Alternative Fuels.

I put my decision on the simple ground that there is evidence that the defendants intended to interfere directly and deliberately with the execution of the existing contracts by Esso and future contracts by Alternative Fuels so as to prevent those companies supplying oil to the Imperial Hotel This intention was sufficiently manifest to warrant the granting of an injunction.