ABSTRACT
Lord Cross: The ‘duress’ point raises the question whether the demand made by ITF that the appellants should make contributions to the welfare fund was a ‘legitimate’ demand, in the sense that, although compliance with it was enforced by pressure that amounted to duress, the appellants are, nevertheless, not entitled to recover the contributions as ‘money had and received’. The fact that your Lordships do not agree on the answer to be given to this question, shows that it is a difficult one. Up to a point, there was agreement between the parties. In the first place, it was common ground between them that, although none of the provisions of the Trade Union and Labour Relations Act 1974 have any direct application to this case, guidance as to where the line should be drawn in the field of industrial relations between ‘legitimate’ and ‘illegitimate’ demands by a trade union can be found in the provisions of the Act giving immunity from liability in tort for certain acts done in contemplation or furtherance of a trade dispute, and that the demand in this case would rank as legitimate if a refusal by the appellants to comply with it would have given rise to a dispute between the appellants and ITF connected with the terms and conditions of employment of the crew of the Universe Sentinel. Secondly, it was common ground that if a trade union were to make two demands one of which was legitimate and the other not, the existence of the legitimate demand would not preclude the employer from recovering money paid under duress in compliance with the illegitimate demand. If, to take an example suggested by Lord Diplock, ITF had coupled its demand that the appellants should increase the wages of the crew with a demand that they should contribute to a fund to assist the guerrillas in El Salvador, and the appellants had complied with both demands under duress, the fact that they could not recover the increase in wage payments would not preclude them from recovering the contributions to the guerrilla fund. I would add, although, on the facts of this case, the point does not arise for decision, that I fully concur with the view expressed by my noble and learned friend in the concluding paragraph of his speech, that in the case supposed, it would have made no difference to the right of the appellants to recover the payments to the guerrilla fund that ITF had insisted, as a condition of lifting the ‘blacking’ of the vessel, that an undertaking by the appellants to make the payments should be inserted in the contracts of employment of each member of the crew and that the appellants had, under duress entered into such undertakings with each member. A trade union cannot turn a dispute which in reality has no connection with terms and conditions of employment into a dispute connected with terms and conditions of employment by insisting that the employer inserts appropriate terms into the contracts of employment into which he enters ...
