No: A2/2001/0299

Neutral Citation Number: [2001] EWCA Civ 211
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (GIBBS J)

Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 16th February 2001

B e f o r e :

LORD JUSTICE ALDOUS
LORD JUSTICE ROBERT WALKER
and
LORD JUSTICE DYSON

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	NATIONAL UNION OF RAIL, MARITIME & TRANSPORT WORKERS	Appellant	
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	LONDON UNDERGROUND LTD & ORS	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr J Hand QC and Mr N Giffin (instructed by Pattinson & Brewer for the appellants)
Mr D Griffith-Jones QC and Mr P Edwards (instructed by Frances Low, Legal Director for London Underground Ltd for the respondent)

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Judgment
LORD JUSTICE ROBERT WALKER:
Introductory
1.			The National Union of Rail, Maritime and Transport Workers (“RMT”) has about 7000 members employed by the group of companies which runs the London Underground railway system.  RMT itself put the number employed by the four principal companies at about 6,929 in a series of letters dated 4 January 2001 and at about 7,222 in a series of letters dated 26 January 2000.  It will be necessary to come back to these letters, which are at the centre of this appeal.
2.			London Underground Ltd (“LUL”) operates all underground train services in London.  As part of its preparation for the proposed Public Private Partnership (“PPP”) it has formed three wholly owned subsidiaries, InfraCo BCV Ltd (“BCV”), InfraCo JNP Ltd (“JNP”) and InfraCo Sub Surface Ltd (“SSL”).  BCV is responsible for maintenance, renewal and improvement of the Bakerloo, Central and Victoria Lines; JNP has the same responsibilities for the Jubilee, Northern and Piccadilly Lines; and SSL has the same responsibilities for the other subsurface lines in the system.  BCV has a wholly-owned subsidiary, TMU (Acton) Ltd (“TMU”) and SSL has a wholly-owned subsidiary, REW (Acton) Ltd (“REW”).  LUL, BCV, JNP, SSL, TMU and REW are the claimants in these proceedings, and RMT is the only defendant.
3.			RMT is recognised as having negotiating rights with LUL.  It is one of four trade unions in that position, the others being the Associated Society of Locomotive Engineers and Firemen (“ASLEF”), the British Transport Operators Guild and the Transport Salaried Staffs Association.  RMT and ASLEF are at present in dispute with LUL.
4.			According to an affidavit sworn since the hearing by Mr Andrew Bindon, LUL’s Head of Employment Relations and Partnership, the approximate numbers of employees employed by the six claimant companies are 11,200, 2000, 1,600, 1,800, 60 and 220 respectively, making a total of a little under 17,000, of whom a little over 40 per cent are RMT members.  The employees, including RMT members, are spread between a large number of different workplaces and between several different categories of work.  Mr Bindon has deposed that
"RMT has members in a variety of different categories of our workforce, eg stations and revenue control, train staff, signal operations, and administrative, technical and operational managers.  Additionally, LUL has over 40 different workplaces for station staff, over 20 different train depots, as well as separate locations for signalling operations."
5.			LUL has what is known as a check-off arrangement with ASLEF, under which LUL will make a direct deduction from the salary of an employee who is a member of ASLEF and who wishes his union dues to be collected in this way.  That means that LUL has up to date information about ASLEF members and their workplaces and work categories.  There has been no check-off arrangement with RMT since 1995 and so, as Mr Bindon has deposed, LUL is not able to identify the number, category and workplace of its employees who are RMT members.  There is a high turnover of staff in station grades.
6.			As those who live or work in London are well aware, ASLEF and RMT called for a series of 24-hour strikes on the London Underground in furtherance of their trade dispute with LUL.  The first commenced at 5.30pm on Sunday 4th February and continued until the following evening.  The next is due to commence at 5.30pm on Sunday 11th February but has been called off.
7.			On Wednesday 31 January the claimants made an urgent application to a judge of the Queen’s Bench Division, Gibbs J, for an injunction restraining RMT (but not ASLEF) from backing the strike.  The claimants claimed that it would be unlawful for RMT to back the strike because it had not properly complied with the preconditions laid down in Part V of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”).  Counsel and solicitors for RMT opposed the application but now say (no doubt with some justification) that they did not have much time in which to consider and answer the claimants’ evidence.  Indeed at the time of the hearing Mr Bindon’s evidence had not yet been sworn, nor had the claimants issued a claim form or an application notice.
8.			On 1st February Gibbs J made an order granting injunctions against RMT.  Paragraph 1 of the order restrained the union from
"a)	inducing, procuring or persuading any of its members who are employees of the Claimants to break their contracts of employment with any of the Claimants by strike or other industrial action on [the three pairs of dates], in respect of the current dispute relating to safety concerns on London Underground;
b)	from interfering with the trade or business of the Claimants by inducing, procuring or persuading the Claimants’ employees to break their contracts of employment as aforesaid;
Save insofar as the same is done with the support of a ballot or ballots the Defendant has held after the date of this Order using its best endeavours to comply with the requirements of the [1992 Act] prior to doing any of the acts referred to in a) and b)."
Paragraph 2 was a mandatory order requiring RMT by 5pm on 1st February to withdraw any direction or advice to its members calling for strike action and requiring RMT to give notice of this to every Branch Secretary of the union and require them to pass the news on to Local Representatives.
9.			The judge refused permission to appeal.  This court has before it an application by RMT for permission to appeal and to adduce new evidence, with the appeal to follow at once if permission is granted.
		The statutory provisions
10.			Part V of the 1992 Act relates to industrial action.  The first section, s.219, protects action in contemplation or furtherance of a trade dispute from being actionable in tort, subject to various safeguards and conditions.  These include (by s.219(4)) the requirements of s.226 (which requires a ballot before a trade union takes action) and s.234A (which requires notice of industrial action to be given to the employer).  If those requirements are not satisfied, industrial action is (in the words of the statute) “not protected”.
11.			The relevant sections of the 1992 Act are ss.226, 226A, and 234A.  The two last-mentioned sections were inserted (together with some amendments to s.226) by the Trade Union Reform and Employment Rights Act 1993.  S.226A (2)(c) and the very similar provision in s.234A (3)(a) have been further amended (with effect from 18 September 2000) by the Employment Relations Act 1999 (“the 1999 Act”).  These amendments are incorporated into the text of the relevant provisions which were set out by the judge in his judgment, and which must now be set out again.
12.			Section 226(1) provides as follows:
"(1)  An act done by a trade union to induce a person to take part, or continue to take part, in industrial action  -
(a)  is not protected unless the industrial action has the support of a ballot, and 
(b)  where section 226A falls to be complied with in relation to the person’s employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him.
In this section ‘the relevant time’, in relation to an act by a trade union to induce a person to take part, or continue to take part, in industrial action, means the time at which proceedings are commenced in respect of the act."
13.			Section 226A (1) and (2) provide as follows:
"(1)  The trade union must take such steps as are reasonably necessary to ensure that -
(a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2), and 
(b) not later than the third day before the opening day of the ballot, the sample voting paper specified in subsection (3),
is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.
(2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing - 
(a) stating that the union intends to hold the ballot,
(b) specifying the date which the union reasonably believes will be the opening day of the ballot, and 
(c) containing such information in the union’s possession as would help the employer to make plans and bring information to the attention of those of his employees who it is reasonable for the union to believe (at the time when the steps to comply with that paragraph are taken) will be entitled to vote in the ballot."
14.			Subsection (3) of s.226A deals with the sample ballot paper.  Then come subsections (3A) and (3B) added by the 1999 Act:
"(3A)  These rules apply for the purposes of paragraph (c) of subsection (2) -
(a) if the union possesses information as to the number, category or work-place of the employees concerned, a notice must contain that information (at least);
(b) if a notice does not name any employees, that fact shall not be a ground for holding that it does not comply with paragraph (c) of subsection (2).
(3B)  In subsection (3) references to employees are to employees of the employer concerned."
15.			Section 234A is headed “Notice to employers of industrial action”.  Subsections (1) (2) and (3) provide as follows:
"(1)  An act done by a trade union to induce a person to take part, or continue to take part, in industrial action is not protected as respects his employer unless the union has taken or takes such steps as are reasonably necessary to ensure that the employer receives within the appropriate period a relevant notice covering the act.
(2)  Subsection (1) imposes a requirement in the case of an employer only if it is reasonable for the union to believe, at the latest time when steps could be taken to ensure that he receives such a notice, that he is the employer of persons who will be or have been induced to take part, or continue to take part, in the industrial action.
(3)  For the purposes of this section a relevant notice is a notice in writing which -
(a) contains such information in the union’s possession as would help the employer to make plans and bring information to the attention of those of his employees whom the union intends to induce or has induced to take part, or continue to take part, in the industrial action (‘the affected employees’),
(b) states whether industrial action is intended to be continuous or discontinuous and specifies - 
(i)  where it is to be continuous, the intended date for any of the affected employees to begin to take part in the action,
(ii)  where it is to be discontinuous, the intended dates for any of the affected employees to take part in the action, and 
(c) states that it is given for the purposes of this section."
There is a new subsection (5A), added by the 1999 Act, in identical terms to the new s.226A (3A).
16.			So there is a double statutory requirement, repeated in almost identical terms, for a union to give a notice containing information such as to help the employer to make plans and communicate with the relevant employees. The notice must contain information (if the union possesses it) as to the number, category or workplace of the relevant employees, but it need not name them. The judge said of the legislative purpose of these requirements:
"What is the purpose of the sort of detailed notification required by the statute - for example, information about the number, category or workplace of the employees concerned?  Guidance is provided by the statutory Code of Practice applicable to this situation.  It is called the “Statutory Code of Practice on Industrial Action Ballots”.  It derives its status from section 207 of the 1992 Act.  As will be noted from the guidance given (from which I shall quote), the purpose of the statutory scheme of notification is not simply technical or bureaucratic.  It is there to provide the employers with the necessary information to safeguard equipment, minimise inconvenience and disruption to the public, and is applicable to ensure the health or safety of employees or the public.  Common sense dictates that these are (or may be) very real issues in connection with a 24-hour underground strike.  The organisation and logistics required to cater for such an event may readily be seen as substantial."
The judge then set out some passages from paras 14, 16, 17 and 18 of the statutory code entitled ‘Industrial Action Ballots and Notice to Employers’.
		The hearing before Gibbs J
17.			I must now summarize the evidence as it stood before the judge.  There was no dispute as to the basic facts of the communications between RMT and the claimants, but there were disputed issues as to whether RMT could be said to possess information and whether its notices were or were not adequate to meet the requirements of the 1992 Act.  These issues turn partly on the correct construction of the statutory provisions and partly on such provisional findings of fact as the judge made on the written evidence, without any cross-examination.
18.			The present dispute arose over concerns shared by RMT and ASLEF as to the safety implications of the PPP proposals.  Those concerns are no doubt strongly and sincerely held and may also be felt by many members of the public, but they are not relevant to this appeal.  The exhibited correspondence begins with a letter dated 15 December 2000 from Mr James Knapp, the General Secretary of RMT, to Mr Derek Smith, the Managing Director of LUL.  Mr Smith replied on 18 December and there were further exchanges and then a meeting held on 3 January 2001 at LUL’s headquarters, 55 Broadway, London SW1.  This meeting was attended on the employers’ side by Mr Smith and other representatives of the claimants and on the trade unions’ side by representatives of RMT, ASLEF and the other unions.  Unfortunately it did not succeed in resolving RMT’s and ASLEF’s concerns.
19.			On 4 January 2001 Mr Knapp on behalf of RMT sent a first series of letters to LUL and the three infrastructure companies, BCV, JNP and SSL (together “the Infracos”).  It is accepted that there was an omission to cover employees of the two minor subsidiaries, TMU and REW, and undertakings were offered in respect of those companies.  Each of the four letters of 4 January stated that the union was in dispute with the employer and that a ballot was to be held for strike action.  It gave some particulars of the ballot and enclosed a sample paper.  Each letter contained a paragraph in the following form (and I quote that from the letter to LUL):
"The ballot will be of all RMT members employed by [LUL] in all categories at all workplaces.  According to my records, at the time of serving this notice, there are approximately 4938 members."
20.			There were further contacts between the two sides but still no resolution of the dispute.  Ballots were held, the closing date being 25 January.  On 26 January Mr Knapp on behalf of RMT sent the second series of letters to LUL and the Infracos.  Each letter was stated to be given for the purposes of s.234A of the 1992 Act.  Each gave notice of the proposed “discontinuous strike action”, with detailed dates and timings.  Each contained a paragraph in just the same form as the letter of 4 January, but with slightly different approximate figures for RMT membership.  The complete sets of approximate figures were as follows:

	first letter
	second letter	
LUL	4,938	5,219	
BCV	   826	   820	
JNP	   431	444	
SSL	734	739	

total	
6,929	
7,222	

21.		In the meantime the employers had already, by letters in substantially the same terms written on 25 January, expressed the view that the earlier series of letters had not complied with the statutory requirements.  Mr Bindon, writing on behalf of LUL expressed concern that
"the information you have provided in your letter is deficient in that it does not contain sufficient information so as to help LUL make plans or bring information to the attention of those of its employees that are entitled to vote in the ballot.  In particular, you have failed to provide any information on the separate categories or workplaces of your members when for example, as you are aware, LUL has over 40 groups of stations, over 20 train depots, as well as separate signalling operations.  As such, we have been unable to communicate in detail effectively with specific areas of our workforce and this is a serious disadvantage."
The letter referred to s.226A and urged RMT to rectify the defect.  The other letters were in identical terms except for the name of the employer.
22.		Mr Knapp faxed a reply on the same day.  His reply was as follows:
"Thank you for your letter dated 25 January 2001.  I am surprised that it has taken you until today, the date of the ballot result, to raise this matter.
Having noted your comments I remain of the view that my letter dated 4 January 2001 provided you with all the information that is in my possession.  This union believes that it has members employed at all stations, train depots and signalling operations, belonging to LUL.
My union does not possess information that would help LUL to make plans and bring information to the attention of their employees with regards to the category of employee to be balloted.  My union believes it has members employed in all categories of employment with LUL.
I am satisfied that our notice has complied with the requirements of Section 226A of TULR(C)A 1992."
23.		Further correspondence followed, in which the employers made an unfavourable comparison between the information which RMT had provided on this occasion and the information which it had provided on other occasions during disputes in 1999 and 2000.  Those other occasions were before the 1999 Act came into force on 18 September 2000, and RMT provided lists of names and national insurance numbers of those involved in localised disputes, leaving the employers to add particulars of grades and workplaces.  It is not necessary to go further into that correspondence.  But I must summarise the evidence before the judge as to what information RMT possessed, and how readily available that information was.
24.		I have already referred to the affidavit of Mr Bindon in support of the application.  I should quote one further passage from it:
"I have no doubt that the RMT do have information which would enable it to comply with Section 226A and Section 234A of the 1992 Act.  In the course of disputes in the past where there has been a ballot and the threat of industrial action, the RMT have been able to identify the number of its membership at specific workplaces and their grades and categories.  [He then referred to an exhibit of correspondence about the localised disputes.]  I believe the RMT is in a position to provide the proper detail on its members, their locations by workplace and the categories of those employees.  Accordingly, I believe they have not complied with the relevant statutory provisions."
25.		The evidence on which RMT relied before the judge was a witness statement of Mr James Croy, who is employed by the RMT as an Industrial Relations Officer, reporting through his line managers to Mr Bob Crow, RMT’s Assistant General Secretary.  Mr Croy had responsibility for organising the ballots of RMT members employed by LUL and the Infracos.
26.		Following on the reorganisation involving the Infracos (which took effect in April 2000) RMT’s computerised membership records did not identify which members had been transferred from LUL to the Infracos.  However Mr Croy knew that these infrastructure workers were concentrated in three branches (that is Fleet Maintenance, Main Workers, and Signals, Electrical and Track).  Mr Croy sent lists of the members of these branches to the respective Branch Secretaries and from them he obtained information as to which of the Infracos these members had joined.
27.		This information was incorporated into lists, prepared by the membership department, which Mr Croy believed to be accurate and it was used in preparing the notices of intention to ballot.  It was no longer necessary (as it often had been in practice until the 1999 Act came into force) for the union to provide a list of names.  Mr Croy referred to a notice of intention to ballot sent out by RMT on 14 November 2000 (in connection with the proposed New Year’s Eve party and fireworks in London, later cancelled).  It was in a similar form to that to which the claimants have objected but so far as Mr Croy was aware no objection was raised to the form of the November notice.
28.		Mr Croy stated that he was told by the manager of the membership department that its records were not accurate as regards the workplaces at which members worked and the categories in which they worked.  RMT used a computer which was 10 years old and whose programme had been designed to operate in conjunction with the check-off arrangements which RMT had with British Rail and (until 1995) with LUL.  The termination of the check-off arrangement had produced various difficulties described in Mr Croy’s statement.  Mr Croy came to the conclusion
"that to use the information contained on our computer system about members’ grades and locations for the purposes of a ballot notice would be of no help at all to LUL, and would be more likely positively to create confusion.  The information would be based upon a system of grades and locations which was more than 5 years old, which was likely to contain numerous inaccuracies because of the limitations of having to match a member’s self-description against a list of codes, and which in the majority of cases would not in fact give any information as to the member’s location."
29.		It was because of these difficulties, Mr Croy said, that he and Mr Crow (together with Mr Bobby Law, a Divisional Organiser responsible for London Underground) decided to approach the problem from the other end and asked themselves whether there was any workplace, or any category of work, which did not have RMT members employed in it.  They concluded that there were members at every workplace and in every category, and Mr Croy drafted the s.226A letters accordingly (although the letters do not unambiguously state that, as Mr John Hand QC, on behalf of RMT, accepted).  No objection was received from any of the employers until the faxed letters sent on 25 January 2001, the day on which the ballot closed.
30.		Mr Croy went on to state that even Branch Secretaries did not have lists of members classified by workplace or category.  When the union had held localised ballots (such as those in 1999 and 2000 mentioned in the correspondence) lists had to be produced specially and the process was extremely time-consuming.  Branch Secretaries could not carry out the task without further reference to their local representatives, who had more detailed local knowledge.  Mr Croy did not believe that the employers had been disadvantaged in making plans and in communicating with their workforces.  He referred to and exhibited copies of notices which had been issued and exhibited on staff noticeboards.
31.		The judge approached the matter on Cyanamid principles (see American Cyanamid v Ethicon [1975] AC 396) as modified - and neither side attached much weight to the modification, in the circumstances of this case - by s.221 of the 1992 Act, which requires the court to have regard to the prospect of a defence under s.219 being established at trial.  The judge referred to the evidence of Mr Bindon and Mr Croy.  He referred to the employers’ objection having been made only on the day when the ballot closed and to the union’s criticism of that as contrary to paragraph 17 of the Code of Conduct.  He noted that both sides’ counsel had been inclined to supplement the evidence with new material and said that he gave no significant weight to material which was not in evidence.
32.		The judge expressed his conclusions as follows:
“It seems to me that the claimants’ need to plan for a 24-hour strike (or a series of them) includes the need to prepare for a shut-down of services so that trains and other equipment are in the right place so as to ensure that services can be resumed with the minimum of disruption.  If equipment has to be moved or other steps need to be taken, employers need to know who remains available, where, and in which category, so that those still at work can be deployed to do the necessary work.  Such information is also needed to see whether some services can be run or, if not, then to liaise to see whether alternative arrangements can be made for the public.  These are legitimate objectives four-square within the meaning and intent of the statutory provisions.  To the extent that they can be achieved they minimise, or are likely to minimise, the loss to the claimants, who are still a public sector business, such loss, on the evidence, being estimated at approximately £3 million per 24-hour strike.  The measures would also minimise disruption and inconvenience to the travelling public.  It is arguable that that is also a legitimate objective - a point which these days perhaps the court hardly need to make.  
	There is a strong case in the claimants’ favour that the information supplied in statutory notices is effectively of no use (or almost no use) for the purposes outlined.  It does nothing to tell the claimants or enable them to find out the proportion of their workers at any given depot or in any given category who will or will not be available to work.  I accept further Mr Burke’s submission about the combined effect of the evidence of Mr Bindon and of Mr Croy.  There is a powerful case in the claimants’ favour that the defendants, through their senior officers, branch secretaries and local representatives, do have much of the information which could help the claimants in the manner contemplated by the Act and the Code of Practice.  The fact that such information may be imperfect, incomplete or difficult to collate is no reason for failing to supply it insofar as it is in the defendants’ possession.  I find that there is a strong case that a great deal of it is.
	Of course one sympathises with hard-pressed officials having to collate and produce information, but the requirement is there in the Act.  If, on the facts of this case, the consequences for the defendants are more onerous than simply supplying all their members’ names, then that, in my judgment, is not a decisive or even an influential consideration.  That situation only arises because the internal record-keeping arrangements of the union are not good enough to cope with the statutory requirements.  Further, any burden upon the defendants in having to produce information in its possession has to be balanced against the potential cost and disruption which could be prevented by producing it."
He concluded that there was a powerful case for a breach of ss.226A and 234A and that the balance of convenience was in favour of the claimants.  Indeed (on this last point) RMT had not argued the contrary. He rejected an argument based on the employers’ delay in objecting to the first notice and he granted the injunction in the terms which I have already described.
		The issues on the appeal
33.		In his application for permission to appeal and to adduce new evidence, Mr Hand (appearing with Mr Nigel Giffin for RMT) has relied on four grounds of appeal.  He has contended that the judge made two errors in construing the legislation, and that one conclusion at which he arrived was not reasonably open to him on the evidence, especially the evidence as to the deficiencies of RMT’s computer system and the data held on it.  Finally Mr Hand raised a human rights point on Article 11 of the European Convention on Human Rights (freedom of association) which was not raised before the judge.
34.		In developing his submissions Mr Hand has identified three categories of information which must, he said, be distinguished:
(1)	information which was at the time held by RMT’s membership 	department on its central computer;
(2)	information which was held at the time (either on a personal computer or in documentary form) by Branch Secretaries; and 
(3)	information which was not readily available to RMT in any form, but which RMT might have obtained by causing Branch Secretaries to ask for information from their local representatives (who might themselves have to seek information either from their members or from the employers).
Mr Hand said that the evidence before the judge focused on the first and third categories but did not sufficiently address the second category (although it was dealt with briefly in para 22 of Mr Croy’s witness statement).
35.		In view of the very short time which RMT had to prepare its evidence in answer, and in the absence of opposition from Mr David Griffith-Jones QC (appearing with Mr Peter Edwards for the respondent claimants), this court decided to admit new evidence in the form of thirteen witness statements from RMT’s Branch Secretaries (or in one case an assistant Branch Secretary) of London Underground branches, and a further witness statement from Mr Peter Waters, RMT’s membership secretary.  It is not necessary to recount these at length.  They enlarge on, and to some extent they are at variance  with, Mr Croy’s evidence .  The general picture that emerges from the Branch Secretaries’ statements is that most of them have access to a personal computer (in many cases their own, rather than equipment paid for by the union) and some but not all use the personal computer for membership records (others use it only as a word processor for correspondence).  All of them agree that information supplied to them by the union’s head office (either on disk or on printed lists) is generally out of date, inaccurate or incomplete, especially as regards workplaces and job categories.  Some branch secretaries have set about creating their own databases, with varying degrees of success.  (Ms Diana Udall, the Assistant Branch Secretary of the Central Line West Branch with about 430 members, and Mr Jim Dickinson, the Branch Secretary of the Fleet Maintenance Branch, with about 900 members, seem to have been particularly successful).  Almost all of them agree that trying to maintain accurate records is a very time-consuming task.  Many of them complain that the employers do not give them any assistance in keeping their records accurate and up to date, and that it is a task which they have to do in their own time.  Different Branch Secretaries give various figures as estimates of the accuracy of their records.  There seems to be a general view that only about two-thirds of the recorded information is accurate, and in relation to work categories many of the Branch Secretaries put the level of accuracy far below that.
36.		The witness statement of Mr Waters gives a detailed and vivid account of the difficulties of maintaining accurate membership records at RMT’s headquarters at Unity House, London NW1.  The location code “1194” referred to by other witnesses is apparently a default code which conveys no more than that the member worked for London Transport, and it is shown on the computer for about 3,175 out of 5,200 LUL employees (that is over 60 per cent).  Staff turnover and staff mobility are high, especially among station assistants.  The difficulty of updating information is strikingly illustrated by Mr Waters’ evidence that when RMT sent out letters to its entire membership (about 57,000) in order to check whether its records were correct it received only about 300 replies.
37.		Mr Hand submitted that information was possessed by the union, within the meaning of s.226A (3A) and s.234A (5A) only if it satisfied three tests.  First, it must be actual information, as opposed to information which the union could obtain by making further enquiries.  Second, it must be held either on a computer disk or in a document, and moreover in substantially the form in which the statutory provisions required it to be given, so as to exclude any information which could be produced only by undertaking the task of collating numerous files.  Third, it must be held by the union as an organisation (within the meaning of s.1 of the 1992 Act) and not by individual members of the union, even if they happened to be local representatives.
38.		Mr Hand submitted that that was the natural meaning of the language of the statute, and that any other approach would place an impossible burden on the union and prevent it calling for industrial action within a reasonable time of a dispute arising.  He relied on the case of Blackpool and the Fylde College v National Association  of Teachers in Further and Higher Education [1994] ICR 648.  That was a decision on ss.226A and 234A of the 1992 Act as they stood before amendment by the 1999 Act, that is when the crucial requirement for a notice was that it
"describes (so that he can readily ascertain them) the employees of the employer who the union intends to induce or has induced to take part."
The context of that case was a teaching force of 330 full-time and 542 part-time lecturers in six separate schools dispersed on four campuses.  The college authorities knew that about one-third were members of the union, but they knew the identities of only a much smaller number, 109, whose union dues were deducted under a check-off arrangement.
39.		The union had given a notice in much the same form as those now under consideration (“all members in each of the colleges”) except that it had not specified any number.  Morison J held that the notice was invalid and granted an injunction.  This court upheld his decision, Sir Thomas Bingham MR, Neill LJ and Steyn LJ being in complete agreement with Morison J’s conclusion.  They also agreed with his view that it was regrettable, because of the industrial relations implications, if a union had no practical alternative but to provide a list of the relevant members (whether that was so depending on the facts of the particular case).  
40.		NATFHE then applied to Strasbourg but the European Commission of Human Rights dismissed its application as manifestly ill founded, so the case gives Mr Hand no obvious assistance.  He relied on the Commission’s view that the need to reveal its membership list did not have an adverse effect on the union’s right to protect its members.  He also relied, more strongly, on the amendments made by the 1999 Act, which may have been partly influenced by the Blackpool case.  It would be astonishing, he said, if Parliament had intended to make the task of the union, not less onerous, but more onerous.
41.		Mr Hand also relied on the words “as would help the employer” in s.226A(2)(c) and s.234A(3)(a) and submitted that in the context of this particular industrial action, any further information which the union had, or might have been able to collate or obtain, would have been of no assistance, or at best marginal assistance, to the employers.  The employers knew the basic fact that they were facing an all-out strike by both ASLEF and RMT and they had to plan and proceed on that basis, knowing that RMT had members in all categories at all workplaces.  It might have been different, Mr Hand said, if there had been limited action targeted at particular areas or grades.
42.		So far as the judge was inclined to the view that RMT had brought its difficulties on itself by its own inadequate record-keeping, Mr Hand criticised that as being legally irrelevant and factually unfair.  He pointed to the difficulties (described in the witness statement of Mr Waters) of keeping track of a membership of several thousands with high staff turnover, high staff mobility as between workplaces, the termination of the check-off arrangement and the lack of co-operation on the part of the employers.
43.		By the close of Mr Hand’s submissions the issues of statutory construction had been refined to three points arising on s.226A(3A) and s.234A(5A).  First, in what circumstances can it be said that a trade union “possesses” information for the purposes of those subsections? Second, what is the minimum information which must be given, if a union possesses it, to satisfy the requirement of “information as to the number, category or work-place of the employees concerned”?  Third, how far is the minimum requirement in the subsections qualified by the legislative purpose (“as would help the employer to make plans and bring information to the attention of [etc]”) stated in s.226A(2)(c) and s.234A(3)(a)?
44.		Mr Griffith-Jones concentrated his submissions on these three points, while submitting that all three were largely academic, since the judge had found that there was a strong case that RMT had withheld relevant information which was on any view in its possession.  When the matter was before the judge there was limited time for arguments and the issues were not, I think, as clearly defined as they became in this court.  But the judge seems to have taken the view (on the first point) that information possessed by the union was not necessarily limited to that possessed by senior officers at headquarters (see p.21 of the transcript).  On the second and third points he seems (pp.20-21) to have taken the view that the construction of s.226(3A) and s.234A(5A) must be influenced by the purpose for which the information was required (see especially the first four sentences of the passage quoted in para 32 of this judgment).
		Conclusions
45.		Although these three points were argued as separate points they must all be approached, in my view, by considering the legislative purpose of the amendments made by the 1999 Act.  Under s.226A(2)(c) and s.234A(3)(a) in their original form, the clear legislative purpose was to enable an employer to know which part or parts of its workforce were being invited to take industrial action, in order that the employer could (first) try to dissuade them and (secondly, and so far as unsuccessful in its first aim) make plans to avoid or minimise disruption and continue to communicate with the relevant part or parts of the workforce.  That required the employer to be able to ascertain (that is, identify) the relevant employees.  As Morison J said in the Blackpool case (cited with strong approval by this court [1994] ICR 648, 655),  
"Whilst Parliament could have required a union always to name their members, by using the language it did, I think that Parliament apparently allowed for the possibility that there would be occasions on which a union could properly identify employees by category rather than by name." (emphasis supplied)
46.		After the concerns expressed by this court in the Blackpool case, and no doubt for other reasons also, Parliament altered the legislation by the 1999 Act so as to make plain that a union could not be compelled to provide a list of names (although a union is still at liberty to do so if it thinks fit, and if RMT had done so it seems likely that LUL and the other claimants would have continued their previous practice of themselves annotating the list with grades and workplaces).  But there was not any significant change in the legislative policy or in the purpose for which information was to be given to the employer.  The change was a change of means, not of objective, in order to meet the concerns of those members of a union who objected to being included in a list of names.  It was not intended to make it easier for a union to prepare notices under s.226A and s.234A, and indeed it is clear from the facts of this case that it may make the task more onerous.  But that is not as surprising as Mr Hand has contended.  It is the inevitable consequence of expressly enacting that a union is not bound to provide a list of names.
47.		If the amendments are approached in that way it becomes clear that the judge was right to interpret “information as to the number, category or work-place of the employees concerned” in such a way as to provide the employers with information which was useful to them.  The usefulness of the information is seriously reduced if an employer is simply told ‘5000 employees, all grades, all workplaces’ without the additional information which could be conveyed by a grid or spreadsheet, with different categories (as appropriate) listed at the side and different workplaces listed at the top, and the appropriate numbers filled in.
48.		To that extent subsections (3A) and (5A) must in my view be interpreted in the light of the legislative purpose which has always been inherent in ss.226A and 234A, and which has now been spelled out in the amendments.  However I cannot accept Mr Hand’s further submission, that information within subsections (3A) and (5A) can be withheld, even though it is clearly possessed by a union, because the union forms the view  that it would not be useful to the employer in the circumstances of the particular case.  That would be taking purposive construction too far, and ignoring the plain words of the subsections.  Unless the information which the union possesses is actually misinformation (a possibility considered below) then the union is obliged to include it, as an irreducible statutory minimum, in the notice.
49.		Mr Hand submitted in reply that that construction would deprive the language of s.226A(2)(c) and s.234A(3)(a) of any force.  That submission calls for serious consideration but I would not accept it.  In practice, in many cases, a union will no doubt discharge its obligation by providing the irreducible minimum of information.  But the words “(at least)” in subsections (3A) and (5A) point to the possibility that there may be special circumstances in which a union would have to do more.  These might include cases where the employees were concerned with specialised and potentially dangerous infrastructure or plant, or with the care of humans or animals, or with matters of national security or commercial confidentiality.  But these examples were not canvassed in argument and merely reflect the diversity of the activities in which industrial action may be contemplated.
50.		The judge was therefore right, in my view, in his conclusion that RMT was under an obligation to give more information (that is, numbers in particular grades and at particular workplaces) unless and except so far as that information was not in its possession.
51.		The issue of what information, or knowledge, is possessed by an artificial person is one which often arises in many different branches of the law.  So is the separate but associated question of how far a person (natural or artificial) can be said to be in possession of information or knowledge if he has the means of knowledge, but can produce the requisite information only by engaging in research or inquiry or collation of material in a way that may be burdensome.  These problems are illustrated (to mention only a handful of a huge volume of reported decisions) by cases on interrogatories (see for instance Stansfield Properties v National Westminster Bank [1983] 1 WLR 568 and Det Danske Hedeselskabet v KDM International (the ‘needledrop’ case) [1994] 2 LLR 534), on revenue authorities’ powers to interrogate financial institutions (see New Zealand Stock Exchange v Commissioner of Inland Revenue [1991] 1 AC 464 and the earlier cases there cited) and on corporate knowledge for regulatory purposes (see Meridian Global Fund Management Asia v Securities Commission [1995] 2 AC 500).
52.		During the argument in this court little reference was made to authorities on analogous problems in different legal contexts, no doubt because of time constraints, and I would not criticize counsel who despite those constraints have produced very helpful written and oral submissions.  This court would no doubt wish to give as much guidance as possible to those on both sides of industry who have to understand and give effect to the new legislation.  Nevertheless in the absence of fuller argument and citation of authority I think that this court should be slow to go far beyond what is necessary to decide whether the judge erred in law.  My hesitation is increased by the fact that there is now a considerable volume of written evidence which was not before the judge and which has not been tested by cross-examination.  Some of the new evidence seems to be partly at variance with that of Mr Croy, especially his statement that “even Branch Secretaries do not possess lists of members classified by category or workplace”.  Some, such as Mr Dickinson and Ms Udall, do have these records (although they readily acknowledge that they are not wholly accurate).
53.		This court was referred to the Meridian Global case and Mr Griffith-Jones based some submissions on it.  The whole opinion of the Privy Council (given by Lord Hoffmann) repays careful study but for present purposes the essential point is that in determining the mental state of an artificial person (when some statutory rule requires that rather fictional exercise to be carried out) it may be necessary to look, not only at the body’s formal constitution, but also at the way it actually organises its activities, and at the scope and purpose of the statutory rule (in that case, the regulation of fast-moving securities markets).  
54.		RMT, like other trade unions, is not a body corporate but has many of the attributes of a body corporate (the sidenote to s.10 of the 1992 Act is ‘Quasi-corporate status of trade unions’).  Section 10(2) provides that a trade union “shall not be treated as if it were a body corporate except to the extent authorised by the provisions of this Part” but that cannot inhibit the court, in determining what information RMT possessed for the purpose of ss.226A and 234A, from looking for guidance to the rules of attribution applicable to bodies corporate.
55.		This court has been shown some other provisions of the 1992 Act, and some material as to the rules of RMT, which were not brought to the attention of the judge.  Sections 20 and 21 of the 1992 Act contain some wide provisions as to the persons for whose acts a trade union may be liable, subject to possible repudiation.  Section 24 imposes on a union a duty to maintain a register of members’ names and addresses, but not other information.  Section 119 contains numerous definitions which recognise that a union is often organised through numerous branches or sections.  “Officer” is narrowly defined so as to be limited to members of a union’s governing body and the union’s trustees, but “official” is much more widely defined, including branch officers and members’ representatives elected or appointed under the union’s rules.
56.		RMT’s rules provide in some detail for the establishment and running of branches of the union.  A branch is to have a chairperson and vice-chairperson, a secretary, trustees and a committee (if it has over 100 members it is also to have an assistant secretary).  The Branch Secretary’s duties are set out in rule 10.14 and include keeping accounts and records, including a register of members.  Branch Secretaries are not employed by the union but they receive a modest honorarium (currently £1 per quarter per member).
57.		In the Meridian Global case the Privy Council concluded [1995] 2 AC 500, 511 that in the context of that case (knowledge that an investment company operating in a fast-moving market had become a ‘substantial security holder’) the individual whose knowledge was material was “the person who, with the authority of the company, acquired the relevant information”.  Similarly in this case I would say that information was possessed by RMT if it was possessed by any official of RMT who, in accordance with RMT’s rules and normal operating procedures, was concerned with maintaining records kept for RMT’s purposes.  That would cover not only Mr Croy and Mr Waters (and perhaps others) at the union’s headquarters, but also the thirteen branch secretaries most of whom kept their own records (in some cases clearly superior to the headquarters records) for the better performance of their duties.
58.		For my part I would be reluctant to go further so as to bring within the information possessed by a union information known only to members’ representatives, who are not only unpaid but are also (as Mr Hand told us on instructions) not formally elected or appointed under rule 10.5 of the union’s rules (and so are not “officials” even within the wide meaning in s.119 of the 1992 Act).  I would not rule out the possibility that on a particular set of facts the range of the information possessed might go further, but I am inclined to think that it would be an exceptional case.  On the other hand I would not accept Mr Hand’s general submission that a union cannot possess any information, for these purposes, until it is in a document or on disk.
59.		If (contrary to my clear view) the information possessed by the union had been limited to the official records maintained at headquarters, there would have been a question as to the union’s obligation to pass over information so unreliable as to amount, arguably, to misinformation.  The evidence of Mr Waters (which was not before the judge) was that over 60 per cent of the workplace codes were entries of an uninformative default code.  But that amounted to a lack of correct information rather than to positive misinformation.  The rest of the new evidence (which struck me as refreshingly candid) showed that the information available to headquarters and the branch secretaries, if taken together and collated without an oppressive amount of effort, could have given LUL and the other claimants much more of the irreducible minimum information (under ss.226A(3A) and s.234A(5A)) than they actually got.  The information would not have been complete and it would not have been wholly accurate, but it would have satisfied the union’s obligations.  
60.		The judge referred (in the penultimate paragraph of the passage quoted in para 32 above) to information possessed by “senior officers, branch secretaries and local representatives”.  Arguably the judge went too far in including the local representatives, but in my view it is plain from the fuller evidence before this court - even it if was not plain on the evidence before the judge - that he would inevitably have reached the same conclusion if he had considered only the senior officials at union headquarters and the branch secretaries.  Moreover the judge did not in my view make an error in construing the legislation, although the issues of construction were not so clearly identified before him as they have been in this court.
61.		In relying on the Human Rights Act 1998 Mr Hand referred to National Union of Belgian Police v Belgium (1975) 1 EHRR 578, 591 for the proposition, which is not in dispute, that the right to form and join trade unions, conferred by Article 11(1) of the European Convention on Human Rights, entails that Contracting States must permit and make it possible for a trade union to take action for the protection of its members’ interests.  That is as far as the authorities go in recognising a right to strike, and the Commission’s decision on inadmissibility in the Blackpool case shows that the notice requirements as they then stood were not an infringement of union rights.  See also Schmidt v Sweden (1976) 1 EHRR 632, 644:
"The Court recalls that the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible.  Article 11(1) nevertheless leaves each State a free choice of the means to be used towards this end.  The grant of a right to strike represents without any doubt one of the most important of these means, but there are others.  Such a right, which is not expressly enshrined in Article 11, may be subject under national law to regulation of a kind that limits its exercise in certain instances."
I would reject Mr Hand’s submission that there is anything oppressive or disproportionate in the legislation as it now stands.
62.		I would grant permission to appeal to this court, because the appeal raises issues of some general importance.  But for the reasons which I have given I would dismiss this appeal.
LORD JUSTICE DYSON:
63.		I agree.
LORD JUSTICE ALDOUS:
64.		I also agree.
ORDER: Appeal dismissed with costs here and below, to be the subject of detailed assessment if not agreed; permission to appeal to the House of Lords refused.
(Order does not form part of approved Judgment)