[1978] 1 W.L.R. 302 Page 1 [1978] 1 W.L.R. 302 [1978] 3 ...schopra/GreigInsole.pdf · not they might have lawful rights to withdraw) in circumstances in which there was a likelihood

*302 Greig and Others v Insole and Others

1977 G. No. 22461977 J. No. 4876

Chancery Division

Slade J.

1977 Sept. 26–30; Oct. 3–7, 10–14, 17–21, 24–28,31; Nov. 1–4, 7, 8; 25

Restraint ofTrade—Employment—Cricketers—Internationaland national associations organising playing ofcricket—Cricketers contracting with promoter toplay in private series of matches—Validity of con-tracts—Alteration of rules to ban cricketers fromplaying in associations' matches—Whether actionreasonable—Whether justification forban—Whether alteration of rules inducement tocricketers to break contracts with promoter.

Industrial Relations—Employers' associ-ation—Action in tort—Unincorporated associationscontrolling playing of cricket—Alteration of rulesto encourage cricketers to break contracts withprivate promoter—Alteration of rules in restraint oftrade—Whether associations consisting of employ-ers—Whether regulating relations between employ-ers and employees—Whether “employers' associ-ation” immune from legal proceedings— TradeUnion and Labour Relations Act 1974 (c. 52), ss.14, 28 (2)

The ICC controlled international Test cricketmatches defined in its constitution as matchesplayed between teams selected by the countries,which were foundation and full members of theICC, as their respective representatives. It had ex-clusive power to make the qualification rules forcricketers for Test Matches and to arrange the toursbetween member countries. Each member country

had a governing body for cricket and such govern-ing bodies appointed representatives of their re-spective countries on the ICC.

In the United Kingdom an unincorporated associ-ation, the Cricket Council, was the governing bodybut another unincorporated association, the TCCB,actually organised and administered Test Matchesand organised overseas tours of the MCC. the UKcricket team. The TCCB also administered and pro-moted the first class county championships and wasresponsible for rules governing the registration andqualification of cricketers in county cricket. Themembership of the TCCB consisted of the MCC,each of the 17 first class counties and the MinorCounties Cricket Association. The TCCB, like theICC, had no authority beyond that conferred by theconsent of its members and the plaintiff cricketerswere not members of either body.

In the United Kingdom the cricketing seasonran from early May to mid-September, while theseasons of the other Test-playing countries ranbetween October and March. In general no countryother than the United Kingdom was in a position tooffer even their most successful players the oppor-tunity to make a living out of cricket. In the UnitedKingdom at present approximately 230 cricketersplayed for first class county clubs and most of themearned their living largely *303 fromcricket. A number of cricketers from the other Test-playing countries came here to take part in thecounty cricket season, for which, subject to certainconditions, they were now eligible. Although a ca-reer was open to a man as a professional cricketerin the United Kingdom, no regular employment wasavailable to professional cricketers for longer thantwo years at county club level. Neither the ICC norTCCB offered any employment other than selectionfor Test Matches and overseas tours. Cricketers re-garded themselves as substantially under paid.

During January to April 1977 a private sports pro-moter, an Australian company engaged some 34 of

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© 2011 Thomson Reuters.

the world's leading cricketers from Test-playingcountries under contracts which bound the crick-eters to make themselves available to play in aseries of test matches to be organised by the pro-moter in Australia and possibly elsewhere duringthe season beginning on September 1 and ending onMarch 30. The duration of the contracts varied fromone to five years. The contracts did not make itobligatory for the promoter to organise suchmatches but, by clause 4, the promoter undertookand agreed that during the period the matches wereplayed the cricketers would be paid a certain allow-ance. Clause 5 entitled the promoter to require acricketer to play in matches outside Australia.Clause 6 set out the scale of payments payable tothe cricketers for participating in matches organisedin Australia and outside it. The contracts wereentered into in conditions of secrecy, so as to facil-itate recruitment. The news became public on May9, 1977.

The ICC resolved on July 26, to change its rules re-lating to qualifications for Test Matches to the ef-fect that any player who, after October 1, 1977,should play or make himself available to play in amatch previously disapproved by the ICC shouldthereafter be disqualified from playing in any TestMatch without the express consent of the ICC, suchconsent to be given only on the application of thegoverning body for cricket of the player's country.The ICC then passed a resolution specifically disap-proving any match arranged or to be arranged bythe promoter in Australia or elsewhere between Oc-tober 1, 1977, and March 31, 1979. Further, theICC strongly recommended each member countryto implement the ICC resolutions. Prior to the ICCresolution, the TCCB on July 15, 1977, had re-solved to introduce a similar ban at county levelsubject to the Cricket Council supporting its pro-posals and the ICC taking the expected decision inregard to a Test Match ban. In order to implementthose proposals, following the ICC meetings, theTCCB held a meeting on August 5, and issued apress release announcing the resolution that(subject to the court's decision in the present pro-

ceedings) the rules would be amended to implementthe ICC decision and effectively disqualifying fromplaying in any competitive county cricket anycricketer who should for the time being be subjectto the Test Match ban. Such county cricket ban wasproposed to operate for a period of two years imme-diately following the date of the last day of the lastmatch previously disapproved by the ICC in whichthe player concerned had played or made himselfavailable to play.

On August 3 three cricketers, who had con-tracted with the promoter, issued a writ seekingagainst the ICC and TCCB a declaration that thechanges of rules by the ICC and proposed changesof rules by the TCCB would be ultra vires and anunlawful restraint of trade. Further or in the altern-ative, they claimed that the changes or proposedchanges of rules were void as denying them thefreedom to practice their profession when, whereand how they wished. On the same day the pro-moter also issued a writ claiming against the de-fendants not only declarations that the changes ofrules were void but also a *304

declaration that they were an unlawful in-ducement to the players involved to break theircontracts with it. Both the actions were heard to-gether. The defendants, ICC and TCCB, allegedthat the contracts between the plaintiff cricketersand the promoter were void and that both defend-ants were an “employers' association” within themeaning of section 28 (2) of the Trade Unionand Labour Relations Act 19741 and, there-fore, under section 14 , legal proceed-ings in tort could not be brought against them: —

Held, giving judgment for the plaintiffs, (1)that, although under the terms of their contractswith the plaintiff cricketers, the promoter was underno express obligation to provide work for the crick-eters by arranging a tour in each season during theperiod of the contract and under no obligation to ar-range a tour outside Australia, it was under an ob-ligation to pay the cricketers for a tour in Australia



during each season; that, accordingly, there couldbe no implied term that the promoter would arrangea tour outside Australia but to give the contractbusiness efficacy such a term would be implied fora tour in Australia and, therefore, it could not besaid that the contracts were void as being in re-straint of trade and contrary to public policy and, asthere were no grounds for an allegation that thecontracts were voidable, the contracts were to betreated as valid and enforceable (post, pp.326E–327A).

Aspdin v. Austin (1844) 5 Q.B. 671 andDevonald v. Rosser & Sons [1906] 2 K.B.

728, C.A. applied .

(2) That by altering (and, in the case of theTCCB, showing its firm intention to alter) the rulesso that the plaintiff cricketers were banned fromplaying in future Test Matches and county cricketand by deferring the effect of that alteration untilOctober 1, 1977, the ICC and the TCCB had dir-ectly interfered with the promoter's contracts withthe cricketers and they had done so at a time whenthey had knowledge of the relevant contracts andwith intent to apply pressure on the plaintiff crick-eters to withdraw from their contracts (whether ornot they might have lawful rights to withdraw) incircumstances in which there was a likelihood thatthe promoter might suffer damage; that in those cir-cumstances the defendants had committed the tor-tious act of inducing a breach of contract and, al-though they had acted in good faith and withoutmalice, they were liable unless they could justifytheir actions as against the promoter; that, since thedefendants had failed to prove that the relevant con-tracts were void or voidable and there were no otherfactors that could be material to the defence of jus-tification, they were liable unless they were im-mune from legal proceedings under section14 of the Trade Union and Labour Relations Act1974 (post, pp. 334B–E, 336E–F, 338B–E,340C–D, 341B–E, 342D–E, G–H, 343B–D, E–F,344C–F, H–345A).

Rookes v. Barnard [1964] A.C. 1129, H.L.(E.)

; Emerald Construction Co. Ltd. v.Lowthian [1966] 1 W.L.R. 691, C.A. and

Torquay Hotel Co. Ltd. v. Cousins [1969] 2Ch. 106, C.A. applied .

(3) That the ICC had a legitimate interest toensure that international cricket was properly or-ganised and administered albeit most cricketerswere not professional players in the sense that theyearned their living by playing cricket; that theTCCB also had a legitimate interest in ensuring thatcricket was properly administered and organised;but that the defendants had to show that they hadacted reasonably in imposing the bans which wereprima facie in restraint of trade; that neither theICC nor the TCCB had shown that the bans werereasonable in the circumstances and, therefore, un-less they were employers' associations protectedfrom legal suit by section 14 of theAct, *305 the plaintiff cricketers wereentitled to declarations that the alteration of therules were ultra vires and void (post, pp. 346C,347G–H, 354H–355A).

Nordenfelt v. Maxim Nordenfelt Guns and Am-munition Co. Ltd. [1894] A.C. 535, H.L.(E.)

and Eastham v. Newcastle UnitedFootball Club Ltd. [1964] Ch. 413 applied .

(4) That, since under the rules of the ICC themember countries themselves, rather than their gov-erning bodies for cricket, were treated as being themembers and the rules drew a clear distinctionbetween a country and such governing body, theICC had failed to show that it was an organisationconsisting “wholly or mainly” of employers, andtherefore it could not be an employers' associationwithin the meaning of section 28 (2) (a) ofthe Trade Union and Labour Relations Act 1974

; that, although the TCCB was an organisa-tion consisting wholly or mainly of employers ofone or more descriptions, it also was not an em-ployers' association within the definition in

section 28 (2) (a) because it was notconstituted for the purpose of regulating relations



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between the employers and employees and, underits rules, it was not responsible to its members butto the Cricket Council; and that, since the defend-ants were not protected from liability in tort by

section 14 of the Act, the plaintiffswere entitled to declarations that the alterationsmade to the rules were ultra vires and void (post,pp. 359E–360B, E–F, 361B–H).

The following cases are referred to in the judg-ment:

• Aspdin v. Austin (1844) 5 Q.B. 671 .

• Blackler v. New Zealand Rugby Football League (Incorporated) [1968] N.Z.L.R. 547 .

• Boulting v. Association of Cinematograph, Television and Allied Technicians [1963] 2 Q.B. 606; [1963] 2W.L.R. 529; [1963] 1 All E.R. 716, C.A.

• Buckley v. Tutty (1971) 125 C.L.R. 353 .

• Devonald v. Rosser & Sons [1906] 2 K.B. 728, C.A.

• Eastham v. Newcastle United Football Club Ltd. [1964] Ch. 413; [1963] 3 W.L.R. 574; [1963] 3 All E.R.139 .

• Emerald Construction Co. Ltd. v. Lowthian [1966] 1 W.L.R. 691; [1966] 1 All E.R. 1013, C.A.

• Glamorgan Coal Co. Ltd. v. South Wales Miners' Federation [1903] 2 K.B. 545, C.A. ; sub nom.South Wales Miners' Federation v. Glamorgan Coal Co. Ltd. [1905] A.C. 239, H.L.(E.) .

• Instone v. A. Schroeder Music Publishing Co. Ltd. [1974] 1 W.L.R. 1308; [1974] 3 All E.R. 616, H.L.(E.).

• Keane v. Boycott (1795) 2 H.B1. 511 .

• Kores Manufacturing Co. Ltd. v. Kolok Manufacturing Co. Ltd. [1959] Ch. 108; [1958] 2 W.L.R. 858;[1958] 2 All E.R. 65, C.A.

• Lee (Joe) Ltd. v. Lord Dalmeny [1927] 1 Ch. 300 .

• Mogul Steamship Co. Ltd. v. McGregor, Gow & Co. (1889) 23 Q.B.D. 598, C.A.

• Nagle v. Feilden [1966] 2 Q.B. 633; [1966] 2 W.L.R. 1027; [1966] 1 All E.R. 689, C.A.

• Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. Ltd. [1894] A.C. 535, H.L.(E.) .

• Posluns v. Toronto Stock Exchange and Gardiner (1965) 46 D.L.R. 210 .

• Rookes v. Barnard [1964] A.C. 1129; [1964] 2 W.L.R. 269; [1964] 1 All E.R. 367, H.L.(E.) .

• Russell v. Amalgamated Society of Carpenters and Joiners [1910] 1 K.B. 506, C.A.

• Stratford (J. T.) & Son Ltd. v. Lindley [1965] A.C. 269; [1964] 3 W.L.R. 541; [1964] 3 All E.R. 102,H.L.(E.) .

*306

• Thomson (D. C.) & Co. Ltd. v. Deakin [1952] Ch. 646; [1952] 2 All E.R. 361, C.A.

• Torquay Hotel Co. Ltd. v. Cousins [1969] 2 Ch. 106; [1969] 2 W.L.R. 289; [1969] 1 All E.R. 522, C.A.

The following additional cases were cited in ar-gument:























• Bennett v. Bennett [1952] 1 K.B. 249; [1952] 1 All E.R. 413, C.A.

• Birmingham and Midland Motor Omnibus Co. Ltd, v. Worcestershire County Council [1967] 1 W.L.R.409; [1967] 1 All E.R. 544, C.A.

• Birtley and District Co-operative Society Ltd. v. Windy Nook & District Industrial Co-operative SocietyLtd. (No. 2) [1960] 2 Q.B. 1; [l959] 2 W.L.R.415; [1959] 1 All E.R. 623 .

• Causton v. Mann Egerton (Johnsons) Ltd. [1974] 1 W.L.R. 162; [1974] 1 All E.R. 453, C.A.

• Dickson v. Pharmaceutical Society of Great Britain [1970] A.C. 403; [1968] 3 W.L.R. 286; [1968] 2 AllE.R. 686, H.L.(E.) .

• Edwards v. Society of Graphical and Allied Trades [1971] Ch. 354; [1970] 3 W.L.R. 713; [1970] 3 All E.R.689, C.A.

• Gledhow Autoparts Ltd. v. Delaney [1965] 1 W.L.R. 1366; [1965] 3 All E.R. 228, C.A.

• Global Plant Ltd. v. Secretary of State for Social Services [1972] 1 Q.B. 139; [1971] 3 W.L.R. 269; [1971]3 All E.R. 385 .

• McWilliam v. William Collins, Sons & Co. Ltd. [1974] I.C.R. 226, N.I.R.C .

• Market Investigations Ltd. v. Minister of Social Security [1969] 2 Q.B. 173; [1969] 2 W.L.R. 1; [1968] 3All E.R. 732 .

• Midland Cold Storage Ltd. v. Turner [1972] I.C.R. 230; [1972] 3 All E.R. 773, N.I.R.C .

• Morgan v. Fry [1968] 2 Q.B. 710; [1968] 3 W.L.R. 506; [1968] 3 All E.R. 452, C.A.

• National Union of General and Municipal Workers v. Gillian [1946] K.B. 81; [1945] 2 All E.R. 593, C.A.

• Northern Messenger (Calgary) Ltd. v. Frost (1966) 56 W.W.R. 412; 57 D.L.R. 456 .

• Saxone Shoe Co. Ltd.'s Trust Deed, In re [1962] 1 W.L.R. 943; [1962] 2 All E.R. 904 .

• Sefton v, Tophams Ltd. [1965] Ch. 1140 ; [1964] 1 W.L.R. 1408; [1964] 3 All E.R. 876.

ActionsOn August 3, 1977, three well known firstclass cricketers, Anthony William Greig John Au-gustine Snow and Michael John Procter, issued awrit against Douglas John Insole and Donald BryceCarr, as representatives of the Test and CountyCricket Board (“TCCB”), and William Hugh Web-ster and Jack Arthur Bailey, as representatives ofthe International Cricket Conference (“ICC”). Theplaintiffs claimed, inter alia, a declaration that pur-ported change of rules by the ICC, and implementa-tion of the change by the TCCB, banning theplaintiffs, if they played in cricket matches otherthan conventional Test Matches, from playing TestMatches and first class county cricket in Englandwas an unlawful restraint of their right to play pro-fessional cricket and was ultra vires and void. Fur-ther, they sought an injunction restraining the

TCCB from implementing the decision to ban theplaintiffs from playing Test cricket or county crick-et in England.

On August 3, J.P. Sport Pty. Ltd., whichchanged its name to World Series Cricket Pty. Ltd.,issued a writ against the representatives of the ICCseeking, inter alia, an injunction restraining themfrom implementing, or from recommending theTCCB, or any of its members, to implement*307 their purported change of rules banningcricketers from playing Test Matches, if theyplayed in matches organised by World SeriesCricket, on the ground that the change was an in-ducement to cricketers, who had contracted withWorld Series Cricket, to break their contracts.

World Series Cricket also sought an injunction re-straining the TCCB from taking, at its meeting due

























to be held on August 5, 1977, or at any other time,any decision which was made, or was calculated, toinduce cricketers, who had contracted to play forWorld Series Cricket, to break their contracts.

Both the actions were heard together.

The facts are stated in the judgment.

Representation

• Robert Alexander Q.C. , Andrew Morritt Q.C. , J. G. Phillips andJonathan Hirst for the plaintiffs.

• Michael Kempster Q.C. , Patrick Milmo and James Price for the defend-ants.

Cur. adv. vult.

SLADE J.

November 25. SLADE J. read the following judg-ment.

I The background to the two actions

These two actions raise issues which are of import-ance to all persons who play or aspire to play thegame of cricket at first-class level and are indeed ofconcern to all persons interested in the game. Theseissues have already produced an acute division ofopinion throughout the cricketing world and mayperhaps continue to be debated hereafter so long asthe game is played. The trial of the actions has las-ted for 31 days. They have raised many issues oflaw and the evidence has touched on almost everyaspect of the organisation and structure of firstclass cricket. I have been greatly assisted by coun-sel on both sides.

In the first action there are three individualplaintiffs, Mr. Greig, Mr. Snow and Mr. Procter,who are well known and talented professionalcricketers. All three have played for English countyclubs for some years. Mr. Greig and Mr. Snow haveplayed in many Test Matches for England and in-deed Mr. Greig has recently captained the Englishteam. Mr. Procter has in the past played for SouthAfrica. In the second action, the plaintiff is an Aus-tralian company which was formerly known as J.P.Sport Pty. Ltd., but has recently changed its name

to World Series Cricket Pty. Ltd. This company,which I will call “World Series Cricket,” promotessporting events of various kinds and has recentlyengaged Messrs. Greig, Snow and Procter, amongother persons, to play in a series of cricket matchesto be organised by it in Australia and possibly else-where.

The first defendants in each action are Mr. Insoleand Mr. Carr. They are sued on behalf of all mem-bers of an unincorporated association known as theTest and County Cricket Board, which I will call“the TCCB” and of which they are respectively thechairman and secretary. The second defendants ineach action are Mr. Webster and Mr. Bailey, whoare sued on behalf of all members of another unin-corporated association known as the InternationalCricket Conference, which I will call “the ICC.”They are respectively the chairman and secretary ofthat body.

As a result of the recent entry of WorldSeries Cricket into the field of cricket promotion,the ICC in July 1977 changed its rules in a manner

*308 which, if implemented, is likelyeffectively to disqualify any of the three individualplaintiffs from playing in official international Testcricket for an indefinite period of time, if he playsin any cricket match organised by World SeriesCricket. The TCCB proposes, subject to the de-cision of the court in the present proceedings, tochange its rules in a manner which is likely to dis-qualify any of these three plaintiffs from playing inEnglish county cricket for at least several years, if



he plays in any such match. The plaintiffs in bothactions claim that these new or proposed new ruleswill be legally invalid and seek orders which willeffectively prevent the ICC and TCCB from imple-menting them. In the second action, World SeriesCricket further claims that the new or proposed newrules are or would be an unlawful inducement to anumber of players who have entered into contractswith it, including the three individual plaintiffs, tobreak such contracts; it seeks appropriate relief onthis basis.

For many years, the ICC has effectively exercisedsole control over the promotion of first class cricketmatches played at international level. Under itsconstitution it has two “foundation members,”namely, the United Kingdom and Australia, four“full members,” namely, India, New Zealand, WestIndies and Pakistan and some 16 “associate mem-bers.” Its chairman is the president of the Maryle-bone Cricket Club (“the MCC”) for the time beingor his nominee. Its secretary is the secretary of theMCC. Under its auspices are played official TestMatches, which are defined in its constitution asmatches played between teams selected by founda-tion and full members as representative of theircountries. The functions assigned to the ICC by itsconstitution include responsibility for the status ofofficial Test Matches, the qualification rules forcricketers for Test Matches and the confirmation oftours in the programme for visits of official teamsbetween foundation and full member countries; ithas duly laid down certain minimum qualificationrules that apply to all countries which participate inTest Matches. It is further empowered in conjunc-tion with the recognised governing body of cricketof any country to impose more stringent qualifica-tion rules for that country. This power also has beenexercised. The effect of the ICC's constitutiontherefore is such that it claims the exclusive powerto decide the qualifications which any cricketermust possess, if he is to be eligible to play for anycountry in official Test Matches.

The governing body of cricket of the United

Kingdom recognised by the ICC is an unincorpor-ated association known as “the Cricket Council.”Under its constitution, it is to

“act as the governing body for cricket in the UnitedKingdom and be responsible for the conduct and or-ganisation of cricket throughout the United King-dom and for official tours overseas recognised bythe council.”

It also appoints representatives for the United King-dom to the ICC.

The task of actually organising and adminis-tering Test Matches in the United Kingdom andalso MCC overseas tours is performed not by theICC or the Cricket Council but by another unincor-porated body, the TCCB. The membership of theTCCB consists of the MCC, each of the 17 firstclass counties and the Minor Counties Cricket As-sociation. Under its constitution, it is responsible tothe Cricket Council for a number of matters, includ-ing the organisation and administration of TestMatches in the United Kingdom and MCC overseastours and also the administration *309

and promotion of the First Class CountyChampionship, and the rules governing the registra-tion and qualification of cricketers in county crick-et. It also administers sponsored one day matchesbetween the Test-playing countries known as“Prudential Trophy” matches, and other sponsoredcompetitions involving the first class counties suchas the “Gillette Cup,” “John Player League” and“Benson and Hedges Cup” competitions. Under therules of the TCCB any cricketer has to be registeredwith the TCCB if he is still to be eligible to playcounty cricket. Subject to its overriding responsibil-ity to the Cricket Council, the TCCB thus claimsthe exclusive right to regulate the qualificationswhich must be possessed by a cricketer if he is tobe eligible to play in county cricket matches. It is tobe observed, however, that the TCCB, like the ICCitself, has no authority beyond that conferred by theconsent of its members and the plaintiff cricketersare not members of either body.



In at least two respects, the United Kingdom findsitself in an exceptional position among the sixfoundation and full members of the ICC, which Iwill describe as the “Test-playing countries.” First,its cricketing season runs from early May to mid-September, while the seasons of the other fivecountries run somewhere between October andMarch. Secondly, while in general terms none ofthe other five countries are in a position to offereven their most successful players the opportunityto make a living out of cricket, there are at presentapproximately 230 cricketers in this country, whoplay for one or other of the 17 first class countyclubs and most of whom earn their living largelyfrom cricket. A number of cricketers from the otherTest-playing countries come to the United Kingdomto take part in the county cricket season, for which,subject to certain conditions, they are now eligible.It can thus be said that a career is open to a man asa professional cricketer in the United Kingdom,where indeed amateur status, as such, was formallyabolished some years ago. The evidence before thecourt, however, shows that, at least until very re-cently, professional cricketers in the United King-dom have in general, rightly or wrongly, regardedthemselves as substantially under paid for the crick-et which they play.

Most years will see visits by official touring teamsof one or more of the Test-playing countries to oth-ers of such countries. The differences in the datesof their cricket season enable such tours by UnitedKingdom teams always to take place during theirown “close” season, which puts the United King-dom in an especially favourable position. Thesetours offer opportunities to cricketers to play thegame at first class level for remuneration at timesof the year when they will not be able to play intheir own country. Such opportunities are muchsought after by many, but necessarily open only toa very few.

I have seen giving evidence on behalf of thedefendants a number of persons who are among thetop administrators of cricket in one or other of the

Test-playing countries. Without any exception, Ihave been impressed by their obvious, disinteresteddedication to and concern for the game. If they canbe regarded as fairly representative of it, I am notsurprised that cricket has traditionally been re-garded by many as embodying some of the highestprofessional standards in sport. These witnesses allclearly regard the official Test-match structure assomething which should represent the pinnacle ofany cricketer's ambition. They thus find it difficultto understand how any cricketer could, even forgood commercial reasons, bring himself to do any-thing which could be thought likely *310

directly or indirectly to damage the structureof international cricket of which Test Matches atpresent form the all-important part.

The importance of Test Match cricket to the author-ities in the Test-playing countries, however, is farfrom being based solely on sentimental or emotion-al grounds. They are in general an extremely profit-able concern. To take one example at random, theTest Matches played by the Australian touring teamin England during the summer of 1977 are togetherlikely to produce a net profit for United Kingdomcricket of not far short of £1m. Cricket, however,according to the evidence has one peculiar feature.As Mr. Steele, a member of the Australian CricketBoard, said in evidence, except at Test Match levelit is not really a spectators' sport; it is basically aplayers' sport. The evidence from the various Test-playing countries before me all suggests that ingeneral there is no very substantial spectator attend-ance except at Test Matches and correspondinglythat these are generally the only matches likely toproduce any substantial profit. In all the Test-playing countries, the county sides or state associ-ations or the equivalent necessarily constitute thebreeding ground in which players are trained andthe source on which Test selectors largely, if notexclusively, rely in choosing their Test teams. Inthe situation just described, however, county clubsand state associations are themselves very depend-ent for their solvency on subventions from TestMatch receipts.



The structure and finances of cricket in the Test-playing countries are thus vulnerable, in the sensethat they are dependent to a considerable degree onthe continued popular attraction and profitability ofTest Matches. Anything which is likely to prejudicesuch attraction or profitability must be of concernto those organising cricket in those countries.

The very size of the profits which can be made outof cricket matches involving star players, however,must for some years have carried with it the riskthat a private promoter would appear on the sceneand seek to make money by promoting cricketmatches involving world-class cricketers. The riskmight perhaps have been a more limited one, if thestructure of official cricket in the Test-playingcountries had been such as to offer the most talen-ted cricketers a secure and remunerative careerstructure. In this event, a private promoter mightperhaps have had few attractions to present to thoseused to playing in conventionally organised cricket.In a world situation, however, where no countrysave the United Kingdom offers any real careerstructure for an aspiring professional cricketer, andthe United Kingdom itself only offers rewardswhich many professional cricketers have con-sidered inadequate, the path open to an aspiringcommercial promoter of cricket is a much easierone. It is perhaps surprising that, so far as the evid-ence shows, until the beginning of 1977 there hadnever appeared any private promoter of cricketmatches who offered any real challenge to the con-ventional structure of first class cricket. Neverthe-less, against the background which I have describedfrom a bird's eye viewpoint, such a challenge to theconventional structure of cricket headed by the ICCwas bound to come sooner rather than later, andthis was what actually happened in the earlymonths of 1977.

During the period January to April 1977,World Series Cricket engaged some 34 of theworld's leading cricketers (including four fromEngland, four from South Africa, four from theWest Indies, four from Pakistan and 18 from Aus-

tralia) under contracts which bound or purported tobind these players to make themselves available toplay in a series of matches, described in the con-tracts as “test matches,” to be organised by thecompany *311 in Australia and pos-sibly elsewhere. The duration of the contracts var-ied from one to three years (or in one case fiveyears). They were entered into in conditions ofsecrecy, so as to facilitate recruitment. The news,however, became public on May 9 and caused greatconsternation among the governing bodies forcricket of all the Test-playing countries. No onecould reasonably be surprised at such consternationin the circumstances which have been summarised.The decision for the court, however, will be wheth-er the particular steps which the ICC and TCCBtook in order to deal with the situation were justifi-able in law.

Briefly, the steps taken were the following. On July26, the ICC, after anxious and protracted considera-tion, passed a resolution changing its rules relatingto qualifications for Test Matches. The effect ofthis change was that any player who, after October1, 1977, should play or make himself available toplay in a match previously disapproved by the ICCshould thereafter be disqualified from playing inany Test Match without the express consent of theICC, such consent to be given only on the applica-tion of the governing body for cricket of the play-er's country. The ICC then proceeded to pass a res-olution specifically disapproving for the purpose ofits rules, inter alia, any match arranged or to be ar-ranged by World Series Cricket to take place inAustralia or elsewhere between October 1, 1977,and March 31, 1979. One of the effects of this dis-approval, coupled with the previous change of rule,if valid, would thus be to disqualify from Testcricket any cricketer, such as the individualplaintiffs in these actions, who might after October1, 1977, carry out his contract with World SeriesCricket by playing in a match arranged by it duringthe period October 1, 1977, to March 31, 1979. Fi-nally, at its meeting on July 26, the ICC passed aresolution strongly recommending that each mem-



ber country should pursue as soon as possible, infirst class and other domestic cricket activities, theimplementation of the decisions made in regard toTest Matches.

Following this meeting of the ICC held on July 26,a meeting of the TCCB was due to be held on Au-gust 5, at which it was anticipated that a resolutionwould be proposed and passed effectively disquali-fying from playing in any competitive county crick-et match any cricketer who should for the time be-ing be subject to the newly introduced Test Matchban. Such county cricket ban was proposed to oper-ate for a period of two years immediately followingthe date of the last day of the last match previouslydisapproved by the ICC in which the player con-cerned had played or made himself available toplay.

The ICC Test Match ban by its very natureimposed a serious restriction on the fields in whichthose players who had contracted with World SeriesCricket might thereafter seek employment as pro-fessional cricketers. The TCCB ban, if implemen-ted, will be still more drastic in its effect. Of theplayers who have now entered into contracts withWorld Series Cricket, about 20 play English countycricket. Though there are certain other fields of em-ployment possibly available to them, such as Eng-lish league cricket (which does not enjoy first classstatus), English county cricket provides by far themost attractive form of regular employment for anycricketer who wishes to make his living out of play-ing cricket during the English summer. All three in-dividual plaintiffs wish to continue playing countycricket and, in the absence of bans, will not be pre-vented from so doing by the arrangements whichthey have made with World Series Cricket. Further-more, irrespective of any bans, Test Match cricketis probably no longer open to Mr. Snow, who is afast bowler aged *312 35 years or toMr. Procter, who is disqualified by reason of hisSouth African nationality. Effectively, therefore,the proposed TCCB ban would prevent them fromplaying in first class cricket at all; and at least Mr.

Procter has no qualifications to make his living inany other way. Mr. Alexander, in opening the caseon behalf of the plaintiffs, described the county banas illogical, because it deprives English cricket ofleading players whose presence is important to thesuccess of the game, dictatorial, because the TCCBis asserting the right to monopolise control overcricket and to stifle all competition, penal, becausethe TCCB is seeking to deprive those who play inWorld Series matches of the opportunity to maketheir living in the summer by playing first classcricket, and as challenging an elementary freedom,because by it the TCCB seeks drastically to restrictthe way in which cricketers can earn their livings.The substantial financial rewards which the threeindividual plaintiffs will receive from World SeriesCricket would no doubt compensate them to someextent for the loss of opportunities in other fields.There can, however, be no doubt as to the serious-ness of the proposed bans so far as they are con-cerned and indeed in relation to many of the otherplayers not parties to this action who have contrac-ted with World Series Cricket.

II The issue of proceedings, the relief sought andthe amendment of the defences

Against this background, the individual plaintiffsissued their writ in the first action on August 3,1977. In this action they seek a declaration that thechanges of rules by the ICC and proposed changesof rules by the TCCB would be ultra vires and anunlawful restraint of trade. Their claim in this ac-tion, however, is not one based solely on alleged re-straint of trade. Further or in the alternative, theyclaim that the changes or proposed changes of rulesare void as denying them “the right to work,” that isthe freedom to practise their profession when,where and how they wish. This alternative plea be-comes rather more significant in the light of theform of the amended defence to this action, towhich I will shortly refer. Also on August 3 WorldSeries Cricket issued its writ. The statement ofclaim in that action seeks not only declarations thatthe changes of rules are or would be void on the al-



ternative grounds which I have stated, but also a de-claration that they are or would be an unlawful in-ducement to the players involved to break theircontracts with World Series Cricket.

When the trial began, it was, I think, assumedby all parties to both actions (including the defend-ants themselves) that the claims involved and thedefences to them would fall to be argued and de-cided without reference to any statutory legislation.By the fourth day of the trial, however, a possiblenew line of defence had occurred to the defendants'advisers. On that day they gave notice to theplaintiffs in both actions that they intended to applyfor leave to amend their defences by pleading thateach of them is an “employers' association” withinthe meaning of section 28 (2) of the TradeUnion and Labour Relations Act 1974 , andrelying on section 3 (5) in both actionsand also, in the second action, on section 14

of that Act. In due course, in the face of someadverse comment but no opposition from theplaintiffs' counsel, the defendants were duly givensuch leave. Though I shall have to refer later to thestatutory definition of “employers' association,”this will be a convenient moment to explain howthe Act of 1974 may be relevant.

Subject to certain immaterial exceptions,section 14 of the Act provides:

*313

“(1)… no action in tort shall lie in respect of anyact —(a)alleged to have been done … by or on be-half of an unincorporated employers' association; or…(c) alleged to be threatened or to beintended to be done as mentioned in paragraph (

a ) … above; against the …association in its own name … or against any mem-bers or officials of the … association on behalf ofthemselves and all other members of the … associ-ation.”

By their alternative plea based onsection 14 of the Act, the defendants in

the second action in effect say that since, first, they

are “employers' associations” and, secondly, an ac-tion for inducement of breach of contract is an ac-tion in tort, the claim based on inducement ofbreach of contract, however proved and justified itwould otherwise be, is not maintainable, becausethe defendants enjoy a statutory immunity from thisclass of claim. If the defendants are correct in theirassertion that they constitute “employers' associ-ations,” such immunity must indisputably follow.

Section 3 (5) of the Act confers on unincor-porated “employers' associations” certain further,far-reaching immunities from the ordinary pro-cesses of the law. So far as material for present pur-poses, it provides:

“… nor shall any rule of an unincorporated employ-ers' association … be unlawful or unenforceable byreason only that it is in restraint of trade.”

The defendants in both actions assert in ef-fect that, if contrary to their contention, their newrules or proposed new rules would otherwise be un-lawful as being in restraint of trade, section 3(5) operates to render the new rules lawful.In this instance, however, the plaintiffs in each ac-tion have countered this assertion in argument notonly by a refusal to accept that either of the defend-ants is an “employers' association,” but also by asubmission that, in any event, the unlawfulness ofthe new or proposed new rules does not arise byreason only of their being “in restraint of trade”within the wording of the subsection. They submitin the alternative that the rules are invalid as deny-ing the players involved the right to work and thatinvalidity arising on these particular grounds is notremoved by section 3 (5) , when it isproperly construed.

It is common ground that, if the plaintiffs are tosucceed on any cause of action, they must establishthat all the essential elements necessary to establishsuch cause of action were present at the date whenthe writs were issued, August 3, 1977. This point ofdate has particular relevance in relation to the



claims based on alleged inducement of breach ofcontract. In the latter context it is relevant, inas-much as these particular claims have from the be-ginning been quia timet claims, that is to say claimsbased merely on apprehended injury; it is notclaimed that any attempted inducement by the de-fendants has as yet actually resulted in any of theplayers involved withdrawing from their contracts.

In the context of inducement of breach of contract,a further point will arise for decision. The defend-ants, having since the issue of proceedings for thefirst time seen copies of typical contracts enteredinto between World Series Cricket and the playersinvolved, now assert that they are on the face ofthem not merely voidable but void for reasonswhich I will explain later. The relevance of this as-sertion is that it does not constitute a tort to induce

the breach or termination of a void contract.*314

III The nine principal questions to be decided

In all the circumstances, Mr. Kempster onbehalf of the defendants suggested that there were14 questions which the court will have to decide inthese two actions. Mr. Morritt on behalf of theplaintiffs suggested that there were 20. Thoughmany other subsidiary points will fall to be dealtwith, including all those referred to by counsel, Iregard the following as being the nine principalquestions that will arise for ultimate decision of thecourt in these two actions:

• (A) Are the contracts between World Series Cricket and its players void?

• (B) Has World Series Cricket established that as at August 3, 1977, and subject to any statutoryimmunity conferred by the Act of 1974, it had a good cause of action in tort against the ICC, based on in-ducement of breach of contract?

• (C) Has World Series Cricket established that as at August 3, 1977, and subject as aforesaid, it hada good cause of action in tort against the TCCB based on the same grounds?

• (D) Subject to the provisions of the Act of 1974, are the new rules of the ICC void as being in re-straint of trade?

• (E) Subject as aforesaid, are the proposed new rules of the TCCB void as being in restraint oftrade?

• (F) Is the ICC an “employers' association” within the meaning of the Act of 1974?

• (G) Is the TCCB an “employers' association” within the meaning of the Act?

• (H) If either or both of the ICC and the TCCB be “employers' associations,” does this itself barany cause of action that would otherwise exist?

• (I) In the light of the answers to the eight preceding questions, what relief (if any) should be givento — (i) the individual plaintiffs and (ii) World Series Cricket?

I shall attempt to answer the last eight of these ninequestions at the end of my judgment and in thesame order. For convenience, however, I shall in-terpose my answer to question (A) in the course ofthe detailed recital of the facts of the case. Beforeembarking on such recital, however, I think it willbe helpful at this stage first to summarise brieflysome of the voluminous evidence as to the organ-

isation and finances of cricket at first class level inthe Test-playing countries and secondly to summar-ise the conditions under which cricketers in thesecountries work.

IV [His Lordship considered the organisation andfinances of cricket at domestic first class level infive of the Test-playing countries, i.e., UnitedKingdom, Australia, India, New Zealand and West



Indies, the defendants having called no evidence inrelation to Pakistan, and concluded:] (a) Cricket (bywhich I mean conventional first class cricket) in theUnited Kingdom depends for its financial viabilityconsiderably on the profits from Test Matchesplayed in England against overseas touring teamsfrom the other five Test-playing countries. It doesnot depend for this purpose on profits from toursoverseas, though presumably it would have to send

teams to those countries with whom the “reciprocalguarantee” system operates (Australia, India andPakistan), if it was to persuade them to send theirown teams to this country.

• (b) Cricket (in the same sense) in Australia depends considerably for *315 itsfinancial viability on the profits made by it from Test Matches played in Australia against the United King-dom, the West Indies and Pakistan. It does not depend for this purpose on matches played against New Zea-land or India, whether in or out of Australia. Nor does it depend for this purpose on tours to the UnitedKingdom, the West Indies or Pakistan, though it might have to send teams to those countries, if it was topersuade them to send their own teams in return.

• (c) Cricket in India depends for its financial viability considerably on the profits made by it fromTest Matches played in India against the other Test-playing countries. It does not depend for this purposeon tours made by it to the other countries, though it might have to visit them in order to persuade them tosend their own teams in return.

• (d) Cricket in New Zealand depends for its financial viability considerably on the profits made byit from Test Matches played both in New Zealand and on overseas tours.

• (e) Cricket in the West Indies depends for its financial viability considerably on the profits madeby it from Test Matches whether played in England or the West Indies against the United Kingdom or Aus-tralia. It does not depend on profits made by it from Test Matches played against India, New Zealand orPakistan.

V [Dealing with the evidence of the conditions ofwork of cricketers in the Test-playing countries, hisLordship observed that in the United Kingdom firstclass county cricket provided the principal sourceof their livelihood. Apart from Test Matches, theonly other way in which they might earn money byplaying cricket was by playing in league cricket.Most county players were not offered contracts formore than a year's duration. The period duringwhich they would be actually working for theirclubs would normally be from April to about mid-September. Their schedule over that period was anarduous one, involving a great deal of travel, aswell as cricket, with considerable interruptions todomestic life. After a player had been with hiscounty for about 10 years or more, his county clubmight, if it saw fit, award him what was called a“benefit” year. For a popular player, that might

bring in a substantial and welcome capital sum butno player had the certainty that he would be awar-ded a “benefit” year. While the figures varied theremuneration received by Mr. Snow in the 1977season (£3,500 including “win money” and moneyfor appearances) seemed reasonably typical of acounty player's remuneration and might not bethought large. It would be open to a professionalcricketer to supplement his income as best he couldduring the winter months, but that might be diffi-cult for him, particularly if he had no qualificationsoutside cricket. Two points clearly emerged, (i)neither the Cricket Council nor the TCCB on its be-half had themselves entered into any kind of com-mitment, legal or otherwise, ever to offer employ-ment to any of the players again; and (ii) the play-ers themselves had entered into no contractual com-mitment with the Cricket Council or the TCCB pre-cluding them from playing cricket for a private pro-



moter. His Lordship continued:]

In these circumstances, so far as it is relev-ant, I do not accept the force of any criticism onmoral grounds that may have been levelled againstplayers such as Mr. Snow and Mr. Procter for enter-ing into contracts with World Series Cricket. I donot see that it was reasonable for the defendants,who had placed themselves under no kind of com-mitment to the plaintiff players for the future, to ex-pect these players to *316 subjectthemselves to a self-imposed embargo against play-ing for any private promoter during the wintermonths, merely because such promoter might be or-ganising matches which would in certain circum-stances compete with official Test Matches. Ifcricketing authorities employ a player to go on atour or indeed perhaps even if they employ him toplay in one or more Test Matches at home, it maybe open to them, as a matter of fair negotiation, todemand from him, as a price for the privilegeswhich he himself will derive from participating inthe match, a limited covenant precluding him fromplaying for competitors. If such covenant representsno more than is reasonably required for the author-ities' protection, in terms of duration place and oth-erwise and is reasonable in the interests of the pub-lic, it may perhaps be enforceable according to itsterms. I do not, however, think that such authoritiescan regard a player as being in breach of a moralcommitment to them merely because he has failedto treat himself as being under a covenant not toplay for a competitor, which they have not chosento exact from him. A professional cricketer needs tomake his living as much as any other professionalman. I think it is straining the concept of loyalty toofar for authorities such as the defendants to expecthim to enter into a self-denying ordinance not toplay cricket for a private promoter during thewinter months, merely because the matches pro-moted could detract from the future profits made bythe authorities, who are not themselves willing or ina position to offer him employment over the winteror to guarantee him employment for the future. Itfollows from this that I can likewise see no suffi-

cient grounds why the players concerned, with thepossible exception of Mr. Greig, can justifiably becriticised on moral grounds for having entered intocontracts with World Series Cricket in conditions ofsecrecy. The subsequent actions of the defendantshave made it abundantly clear that, had they beeninformed in advance of the World Series project,they would have done their utmost to prevent itfrom taking root and thus to prevent the players in-volved from enjoying the advantages offered tothem by World Series Cricket.

For all these reasons, to anticipate a little, I rejectany suggestions that the retrospective imposition ofthe bans in question on those players who hadalready contracted with World Series Cricket, canbe justified on the grounds that it constituted awell-merited punishment. The penal aspect of thebans featured prominently, though not exclusively,in the evidence of a number of the defendants' wit-nesses, such as Mr. Steele and Mr. Hadlee. If thebans are to be justified at all, they must in my judg-ment be justified on grounds other than this. Ishould emphasise, however, that their possible mer-its as punishment were not in any way relied on inargument by the defendants' counsel, who relied onquite different grounds to justify them. What hasbeen said in the present context therefore does notcome near to disposing of any part of the case. [HisLordship then dealt with the evidence regardingconditions of work of cricketers in Australia, India,New Zealand, West Indies and Pakistan.]

VI Mr. Kerry Packer, the Australian Cricket Boardand Australian television

Against this background, I must now embarkon a more detailed history of the facts of this case,which must begin in Australia with Mr. KerryPacker. Mr. Packer is an Australian national, whohas been engaged all his adult life in business activ-ities of one kind or another. These activities includetelevision and publishing. He has a particular

*317 association with a companyknown as Television Corporation Ltd., which formspart of a large group of companies in which he is a



dominating influence. His company has prosperedand its prosperity has enabled him, through it, tosponsor Australian sport in two significant ways.For the past three or four years, his company hassponsored the Australian Open Golf Championship,which has involved it in significant expenditure, in-cluding a sum of A$600,000 incurred in redesign-ing a golf course. It has derived no profit from thesponsorship. From about the beginning of this year,1977, he has also been involved in sponsoring anambitious and imaginative cricket coachingscheme, under which large numbers of boys willfrom time to time be invited to a boarding school inNew South Wales, where they will receive the be-nefit of one week's intensive tuition from high classcricketers. They will pay nothing to come and hisevidence was that the school will cost him or hiscompany about A$200,000 with no recoupment. Iaccept his evidence that, contrary perhaps to somepopular belief, he likes cricket and originally em-barked on this pilot coaching scheme, which hehopes may extend to other states, quite independ-ently from the project involving World SeriesCricket matches.

Mr. Packer had not been involved in promotingcricket matches in Australia before the end of 1976,but had been involved earlier that year in an unsuc-cessful attempt to acquire certain television rightsfrom the Australian Cricket Board.

Television started in Australia in 1956. At all ma-terial times, there have been one national networkrun by the Australian Broadcasting Commission,which has outlets over substantially the wholecountry, and three competing commercial networks,each of which has outlets more restricted in area.One of these commercial networks is known as theNine Network and is controlled by a companywhich is part of the Packer group of companies.The network has facilities for transmission more re-stricted in area than those of the commission, but itcan on occasion make arrangements, if it thinks fit,to cover the whole of Australia by means of sub-contracts.

Until about 12 years ago, there operated a specificagreement or understanding between the AustralianBroadcasting Commission and the commercial net-works that none of them would negotiate individu-ally for exclusive rights in respect of a sportingevent. This agreement then broke down. Even afterthat, however, the Australian Cricket Board hasnever sold exclusive rights in relation to cricketplayed in Australia. Its practice has been first toreach an agreement with the Australian Broadcast-ing Commission, under which non-exclusive rightsare granted to the commission, and then to negoti-ate individually with the commercial networks,with a view in due course to reaching agreementwith the network which makes what it regards asthe most satisfactory offer. In the result, TestMatches played in Australia have in the past gener-ally been transmitted in Australia both by the com-mission and one or perhaps two commercial chan-nels. On the other hand, rights to televise cricketoverseas have always been sold by the board on anexclusive basis to the B.B.C.

[His Lordship considered the negotiations by Mr.Packer for the rights to televise Test Matches andcontinued:]

Having seen Mr. Packer in the witness box, Iam satisfied that his unsuccessful dealings with theAustralian Cricket Board in the summer of 1976, inhis attempt to acquire the exclusive rights to tele-vise Test Matches in Australia over the next fiveyears, coupled with that board's subsequent at-tempts to prevent him from acquiring the televisionrights *318 in Australia to the 1977England/Australia Test series, had left him, reason-ably or unreasonably, with a profound distrust ofthe Australian Cricket Board. Rightly or wrongly,he considered it in general a reactionary bodywhich was not prepared to take all the sensiblesteps necessary to inject money badly needed byAustralian cricket. Rightly or wrongly, he also con-sidered that he personally had been unfairly treatedby it and was likely to be subjected to discriminat-ory treatment in any future attempt on his part to



acquire television rights. These beliefs, in my judg-ment, motivated and explain a number of his sub-sequent actions.

VII The origin of the World Series Cricket projectand the enlistment of the plaintiff cricketers

At the end of 1976, Mr. Packer, who had previouslyhad nothing to do with the promotion of cricket,was approached by a Mr. John Cornell, a director ofthe plaintiff company, which was then known asJ.P. Sport Pty. Ltd. and was concerned with the pro-motion of sport. At that time Mr. Packer had noshareholding or other interest in it, but he sub-sequently acquired this. Mr. Cornell or his companyhad been asked for advice and help by Mr. DennisLillee, a distinguished Australian cricketer who wasdissatisfied with the financial rewards available tocricketers in Australia. Mr. Cornell put to Mr.Packer the idea of promoting a “world series” ofcricket matches to be played principally in Aus-tralia in the Australian summer, in which many ormost of the world's best players would take part.The idea interested Mr. Packer because, accordingto his evidence, he thought that it would be attract-ive to cricketers and to the public and would pro-duce lucrative profits for his organisation.

Personally, or by his agents, Mr. Packer invited insecrecy the reactions to the world series project of anumber of top class cricketers of various nationalit-ies. If he had been rebuffed, the project would nev-er have got off the ground. Instead, the cricketersresponded with what he described as frighteningalacrity. The project attracted them, he said in evid-ence, and I have no reason to doubt this, for twoprincipal reasons: first, because they were excitedat the prospect of playing cricket with the best in-ternational players, selected on grounds solely ofability and without any regard to political consider-ations, and secondly, because it would offer themsecurity and high financial reward. He commentedthat their reactions in response to his invitation bythemselves indicated their dissatisfaction with thefinancial conditions under which they had previ-ously been working.

Between January 10, 1977, and April 29, 1977, Mr.Packer or other representatives of World SeriesCricket signed on in secrecy 18 Australian crick-eters under written contracts. The evidence beforeme suggests that these cricketers included all, or al-most all, of the persons who would then have beenregarded as the best cricketers eligible to representAustralia.

One of them, Mr. Ross Edwards, has givenevidence in these proceedings. Having for someyears played in the Western Australia side, he wasselected to come to England with the Australiantouring team in the 1972 English summer. In thewinter 1972–73 he then took part in an Australianhome series against Pakistan and at the end ofMarch 1973 he went on an overseas tour to WestIndies. The following year the Australians took ateam to New Zealand for which Mr. Edwards wasnot selected. He was however selected for the visitof the Australians to England in the summer of1975. Later in 1975 he carried out a decision he hadmade in December 1974 by retiring from Test andinter-state cricket. He explained *319

in evidence the reasons for his retirement. Hewas and is a qualified chartered accountant and forsome years had attempted to run cricket and his ac-countancy career in double harness. The financialrewards which he had derived from Australiancricket, however, were insignificant in comparisonwith the money which he had received from hisother professional career. He had a wife and youngfamily from whom cricket often kept him apart. Hedecided that there was no sufficient future for himin the game, which had already prejudiced his ac-countancy career, and that, despite his own enjoy-ment of it, he must give more priority to the in-terests of his family. Money was the primary reasonwhy he retired from Test and inter-state cricket in1975. Money was also the main reason which madehim decide to return to the top class game, when hehad the offer to play in World Series Cricket. Hereferred in his evidence to two other leading Aus-tralian cricketers who had retired from first classcricket but have been brought back into the game



by signing contracts with World Series Cricket.One is Mr. Ian Redpath; another is Mr. Ian Chap-pell, whom he described as one of the best crick-eters that Australia has ever produced. Mr. Edwardsconsiders that the increased level of paymentoffered by World Series Cricket will have a twofold effect on the interest in and development ofcricket in Australia. First, it will enable players likeMr. Chappell to continue playing in the game andto show their skills and cultivate interest in it,secondly, it will provide a goal for younger playersto aim for at the end of their cricketing careers.

After signing on Mr. Lillee and a number of theother Australian players, Mr. Packer saw Mr. Greig,who is now the first plaintiff in the first action.Against the background of his general evidence asto the life of any professional cricketer in England,Mr. Greig described in evidence his own frame ofmind as at March 1977, after the Centenary TestMatch had just been played between England andAustralia. He is 30 years of age. He did not want tofind himself playing cricket for too long andplanned finally to leave the game at the age of 35,to leave time to establish himself in another em-ployment and maintain his standard of living,which I infer is a fairly high one. Before his retire-ment, however, he hoped to play Test cricket forone or perhaps two more years and, as a swan song,to play full time cricket for his county, Sussex, fortwo years. He accepted under cross-examinationthat, in view of the success of the team which hehad captained in the Test series just completed inAustralia, he had a good chance of being invited tocaptain the England team in the next Test series. Hehad pointed out in chief, however, that he had seena number of past captains replaced, including one inthe middle of a quite recent Test series, and that heknew his captaincy could never be secure.

With these thoughts in mind, Mr. Greig wentto Mr. Packer's house on March 20, 1977, with aview to offering himself as a television commentat-or for his organisation for a few months beginning

in September 1977. On his arrival, however, Mr.Packer more or less immediately indicated that hehad a different proposition to put to him. Beforeputting it, he demanded and obtained from him anundertaking that he would keep it secret. He thenoutlined to him the world series project and toldhim that the plaintiff company had already securedthe services of a number of Australians. Having leftthis meeting Mr. Greig thought over the proposalsput to him and consulted his solicitors and account-ants about it. On March 25, 1977, he signed a three-year written contract with the plaintiff company, ef-fectively at a stated yearly remuneration of$30,000, though I understand that some further be-nefits to him were orally agreed. I shall *320

refer hereafter to the provisions of this con-tract, from which it will be seen that World SeriesCricket would on the face of it have certain rightsto prevent him from playing cricket in England inthe English summer. However, the evidence of Mr.Greig and Mr. Packer, which I accept on this point,was, that despite the provisions of the written con-tract, Mr. Packer had made it plain, when Mr. Greigmet him, that he had no intention of preventing himor any other English county players from playing inthe English county cricket season. Mr. Greig there-fore signed under the clear impression that, in ab-sence of a ban, he would be able to continue play-ing for Sussex, which he wishes to do.

Mr. Greig knew, when signing, that there was apossibility that the defendants would try to imposea complete ban preventing him from playing in firstclass cricket. He decided, however, that he wouldtake this risk in the light of the potential benefits tohim and his family. He thought that he would bewell paid over the three year term of the contractand that it would offer him not only security for thisperiod, but also an opportunity to play very highclass cricket in a country which he enjoys, withsome of the best players in the world, and beforelarge crowds which he also enjoys. He knew thecontract would render him unavailable to captain orplay for the MCC team which was due to tourPakistan in the winter 1977–78, but recognised that



the substantial advantages to him and his familyfrom the contract would only be obtained at theprice of abandoning this tour. During the week be-fore he signed the contract, he considered whetherhe should inform the TCCB of what he was propos-ing to do but decided not to do so. One factor in hismind in making this decision was that if the TCCBhad known of the existence of the world seriesproject, it would have doubtless communicatedwith the Australian Cricket Board in Australia andthis might have jeopardised the opportunities ofthose Australians, who had already contracted withWorld Series Cricket, of being sent to England forthe Test series due to take place in the summer of1977. Furthermore, according to his evidence, hisexperience of 10 years in English county crickethad led him to the conclusion that in any event theEnglish cricket establishment needed what he de-scribed as a “good shake-up,” which would compelthem to look at the way cricket was being admin-istered, both in this country and abroad, and at whathe regarded as the financial plight of its players. Hethought that results for the general benefit of crick-et and cricketers could well ensue, if only the emer-gence of the world series project could force thecricketing authorities throughout the world andWorld Series Cricket to get together. To use hisown words he knew there would be a “blow-up” butfelt that “sanity would prevail” and he fully intendsto perform his contract himself.

Having finally decided to contract with WorldSeries Cricket and not to inform the TCCB of thisdecision, Mr. Greig threw in his lot completely withWorld Series Cricket, in the sense that he undertookto assist in recruiting other top class players. Mr.Packer asked him to accompany Mr. AustinRobertson to speak to players whom he wished toenlist. Mr. Greig, at the company's expense, wentwith Mr. Robertson to the West Indies and Englandfor this purpose. His evidence, which I accept, wasthat he tried to explain the relevant points and alsoto demonstrate the possible repercussions, includ-ing those of bans. He told all his recruits, however,that Mr. Packer had no intention of preventing them

from playing during the English summer. In duecourse he witnessed the signature of about 15 play-ers to their contracts. When he explained theirterms, he met with no resistance.*321

Among the players approached by Mr. Robertsonand Mr. Greig was the second plaintiff, Mr. Snow.By that time his career as a fast bowler in officialTest cricket was in all probability over by reason ofhis age (35). He was, however, still extremely act-ive in the field of county cricket. In early April1976 Mr. Robertson and Mr. Greig approached himat his county cricket ground and informed him ofthe proposed world series. He was supplied with acopy of his proposed contract and, as he put it inevidence, Mr. Greig filled in the background. Hetook it away and received solicitors' advice on it.Before signing it, he also met Mr. Packer, who as-sured him that he had no intention to prevent himfrom playing for Sussex in the English cricket sea-son. He knew that his chances of ever being selec-ted again to play for England were slender, but hewanted to continue playing for Sussex; this assur-ance was therefore important to him. He was de-lighted with this offer of winter employment from afinancial and cricketing point of view. He signed acontract with World Series Cricket substantiallysimilar to that of Mr. Greig, save that it was for arather lesser remuneration and was only for a oneyear period. According to his evidence, he knewfrom past experience that the result of so signingmight well result in a ban both at Test and countylevel; he intends nevertheless to perform his con-tract with World Series Cricket because it provideshim with the opportunity to play once again in ahighly competitive game, when Test cricket is nolonger open to him, and also a substantial amountof money.

Mr. Greig on behalf of World Series Cricket alsoapproached the third plaintiff, Mr. Procter. He is acricketer aged 31, who had represented SouthAfrica in three seasons before 1971, when SouthAfrica was debarred from playing in Test Matchesby a ruling of the ICC. He therefore is ineligible to



play for England in Test Matches and at present hasno opportunity to play Test cricket at all. He hasplayed for the Gloucestershire County Club since1968, and is now its captain. He is an all-roundcricketer of great ability. Under his leadership,Gloucestershire in 1977 completed one of the mostsuccessful seasons in its history. For that season heearned in all about £7,500, a substantial part ofwhich represented expenses and bonuses accruingfrom his county's various victories. Like Mr. Greigand Mr. Snow, he regards the remuneration paid toEnglish cricketers as inadequate. Like many otherprofessional cricketers, he has no other qualifica-tions apart from cricket. Since 1968, he has spentthe winters in South Africa either playing or coach-ing, but financial rewards for playing or coachingin South Africa, according to his evidence, are verysmall. Though about 12 English cricketers get theopportunity of coaching in South Africa, their aver-age remuneration is about £200 per month, plus theuse of a car and accommodation, which leaves themlittle to bring home.

Mr. Procter first heard of the world series inMarch when he was in South Africa. On his returnto England at about the end of that month, he wastold more details by Mr. Greig and Mr. Robertson,who offered him a three year contract on behalf ofWorld Series Cricket. He signed it on April 11,1977, having talked about it to several other play-ers, but without having taken legal advice. He verymuch wished and still wishes to continue playingfor Gloucestershire for another four or five years atleast. He was told by Mr. Robertson or Mr. Greigbefore he signed it that it would not affect his play-ing for his county. Unlike Mr. Greig or Mr. Snow,he never thought it a real likelihood that he wouldbe banned from playing for his county if he signedon for World Cricket. The contract offered not sur-prisingly appealed to him, because it gave him theopportunity of playing *322 cricket atthe higher level of which he was otherwise de-prived and also offered some financial security forhimself and his family. He intends to perform it.

VIII The form and the validity or otherwise of theWorld Series Cricket contracts: Question (A) above

By April 29, 1977, World Series Cricket had con-cluded contracts with four players from the UnitedKingdom, four from South Africa, four from theWest Indies, four from Pakistan and 18 from Aus-tralia. So far as the evidence shows, these contractswere all in substantially the same form, subject todifferences in the contract term, which varied fromone to three years (or five years in one case) and inthe contract fee, which varied from about A$20,000to about A$35,000 for each “tour” for which theplayer concerned was involved.

As has been indicated, it has been submitted on be-half of the defendants that the form of the contractsis such that they are, on the face of them, void.Since it is not suggested that any of them containdifferences in form relevant for the purpose of thispresent submission, I will refer to the terms of Mr.Greig's contract for the purpose of dealing with thisparticular submission, which I think it convenientto deal with at this point. This submission raiseswhat has been described earlier as question (A).

Mr. Greig's contract is dated March 25, 1977,and expressed to be made between J.P. Sport Pty.Ltd., which is defined as “the promoter,” of the onepart and Mr. Greig, who is defined as “the player,”of the other part. The recitals and first two clausesof the contract read as follows:

“Whereas: A. The promoter is engaged in the busi-ness of promoting organising and conducting pro-fessional sporting events and plans to promote or-ganise and conduct a number of series of profes-sional cricket matches in Australia and elsewhere inthe seasons as hereinafter defined. B. Each serieswill comprise up to 55 play days devoted to fivematches described as ‘test matches’ (and each beingof up to five days duration) four limited-overmatches (each being of two days duration) and asyet an undecided number of other matches all ofwhich matches in a series shall together constitute atour. C. The player has offered to play in matches



of the tours hereinafter specified and as the pro-moter hereafter may from time to time require andgenerally to participate as a playing member ineach of those tours.

“Whereby it is agreed and declared that the pro-moter engages the player to provide his servicesand the player agrees to provide his services to thepromoter for the purposes for the term and on andsubject to the terms and conditions herein set forth,that is to say: 1. Where herein appearing the expres-sion: ‘season’ shall mean the period commencingon September 1 of a year and ending on March 30in the next calendar year and each season shall beidentified by the year in which the month ofSeptember falls. ‘Tour’ shall mean and include theduration of that part or parts of a season as shall bespecified by the promoter from time to time and thematches to be played in that period. ‘Venue’ shallmean the cricket ground selected by the promoterfor the playing of a match of a tour. 2. The term ofthis agreement shall be for 36 calendar monthscommencing on September 1, 1977 (hereinafter re-ferred to as ‘the said term’).”

Clause 3, omitting certain sub-paragraphs,then reads: *323

“The player undertakes and agrees that during thesaid term: (a) he will in each tour in the 1977, 1978and 1979 seasons: (i) on the direction of the pro-moter unless prevented by illness or accident or forany other reason satisfactory to the promoter playin the matches of a tour for which he is chosen bythe promoter and will at all times play to the best ofhis ability and skill provided however that the play-er shall not be required to play for more than 55days in the aggregate in any one tour (apart fromthe two days referred to in clause 4 (b) hereof) butsubject always to the provisions of clause 5 hereof,(ii) punctually attend at such times and places asthe promoter may direct for the purpose of playingthe aforesaid matches or for practice or otherwiseas the promoter may require … (b) he will not: (i)play in any cricket match other than a match of atour without the consent in writing of the promoter

first had and obtained, (ii) appear on radio or televi-sion nor grant interviews for nor write nor submitarticles for publication in any newspaper magazineor periodical except in each case as first authorisedin writing by the promoter, (iii) give endorsementsfor goods of any nature nor allow his name or pho-tograph to be used for promotional or advertisingpurposes except as first authorised in writing by thepromoter.”

I mention in passing that the starting date of“the season” in Mr. Greig's contract is said to beSeptember 1 and the ending date is said to beMarch 30. On June 23, however, Mr. Packer in-formed the ICC that, while the starting and finish-ing dates of the contracts varied, his aim was toplay cricket from the end of November until themiddle of February. He then repeated this statementin evidence and it has not been disputed that it rep-resents his intentions. Clauses 4 and 5 then read:

“4.The promoter undertakes and agrees that duringeach tour it will: (a) pay to the player an allowanceof $30 per each day of the tour to cover his cost ofaccommodation and meals and will pay economyclass air travel between venues and transportationbetween accommodation and venue but excludingfreight or charges on luggage in excess of that de-termined by the promoter and the player undertakesto pay any such excess; (b) organise and conduct atwo day limited-over match in Australia and paythe whole of the cash receipts from that game (afterdeduction of all reasonable and actual expenses) toa players provident fund to be established by acommittee to be constituted by a nominee of thepromoter and two nominees to be appointed by themajority of those players who take part in the 1977season tour and being generally for the benefit ofthose players and of players in future tours and be-ing more particularly for the purposes and to theextent and on and subject to such rules as regardsmembership of the fund entitlements thereunderand the nature of the benefits to be provided by thatfund as that committee as then or thereafter consti-



tuted shall from time to time decide but so that themoneys paid to that fund shall not be or be deemedto be assets of the promoter.

“5. The player acknowledges that he isaware that the promoter plans to promote organiseand conduct from time to time series of matchesoutside Australia and he undertakes and agrees atthe direction of the promoter to participate as aplayer in all or any of those series as shall be con-ducted during the said term subject to the promoter:(a) providing economy class air travel from and

*324 on return to his normalplace of residence and (b) the other provisions ofthis agreement where applicable being applied tothat tour.”

Clause 5 thus, according to its terms, entitlesWorld Series Cricket, if it thinks fit, to require aplayer to play in matches outside Australia. OnJune 23 1977, however, Mr. Packer informed theICC that it was not his intention to make use of theclause unless the actions of the cricketing authorit-ies forced him in self-defence to go elsewhere andthe truth of this statement of his intentions has notbeen challenged in evidence. Clause 6 of Mr.Greig's contract provides:

“The promoter will pay to the player as the full andonly moneys payable to him under or pursuant tothis agreement: (a) for his participation in each tourin Australia a total fee of $30,000 being at the dayrate of $545.45 for each of the aforesaid 55 playdays. The said fee shall be payable as to $10,000 onthe day of the signing of this agreement, as to a fur-ther $10,000 immediately following the completionof the third test match or on January 5 in that sea-son (whichever shall be the earlier) and as to$10,000, on completion of the tour; (b) for eachtour outside Australia a total fee in the sameamount and payable in the same way as set out inparagraph (a) above provided however that if thenumber of play days in that tour differs from 55then the said total fee shall be reduced or increasedby deducting therefrom or adding thereto anamount to be calculated at the rate of 2 per cent. of

the said total fee for each day of difference as thecase may be.”

Clauses 7, 8, 9 of Mr. Greig's contract confer rightsor impose obligations on the parties which are interms limited to the duration of a “tour” or are atleast dependent upon a “tour” taking place. Clause10 provides that the benefit of the contract shall beassignable by the promoter. Clauses 11 declares ineffect that the law of the State of New South Walesshall be the proper law of the contract.

The defendants never saw a copy of any ofthe World Series contracts until after the issue ofthe present proceedings. Having now seen samples,however, their counsel submit that they are on theface of them wholly void, substantially on the fol-lowing grounds. Though clause 1 defines a“season” as meaning the period commencing onSeptember 1 of a year and ending on March 30 inthe next calendar year and “tour” as meaning andincluding the duration of that part or parts of a“season” as shall be “specified” by the promoterfrom time to time and the matches to be played inthat period, the clause in terms imposes no obliga-tion on the promoter actually to “specify” any partor parts of a “season” so as to constitute a “tour.”Clause 2 does no more than define the term of dura-tion of the contract. Under clause 3 (a) the playerundertakes during such term to do a number of spe-cified things in each “tour” in the 1977, 1978 and1979 seasons, in particular on the direction of thepromoter, to play in the matches of a “tour” forwhich he is chosen by the promoter, subject to the55 days' limit of time referred to in the proviso tosub-clause (i) Under clause 3 (b), the player under-takes not to do a number of specified things duringthe whole of the term of the contract, his obliga-tions in this instance not being limited to the sub-sistence of the various “tours.” None of the provi-sions of clause 3, however, expressly impose anyobligation on the promoter to specify or arrange a“tour” and the same *325 observationapplies to clause 4, which, though it imposes cer-tain obligations on the promoter towards the player,



expressly limits the operation of such obligations tothe respective period of each “tour.” Likewise,while clause 5 obliges the player, if directed by thepromoter, to participate as a player in any series ofmatches outside Australia which may be promotedand conducted by the promoter during the term, itleaves the promoter free to promote or not to pro-mote a series of matches outside Australia as hepleases. Clause 6 (a) entitles the player to receive astated sum payable by three stated instalments forhis participation in each “tour” in Australia, thefirst to be payable on the date of the contract; but,once again, neither that sub-clause nor the immedi-ately succeeding clause 6 (b), which defines therights of the player to remuneration in respect of“tours” outside Australia, in terms imposes any ob-ligation on the promoter to arrange any “tour”whatever, whether inside or outside Australia.

In the result, the defendants contended, the con-tracts in such form on their true construction reallydo no more than confer on the promoter the optionto call on the player to provide his services for oneor more “tours” on the stated terms as to remunera-tion and otherwise, if, but only if, the promoter seesfit to arrange one or more “tours.” If the promoterdoes not so see fit, so it was submitted, the player isleft entirely without rights or remedies and indeedis bound to repay the first instalment of his remu-neration paid to him on the signing of the contract.The player, however, on this construction, for thewhole of the term of the contract is left subject tothe full force of the restrictive provisions containedin clause 3 (b) of the contract, in particular those ofsub-clause (i), which preclude him from playing inany other cricket match without the promoter'swritten consent.

Such being their construction of the players'contracts with World Series Cricket, the defendantssubmitted that the contracts are on their face undulyrestrictive, having regard to (i) their likely duration,(ii) the right to assign given to the promoter byclause 10, which made it impossible to assume thatother persons for the time being holding the benefit

of the contract would always act reasonably; (iii)the fact that the promoter was not bound to promoteany tour at all; (iv) the absence of any provision en-titling the players to terminate the contracts. Thedefendants relied on the decision of theHouse of Lords in Instone v. A. Schroeder MusicPublishing Co. Ltd. [1974] 1 W.L.R. 1308 ,in which an agreement between a song writer aged21 and music publishers was held contrary to publicpolicy and void, as being in unreasonable restraintof trade, substantially on four grounds very similar,mutatis mutandis, to those just mentioned.

I accept the defendants' further submissionthat the appropriate time to consider the validity ofthe players' contracts is at the date of their signatureand that it is not legitimate to construe them by ref-erence to the way in which the parties thereto haveacted under them, for example, subsequent state-ments by Mr. Packer as to the manner in which heintended to operate them: see Russell v. Am-algamated Society of Carpenters and Joiners [1910]1 K.B. 506 , 522, per FarwellL.J. If I accepted their construction of the contracts,I would also see considerable force in their submis-sion that the contracts were void, in as much asthey would on this footing subject the players to thetheoretical risk of their cricketing talents being ster-ilised for the whole term of the contracts, withoutany *326 right to monetary compensa-tion. Possibly even such an apparently one-sidedagreement could be justified on particular facts, butI would think this difficult.

However, without purporting to decide thepoint as between the promoter and the players whoare not parties to these proceedings, I do not acceptthe defendants' basic construction of the contractsfor this reason. A number of authorities set out in

Halsbury's Laws of England , 4th ed.,vol. 16 (1976), p. 356, para. 557, illustrate that,where a contract of employment by its terms im-poses on an employee a binding obligation to work,without expressly imposing on the employer a cor-responding obligation to provide work, the court








will in an appropriate case readily imply such anobligation on the part of the employer, if it is satis-fied that such implication is the proper way of giv-ing to the transaction the business efficacy whichboth parties must have intended it should have: see,for example, Devonald v. Rosser & Sons[1906] 2 K.B. 728 . In a case where theagreement of service manifestly and on its facecontains an exhaustive catalogue of all the termsthat the parties have agreed upon, the court mayfind it impossible to make any such implication: see

per Farwell L.J., at p. 745, andAspdin v. Austin (1844) 5 Q.B. 671 ,

684. Save in such a case, however, the court willnot be reluctant to imply an obligation binding theemployer either to provide work, so as to enable theemployee to perform his part of an otherwise one-sided arrangement, or at least to pay him the spe-cified remuneration so long as the employee isready and willing to perform the services contractedfor and is prevented only by the employer from per-forming them.

These being the relevant principles, I revertto the actual terms of the players' contracts in thepresent case. The wording of clause 5, coupled withthat of clause 6 (b), in my judgment makes it clearthat the promoter is to be under no obligation in anyyear to arrange “tours” outside Australia and that, ifhe does arrange such a “tour,” he is to be obliged topay the player merely pro rata for the number of ac-tual “play days” in such “tour,” according to theformula set out in clause 6 (b). In these circum-stances there is in my judgment no room for anyimplication of terms in regard to “tours” outsideAustralia. The position in regard to “tours” in Aus-tralia seems to me quite different. Under clause 6(a) of Mr. Greig's contract, the player is to be remu-nerated for his participation in each “tour” in Aus-tralia by way of a fixed stated sum, which is to bepaid as to a stated part of the date of the contract, asto a further stated part “following the completion ofthe third test match or on January 5 in that season(whichever shall be earlier) and as to $10,000 oncompletion of the tour.” Clause 6 (a) states the “day

rate” of remuneration, but the sub-clause is so draf-ted that even if, in the event, a “tour” in Australiaarranged by the promoter is less than 55 days, aplayer, who has participated in the “tour” and oth-erwise performed his part of the contract, is entitledto the total agreed fee in respect of that “tour,”without any pro rata reduction. In these circum-stances, in my judgment the clear inference is thatif, during the term of such contract, whereby thepromoter was expressed to “engage the player toprovide his services,” the promoter in any yearfailed to arrange any “tour” in Australia, a player,who demonstrated his willingness to play on such a“tour” if arranged and had otherwise observed hispart of the contract, would be entitled to the full“tour” fee. Such implication is in my judgment theonly way of giving reasonable effect to the pre-sumed intention of the parties, particularly*327 when the restrictions imposed on thisplayer by clause 3 (b) for the term of the contractare taken into account.

I therefore reject the defendants' submission thatthe players' contracts are void, either on the groundof public policy or on any other grounds. I shouldperhaps add that the defences in the two actions adda plea that such contracts are unenforceable. Of the50 or so players who had entered into such con-tracts by the time that proceedings were begun,some (such as Mr. Procter) did not receive legal ad-vice on them and most, if not all, were not immedi-ately supplied with copies for them to retain. It maybe — I put it no higher — that, on these or othergrounds, some individual players would in the par-ticular circumstances of their respective cases havethe right to rescind their contracts as against WorldSeries Cricket. For present purposes it will sufficeto say that no attempt was made on behalf of thedefendants, either by adduction of evidence or oth-erwise, to show that the contracts were all voidableby the players on the grounds of misrepresentation,undue influence, unconscionable bargain or similargrounds. In this context the only submission putforward was that they were wholly void, on thegrounds which I have considered and rejected.





In the rest of this judgment I must therefore pro-ceed on the footing that the players' contracts withWorld Series Cricket are agreements which accord-ing to their terms are valid agreements and that ithas not been proved that any one of them is evenvoidable at the option of the player concerned.

IX [His Lordship then dealt with the reactionof the defendants to the announcement of the WorldSeries Cricket project, the events between May 9and 13, 1977, the meeting dated May 13 of theemergency executive committee of the CricketCouncil, the events between May 13 and 19, themeeting dated May 19 of the chairman's advisorycommittee of the TCCB, the meeting on May 31 ofthe TCCB, the meeting on June 2 of the emergencyexecutive committee of the Cricket Council, themeeting of the Cricket Council on June 8, the meet-ing on June 14 of the ICC, the meeting on June 23between the ICC and Mr. Packer, and continued:]This will be a convenient moment to set out the rel-evant rules as they then stood. As at June 1977,

Appendix 1 of the rules of the ICCread as follows:

“Qualification Rules for Test Matches

“(a)A cricketer can be qualified to play in a TestMatch either by birth or resid-ence.(b)(i)Qualification by birth. A cricketer, unlessdebarred by the conference, is always eligible toplay for the country of his birth.(ii)Qualification byresidence. A cricketer, unless debarred by the con-ference, shall be entitled to play for any country inwhich he is residing and has been residing duringthe four immediately preceding years, provided thathe has not played for the country of his birth duringthat period.(c)Notwithstanding anything hereinbe-fore contained, any player who has once played in aTest Match for any country shall not afterwards beeligible to play in a Test Match against that coun-try, without the consent of its governing body.(d)

Members shall be responsible for sub-mitting, in reasonable time for the approval of theconference, the names of any cricketers whosequalifications are in doubt, and who are likely to be

selected to play in any approaching series of TestMatches, furnishing their qualifications and statingif any player has during the four immediately pre-ceding years played for the country of his birth. Inthe case of *328

cricketers qualified by residence, theyshall further state the periods of residence uponwhich such qualifications are founded.

(e)The ICC in conjunction with the gov-erning body of any country may impose more strin-gent qualification rules for that country.”

As at June 1977 rules 1 and 2 ofthe rules governing the qualification and registra-tion of cricketers in Test and competitive countycricket (being the only rules relevant for presentpurposes) set out in Appendix B to therules of the TCCB, read as follows:

“Rule 1 Qualifications for England

“Subject to the overriding discretion of the board,acting with the consent of the [ICC] the qualifica-tions for playing for England shall be: —(a)that thecricketer was born in the British Isles, or(b)that thecricketer's father was born in the British Isles andthat the cricketer is residing and has been residenttherein during the preceding four consecutive yearsand has not played in a Test Match for the countryof his birth during that period, or(c)that the crick-eter is residing and has been resident in the BritishIsles during the preceding 10 consecutive years andhas not played in a Test Match for the country ofhis birth during that period, or(d)that the cricketeris residing and has been resident in the British Islessince the day before his 14th birthday and has notplayed in a Test Match for the country of his birthduring that period.

“ Rule 2 Playing andregistering cricketers

“(a)No cricketer may play in a competitive countycricket match unless he is registered with the boardfor the county for which it is desired that he shallplay during the current season.(b)No cricketer may



be registered for more than one county in one sea-son without the approval of the board.(c)Subject tothe overriding discretion of the board, no countyshall be entitled to play in any competitive countycricket match more than two cricketers who are notqualified to play for England.”

At the end of Appendix B to therules of the TCCB, there followed and still followsome notes to the rules governing qualification andregistration contained earlier in the appendix.

[His Lordship then dealt with leading counsel'sopinion dated July 5 to the TCCB in respect of itsproposed change of rules, the subsequent meetingof the chairman's advisory committee and its report.He continued:]

X The resolutions introducing bans

Meeting of the TCCB: July 15, 1977

On July 15, 1977, a special meeting of theTCCB was held. This is of importance for the pur-pose of these proceedings because, as the formalminutes show, the TCCB there reached a firm de-cision in principle to introduce a ban at countylevel, subject only to the Cricket Council support-ing its proposals and the ICC taking the expecteddecision in regard to a Test Match ban. Such sup-port was subsequently given by the Cricket Counciland the ICC took the expected decision. In duecourse, therefore, when the TCCB on August 5came to pass formal resolutions implementing theproposals, it was merely carrying out a policy onwhich a firm decision had already been reached inprinciple on July 15. In view of the claim that theproposal for a ban constituted an inducement to

*329 breach of contract, it thereforebecomes important to examine, so far as the evid-ence reveals this, the intentions of the meeting ofJuly 15, when it decided in principle on the desirab-ility of a county ban.

[His Lordship considered that evidence indetail and the meetings on July 19 of the Cricket

Council and on July 26 of the ICC at which lattermeeting the West Indies delegate expressed strongreservations as to the retroactive nature of the pro-posed ICC ban. He continued:] The four specificdecisions reached by the ICC at this importantmeeting of July 26 were, after an introductory ex-planation, recorded in the press statement issued byit later that day:

“In order to give effect to these views, the ICCpassed unanimously: —

1.A change in the ICC rules relating to qualificationfor Test Matches, as follows ‘Notwithstanding any-thing hereinbefore contained no player who afterOctober 1, 1977, has played or has made himselfavailable to play in a match previously disapprovedby the conference shall thereafter be eligible to playin any Test Match without the express consent ofthe conference to be given only on the applicationof the governing body for cricket of the country forwhich, but for this subrule, the player would be eli-gible to play.’

“2.Pursuant to this new subrule (f), the conferencethen passed unanimously a resolution in the follow-ing terms disapproving certain matches ‘It is herebyresolved for the purposes of Appendix I (f) that anymatch arranged or to be arranged by J.P. Sports(Pty.) Ltd., Mr. Kerry Packer, Mr. Richie Benaudor associated companies or persons to take place inAustralia or elsewhere between October 1, 1977,and March 31, 1979, is disapproved.’

“3.In addition the conference passed a guidanceresolution in the following terms ‘For future guid-ance the conference records and minutes thatmatches are liable to be disapproved if so arranged,whether by reference to date or otherwise, as tohave the probable result that invitations to play insuch matches will conflict with invitations whichhave been or may be received to play in first classmatches subject to the jurisdiction of the governingbodies of foundation and full members of the con-ference.’



“Finally, it was resolved that the conferencestrongly recommended that each member countrypursue as soon as possible at first class level and inother domestic cricket activities the implementationof decisions made in regard to Test Matches.”

The reservations of the West Indies delegates whichhad been strongly expressed at this ICC meeting ofJuly 26 were not in any way reflected in this pressstatement.

XI Events subsequent to July 26,1977(1)

The application by the plaintiffs for inter-locutory relief

The recommendation of the ICC made onJuly 26 that each member country should pursue theimplementation of the ICC's policy in regard toTest Matches made it more or less inevitable thatthe TCCB would introduce a ban at county level,affecting World Series Cricket players, at its meet-ing due to be held on August 5. It had alreadyagreed in *330 principle on sucha ban at its meeting of July 15 and had obtained therequisite authority of the Cricket Council on July19.

In the light of what the ICC had already done andwhat it was anticipated the TCCB would do when itmet on August 5, the respective plaintiffs on Au-gust 3 issued their writs in the two actions. Origin-ally the defendants to both actions were named asthe MCC and all other members of the TCCB andthe members of the Australian Cricket Board suedon their behalf and on behalf of all the other mem-bers of the ICC.

Immediately after the issue of the writs, theplaintiffs applied to Slynn J. ex parte for inter-locutory injunctions restraining the TCCB fromtaking any decision at the meeting which it was dueto hold on August 5, which might be made or calcu-lated to induce players who had contracted to playcricket for World Series Cricket to break their con-

tracts. At the hearing, however, undertakings weregiven to the court on behalf of the TCCB to the ef-fect that any decision which was taken concerningthe banning of players from county cricket wouldbe expressed to be subject to the decision of thecourt in the present proceedings and would not inany event be implemented until April 1978. On thisbasis Slynn J. ordered a speedy trial of the actionsbut granted no further interlocutory relief againstthe TCCB. During the course of the hearing, theplaintiffs' advisers were given the names of two in-dividual representative defendants on behalf of theTCCB and two other individual representative de-fendants on behalf of the ICC. This in due courseled to an amendment of the writs so as to delete thereference to the MCC and the Australian CricketBoard and to show the names of Mr. Insole and Mr.Carr as sued on behalf of all members of the TCCBand the names of Mr. Webster and Mr. Bailey assued on behalf of all members of the ICC.(2)

The plaintiffs' solicitors' letter to the defendants'solicitors dated August 4, 1977, and Mr. Pack-er's letters to players of the same date.

During the course of the hearing beforeSlynn J., the defendants' counsel made certain criti-cisms of the contracts entered into by players withWorld Series Cricket (which the defendants had notpreviously seen) and suggested that they might con-flict with the playing of English county cricket dur-ing the domestic season. On August 4, theplaintiffs' solicitors wrote to the defendants' solicit-ors referring to this criticism and suggestion, say-ing:

“… This suggestion was made despite the fact thatit was made unequivocally clear that this was notthe intention of the agreement, and that it was wellknown that the tours arranged by our clients wouldnot begin until the autumn and would terminate be-fore the English domestic season. As stated in ourevidence, our clients had fully explained this posi-tion to any players who had inquired. In view of thesuggestions which were made, however, our clientsare writing a letter to the players in the terms of the



enclosed draft. Our clients are conscious that no in-dividual county has yet, so far as we know, madethe suggestions which were put forward on behalfof your clients, and we would not like them to at-tend the meeting under any false impression thatthe players would in any way be restricted or pre-vented from participating to the full in their countyprogrammes ….”

On or about the same day, August 4, Mr.Packer wrote a letter to each of the players contrac-ted to World Series Cricket informing them in ef-fect *331 to the full in any Eng-lish county programmes with which they might beinvolved. The letter added that no matter whathappened in the action, World Series Cricket wouldhonour the contract and expect the player to do thesame. A copy of this letter was sent to the TCCB soas to arrive before its meeting about to be held onAugust 5. (3)

The TCCB meeting of August 5

In due course at this meeting, the membersof the TCCB passed a number of resolutions,providing for amendment to the TCCB's rules gov-erning the qualification and registration of crick-eters in Test and competitive county cricket. Theydecided, however, that the proposed amendmentsshould be considered by leading counsel. Counselin due course considered these. Having received hisadvice, the TCCB on or about August 9, issued thefollowing press release which represented its finaldecision:

“At the meeting of the board on August 5, 1977,consideration was given (a) to the recommendationof the [ICC] made on July 26, 1977, that each mem-ber country should pursue as soon as possible atfirst class level, and in other domestic cricket activ-ities, the implementation of the decision made atTest Match level, and (b) generally to the situationwhich gave rise to the ICC recommendation. Themembers of the board agreed upon the undermen-tioned draft amendments to the rules governing thequalification and registration of cricketers in Test

and competitive county cricket, which have beendiscussed with the board's legal advisers. Thesedraft amendments are subject to the ruling of theHigh Court at the speedy trial ordered by Slynn J.on August 4, 1977. It must therefore be emphasisedthat there is no question of the draft amendmentsbeing incorporated into the rules or in any mannerimplemented until after this trial.

“1.Rule 1 Qualifications for England

“An additional sub-rule (e) be added ‘and (e) thatthe cricketer is not precluded from playing in a TestMatch by reason of the terms of sub-rule (f) of Ap-pendix 1 of the rules of the [ICC] which sub-rulereads as follows: (f) Notwithstanding anythinghereinbefore contained, no player who after Octo-ber 1, 1977, has played or made himself availableto play in a match previously disapproved by theconference shall thereafter be eligible to play anyTest Match without the express consent of the con-ference to be given only on the application of thegoverning body for cricket of the country forwhich, but for this sub-rule, the player would beeligible to play.’

“2.Rule 2 Playing and registering cricketers

“The existing rule 2 (c) be deleted and the follow-ing new rule 2 (c) be substituted: ‘2 (c) Subject tothe overriding discretion of the board, no countyshall be entitled to play in any competitive countycricket match: (i) Any cricketer who is and remainsprecluded from playing in a Test Match on thegrounds set out in rule 1 (e) (whether or not he isotherwise qualified to play in a Test Match) prior tothe expiration of a period of two years immediatelyfollowing the date of the last day of the last matchpreviously disapproved by the [ICC] in which hehas played or made himself available to play; (ii)More than two cricketers who are not qualified toplay for England by reason of their inability to sat-isfy rule 1 (a) (b) (c) or (d).’*332

“3.At the end of existing rule (2) (a) the followingwords be added ‘and except in exceptional circum-



stances (which are subject to the discretion of thediscipline sub-committee) has entered into a writtencontract current during the ensuing cricket seasonwith his county cricket club incorporating a clauseacknowledging the board's rules, regulations or dir-ectives.’”

By the time that these proposed new rules were ap-proved by the TCCB at least 49 cricketers hadentered into contracts with World Series Cricket(including five from the United Kingdom, five fromPakistan, five from South Africa, 19 from Australiaand 15 from the West Indies); 21 of these playedEnglish county cricket and would therefore be af-fected by the proposed county cricket ban.

XII The claim of World SeriesCricket against the ICC based on alleged induce-ment of breach of contract: question (B) above(1)

The basic principles of law

I am now in a position to deal with thesecond of the nine principal questions that fall to bedecided. This relates to the claims of World SeriesCricket against the ICC based on alleged induce-ment of breach of contract. In this context, I takethe basic principles of law to be as follows. Atcommon law, it constitutes a tort for a third persondeliberately to interfere in the execution of a validcontract which has been concluded between two ormore other parties, if five conditions are fulfilled.First, there must be either (a) “direct” interferenceor (b) “indirect” interference coupled with the useof unlawful means: see per LordDenning M.R. in Torquay Hotel Co. Ltd.v. Cousins [1969] 2 Ch. 106 , 138. In thepresent case, it has not been suggested that eitherthe ICC or the TCCB has used unlawful means.World Series Cricket relies only on “direct” inter-ference; I shall revert later to the meaning of theword “direct” in this context. As to the meaning of“interference,” this is not confined to the actualprocurement or inducement of a breach of contract,it can cover the case where the third person pre-vents or hinders one party from performing his con-

tract even though this be not a breach: seeper Lord Denning M.R. Secondly,

the defendant must be shown to have had know-ledge of the relevant contract. Thirdly, he must beshown to have had the intent to interfere with it.Fourthly, in bringing an action, other than a quiatimet action, the plaintiff must show that he hassuffered special damage, that is more than nominaldamage: see Rookes v. Barnard [1964]A.C. 1129 , 1212, per

Lord Devlin. In any quia timet action, theplaintiff must show the likelihood of damage to himresulting if the act of interference is successful: see

Emerald Construction Co. Ltd. v. Lowthi-an [1966] 1 W.L.R. 691 , 703 per

Diplock L.J. Fifthly, so far as is necessary,the plaintiff must successfully rebut any defencebased on justification which the defendant may putforward. I shall revert later to the meaning of“justification” in this context.

One point, however, requires to be em-phasised. If these five conditions are fulfilled andthe defendant is shown to have had that intention tointerfere with the relevant contract which is neces-sary to constitute the tort, it is quite irrelevant thathe may have acted in good faith and without maliceor under a mistaken understanding as to his legalrights; good faith, as such, provides no defencewhatever to a claim based on this tort: see, for ex-ample, South Wales Miners' Federation v.Glamorgan Coal Co. Ltd. [1905] A.C. 239

, 246, per LordMacnaghten. *333

I think that this latter point is commonground between the parties, as is the fact that it isno tort to interfere with a void contract: see

Joe Lee Ltd. v. Lord Dalmeny [1927] 1Ch. 300 . A question that has been the sub-ject of some argument before me is whether it couldbe a tort to induce the breach of a merely voidableagreement. Mr. Kempster on behalf of the defend-ants submitted that it could not constitute a tort fora third party to induce a person who had a lawful













right to rescind a contract to exercise such right.Mr. Morritt, on behalf of World Series Cricket, sub-mitted to the contrary and referred me in this con-text to the decision in Keane v. Boycott(1795) 2 H. B1. 511 . In that case, theplaintiff brought an action against the defendant forenticing away from his service his servant who wasan infant. Eyre C.J. held that the contract betweenthe servant and his master was voidable, not void,and that the voidability of this contract provided nodefence to the action. As he said, at p. 515:

“For this is the case of a stranger and a wrong-doerinterfering between the master and servant, andnow seeking to take advantage of the infant's priv-ilege of avoiding his contracts, a privilege which ispersonal to the infant, and which no one can exer-cise for him.”

In reliance on this decision, Mr. Morritt submittedthat, if the other elements of the tort are present, itmatters not that the contract interfered with wasvoidable. More recent judicial dicta, however, sug-gest that the tort is not committed, if the interfer-ence in question results not in any breach of the rel-evant contract, but merely in a party exercising alawful right to terminate it.

Thus in D. C. Thomson & Co.Ltd. v. Deakin [1952] Ch. 646 , 702, Mor-ris L.J. said:

“If A has a contract with B, the tort will be commit-ted by X if there is a violation of the right B has un-der his contract by the intentional interference of X.If the contract between A and B is lawfully termin-ated, there is no violation.”

A passage from the judgment of DiplockL.J. in Emerald Construction Co. Ltd. v.Lowthian [1966] 1 W.L.R. 691 , 703–704,can be read in much the same way.

In the two last mentioned cases the court was not,in terms, considering the situation where a contract

could be lawfully terminated not so much becauseof rights given by the contract as because one of theparties had a right to rescind it on the grounds ofmisrepresentation or undue influence. Neverthelessthe dicta cited appear to be of general application.For the purpose of this judgment, therefore, so faras it is relevant at all, I propose to assume in favourof the defendants, without deciding, that it does notconstitute a tort for a third party to induce a personto exercise a lawful right to rescind a contract.

In the light of this introduction, I now turn to con-sider whether the five essential ingredients of thetort of interference with contractual relations arepresent in relation to the ICC.(2)

“Direct interference

First, has there been interference by theICC with the players' contracts with World SeriesCricket and, if so, has that interference been of a“direct” nature? Though there have been many de-cisions indicating whether particular stated sets offacts constitute “direct,” as opposed to “indirect,”interference, I have been referred to no statement ofprinciple *334 which specificallydefines the difference between the two types of in-terference. I take it, however, that the phrase “directinterference” covers the case where the intervener,either by himself or his agents, speaks, writes orpublishes words or does other acts which commu-nicate pressure or persuasion to the mind or personof one of the contracting parties themselves, while“indirect interference” refers to the case where,without actually doing any of these things, the in-tervener nevertheless procures or attempts to pro-cure a situation which will result or may result in abreach of the contract see, for example, J.T. Stratford & Son Ltd. v. Lindley [1965] A.C. 269

, 333, per Lord Pearce:D. C. Thomson & Co. Ltd. v. Deakin

[1952] Ch. 646 , 678, perEvershed M.R.

Has there been direct interference in this sense bythe ICC with the contracts of World Series Cricket











and its players? In my judgment, beyond doubtthere has. The very terms of the ICC resolutions ofJuly 26, 1977, by imposing a Test Match ban onany players who should play or make themselvesavailable to play in World Series Cricket matchesafter October 1, 1977, were calculated to cause anddoubtless did cause those players who had alreadycontracted with World Series Cricket, but were oth-erwise eligible to play in Test cricket and wished toremain eligible for Test selection, to considerwhether they should take advantage of the period ofgrace granted them and attempt to withdraw fromtheir contracts with World Series Cricket beforeOctober 1. The resolutions, by necessary implica-tion, contained a threat of a ban directed at theplayers who had so contracted, coupled with a sug-gestion that they could escape from its operation byterminating their contractual relations with WorldSeries Cricket before the stated date. Thus in myjudgment the resolutions constituted an inducementto those players to terminate such relationships asmuch as if they had contained express words urgingthem to take this course.

A number of the plaintiffs' witnesses, suchas Mr. Greig and Mr. Underwood, accepted in evid-ence that they realised the possible risk of a ban ofthis nature being imposed, when they signed theircontracts with World Series Cricket. It was submit-ted on behalf of the defendants by Mr. Kempster, inhis opening speech, that the reason why there have,so far, been no defections from World Series Crick-et consequent on the ICC and TCCB bans is thatthey were fully anticipated and discounted by allthe players when they entered into their contractswith it. In such circumstances, it was submitted thatthe ICC and TCCB resolutions or proposed resolu-tions presented no real threat of interference withthe relevant contracts. I find this line of argumenton behalf of the defendants unconvincing. First, inthe case of many of the 50 or so players involved,there is no evidence whatever that they actually an-ticipated the imposition of the bans in question.Secondly, it is no answer to a person who has delib-erately attempted to interfere with the contractual

relations of another to plead that his attempts werein all the circumstances of the case likely to be un-successful. In a quia timet action it suffices for theplaintiff to show that the attempt, if

successful, is likely to cause him morethan nominal damage.

The ICC when it published its press state-ment of July 26, in my judgment, was applyingpressure or persuasion to the minds of all cricketerslike Mr. Greig, Mr. Knott and Mr. Underwood, whohad contracted with World Series Cricket butwished to remain eligible to play official Test crick-et for their country, as directly as if it had written toeach of such *335 players andtold them that if they played or made themselvesavailable to play for World Series Cricket after Oc-tober 1, they would be disqualified from officialTest cricket. The implicit threat contained in theterms of the press statement was directly aimed atthe minds of such persons, who, the ICC couldreasonably have assumed, would very soon read orhear of it. In these circumstances “direct interfer-ence” on the part of the ICC, in the relevant sensehas been proved. (3)

Knowledge

The degree of knowledge on the part of adefendant which is required as an essential ingredi-ent of the tort of inducement of breach of contractin my judgment adequately appears from the judg-ments of Lord Denning M.R. and Diplock L.J. in

Emerald Construction Co. Ltd. v. Lowthi-an [1966] 1 W.L.R. 691 . In that case, thedefendants, who were officers of a building work-ers' trade union, having learned of a contract madebetween the main contractors of a new power sta-tion and the plaintiff sub-contractors, though not ofthe precise terms of the contract, informed the maincontractors that, unless all bricklayers on theproject were directly employed by them and thesub-contract terminated by specific dates, the unionmembers would be advised not to work. Theplaintiff sub-contractors obtained from the Court ofAppeal an interlocutory injunction to restrain the





defendants from attempting to bring about a termin-ation of the contractual relations between the maincontractors and themselves. Lord Denning M.R.said, at pp. 700–701:

“This ‘labour only’ sub-contract wasdisliked intensely by this trade union and its of-ficers. But nevertheless it was a perfectly lawfulcontract. The parties to it had a right to have theircontractual relations preserved inviolate withoutunlawful interference by others: seeQuinn v. Leathem, by Lord Macnaghten [1901]A.C. 495 , 510. If the officers of thetrade union, knowing of the contract, deliberatelysought to procure a breach of it, they would dowrong: see Lumley v. Gye (1853) 2 E.& B. 216 . Even if they did not knowof the actual terms of the contract, but had themeans of knowledge — which they deliberatelydisregarded — that would be enough. Like the manwho turns a blind eye. So here, if the officers delib-erately sought to get this contract terminated, heed-less of its terms, regardless whether it was termin-ated by breach or not, they would do wrong. For itis unlawful for a third person to procure a breach ofcontract knowingly, or recklessly, indifferentwhether it is a breach or not. Some would go fur-ther and hold that it is unlawful for a third persondeliberately and directly to interfere with the execu-tion of a contract, even though he does not causeany breach. The point was left open by Lord Reidin J. T. Stratford & Son Ltd. v. Lindley[1965] A.C. 269 , 324. It is unneces-sary to pursue this today. Suffice it that if the inten-tion of the defendants was to get this contract ter-minated at all events, breach or no breach, theywere prima facie in the wrong.”

Diplock L.J. said, at pp. 703–704:

“The plaintiffs claim that the acts ofthe defendants which they threaten to continue wereand are intended to procure a breach by the maincontractors of their ‘labour only’ sub-contract withthe plaintiffs. Upon the claim framed in this way,

there is no real dispute as to the law applicable.There are three essential elements in the

*336 tort of unlawful pro-curement of a breach of contract: the act, the intentand the resulting damage. In a quia timet actionsuch as this, it is sufficient to prove the act and theintent and the likelihood of damage resulting if theact is successful in procuring a breach of contract.The only issue on this part of the case is one of factas to the defendants' intent. At all relevant timesthey knew of the existence of a ‘labour only’ sub-contract for brickwork between the main contract-ors and the plaintiffs, but until it was disclosed tothem on the interlocutory application to the judge inchambers for an injunction, they did not know itsprecise terms. They say in somewhat equivocal lan-guage that they assumed that it could be lawfullyterminated by the main contractors on short noticeand that such lawful termination was all that theyinsisted on. But ignorance of the precise terms ofthe contract is not enough to show absence of intentto procure its breach. The element of intent neededto constitute the tort of unlawful procurement of abreach of contract, is, in my view, sufficiently es-tablished if it be proved that the defendants inten-ded the party procured to bring the contract to anend by breach of it if there were no way of bringingit to an end lawfully.”

These two judgments are, I think, sufficient author-ity for the proposition that, in an action for induce-ment of breach of contract, it is not necessary forthe plaintiff to show that the defendant knew of theprecise terms of the relevant contract, it will sufficefor the plaintiff to prove that he knew of the exist-ence of the contract, provided that he can provealso that he intended to procure a breach of it. A de-fendant's ignorance of the precise terms of the con-tract may in particular circumstances enable him tosatisfy the court that he did not have such intent; ig-norance of this nature, however, does not alone suf-fice to show absence of intent to procure breach.

On the facts of the present case, there can be nodoubt that at all material times the ICC knew of the







existence of the players' contracts with WorldSeries Cricket and indeed had known of them sinceabout May 17, 1977, when the secretary of the ICCwrote to all members of the ICC informing themthat 35 players had signed contracts, which weresaid to be “tight contracts.” The whole of the dis-cussion on July 26, 1977, was based on the premisethat a number of players had already signed con-tracts with World Series Cricket. This was the reas-on why the West Indies were anxious about the ret-roactive nature of the ban. In my judgment the re-quisite knowledge on the part of the ICC isproved.(4)

Intent

I now turn to consider the ICC's intent, which is allimportant in the present context, and will begin byreferring to a little of the evidence.

Speaking in Melbourne on July 27, 1977,after the ICC decision of the previous day, Mr.Steele of the Australian Cricket Board said that hehoped the proposed World Series Cricket matcheswould not “get off the ground,” that he still haddoubts if they would go ahead and that he was con-fident that the players concerned would have everyopportunity to “reconsider their position”; he fur-ther said he was hopeful that some players wouldreconsider. Under cross examination, Mr. Steele ad-mitted that, in expressing this hope, he had includedplayers who had already signed contracts withWorld Series Cricket. He further admitted that itwould be the ICC resolution which would makethem reconsider their *337

position. Mr. Steele added, however, thathe was aware that it was an offence to induce abreach of contract and that he did not support theban in order to induce anyone to break his contract.He said he was hopeful that some of the playerswould not be bound by their contracts.

Mr. Hadlee of New Zealand accepted (in chief)that, though he was not skilled in the law, he had atthe ICC meeting of July 26 referred to a probabilitythat those players who had contracted with World

Series Cricket, but had not “part performed” theircontracts, would be able to withdraw from them. Headmitted in cross examination that he hoped theywould withdraw, but did not accept that he person-ally ever regarded the ICC ban as a means of at-tempting to procure them to withdraw. In his mind,according to his evidence, the sole objects of apply-ing the ICC ban to those who had already contrac-ted with World Series Cricket were as a penalty andto deter, by example, other players who might thinkof doing likewise.

Mr. Bailey, in the course of cross examination, wasasked about the two-headed proposals put forwardby the United Kingdom representatives at the spe-cial meeting of the ICC held on June 14, 1977, thatWorld Series Cricket players should be given theopportunity to “draw back from the brink,” but thatfailing agreement with Mr. Packer, such playersshould be banned from Test cricket. Mr. Baileyreplied that the basic question at that time waslinked solely with giving everybody a chance tocontinue to play Test cricket, if it was at all pos-sible. In other words players were to be given thechoice either to “draw back from the brink” and re-main qualified to play in Test cricket, or to be dis-qualified from Test cricket. Later, under cross ex-amination, he accepted that one of the reasons whythe date October 1, 1977, was chosen, was to giveplayers “who could legally have a change of heart,”the opportunity to assess the alternatives open tothem, namely to play for Mr. Packer or to bebanned. In his evidence, however, Mr. Bailey hadalready stated that it was “certainly not” the view ofthe ICC that it was entitled to try and persuadecricketers to resile from valid contracts. He had em-phasised that he and the representatives of the ICChad no knowledge of the terms of the players' con-tracts with World Series Cricket.

I accept Mr. Steele, Mr. Hadlee, representative ofNew Zealand on the ICC, and Mr. Bailey as honestwitnesses and have no doubt that they did not thinkthat the course which the ICC was proposing to ad-opt on July 26 would involve the tort of inducement



of breach of contract or any infringement of thelegal rights of World Series Cricket. I am satisfiedthat they were acting in good faith and, on theavailable evidence, have no reason to suppose thatthe other delegates present at the ICC meeting ofJuly 26 were not acting similarly.

As has already been pointed out, however,good faith as such in the present context has no leg-al relevance. There were some 26 delegates of thevarious Test-playing countries present when the rel-evant ICC resolutions of July 26, 1977, werepassed, the majority of whom have not given evid-ence and many of whom are not reported as havingsaid anything relevant for the present purposes atthe meeting. In these circumstances any attemptsubjectively to assess the innermost minds of all therepresentatives present would not only in my judg-ment be legally incorrect, but would be impossibleto carry out. In my judgment, the intentions of theICC as at July 26, 1977, can only be judged bywhat it did that day and subsequently said to theoutside world in its press statement of that day. AsLord Halsbury L.C. said in

South Wales Miners' Federation v.Glamorgan Coal Co. Ltd.

[1905] A.C. 239 , 244, it is aprinciple of the law that “people are presumed tointend the reasonable consequences of their acts.”The same principle must in my judgment apply afortiori when judging the intentions of a large unin-corporated association.

Applying this objective test, how then are the inten-tions of the ICC as at July 26 in imposing and an-nouncing to the world the Test Match ban, but de-ferring the date of its operation until October 1 tobe assessed? In my judgment there can be only oneanswer to the question. This is that the ICC, by im-posing and announcing the ban in this form, inten-ded to apply pressure or persuasion to all playerswho had entered into contracts with World SeriesCricket and were otherwise eligible for Test cricketto withdraw from their contracts by October 1. Inmy judgment it is no answer for the ICC to plead

that in truth it only intended to apply pressure orpersuasion to those players, if any, who might havelawful rights of withdrawal. Nothing in the terms ofits resolutions or of its press statement or of anyother communication made by it to players gaveany indication of such limitations on its intentionsor drew any distinction between those players whomight be fully legally committed to World SeriesCricket and those who might have lawful rights ofwithdrawal. The pressure was, on the face of things,being applied by it as much to players who hadfully binding contracts, as to those who had not;and this, I think, is how the ICC's intentions mustbe judged.

On this basis, I find as a fact that the ICC, inpassing its resolution of July 26 intended to applypressure or persuasion to all players, who had con-tracts with World Series Cricket and were other-wise eligible for Test cricket, to withdraw fromsuch contracts, whether or not they had lawfulrights to withdraw. In the case of a number of per-sons present at the meeting, such intention was mo-tivated by a belief that most of the players' con-tracts probably were not legally enforceable. Therequisite intention to constitute the tort beingpresent, however, the belief which motivated it, andthe good faith of the persons who held such belief,in my judgment have no legal relevance.

I should, perhaps, add that I appear to beby no means alone in interpreting the ICC's inten-tions in this manner. A number of the persons whospoke at the ICC meeting of July 26 spoke in termswhich showed that they contemplated that the pro-posed ban might have the general effect of causinga number of players to withdraw from their con-tracts with World Series Cricket, without drawingany distinction between those players who mighthave a right so to withdraw and those who mightnot. On August 22 the Board of Control for Cricketin Pakistan wrote to a Pakistan player, Mr. Iqbal,saying, inter alia:

“The BCCP [the board of control] has also decidedto abide by the decision taken alt the last ICC meet-






ing regarding the Packer series of matches. Accord-ing to this decision, players who have made a con-tract with Packer are required to rescind such con-tracts by October 1, 1977, failing which such play-ers will render themselves ineligible to play in theTest matches.”

Finally, Mr. Chidambaram who gave evidence onbehalf of the Board of Control for Cricket in Indiawas asked under cross examination, “Are we agreedon this? The only purpose of a retroactive ban wasto try to persuade those who had already signed notto play for World Series Cricket?” To which hereplied, simply, “Yes, I agree.”*339 (5)

Damage

World Series Cricket, as has been indicated, mustshow that, as at August 3 there was the likelihoodthat it would suffer more than nominal damage ifthe ICC resolutions of July 26 were successful inprocuring breaches of one or more of the players'contracts with World Series Cricket. There weretwo principal submissions put forward on behalf ofthe defendants in this context.

First, it was said, the players who had con-tracted with World Series Cricket had all done so inthe knowledge that this course would probably res-ult in the imposition on them of a ban broadly onthe lines of that actually imposed, in the event, bythe ICC. Mr. Kempster referred to the evidence of anumber of players, who acknowledged that theyhad foreseen the possibility of a ban of this nature.He referred also to a press release from Mr. KerryPacker's office dated July 27, 1977, in which it wassaid:

“It is regrettable, though predictable, that the ICChave taken this stand. All of the players signed forthe super-tests were aware of the possibility of suchan eventuality, but were prepared to sign on for theseries.”

It was submitted on behalf of the defendants thatsuch evidence showed that the ICC ban was not

likely in the event to have the effect of persuadingany players to break their contracts with WorldSeries Cricket and correspondingly that WorldSeries Cricket was never likely to suffer any dam-age as a result of the intervention of the ICC. In myjudgment, however, this submission has no sub-stance; as has already been stated, it is not open to aperson who deliberately attempts to procure thebreach of a contract between two other parties toplead that his attempts are unlikely to succeed. It isenough for the plaintiff in such a case as this toshow the likelihood of more than nominal damageresulting if the attempt is successful.

Secondly, Mr. Kempster pointed out theimmense complexity of the company group struc-ture of which, according to the evidence, WorldSeries Cricket forms a part. He pointed out, cor-rectly, that there is no clear evidence that WorldSeries Cricket will itself be in a position to exploitor will be exploiting the benefit of its contracts withits players. Indeed, the rather inconclusive evidenceadduced by the plaintiffs as to the manner in whichthe contracts are going to be exploited, suggeststhat they are likely to be exploited by other com-panies within the group, such as Television Corpor-ation Ltd., to which World Series Cricket says ithas sold the television rights during the period sincethe issue of the writs. For these reasons, the defend-ants submitted, it has not been proved that as at Au-gust 3, 1977, World Series Cricket was likely tosuffer any damage, even if any attempts to induceplayers to break their contracts succeeded. I do notfeel able to accept this submission. Apart from anyother consideration, the simple fact seems to me tobe that, as at August 3 World Series Cricket was theowner of contracts which entitled it to the benefit ofthe services of about 50 of the best cricketers in theworld. It has not been suggested that such contractswould not have had potential value if and whenthey were exploited. May be World Series Cricket(which had a small nominal capital) as at August 3would not have been in a financial position to ex-ploit those contracts itself. Nevertheless the con-tracts (coupled with the television and merchand-



ising rights attached thereto which were still vestedin it) would still have constituted *340

assets in its hands which were valuable as-sets, in the sense that it could reasonably have ex-pected to be able to sell, lease or licence them toone or more companies, inside or outside its owngroup, which would be in a better financial positionto exploit them. The contracts in question werefully assignable. If the defendants had succeeded inpersuading merely one or two of the players towithdraw from their contracts, this could have castdoubts on the viability of the whole World SeriesCricket project, with consequent risks of incalcul-able loss to the company which had entered intosubstantial commitments both with the players in-volved and to other persons in connection with theproject.

In the circumstances World Series Cricket has, inmy judgment, established the likelihood of morethan nominal damage resulting to it, if the ICC'sacts of interference with its contracts with playersare successful.(6)

Justification

I have already made it plain that good faith and ab-sence of malice on the part of a defendant do not assuch provide any defence to an action based on in-ducement of breach of contract. The authorities,however, show that, even if all the other ingredientsof the tort are present in a given case, the defendantmay still escape liability, if he can in the particularcircumstances show sufficient “justification” in lawfor what he did.

Romer L.J. in Glamorgan CoalCo. Ltd. v. South Wales Miners' Federation [1903]2 K.B. 545 , 573, pointed out that it wouldbe extremely difficult, even if it were possible, togive a complete and satisfactory definition of“sufficient justification” and that most attempts todo so would probably be mischievous. He agreedwith what Bowen L.J. had said in MogulSteamship Co. Ltd. v. McGregor, Gow & Co.(1889) 23 Q.B.D. 598 , 618, namely, that

when difficulty might arise in deciding whetherthere was sufficient justification or not, “the goodsense of the tribunal which had to decide wouldhave to analyse the circumstances and to discoveron which side of the line each case fell” Romer L.J.continued, at p. 574:

“I will only add that, in analysing orconsidering the circumstances, I think that regardmight be had to the nature of the contract broken;the position of the parties to the contract; thegrounds for the breach; the means employed to pro-cure the breach; the relation of the person procuringthe breach to the person who breaks the contract;and I think also to the object of the person in pro-curing the breach. But, though I deprecate the at-tempt to define justification, I think it right to ex-press my opinion on certain points in connectionwith breaches of contract procured where the con-tract is one of master and servant. In my opinion, adefendant sued for knowingly procuring such abreach is not justified of necessity merely by hisshowing that he had no personal animus against theemployer, or that it was to the advantage or interestof both the defendant and the workman that thecontract should be broken. I take the followingsimple case to illustrate my view. If A wants to geta specially good workman, who is under contractwith B, as A knows, and A gets the workman tobreak his contract to B's injury by giving him high-er wages, it would not, in my opinion, afford A adefence to an action against him by B that he couldestablish he had no personal *341

animus against B, and that it was bothin the interest of himself and of the workman thatthe contract with B should be broken. I think thatthe principle involved in this simple case, taken byme by way of illustration, really governs thepresent case. For it is to be remembered that what Ahas to justify is his action, not as between him andthe workman, but as regards the employer B.”

Romer L.J., on the facts of that particular case wenton to hold, at p. 576, that there was no sufficient






justification for the acts of the defendant federation“as against the plaintiffs” and it was accordingly li-able to them.

In my judgment, therefore, it is clear that the ICChas to justify as against World Series Cricket theactions which it took in regard to players with aview to inducing them to withdraw from their con-tracts with that company. For this reason, I do notregard a number of matters which are pleaded bythe defendants as constituting justification, as af-fording any valid basis for the plea. They plead, forexample, a large number of alleged facts relating tothe terms of the contracts and the circumstances inwhich they were entered (such as secrecy and thefailure to provide copies to the players). If the de-fendants had shown that all the contracts in ques-tion were void or voidable, I would have regardedthis as highly material, not because this would haveprovided a defence of justification as such, but be-cause I am prepared to assume that the tort is notcommitted if the alleged contract interfered with isshown to be voidable or void. The defendants,however, in my judgment have not proved either ofthese things. Accordingly, I think that the terms ofthe contracts and the circumstances in which theywere concluded do not found a defence of justifica-tion.

In his closing speech on behalf of the de-fendants, Mr. Kempster emphasised the impersonaland disinterested motives of the ICC in doing whatit did and referred me to the decision of Gale J. inthe Ontario High Court, Posluns v.Toronto Stock Exchange and Gardiner (1965) 46D.L.R. 210 , see particularly at p. 270. Inmy judgment, however, motives of this nature donot, as such, give rise to a defence of justificationeither generally under English law or on the partic-ular facts of this case.

In the context of English county cricketers, Mr.Kempster mentioned that in accordance with thediscipline sub-committee regulations of the rules ofthe TCCB (Appendix J, paragraph A), every re-gistered county cricketer, before the beginning of

each cricket season, is required to sign an undertak-ing with the TCCB to abide by its rules. All countyplayers who have contracted with World SeriesCricket would have signed such an undertaking be-fore the start of the 1977 season. It was submittedthat, by so signing, they had sufficiently agreed tosubmit to any proper exercise of their functions bythe governing bodies of cricket, namely, the ICCand the TCCB, including changes of their qualifica-tion rules. This submission, however, even if cor-rect, would, in my judgment, at most confer certainrights on the ICC and the TCCB as against theplayers concerned. It could afford no justification toeither of those bodies for attempting to interferewith contracts concluded between players and thirdparties.

Much the same comment would, in myjudgment, apply to the defendants' submission thatthe ICC or the TCCB was entitled to interfere withWorld Series Cricket contracts on the grounds thatsome of the players concerned, by entering intosuch contracts or alternatively by *342

playing in World Series matches, havebeen or will be in breach of contractual obligationspreviously entered into by them either with theircounty clubs (in the case of some English countycricketers) or with their national governing bodiesfor cricket (in the case of some other players). Thiscould be a point which the county clubs or govern-ing bodies would be entitled to take. In my judg-ment, however, it does not avail the ICC or theTCCB in the present proceedings, as against WorldSeries Cricket.

I accept Mr. Kempster's submission that the plea ofjustification nowadays is a flexible one and shouldnot be regarded as confined to narrow straitjackets.In general terms, however the weakness of theICC's plea of justification as against World SeriesCricket is, in my judgment, illustrated by the factthat, according to the evidence, neither it nor itslegal advisers made any attempt to obtain from Mr.Packer or World Series Cricket copies of the relev-ant contracts, either at the meeting of June 23,



1977, or subsequently. If there had been an activedesire on the part of the ICC not to interfere withsuch contracts more than was justifiable, it mightreasonably have been expected to ask for copies ofthe contracts from World Series Cricket or its soli-citors, explaining why it required them. Its failureto do so provides a further indication that, promp-ted by an optimistic (but unsubstantiated) belief onthe part of some of its members that the contractswere probably voidable, the ICC thought it unne-cessary to give very much thought to the possibilitythat, in passing the proposed resolutions, it mightbe infringing the rights of World Series Cricket.

In my judgment the defence of justifica-tion fails. Accordingly, I answer question (B) aboveby finding that, subject to any statutory immunitywhich may be conferred on the ICC by the

Trade Union and Labour Relations Act1974 , World Series Cricket had as at Au-gust 3, 1977, and still has a good cause of action intort against the ICC based on inducement of breachof contract.

XIII The claim of World SeriesCricket against the TCCB based on alleged induce-ment of breach of contract: question (C) above

I shall now consider the claims of World SeriesCricket against the TCCB based on alleged induce-ment of breach of contract. I need not repeat the ba-sic principles of law applicable in this context, butwill proceed straight away to the five ingredients ofthe tort.(1)

“Direct interference”

In my judgment there has been direct interferenceby the TCCB with the contracts of World SeriesCricket and its players. Apart from the other earlierresolutions of that body, the very terms of the resol-utions passed by it at its meeting of July 15, 1977,made it plain that in principle the TCCB contem-plated and intended that (i) any player who did notwithdraw from his contract with World SeriesCricket before October 1, should be disqualified

from Test cricket; (ii) any such player, who shouldbe thus disqualified, should also be disqualifiedfrom county cricket as from the beginning of the1979 season. The one year's moratorium attached tothis proposed county ban was removed when theproposed change of rules of the TCCB took its finalform in August 1977, but this is immaterial forpresent purposes.

Though these resolutions were not fol-lowed by an immediate press announcement, theTCCB could reasonably have assumed that many of

*343 the players concerned wouldlearn of them through the representatives of theircounties. Furthermore, at the subsequent ICC meet-ing on July 26, the chairman of the TCCB himselfadvocated the policy which had been formulated bythe TCCB.

These actions of the TCCB, by proposing (i) a TestMatch ban on the players who had contracted withWorld Series Cricket, the operation of which was tobe deferred until October 1, and (ii) a deferred banat county level on players who should fall under theTest Match ban, were calculated to cause all anddoubtless did cause at least some of those playerswho were otherwise eligible to play in Test cricketand/or county cricket to consider withdrawing fromtheir contracts with World Series Cricket. In myjudgment, the TCCB in passing the resolutionswhich it passed on July 15, and forwarding theirimplementation through the medium of their chair-man at the ICC meeting on July 26, was applyingpressure or persuasion to the minds of all cricketerswho had contracted with World Series Cricket butwished to remain eligible to play official Test and/or county cricket, to withdraw from their contracts.It faced and was calculated to face the players con-cerned with an acute dilemma, “Get out of yourcontracts by October 1, 1977, or be banned.” Thisoffer of an opportunity to the players to withdrawfrom their contracts, coupled with a sanction if theyfailed to do so, in my judgment, amounted to an at-tempted inducement to them to withdraw.

Direct interference with such contracts by the



TCCB as at August 3, has, I think, been proved.Furthermore in my judgment as at August 3 therewas a clear threat of further direct interference bythe TCCB at its impending meeting of August 5,when, it could reasonably have been assumed, itwould, unless restrained by the court, actually im-plement its own proposal for a deferred ban atcounty level affecting World Series Cricket play-ers.(2)

Knowledge

The TCCB had acquired knowledge of the exist-ence of at least three of the relevant contracts asearly as May 12, 1977, after Mr. Insole, or Mr.Carr, had seen Mr. Greig, Mr. Knott and Mr. Un-derwood. By July 15, it knew of the existence ofmany more such contracts. Its ignorance of theirprecise terms does not alone suffice to show ab-sence of intent to procure a breach. In my judg-ment, the requisite knowledge on the part of theTCCB is proved.(3)

Intent

Mutatis mutandis, much the same comments andconclusions relating to intent apply to the TCCB asthose which have been made concerning the ICC.Mr. Insole, who is clearly a powerful and respectedfigure at any meeting of the TCCB or of the ICC,which he attends, made it plain in his evidence that,in advocating deferred bans at Test and countylevel coupled with an opportunity to players to“withdraw from the brink,” he never at any timecontemplated that players under contract to WorldSeries Cricket might thereby be induced to breaksuch contracts or to act in any way in breach of thelaw; the most he contemplated and hoped was thatthe terms of the bans or proposed bans would giveplayers an opportunity to withdraw from their con-tracts, if they found that they could lawfully do so.

I accept such evidence as an honest state-ment of Mr. Insole's frame *344

of mind at the relevant times. I accept thathe and Mr. Carr, who also gave full evidence in the

proceedings, did not contemplate that the coursewhich they proposed that the ICC should adopt onJuly 26 and that the TCCB should adopt on August5 would involve the tort of inducement of breach ofcontract or any infringement of the legal rights ofWorld Series Cricket. I have no reason to supposethat any of the delegates present at the meeting ofthe TCCB on July 15 were not acting in good faith.They may well have been reassured by the terms ofcounsel's opinion written for the TCCB on July 5,copies of which were available to them. This opin-ion, as has already been mentioned, contained im-portant caveats, but I suspect that their force wasinadequately appreciated. Mr. Insole pointed out inevidence, and I accept, that a number of extractsfrom the minutes and transcribed notes indicate aconcern on the part of persons present at the relev-ant TCCB meetings to act lawfully and obtain legaladvice.

However that may be, honest misunderstanding ofthe legal position and good faith as such, are onceagain irrelevant. In my judgment the intention ofthe TCCB as at August 3 can only be judged bywhat it did and what it said, in particular on July15.

Applying this objective test, I find as a fact that inpassing the resolutions which it did pass on July 15,the TCCB intended to apply pressure or persuasionto all players who had entered into contracts withWorld Series Cricket and were otherwise eligiblefor Test or county cricket to withdraw from suchcontracts before October 1, whether or not they hadlawful rights to withdraw. I find also as a fact thatas at August 3, World Series Cricket had goodgrounds for apprehending that the TCCB intendedto pass at its meeting of August 5, and subsequentlypublicise, further resolutions which would be calcu-lated to apply further such pressure or persuasion.In my judgment it is no answer for the TCCB tosubmit that in truth it intended to apply such pres-sure or persuasion only to those players, if any,who might have lawful rights to withdraw fromtheir contracts with World Series Cricket. Nothing



in the terms of its resolutions or of any public an-nouncement or communication to players made byit gave any indication of such limitation on its in-tentions; the players could reasonably have as-sumed that it was a matter of indifference to theTCCB whether or not they had such rights of with-drawal.

In my judgment the requisite intent on the part ofthe TCCB is proved. The course of the TCCB meet-ings of May 31, the course of the meeting of thechairman's advisory committee of July 5, the reportof the chairman's advisory committee of the TCCBof July 8 and the course of the meeting of theTCCB of July 15, which I have already attemptedto summarise, in my judgment provide ample cor-roboration for this conclusion.(4)

Damage and justification

In my judgment, for reasons already given in rela-tion to the ICC, World Series Cricket has shownsufficient grounds for apprehending as at August 3the likelihood of substantial damage, if the TCCB'sacts of interference with World Series Cricket con-tracts were successful. In my judgment also, forreasons given in relation to the ICC, the defence ofjustification is not open to the TCCB in this con-text.

Accordingly I answer question (C) aboveby finding that, subject to any statutory immunitywhich may be conferred on the TCCB by the

*345 Act of 1974, World SeriesCricket had as at August 3 and still has a goodcause of action in tort against the TCCB based oninducement of breach of conduct.

XIV The new rule of the ICC andrestraint of trade: question (D) above(1)

General principles relating to restraint of trade

There can be no doubt that the changes ofrules effected by the ICC and the changes of rulesintended to be effected by the TCCB will, if imple-mented, substantially restrict the area in which it

will be open to professional cricketers to earn theirlivings. It is common ground that the rules of an as-sociation, which seek substantially to restrict thearea in which a person may earn his living in thecapacity in which he is qualified to do so, are in re-straint of trade. Likewise it is common ground that,subject to any statutory defence that may be open tothe defendants, the new rules are prima facie voidas being contrary to public policy, and can be justi-fied as valid rules only if each of the restrictionswhich they respectively embody is, to quote thewords of Lord Macnaghten in Nordenfeltv. Maxim Nordenfelt Guns and Ammunition Co.Ltd. [1894] A.C. 535 , 565:

“… reasonable … in reference to the interests of theparties concerned and reasonable in reference to theinterests of the public, so framed and so guarded asto afford adequate protection to the party in whosefavour it is imposed, while at the same time it is inno way injurious to the public.”(2)

Have the plaintiffs a locus standi to attack thenew or proposed new rules?

The three cricketers who are seeking de-clarations that the changes or proposed changes ofrules of the ICC and the TCCB are invalid are notthemselves in any contractual relationship witheither body. In Eastham v. NewcastleUnited Football Club Ltd. [1964] Ch. 413 ,to which I shall refer in greater detail hereafter,Wilberforce J. held that the court had jurisdiction togrant a declaratory judgment at the instance of anemployee, not only against an employer who was incontractual relationship with him, but also againstan association of employers, whose rules or regula-tions placed an unjustifiable restraint on his libertyof employment. In the light of this authority, Mr.Kempster, on behalf of the defendants acceptedthat, if the court were to hold that the new rules ofthe ICC and proposed new rules of the TCCBplaced an unjustifiable restraint on the individualplaintiffs' liberty of employment, it would have jur-isdiction to grant them a declaratory judgment inthe first action. This, therefore, establishes the








locus standi of those plaintiffs to bring the first ac-tion. I should, however, mention that, while Mr.Kempster naturally accepted that World SeriesCricket had a locus standi to put forward a claimbased on inducement of breach of contract in thesecond action, he did not accept that it would haveany locus standi to seek a declaration in regard tothe validity or otherwise of the rules. I will revert tothis point, so far as necessary, hereafter. (3)

What (if any) interests are the ICC and TCCBentitled to protect?

Lord Macnaghten's formulation of theprinciples relating to restraint of trade and othersimilar judicial formulations all presuppose that, if

*346 arrangements in restraint oftrade are to be held valid, the party seeking to justi-fy them must have an interest which he is entitledto have protected by the courts. There are certaincategories of interest, such as goodwill, tradesecrets and other confidential information, whichare well recognised as constituting interests entitledto protection. On the other side of the line, there area number of judicial dicta which suggest that themere protection of an employer against competitionwould not be a legitimate subject for protection:see, for example, Kores ManufacturingCo. Ltd. v. Kolok Manufacturing Co. Ltd [1959]Ch. 108 , 125, per

Jenkins L.J. and Eastham v. New-castle United Football Club Ltd. [1964] Ch. 413

, 431, per Wilberforce J.I have not, however, been referred to any compre-hensive judicial statement of the principles definingwhich interests are and which are not entitled toprotection by the law.

I do not, however, propose to attempt toformulate any such statement, because I think it un-necessary for present purposes. In my judgment, thejudgment of Wilberforce J. in the Eastham

case provides sufficient authority for theproposition that both the ICC and the TCCB havelegitimate interests, which are entitled to protectionby appropriate restraints. In that case, the plaintiff

was a professional footballer registered with aleague club, Newcastle United. He had asked to betransferred but his club had given him notice of re-tention and refused to release him. He refused tosign again with his club and sought, inter alia, de-clarations that the rules of the Football Associationrelating to the retention and transfer of footballplayers, including the plaintiff, and the regulationsof the Football League relating to retention andtransfer were not binding on him, as being in un-reasonable restraint of trade. He also claimed a de-claration that the refusal of the directors of New-castle United to release him from its retention listor alternatively to put him on its transfer list wasunreasonable. Wilberforce J. held, among otherthings, first, that the retention provisions, which op-erated after the end of the employee's employment,substantially interfered with his right to seek em-ployment and therefore operated in restraint oftrade; secondly, that the transfer system and the re-tention system, when combined, were in restraint oftrade and that, since the defendants had not dis-charged the onus of showing that the restraints wereno more than was reasonable to protect their in-terests, they were in unjustifiable restraint of tradeand ultra vires; thirdly, that the court could examinea contract between employers only and declare itvoid on grounds on which such a contract would bedeclared void, if it had been a contract between anemployer and employee, and that it was open to anemployee to bring an action for a declaration thatsuch a contract was in restraint of trade, in as muchas it threatened his liberty of action in seeking em-ployment, which was a matter of public interest;and, fourthly, that it was a case in which the courtcould and should grant the plaintiff the declarationssought. Wilberforce J. in the course of his judgmentspecifically asked the question of principle, at p.432:

“Is there, then, any interest for which protection canlegitimately be claimed if none of the categories ofinterest which have been defined in the leadingcases on restraint of trade are found to exist?”









He continued:

“I think that it would be wrong to passstraight to the conclusion that no such interest —and, therefore, no possible justification for the re-straints — exists. Regard must be had to the specialcharacter of *347 the areain which the restraints operate — different fromthat of industrial employment — and to the specialinterests of those concerned with the organisationof professional football. These are essentially com-mon to the employing clubs and the two organisingbodies ….”

Wilberforce J. did not in explicit terms an-swer the question of principle which he had asked.However, having examined the evidence relating tothe retention system, he said, at p. 437:

“I reach the conclusion that the legitimate interestsof the association, the league and the employingclub cannot justify it in its present form.”

I think that these passages from his judgment, to-gether with subsequent passages, make it clear thatWilberforce J. regarded the Football Associationand the Football League as having legitimate in-terests, which they were entitled to protect by prop-er means, such interests being the organisation ofprofessional football.

The Eastham decision [1964] Ch.413 was applied by the HighCourt of Australia in Buckley v. Tutty (1971) 125C.L.R. 353 , but this was a case againdealing solely with professional football. Mr. Mor-ritt, on behalf of the plaintiffs, submitted that, atleast in relation to the ICC, these two cases weredistinguishable from the present case, on thegrounds that they dealt solely with professionalsport. He pointed out that a number of the Test-playing countries have no professional cricket assuch. He drew my attention to the judgment ofNorth P. in Blackler v. New ZealandRugby Football League (Incorporated) [1968]N.Z.L.R. 547 , 556, in which he expressly

left open the question whether a body governing anamateur sport has any legitimate interest to protect.

In my judgment, however, on the facts ofthe present case, the distinction urged by Mr. Mor-ritt is one without an essential difference. I take itthat in Eastham's case, Wilber-force J. regarded the Football League and the Foot-ball Association as having interests which were en-titled to protection, not because all the footballerswith which those bodies were concerned were pro-fessional footballers, but because the two bodieswere in a sense custodians of the public interest. Icannot see any rational grounds for holding that theICC does not have the requisite interest, merely be-cause some (but far from all) of the players fromthe various countries who participate in TestMatches expect and obtain no greater reward fordoing so than their expenses. The public interest inmy judgment no less requires that the game shouldbe properly organised and administered.

For these reasons I conclude that both theICC and a fortiori the TCCB, which is directly con-cerned more or less exclusively with professionalcricketers, have legitimate interests which are en-titled to protection for the purpose of the doctrineof restraint of trade. It is now necessary to considerwhether, on the facts, their changes of rule are nomore than is reasonably necessary for the protectionof the organisation and administration of the game.Since both sides accept and contend that, subject toany applicability of a defence based on the

Trade Union and Labour Relations Act1974 , the interests of both the ICC and theTCCB and of cricketers and of the public are relev-ant in this action, the floodgates have been openedto an enormous volume of evidence in regard to theorganisation of first class cricket, the structure andfinances of its organising bodies and the lives of itsplayers in this country and *348

many other countries. Little, if any, of thecomprehensive evidence adduced can be said tohave been positively irrelevant, though inevitably





from time to time issues have been ventilated whichproved to have only the most marginal relevance. Ishall now attempt to extract those matters whichseem to me most material in the present context.

(4)

Some pleaded justifications for the ICC ban

I shall first examine the reasonableness or other-wise of the ICC ban. The first premise on whichMr. Kempster founded his final submissions on thispoint on behalf of the defendants was that WorldSeries Cricket constitutes a very grave threat to theeconomic viability of cricket throughout the world.Test Match cricket, he submitted, is essential to thesuccessful continuance of the game economically atall levels. World Series Cricket, he submitted, willdiminish the income from Test cricket and thusthreaten the game as a whole. These points are welland succinctly put in one or two extracts from thefurther and better particulars of the defences in thetwo actions. There, it is alleged that the players'contracts with World Series Cricket are calculatedto diminish the interest, prestige and attraction oftouring and Test Matches in and between variouscountries, the income to be derived from their pro-motion and attendance and the benefit in terms ofexperience, fame and improvement of skills to beenjoyed by their participants. Diminution of incomefrom touring and Test Matches, it is pleaded, willadversely affect the playing and provision of crick-et at all levels.

In another passage, relating to cricket inthe United Kingdom, the further and better particu-lars continue:

“Cricket at first class and Test level are linked andinter-dependent; … The maintenance of high stand-ards in, and the welfare and prosperity of, first classcricket in the United Kingdom are substantially de-pendent upon the participation of those players,who are available to play and/or have played fortheir countries in touring and Test Matches and aretherefore or in any event a popular attraction and inthe training and/or development of whom counties

have incurred substantial expense. Furthermore asubstantial proportion of the cost of county cricketis met from income derived from touring and TestMatches. Diminution of such income is likely to af-fect the remuneration of cricketers, result in fewercricketers being recruited and employed, and causeless money to be available for the coaching and de-velopment of young players ….”

The further and better particulars of the defencesrepeat the particulars relating to the United King-dom, which I have just read, so as to refer them tothe other five Test-playing countries and state thatin each such country: “… the money available forcricket generally is principally derived from TestMatches and otherwise from first class matches.”

Mr. Bailey eloquently made much thesame point, when, under cross examination, it wasput to him that the sole reason why the bans at Testand county level were proposed was “as part of theopposition to Mr. Packer.” He replied:

“I would say that possibly the opposi-tion to Mr. Packer formed a part of their thinking;much wider than that were the inherent dangers ofsomebody like Mr. Packer promoting cricket, pos-sibly for commercial gain — possibly even for phil-anthropy, but doing it in direct *349

opposition to the heart of the financesof the game, in almost deliberate opposition, in factdeliberate opposition, with the players who hadbeen nurtured by that game, with the players whohad made their name through county cricket andTest cricket and who, by their opposition to estab-lished Test cricket, stood in very strong danger ofdestroying not only the game at Test level but thegame which Test level provided the funds for,which was county cricket and beyond that, cricketin schools, cricket throughout the world at alllevels.”

I have considerable sympathy with this point ofview. Under present circumstances, there is muchforce in Mr. Kempster's description of the WorldSeries Cricket organisation as being “parasitic.” For



it is creaming off from conventional first classcricket the star players whom it has itself incurredno expense in training and preparing for stardom,with a view to exploiting their talents for commer-cial profit.

Furthermore, as I have already made clear, I acceptas a matter of fact that (i) conventional first classcricket in the United Kingdom at all levels dependsfor its financial viability considerably on the profitsfrom Test Matches played in England against over-seas teams from the other five Test-playing coun-tries; (ii) cricket in Australia depends considerablyon the profits from Test Matches played in Aus-tralia against the United Kingdom, West Indies andPakistan; (iii) cricket in India depends considerablyon the profits from Test Matches played in Indiaagainst the other Test-playing countries; (iv) cricketin New Zealand depends considerably on the profitsmade by it from Test Matches played both in NewZealand and on overseas tours; (v) cricket in theWest Indies depends considerably on the profitsmade by it from Test Matches played in England orthe West Indies against the United Kingdom orAustralia.

On the evidence, I also accept in general terms Mr.Bailey's thesis that in most or all of the Test-playing countries some of the profits from TestMatches find their way directly or indirectly tolevels of the game lower than first class level, forexample, by providing coaching facilities for per-sons at schools or universities. Consequently I fur-ther accept his and the defendants' thesis that any-thing likely substantially to diminish the incomefrom Test Match cricket would be likely to presenta substantial threat to the financial viability of con-ventional cricket as at present organised throughoutthe world.(5)

The extent of the immediate threat of WorldSeries Cricket to the Test-playing countries.

At this point, however, it will be conveni-ent io consider how far the World Series Cricketproject, as it appeared at July 26, 1977, did in truth

present a substantial immediate threat in this senseto the finances of the respective Test-playing coun-tries who were members of the ICC. In this context,it is necessary to refer to the international crickettours of the Test-playing countries which have beenarranged over the next three years, being the pro-posed duration of the World Series Cricket project.In stating the dates of those tours involving visits tothe West Indies, I shall state them as beginning inmid-February, because Mr. Short indicated that theWest Indies usually try to get their Shell Shieldcompetition fixtures completed before entertaininga visiting team. The approximate dates of the 13 in-ternational tours so arranged, according to the evid-ence, are (i) October 1977 to February 1978: Indiato Australia. (ii) November 1977 to March 1978:United Kingdom to Pakistan *350

and New Zealand. (iii) Mid-February 1978to May 1978: Australia to West Indies. (iv) April1978 to July 1978: Pakistan to United Kingdom. (v)June to September 1978: New Zealand to UnitedKingdom. (vi) September to October 1978: NewZealand to Pakistan and India. (vii) October 1978 toJanuary 1979: West Indies to India. (viii) Novem-ber 1978 to January 1979: United Kingdom to Aus-tralia. (ix) Mid-February to March 1979: India toWest Indies. (x) June to September 1979: India toUnited Kingdom. (xi) October 1979 to January1980: Australia to India and Pakistan. (xii) October1979 to January 1980: West Indies to Pakistan andNew Zealand. (xiii) May 1980 to September 1980:West Indies to United Kingdom.

Mr. Packer at the ICC meeting of June 23, 1977,had stated his intention that World Series Cricketshould be played from the end of November untilthe middle of February and his sincerity in makingthis statement has not been challenged. Accordinglywhen it met on July 26, the ICC could reasonablyhave anticipated that clashes would occur betweenWorld Series Cricket matches and only six of the13 official tours that had been arranged, namely,numbers (i), (ii), (vii), (viii), (xi) and (xii). As re-gards tour (i), however, India never reckons tomake profits out of its tours to Australia; nor does



Australia reckon to make profits from such tours.As regards tour (ii), the United Kingdom neverreckons to make profits out of its tours to Pakistanand New Zealand. As regards tour (vii), the WestIndies never reckon to make profits out of theirtours to India. As regards tour (viii), the UnitedKingdom never reckons to make profits out of itstours to Australia. As regards tour (xi), Australianever reckons to make profits out of its tours to In-dia and Pakistan. As regards tour (xii), the West In-dies never reckon to make profits out of their toursto Pakistan and New Zealand.

No New Zealand or Indian players are in-volved in the World Series project. Accordingly, Iconclude that the immediate threat to the Test-playing countries as at July 1977 really amountedto this, namely that, because of competition fromWorld Series Cricket, (a) greater losses might beincurred by Australia on the visit from India in1977–78 than would otherwise have been incurredby it because World Series Cricket matches wouldbe being played in Australia at the same time andbecause of the unavailability of most of the presentstar Australian players; (b) New Zealand andPakistan might make smaller profits from the visitsof the United Kingdom in 1977–78 than they wouldotherwise have done because of the unavailabilityof perhaps four or five of the present star UnitedKingdom players and (in the case of Pakistan) be-cause of the unavailability of perhaps four of itspresent star players; (c) India might make smallerprofits than it would otherwise have done from thevisit of the West Indies in 1978–79 because of theunavailability of many of the present star West In-dian players; (d) Australia might make smallerprofits than it would otherwise have done from thevisit of the United Kingdom in 1978–79 both be-cause World Series Cricket matches would be beingplayed in Australia at the same time and because ofthe unavailability of most of the present star Aus-tralian players and four of five of the present starUnited Kingdom players; (e) India and Pakistanmight make smaller profits that they would other-wise have done from the visit of Australia in 1979

— so because of the unavailability of most of thepresent star Australian players and (in the case ofPakistan) of perhaps four of the present starPakistan players; (f) New Zealand and Pakistanmight make smaller profits than they would other-wise have done from *351 thevisit of the West Indies in 1979–80 because of theunavailability of many of the present star West In-dies players and (in the case of Pakistan) perhapsfour of its own players.

I cannot, however, on the evidence attach a greatdeal of weight to any of these risks, except thoserun by Australia. There is no evidence from anyrepresentative from Pakistan. As to India, Mr.Chidambaram expressed apprehensions that the ab-sence of star players might affect gates when visit-ing teams come here. Under cross-examination,however, he accepted that in general in India therehas been tremendous enthusiasm for the visit of anyinternational team and the evidence is the same inrelation to Pakistan. Since no players from India it-self have joined World Series Cricket, I do notthink it would be right to assume that it poses anyserious immediate threat to the finances of Indiancricket over the next three years provided that noIndian players join it. As regards New Zealand,though Mr. Hadlee expressed apprehensions thatthe absences of star players might affect gates inNew Zealand when visiting teams come there, theevidence suggests that United Kingdom touringteams have in the past seldom included all the cur-rent leading English players. By the time that theWest Indies visit New Zealand in 1979–80, otherattractive West Indies players will no doubt haveemerged. New Zealand itself has no players undercontract to World Series Cricket. In all the circum-stances I am not convinced that World SeriesCricket presents any serious immediate threat to thefinances of New Zealand cricket. The same obser-vation applies a fortiori to the West Indies and theUnited Kingdom, neither of whom are due to takepart in any official Test series during the next threeyears which is both likely to be substantially profit-able to them and also to clash with World Series



matches.

It is theoretically possible that World Series Cricketcould have some indirect effect on the guaranteeswhich touring teams were able to arrange when vis-iting another country, but I am not satisfied that thisfactor at present poses any real threat to any of theTest-playing countries.

In all the circumstances, on a close analys-is of the situation, I regard Australia as being theonly Test-playing country whose finances are ef-fectively presented with any real and immediatethreat by World Series Cricket. Australia is in aspecial position, not only because about 20 of itsbest players are under contract to World SeriesCricket, hut also because, as at present anticipated,all the World Series Cricket matches will be playedon its soil. I think, however, that the extent of thethreat to it is somewhat imponderable. Mr. RossEdwards expressed the view in evidence that, onbalance, the impact of World Series Cricket onAustralia might be a financially beneficial one. Hethought, for example, that in the immediately im-pending official Test series, the Indian team wouldnot be a very strong side and that the fielding of anAustralian team comprising younger, less experi-enced players might well produce more excitingmatches that would attract greater public interestand be more likely to run their full five-day sched-ule, to the advantage of the gate receipts. He con-sidered that the World Series Cricket project couldoperate to stimulate greater general interest incricket; and of course, such increased interest canbring financial benefits to the game in the form ofmore sponsorship and so forth. Nevertheless, thereare many factors on the other side. Not only are somany of Australia's own star players involved andthus likely to be unavailable, both for the visit fromIndia now in progress and for the tour by the UnitedKingdom in 1978–79 but a number of the well-known United Kingdom players are also likely to

*352 be unavailable for the lattertour. Furthermore, both these two Test series willbe being played at a time when World Series Crick-

et matches, involving Australian and United King-dom players, will be taking place on Australian soiland being televised by Channel Nine. The evidenceshows that at present it is not the intention that anyWorld Series Cricket matches will be played in thesame state as official Test Matches. Nevertheless,the strong possibility must exist that the counter-attraction of World Series matches may result in anumber of people choosing to watch these matcheson their television sets (on Channel Nine) ratherthan going in person to see official Test Matches.Accordingly, I accept that World Series Cricket,both by removing star players and by providing acompeting attraction, is on the balance of probabil-ities likely to diminish the receipts of the AustralianCricket Board from the two Test series mentionedand thus to be detrimental to the financial interestsof official Australian cricket as at present organ-ised. (6)

The reasonableness or otherwise of the ICC ban

I thus arrive at the conclusion that as at Ju-ly 26, 1977, World Series Cricket, taking into ac-count the 50 or so players who were then undercontract to it, presented an immediate threat to thefinances of Australian cricket, but no serious imme-diate threat to the other Test-playing countries. Inthe longer term, it did present further serious threatsto all the Test-playing countries in three ways, firstbecause other players might thereafter join WorldSeries Cricket, secondly because it was theoretic-ally possible that its programme might be extendedbeyond the projected three years and thirdly be-cause other private promoters might conceivably beencouraged to follow Mr. Packer's example. Thesethree threats, however, could have been adequatelymet by merely imposing a prospective disqualifica-tion from Test cricket on all players who should

thereafter contract with or playfor World Series Cricket or other unapprovedprivate promoters. I do not say that a merely pro-spective ban of this nature would necessarily havebeen valid. However, being narrower than the ban,both prospective and retrospective, which was in



fact imposed, it would clearly have been more easyto justify. In general terms I see the force of theproposition that official Test-players should not forthe future be permitted to make themselves avail-able to official Test cricket and to privately pro-moted international cricket in turn and from time totime, as and when they please. There would, Ithink, have been much to be said for the reason-ableness and thus for the validity of a resolutionpassed on July 26, 1977, of which the effect hadbeen merely to inform cricketers in clear terms thatany of them who thereafter contracted with andelected to play cricket for a private promoter, suchas World Series Cricket, could not subsequently ex-pect to be engaged to play in official Test Matchesby any of the cricketing authorities of the Test-playing countries.

Despite the representations of the West Indies,however, this was not the form of the resolutionwhich the ICC chose to adopt on July 26. The resol-utions which, in fact, have to be justified are oneswhich applied indiscriminately both to those whohad contracted with World Series Cricket before Ju-ly 26 and those who might thereafter contract withit. When the position is carefully analysed, I find itimpossible to see how resolutions in this extendedand wider form can be adequately justified on anyrational and objective grounds.*353

As a matter of fact, according to my findings, oneprincipal reason why the resolutions took this ex-tended form was because the ICC hoped that thiswould induce players to withdraw from their con-tracts with World Series Cricket. I have, however,already held that such attempted inducement consti-tuted a tort as against that company. This cannottherefore, in my judgment, and indeed is not, urgedas a justification for the resolutions taking the ex-tended form which they took. Another considera-tion which, on the evidence, I do not doubt influ-enced the minds of a number of those representat-ives who were parties to the resolutions was thatthey thought that the players who had contractedwith World Series Cricket deserved the ban. I have,

however, already expressed the view that suchplayers had committed no wrong of which the lawcan take account and, in any event, this again wasnot a consideration relied on in argument. I havealso no doubt on the evidence that a perhaps under-standable desire generally to make things as diffi-cult as possible for Mr. Packer actuated the mindsof a number of the representatives at the ICC meet-ing on July 26. Once again, however, this is not afactor on which the defendants are entitled to relyor have relied in argument in the present context.

Faced with this dilemma, Mr. Kempstersought to justify the imposition of the ICC ban onthis extended, retrospective basis on what, I think,were logically the only substantially arguablegrounds. He submitted that the imposition of theban alike both on players who had contracted andmight contract thereafter with World Series Cricketwas necessary in order to provide the essential ef-fective deterrent against further recruitment toWorld Series Cricket. He reminded me of the evid-ence of a number of his witnesses in the context.Mr. Hadlee, for example, under cross-examinationsaid that the purpose of applying the ban to thosewho had already signed was both to penalise themand afford an example to those who might considersigning in the future. Mr. Chidambaram, undercross-examination, said that a ban on persons whomight in future sign for World Series Cricket wouldbe “better and more forceful” as a deterrent, if it in-cluded persons who had already signed. Mr. Short,making much the same point, said, under cross-examination, that if the ban had been appliedmerely to those who might sign in the future andhad not been extended retroactively to persons whohad already signed, this would not have been equit-able in that “those who had signed too quickly, as itwere, would get off scot-free.” Likewise, Mr Baileysaid under cross-examination:

“I think that the problem here was that retroactiveaction was felt to be the only possible course, forthe reason that those who had already signed wouldotherwise have been in a more advantageous posi-



tion than those who had not and would thus havebeen able to play county cricket, whereas those whohad not yet signed would not have been. I think Isaid that this could create in the close-knit world ofcricket — which is essentially a game where youhave to play as a team and live together — a reas-onably certain amount of friction which could notat all be in the best interests of either county or testcricket, had there not been a retroactive ban.”

I appreciate the force of the point that ifthe ICC ban was to be introduced at all, it mighthave been thought desirable to make it retrospect-ive, in the sense already indicated, in order to lendcredibility to the deterrent afforded by it and tomake that deterrent appear equitable as between theplayers involved. However, this particular possible

*354 advantage of introducing aban in retrospective form had to be set against whatare, in my judgment, an overwhelming number offactors going the other way.

First and foremost, to deprive, by a form of retro-spective legislation, a professional cricketer of theopportunity of making his living in a very import-ant field of his professional life, is in my judgmentprima facie both a serious and unjust step to take.Though many persons on the defendants' side havetaken a contrary view, I have already indicated thereasons why I do not think that, on any fair and ob-jective basis, players who had already contractedwith World Series Cricket can be said to have de-served the sanction that was imposed against them,and if they did not deserve it, it is no answer to saythat many of them may have expected it.

Secondly, the public will be deprived of a greatdeal of pleasure, if it is to be deprived of the oppor-tunity of watching these talented cricketers play inthose many official Test Matches which do notclash with World Series Cricket matches, and forwhich they would otherwise be available. Of the 13Test series planned for the next three years, it isprobable that seven will not clash with WorldSeries Cricket matches at all, so that World Seriescricketers will be available to play in them. The

ICC ban by disqualifying them from playing evenin these matches would be aggravating any depriva-tion that World Series Cricket might already becausing the public in the various Test-playing coun-tries.

Thirdly, if, as is implicity alleged in the defendants'pleadings, the absence of such players from officialTest and other first class matches will affect gatereceipts, a rigid rule preventing the selectors of aparticular country from selecting a particular playerwho is available to play in a Test Match, merely be-cause he has played for World Series Cricket, islikely to result in an actual diminution of the re-ceipts of such Test Matches. The plaintiffs' counselexpressly recognised that Test selectors, in exerciseof their discretionary functions, will always be en-titled to prefer a player who has not elected to playfor a private promoter to one who has. No one sug-gested that a cricketer's involvement with WorldSeries Cricket would be an improper factor for suchselectors to take into account. This, however, is avery different matter from placing the selectors un-der inflexible restrictions in regard to their field ofselection. Mr. Short of the West Indies, a frank andexcellent witness, agreed under cross-examinationthat the West Indies would be making a“considerable sacrifice” in denying themselves theopportunity of playing World Series Cricket play-ers, when they were available. All the other Test-playing countries would be making a similar sacri-fice. Mr. Short said, in effect, that it was necessaryto make that sacrifice to safeguard the present andlong term interests of international cricket. With allrespect to him and the other witnesses called on be-half of the defendants who said much the samething, I do not think that they had given sufficientthought to the specific positive benefits, if any, tobe derived from a ban. In my judgment the positivebenefits that might follow from a retrospective banof the nature introduced by the ICC at its meetingof July 26, 1977, are, at most, speculative and notnearly sufficient to outweigh the certain injusticesto the players involved and the certain detriment tothe world public interested in cricket, which would



result from the ban.

In my judgment, therefore, the ICC has notdischarged the onus which falls upon it of showingthat the ban is reasonable and justifiable. Accord-ingly I answer question (D) above by holding thatsubject to the provisions *355 ofthe Act of 1974 the new rules of the ICC are ultravires and void as being in unreasonable restraint oftrade.

XV The proposed new rules ofthe TCCB and restraint of trade: question (E)above

Mr. Kempster, on behalf of the defendants, accep-ted that any finding that the relevant ICC rules arein unreasonable restraint of trade would inevitablyinvolve, a fortiori, a conclusion that the relevantproposed new rules of the TCCB would be void forsimilar reasons. This, I think, must follow, but Ishould perhaps state the principal reasons why I re-gard the proposed TCCB rules as representing an afortiori case.

First, while Test cricket presents a valuable oppor-tunity to cricketers who are eligible and sufficientlytalented to supplement their income from time totime by playing in Test Matches and going on offi-cial tours, county cricket offers an opportunity, in-deed the only opportunity, available to those whoare qualified to earn their living by playing fulltime cricket throughout the English summer. Thedenial of the opportunity to play in English countycricket is therefore a much more serious deprivationto players such as the three plaintiff cricketers whowish to play it than the deprivation of more specu-lative opportunities of playing Test cricket in thefuture.

Secondly, in the case of players such as Mr. Snowand Mr. Procter, who are in any event out of therunning for official Test cricket, the proposedTCCB rules would effectively prevent them fromplaying any first class cricket whatever for the peri-od of its duration. Since its duration, in the case of

Mr. Snow, would be at least three years and in thecase of Mr. Procter at least five years, it would, inview of their ages, probably have the effect of driv-ing these two cricketers permanently out of firstclass cricket. Mr. Procter's evidence was that he hadnever conceived the possibility of such a drastic re-striction when he contracted with World SeriesCricket.

Thirdly, to drive talented players such as Mr. Greig,Mr. Snow and Mr. Procter out of first class cricket,either temporarily or permanently, is bound to de-prive the cricket-going public in the United King-dom counties concerned of a great deal of pleasureto be derived from watching star players whom it isaccustomed to watch and thus is liable, in at leastone sense, to do positive injury to cricket in thiscountry by reducing gate receipts.

Fourthly, the principal threat of WorldSeries Cricket was aimed not at the United King-dom but at Australia. While a feeling of loyalty toor solidarity with Australia may well have been onefactor which influenced the United Kingdom rep-resentatives to support the ban at Test level at theICC meeting of July 26, 1977, no such feelingcould reasonably have actuated the TCCB. It is truethat on July 26 the ICC had recommended membercountries to implement the Test Match ban at do-mestic level. The first originator of this recom-mendation, however, as of the first proposals forthe bans at two levels, had been the TCCB itself. Sofar as the evidence reveals, the Australian CricketBoard itself has not yet taken any effective step toimplement the ban at state level, though some indi-vidual states in Australia are electing to do so them-selves. I understand that the Australian CricketBoard is deferring its own decision until after judg-ment in these present proceedings. In relation to thearrangement of its affairs, however, the TCCB inmy judgment was entitled and indeed *356

bound under its constitution to look moreor less exclusively to the interests of United King-dom cricket.

I accept that, as a number of the defendants' wit-



nesses have pointed out, the presence of someWorld Series Cricket players could, in the case ofsome county clubs, cause dissension among theteams and even, perhaps, the loss of financial sup-port from some subscribers to the club. As Mr.Boycott and other witnesses for the defendants ob-served, it could cause real difficulties if and whenWorld Series Cricket players from time to time re-turned to conventional cricket and sought to regaintheir places. It will, however, be a matter for eachclub to decide for itself whether or not it wisheshereafter to re-engage players who have engagedthemselves to Mr. Packer. It will then be open tothem to take into account, among other things, thepossible difficulties referred to by Mr. Boycott.Significantly, however, there is no evidence beforeme that any of the clubs concerned actually wish tocease employing such players. The evidence of allthe plaintiff cricketers was that, so far as they wereaware, their respective county clubs would wish tore-employ them in 1978, unless they were preven-ted from so doing by the TCCB ban. I can see nosufficient reason or justification for imposing onthem an arbitrary rule which prevents them from sodoing, whether they wish to do so or not.

Accordingly I answer question (E) above by hold-ing that, subject to the provisions of the Act of1974, the proposed new rules of the TCCB are orwould be ultra vires and void as being in unreason-able restraint of trade.

XVI Is the ICC an “employers'association"? Question (F) above

I now turn to consider whether the ICC isan “employers' association” within the meaning ofthe Trade Union and Labour Relations Act1974 . This first necessitates looking at itsconstitution and referring to the relevant provisionsof the Act.

Rule 4 of the Rules of the ICC sets out itsfunctions in the following terms:

“4.Functions. The conference shall be responsible

for:(i)The status of official Test Matches, which aredefined as matches played between teams selectedby foundation and full members as representative oftheir countries. Each such member country shall re-gard itself as responsible for maintaining the offi-cial Test Match status at the highest possible levelhaving regard to the standard of cricket in its coun-try at the particular time.(ii)The confirmation oftours in the programme for visits of official teamsbetween foundation and full member countries. Theconditions for any tour shall be a matter for directnegotiation between the members concerned, andfailure to reach agreement leading to the cancella-tion of an approved official tour shall be reported tothe conference.(iii)The qualification rules for crick-eters for Test Matches. (Appendix 1).(iv)Rules ofgeneral application, including the appointment ofumpires, in Test Matches. (Appendix II andIII).(v)Discussion of matters of common interest toall members.(vi)Alteration of and addition to therules of the conference as may be necessary fromtime to time.(vii)The allocation to foundation andfull members of their ‘spheres of assistance’ with aview to the extention, encouragement and improve-ment of cricket throughout the world and the organ-isation of minor tours.”*357

Section 28 (2) of the Act of 1974 containsthe statutory definition of an “employers' associ-ation.” Omitting those words which can have nopossible materiality for present purposes, it reads:

“(2)In this Act, except so far as the context other-wise requires, ‘employers' association’ means anorganisation (whether permanent or temporary)which either —(a)consists wholly or mainly of em-ployers … of one or more descriptions and is an or-ganisation whose principal purposes include theregulation of relations between employers of thatdescription or those descriptions and workers …or(b)consists wholly or mainly of —(i)

constituent or affiliated organisationswhich fulfil the conditions specified in paragraph (

a ) above (or them-



selves consist wholly or mainly of constituent or af-filiated organisations which fulfil those conditions),or (ii)representatives of such constitu-ent or affiliated organisations; and in either case isan organisation whose principal purposes includethe regulation of relations between employers andworkers … or include the regulation of relationsbetween its constitutent or affiliated organisations.”

Section 30 (1) of the Act contains a defini-tion of “worker” which omitting words that are im-material for present purposes, reads as follows:

“‘Worker’ (subject to the following provisions ofthis section) means an individual regarded inwhichever (if any) of the following capacities is ap-plicable to him, that is to say, as a person whoworks or normally works or seeks to work—(a)under a contract of employment; or(b)underany other contract (whether express or implied, and,if express, whether oral or in writing) whereby heundertakes to do or perform personally any work orservices for another party to the contract who is nota professional client of his; …”

Section 30 (6) provides:

“For the purposes of this Act it is immaterialwhether the law which (apart from this Act) gov-erns any persons' employment is the law of theUnited Kingdom, or of a part of the United King-dom, or not.”

The ICC claims that it is an “employers'association” within limb ( a ) ofthe statutory definition contained in

section 28 (2) . It does not rely onlimb ( b ). It follows that if theICC is to prove that it is an “employers' associ-ation” within the statutory definition, it must sur-mount two hurdles. First, it must show that it is anorganisation which “consists wholly or mainly ofemployers … of one or more descriptions.”Secondly, it must show that it is an “organisationwhose principal purposes include the regulation of

relations between employers of that description orthose descriptions and workers.”

In relation to this first hurdle, the ICC wasrequested to give further and better particulars of itsallegation that it is an “employers' association,” bystating whether it was alleged that its membershipconsists wholly or mainly of employers and if soidentifying such members and giving full particu-lars of the employees of each such member. Its an-swer to this request took the following form:

“It is so alleged, the employers whoare members being: The Australian Cricket Board,The New Zealand Cricket Council, The Board ofControl for Cricket for Pakistan, Indian CricketBoard, West Indies Cricket Board of Control. Theiremployees are those *358

who, having satisfied the conditionsfor eligibility aforesaid, are selected to play in Testor touring matches.”

There are, in my judgment, at least tworeasons why this plea cannot on any footing suc-ceed. First, under the rules of the ICC, the five bod-ies to which I have just referred are not themselveseven members of the ICC. I need only refer to afew of these rules to demonstrate that throughoutthe rules, the member countries themselves, ratherthan their governing bodies for cricket, are treatedas being the members. Thus, for example,

rule 1 reads: “1.

Constitution

“Chairman — The president of M.C.C. for the timebeing or his nominee. Foundation Members —United Kingdom and Australia. Full Members —India, New Zealand, West Indies and Pakistan. As-sociate Members — Argentina, Bermuda, Canada,Denmark, East Africa, Fiji, Gibraltar, Holland,Hongkong, Israel, Malaysia, Papua New Guinea,Singapore, Sri Lanka, United States of America andWest Africa. Secretary — The secretary of M.C.C.”



Rules 2 (a) and 2 (b) relating to member-ship read: “2.

Membership

“(a)General. The following shall be eligible forelection: —(i)Full members. A country, or coun-tries associated for cricket purposes, with a govern-ing body for cricket recognised by the conferenceof which the representative teams are accepted asqualified to play official Test Matches:(ii)Associatemembers. A country or countries associated forcricket purposes with a governing body for cricketrecognised by the conference not qualifying as fullmembers, but where cricket is firmly establishedand organised.

“(b)Up-grading or election. A proposal for the up-grading of an associate member or the election of anew full member or associate member shall bemade and seconded in writing by foundation or fullmembers only and included on the agenda for ameeting of the conference. No up-grading or elec-tion shall be made except by a majority vote ofthose foundation and full members present and vot-ing, which must include the supporting votes offoundation members. In the event of a foundationmember country not being represented at the con-ference, no resolution shall be effective unless con-firmed in writing by the controlling body of suchfoundation member country.”

Rule 3 (b) , dealing with representation atmeetings, reads:

“(b)Representation. The governing bodies of crick-et recognised by the conference in all membercountries shall nominate representatives as follows:—(i)Foundation and full members — not more thantwo representatives.(ii)Associate members — notmore than one representative. Members will notifythe secretary at least 14 days in advance of themeeting of the names of their appointed represent-atives. In the event of a nominated representativebeing unable to attend, a substitute may be al-lowed.”

The final sentence of rule 7, dealing with the amendment of rules,

reads:

“In the event of a foundation member country notbeing represented at the conference, no resolutionshall be effective unless confirmed in writing by thecontrolling body of such foundation member coun-try.”*359

Mr. Kempster submitted that, to givemeaning and efficacy to the rules, the only waythey can properly be construed is by treating the re-spective governing bodies for cricket, rather thanthe countries themselves, as the members. In thiscontext he referred me to the preamble to the ruleswhich includes the following sentences:

“The Board of Control for Cricket in Ceylon (nowSri Lanka), Fiji Cricket Association and UnitedStates Cricket Association were elected associatemembers on July 15, 1965. The Bermuda CricketBoard of Control, Danish Cricket Association, EastAfrican Cricket Conference and Royal DutchCricket Association were elected associate mem-bers on July 14, 1966. The Malaysian Cricket Asso-ciation was elected an associate member on July 12,1967. The Canadian Cricket Association was elec-ted an associate member on July 10, 1968. TheGibraltar and Hongkong Cricket Associations wereelected associate members on June 10, 1969. ThePapua New Guinea Cricket Board of Control waselected an associate member on July 24, 1973. TheArgentine, Israel and Singapore Cricket Associ-ations were elected associate members on July 23,1974. The West Africa Cricket Association waselected an associate member on July 20, 1976.”

I accept that the wording of this preambleindicates some possible confusion of thought on thepart of the draftsman. The inconsistency in the lan-guage used by him is illustrated by an earlier sen-tence in the very same preamble to the rules whichreads: “South Africa [sic] ceased to be a member ofthe conference on leaving the British Common-wealth in May 1961.” I also accept that for practical



purposes the governing bodies for cricket may wellbe regarded by those concerned with the ICC as the“members,” particularly since rule 3

gives those bodies the power to nominaterepresentatives to the ICC. Nevertheless, the word-ing of the body of the rules seems to me to be quiteclear. Under the rules it is the country and not itsgoverning body for cricket, which is the member.The wording of rules 2 (a), (b), 3 (b) and 7

, for example, draws a clear distinctionbetween a country and such governing body. Inthese circumstances I do not think that the court, inconstruing the rules, would be justified in doing vi-olence to the clear language which the ICC haschosen to adopt, particularly if the purpose and res-ult of so doing is merely to enable the ICC to takeadvantage of the very far-reaching immunity givento “employers' association” by the Act of 1974. Ifthe ICC wishes to seek to take advantage of suchimmunity, it must first, at least, amend its rules soas to make it plain that its members are in truth therelevant “employer” bodies; and I do not say that,even then, there will not be many further obstaclesin its path.

However, even if, contrary to my view, by somevery strained construction of the ICC rules, it werepossible to treat the five governing bodies for crick-et mentioned in the further and better particulars ofthe ICC's amended defences as being members ofthe ICC, the ICC still has to show that it is an or-ganisation consisting “wholly or mainly” of em-ployers.

The ICC, however, consists not of five butof 22 members, all of whom have voting rights,though in the case of “associate members,” suchvoting rights are not exercisable in relation to oneor two specified matters, such as the “up-grading”of an associate member or the amendment of therules. Of the remaining 17 members, it is not al-leged that the Cricket Council, which is the govern-ing body for cricket in the United Kingdom,

*360 is an “employer”; and thereis no evidence whatever as to the organisation or

structure of cricket in the 16 countries which areexpressed to be “associate members.” For all thatthe evidence shows, none of the respective govern-ing bodies for cricket in these countries may be“employers.”

For these reasons, in answer to question(F) above, the ICC in my judgment fails to sur-mount the first of the two hurdles which it mustsurmount if it is to show that it is an “employers'association” within section 28 (2) (a)

of the Act of 1974. For it has not shownthat it is an organisation which consists “wholly ormainly of employers.” In these circumstances it isunnecessary to consider whether it could show thatit is “an organisation whose principal purposes in-clude the regulation of relations between employers… and workers.”

XVII Is the TCCB an “employers'association"? Question (G) above

The TCCB, like the ICC, now claims thatit is an “employers' association” within the defini-tion contained in section 28 (2) (a)

of the Act of 1974. It does not rely onsection 28 (2) (b) . Like the ICC,

therefore, it has to show, first, that it is an organisa-tion which “consists wholly or mainly of employersof one or more descriptions” and, secondly, that itis “an organisation whose principal purposes in-clude the regulation of relations between employersof that description or those descriptions and work-ers.”

Rule 1 of the Rules of the TCCB providesas follows: “1.

Constitution

“Chairman — To be appointed annually by theboard. Members — M.C.C. Each of the 17 firstclass counties. The Minor Counties Cricket Associ-ation. Secretary — To be appointed by the board.”

In the context of these rules, the expres-sion “the 17 first class counties” in my judgment



clearly means “the 17 first class county clubs,”since in this instance there is nothing in the word-ing of the subsequent rules to prevent such a con-struction. The 17 first class county clubs are“employers” within a definition contained in

section 30 (1) of the Act of 1974.Accordingly the TCCB has in my judgment shownthat it is an “organisation … which … consistswholly or mainly of employers … of one or moredescriptions.” It thus surmounts the first hurdlewhich it must surmount if it is to show that it is an“employers' association,” within the statutory defin-ition.

Turning to the second hurdle, however, itis faced with far greater difficulties. Rule 2

of its rules which sets out its functionsprovides as follows: “2.

Functions

“The board shall be responsible to the CricketCouncil for:(a)The organisation and administrationof all Test and trial matches in the United King-dom.(b)The organisation and administration ofM.C.C. overseas tours.(c)The negotiation of finan-cial and playing conditions with the overseas gov-erning body concerned for tours to and from theUnited Kingdom.(d)The receipt, as agent for thevarious bodies detailed in Appendix ‘A,’ of moneysderived directly or indirectly from Test Matches athome, from overseas tours and from any othermatches or competitions organised by the board andfor the payment of the relevant expenses and for thedistribution of the net receipts, in accordance withAppendix ‘A.’(e) The administra-tion *361 and pro-motion of the first class county championship andany other competition concerning the first classcounties. (f)The rules governing theregistration and qualification of cricketers in countycricket (Appendix ‘B’).”

Mr. Kempster, by a careful analysis of the sub-sequent rules of the TCCB and the appendices tothose rules, and of the evidence relating to what it

actually does in practice, has sought to show that its“principal purposes include the regulation of rela-tions between employers … and workers.” I think,however, that there is at least one fatal flaw in thisproposition.

In my judgment, the wording of the stat-utory definition of an “employers' association” con-tained in section 28 (2) (a) of theAct of 1974 in its context clearly shows that, if anorganisation is to fall within this definition, it mustcomprise a number of employers, who by virtue oftheir common characteristic as employers of a cer-tain description or descriptions, have associatedthemselves for purposes among the most importantof which is included the regulation of relationsbetween employers of such description or descrip-tions and workers. In my judgment it follows fromthis that the very wording of the definition contem-plates that, if an organisation is to fall within thestatutory definition, it must be responsibleto the members who have associated themselves forsuch purposes . If, under the terms of itsconstitution, it were made responsible for the exer-cise of its functions not to its members but to otherpersons, this would in my judgment be quite incon-sistent with its being an “employers' association.”For on this footing its members would not have thefull right collectively to supervise and control theactivities of the association, which they could havebeen expected to demand if they had joined togeth-er in the association for a principal purpose, albeitamong other principal purposes, of regulating theirrelations as employers with their workers.

Under the express terms of rule 2of the Rules of the TCCB , it is made re-sponsible in the exercise of its functions not to itsmembers but to the Cricket Council. Furthermorethat this is no accident of drafting and that theCricket Council indeed has the ultimate controlover the activities of the TCCB is illustrated by twofurther provisions of the TCCB rules. Under

rule 3 (d) , which relates to meet-ings of the TCCB, a straight majority is expressed



to suffice to carry a resolution but “subject to con-firmation by the Cricket Council.” Under

rule 7 , any appeal from a de-cision from a number of specified sub-committeesof the TCCB has to be referred not to the TCCB but“to the Cricket Council.” The realisation of theTCCB that it is indeed responsible to the CricketCouncil in the exercise of its functions is well illus-trated by the fact that the important decisions ofpolicy taken by it at its meeting of July 15, 1977,were all made subject to the Cricket Council's sup-porting the TCCB's recommendations. If the Crick-et Council had reversed the recommendations, theTCCB would have had no authority whatever to acton them, save by the unanimous consent of all itsmembers.

In these circumstances, in answer to ques-tion (G) above, I hold that the TCCB is not an“employers' association” within the statutory defin-ition on the narrow, but to my mind conclusive,ground that, in exercising its functions, it is re-sponsible not to its members but to an entirely dif-ferent body, the Cricket Council. It has not beensubmitted, *362 and I think couldnot be submitted on the facts, that the CricketCouncil is itself an “employers' association.”

XVIII “ The right to work": ques-tion (H) above

The grounds on which I have decided thatneither of the defendant bodies is an “employers'association” within the meaning of the Act of 1974have made it unnecessary to deal with a number ofbroader questions that were canvassed in argumentin relation to that Act. One very important suchquestion is whether it can be properly claimed thatthe “principal purposes of an organisation” includethe “regulation of relations between employers …and workers” for the purpose of section 28(2) (a) , merely because one of its principalpurposes includes the ordaining of rules setting outthe qualifications which a person must possess if heis to enter or remain in a specified field of employ-

ment. The defendants have submitted that the an-swer to this question is in the affirmative and in thiscontext pointed to the definition of a “worker” in

section 30 (1) of the Act of 1974as including a person who works “or seeks to work”as therein mentioned.

If this construction of the Act of 1974 becorrect, it would appear to have the most far reach-ing consequences. On this interpretation, it wouldseem, it would be open to a number of employersdeliberately to associate themselves for the purposeof agreeing that specified persons or categories ofpersons should be disqualified from seeking or re-maining in employment with any of them. The as-sociation having been founded, it would seem thatthey could then claim that it constituted an“employers' association,” and that, being such, itenjoyed the immunities conferred by

sections 3 and 14 of the Act of1974, so that its rules, however unreasonable, couldnot be attacked as being in restraint of trade and itwould enjoy general immunity from liability in tort.

There are at least two possible answers tothis, at least to me, rather unattractive submissionon the part of the defendants. First, it may be that,as the plaintiffs submit, the phrase “regulation ofrelations between employers … and workers” in thecontext of section 28 (2) (a) is aptonly to include the regulation of relations duringthe subsistence of the period of employment andthus cannot extend to rules which are designed toprevent employment from ever arising.

Secondly, it is possible that, even if a hy-pothetical association formed for the purposes towhich I have referred constituted an “employers'association” within the statutory definition, its rulescould still be successfully attacked, not so much onthe grounds that they were in “restraint of trade,” ason the broader grounds that they were contrary topublic policy as preventing persons' right to work.A number of dicta of members of theCourt of Appeal in Nagle v. Feilden [1966] 2 Q.B.



633 suggest that, where an association ex-ercises a virtual monopoly in an important field ofhuman professional activity and seeks to excludeclasses of men or women from such activity, thecourts may intervene on broad grounds of publicpolicy if the power is abused, without relying onthe narrower doctrine of restraint of trade: see, forexample, per Lord Denning M.R.,at p. 644, and per DanckwertsL.J., at p. 650. As Danckwerts L.J. said:

“… the courts have the right to protect the right of aperson to work when it is being prevented by thedictatorial exercise of powers by a body whichholds a monopoly.”*363

Though section 3 (5) ofthe Act provides a defence to a claim that rules ofan “employers' association” are void “by reasononly that they are in restraint of trade,” it may wellbe that the subsection would provide no defence toa claim that they were void on the broader groundof general public policy. The broader the construc-tion which the court felt compelled to place on thestatutory definition of “employers' association,”surely the narrower would be the constructionwhich it would incline to place on the phrase“restraint of trade” in the context of

section 3 (5) . I need, however,express no conclusion on these points. In the eventquestion (H) above does not arise for decision.

XIX The relief to be granted:question (I) above

In the light of my foregoing decisions, it isnow necessary to consider the relief that should ap-propriately be granted. Only one outstanding ques-tion of law falls to be decided in this context — thatis, whether World Series Cricket is entitled to a de-claration in the second action relating to the in-validity of the rules or proposed rules on thegrounds of unreasonable restraint of trade. I candeal with this very shortly. Lord Denning M.R. in

Boulting v. Association of Cinematograph,

Television and Allied Technicians [1963] 2 Q.B.606 , 629, referred to “the power of thecourt in its discretion to make a declaration of rightwhenever the interest of the plaintiff is sufficient tojustify it.” Following this and other judicial dicta,Wilberforce J. in Eastham v. NewcastleUnited Football Club Ltd. [1964] Ch. 413 ,446, held that the court had jurisdiction to grant tothe employee a declaratory judgment not onlyagainst the employer who was in contractual rela-tionship with the employee, but also against theFootball Association and the Football Leaguewhose rules or regulations placed an unjustifiablerestraint on his liberty of employment. WilberforceJ. in due course in exercise of his discretion furtherproceeded to grant appropriate declarations. I feelno doubt that in accordance with the principles ap-plied in that decision, the court has jurisdiction togrant declarations relating to the invalidity of therelevant rules not only in favour of the individualplaintiff cricketers, but also to World Series Crick-et. For these rules, according to my findings of fact,are specifically directed against that company, inthe sense that one of their principal objects is topersuade cricketers not to perform their existingcontracts with it and to prevent others from con-tracting with it in the future; indeed, the resolutionof “disapproval” passed by the ICC specificallynamed it. In these circumstances, appropriate de-clarations can and should in my judgment be gran-ted both to the individual plaintiffs and to WorldSeries Cricket.

Mr. Kempster, on behalf of the defendants, indic-ated that, subject to any appeal, they would abideby any declaration which the court saw fit to makein either action. I know of no reason to doubt thatthey will faithfully do so and correspondingly thinkthat no grant of any immediate injunction is calledfor.

In the result, subject to any discussion asto the precise form of the order, I propose in thefirst action to grant to the three plaintiffs (i) a de-claration that all the changes of the rules of the ICC








and all the resolutions of the ICC respectively re-ferred to and set out in the press statement of theICC issued on July 26, 1977, are ultra vires andvoid as being in unreasonable restraint of trade; and(ii) a declaration that the new or proposed new

rule 1 (e) and (f) of the rules ofthe TCCB governing the qualification and registra-tion of cricketers in Test and *364

competitive and county cricket and thenew or proposed new rule 2 (c) (i)

of the said rules are or would be ultra viresand void as being in unreasonable restraint of trade.

Subject as aforesaid, I propose to grant tothe plaintiff company in the second action. (i) a de-claration that all the changes of the rules of the ICCand all the resolutions of the ICC respectively re-ferred to and set out in the press statement of theICC issued on July 26, 1977, are (a) ultra vires andvoid as being in unreasonable restraint of trade and(b) an unlawful inducement to the cricketers re-ferred to in the statement of claim in this action tobreak their contracts with the plaintiff company re-ferred to in the said statement of claim; (ii) a de-claration that the new or proposed new

rule 1 (e) and (f) of the rules ofthe TCCB governing the qualification and registra-tion of cricketers in Test and competitive andcounty cricket and the new or proposed new

rule 2 (e) (i) of the said rules areor would be (a) ultra vires and void as being in un-reasonable restraint of trade; and (b) an unlawfulinducement to the said cricketers to break their saidcontracts.

I also propose to grant the plaintiffs in each actionliberty to apply for an injunction.

I make these observations in conclusion. Mr.Kempster, in his opening speech for the defendants,generously but correctly, acknowledged five posit-ive beneficial effects which, on the evidence, havealready been produced by the emergence of WorldSeries Cricket as a promoter of cricket. First, as hesaid, it has offered the promise of much greater re-

wards for star cricketers. Indeed, it has gone furtherthan this; it has offered secure, regular remunerat-ive employment in cricket to more than 50 crick-eters, in most cases for three English winter sea-sons, at a time when most of them would otherwisehave had no guarantee of regular employment in thegame. Secondly, it has already stimulated newsponsors for traditional cricket. Thirdly, it hasbrought back to the game in Australia several talen-ted players. Fourthly, it, or the group of companiesof which it forms part, has initiated a useful coach-ing scheme for young players in New South Wales.Fifthly, it has increased public interest in the game.

For all these acknowledged benefits, the defendantshave held the strong opinion that the effectivemonopoly of the ICC in the promotion of first classcricket at international level has been good for thegame and that the emergence of World SeriesCricket into the promotion field is bad for it.However, whether or not this opinion is correct hasnot been the question for this court. The questionfor decision has been whether the particular stepswhich the ICC and the TCCB took to combat whatthey regarded as the threat from World SeriesCricket were legally justified. This long investiga-tion has satisfied me that the positive demonstrablebenefits that might be achieved by introducing theICC and TCCB bans and applying them to playerswho had already committed themselves to contractswith World Series Cricket were at best somewhatspeculative. On the other hand there were, as hasbeen mentioned, a number of demonstrable disad-vantages if the bans were to be applied in this way.They would preclude the players concerned fromentry into important fields of professional liveli-hood. They would subject them to the hardshipsand injustice of essentially retrospective legislation.They would deprive the public of any opportunityof seeing the players concerned playing in conven-tional cricket, either at Test or at English countylevel, for at least a number of years.*365

By so depriving the public, they would carry withthem an appreciable risk of diminishing both public



enthusiasm for conventional cricket and the receiptsto be derived from it. Furthermore, the defendantsby imposing the hans, in the form which they tookand with the intentions which prompted them, actedwithout adequate regard to the fact that WorldSeries Cricket had contractual rights with the play-ers concerned, which were entitled to the protectionof the law. The defendants acted in good faith andin what they considered to be the best interests ofcricket. That, however, is not enough to justify inlaw the course which they have taken.

In the result, I find for the plaintiffs in both actions,with the consequences which have beenstated.Declarations accordingly. Plaintiffs' costssave WSC costs connected with material relative tospecial damage.

1. Trade Union and Labour Relations Act 1974, s.14 : see post, p. 313A. S. 28 (2)

: see post, p. 357A–C.

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