Ashby v White (1703) and the Gloucester Grammar School Case (1410)

Every torts syllabus begins with the same question: what must a plaintiff show? The answer is given by two old cases best learned as a matched pair, each the mirror image of the other.

• Injuria sine damno — a legal right infringed, but no loss suffered. The plaintiff still wins. Ashby v White.
• Damnum sine injuria — real loss suffered, but no legal right infringed. The plaintiff loses. Gloucester Grammar School.

Together they state the fundamental proposition of the subject: what is actionable is the infringement of a legal right, not the causing of harm. On the 2021 paper the two maxims were two of the five short notes, and Question 3(b) was the rival-school problem — Gloucester in modern dress.

_Ashby v White_. Matthew Ashby, a cobbler in the borough of Aylesbury, went to cast his vote at a parliamentary election. William White, the constable acting as returning officer, refused to receive it, on the false pretext that Ashby was not a settled inhabitant. Ashby was in fact a qualified elector, and the refusal was malicious.

Here is the fact that makes the case: the candidate Ashby wished to vote for was elected anyway. His vote would have made no difference; he was not out of pocket by a penny; he suffered no damage whatever.

The procedural history — get this right. Most Indian notes garble it.

1. Trial. Ashby sued in an action on the case; the jury found for him and assessed damages (reports differ on the sum).
2. Queen's Bench. The full court arrested judgment — held that on the facts found no action lay — and gave judgment for White, by a majority of three to one: no loss had been suffered, parliamentary elections belonged to the House of Commons, and no precedent existed.
3. Holt CJ dissented, alone, in one of the most famous dissents in English law.
4. House of Lords. On a writ of error the Lords reversed the Queen's Bench by 50 votes to 16, adopting Holt CJ's reasoning.

So: Ashby lost in the Queen's Bench with Holt CJ dissenting, and won in the House of Lords, which upheld the dissent. A common error is to write that Holt CJ gave the judgment of the Queen's Bench.

_Gloucester Grammar School_. The plaintiffs were the schoolmasters of the grammar school at Gloucester. The defendant, himself a schoolmaster — on the usual account formerly a master there — set up a rival grammar school in the same town. He taught well and the scholars went to him. To keep their pupils the plaintiffs cut their fees from 40 pence to 12 pence a quarter.

A caution about the report. The Year Book report is extremely short and not a judgment in the modern sense; judicial remarks occupy a few lines, and the judge usually named is Hankford J. Secondary sources — including many Indian websites — attribute to it elaborate reasoning, invented quotations, even invented judges. Do not: give the facts and the holding, and note that it is remembered for the principle, not its reasoning.

1. Is the wrongful refusal of a qualified elector's vote actionable where he has suffered no loss at all?
2. Is loss caused by lawful competition actionable where the plaintiff's income is in fact destroyed?

In Ashby. White argued that no action lies without damage, that elections are for the Commons, and that there was no precedent. Ashby argued that the franchise is a legal right, and a right without a remedy is no right.

In Gloucester. The plaintiffs argued they had been ruined in fact; the defendant answered that he had taught school, which any man may lawfully do.

Ashby v White — the refusal of a qualified elector's vote is actionable and damages may be recovered, though the plaintiff has suffered no actual loss.

Gloucester Grammar School — no action lay. Teaching in competition is a lawful way of earning a living. The plaintiffs had suffered undoubted damage, but no legal right of theirs was infringed.

Injuria sine damno — where a legal right is infringed the law presumes damage; the infringement is itself actionable and no loss need be proved. This is an application of ubi jus ibi remedium. Damnum sine injuria — damage without the infringement of any legal right gives no cause of action, however large the loss.

Holt CJ's words. The central passage:

"If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal."

On the objection that Ashby had lost nothing:

"every injury imports a damage, though it does not cost the party one farthing... for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right."

On public officers: "If publick officers will infringe men's rights, they ought to pay greater damages than other men."

Holt CJ's argument runs in three steps. The franchise is a legal right, not a favour, because it concerns the making of laws that bind a man's liberty and property. A right that cannot be enforced is not a right at all, so to deny the remedy is to deny the right. And the absence of a precedent is no objection — it shows only that nobody had previously been so bold as to commit the wrong. That third step is why Ashby supports Winfield in the "law of tort or law of torts?" debate.

Gloucester rests on the converse point. The plaintiffs could describe their loss precisely — 40 pence down to 12 — but could not name any right of theirs that the defendant had invaded. Custom is not property, and until the law recognises a right to be free from competition there is nothing for a competitor to infringe.

_Mogul Steamship Co v McGregor, Gow & Co_ [1892] AC 25 (HL). Shipowners in the China tea trade combined to keep the trade to themselves, offering rebates conditional on exclusive dealing and cutting freight rates to unprofitable levels. The plaintiff was driven out. Held: no action — the defendants used lawful means to advance their own trading interests, however ruthlessly.

_Mayor of Bradford v Pickles_ [1895] AC 587. Bradford Corporation drew its water from springs fed by water percolating through Pickles' land, higher up. Pickles wanted it to buy his land at his price; it refused; he sank a shaft on his own land, diverting the water so that the supply reaching the springs was diminished and discoloured. His motive was admitted. Held: not liable. There is no right of property in water percolating in undefined channels; the landowner above may intercept, use or waste it. Since Pickles had a legal right to do what he did, his motive was irrelevant — however ill the motive, said Lord Halsbury LC, he had a right to do it. Cite it for damnum sine injuria and the irrelevance of malice.

_Chasemore v Richards_ (1859) 7 HLC 349. The defendant board sank a well a quarter of a mile from the plaintiff's mill, drawing off the percolating water the mill had depended on for sixty years. Held: not liable — no action lies for the abstraction of percolating underground water. Chasemore establishes the right, Pickles that a bad motive does not destroy it.

_Town Area Committee v Prabhu Dayal_, AIR 1975 All 132 — the Indian authority to cite. The plaintiff built sixteen shops without the notice required by s. 178 of the U.P. Municipalities Act and the sanction required by s. 180; the Committee demolished them under s. 186. He sued for Rs 1,000, alleging mala fides. Held: no damages. Hari Swarup J: "Law does not take into account all harms suffered by a person which caused no legal injury. Damage so done is called damnum sine injuria"; and "A legal act, though motivated by malice, will not make the actor liable to pay damages." This is the Indian Bradford v Pickles — both points in one judgment.

_Bhim Singh v State of Jammu & Kashmir_, AIR 1986 SC 494 — the Indian Ashby. Bhim Singh, an MLA, was arrested on his way to a session of the Legislative Assembly and kept in custody so that he could not attend; he was not produced before a magistrate, and the Assembly sat and voted in his absence. By the time the habeas corpus petition was heard he had been released. Held: the arrest and detention were mischievous and malicious and infringed Articles 21 and 22(2); the Court awarded exemplary damages of Rs 50,000 under Article 32 — because the right itself was violated.

Also: Municipal Board, Agra v Asharfi Lal (Allahabad HC, 1921) applied Ashby to the wrongful omission of a name from the electoral roll, and _Lucknow Development Authority v M.K. Gupta_ (1994) invoked Ashby in awarding damages for misfeasance in public office.

Exceptions — when competitive harm does become actionable. "Competition is not actionable" holds only so long as the means are lawful. The recognised heads are:

1. Defamation — where the advantage is obtained by a false statement injuring the plaintiff's reputation.
2. Injurious falsehood (slander of title and of goods) — a false statement made maliciously about the plaintiff's business or goods, causing special damage: Ratcliffe v Evans (1892).
3. Passing off — representing one's business or goods as the plaintiff's; goodwill is a property right.
4. Inducing breach of contract — Lumley v Gye (1853): knowingly procuring a party to break a contract with the plaintiff.
5. Conspiracy to injure — a combination whose predominant purpose is to injure the plaintiff rather than advance the defendants' own interests: Quinn v Leathem (1901), the test being fixed in Crofter Hand Woven Harris Tweed Co v Veitch (1942). Mogul is on the lawful side of the line.
6. Intimidation — Rookes v Barnard (1964): coercing a person by a threat of an unlawful act, including a threat made to a third party.

Add causing loss by unlawful means, and _Keeble v Hickeringill_ (1707), also Holt CJ: the plaintiff kept a decoy pond for wild fowl and the defendant fired guns nearby to frighten the birds away. Held: actionable. A rival decoy luring the ducks away would have been lawful competition; the defendant did not compete — he used unlawful means to destroy a trade without gaining anything. Keep Keeble and Gloucester together.