Brian Friend v Civil Aviation Authority
| Jurisdiction | England & Wales |
| Judgment Date | 25 February 2005 |
| Neutral Citation | [2005] EWHC 201 (QB) |
| Docket Number | Case No: 1996 F 428 |
| Court | Queen's Bench Division |
| Date | 25 February 2005 |
[2005] EWHC 201 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon. Mr Justice Eady
Case No: 1996 F 428
Captain Friend appeared in person
Patrick Moloney QC and Andrew Tabachnik (instructed by the Secretary and Legal Adviser to the Civil Aviation Authority) for the Defendants
Hearing dates: 13th January 2005 to 8th February 2005
The Claimant in these proceedings, which began as long ago as 1996, is Brian Leonard Friend ("Captain Friend"). He seeks remedies against the Civil Aviation Authority ("CAA"), which is a body corporate by virtue of s. 2(1) of the Civil Aviation Act 1982, and four other individual Defendants who were at the material times officers of the CAA. Those are John Mimpriss (the second Defendant), Patricia Richardson (the third Defendant), John Saull (the fourth Defendant) and Russell Williams (the fifth Defendant). Captain Friend was employed as a Flight Operations Inspector ("FOI") by the CAA in its Safety Regulation Group ("SRG") from April 1987 until termination on three months notice given by letter from Mr Saull dated 1st December 1992. The last twelve years have been taken up to a large extent in litigation of one sort or another, but the central events which are relevant to the present claims would appear to have taken place in 1990 and 1991.
The factual allegations against the Defendants are relied upon by Captain Friend as giving rise to a variety of causes of action. The claims in tort may be categorised as follows:
i) Malicious falsehood, based upon the contents of some 24 documents;
ii) Conspiracy, an allegation now confined to the four individual Defendants, who pursuant to the alleged conspiracy are said to have carried out acts consisting in the compiling and communication of the malicious falsehood documents and a campaign of harassment;
iii) Inducing a breach of Captain Friend's contract of employment. It is said that each of the individual Defendants was, at the material times, acting in the course of his or her employment and that, accordingly, the CAA is vicariously responsible for any wrongful act.
There is also a claim in contract based upon a number of alleged breaches, which may perhaps conveniently be grouped as follows:
i) The giving of instructions which are said to have been unlawful (specifically in relation to two operators referred to respectively as PLM Helicopters and Corporate Jet);
ii) The campaign of malicious falsehood and harassment, to which I have referred in the context of the tortious claims;
iii) Procedural unfairness in the disciplinary proceedings, which led to Captain Friend being wrongfully dismissed.
So far as the claims for damages are concerned, they are framed in terms of the dismissal by the CAA and its financial consequences. Obviously, therefore, in so far as any wrongful act is established, it would be necessary to address its causal link (if any) with the dismissal.
The factual background is inevitably long and complex. I shall need to address it in due course when I come to analyse the evidence and the issues. Meanwhile, however, it will suffice to provide a summary of the parties' differing standpoints. I have so described the nature of the conflict because, although there are undoubtedly disputes of primary fact some of which are significant, it is perhaps fair to say that the main differences between the two sides' cases lie in how they interpret and understand their obligations to one another and the conflicts which arose between them. This is illustrated by the content of Mr Saull's dismissal letter in December 1992, which states in a nutshell the attitude of management towards Captain Friend at that time:
"You have been given every opportunity over the past two and a half years in which to re-build this credibility with managers but you have patently failed to do so. This is not an acceptable situation for the Authority. Your inflexible attitude clearly indicates that you believe the Authority needs to change policies and procedures to meet your strongly held views which we believe to be misplaced and counter productive to the overall objectives of SRG. This attitude has caused a very considerable amount of management time to be expended on your case which has produced considerable and unwarranted disruption to SRG business.
Regulatory work depends on a responsible and mature approach by the Authority's technical staff to undertake their tasks. The Authority cannot give constant direction on what should be routine tasks for a Flight Operations Inspector.
I have no confidence that your approach to your work will change and I do not believe that the breakdown in the working relationship referred to in the recommendations can be repaired."
From this document it emerges that there was a long period during which the parties were at loggerheads and I shall need to focus on the rival contentions between them and, in particular, whether Captain Friend was behaving reasonably and in accordance with his contractual obligations, or whether Mr Saull's encapsulation of the dispute is a fair one. Captain Friend has characterised his conduct, in the course of his evidence, as that of a tenacious whistle-blower. He says that the Defendants resented his moral stand and wished him to "toe the line". According to him it is "standard practice to co-erce whistleblowers".
There was an appeal by Captain Friend against his dismissal and a two-day hearing took place in March 1993 (of which the transcripts are available). The appeal was heard by Mr Paice, who was Group Director, Economic Regulation, and Mr Marx, the Group Director responsible for Personnel and Central Services. They wrote a joint letter of 17th March 1993 summarising their reasons for rejecting the appeal which contained the following passages:
"… The Panel concludes that Captain Friend has been wrong to pursue his case in the way he has and at the length he has. It is not that [he] has not had answers to his questions: it is that he refuses to accept the answers he was given. He can be in no doubt at all that his views have been fully considered at all levels of management senior to himself in the Safety Regulation Group and rejected. In the Panel's view, he is not entitled to disregard this simply because some of his peers in the Safety Regulation group share his own views to some extent.
… The Panel believes however that a threat of legal action, outstanding for 18 months and the nature of which is undefined and the defendants of which are only hinted at, must contribute substantially to the breakdown of normal working relationships. Had Captain Friend been willing to initiate his action, to drop it or to indicate the circumstances in which he would initiate it or, in the alternative, drop it, the damage to working relationships might well have been mitigated, although probably not removed. The Panel is in no doubt that his refusal to follow any of these courses has served to make matters worse. ……
Captain Friend simply will not accept the decision of his superiors. The only condition which will bring this dispute to an end so far as Captain Friend is concerned is a statement by the senior management of the [SRG] that [he] was right and they, correspondingly, were wrong. It is this which has led to a fundamental and irretrievable breakdown of working relationships within the SRG. It is difficult to see Captain Friend's tactics of holding out the threat of legal action, but refusing to clarify further on that matter, as anything other than an attempt to gain acceptance of his point of view on the substance of a professional dispute. …
But no organisation can function effectively if employees behave as Captain Friend in simply refusing to accept the decision of his superiors even after he has exhausted every reasonable means of having his point of view considered".
Later, there was an industrial tribunal hearing which led to a decision of 22nd June 1994. The dismissal was held to be procedurally unfair but Captain Friend's contribution was assessed at 100%, with the result that there was no award of compensation. The tribunal concluded inter alia:
"What is clear, nevertheless, from the evidence and the documents we have seen, is that in our judgment [Captain Friend] had pursued the matter in a way and to the extent that must inevitably have led to the situation whereby he could no longer continue to be employed by the [CAA]. … There are other matters which lead us to this conclusion but in giving his evidence to us [Captain Friend] himself accepted that trust had broken down irretrievably".
There was an Employment Appeal Tribunal hearing and Captain Friend's appeal was dismissed on 24th July 1995. It was not necessary for the CAA's appeal against the finding of unfair dismissal to be determined in those circumstances. The EAT addressed the industrial tribunal's approach to the 100% contribution. The tribunal's conclusion was summarised in the EAT decision as having been to the effect that "… It was the way Captain Friend went about putting his point of view which resulted in his dismissal. … They are saying that [he] contributed to his dismissal by the way in which he pursued his point of view and the extent to which he did so".
In due course, on 22nd February 1996 the Court of Appeal rejected Captain Friend's application for leave to appeal against the decision of the EAT. Waite LJ noted that the question for the industrial tribunal had been, not whether Captain Friend was right or wrong, reasonable or unreasonable, in the views he expressed, but whether his way of expressing them, and the steps he took, or omitted to take, as a means of emphasising them,...
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