Brian Friend v Civil Aviation Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,LORD JUSTICE CHADWICK,Lady Justice Smith,LADY JUSTICE SMITH,LORD JUSTICE DYSON |
| Judgment Date | 24 October 2005 |
| Neutral Citation | [2005] EWCA Civ 1406,[2005] EWCA Civ 695 |
| Docket Number | C1/2005/1608,A2/2005/0608 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 October 2005 |
[2005] EWCA Civ 1406
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)
Lord Justice Chadwick
Lord Justice Dyson
Lady Justice Smith
C1/2005/1608
THE APPLICANT appeared in person
MR PATRICK MOLONEY QC and MR TABACHNIK (instructed by the Secretary & Legal Adviser's Office, Civil Aviation Authority) appeared on behalf of THE RESPONDENTS
Monday 24 October 2005
I will ask Lady Justice Smith the give the first judgment.
This is an adjourned application for permission to appeal against the judgment and order of Eady J made on 25 February 2005 when he dismissed the applicant's claims in tort and contract against the respondents to this appeal, the Civil Aviation Authority (the "CAA"), and four CAA employees who were named as individual defendants in the action.
The claim arose out of the applicant's employment as a Flight Operations Inspector with the CAA from 1987 until his dismissal on notice in December 1992. Thereafter he took proceedings in an industrial tribunal. He failed to recover any compensation, although his dismissal was held to be procedurally unfair. Later he commenced libel actions against the CAA and several employees, but these were struck out by the court.
In 1996 he commenced these proceedings based on the torts of malicious falsehood, conspiracy to induce breach of contract, and also upon alleged breaches of the employment contract. The damages claimed were those resulting from the loss of the employment. The action has taken a long time to come to trial because it was initially struck out, but was reinstated by this court.
The facts of the dispute are set out at length in the judgment of Eady J, which runs to almost 100 single-spaced typescript pages. For the purposes of this application the following brief summary will suffice.
In 1989 the applicant was transferred from flight inspections into a group which carried out the CAA's Operational Standards Audit Programme ("OSAP"). His first assignment was to be part of the team carrying out an audit of a small helicopter operator in Scotland. He made two complaints about this assignment. First, he complained that he was not qualified to take part in an inspection or audit of a helicopter operator. He had been a pilot of fixed-wing aircraft before joining the CAA as an inspector and knew very little about helicopters. He contended that it was necessary for safety reasons for the team to contain an inspector with special knowledge of helicopters. He regarded himself, and still regards himself, as a "whistle blower" in respect of what he alleged was unlawful and unsafe practice in conducting an audit of a helicopter operator without a specialist inspector.
His line managers in the CAA considered his objection, explained to him the reasons why they believed that it was appropriate that he should be part of the team and instructed him to attend. He refused to do so. At about the same time he alleged that he had been given an unlawful instruction, namely to draft part of the audit report before the audit had taken place. The CAA's contention at the trial in respect of that was that the applicant had misunderstood the instruction; all he had been told to do was to prepare a first draft of part of the report in the course of his preparation for the audit.
As a result of these two problems, and various other matters to which it is not necessary to refer in detail, management formed the view that the applicant's performance of his duties in the OSAP team was not satisfactory; that he was unwilling or unable to work as a team; and that his conduct was disruptive of the work of the team.
After many meetings and exchanges of correspondence the applicant was moved away from the OSAP team. After some months in the policy department, he was moved back to OSAP. His first assignment was to attend the audit of a helicopter operator. No specialist flight operations inspector was on the team. The applicant registered a professional objection to taking part in the audit. The difficulties between him and his employers continued as before.
From mid-1991 the applicant threatened on several occasions to commence legal actions for defamation against various members of the CAA management, although in fact he did not do so until after his employment had been terminated.
In early 1992 he was asked to make his position plain as to whether or not he intended to take such legal action. The CAA were of the view that his threats to do so were disruptive of the operation of the department in which he was working. At a meeting convened to discuss this issue, the applicant declined to give an answer. He was suspended on full pay pending a disciplinary investigation. Disciplinary proceedings, which were instituted, resulted in his dismissal on the ground that the relationship of trust and confidence between the applicant and his employers had irretrievably broken down. All the internal appeals were dismissed.
The applicant has always maintained that he was victimised by his managers at the CAA and that they conspired to get rid of him by fabricating complaints about his conduct.
His claim in malicious falsehood was based on the content of 24 letters and internal memoranda written by various members of the CAA staff. These related to the many and varied difficulties to which (at any rate in the perception of the CAA managers) the applicant's conduct gave rise.
After a minutely detailed examination of the evidence, the judge found that the writers of those letters and memoranda honestly believed their contents to be true, and insofar as they comprised opinion, they reflected the honestly held views of the writers. He held that they were not tainted by malice. He found that there was no conspiracy against the applicant; that in fact the reverse was the case, the CAA had bent over backwards to encourage the improvement of the relationship between the applicant and his line managers.
So far as the claim in contract was concerned, the judge found that the applicant had not been given any unlawful instructions and that the disciplinary proceedings against him had been carried out in accordance with the contract of employment. So far as damages were concerned, he noted that the applicant had received full pay in lieu of his notice entitlement.
Throughout most of the interlocutory stages of the action the applicant had the benefit of a legal aid certificate, and latterly a civil representation order. However, this was discharged in November 2002 apparently because the applicant's financial position had changed and he would be required to make contributions which he could not afford. From that time on he was a litigant in person. He conducted the trial without legal assistance.
I turn to the proposed grounds of appeal. The first alleges that the applicant's Article 6 rights were breached in that there was a gross and unacceptable inequality of arms at the trial. The applicant had had to conduct his own case, whereas the defendants (now the respondents) had had the services of leading and junior counsel and solicitors. The applicant alleged that his position had been made the more difficult because the judge had refused to order the respondents to prepare an index of the bundle of documents that was to be used at the trial. Also the judge had refused to accept that the trial could be conducted using a bundle of documents prepared by the applicant. So at the time when this permission application was first considered, as it was by Waller LJ in May 2005, there were two aspects to the ground of appeal alleging breach of Article 6. In respect of the difficulties caused by the absence of legal representation, the applicant had sought to rely on the authority of the European Court of Human Rights in Steel and Morris v United Kingdom (Application No 68416/01 (unreported) 15 February 2005, ECtHR). In that case the court held that the applicants' Article 6 rights had been breached because legal aid was not available to them to defend an action for defamation brought against them by McDonald's, the burger chain. The trial had been very long, the issues had been very complicated and the court held that Steel and Morris had been disadvantaged to an unacceptable degree.
When giving a brief judgment explaining his reasons for adjourning this application to be heard by a full court on notice to the respondents, Waller LJ said that he was troubled by this ground. It appears that he thought that it might have some prospect of success.
Not long after the first hearing the respondents sought disclosure of the documents in the applicant's possession relating to the discharge of his representation order. The applicant objected to their production.
In September 2005 this issue was compromised by agreement when the applicant accepted that his first ground of appeal relating to Article 6 rights would proceed only on the basis that the trial had been unfair because of the judge's directions in respect of the bundles of documents. The applicant would no longer contend that the fact that he had had to represent himself constituted a breach of Article 6. In effect the applicant abandoned that part of the first ground which had borne some resemblance to the ground on which Steel and Morris had succeeded before the court in Strasbourg.
The...
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