Friend v Civil Aviation Authority and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE CHADWICK,LORD JUSTICE TUCKEY |
| Judgment Date | 18 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1204 |
| Docket Number | A2/2001/0156A2/2001/0161 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 2001 |
[2001] EWCA Civ 1204
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Sir Oliver Popplewell)
The Royal Courts of Justice
The Strand
London WC2A
Lord Justice Simon Brown
Lord Justice Chadwick
Lord Justice Tuckey
A2/2001/0156A2/2001/0161
MR P GARLICK QC and MR N TAVARES (instructed by Bakers & Duke, 20 Silver Street, Ilminster, Somerset) appeared on behalf of the Appellant
MR P MOLONEY QC and MR A TABACHNIK (instructed by the Civil Aviation Authority Legal Department, CAA House, 45-49 Kingsway, London WC2B) appeared on behalf of the Respondents
Wednesday 18 July 2001
Captain Brian Leonard Friend appeals with the permission of Brooke LJ against the order of Sir Oliver Popplewell, sitting as a Deputy High Court Judge on 21 December 2000, striking out two actions (which I shall call respectively the 1996 action and the 1997 action) brought again the Civil Aviation Authority ("the CAA") and, in the case of the 1996 action, also against a number of their senior employees, following upon Captain Friend's employment by the CAA between April 1987 and March 1993. The 1996 action, which is for malicious falsehood, conspiracy, breach of contract and inducing breach of contract, was struck out on the ground that it was barred by issue estoppel following upon a 1994 industrial tribunal ("IT") decision on the appellant's complaint of unfair dismissal. The 1997 action, a claim for defamation, was struck out on the ground of absolute privilege, alternatively as an abuse of process.
The appellant is represented by counsel, Mr Paul Garlick QC and Mr Tavares, in the 1996 action but not in the 1997 action.
Although the papers in the case are voluminous (the dispute between the parties having ranged far and wide over many years and involved several other actions), the background to the present appeal can be briefly stated. The CAA is a statutory corporation created by the Civil Aviation Act 1971 which, by reason of section 3 of the Civil Aviation Act 1982, is concerned with the regulation and safety of air transport. The appellant is a former Royal Navy and airline pilot, whose initial employment with the CAA was as a Flight Operations Inspector ("FOI") but who was then transferred to a different group, the Operating Standards Appraisal Programme ("OSAP"). In this latter capacity he was required to take part in helicopter inspections to ensure compliance with safety standards. He strongly objected to this on the ground that the inspection team did not include a helicopter pilot, which he maintained was essential for reasons of safety.
Sir Oliver Popplewell spoke of the appellant's "unswerving view… that to require him who was a fixed-wing pilot to monitor the safety of helicopters was an unsafe practice, resulting in a large number of fatalities". This vehemently and repeatedly expressed view was not shared by his senior officers at the CAA and was the source of acute and growing friction between them. Such was the strength of Captain Friend's expression of his views that a formal complaint was laid before the CAA's internal disciplinary panel, contending that his conduct in the course of his employment had disrupted his working relationship with his colleagues. After a four-day hearing, ending on 1 October 1992, the panel recommended that the complaint be dismissed. They held that, while good relations between the appellant and his managers had broken down, the fault was not clearly attributable to one side and they recommended that he and another senior manager should work together on a rehabilitation programme. The panel's recommendations were rejected by the head of the Operating Standards Division, Mr Saull, and in the result the appellant was dismissed by letter dated 1 December 1992. 5. Having failed in two internal appeals brought under the CAA's disciplinary procedure, the appellant then complained to an Industrial Tribunal (as I shall continue call it, although of course it is now renamed an Employment Tribunal). The complaint was one of unfair dismissal and was based solely on allegations of procedural unfairness. Following a six-day hearing in May 1994 the Tribunal by their decision, dated 22 June 1994, upheld the appellant's contention that he had been unfairly dismissed due to a number of procedural shortcomings, but went on to hold that he had contributed 100 per cent to his dismissal. They said that it was clear from the evidence and the documents which the Tribunal had seen that he had pursued his grievance as to the constitution and the procedures of inspection teams in a way and to an extent that inevitably led to the situation whereby he could no longer continue to be employed by the CAA. The IT also noted that he himself had accepted in evidence that trust had broken down irretrievably. As a result, applying section 74(6) of the Employment Protection (Consolidation) Act 1978, they concluded that it would not be appropriate to make any award of compensation.
The appellant appealed to the Employment Appeal Tribunal ("the EAT") and sought before it to pursue his complaint about the safety aspects of the inspection procedures. In reply to the CAA's pleaded case before the IT that he had contributed to his own dismissal, the appellant had put in a 76-page document making his detailed case on the safety issue and further contending that the CAA had embarked on a deliberate campaign of harassment and victimisation against him for refusing to put helicopter safety in jeopardy, and had sought to coerce him into complying with their unreasonable and unlawful instructions. That case, however, ("the safety case", as it came to be called) had not been heard by the IT and this it was that decided the EAT to refuse to allow it to be advanced on appeal.
In giving the judgment of the EAT on 24 July 1995, my Lord, Mr Justice Tuckey, as he then was, said this:
"In his IT1 [his claim form to the Industrial Tribunal] Captain Friend only complained of procedural unfairness. He has told us that in subsequent correspondence he made it clear to the Tribunal that he was contending (among other things) that the instructions that he had been given by the CAA were unlawful because it was necessary, as a matter of law, for helicopters to be inspected in the way that he was saying they should be. This is what has been called the safety case. Captain Friend also told us that in the run-up to the hearing he attempted to obtain witness orders from the Tribunal which were directed to proving that the instructions he had received were unlawful. But at the hearing before the Industrial Tribunal where he was represented by Counsel and Solicitors Captain Friend's case was expressly limited to one of procedural unfairness. So the Tribunal were not concerned with the safety case and it is apparent from the reasons which they gave for their decision that they did not address that issue.
The Respondents object to the 'safety case' being resurrected before us on the well known grounds set out in Kumchyk v Derby City Council [1978] ICR 1116. The passage often cited in decisions of this Tribunal is to be found at pages 1123 and 1124. Usually, this Appeal Tribunal will not hear new points. It will certainly not hear new points which would require further findings of fact to be made if they are to be resolved. Here the Respondents say that this is a new point; that it is a point which requires much further evidence before it could be resolved and therefore, it is not open to Captain Friend to raise the safety case before us on appeal.
We agree."
In seeking permission to appeal from that decision to the Court of Appeal the appellant again sought to pursue the safety issue but again was refused permission to do so. In dismissing the application on 22 February 1996 Waite LJ, with whom Millett LJ agreed, said this:
"Turning finally to the proposed main ground of appeal, the sole basis for it is Captain Friend's frequently repeated complaint that he was not allowed to bring onto the stage of the Industrial Tribunal hearing the merits of the helicopter safety issue. It is obviously a topic on which he feels strongly. I have not the least doubt myself, having listened to all he has had to say to us and having read all that is relevant in the substantial body of documents he has laid before us for the purpose of these applications, that he sincerely holds the opinion that if this issue had been allowed to have been investigated his own views would have emerged as fully vindicated, and that the views of others would have been found to be lax and ill-informed. The question for the Industrial Tribunal, however, was not whether he 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, amounted to action which caused or contributed to his dismissal for the purposes of section 74(6) of the Employment Protection (Consolidation) Act 1978. The Industrial Tribunal had every justification, in my view, for adopting the attitude that for the purpose of answering that question it was unnecessary to enlarge the ambit of an already long hearing by going into the rights and wrongs of the controversy engendered by the helicopter safety issue."
The 1996 action followed. Deploying a variety of causes of action, the appellant is striving finally to have the safety issue...
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