Tadd v Eastwood
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVELEIGH,LORD JUSTICE O'CONNOR,MR. JUSTICE EASTHAM |
| Judgment Date | 11 October 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J1011-3 |
| Docket Number | 84/0364 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 October 1984 |
[1984] EWCA Civ J1011-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Lord Justice Eveleigh
Lord Justice O'Connor
and
Mr. Justice Eastham
84/0364
1980/T No. 1823
MR. M.G. TUGENDHAT (instructed by Mr. Richard C.M. Sykes) appeared for the Appellant (Second Defendant)
MR. JOHN PREVITE (instructed by Messrs. Peter Carter-Ruck & Partners) appeared for the Respondent (Plaintiff)
( )
The plaintiff was a News Editor of the Daily Telegraph. He was a member of the Institute of Journalists. The Daily Telegraph and Sunday Telegraph Chapter of the Institute of Journalists entered into an agreement with those newspapers with a view to avoiding industrial unrest and to settle differences by negotiation and conciliation. That agreement was concluded on 16th July 1975. It stated that its object was to define the terms and conditions under which members of the IOJ were employed and it purported to apply to all members of the IOJ employed by the papers concerned.
By clause 23 of that agreement a disputes procedure was introduced, and that clause begins by saying: "In the event of a dispute between the parties, it is agreed that there will be no stoppage of work or any practices involving an interference with production by members of the Chapter or by the Company"—which is to say the newspapers—"without recourse to the following procedure". Then a procedure is outlined and that provision is taken further by an annex to the agreement which is headed "Conciliation Procedure". That provides for the reference, at one stage, to a Joint Committee consisting of three nominees of the NPA and three nominees of the Union.
In 1980 Mr. Tadd was dismissed. His union protested on his behalf and requested that there should be discussions under the agreement. They suggested that there came a stage, and it does not matter at what precise stage, but the stage that I have just mentioned, where provision could be made for a Joint Committee to hear the parties, and the terms of reference agreed between The Daily Telegraph and the Union for that Joint Committee were: "To examine the disagreement which exists between The Daily Telegraph and the Institute of Journalists over the dismissal as News Editor of The Daily Telegraph of Mr. W. Tadd and to make recommendations for a resolution of the problem". Mr. Tadd was not himself a party to the agreement of 16th July and the learned judge held that that agreement had not been incorporated into Mr. Tadd's service agreement with The Daily Telegraph, but Mr. Tadd elected to become a party to the discussions and the proceedings before the Joint Committee. The learned judge held that he thereby was consenting to be bound by the terms of that agreement, and there is no appeal against that finding. A meeting was held and there were present the members of the panel, six members, five people representing the management of the Telegraph, the General Secretary of the Institute of Journalists, the Deputy General Secretary, Mr. Tadd himself and Mr. Junor supporting the case of the Union.
The procedure at the hearing was somewhat informal, as indeed was contemplated. There were no strict rules of evidence, there was no calling of witnesses and cross-examination, but someone on behalf of each side put forward that side's case and then there were questions directed across the board to the other side and questions were put by members of the panel. In presenting the case for The Daily Telegraph there was put before the panel a 16-page statement relating, in principle, to the activities of Mr. Tadd, and it is said that that statement contained matter defamatory to him. It is his contention that the statement was put together by the Managing Editor of the paper, Mr. Eastwood. That in fact is challenged, but that is immaterial in this appeal.
The Committee found that Mr. Tadd had been unfairly dismissed. This was a finding of theirs that could not bind any of the parties to the conciliation procedure. It had no binding force but, in the event, The Daily Telegraph accepted that finding and the Committee, on that basis, proceeded to consider what was adequate compensation. They were unable to agree and consequently could make no recommendation, but the parties agreed that Lord Goodman, as arbitrator, should decide the proper amount for compensation and he did so in the sum of £65,000 odd.
That, however, was not an end to the matter. Mr. Tadd then began a libel action against Mr. Eastwood in respect of the alleged defamatory statement contained in the 16-page document. Mr. Eastwood pleaded in his defence absolute privilege and also pleaded that Mr. Tadd had consented to the publication. I should have said that the publication complained of was both a publication before the proceedings and during the proceedings. It was pleaded that there was publication to those present at the hearing before the Committee and also, shortly before, as it was claimed that Mr. Eastwood published the memorandum to the chairman and directors of The Daily Telegraph and/or to the Editor of The Daily Telegraph.
The Daily Telegraph on its application was joined as defendant and, in effect, they were seeking to restrain the plaintiff from pursuing his action on the grounds that by virtue of the agreement of 16th July which bound the plaintiff, as they contended, the plaintiff undertook not to sue the first defendant or any other person who took part in the preparation or conduct of the proceedings before the panel, whether as representative or as witness or otherwise, for or on behalf of the second defendant or the second defendant itself for libel or slander in respect of the publication to the members of the panel and the representatives of each party of any document or other matter submitted by or on behalf of The Daily Telegraph Limited in support of their case and, in particular, the memorandum headed "Mr. W.D. Tadd". That is the 16-page document.
The matter came before Mr. Justice Hirst. He held that there was no absolute privilege but the occasion was covered by qualified privilege. He has not yet heard the case and has not yet been called upon to decide the question of consent. He did hold, however, that there was no such term to be implied as The Daily Telegraph contended. In so far as he has found that this occasion was not one covered by absolute privilege there is no appeal, so the question before us is simply whether or not this term should be implied.
Mr. Tugendhat has contended that it is a term which must be implied, for reasons which are to be found in the case of Liverpool City Council v Irwin, reported in (1977)Appeal Cases, page 239, in particular because he says the conciliation agreement seeking, as it must, to put an end to all disputes between the parties would be futile and useless if it itself could give rise to yet further disputes and further proceedings. He said that such a term should also be implied on the grounds of public policy. It is in the public interest, he said, that industrial disputes should be avoided and that conciliation procedures should be encouraged. He said that the whole purpose of such procedure was to put an end to disputes and that to allow this action to proceed would have just the opposite result. He contended that, at least to a very large measure, the libel action would cover the same damage flowing from injury to reputation as would have been considered in the arbitration proceedings.
So far as that last contention is concerned, it seems to me that there was no element of general damages for defamation, at least, in the award of Lord Goodman because a letter from him indicates that he did not have defamation or a libel action in mind. Whether or not there was taken into account any possible loss of earnings, the special damage aspect of a defamation case that might have flowed from diminished reputation or damaged reputation, I know not. I am prepared to assume that there might be some overlap in the compensation awarded and damages to be awarded in a libel action, but I would not wish to be taken to be deciding that matter one way or the other.
In arguing that the object of such an agreement was to achieve finality, Mr. Tugendhat referred to Rondel v Worsley, reported in 1969 1 Appeal Cases, page 191, where at page 269 Lord Pearce said: "Thus, the reasons underlying the immunity of witnesses are: first, that there would otherwise be a series of retrials and, secondly, that an honest witness might be deflected by fear of the consequences".
For myself I can see nothing in the Liverpool case that would entitle the court to imply a term into this agreement. In the Liverpool case the contract was incomplete. The relationship between the parties as landlord and tenant contemplated the use of facilities that are today to be regarded as vital to the enjoyment of the property and yet no terms appeared in the document, which contained the conditions to be observed by the tenant, to indicate whose was the responsibility for maintaining those facilities. So that the tenant's claim to an implied term was necessary for the enjoyment of the premises according to any civilised standards.
Mr. Tugendhat has submitted that for a conciliation agreement to be effective each side must be free to speak his mind and to produce his evidence without fear. Consequently, he says, there is a necessity to imply such a term. I myself cannot accept that...
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