Union of Construction, Allied Trades and Technicians v Brain
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE DONALDSON,LORD JUSTICE OLIVER |
| Judgment Date | 26 March 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0326-4 |
| Docket Number | 81/0148 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 March 1981 |
[1981] EWCA Civ J0326-4
Lord Justice Lawton,
Lord Justice Donaldson
and
Lord Justice Oliver
81/0148
Appeal No. EAT/126/80
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
(On appeal from the Employment Appeal Tribunal, Mr. Justice Talbot presiding)
Royal Courts of Justice
MR. FREDERIC REYNOLD (instructed by Mr. John L. Williams) appeared on behalf of the Appellants.
MR. GEOFFREY ROBERTSON (instructed by Messrs. Bindman & Partners) appeared on behalf of the Respondent.
( )
We need not trouble you, Mr. Robertson.
This is an appeal by the Union of Construction and Allied Trades and Technicians (generally knows as "UCATT") against a judgment of the Employment Appeal Tribunal given on 11th June 1980, whereby they affirmed the decision of an industrial tribunal given on 7th December 1979, whereby it was adjudged that Mr. Garry Arthur Brain had been unfairly dismissed by UCATT.
The facts behind this appeal, which is brought by the leave of this court, are most unusual. It is to be hoped, after this judgment, that they will never occur again in the trade union movement.
UCATT has a monthly journal which is called "Viewpoint". It is distributed amongst UCATT's members. In the early part of 1978 the General Secretary of UCATT was the late Sir George Smith. He was in general control of UCATT's journal. He could give instructions, and from time to time did so, as to what should be published in "Viewpoint", which had a Research and Press Officer, a woman called Miss Atkins, and a Publications Officer, who was Mr. Brain. On the evidence called before the industrial tribunal it is not clear what duties Mr. Brain had in relation to "Viewpoint", except that he was not the Editor in the sense that he was in overall control. It was the late Sir George Smith at the material time who was in such control. Mr. Brain had certain duties in relation to "Viewpoint". He had some functions which, in a national newspaper, might be accurately described as those of a sub-editor. He had some responsibility for putting the journal together and he was responsible for making the necessary arrangements with the printers and seeing that the copy got to them.
Early in 1978 Sir George Smith was incensed about the way in which "Construction Hews" was making comments about UCATT. "Constructions News" was the other side in the construction industry of "Viewpoint": it was a journal which circulated amongst employers and management. Sir George Smith's instructions to Miss Atkins were that she was to prepare an article attacking the attitude of "Construction News" towards UCATT. Miss Atkins did as she was told and produced an article which was clearly defamatory of "Construction News" and those who were concerned with its editing and publication. Sir George Smith gave instructions to Mr. Brain that that article was to be published in the March edition of "Viewpoint" and it was. Three persons who were connected with the editing and publication of "Construction News" issued a writ against Mr. Brain and the printers of "Viewpoint" claiming damages for libel in the March issue.
"Viewpoint", of course, was published by UCATT. The plaintiffs in the libel action could not sue UCATT, because of the provisions of section 4 of the Trades Disputes Act, 1906. They had to look for their remedy to the person whom they believed to be the editor and to the printers. There was not much difficulty in identifying the printers, because, of course, in accordance with the law their name had to appear on "Viewpoint". They concluded that Mr. Brain was the editor. In the statement of claim, which was delivered on 15th May 1978, they said this: "The First Defendant"—that is Mr. Brain—"is the Editor and the Second Defendants are the printers of 'UCATT Viewpoint' which is the journal of the Union of Construction, Allied Trades and Technicians". That statement of claim came into the possession of a Mr. Williams, who is UCATT's solicitor: presumably he agreed to accept service. UCATT, as good employers, decided that, although their Publications Officer had been sued, they would be responsible for the costs and any damages which might be awarded.
A defence was delivered. The relevant part of the defence for the purpose of these proceedings is in paragraph 2, which is in these terms: "In regard to paragraph 2 of the Statement of Claim it is admitted that 'UCATT Viewpoint' is the journal of UCATT, but it is denied that the First Defendant is the editor of the same. It is, however, admitted and averred that this Defendant has at all material times had editorial responsibilities and functions in respect of the contents of the said journal as part of his duties as Information Officer, employed by UCATT at its head office". From the evidence given before the industrial tribunal it is doubtful whether that paragraph in the defence is accurate. For ray part, I am far from satisfied on the evidence which was given before the industrial tribunal that in any real sense he could be said to have had editorial responsibilities. He certainly had no editorial responsibilities in respect of the article which was the subject-matter of the writ served upon him.
Mr. Williams, who is an experienced solicitor, having been told by the union that they would be responsible for all the costs and would indemnify Mr. Brain against any damages awarded against him, took the view in good faith that the union were his clients and not Mr. Brain. As a result, when counsel advised, as was almost inevitable if Mr. Brain had editorial responsibilities, that he had no defence to this action for libel, he did not consult Mr. Brain about any terms of settlement: he consulted the union. By this time Sir George Smith was no longer the General Secretary of the union and Mr. Wood was. Terms of settlement were discussed with the plaintiffs' solicitors and they came to this. The plaintiffs wanted, first, a token sum by way of damages and that was agreed at £500. They wanted to be paid their costs. They wanted a statement made in open court, whereby the defendant, Mr. Brain, was to apologise for the publication. They also wanted an apology printed in "Viewpoint". They asked for other undertakings, which relate more to industrial relations than to anything else and with which I need not concern myself. All these matters were negotiated by Mr. Williams, no doubt after consulting the General Secretary. In the end, when the final terms were fixed, the terms of settlement were put before UCATT's Executive Committee and approved by that committee; but at no time did Mr. Williams or anybody else in the union consult Mr. Brain about these terms of settlement, the view being taken that, as the union were going to be the paymasters, they would decide what the terms of settlement would be. One of the terms which the plaintiffs were insisting on was an undertaking from both Mr. Brain and the printers that there would be no repetition of the defamatory statements contained in the March edition of "Viewpoint".
It is now necessary to go into some detail about the course of events. As I have already stated, the writ was issued on 15th May 1978. Within a short time after a defence had been delivered, negotiations for a settlement were started and they had virtually reached final settlement (all behind Mr. Brain's back) by 20th June 1979. On that day, counsel instructed on behalf of the plaintiffs and counsel instructed, seemingly, on behalf of Mr. Brain (although he had not been consulted), made a statement in open court. Following the usual practice, what counsel for the plaintiffs was going to say was sent to Mr. Reynold, of counsel, purporting to appear on behalf of Mr. Brain, for agreement; and what Mr. Reynold was going to say was sent to plaintiffs' counsel. So Mr. Reynold knew, when he went into court on 20th June, what it was that counsel for the plaintiffs was going to say. One statement was that "The first defendant", that is, Mr. Brain, "edits the journal", which was not strictly true. What Mr. Reynold was going to say, and did say, was this, "On behalf of the defendants, I accept what my learned friend has said". What plaintiffs' counsel had said was this: "The Defendants' article suggested that the motive for this behaviour was to sow discord between the unions and to discredit the trade union movement in the industry for the benefit of the employers".
Mr. Brain was a member of two unions. One was the National Union of Journalists. So what Mr. Reynold was doing, on the instructions of Mr. Williams, was to say that Mr. Brain accepted what counsel for the plaintiffs had said about the meaning of the article. The inference was that Mr. Brain as editor, and being a member of the National Union of Journalists, had published an article with such a meaning. Mr. Brain might have objected strongly, had he known what was going to be said, to being associated with this article, but he did not know. An application was made to the learned judge for the record to be withdrawn and it was withdrawn on the 20th June 1979.
There then remained the question of the undertaking. An undertaking was drafted by the solicitors for the plaintiffs and submitted for approval and signature. It was in these terms: "We undertake that we shall not publish or cause to be published further either by ourselves or by our officers, servants or agents, the libels set out in the Statement of Claim served by your clients in the above action or any similar libels upon your clients or any of them". The General Secretary asked Mr. Brain to sign it. Mr. Brain was not...
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