England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUUEN'S BENCH DIVISION
(Sir Oliver Popplewell)

		Royal Courts of Justice Strand London WC2 Monday 2 April 2001

Monday 2 April 2001

1. LORD JUSTICE BROOKE: This is an application by Captain Friend for permission to appeal against a judgment of Sir Oliver Popplewell in which he struck out Captain Friend's action, which was commenced by a writ issued 27 August 1998 ("the 1998 Action").
2. Captain Friend was employed by the United Kingdom Civil Aviation Authority as a flights operation inspector in the Safety Regulation Group at Gatwick Airport. As I understand it, he was employed on 2 March 1987. Between 1990 and 19 March 1993 he was in dispute with his employers about a number of matters, and ultimately he was dismissed on 1 March 1993.
3. There was then a long hearing before an industrial tribunal in May 1994. The Tribunal ultimately held that Captain Friend's dismissal had been procedurally unfair but that he had made a contribution of 100 per cent to his dismissal, and they were therefore not willing to award him any compensation. He appealed to the Employment Appeal Tribunal. His appeal was dismissed on 24 July 1995, and this court refused permission to appeal on 22 February 1996.
4. One of the actions he brought was an action against his union for failing to conduct proceedings properly on his behalf, but that action was dismissed by a deputy judge in September 1998 and he was refused permission to appeal.
5. In September 1995 he brought two libel actions, one against the Civil Aviation Authority and one against six employees of the Civil Aviation Authority. On 29 January 1998 a division of this court (of which I was a member) struck out those actions on the basis that he had consented to the publications in question in the context of disciplinary proceedings. We were not willing to strike the proceedings out (as we were urged to do) on the grounds of abuse of process or issue estoppel relating to issues decided by the Industrial Tribunal.
6. Captain Friend has brought at least three more actions in relation to the events between 1990 and 1993 which I have described. The first is an action against the Civil Aviation Authority, which he started in 1996. I understand that he claims £1m in that action (not including loss of pension) for conspiracy, malicious falsehood, breach of contract and attempts to induce breach of contract; and he alleges wrongful conduct in that the defendant not only caused his dismissal but caused the matters which the Tribunal later found to represent behaviour of his which contributed 100 per cent to that dismissal. That is "the 1996 action". He has also brought a quite separate defamation action against senior civil servants, relating to letters from successive chairmen of the Civil Aviation Authority which were published. That raised quite separate issues, although they are tied up with the same troubles that Captain Friend experienced with the Civil Aviation Authority. At the same time as he struck out the 1998 action, Sir Oliver Popplewell also struck out those two actions, in a consolidated judgment. In so doing, he expressed doubt about the correctness of the decision of this court in relation to the abuse of process and issue estoppel issues on which we ruled in January 1998.
7. I have granted Captain Friend permission to appeal in the 1996 action (in which he has the benefit of legal aid and representation by solicitors and counsel) and in the 1997 action, but I refused him permission to appeal in relation to the 1998 action. He has now exercised his right to renew that application before me in court.
8. The gist of his complaint is that, by reason of the defendants' wrongful behaviour and behaviour in breach of contract, he suffered personal injury. He asserts that it was a term of the contract that his employers would exercise reasonable care to ensure that he was not unlawfully and maliciously subjected to victimisation, harassment, or detrimental and degrading treatment while in their employment; would provide him with a workplace and colleagues who would not inflict this treatment on him; and would provide him with a work environment which would not damage or place at risk his health or well being. He asserts that by reason of his employers breaching that contract he was subjected to victimisation and harassment between 1990 and February 1993, as a result of which he suffered personal injury. The writ, as I said, was issued on 27 August 1998.
9. Sir Oliver Popplewell dealt with the 1998 action on pages 31 to 35 of his judgment. He referred to the submission of counsel that the duplication of proceedings in the 1996 and 1998 action would be oppressive and vexatious for a number of reasons. Captain Friend had said that, if the actions were consolidated, he would be happy to act in person if that was necessary. Sir Oliver Popplewell then referred to the distinction in the 1998 action between the claim for negligence and the claim for personal injury which it gave rise to. He listened to submissions by counsel based on issue estoppel and the principles of Ladd v Marshall in relation to Captain Friend's desire to adduce additional evidence. He went on to rule that the question of issue estoppel was not affected by this new evidence. I have made clear that I have already given permissions for those issues to be relitigated in this court in the context of the 1996 action.
10. Sir Oliver Popplewell then summarised Captain Friend's submissions by saying that he maintained that the CAA and their staff were "conducting a malicious campaign of vilification against him as a result of which he suffered from personal injuries". He recited counsel for the defendant's arguments. The first was that the Limitation Act applied. In relation to that, and to a claim by Captain Friend that he had knowledge of this injury only in 1998, counsel had referred to the fact that Captain Friend had 142 sick days recorded in a period 1990 to 1992, and to a memo that he wrote in 1991 suggesting that his sickness had been aggravated by the stress he had been forced to work under. The judge, however, said that he did not think it would be proper to strike out a personal injury claim at this stage simply on the basis of a limitation and causation point. Counsel's arguments seemed to him to be very strong, but the limitation point would require further evidence as to Captain Friend's medical condition in 1990 onwards - what the doctor now suggested was the effect and causation of the blood pressure - a matter for further ancillary litigation which would have to be resolved with further evidence being called if the judge allowed the 1998 action to proceed. In other words, Sir Oliver was contemplating a preliminary limitation issue having to be decided in the context of the 1998 action, but he was disposed to strike it out because of the view he had taken in relation to issue estoppel.
11. As I have said, although the matters at issue occurred a very long time ago and this case has been very frequently dealt with by tribunals and courts, I have granted Captain Friend permission to appeal in relation to the 1996 action. In the 1998 action, the difficulty that he encounters seems to me to be that, to a great extent, his complaints are a replica of the matters of which he complains in the 1996 action, with the single addition of his claim for damages for personal injury. In that context, because of a recent decision of the House of Lords, he also wishes to have permission to amend his claim now, if it is allowed, to proceed to bring in a separate cause of action relating to these injuries.
12. In support of his contentions (and it has been a feature of his submissions, at any rate to this court, that they have been clearly set out and backed by authority) Captain Friend refers to Article 6 of the European Convention of Human Rights, which gives people a right to a fair hearing in the determination of their civil rights. He maintains that if this action is struck out, that would be a violation of his civil rights. On the other hand, in limitation matters, the Court of Human Rights in the case of Stubbings made it clear that courts are entitled to protect themselves, and to protect defendants, from cases which are statute-barred; and in other contexts the European Court of Human Rights has upheld the power of the courts to control the litigation before them.
13. I have to ask myself whether in all the circumstances it is appropriate now, in April 2001 - over eleven years after the course of conduct of which Captain Friend complained started, and over eight years after it came to an end - to grant permission to appeal against Sir Oliver's striking out order in this case, bearing in mind that Captain Friend contends that he had no knowledge that the harassment to which he was subjected between 1990 and 1993 caused him the particular type of injury complained of (namely high blood pressure) until 1998. For this he relies, first, on a letter from a doctor in Axminster, who wrote on 6 October 1998:

"Captain Friend has been a patient of mine for nine months. He has recently been diagnosed as needing treatment for his blood pressure which has necessitated his taking regular medication. His blood pressure has been contributed to by the chronic stress that he has been under since 1990. Although it is not causative, it is certainly an important factor in its pathogenesis and I would recommend that Captain Friend is not exposed to any unnecessary further stress and worry if it can be avoided."

14. A more recent letter from the same doctor, dated 23 March 2001, says that Captain Friend had been suffering from the effects of hypertension:

"His blood pressure was first noted to be raised after a screening check undertaken in 1998. Blood pressure can come on when one is under constant stress, can be asymptomatic and notoriously can come on and present itself when persons have strokes or heart attacks as a result of a chronically raised pressure."

15. After a couple more sentences of general observation, he says:

"Captain Friend has experienced no symptoms such as those delineated above until the quiescent hypertension in his case emerged during the course of an induction medical examination when he came under our care in Axminster. He had experienced no symptoms referable to the blood pressure until this asymptomatic finding was noted.

I hope this will explain to the Court the somewhat baffling presentation of hypertensive disease."

16. Captain Friend has submitted to me today that, in the light of the complaint that he makes about bullying and harassment, although it occurred years ago, it would be totally unjust for him now not to proceed with an action which, if it was allowed to proceed, could not come to trial until next year at the earliest, over ten years after the events in which he would be claiming that his blood pressure, diagnosed in 1998, was caused by the harassment to which he was submitted between 1990 and 1992. He would also submit that he suffered no other personal injury as a result of that harassment of which he would have had knowledge at the time. He certainly had knowledge of the harassment at the time, such as would mean in the ordinary course of things that the limitation period should expire in February 1996 at the very latest.
17. I have to remind myself now of the overriding objective of the courts under the Civil Procedure Rules, which is set out in CPR 1.1, and which every court in making discretionary decisions, including this court, has to abide by.

"1.1(1) The Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2) Dealing with a case justly includes, so far as it is practicable -

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate -

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court's resources while taking into account the need to allot resources to other cases."

18. As I have already said, Captain Friend is being allowed to challenge the other two decisions by Sir Oliver which relate to the way that he was treated in the years which led up to his dismissal and (in the libel action) the complaint that he made about matters which were said about him by successive chairmen of the Civil Aviation Authority relating to those events. He is claiming £1m in the 1996 action.
19. Exercising my discretion in accordance with the Civil Procedure Rules, knowing very well what would be involved if this action would be allowed to proceed to the preliminary issue which Sir Oliver envisaged and then on to trial, in my judgment this is not a case in which I should grant Captain Friend permission to appeal against the decision in the 1998 action. The courts have to deal fairly with both parties to this litigation. I have allowed him to continue to seek the redress that he claims is his in two other actions. It is true that he refers to authority which says that parties are allowed to bring concurrent actions in relation to different causes of action, but one has to take a sense of proportion in all this, and the courts are loath to allow actions to start for the first time long after the events in question, when the substance of the matters of which complaint is made is already covered in earlier litigation which is before the courts.
20. For those reasons I refuse permission to appeal in relation to the 1998 action.
ORDER: Application refused