Friend v Civil Aviation Authority

Issue estoppel arises only where the issue essential to the later claim is the same issue that was litigated and decided between the parties in the earlier proceedings. The court must determine that identity through a careful examination of the earlier tribunal’s statutory task and actual decision.

A finding that an employee contributed 100 per cent to an unfair dismissal does not establish that the employer’s conduct caused none of the loss alleged in a later contractual or tortious claim. Nor should the extended abuse of process principle prevent litigation of an issue which the earlier tribunal did not determine, particularly where preventing the claim would cause injustice.

A former Civil Aviation Authority pilot brought two actions following his dismissal. The 1996 action alleged malicious falsehood, conspiracy, breach of contract and inducing breach of contract. It depended substantially upon his contention that the Authority unlawfully required him to participate in unsafe helicopter-inspection procedures.

An industrial tribunal had earlier found his dismissal procedurally unfair but, under section 74(6) of the Employment Protection (Consolidation) Act 1978, assessed his contribution to the dismissal at 100 per cent and awarded no compensation. Sir Oliver Popplewell struck out the 1996 action on the ground of issue estoppel. He also struck out a separate 1997 defamation action.

The central issue was whether the tribunal’s contribution finding had already determined that the claimant alone caused his dismissal and resulting loss, thereby precluding the civil claims.

1. Disposition. The Court of Appeal unanimously allowed the appeal concerning the 1996 action and reinstated it. The claimant withdrew his appeal concerning the 1997 defamation action. Permission to appeal to the House of Lords was refused.
2. Issue estoppel. Simon Brown LJ held that the industrial tribunal had never considered the merits of the helicopter-safety issue, including whether the claimant had been instructed to follow unsafe or unlawful procedures. An issue which was neither litigated nor decided could not be subject to issue estoppel. Chadwick LJ agreed. Applying the formulation in Arnold v National Westminster Bank Plc [1991] 2 AC 93, he emphasised that the court must carefully establish that the issue essential to the later claim is genuinely the same as the issue determined earlier.
3. The statutory contribution finding. Chadwick LJ explained that section 74(1) of the Employment Protection (Consolidation) Act 1978 first required the tribunal to determine whether some loss resulting from the unfair dismissal was attributable to the employer. Only then did section 74(6) require consideration of whether the employee caused or contributed to the dismissal and what reduction was just and equitable. A 100 per cent reduction could therefore be appropriate only exceptionally. It did not determine that no conduct by the employer caused the distinct loss alleged in the civil action.
4. Different legal inquiries. Simon Brown LJ held that the tribunal had considered the employee’s conduct immediately precipitating the procedurally unfair dismissal. It had not decided whether the employer’s antecedent conduct was tortious, contractual wrongdoing or an unlawful insistence upon unsafe working practices. Whether the claimant’s safety objections were justified lay at the heart of the civil claims and could materially affect the assessment of his conduct.
5. Abuse of process. The extended principle in Henderson v Henderson 1843 3 HARE 100 could not bar the action. The claimant could not properly be criticised for failing to pursue the safety issue before the tribunal, since the tribunal, Employment Appeal Tribunal and Court of Appeal had treated it as outside the scope of the unfair-dismissal proceedings. Consistently with Johnson v Gore Wood [2001] 2 WLR 72, preventing the claim would work injustice rather than justice.

1. Court of Appeal: The appeal concerning the 1996 action was allowed unanimously and that action was reinstated. The appeal concerning the 1997 action was withdrawn. Permission to appeal to the House of Lords was refused.
2. High Court, Queen’s Bench Division: Sir Oliver Popplewell, sitting as a deputy High Court judge, struck out the 1996 action on the ground of issue estoppel and the 1997 defamation action on the grounds of absolute privilege or, alternatively, abuse of process.
3. Earlier employment proceedings: An industrial tribunal found the dismissal procedurally unfair but assessed the claimant’s contribution at 100 per cent and made no compensatory award. The Employment Appeal Tribunal declined to entertain the safety case as a new issue, and the Court of Appeal subsequently refused permission to pursue that issue.