Captain Brian Leonard Friend v Civil Aviation Authority & Ors

Permission to appeal may be refused where a proposed action substantially duplicates existing litigation, concerns events many years earlier, and would impose disproportionate demands on the parties and the court. The court must apply the overriding objective in Civil Procedure Rules 1998, rule 1.1, including proportionality, expedition, fairness and the appropriate allocation of judicial resources. Article 6 does not require courts to permit litigation which is statute-barred, oppressive or disproportionate. Although concurrent causes of action may sometimes be pursued, the court must maintain a sense of proportion and may refuse permission where the substance of the complaint is already being litigated in other proceedings.

Captain Friend sought permission to appeal against an order of Sir Oliver Popplewell striking out his 1998 action. He alleged that the Civil Aviation Authority and its employees had subjected him to harassment and other wrongful conduct between 1990 and 1993, causing personal injury, including hypertension.

Earlier employment tribunal, Employment Appeal Tribunal and court proceedings had addressed aspects of his dismissal and related conduct. Two other actions concerning substantially the same events remained capable of being pursued, and the judge had also struck out those actions in a consolidated judgment. The central issue was whether permission should be granted despite the substantial overlap, delay, limitation concerns and anticipated litigation costs.

1. Application refused. Lord Justice Brooke refused permission to appeal against the striking-out order in the 1998 action.
2. The court was required to exercise its discretion in accordance with the overriding objective in Civil Procedure Rules 1998, rule 1.1. Relevant considerations included fairness to both parties, saving expense, proportionality to the amount and importance of the case, expedition, and the appropriate use of court resources.
3. The proposed action substantially replicated complaints advanced in the 1996 action, with the principal additional feature being a claim for personal injury allegedly caused by earlier harassment. The court recognised that authority may permit concurrent proceedings based on different causes of action, but held that this did not remove the need for a sense of proportion.
4. The events had begun more than eleven years earlier and ended more than eight years earlier. The proposed claim would require a preliminary limitation and causation inquiry, followed potentially by a trial, while substantially similar issues were already covered by other litigation. The court was entitled to consider the resulting burden on both the parties and the judicial system.
5. Article 6 of the European Convention on Human Rights did not require the court to permit the action to proceed. The court referred to Stubbings as recognising that courts may protect themselves and defendants from statute-barred claims, and may control litigation in other contexts.

• Court of Appeal (Civil Division): Sir Oliver Popplewell struck out the 1998 action. On 2 April 2001, Lord Justice Brooke refused permission to appeal.