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Steve Underhill’s name cleared as King Edward I magazine libel case settled

It had previously been ruled by a High Court judge that defamatory remarks made in the society’s quarterly magazine King’s Messenger did not enjoy qualified privilege with regard to 13 copies issued to non members.

As reported in Heritage Railway issue 140, the 6024 Locomotive Society Limited, was bracing itself for a substantial ‘six figure’ legal costs bill because it was backing the magazine editor, spokesman Dave Fuszard said.

Widespread speculation that the locomotive itself may have to be sold to pay the bill, said to run well into six figures, has been mounting.

A statement read out in the High Court in settlement of the case is reproduced as follows:

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION
B E T W E E N STEPHEN UNDERHILL (Claimant) and TIMOTHY WATSON

(Defendant)

 Counsel for the Claimant (Stephen Suttle QC): My Lord, in this matter I appear on behalf of the Claimant, Mr Stephen Underhill.

From 1991 until 3 October 2007 Mr Underhill was the Chairman and Engineering Manager of the 6024 Preservation Society, a charitable body which preserves and operates the Great Western Railway ‘King’ Class steam locomotive, no.6024 King Edward I. In that capacity Mr Underhill put in countless hours of dedicated work on the locomotive on a voluntary basis.

At all relevant times Mr Underhill was also employed as a boiler-smith and fitter at Tyseley Locomotive Works, which restores and maintains steam and other locomotives and rolling stock; and Mr Underhill thus carried out very many hours of work on the locomotive in his capacity as a Tyseley employee, in addition to the work which he carried out on a voluntary basis.

 For Mr Underhill’s work on the locomotive as a Tyseley employee, the Society was invoiced and Mr Underhill was paid by Tyseley. The practice was that Mr Underhill would log his Tyseley work on a timesheet; Tyseley would pay Mr Underhill, and then invoice the Society every month in respect of Mr Underhill’s time; and the invoices would be checked by Mr Underhill as Society Chairman and then passed for payment by the Society’s Treasurer, Mr Corser.

 It was not possible for Mr Underhill to work directly for the Society, as its Rules prohibited it from making direct payments to officers. Because of this, and because Tyseley employees were regularly expected to work evening or Saturday overtime in addition to their normal weekday working hours, everyone involved realised that there was potential for conflict of interest. To avoid this it was agreed in December 2002 that Tyseley could charge overtime rates when Mr Underhill worked evening or Saturday overtime on contracted work involving the locomotive; and subsequently it was agreed from time to time between Tyseley and the Society’s Treasurer that Mr Underhill could carry out work on the locomotive away from Tyseley on a contractual basis. Mr Underhill duly carried out much overtime work on this basis, for which Tyseley generously charged the Society only standard rates; and when he had completed the usual overtime period Mr Underhill often continued work on the locomotive on a voluntary basis.

At a meeting of the Society’s Management Board on 3 October 2007 the other members of the Board confronted Mr Underhill with allegations that he had logged to Tyseley, and hence been paid for, work which he should have carried out for the Society in a voluntary basis; and they left him with no choice but to resign immediately. Mr Underhill was given no warning of these allegations and was not given a proper opportunity to respond to them. Subsequently the Society published two press statements and two circular letters to members which were highly critical of Mr Underhill but all of which were wholly one-sided and gave Mr Underhill no opportunity to answer the criticisms made of him.

In fact, throughout the period Mr Underhill worked on the locomotive as a Tyseley employee, he logged on his Tyseley timesheets only that work for which he honestly believed that Tyseley were properly entitled to charge the Society; and, in addition to the work which he did log to Tyseley, he also worked innumerable hours on a voluntary basis – so much so that the locomotive took up almost all his leisure time..

In due course there appeared in the Autumn 2007 edition of the Society’s magazine King’s Messenger an Editorial written by the Editor, Mr Watson which effectively accused Mr Underhill of dishonestly enriching himself at the Society’s expense, and of thereby damaging the locomotive, disgracing the Society and having a massively detrimental effect on every member’s interests. Copies of the Editorial were published to over 400 of the Society’s members and also to a small number of non-members; whilst Mr Watson made similar allegations in three letters to one of the Society’s members. In none of these publications was any attempt made to put Mr Underhill’s side of the story or to give him a chance to respond to the very serious allegations made against him.

These devastating and very serious allegations against Mr Underhill’s honesty and integrity gave rise to this fiercely contested libel action in which, as well as suing Mr Watson, Mr Underhill also sued Mr Corser, who he believed had shared in responsibility for the publication of the Editorial. In response Mr Watson and Mr Corser not only pleaded a defence of privilege but also alleged that the allegation that Mr Underhill had behaved dishonestly was not only fair comment but was true. In reply Mr Underhill set out in great detail the reasons why he had not acted dishonestly or otherwise improperly; and he also contended that the words of which he complained were published maliciously.

By an interim judgment given on 27 May this year the Court ruled that Mr Corser had not taken part in the publication of the Editorial; but that the publication of the Editorial by Mr Watson to some recipients who were not members of the Society had not been privileged. 

In the aftermath of these and other rulings Mr Watson, whilst stressing that he honestly believed at the time that the allegations which he made against Mr Underhill were true, has agreed to withdraw the defences of justification and fair comment and to pay Mr Underhill damages in relation to the recipients who were not members and costs. In consequence Mr Underhill feels that his honesty and integrity have finally and completely been vindicated; and he has therefore agreed to withdraw these proceedings.