The Claimant had made an application for specific disclosure for over 30 categories of documents within the context of a harassment claim brought against the Mail Online/Daily Mail in respect of media publications. The application was heard by Sir David Eady who gave judgment on Friday 23rd March 2018 refusing the Claimant’s application. This was the Judge’s last day of sitting prior to his retirement from judicial office.
At the hand down of the judgment, both parties were represented (but the Claimant’s counsel who had appeared at the hearing was not present). The Claimant’s solicitor did not ask for permission to appeal at the hearing. At 3.25pm the solicitors for the Claimant emailed the Judge asking for permission to appeal but inadvertently it was not copied to the Defendant’s solicitors. The Judge dealt with it on paper and purported to grant permission. The Judge wrongly believed that his authority to deal with the matter expired at midnight by virtue of his retirement (but in fact s.27 Judicial Pensions & Retirements At 1993 allows a Judge to continue to deal with ancillary matters).
There followed written submissions from both parties in which the Defendant contended that by virture of CPR 52.3(2) (and PD52A para 41) the application had to be made at the hearing and the Judge had no jurisdiction to grant permission after the hearing had concluded. The Judge said that he was unable to give a further ruling because his judicial authority had expired but expressed the view that if the Defendant was right, his grant of permission was invalid.
The Claimant contended permission had been validly granted; the Defendant’s position was the purported grant was invalid (or in the alternative invited the Court to set aside the PTA granted by the judge under CPR 52.18).
The primary basis of the underlying appeal was there was a lack of authority on the relationship between specific and standard disclosure and the tests were different.
The hearing was expedited by the Court of Appeal as the matter was listed for trial later in the year and the underlying issue was one of disclosure which may have affected the trial.
At the conclusion of the oral hearing on 24th May 2018, the Court of Appeal informed the parties that they did not consider permission had been granted and would not grant permission and they would provide reasons in due course.