Full case report
Lisle-Mainwaring v Associated Newspapers Ltd (CA)
Reference  EWCA Civ 1470
Court Court of Appeal
Judge Coulson and Newey LJJ
Date of Judgment 27 Jun 2018
Civil Procedure – Permission to Appeal – Application for Permission to High Court – Harassment – Media Harassment – Specific Disclosure – Test for Specific Disclosure
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.
- Whether permission to appeal had been validly granted.
- If not, whether permission should now be granted.
- Whether the substance of the appeal on the specific disclosure issue had been made out in any event.
- Permission to appeal had not been validly granted. The Court approved the practice identified by Warby J in Monroe v Hopkins (No 2). A party who wishes to appeal should first seek the permission of the judge against whom the appeal is sought to be made. This application for permission should be made at the handing down of the judgment. If the losing party does not know whether or not they want to appeal (or want to take advice on appeal) the correct course, is to ask the judge for an adjournment of that part of the hearing only, so that, if necessary, a later application can be made for permission to appeal.
- This procedure allows the successful party the opportunity of making submission on the application for permission to appeal and the importance of those submissions should not be understated.
- Taking into account the additional considerations in CPR PD52A para 13 that apply to appeals from case management decisions, there was no point of principle in issue and there was no other reason to grant permission in this case.
- In respect of the specific disclosure, the interface between standard and specific disclosure was clear and did not give rise to any difficulties in practice or principle. The Court considered that there was force in the Defendant’s argument that at least part of the reason for the application was to endeavour to resurrect part of the harassment case that had been struck out by HHJ Moloney QC (contact made with the Claimant by journalists seeking to put allegations for comment). A number of the categories were held to be too unspecific or wide to warrant an order for specific disclosure.
Although the judicial retirement issue is unusual and unlikely to reoccur (the problem arose in part because Sir David Eady handed down judgment on a Friday, his last day of sitting prior to retirement and the day before his 75th birthday on Saturday), the case provides clear guidance about applying for permission to appeal to the lower Court.
Permission to appeal applications must be made at the hearing and to the judge. If there is a reason why that cannot be done, then that part of the hearing must be adjourned. The fact permission was not requested inter partes before the Judge at the hearing resulted in the purported permission being treated as invalid.
The Court of Appeal also note (at paragraph 21) the importance of the potential respondent’s submissions opposing permission to appeal and that this may have an important bearing on whether or not permission to appeal is granted or not.
The Judgment also goes through the various categories of documents that were requested on the specific disclosure application. Although these are fact specific, there are a number of useful general observations for those resisting specific disclosure applications about relevance and categories being too widely drawn.
Reynolds Porter Chamberlain LLP
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