Zipporah Lisle-Mainwaring v Associated Newspapers Ltd

Hearing date: Thursday 24th May 2018

Introduction

In 2015, the claimant came fleetingly to the attention of the public when she had the exterior of her mews house in Kensington re-painted in red and white stripes. The defendant is the publisher of The Daily Mail and maintains the internet website at www.dailymail.co.uk. In these proceedings, the claimant alleges that between April and July 2015, the defendant pursued a course of conduct which amounted to harassment contrary to Sections 1 and 3 of the Protection from Harassment Act 1997. The conduct complained of centres around articles published in both the Daily Mail and on the website about the repainting, and the reasons for it.

On 22 February 2018, the claimant sought an order for specific disclosure against the defendant. The application was heard by Sir David Eady on 21 March. Two days later, on 23 March, the judge gave judgment, dismissing the application. No application for permission to appeal was made at the hearing. Later that day, in a written application which was sent only to the judge, and not to the defendant, the claimant sought permission to appeal. Sir David was conscious that his judicial authority expired at midnight on 23 March by virtue of his retirement from judicial office and thought, wrongly, that he was therefore obliged to deal with that application that afternoon.

Thus, it was that, at about 4.25 pm on the evening of 23 March, Sir David purported to grant permission to appeal against his ruling, even though the defendant, not being aware of the application, had not provided any submissions in response. Once the position became clear, Sir David emailed the claimant's solicitors to indicate that, for a number of reasons, he probably should not have granted permission to appeal. It is the defendant's position that the purported grant of permission was invalid, and they maintain that, if and when this court considers the matter afresh, permission to appeal should not be granted. The claimant seeks to rely on the permission purportedly granted by Sir David Eady.

There are three broad issues before this court. They are:

(a) Whether permission to appeal has already been validly granted;

(b) If it has not, whether permission to appeal should now be granted;

(c) Whether the substance of any appeal has been made out in any event.

At the conclusion of the hearing on 24 May 2018, the parties were informed that:

(a) We did not consider that permission to appeal had been validly granted;

(b) We did not consider that permission to appeal should be granted by the Court of Appeal;

(c) In reaching our conclusions on the permission application, we had concluded that the substance of the appeal had not been made out.

We said that written reasons for these conclusions would be provided to the parties following the short vacation. Those reasons are contained in this judgment.

Has Permission To Appeal Already Been Validly Granted?

The Facts

As noted above, the hearing of the claimant's application for specific disclosure took place on Wednesday, 21 March 2018. Sir David Eady reserved judgment, and it was agreed that judgment would be given orally on 23 March 2018. On that morning, Sir David gave an oral judgment, which has been subsequently put into an approved written form. It runs to 51 paragraphs. For the detailed reasons set out there, he dismissed the claimant's application.

At the hearing on 23 March, both parties were represented (although the claimant's counsel, who had appeared at the hearing two days before, was not present). The claimant's solicitor did not raise the question of an appeal, nor did she indicate that she wanted that aspect of the hearing to be adjourned so that an application for permission to appeal could be considered. However, at 3.25 pm on that Friday, the claimant's solicitors sent an email to the Queen's Bench Division List Office, with a message to be passed on to the judge, asking for permission to appeal. Three grounds were identified in the email. They were as follows:

“1. You misconstrued the scope of the pleaded issues as set out in the Statement of Case served in the action and did not properly take into account that both knowledge and motivation of the journalists writing the articles were relevant to those issues;

2. You failed to identify that the documents requested are disclosable and mistakenly proceeded on the basis that the documents requests were not identified with enough specificity for the purposes of an order for specific disclosure; and

3. You failed to appreciate that the scope of disclosure on a specific disclosure application is broad, includes the possibility of directing a party to carry out a search for documents which lead to a train of enquiry as set out in Practice Direction 31A 5.4, and to take into account all the circumstances of this case and the overriding objective (including for parties to be on an equal footing).”

This email was not sent or copied to the defendant's solicitors. This has been described by the claimant's solicitors as inadvertent. This omission means that at the relevant time, the defendant had no idea of what was going on. It is clear from his later email that Sir David Eady, not unreasonably, believed that the defendant was aware of the application.

Sir David dealt with the application about an hour later. He later explained that he purported to grant permission immediately because, even though he accepted that he did not have the benefit of submissions from either counsel, “I had to respond urgently because time was running out”. This was a reference to the fact that his authority to act judicially expired at midnight on 23 March by virtue of his retirement. In fact, Sir David was wrong about that: under s.27(1) of the Judicial Pensions and Retirement Act 1993, he had the power to deal with all “ancillary matters” arising from the hearing, which would plainly include the refusal or grant of permission to appeal.

As a result of this misapprehension, Sir David purported to grant permission to appeal late on the afternoon of 23 March. His reasons were stated as follows:

“The points raised are arguable and there is a lack of authority on the relationship between standard and specific disclosure.”

It is also right to note that the form on which his reasons for allowing permission were stated was not in the current N460 form.

Once the dust had settled, and following short written submissions on the issue from both parties, on 10 April 2018 Sir David emailed the parties to make plain that he understood his authority to do anything further in the case expired at midnight on 23 March, which was why he had acted as he had done. He said that the fact that the defendant's advisers had been wholly unaware of the application was unfortunate. He went on to say that, although he could not give a ruling on the matter, it seemed to him that CPR 52.3(2) and paragraph 4.1 of Practice Direction 52A meant that a judge could only grant permission at a hearing, and had no jurisdiction to do so after the hearing had concluded. He said that if this was right, his grant of permission was invalid, and that it would then be for the claimant to apply to the Court of Appeal for such permission.

The Law

CPR 52.3 provides as follows:

“ Permission to appeal

52.3

(1) An appellant or respondent requires permission to appeal—

(a) where the appeal is from a decision of a judge in the County Court or the High Court, or to the Court of Appeal from a decision of a judge in the family court, except where the appeal is against—

(i) a committal order;

(ii) a refusal to grant habeas corpus; or

(iii) a secure accommodation order made under section 25 of the Children Act 1989 or section 119 of the Social Services and Well-being (Wales) Act 2014 or;

(b) as provided by Practice Directions 52A to 52E.

(Other enactments may provide that permission is required for particular appeals.)

(2) An application for permission to appeal may be made—

(a) to the lower court at the hearing at which the decision to be appealed was made; or

(b) to the appeal court in an appeal notice.

(Rule 52.12 sets out the time limits for filing an appellant's notice at the appeal court. Rule 52.13 sets out the time limits for filing a respondent's notice at the appeal court. Any application for permission to appeal to the appeal court must be made in the appeal notice (see rules 52.12(1) and 52.13(3)).)…”

Practice Direction 52A provides as follows:

“ Where to apply for permission

4.1 An application for permission to appeal may be made–

(a) to the lower court at the hearing at which the decision to be appealed against is given (in which case the lower court may adjourn the hearing to give a party an opportunity to apply for permission to appeal); or

(b) where the lower court refuses permission to appeal or where no application is made to the lower court, to the appeal court in accordance with rule 52.12.

…

Appeal in relation to case management decision

4.6 Where the application is for permission to appeal from a case management decision, the court dealing with the application may take into account whether –

(a) the issue is of sufficient significance to justify the costs of an appeal;

(b) the procedural consequences of an appeal (e.g....