England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
SWANSEA DISTRICT REGISTRY
(HIS HONOUR JUDGE JONES)

		Royal Courts of Justice Strand London WC2 Tuesday, 31 July 2001

1. SIR MARTIN NOURSE: These are three conjoined applications by the Claimant in a defamation action which, in substance, are all directed towards obtaining permission to appeal against a summary dismissal of the action by His Honour Judge Graham Jones, sitting as a judge of the Queen's Bench Division in Cardiff, on 5 February 2001.
2. The hearing below, at which the Claimant appeared in person, took place on 6 and 7 November 2000. The Judge reserved judgment and then deferred its delivery so that he could consider the decision of this court in Safeway Stores Plc v Tate, in which judgment was given on 18 December 2000. The Claimant's applications to this court were fixed to be heard on 2 April last, but on Thursday, 29 March Ward LJ, having learned that judgment was soon expected in another case in this court, Alexander v The Arts Council of Wales, in which the implications of the Safeway decision were likely to be considered, directed them to be taken out of the list. Regrettably, that direction does not seem to have been communicated to the Claimant in time to prevent his attendance here on Monday, 2 April when he was simply informed, without being given any reason, that the hearing had been adjourned. Judgment in the Alexander case was delivered on 9 April.
3. The Judge gave a clear and careful judgment running to 39 pages in which he started by dealing thoroughly with the background to the case and the history of the action. For today's purposes, repetition is unnecessary. It is enough to read paragraph 7 of the judgment:

"The Claimant's case in the present proceedings is that on 3 August 1992 the Defendant wrote and published of him to Police Officers of the South Wales Constabulary defamatory words to the effect that she had never been involved in a romantic relationship with him; that he is fixated with her; and that she has concerns for her safety should he be released from prison. Between August 1990 and January 1993 she spoke and published to Police Officers the like defamatory words. In publishing these words the Defendant was actuated by express malice. Her denials of their relationship have, on various occasions, caused him to be branded as `deluded' and `obsessed'. Her concealment of their relationship at the time of his criminal trial led to false diagnoses of delusions about her, causing medical opinion to mistake his symptoms for a far less severe condition than that which later came to light. The Parole Board reached its conclusions based on the Defendant's version of events. The denial of the relationship and the various defamatory statements led to refusal of parole and the Claimant's continuing incarceration."

4. I will go at once to my principal concern about the Judge's decision. Under the heading "Jurisdiction" he started by considering whether he should entertain the Defendant's application at all. Having considered that matter and having referred to the Safeway case, he said in paragraph 27:

"I am satisfied that I do have jurisdiction to entertain the Application which was issued after the Act came into force. Moreover I am expressly required to hear and determine it without a jury. C.P.R. Part 53 and the Practice Direction to it contains the relevant Rules of Court. There has been compliance with these Rules."

5. Next, the Judge considered whether he should hear and determine the application having regard to the earlier decision of this court, given on 27 November 1997, refusing to strike out the action under the old rules. He considered section 8 of the Defamation Act 1996, the decision of this Court in Swain v Hilman and Gay [2000] PIQR Pt II, 51 and CPR Part 24. He contrasted the old "bound to fail" test with the new "no real prospect of success" test. In paragraph 36 he said:

"I conclude that I should hear and determine the application because the test now to be applied is significantly different from the approach to be adopted at the time of the Court of Appeal's decision."

6. My concern is that, while the Judge's conclusion under the new test may well have been entirely correct, there appears to have remained a question of discretion as to whether it was appropriate, in the light of this Court's earlier decision, to go ahead and deal with the matter summarily, even though there had been a change in the law meanwhile. As I read his judgment, the Judge did not consider without there was such a discretion and, if so, whether he should exercise it or not. Rather, he assumed that he was bound to go ahead and redetermine the question whether there should be a trial or not by applying the new test.
7. I am very far from certain that this is a point on which the Claimant will succeed on an appeal to this court, but I cannot say that he has no real prospect of success on that ground. It is a sufficient ground for him to be granted permission to appeal. I should add that he has put in very detailed grounds of appeal and a skeleton argument, and that today he started to read me an 11 or 12 page precis which modifies the grounds of appeal and skeleton argument in certain respects. However, I was not able to hear the major part of that because it would not have been possible to complete the reading within the allotted time for the application. At this stage I say no more than that the Claimant appears to have raised a large number of grounds which have no hope of success at all.
8. I believe that I have identified one of the only two grounds on which the Claimant, might have a chance of succeeding on an appeal. The other is the question whether the Judge dealt adequately with the plea of express malice; which is quintessentially a jury question; see paragraph 64 of his judgment. To this question the decision in the Alexander case may be relevant.
9. For the reasons I have given I propose to grant the Claimant permission to appeal and I will direct that the appeal shall be heard by a two judge court. I should have added that the applications for permission to appeal against the orders dated 27 February and 22 March 2001 will both be dismissed. I have told the Claimant that his permission to appeal against the order of 5 February, which is the order in respect of which I do grant permission, will enable him, amongst other things, to question the learned Judge's order for costs.
Order: Application re order dated 5 February 2001 granted; applications re orders dated 27 February & 22 March 2001 refused; copy of the judgment to be provided to the Applicant at public expense.