England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION
APPLICATION FOR PERMISSION TO APPEAL
EXTENSION OF TIME AND APPEAL TO FOLLOW
IF PERMISSION GRANTED
APPLICATION FOR PERMISSION TO APPEAL
WITH APPEAL TO FOLLOW IF PERMISSION GRANTED

		Royal Courts of Justice Strand London WC2 Friday, 2nd March 2001

1. LORD JUSTICE BROOKE: This is an application by Dr Ambroz Neil for permission to appeal out of time against paragraph 1 of an order of Mr Justice Burton dated 14th February 2000 which was amended under the slip rule on 30th June 2000 when he dismissed the action against the fourth and fifth defendants with costs. When the order was first drawn up the words "with costs" were omitted although they were clearly stated by the judge in his judgment. The judge corrected the matter during the course of the hearing on 30th June and the new order was drawn up on 7th July. This application for permission to appeal was lodged on 7th August.
2. The second application is an application for permission to appeal against Mr Justice Burton's order of 4th September 2000 when he set aside an order made without notice by Mr Justice Astill on 18th July 2000 when Dr Neil sought and obtained a removal of a stay of the proceedings made by an order of 14th March, an order that the plaintiff withdraw the libel action against the first, second and third defendants, and an order that the case was settled with leave to enforce outstanding orders for costs should it become necessary to do so. Reference was made to part of schedule to the consent order. Mr Justice Burton set aside that without notice order and Dr Neil seeks permission to appeal against that order.
3. When the matter came before Lord Justice Schiemann on paper he directed that Dr Neil should make these applications in court on the basis that if permission was granted the appeals would then follow. Three of the defendants are present in court. This is a ruling on the permission application.
4. The action has a very long history which it is unnecessary to refer to during the course of this judgment. It started when a writ was issued for defamation on 21st February 1997. The first to fifth defendants are executive members of the sixth defendant, an organisation called Families Need Fathers. Dr Neil was objecting to what was written in a special election edition of a journal called McKenzie that had been issued to members of that group.
5. There were quite a number of interlocutory skirmishes during the course of those proceedings. On at least three occasions there were orders that Dr Neil be paid his costs by one or other of the defendants. There were a number of hearings before Mr Justice Morland in 1998. There was an application for permission to appeal to this court on 17th September 1998 during the course of which Lord Justice Evans suggested that it might be an abuse of process to continue the proceedings. There were then a number of hearings before Mr Justice McKinnon between 4th December 1998 and 15th February 1999 when Mr Justice McKinnon ultimately ordered Dr Neil to pay the defendants' costs of three wasted hearings and stayed the action pending the payment of those costs. Ultimately, on 7th January 2000 the defendants' costs were paid in full.
6. On 14th February 2000 Mr Justice Burton came on the scene. Dr Neil was now applying for removal of the stay imposed by Mr Justice McKinnon and for permission to proceed to trial. Mr Justice Burton dismissed the fourth and fifth defendants from the action in any event with costs. The defendants were applying for the proceedings to be dismissed as an abuse of process - alternatively, an order that Dr Neil could proceed only if certain conditions were imposed - because they were concerned about his own financial viability and worried about proceedings being continued by a litigant about whose financial means there were questions.
7. Mr Justice Burton took the view that there should be careful consideration given as to whether conditions should be imposed both as to whether the stay should be lifted or, so far as the future conduct of the action was concerned, by case management. He adjourned the matter so far as it concerned the other four defendants for evidence to be filed concerning Dr Neil's intentions in relation to the action and his financial position so that the court could consider, under its new powers under the Civil Procedure Rules, whether to impose conditions equivalent to providing security for costs. He also directed that a late application made by the third defendant could be pursued at any adjourned hearing. That order was made on 14th February. It incorrectly stated that the claim against the fourth and fifth defendants was dismissed without including the words "with costs", and a timetable was set out in the rest of the order. There had been a hearing that lasted nearly five hours. The matter was then adjourned to the judge in charge of the jury list or to Mr Justice Burton, if available, to be heard with two other applications. That order was drawn up on 21st February.
8. The matter came back before Mr Justice Burton again on 14th March. On this occasion at the request of the parties he made a consent order which recited:

"Upon reading a letter from the sixth defendant and the claimant and the defendant having agreed the terms set forth in the schedule to this order by consent .... "

9. Then two orders were made, one in relation to a sum to be paid into court and the other the familiar direction in the context of a Tomlin order that -

"All further proceedings be stayed except for the purpose of carrying such terms into effect. All parties have permission to apply to carry the terms into effect."

10. There was a schedule that said -

"1. No further monies change hands between the four remaining defendants and the claimant;

2. The resolution of outstanding orders for costs is a separate issue not connected with the settlement;

3. The agreed statement is published prominently in the next issue of McKenzie and this is circulated to the recipients of the original article to the best of the defendant's ability."

11. There was an undertaking by the defendants not to publish an article referring either directly or indirectly to Dr Neil henceforth. The text of the statement was set out in the Tomlin order. It was to read:

"Dr Neil has agreed to withdraw his libel action against Families Need Fathers and the three remaining defendants, with all parties bearing their own costs. This action arose from articles published in February 1997. Allparties regret the publication of the relevant articles and the subsequent actions.

The defendants agree not to re-publish the relevant article or contents thereof henceforth."

12. There was a substantive order that all further proceedings be stayed save for the purpose of carrying their terms into effect.
13. The matter came back before Mr Justice Burton on 30th June. Dr Neil had made objection to part of the bill of costs submitted by the fourth and fifth defendants and sought to set off his costs under one of the earlier interlocutory orders to which I have referred. He referred to another of the interlocutory orders. He sought to have those costs set off against it. He referred to the order of 14th February as drawn which did not record the application as being dismissed against the fourth and fifth defendants with costs. It ws in that context that it was drawn to Mr Justice Burton's attention that his earlier order had not been drawn up correctly. It was amended pursuant to the slip rule.
14. The matter was then adjourned to enable Dr Neil to comment on the bill of costs submitted for the entire action. Before the hearing he had served bills of costs in relation to those three earlier interlocutory orders in his favour. After dealing with certain matters of detail the matter was then adjourned to continue in front of Mr Justice Burton on 14th July. The upshot of the order hearing on 14th July was a further complicated order by Mr Justice Burton relating to the on-going disputes as to costs, and saying that -

"any further steps by the claimant towards the assessment of enforcement of costs orders against the first, second, third and the sixth defendants be stayed with liberty to the claimant and those defendants to apply on 48 hours' notice for the removal of such stay

.....

The claimant's application for permission to appeal to the Court of Appeal against this order and the order of 30th June 2000 be refused and that the claimant be supplied at public expense with transcripts of the judgments of 14th February 2000 ..... "

15. Mr Justice Burton made that order on 14th July.
16. Without notice to the defendants Dr Neil applied to Mr Justice Astill who had had no previous acquaintance with this case at all. On 18th July he persuaded Mr Justice Astill that notwithstanding the order of Mr Justice Burton, which had not by that stage been drawn up, it was appropriate to remove the stay contained in the Tomlin order. Mr Justice Astill directed that that stay be removed and also directed that in compliance with the order of 14th March -(a) the plaintiff withdraw the libel action against the first, second, third and sixth defendants; (b) case settled so it is believed to enforce outstanding orders for costs should it become necessary to do so. [(a) and (b) above are not checked against order]. Paragraph 2 of the schedule to the consent order schedule reads:

"The resolution of outstanding orders for costs is a separate issue not connected with this settlement."

17. Dr Neil rationalised his going to Mr Justice Astill without any notice to the defendants as a quite new judge on the basis that Mr Justice Burton was not available. It did not occur to him to give notice to the defendants. He did not think it necessary to do so. He said in the statement that he agreed to withdraw his libel action against Families Need Fathers. He wanted to have an order of the court to that effect. That is why he went to Mr Justice Astill. The order as drawn had an effect on the enforceability of those three earlier interlocutory orders which Mr Justice Burton had been discussing four days before.
18. On 7th August Dr Neil decided to seek permission to appeal against Mr Justice Burton's order which had been made the previous February although it was corrected under a slip rule on 30th June. The matter then came back before Mr Justice Burton on 4th September. Mr Justice Burton was interested, understandably, in what had happened in relation to Mr Justice Astill without notice to the defendants. Dr Neil argued, as he has to us today, that he had been acting in accordance with the consent order and that the effect of the discontinuance of the action was to render these three earlier interlocutory orders payable. The defendants, for their part, argued that his actions had the effect of repudiating the terms of the consent order and, as the action had been dismissed, they were entitled to their costs for the entire action.
19. Mr Justice Burton formed the view that the application to Mr Justice Astill should not have been made ex parte but that the application had been made with the intention of rendering the three earlier orders enforceable and not in repudiation of the consent agreement. He ordered that Mr Justice Astill's order should be set aside. He reserved any further applications to himself. This is the second order against which Dr Neil seeks permission to appeal. Dr Neil says that Mr Justice Burton should not have set aside the order of Mr Justice Astill.
20. Dealing with the first of these matters - the challenge to the order dismissing the action against the fourth and fifth defendants with costs - in my judgment, this application has to be assessed on the basis whether Dr Neil has any real prospect of succeeding in a challenge to that order. I would not consider that any question of leave for an extension of time should affect the position if there is a real prospect of showing that the order should not have been made. I have read Mr Justice Burton's reasons for making the order dismissing the fourth and fifth defendants from the action. I have read Dr Neil's objection to that order and the reasons that he gives.
21. In my judgment, there is no real prospect of successfully having that order set aside.
22. What Mr Justice Burton said at page 10 of his judgment of 14th February was that it appeared that the role of these two defendants was very minimal indeed, if any, even on Dr Neil's case. The fourth defendant, Miss Lakey, was vice-chairman:

" ..... she is actively involved in the church and charitable work and is not effectively one of the more executive of the charity workers, nor experienced in organisation. Unfortunately, the then chairman died on August 5th 1996 unexpectedly, leaving her ..... as acting chairman, a role which she says she did not want. Indeed, as a result of her reluctance to remain as acting chairman, arose the election which is the subject-matter of the dispute which led to this election leaflet."

23. Mr Justice Burton then quoted her statement when she was saying that she knew a special election issue of the magazine was coming out. She knew nothing of its contents. She had never seen any McKenzie before its publication. To her knowledge none had ever been seen at a national council meeting before publication. She had not at that stage seen the magazine until it came by post that morning. Mr Justice Burton said:

"That is the only evidence in relation to [her] put in on either side, notwithstanding detailed pleadings, disclosure and the service of a considerable bulk of witness statements."

24. He then referred to the position of the fifth defendant who was responsible for the running of the London office whose day-to-day running was carried out by a paid employee, Mr Rate.
25. The judge set out the position vis-a-vis the fifth defendant. He had never seen the relevant copy of McKenzie before. He knew nothing about its contents. He did not approve the contents of the article. Dr Neil was asserting that on its limited evidence involving those two defendants rendered them liable to him as having authorised publication and circulation. The judge commented that although Dr Neil was putting the case on the basis that the fourth defendant was chairman of a charity this ignored the fact that this was a company limited by guarantee and not an incorporated association. He set out his reasons for deciding that there was no real prospect of success for the claimant against either of those two defendants.
26. I have read Dr Neil's challenge to that order which he sets out fully in his skeleton argument. He seeks to rely on certain principles of the law relating to company directors and suggests that the judge had disregarded both company and charity law.
27. In my judgment, the judge was entitled on the undisputed facts before him to reach the conclusion he did. The liability of any company director will depend on the relevant factual matrix. I see no real prospect of succeeding on an appeal against the judge's ruling.
28. I come to the challenge to the judge's second ruling. In my judgment, it was inevitable that Mr Justice Burton would set aside the order of Mr Justice Astill which should never have been made in the circumstances in which it was made. Dr Neil knew perfectly well that these issues and the issues relating to costs and the possibility of a set-off of costs in the interlocutory orders made in his favour were the subject of a hearing before Mr Justice Burton. In my judgment, it was quite wrong of him to go to another judge, ex parte, who would inevitably only be able to see part of a picture, and ask for the order that he did. Even if, as he assures us, Dr Neil was acting in good faith in taking the course he did, I have no doubt at all that Mr Justice Burton was entitled to set aside Mr Justice Astill's order to restore the status quo as it had been the last time the matter had been argued between the parties before him.
29. Accordingly, I consider that there is no real prospect of setting aside Mr Justice Burton's order. It was an order made by an experienced judge in the exercise of his discretion. He had power to make the order he did. This court can only interfere if he was clearly wrong or if he misdirected himself as to the law. In my judgment neither of those elements were present.
30. Dr Neil objects that the stay prevented him from complying with the terms of the consent order and was suggesting that Mr Justice Burton intended to overturn the consent order. This is a matter for argument in the courts below. What is crystal clear to my mind is that that order of Mr Justice Astill should never have been made without notice, and Mr Justice Burton was more than justified in setting it aside. For those reasons I would refuse permission to appeal on this application.
31. LORD JUSTICE NOURSE: I agree that for the reasons given by my Lord both these applications should be dismissed. There is nothing I wish to add of my own.
Order: Applications dismissed