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 HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Gray)

		The Royal Courts of Justice Strand London WC2 Friday 16th August, 2002

1. LORD JUSTICE ALDOUS: This is an application for permission to appeal against the order made by Gray J, sitting in the Queen's Bench Division, dated 20th May 2002. These proceedings are concerned with a libel action in which the claimant, Mr Pepin, claims damages for libel. There is also a Part 20 claim by the defendant, Mr Taylor.
2. The order for which permission to appeal is sought was made in a case management conference. In that order the judge allowed Mr Pepin 21 days from the date of the order to re-amend his statement of claim to reflect the decisions that the judge had made having gone through his pleading. There is no appeal sought against that part of the order.
3. The appeal is sought against that part of the order that gave judgment for Mr Taylor, the defendant, on his Part 20 claim and also against dismissal of Mr Pepin's appeal against an order of Master Foster of 1st February 2002 which ordered the case to be transferred to Leicester.
4. The action was started on 29th May 2002. It concerns events which have taken place on the Internet. The dispute concerns a number of electronic messages that had been passed between the parties in the form of e-mails and newsgroup messages via the Internet. As I have said, Mr Pepin claimed damages from Mr Taylor in respect of alleged libels. The judge said that Mr Taylor's remarks were made in response to electronic postings, allegedly from Mr Pepin and emanating from his computer. Mr Taylor alleges that Mr Pepin posted and disseminated draft writs threatening to sue him.
5. The Part 20 claim for which judgment was given alleges that the claimant, Mr Pepin, published in a Usenet newsgroup defamatory words which alleged that the defendant was insane and an ex-prisoner. The words were alleged to have been understood to refer to the defendant because they were published in response to a posting generated by the defendant from his e-mail address roger@volney.freeserve.co.uk.
6. The pleading goes on to set out allegations as to how that posting would be known to refer to the defendant. The judge said this:

"I enquired of Mr Pepin what was the factual basis for those allegations. Mr Pepin conceded that it may have been that Mr Taylor was looking for a psychiatrist not for his own treatment but for treatment of a friend. It is in my view plain that Mr Pepin has no basis for any allegations concerning Mr Taylor's sanity.

Similarly, in relation to the allegation that Mr Taylor is an ex-convict, Mr Pepin admits that he made that allegation in an attempt to undermine him. There is therefore no possibility, as it appears to me, of any substantive defence of justification succeeding. No other substantive defence is relied on. The point that Mr Pepin took when I indicated to him that I was minded to consider an application to strike out his defence to the Part 20 claim, pursuant to Part 24 of the CPR, was to argue that Mr Taylor was not identifiable in the publication complained of. That appeared to me to be a proposition with no realistic prospect of being accepted by a jury, not the least in the light of Mr Pepin's case that millions of readers have access to the postings on the Web.

Moreover, it emerged in the course of discussion that a writ or a draft writ naming Mr Taylor had been posted on the News Net News Group Web. It does not matter, for the purposes of the law of libel, who posted the writ. The fact is that Mr Taylor was identified. Whilst I readily accept that there may not have been many who were able to identify Mr Taylor as the person said to be an insane ex-prisoner, I am quite satisfied that there would have been some. It follows that there is in my judgment no real prospect therefore of Mr Pepin successfully defending the Part 20 claim, save as to damages."

7. Mr Pepin has appeared before me today. He has drawn to my attention the fact that he appeared before Gray J at a case management conference. He said that he was a litigant in person and he did not understand the judge's questions and observations, and did not realise that what was being contemplated was that judgment should be given in favour of the defendant on the Part 20 claim.
8. Since then he has considered the substance of the judge's judgment. He has told me that the draft writ to which the judge referred was not posted other than as an e-mail. In those circumstances it was not published and the judge was mistaken. He also says that there is evidence that he would wish to put before the court as to the sanity and of the statements that the defendant has made throwing light on whether he is an ex-prisoner.
9. He drew to my attention the fact that the pleading does not refer to the writ that the judge had in mind. He also says that there was no evidence before the judge that the e-mail address, roger@volney.freeserve.co.uk, would in fact be recognised as being the address of the defendant, and on that basis the judge could not have come to the conclusion that he did.
10. In my view there is a real prospect of an appeal succeeding on this point. There was no real evidence before the judge relating to the plea of justification. In those circumstances the judge may have come to a premature conclusion without evidence.
11. I turn to the second point. The judge had to consider an appeal by Mr Pepin against the decision of the Master to transfer the case to Leicester. That is the home town of the defendant. The reason why the Master decided to transfer the case to Leicester was because that was the home town of the defendant, and he had stated that he was impecunious and therefore could not afford to litigate in London.
12. Gray J dismissed that appeal upon this basis:

"I find it impossible, carrying out my review function, to say that the Master erred in principle or that he was plainly wrong in the way that he exercised his discretion. Accordingly, I dismiss the appeal. The case will, as the Master directed, have to proceed in Leicester."

13. This is an application for a second-tier appeal. Therefore CPR Part 52.13 applies and this court will not give permission unless it considers that the appeal will raise an important point of principle or practice or there is some other compelling reason for the court to hear the appeal.
14. I have come to the conclusion that there is a compelling reason for this court to hear the appeal. Before the Master there was evidence as to the difficulties that the defendant says that he would be in. However, before the judge there was extra evidence put in by Mr Pepin which threw doubt upon the veracity of the statements made by the defendant. The judge did not refer to that evidence and appears not to have taken it into account. In those circumstances, I believe it right that this court should review the matter upon the basis of the totality of the evidence that was before the judge.
15. I therefore grant permission to appeal on both points.
ORDER: Application for permission to appeal granted. (Order not part of approved judgment)