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
(Mr Justice Gray)

		Royal Courts of Justice Strand London WC2A 2LL Tuesday, 19th March 2002

Tuesday 19th March 2002

1. LORD JUSTICE PETER GIBSON: The claimant, Leon Goldman, applies for permission to appeal out of time from the order of Gray J on 7th December 2001. Thereby the judge refused Mr Goldman permission to appeal and ordered him to pay the costs of the respondents, Henry Lee and Enfield and Harringey Health Authority. Mr Goldman had 14 days in which to lodge his Notice of Appeal. He in fact did so on 3rd January 2002. He explains the delay by the late receipt of documents in respect of an application by him for the remission of fees. Given the comparatively short delay and that it was over the holiday period, I would not hold that delay against him.
2. The background to the case is that Mr Goldman was dismissed as long ago as 23rd June 1992 from his position as the director of human resources for the North London Joint College of Health Studies, part of the predecessor of the Health Authority. He brought defamation proceedings in 1994 against a number of people including Mr Lee, whom he accused of sending a typewritten letter dated 27th August 1993 to Mr Goldman's employer. He says that that letter was libellous. The letter on its face is from a Mr McDonnell, not from Mr Lee, who denies being the author of the letter. Mr Lee applied to strike out the claim under section 8 of the Defamation Act 1996 as having no reasonable prospect of success. That application came before Master Tennant who struck out the claim on the ground that there was not enough evidence to support the claim. The Master refused permission to appeal.
3. Mr Goldman then applied to Gray J for permission. The respondents were given notice of the hearing and chose to submit a skeleton argument and to appear by counsel on the hearing of the application. The judge in his judgment considered the evidence and the various points taken by Mr Goldman, who appeared in person before him, but the judge refused permission to appeal, saying that on the material presented to the court the prospect of Mr Goldman succeeding in discharging the onus on him to prove that Mr Lee was the author of the letter was remote.
4. Mr Goldman then sought permission to appeal. The judge told him that he could not give Mr Lee permission. Counsel for the respondents then asked for costs. She pointed out to the judge that it was unusual to ask for costs on such an application, but she said that it was a case with a complicated history, and she referred to cases brought by Mr Goldman before the Employment Tribunal, and in one case taken up to the EAT, alleging discrimination and wrongful dismissal. She also pointed out that nine libel actions had been struck out. Mr Goldman drew the attention of the judge to the fact that he had received a standard form letter from the Civil Appeals Office in which he was told:

"The attendance of the Appellant is required.

The respondent(s) may attend or submit written representations before the hearing but will not usually be awarded the costs of doing so."

5. Mr Goldman told the judge that there was no possibility of him paying costs orders. Indeed, counsel for the respondents had told the judge that the costs awarded against Mr Goldman in earlier proceedings were in six figures. Mr Goldman has told me today that for the most part those costs have not yet been taxed. The judge nevertheless decided to make an order for costs against Mr Goldman.
6. Mr Goldman in his Appellant's Notice took a number of points going to the substance of the case. In addition he also gave as a ground for appeal that the judge wrongly gave the respondents their costs without identifying any special circumstances making the situation abnormal.
7. The Civil Appeals Office drew Mr Goldman's attention by letter dated 18th January 2002 to section 54(4) of the Access to Justice Act 1999. On the basis of that statutory provision Mr Goldman now accepts that he could not seek permission to appeal on any ground relating to the substance of his case against the respondents. In truth Mr Goldman has reached the end of the road with the judge's refusal of permission to appeal. However, that consideration does not apply to that part of the order which relates to costs. The judge plainly had a discretion whether to make an order for costs in favour of the respondents. The Civil Appeals Office letter is no doubt accurately based on what has in fact occurred on applications for permission to appeal, but it is not based on any rule or practice direction, and in any event it does not purport to state that the discretion vested in the judge is in any way excluded.
8. What Mr Goldman has to show is that arguably the judge erred in principle or was plainly wrong in the exercise of his discretion in ordering the unsuccessful party, that is to say Mr Goldman, to pay the costs of the successful parties, that is to say the respondents. That is a difficult hurdle to overcome, given that the judge was well aware that on such applications it is unusual to make an order for costs, that he knew from the respondents' counsel why, in addition to putting in written submissions, they had chosen to appear and that the judge was best placed to decide whether in all the circumstances it was appropriate to give the respondents their costs. Mr Goldman has pointed out that counsel for the respondents, when invited to say anything at the end of Mr Goldman's submissions, chose not to add anything orally. That may be because the submissions which counsel was proposing to make were in fact points which had already been taken by the judge. I know not. Mr Goldman also says that it was overkill for the respondents to appear with counsel and also a solicitor in attendance. But it is normal for counsel to have a solicitor in attendance, particularly if the history of the matter is complicated, as there may well be matters which the judge wants to know to which the solicitor would be able to provide counsel with the answer.
9. Having regard to all the circumstances, I am afraid that I do not see how it is possible to say that the judge erred in principle or was plainly wrong. It may well be that the judge's order was not one which many other judges would have made. But that is not enough, given that it is a discretion vested not in any other judge but in this judge alone. It seems to me, therefore, that Mr Goldman has, despite his very courteous and clear submissions to me today, no real prospect of success on an appeal. Nor has any other compelling reason been shown why this appeal should go ahead. Indeed, I would add that the costs order does not seem to me to make much difference to Mr Goldman, who already has substantial orders for costs outstanding against him, albeit not all the costs are taxed, and given that he cannot pay the respondents, as he says. Nor can I see that any major point of principle arises. In the circumstances, to allow the appeal to go ahead for a hearing in this court would seem to me to have little point.
10. For these reasons, therefore, I would dismiss this application.
Order: Application dismissed.