England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE NICOL

[2011] EWHC 2809 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 December 2012

Lord Justice Munby :

1. This is a renewed application for permission to appeal, permission having been refused on the papers by Sir Richard Buxton on 6 February 2012. On renewal, Rimer LJ on 12 July 2012 adjourned the application for permission to the full court with the appeal to follow immediately if permission was given: [2012] EWCA Civ 937.
2. The applicant, the claimant in the action, brought defamation proceedings against the respondent (the University) in relation to three emails sent by employees of the University (respectively Ms Williams, Ms Bentley-Webb and Mr Callaway) and three reports written by employees of the University (respectively Ms Green, Ms Morton and Ms Marshall). It was, and is, common ground that qualified privilege attached to each of these six publications. The applicant's case was, and is, that the privilege was destroyed by malice. The only malice he relies upon is that of another employee of the University, Ms Daunton.
3. Given that Ms Daunton had not herself published any of the alleged libels, it was, and is, common ground that the applicant could not succeed in his argument based on malice unless it could be shown that Ms Daunton had participated in the publication as described by Eady J in B v N and L [2002] EWHC 1692 (QB), para 25:

"Assuming the facts to be as the claimant pleads them, could a jury conclude that the second defendant was a party to publication of that document without its decision being categorised as perverse? To participate in a publication in such a way as to be liable in accordance with the law of defamation is not, I should emphasise, to be equated with being a source of the information contained within the relevant document. There are various acts that can give rise to legal responsibility, for example, encouraging the primary author, supplying him with information intending or knowing that it will be re-published, or, if one is in a position to do so, instructing or authorising him to publish it."

4. The University applied to strike out the entirety of the claim, alternatively for summary judgment in its favour. It took a number of points. For present purposes only two are relevant: first, that Ms Daunton was not responsible for any of the publications; second that there was no properly arguable case that she was malicious.
5. The University's application came before Master Leslie. His judgment and order are dated 17 June 2011. He struck out the claim and gave summary judgment for the University. He decided the case on the basis that there was no evidence that Ms Daunton had participated in any of the publications in any of the ways described by Eady J.
6. The applicant sought permission to appeal on various grounds. On 28 July 2011 Hickinbottom J gave him permission on one ground: that it was arguable that Ms Daunton had participated in the publication of the documents, as participation is defined in B v N and L, and that it was therefore arguable that Master Leslie had been wrong to conclude otherwise. Hickinbottom J refused permission to appeal on various other grounds relating to allegations that employees of the University had acted with "an improper purpose" and that the applicant had been ambushed at the hearing before Master Leslie.
7. The appeal came before Nicol J on 24 October 2011. The applicant sought before Nicol J to renew his application for permission to appeal on the other grounds refused by Hickinbottom J. Nicol J refused the applicant permission to enlarge his grounds of appeal and dismissed his appeal on the one ground for which Hickinbottom J had given permission: [2011] EWHC 2809 (QB).
8. The applicant cannot challenge in this court the decisions of Hickinbottom and Nicol JJ refusing him permission to appeal from the decision of Master Leslie: see section 54(4) of the Access to Justice Act 1999 and Moyse v Regal Mortgages Limited Partnership [2004] EWCA Civ 1269, [28]-[31]. The only matter which he can seek to ventilate before us is, therefore, the one for which Hickinbottom J gave permission, namely the question relating to Ms Daunton's participation in the six publications.
9. It will be apparent from what I have said that this is a second appeal. The applicant disputes this, asserting that although Master Leslie found against him on the issue of participation, Nicol J founded his decision on the different issue of malice. With all respect to him, the applicant is plainly wrong. It is perfectly obvious that this is a second appeal. In the first place, the factual premise underpinning his argument is simply wrong. True it is that Nicol J went on to consider the issue of malice, but his first and primary ground of decision was the same as Master Leslie's, namely participation. Indeed, he prefaced his discussion of malice by observing (para [61]) that:

"Because I have decided that it is not arguable that Ms Daunton used the words which the Claimant attributes to her … and that she is not responsible for any of the 6 publications on which the Claimant sues, this issue does not strictly arise."

10. But in any event, and even if his factual premise was correct, the applicant's point is still thoroughly bad. The issue before Master Leslie was whether his claim should be struck out. Master Leslie decided that it should be. The applicant appealed against that decision, seeking the reinstatement of his claim. Nicol J dismissed his appeal. He now seeks to appeal to this court, his objective being, as below, the reinstatement of his claim. This is a second appeal.
11. Being a second appeal, CPR 52.13 applies. To obtain permission to appeal the applicant must therefore show either (CPR 52.13(2)(a)) that "the appeal would raise an important point of principle or practice" or (CPR 52.13(2)(b)) that "there is some other compelling reason for the Court of Appeal to hear it."
12. Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, [2005] 1 WLR 2070, shows (para [17]), that only in an "exceptional" case will a second appeal be sanctioned. To fall within the first limb of CPR 52.13(2), the applicant must be able to identify (para [18]) "an important point of principle or practice that has not yet been established" (emphasis added). To fall within the second limb, the applicant must be able to point (para [19]) to something "truly exceptional", for example (para [24]) that "the prospects of success are very high" or that "there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair."
13. The applicant has bombarded this court with a vast amount of written material setting out his arguments in support of his proposed appeal. His grounds of appeal and skeleton argument dated 3 December 2011 (the document that was before Sir Richard Buxton) runs to 30 pages. Rimer LJ was presented with a further 5 pages under cover of an email dated 2 May 2012, another 10 pages under cover of an email dated 4 May 2012, and, under cover of an email dated 4 July 2012, an annotated copy of Nicol J's judgment which more than doubled its length from its original 24 pages to 54 pages. Since Rimer LJ gave judgment, the applicant has filed two further skeleton arguments: one, dated 25 July 2012, running to 30 pages, the other, dated 27 September 2012, also running to 30 pages. On the morning of the hearing the applicant handed in another 2-page document dated 28 November 2012.
14. Much of what is said by the applicant relates to matters – the allegations of "improper purpose" and ambush – which we have no jurisdiction to consider following the refusal of permission to appeal by Hickinbottom and Nicol JJ. I focus, therefore, on the one matter which is properly before us.
15. Notably missing from all this voluminous material is any clear statement of how the applicant seeks to bring his proposed appeal within either limb of CPR 52.13(2). When we pressed him on the point, he said that he sought to rely on both limbs. When we pressed him to identify the "important point of principle or practice" that he relied on as bringing the case within the first limb, the applicant referred to two things: one was a complaint that he had been "ambushed" below; the other that it was appropriate for this court to reiterate the principle – for which he pointed to what Lord Hope of Craighead had said in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] AC 1, 260, para [95] – that striking out is to be reserved for obvious cases and is not appropriate in a case as "complex" as he insisted this case is. When we similarly pressed him to identify the matters that he relied on as bringing the case within the second limb, he referred to two: first, that his prospects of success were very high, and second, what he said was "procedural irregularity" below, including what he alleged was prejudice and bias on the part of Nicol J.
16. In my judgment it is quite clear that this application does not fall within either limb of CPR 52.13(2). Permission to appeal must accordingly be refused.
17. So far as concerns the applicant's attempts to bring the case within the first limb it is perfectly obvious that none of the matters he relies upon involves any point of principle or practice, let alone an "important" point of principle or practice "that has not yet been established." Indeed, his reliance in this context on the decision of the House of Lords in Three Rivers merely serves to demonstrate the point. In any event, his assertion that the case is complex is not sustainable. As Nicol J said (para [94]): "This was not a particularly complex case. When properly analysed, the issues are straightforward." I agree. A case which is straightforward does not become complex just because its essential simplicity is obscured beneath a mass of verbiage. Extravagant prolixity is not the same as complexity.
18. Refusing permission on the papers, Sir Richard Buxton said:

"There is no undecided point of principle involved, indeed no point of principle at all. The case was decided by the judge by assessment of the evidence, an exercise that does not fall within the second appeal rules."

I agree.

19. Moreover, insofar as the applicant seeks to rely upon the alleged ambush before Master Leslie, that is not a matter which it is open to him to ventilate before us, permission to appeal on this ground having been refused by both Hickinbottom J and Nicol J.
20. So far as concerns the second limb of CPR 52.13(2), the applicant's case is equally hopeless. The allegations of prejudice and bias are utterly groundless. They should never have been made. One has only to read Nicol J's judgment to see the care he took and the balanced and impartial fairness with which he set out and considered each part of the applicant's case. The reality is that these serious allegations are founded on nothing more than the applicant's disagreement with Nicol J's assessment of the merits of his case. Moreover, it is apparent from the applicant's submissions that his other allegations of procedural irregularity involve no more than what in his latest skeleton argument he identifies as complaints that Nicol J came to "a wrong opinion" and "took into account matters he was not entitled to, and failed to take into account matters he should." This is not procedural irregularity; certainly by no stretch of the imagination the kind of procedural irregularity required to bring a case within the second limb of CPR 52.13(2).
21. That leaves only the applicant's assertion that an appeal would have a "very high" prospect of success. I do not agree, and in any event that would not of itself entitle him to permission to appeal. The applicant took us in very great detail, both in writing and orally, through the evidence relating to Ms Daunton's involvement, with a view to demonstrating that Nicol J was wrong in finding that she had not participated in any of the publications. I do not propose to follow him into the minutiae. The longer the process went on the more apparent it became that far from the applicant's prospects of success being "very high" they were in truth vanishingly small. In my judgment, Nicol J was plainly entitled to decide as he did and for the reasons he gave. An appeal would have no real prospect of success, let alone the "very high" prospect for which the applicant contends.

Sir David Keene :

22. I agree.

Lord Justice Mummery :

23. I also agree.