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
		12/07/2012

Lord Justice Rimer :

1. This is a renewed application for permission to appeal, Sir Richard Buxton having refused permission on the papers on 6 February 2012. The applicant, Keith Crossland, has represented himself at all stages. The respondent is the University of Glamorgan ('the University'). The applicant is the claimant, the University is the defendant. The claim, issued in the Queen's Bench Division on 15 September 2010, is for damages for defamation by publications made between September 2009 and August 2010. By an application notice issued on 6 April 2011, the University sought a striking out of, or summary judgment on, the claim. That application came before Master Leslie on 17 June 2011. He permitted the applicant to add a sixth cause of action to his particulars of claim by relying on a further publication but he refused other requested amendments, struck the claim out and entered summary judgment for the University. He refused permission to appeal, but on 28 July 2011 Hickinbottom J permitted the applicant to appeal on a single ground. The appeal came before Nicol J on 24 October 2011. By his reserved judgment of 4 November 2011, Nicol J refused the applicant permission to appeal on any further grounds and dismissed the appeal. The applicant now seeks permission to appeal to the Court of Appeal against Nicol J's order.
2. No appeal lies to the Court of Appeal against Nicol J's refusal to permit the applicant to appeal to him on grounds additional to the single ground permitted by Hickinbottom J: see CPR Practice Direction 52 – Appeals, paragraph 4.8. It is, however, in principle open to the applicant to seek permission to appeal to the Court of Appeal against Nicol J's order on the grounds that he was wrong to dismiss the appeal. The applicant does, however, face the additional hurdle that it is not enough for him to show, if he can, that he has arguments which would have a real prospect of success on an appeal. As his proposed appeal is a second appeal, he must also satisfy one or other of the criteria for second appeals in CPR Part 52.13. That provides that the court will not give permission for such an appeal unless it considers that (a) the appeal would raise an important point of principle or practice, or (b) there is some other compelling reason for the Court of Appeal to hear it. Sir Richard Buxton's view was that Nicol J's judgment showed that the applicant had no prospect of meeting on an appeal the University's plea of qualified privilege by proving the requisite malice, so that the appeal would anyway fail. He also grounded his decision on the basis that the appeal would raise 'no undecided point of principle, 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 with the second appeal rules.'
3. I turn to the background. In September 2009 the applicant, an LLB graduate of the University, sought to enrol for the second year of a two-year course for an MSc in human resources management. He attended an enrolment meeting on 23 September 2009, one conducted by three staff members. Putting it in deliberately neutral terms, Nicol J described his behaviour at that meeting as 'challenging', which the applicant apparently recognised by a prompt apology by email that explained that he is diabetic and that when his blood sugar is low he becomes hypoglycaemic, which can make him confused. That meeting, however, started the chain of events leading to the claims that he eventually made. Ms Hole, the scheme leader for the course, reported the events of the meeting to Lyn Daunton, the Divisional Head for Organisational Leadership, Learning and Management in the Business School. That resulted in two emails from Ms Daunton of 24 and 25 September, a telephone call from her on 28 September and further emails from her on 29 and 30 September. Her emails reflected sentiments from Ms Daunton that, also to put it neutrally, were unsympathetic to the applicant's enrolment application.
4. The applicant does not sue in reliance on any publications by Ms Daunton. He complains of six publications by others. First, an email of 1 October 2009 from Ms Williams; second, an email in reply from Ms Bentley-Webb of 2 October 2009; and third, an email of 22 October 2009 from Mr Callaway. They all related to the applicant's enrolment application. He was registered for the course on 11 November 2009 but then invoked the University's complaints procedure, asserting that he had been discriminated against on the grounds of disability, namely diabetes. The fourth publication of which he complains is a passage in a report of 21 May 2010 following his complaint, one referring to the induction event. The applicant was not satisfied with the disposal of his complaint and took it to the permitted second stage. That led to a report of 11 August 2010 from Ms Morton which also contained a passage referring to the induction event, being the fifth publication upon which the applicant sues. The applicant then took his complaint to the third stage which, following a hearing before a panel, led to a report of 25 October 2010, which also contains a passage about the enrolment event and is the sixth publication of which he complains. He asserts that all six publications were libellous. The University's various defences to his claim include that of qualified privilege. The applicant does not question that the publications were made on occasions enjoying qualified privilege but his response is that the privilege was destroyed by malice.
5. The applicant's case is that the relevant malice was that of Ms Daunton; and that whilst she did not herself publish any of the statements, she nevertheless participated in their publication. Master Leslie held that it was not arguable that she had and that the claim must fail on that ground. He did not therefore find it necessary to consider the University's case that there was no arguable case of malice. Hickinbottom J permitted the applicant to appeal on the single ground as to whether it was arguable that Ms Daunton had participated in any of the publications. By a respondent's notice the University raised the assertion that there was no arguable case that Ms Daunton had been malicious.
6. The judge engaged in a careful consideration as to whether there was an arguable case that Ms Daunton was responsible for the six publications and concluded, in agreement with the Master (although as to three of the publications for different reasons) that there was not. He then turned to consider whether if (contrary to his conclusion) Ms Daunton had been arguably responsible for any of the publications, she was arguably malicious. He held that such a case was not reasonably arguable.
7. The applicant's grounds of appeal and skeleton argument are explained in a document running to 164 paragraphs over some 29 pages. It involves a detailed criticism of Nicol J's approach and conclusions. To the extent that I had been able to digest it prior to the oral hearing before me, I was far from confident that I had properly understood it. I allowed the applicant the full 30 minutes of the time allocated for his application to assist me further in understanding his case. If I may say so, he used that time courteously, helpfully and effectively and did provide such assistance. I had not, however, reached a conclusion at the end of the hearing as to whether this was a case for the giving or refusal of permission, my concern in particular being as to whether the proposed appeal satisfied the Part 52.13 criteria. To that end, I wanted to consider further the points raised by the applicant in his submissions and, in particular, whether any appeal would meet either of those criteria. One particular matter that concerned me is that I cannot detect from the papers what was before either Master Leslie or Nicol J in the shape of formal evidence, by which I mean witness statements. Master Leslie's order recites a witness statement of Hayley Burns of 31 March 2011, which I do not appear to have; and Nicol J's order makes no recitation of what was before him by way of evidence. Evidence on applications such as that before Master Leslie is ordinarily by way of witness statements exhibiting documents, but I have no none. The applicant's bundle before me includes a section headed 'Evidence for Court of Appeal – Strike Out Application', and includes a miscellany of documents but does not include any witness statements. I do not, therefore, know what was actually in front of Nicol J by way of evidence.
8. During the three days following the hearing, the applicant furnished me with yet more submissions. His submission of 2 May, occupying some six pages, was devoted to a further detailed and careful submission that Nicol J was in error to reject as not seriously arguable the assertion as to Ms Daunton's claimed participation and in ruling adversely to the applicant on the malice issue. His submission of 4 May was another carefully composed document that the applicant asserted showed how complex the case is and how much evidence he has to make it good at trial. I have, however, had some difficulty in following it since it refers to documents that I do not have, as the applicant appeared to recognise in his covering email. The applicant has very recently also provided me with a print of Nicol J's judgment incorporating his criticisms of it 'at each step'. The criticisms are detailed and extensive. I have to say that I have had some difficulty in following many of the applicant's points.
9. I have come to the conclusion that this is not a case in which I should attempt to rule either way on whether the applicant should or should not have permission to appeal. He raises too many issues that call for reasoned consideration and will not be satisfied by anything falling short of full and considered responses to them. A ruling on a permission application is not the occasion for the performance of such an exercise. The position at which I have arrived is that I consider that the applicant probably does have some real points to make as to whether it was right on whatever material was before the judge to strike his claim out, although I continue to retain a real doubt as to how strong they are and whether an appeal would cross either of the Part 52.13 criteria. If, however, as he claims, the applicant has been wrongly deprived of a trial by having his claim prematurely struck out, I consider that there is, putting at its lowest, much to be said for the view that that would be a compelling reason for an appeal.
10. What, therefore, I propose to do is simply to adjourn this permission application to the full court upon notice to the University; and I shall direct that, if on that hearing permission to appeal is given, the appeal will follow immediately. The court shall comprise three judges, of whom one may be a High Court judge, and the constitution should include a Lord or Lady Justice with experience in defamation law. I shall direct that a day be allowed for the hearing.
11. The applicant asks for a stay of execution of the orders below, that is the costs orders made against him. Master Leslie ordered him to pay the costs of the claim, to be assessed if not agreed, and to pay £7,500 on account. Nicol J ordered him to pay the costs of the appeal and of the renewed application for permission to appeal, to be assessed if not agreed, and to pay £5,000 on account. The case advanced by the applicant for a stay in section 8 of the appellant's notice is that he has 'little cash' and 'therefore enforcement of payment may stop me pursuing this appeal'. He says that the University:

'… is threatening to expel me from my studies, because I owe them monies, this will stop [me] pursuing a livelihood of HR management, and will render my last two years of study effectively worthless. I may also lose forever the Master for which I am studying as I may be out of time to complete it. …'.

12. It is trite that the pursuit of an appeal does not by itself, as the stay application recognises, operate as a stay in the meantime of the enforcement of the orders of the court below: even though an appeal is being pursued, the successful party is ordinarily entitled to recover in the meantime the fruits of his success, although that may have to be reversed if the appeal succeeds. The applicant does not say expressly that he cannot pay the costs; and, if that is his case, he gives no details of his financial position so as to make good any such assertion. Nor does he say that enforcement of the orders will stop him pursuing the appeal, only that it 'may' do so. If he can pay the costs, there is no reason why he should not do so. If he is permitted to appeal, and is successful and the costs orders below are reversed, there can be no doubt that the money will be returned. In my judgment, the applicant's case in support of a stay, as at present explained, is insufficient to justify one.
13. I would, however, anyway consider it unjust to order a stay without giving the University the opportunity of saying, if so advised, that there should be none. What I therefore propose to do is to make no order at present on the stay application, but to give the applicant liberty to issue an application notice returnable before a single Lord Justice asking for a stay, such application to be supported by a witness statement explaining the claimed justification for a stay. The application notice and witness statement must be served on the University, which is to be at liberty to answer the application within 14 days of service upon it of both by a witness statement and/or a skeleton argument, as so advised. The single Lord Justice will then decide whether the application can be disposed of on the papers or whether a hearing is required.