England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
(MR RECORDER STEYNOR QC)

		Royal Courts of Justice Strand London, WC2A 2LL
		7 May 2014

1. LADY JUSTICE GLOSTER: This is an application for permission to bring a second appeal against the decision of Recorder Steynor, sitting at the Bow County Court, on the hearing of an appeal from the order of Deputy District Judge Ray in the Exeter County Court dated 11 November 2011. Deputy District Judge Ray dismissed an application by the FSA, an interlocutory application, to strike out the claim brought by the claimant, Mr John Calland Senior. The deputy District Judge in an admirably concise judgment, came to the conclusion that -- and I am reading from paragraph 24 of her judgment:

"Having heard the divergence of submissions on the facts of this case, I consider that the resolution of the facts can only be achieved by a full hearing where these serious live issues of fact can only properly be determined by hearing oral evidence. I am of a firm view, having heard counsel at great length, that the court on this application for a strike out at this early stage is not 'well able to separate the wheat from the chaff' (to quote part of Lord Nicholls' judgment in Majrowski); indeed, as the submissions progressed, it was clear to me that the issues between the parties were increasing, even beyond the extensive skeleton arguments and documentation before me."

She then went on to conclude that the respondent's case, that was Mr Calland's case, who was bringing a harassment claim:

" ... is better than merely arguable, and that, therefore, it has a real prospect of success."

That was an exercise of the deputy District Judge's discretion on the strike out application.

2. The matter was then transferred by consent to the Bow County Court where the matter was heard on 27 November 2012, and it was only some nine months later on 19 August 2013 Recorder Steynor sent the parties a written judgment. He disagreed with the decision of the Deputy District Judge and decided, having heard extensive submissions from leading counsel on behalf of the FSA -- I am told by Mr Calland that these lasted all day, almost all day -- with Mr Calland's QC only having 40 minutes in response. The Recorder decided, having apparently conducted what from the judgment appears to be a mini trial of issues of fact, that the claim should be struck out.
3. In my judgment, and despite the fact that leave for permission to appeal has been refused on the papers by Lewison LJ, this is indeed a case where, notwithstanding it is a second appeal, it is nonetheless appropriate to give permission. First of all, I consider that the appeal does raise important questions of principle and practice. It raises an important question of practice as to whether when once the judge at first instance, in this case the Exeter county court, had refused to accede to a strike out application on the basis that there were factual matters that require resolution at trial, it was nonetheless appropriate for a judge sitting on appeal from that decision, as it were, to conduct a de novo review of all the facts, and appear from the judgment at least, to make certain additional findings of fact in order to come to the conclusion that the matter should be struck out. It seems to me that it is at least arguable that the Recorder should have approached the matter on the basis as to whether there were any grounds for interfering with the discretion that had been exercised by the District Judge. What the Recorder said at paragraph 50 was:

"In reaching these conclusions that Mr Calland's claims must fail, and because I disagree with the reasoning and decision of the District Judge, who held that the claim proceed, I have kept firmly in mind the submissions made by [counsel for Mr Calland] ... and the point that I am not conducting a full trial of the action."

4. In those circumstances where, after two very full judgments there has been a disagreement, it seems to me that it is appropriate for this court to consider whether there should have been a mini trial of the action, or rather whether Mr Calland's claim should simply have been allowed to proceed to trial.
5. Secondly, as set out in the grounds of appeal and skeleton argument prepared by solicitors acting for Mr Calland, Kitsons, the law relating to harassment, and in particular in relation to harassment by professional regulators, is embryonic and has not been developed.
6. On the facts of this case (which Mr Calland has outlined to me, and which I don't propose to rehearse) the situation gives rise to real concerns as to the conduct of the regulator. I consider that it is therefore appropriate for this court to consider afresh whether this claim should go ahead. Indeed, it may be appropriate for this court to set out some guidelines as to the circumstances in which a claimant who was a professional of many years good standing and is seeking to protest against the activities of a regulator shouldn't at least have his day in court. In the present case there was what might euphemistically be described as very enthusiastic activity on the part of the FSA, now the FCA, despite the fact that none of Mr Calland's clients appears to have complained and only one at the end of the day was actually granted compensation. This may be an area in which the availability of the defence of statutory authority is something upon which this court might usefully give some clarification, particularly as to the extent to which it is to operate as a complete bar on a strike out application.
7. I also point out the fact that the Recorder did accept that there was a possibility of an example of harassment by the FSA against the claimant; see paragraph 50 of his judgment. It is against that background that it seems to me that the District Judge was right to say, well, this is a matter that ought to go to trial on its facts.
8. For those reasons, I consider that points of principle and procedure do arise, and even if I were wrong on that I think this is one of those type of cases where it must be arguable that the citizen ought to be allowed to proceed to have his day in court against the regulatory authority.

For those reasons, I give permission to appeal.