England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/03/2017

Ruling – Permission to Appeal [Revised]

Mr Justice Warby:-

1. This short ruling deals with an application by the defendant, Ms Hopkins, for permission to appeal against my decision to award the claimant libel damages of £24,000 in respect of two tweets published by Ms Hopkins. The application raises two issues. One is whether in the circumstances I have jurisdiction to grant or refuse permission. The other is whether Ms Hopkins has grounds worthy of consideration by the Court of Appeal.
2. At Ms Hopkins' request I have dealt with the application without a hearing. That course was not opposed by Ms Monroe, the claimant. It is permissible to do this, it can be a convenient way to deal with applications, and it is appropriate in this case. Sometimes a ruling concerns nobody but the parties. But sometimes the interests of transparency and open justice make it appropriate to put the ruling in the public domain. This case has attracted its share of publicity and interest, which makes a public judgment appropriate. Cf PJS v News Group Newspapers Ltd [2016] EWHC 2770 (QB) [1]-[3]. The case also raises a point of procedural law.

The factual background

3. The trial, which lasted 3 days, ended on Wednesday 1 March 2017. I reserved judgment. On Wednesday 8 March 2017 I circulated a draft judgment. That followed standard practice under CPR Part 40. The parties were told that the judgment would be handed down at 2pm on Friday 10 March. On 9 March, as is usual, the parties submitted short skeleton arguments summarising the arguments to be advanced at the hearing the following day. The issues raised were to do with costs and time to pay.
4. On 10 March I handed down my judgment in favour of the claimant: [2017] EWHC 433 (QB). I then heard argument and made my decisions on costs. These included an order for an interim payment of £107,000 on account of costs. A formal order reflecting my decisions was drawn up and approved by me. The order was sealed on 21 March 2017. During this process there was no application for permission to appeal. The skeleton argument for Ms Hopkins stated that she was considering her position in relation to an appeal but was not making or seeking an extension of time for doing so. It would appear that the question had been considered and a conclusion reached that no application would be made at that time. It was said that any application would be made to the appeal court.
5. Nearly two weeks later, Ms Hopkins' solicitors wrote to my clerk, stating that "subsequent to the hand down" Ms Hopkins had instructed Leading Counsel, who had advised on an appeal "which our client will be pursuing". The letter, dated 23 March, said that Leading Counsel had advised that it would be desirable to seek permission from me, prior to applying to the Court of Appeal. The solicitors asked whether I was prepared to proceed on this basis. They apologised for not raising the issue at the hand down.
6. My immediate reaction was to doubt that I had power under the rules to deal with such an application at such a late stage. I pointed this out, and the parties submitted written observations on the issue. On Monday 27 March 2017 Ms Hopkins submitted her draft grounds of appeal. I reviewed this material overnight and this ruling is given the following morning.

The jurisdiction issue

7. Most appeals can only be pursued with the permission of the court that made the decision or the appeal court. CPR 52.3 governs the application process and provides, so far as relevant, as follows:-

"(2) An application for permission to appeal may be made—

(a) to the lower court at the hearing at which the decision to be appealed was made; or

(b) to the appeal court in an appeal notice.

…

(3) Where the lower court refuses an application for permission to appeal—

(a) a further application for permission may be made to the appeal court; …"

8. It is a familiar and well-understood feature of the current CPR that an intending appellant may seek permission from the court of first instance, but they do not need to do so. They can go straight to the appeal court, to seek its permission. Even if the intending appellant does apply to the lower court and fails, they can still seek permission from the appeal court. The question raised by this application is when the application to the lower court has to be made, if one is made. The answer turns on the meaning of the words in CPR 52.3(2)(a): "at the hearing at which the decision to be appealed was made".
9. Similar wording also appears in PD52A 4.1:

"Where to apply for permission

4.1  An application for permission to appeal may be made–

(a) to the lower court at the hearing at which the decision to be appealed against is given (in which case the lower court may adjourn the hearing to give a party an opportunity to apply for permission to appeal); or

(b) where the lower court refuses permission to appeal or where no application is made to the lower court, to the appeal court in accordance with rule 52.12."

10. The editorial notes in Civil Procedure have something to say about the words "at the hearing at which the decision to be appealed is made". As was pointed out in Kingsley Napley's letter of 23 March, one of the things the notes say is that those words "in effect mean that the application should be made to the judge whose decision is being challenged". But in the 2017 edition those words are part of a longer passage at 52.3.6, and they appear in this context:

"Where an application for permission is made to the lower court it is to be made "at the hearing at which the decision to be appealed was made" which in effect means that the application should be made to the judge whose decision is being challenged (and not to some other judge of the lower court). The object is to discourage would-be appellants from delaying an application for permission to the lower court and to avoid the inconveniences that might arise where the judge of that court is peripatetic or part-time. As noted above, para.4.1(a) of PD 52A states that the lower court may adjourn the hearing, that is to say, "the hearing at which the decision to be appealed was made", to give a party an opportunity to apply to it for permission to appeal. There is nothing in that provision to encourage the view that the court may order such adjournment retrospectively, a point that was arguable under relevant supplementing practice directions as they stood before 1 October 2012 (see Balmoral Group Ltd v Borealis (UK) Ltd [2006] EWHC 2228 (Comm), 23 August 2006, unrep., and Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd [2007] EWHC 236 (TCC), 8 February 2007, unrep.). If a judge hands down a reserved judgment in the absence of the parties and is aware that one party wishes to appeal, the judge should formally adjourn the hearing to enable that party to apply for permission to appeal (Jackson v Marina Homes Ltd [2007] EWCA Civ 1404, 13 November 2007, unrep., CA, at [8])."

11. Normally, when judgment is handed down, an application for permission to appeal is made or not made, and that is the end of it. But it is the fairly common practice of the court, and my common practice, to agree to adjourn a hearing to allow consideration of an application for permission to appeal. If judgment is handed down without attendance, it is common practice to adjourn the hearing to allow an application to be made, even if there has been no indication about the possibility of an appeal. As I have noted, however, in this case the parties attended the hand down and there was no application for permission to appeal, nor any application to adjourn in order to make such an application.
12. There comes a point when the lower court no longer has jurisdiction over the case. It is functus officio. In the Multiplex case Jackson J (as he then was) took the view that a judge could hear an application for permission to appeal against his own decision if the order reflecting his judgment had not been sealed: see [24]. That decision was taken under a different version of the CPR. In any event that that line of argument is not open to Ms Hopkins, as the order in this case was sealed two days before her application to me.
13. Ms Monroe's solicitors have argued that the application seeks in essence a retrospective adjournment of the hand-down hearing, and that this is not permitted. The only proper venue for the application, they submit, is the Court of Appeal. Kingsley Napley's response is that, having considered the Multiplex case, "it does not appear to us to be proportionate to advance a positive case that the Judge has jurisdiction to determine an application for permission to appeal." But they say that if I can see a basis on which I have jurisdiction, their client asks me to rule on whether to grant permission. I assume that I am also expected to take a proportionate approach to the issue. My conclusion is that I can see no basis on which I still have jurisdiction in the matter.
14. It seems to me that the fairly settled practice that I have described above reflects a proper interpretation and application of the rules. The words of the rule and PD must mean something fairly close to what they say. A reserved judgment is given, and the decision is made, when the judgment is handed down at a hearing in court. On the face of it, the application to the lower court must be made then, or at some later date to which the hearing is then adjourned for that purpose, at the request of the potential appellant or at the instigation of the court. If an application is not made at one or other of those times, it can only be made to the appeal court. This is a clear and understandable regime, which places the onus on the party who may wish to appeal to make a decision, or to ask for time to make one. The standard practice of circulating reserved judgments should make it easier for a party to decide whether to seek permission, and to identify grounds of appeal which can be argued at the hand down. It is inherently desirable to avoid afterthoughts, and to avoid the uncertainty for the opposite party that would result if these were permitted.
15. In Multiplex Jackson J took the view that wording of the then Practice Direction left it open to a party to request further time to make an application for permission, and the court could grant such a request, even if it came after the hearing at which the decision was made. But he held that the Court could not do this after its order had been sealed. It is not necessary to go into the question of whether the current CPR are to be interpreted in the same way. But I can see the force of what the editors say about the present wording. It is not easy to read it as leaving room for a retrospective adjournment of the kind contemplated by Jackson J.

Grounds of appeal

16. Ms Hopkins has a fall-back position, so far as this court is concerned. As Kingsley Napley point out that "In any event, it is open to the judge to comment on the proposed grounds". And they refer to this passage in note 52.3.6, arising from a recent Court of Appeal decision:

"There are a plethora of lower courts, some of them highly specialised jurisdictions in which judges with appropriate skills and experience sit, whereas the Court of Appeal is a court of general jurisdiction. Cases may arise where the judge of a lower court with specialised jurisdiction is arguably much better placed to consider and determine whether permission to appeal to the Court of Appeal should be granted from one of his or her decisions than a single lord justice before whom such application may happen to be made. Where an application is made to and refused by the trial judge, the Court of Appeal will be assisted by the trial judge, giving full reasons why permission to appeal was refused: Teva UK Ltd v Boehringer Ingelheim Pharma GmbH & Co KG [2016] EWCA Civ 1296, 16 December 2016, unrep., at para.13".

17. Having concluded that I have no jurisdiction, I do not believe I should be tempted by these submissions into providing a reasoned analysis of the grounds of appeal. But I will say this. I would have refused permission, as I do not consider any of the four grounds of appeal to have a real prospect of success (the threshold test in CPR 52.6(1)(a)) or that there is any other compelling reason for an appeal to be heard (the fall-back test in CPR 52.6(1)(b)). This was not a case which raised any great issues of legal principle. It turned essentially on its own facts. The points of law that are raised are in my view untenable. The Court of Appeal will not lightly interfere with findings of fact.
18. It has been pointed out that the Court of Appeal is still considering its decision on the appeal in Lachaux v Independent Print. But I do not regard that as an obstacle to my reaching the conclusions I have set out above. Still less do I consider that I should give permission, as is suggested, on the basis that the Court of Appeal may dismiss the appeal in Lachaux but that case might go to the Supreme Court.

Stay application

19. I am asked to stay payment of the £107,000 and the assessment of the costs I ordered in favour of the claimant. This was not asked for at the hand down, which would be usual. But it is not too late to make those applications. However, I do not consider it would be appropriate to order such stays. The point is made that the claimant's solicitor has declined to give any undertaking or comfort as to repayment of the £107,000, if the court decided that should be done. It is Ms Monroe herself who would be liable to repay, and it is said that she is of limited means. I do not consider that the information before the court discloses a sufficient risk of these monies being lost, to justify the imposition of a stay. The question of whether to stay assessment can be reconsidered if an application is made to the Court of Appeal, and the single judge takes a different view from mine on the merits of the proposed appeal.