The recent judgment of the Court of Appeal in the case of Zipporah Lisle-Mainwaring v Associated Newspapers Limited  EWCA Civ 1470 provides an overview of how, and crucially when, permission to appeal should be sought at first instance.
The subject matter of this case will be familiar to media law practitioners. In 2015, the Claimant, Ms Lisle-Mainwaring, repainted the exterior of her Kensington townhouse in “candy cane” red and white stripes (which was the subject of litigation with the local authority). Between April and July 2015, the Daily Mail published a number of articles about the Claimant, her unorthodox repainting job and the resulting furore that had ensued (it had been suggested, but denied, that the redecoration was to spite neighbours who had objected to a planning application). The Claimant issued proceedings in harassment against the then publisher of the Daily Mail, Associated Newspapers Limited, contrary to Sections 1 and 3 of the Protection from Harassment Act 1997.
In February 2018, the Claimant sought an order for specific disclosure against the Defendant and the application was heard by Sir David Eady on 21 March 2018. The Claimant’s application was dismissed in an oral judgment given by Sir David Eady only two days later, on 23 March 2018, on what was his final day in judicial office by virtue of his retirement. Both parties were represented at the hearing on 23 March 2018 when the oral judgment was handed down although the Claimant’s Counsel, who had appeared at the substantive hearing two days previously, did not attend.
The question of an appeal was not raised at the hearing when the judgment was delivered. In fact, it was only raised for the first time later that day at 3.25pm when the Claimant’s solicitors sent an email to the Queen’s Bench Division Listing Office which set out three grounds of appeal and asked for the email to be passed on to Sir David Eady. The email to the Listing Office was not sent or copied to the Defendant’s solicitors. Sir David Eady, perhaps conscious that his judicial authority was about to expire, granted permission to appeal at about 4.30pm the same day.
The Court of Appeal had to determine whether the grant of permission to appeal was valid and the analysis of Coulson LJ provides a helpful summary of the ways in which a losing party can seek permission to appeal.
The starting point is that a party who wishes to appeal should, of course, seek the permission of the Judge against whom the appeal is sought to be made. This will not cause difficulties where judgment is reserved and it is circulated to the parties in draft in advance of hand-down, which is common practice these days, because the applying party will have time to consider their position and take advice from their legal team and the application for permission can be made when judgment is handed down.
Difficulties can arise, however, in circumstances where (as in this case) the Judge did not circulate a written draft before hand-down and instead provided an ex tempore oral judgment at the hearing. The losing party may need time to consider whether to appeal and take advice before making their decision. If that is the case, the losing party must ask the Judge at hand-down for an adjournment of that part of the hearing only so that, if so decided, an application for permission to appeal can be made at a later date. In these circumstances, the Judge will impose a short time limit, and this will allow both parties to make submissions on the application for permission.
In this case, however, the Claimant’s legal team did not following this route. They had not applied for permission to appeal at the hearing where the judgment was handed down. Moreover, they had not asked the Judge to adjourn the part of the hearing relating to the question of an appeal so that the Claimant could consider whether to apply. These omissions were compounded by their failure to notify the Defendant’s solicitors when they finally did make the application by email later that day. Accordingly, the Court of Appeal held that the grant of permission was invalid.
The Court went on to consider afresh whether permission should now be granted and it held that, in his final judicial act, Sir David Eady had quite rightly dismissed the Claimant’s application.
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