Mahon v Rahn & Ors

Permission to appeal an interlocutory decision may properly be granted before trial where the proposed grounds raise significant public-policy issues and early determination may avoid substantial costs or prejudice. This may include issues concerning malicious prosecution and absolute privilege, particularly where the underlying policies concern the protection of informants. A second-tier appeal point may also be included where it adds little to the appeal and there is practical force in allowing both parties to rely on comparable material. The trial may be stayed pending the appeal.

The claimants brought proceedings arising from the collapse of criminal proceedings and included claims in libel and malicious prosecution. Eady J declined to strike out the malicious prosecution claim, rejected an asserted defence of absolute privilege at the interlocutory stage, and refused an amendment concerning additional transactions relied upon for justification.

The defendants applied for permission to appeal those rulings. The principal question was whether the issues should be determined before trial, rather than after factual findings had been made, and whether the amendment issue could properly be included despite being a second-tier appeal.

1. Permission granted. The Court of Appeal considered that the challenges concerning malicious prosecution and absolute privilege were fit for appellate consideration before trial. The issues involved important public-policy considerations, including the need to balance protection for persons injured by dishonest prosecutions against the public interest in ensuring that informants are not deterred from assisting prosecuting authorities.
2. The Court accepted that deciding those issues before trial could avoid substantial unnecessary expenditure. If the defendants succeeded, the trial might be avoided or its scope reduced. It was therefore inappropriate to require the parties to continue incurring trial costs while the proposed appeals were pursued.
3. The amendment issue, although a second-tier appeal, was also included. Once the other matters were to be considered, determining the amendment point would add little to the time required. There was force in permitting the defendants to rely on additional previous dealings where the claimants themselves relied on earlier dealings in support of their case.
4. The Court did not determine the merits of malicious prosecution, absolute privilege, or justification. It granted permission to appeal, directed that notice of appeal be served within seven days, and stayed the trial pending judgment on the appeal.

• Court of Appeal (Civil Division): On an application for permission to appeal, the Court allowed the application, directed service of the notice of appeal within seven days, and stayed the trial pending judgment on the appeal.
• Queen’s Bench Division: Eady J had ruled on 1 July 1999 that the malicious prosecution claim should proceed to trial, that absolute privilege did not dispose of the libel claim at that stage, and that the proposed amendment concerning additional dealings should be refused.