Daniels v Griffiths

Permission to appeal may be granted where an appellant has a real, though uncertain, prospect of establishing that a lower court failed to consider whether it retained a discretion to proceed summarily after an earlier refusal to strike out, particularly where the applicable legal test has since changed.

A further arguable ground may arise where the lower court has not adequately addressed express malice in a defamation claim, since that issue may be quintessentially one for a jury.

The claimant brought a defamation action concerning statements allegedly made by the respondent to police officers. The action had previously survived an application to strike it out under the former procedural rules.

After the law changed, His Honour Judge Graham Jones summarily dismissed the action on 5 February 2001. The claimant sought permission to appeal against that order and against orders dated 27 February and 22 March 2001. The central issues were whether the judge had properly considered his discretion to redetermine the matter summarily and whether he had adequately addressed the allegation of express malice.

1. Permission to appeal. The application concerning the order of 5 February 2001 was granted. The appeal was to be heard by a two-judge court.
2. The lower court had applied the changed test under Civil Procedure Rules 1998 Part 24, namely whether the claim had no real prospect of success. However, the judge appeared to have assumed that he was bound to redetermine whether there should be a trial. He had not considered whether, in light of the earlier refusal to strike out under the former rules, there remained a discretion whether to deal with the matter summarily.
3. The Court of Appeal was far from certain that this ground would succeed, but the claimant could not be said to have no real prospect of success on it. That was sufficient for permission.
4. A second arguable ground concerned the adequacy of the judge’s treatment of express malice. That issue was described as quintessentially a jury question, and Alexander v The Arts Council of Wales might be relevant to it.
5. The applications concerning the orders of 27 February and 22 March 2001 were refused. The claimant’s permission in relation to the 5 February order included permission to challenge the costs order.

• Court of Appeal (Civil Division): permission to appeal granted against the summary dismissal order dated 5 February 2001; permission refused in relation to the orders dated 27 February and 22 March 2001.
• Queen’s Bench Division, Swansea District Registry: His Honour Judge Jones summarily dismissed the defamation action on 5 February 2001.