Englefield & Anor v Steinberg

Permission to appeal against interlocutory case-management orders in defamation proceedings should be refused where the applicant identifies no arguable error. The right to jury trial in libel proceedings concerns matters reserved for the jury. It does not extend to a judge’s interlocutory orders regulating pleadings, requiring further information or imposing appropriate sanctions for non-compliance. A judge’s impartiality is not established merely because a litigant dislikes the orders made. It must be assessed by reference to the content of the decision and the manner in which the proceedings were conducted.

The applicant, a former client of the claimant solicitors, was defending libel proceedings arising from material placed on the Internet. Mr Justice Gray ordered him to provide further information, remove non-responsive material, identify persons given the relevant URL and comply with an unless order. He also ordered an interim payment towards costs and refused an application for recusal and permission to appeal that refusal.

The applicant sought permission to appeal out of time, principally alleging bias, denial of a right to jury trial and unfair case management. The central issue was whether the substantive interlocutory orders disclosed an arguable error warranting permission to appeal.

1. Application refused. The applicant had not demonstrated any proper basis for challenging the substantive case-management order.
2. The orders were directed to putting the pleadings in proper order. The judge was entitled, and in the circumstances bound, to exclude material that was not responsive to the request for further information or that appeared to support defences already struck out, where the appeal against their striking out had failed.
3. The right to jury trial in defamation proceedings is confined to matters which are for the jury to decide. It does not apply to interlocutory case-management decisions concerning pleadings and further information. The Court’s discussion of Safeway v Tait therefore did not assist the applicant.
4. An unless order was available in the circumstances. Courts may impose sanctions where appropriate, and the applicant’s immediate requirement was simply to comply with the order. The later alleged summary judgment was not before the Court.
5. Impartiality cannot be established by a litigant’s assertion that the judge made decisions he disliked. It must be demonstrated by reference to what was done and how it was done. The material before the Court did not begin to establish partiality.
6. Permission was refused, including in relation to recusal. The application was formally dismissed.

• High Court, Queen’s Bench Division: Mr Justice Gray made interlocutory orders on 26 July 2000 requiring further information, imposing an unless order and directing an interim payment towards costs. He refused recusal and permission to appeal that decision.
• Court of Appeal (Civil Division): Permission to appeal, including the proposed challenge to the substantive orders and recusal decision, was refused on 26 March 2001.