Neil v Stephenson & Ors

Permission to appeal requires a real prospect of success. Where the proposed challenge has no such prospect, the court need not determine whether an extension of time should be granted. A company director’s liability depends on the relevant factual matrix; undisputed evidence of a minimal role, with no knowledge or approval of a publication, justified dismissal of the claim against two defendants. A party should not seek, without notice, an order from another judge on issues already being considered by the judge handling the case, particularly where the order may affect costs or a stay. An order made on only part of the picture may be set aside to restore the status quo. An appellate court will not interfere with a discretionary order absent clear error or misdirection in law.

The applicant brought a defamation action against five executive members of Families Need Fathers concerning a special election edition of its journal. After several interlocutory hearings, the action was stayed pending payment of costs. Burton J later dismissed the claim against two defendants with costs and considered conditions governing the continuation of the proceedings. The parties subsequently entered a consent order staying further proceedings and providing for withdrawal of the action. The applicant then obtained, without notice, an order from Astill J removing the stay and directing withdrawal. Burton J set that order aside. The applicant sought permission to appeal out of time against the dismissal order and permission to appeal against the order setting aside Astill J’s order. The central issues were whether either proposed appeal had a real prospect of success and whether Burton J had been entitled to exercise his discretion as he did.

Lord Justice Brooke gave the reasons for the court. Sir Martin Nourse agreed.

1. First application. The application for permission to appeal against the dismissal of the claim against the fourth and fifth defendants had to be assessed by reference to whether the proposed appeal had a real prospect of success. Since it did not, no separate question arose concerning an extension of time.
2. Burton J was entitled, on the undisputed evidence, to conclude that the two defendants had only a minimal role. One had not known the contents of the relevant publication and the other had not seen or approved it. The judge was also entitled to take account of the fact that the organisation was a company limited by guarantee rather than an incorporated association. The liability of a company director depends on the relevant factual matrix.
3. Second application. Astill J’s without-notice order should never have been made. The applicant knew that the issues concerning the stay, costs and possible set-off were being considered by Burton J. It was wrong to approach another judge without notice, when that judge could see only part of the relevant picture. The fact that the applicant acted in good faith did not alter the position. Burton J was entitled to set aside the order and restore the status quo.
4. The order under challenge was discretionary. The Court of Appeal could interfere only if Burton J had been clearly wrong or had misdirected himself in law. Neither circumstance was present. The applications for permission to appeal were therefore refused.

• Court of Appeal (Civil Division): Applications for permission to appeal were dismissed.
• High Court: Burton J dismissed the claim against the fourth and fifth defendants with costs on 14 February 2000, and later set aside Astill J’s without-notice order on 4 September 2000.
• High Court: Astill J had made the without-notice order on 18 July 2000 removing the stay and directing withdrawal of the action.