X v Berkoff

Permission to appeal is granted sparingly. An applicant must show a real prospect of success or another compelling reason. For a case-management appeal, the court should consider the appeal’s significance, likely delay and costs. A second appeal requires an important point of principle or practice, or another compelling reason. A litigant in person is not necessarily entitled to postpone an appeal where both sides have had a full opportunity to argue the merits. Where a claim has been transferred and further case management or consolidation is likely, procedural directions may be held in abeyance pending fresh review.

Miss X brought claims against Mr Berkoff for rape and libel. The rape claim had been managed in the County Court. On appeal, Mackay J stayed certain directions, and Sir Oliver Popplewell transferred the claim to the High Court, stayed two disclosure directions and refused Miss X permission to appeal. Field J later refused a stay pending an application to the Court of Appeal.

Miss X sought permission to appeal each of those decisions. She relied on alleged procedural unfairness, inequality of arms under Article 6 of the European Convention on Human Rights, and bias. The central issue was whether the proposed appeals satisfied the applicable permission tests.

All four applications for permission to appeal were refused.

1. Miss X’s application for an adjournment to pursue legal aid was refused. It was made only shortly before the hearing, although the challenged decisions had been made several months earlier.
2. The Court of Appeal applied the ordinary permission threshold: a real prospect of success or some other compelling reason. It also applied the stricter approach required for case-management appeals and second appeals. The court should be sparing in granting permission, having regard to the significance of the proposed appeal, delay and likely costs. A second appeal should raise an important point of principle or practice, or another compelling reason for the Court of Appeal to hear it.
3. Sir Oliver had heard argument from both sides over two days. He was entitled to determine the appeal after hearing full argument at the permission stage. Miss X’s status as a litigant in person did not establish inequality of arms or other procedural injustice. The transcript and judgment showed that Sir Oliver had accommodated her position in difficult circumstances.
4. The transfer decision disclosed no arguable error. Sir Oliver had considered the relevant transfer criteria under the Civil Procedure Rules, including the value and complexity of the claim, the likely consolidation with the libel action and the interests of justice and costs. The judgment referred to the transfer provisions as Part 30.3(2), and later as Part 33.2.
5. The applications concerning Mackay J’s stay and Field J’s refusal of a stay fell away once permission to challenge the transfer was refused, but were formally refused. The challenge to the disclosure stay also had no real prospect of success. Pending a further High Court case-management conference, particularly if consolidation was considered, it was proper to hold the position pending fresh review.

1. Court of Appeal (Civil Division): Auld LJ refused all four applications for permission to appeal.
2. High Court of Justice, Queen’s Bench Division: Sir Oliver Popplewell granted permission to appeal from the County Court, transferred the rape claim to the High Court and stayed two disclosure directions. He refused Miss X permission to appeal his orders.
3. High Court: Mackay J stayed certain County Court case-management directions pending the appeal to the High Court. Field J refused a stay of the transfer order pending the Court of Appeal application.
4. Central London County Court: Judge Collins gave case-management directions and directed that the rape claim remain in the County Court.