Cornelius v London Borough Of Hackney

On an application for permission to appeal, the court must decide whether there is a realistic prospect of success or another compelling reason to permit the appeal. The court should confine itself to the issue properly before it, even where an alternative dispute resolution process has failed and the applicant has wider grievances. A claim may be arguable where the pleaded facts potentially disclose negligent misstatement or misfeasance in public office, although the court granting permission does not determine the merits. Permission may therefore be granted on limited grounds, with the pleading amended accordingly.

The claimant challenged an order made by Mr Walter Aylen QC, sitting as a Deputy High Court Judge, on 27 July 2001. The order struck out his amended statement of claim and required him to pay the defendant’s costs.

The underlying dispute followed the claimant’s allegedly wrongful dismissal after he had exposed suspected corrupt irregularities. The Employment Appeal Tribunal had found that his dismissal was unlawful. The proposed appeal concerned, among other matters, claims based on negligent misstatement and misfeasance in public office. The central issue was whether those grounds disclosed a realistic prospect of a successful appeal or another compelling reason for permission.

1. Permission granted. The court granted permission to appeal on the grounds of negligent misstatement and misfeasance in public office only. The pleading was to be amended accordingly. The costs of the permission application were costs in the appeal.
2. The court’s task was limited to deciding whether there was a realistic prospect of a successful appeal or another compelling reason to allow the application. The failure of the alternative dispute resolution process did not enlarge the court’s jurisdiction or permit investigation of the reasons for that failure.
3. The negligent misstatement claim was arguable. The claimant relied on Spring v Guardian Assurance Plc [1995] 2 AC 296, contending that post-dismissal letters and other material might fall within the principle recognised in that case. The court did not decide whether the principle applied, or whether the conduct was negligent rather than deliberate.
4. The misfeasance claim was also arguable. The alleged statements had been made by public officials in the purported exercise of public responsibilities, and the evidence might establish deliberate malice or recklessness involving bad faith. The ingredients of the tort had been summarised by Lord Steyn in Three Rivers DC v Governor and Company of the Bank of England (No 3) [2000] 3 All ER 1.
5. The judge below had considered whether the misfeasance claim impermissibly circumvented the employment-dismissal principles summarised in Johnson v UNISYS Limited [2001] 2 WLR 1076. That issue, together with the substantive merits, remained for consideration by the full Court of Appeal.

The transcript was to be provided to the claimant at public expense. Any further dispute was reserved to Lord Justice Judge.

• Court of Appeal (Civil Division): Permission granted on 4 February 2002 on the grounds of negligent misstatement and misfeasance in public office only.
• Queen’s Bench Division: On 27 July 2001, Mr Walter Aylen QC, sitting as a Deputy High Court Judge, struck out the amended statement of claim and ordered the claimant to pay the defendant’s costs.