Pepin v Taylor

For a second-tier appeal, permission under CPR Part 52.13 requires an important point of principle or practice, or another compelling reason. A real prospect of success may arise where judgment on a pleaded claim was entered without real evidence on a central issue, making the conclusion potentially premature. A compelling reason may arise where evidence before the first appellate judge casts doubt on a party’s account and appears not to have been considered. In such circumstances, the appellate court may review the matter on the totality of the evidence before that judge. Permission was granted on both issues.

This was an application for permission to bring a second-tier appeal from orders made by Gray J at a case management conference in a libel action concerning Internet postings. Gray J had given the defendant judgment on a Part 20 claim alleging that the claimant had published words suggesting that the defendant was insane and an ex-prisoner. He had also dismissed the claimant’s appeal from Master Foster’s order transferring the proceedings to Leicester. The claimant, acting in person, challenged the evidential basis for judgment on the Part 20 claim and said that evidence casting doubt on the defendant’s account had not been considered on the transfer issue. The questions were whether there was a real prospect of success and whether the second-tier permission test was met.

Permission granted on both points.

1. Part 20 claim. The claimant had a real prospect of succeeding on an appeal against judgment for the defendant. The lower judge had concluded that there was no realistic prospect of a substantive defence, particularly justification, succeeding. However, there was no real evidence before him relating to the plea of justification. The judge may therefore have reached a premature conclusion without an adequate evidential foundation.
2. The claimant also raised material issues concerning whether a draft writ had been published, whether evidence existed concerning the defendant’s sanity and alleged conviction, and whether the defendant was identifiable from the relevant e-mail address. These matters reinforced the conclusion that the issue required appellate consideration. The court did not finally determine the merits of the defamation claim.
3. Transfer to Leicester. This was a second-tier appeal, so CPR Part 52.13 applied. Permission required either an important point of principle or practice or some other compelling reason for the court to hear the appeal.
4. A compelling reason existed because additional evidence placed before Gray J cast doubt on the veracity of the defendant’s statements. Gray J did not refer to that evidence and appeared not to have taken it into account. It was therefore appropriate for the Court of Appeal to review the transfer decision on the basis of the totality of the evidence before Gray J.

1. Court of Appeal (Civil Division): On 16 August 2002, Lord Justice Aldous granted permission to appeal on both issues.
2. High Court of Justice, Queen’s Bench Division: Gray J, on 20 May 2002, gave judgment for the defendant on the Part 20 claim and dismissed the claimant’s appeal against the transfer order.
3. Master Foster: On 1 February 2002, ordered the proceedings to be transferred to Leicester.