Howard v Ministry Of Defence

At the permission stage, an appeal may proceed where the court cannot say that there are no real prospects of success, even if it has serious reservations about the eventual merits. Granting permission does not determine whether the appeal will succeed. In a limitation dispute under the Limitation Act 1980, an arguable issue remained whether the claimant had sufficient knowledge in 1988 to formulate a malicious-falsehood claim and whether relevant falsehoods had been deliberately concealed. Permission and an extension of time were granted.

The claimant sought permission to appeal a preliminary limitation decision of His Honour Judge Mellor, given in the High Court on 31 October 2001. His claim included personal injury and malicious falsehood allegations arising from alleged falsification and later disclosure of Royal Air Force medical records. No permission was sought regarding the personal injury claim.

The judge held that the claimant knew by 1988 of the alleged false attribution of mental illness and therefore could not rely on section 32 of the Limitation Act 1980. The claimant argued that the information needed to formulate a proper malicious-falsehood claim, and to establish deliberate concealment, was not available until 1994. The central issue was whether the proposed appeal had real prospects of success.

Applications allowed. Lord Justice Latham granted an extension of time and permission to appeal on the grounds stated in the notice of appeal.

1. The application concerned only the malicious-falsehood claim. No permission to appeal was sought in relation to the personal injury claim.
2. The first-instance decision effectively determined a preliminary limitation issue. The judge considered that knowledge acquired in 1988 of the alleged false attribution gave the claimant all facts necessary to formulate his claim, and that section 32 of the Limitation Act 1980 could not assist him.
3. The proposed appeal raised an arguable challenge to that conclusion. The claimant contended that the documents required to show that the attribution resulted from falsehoods, rather than mistake, were unavailable until 1994. He also relied on material said to support deliberate concealment of the falsehoods.
4. Although the court had serious reservations about the ultimate prospects of success, it could not say that there were no real prospects of success. That threshold justified granting permission. The order did not determine the substantive limitation issue or imply that the appeal would ultimately succeed.

• Court of Appeal (Civil Division): On 15 May 2002, granted an extension of time and permission to appeal on the malicious-falsehood limitation grounds: [2002] EWCA Civ 766.
• High Court, Queen's Bench Division, Norwich District Registry: His Honour Judge Mellor decided on 31 October 2001 that the claimant's knowledge in 1988 was sufficient for limitation purposes and that section 32 of the Limitation Act 1980 was unavailable.