Bennett v Newsquest (London) Ltd

On an application for permission to appeal, substantial material served on a litigant in person at the hearing may disclose a real prospect that the first-instance proceedings were procedurally unfair. The court should consider whether the litigant had a reasonable opportunity to read, prepare and respond to the opposing case. Permission on that ground does not determine the underlying claim’s merits or limitation issues.

The claimant brought libel proceedings concerning a newspaper article published in July 2003. The claim was transferred from the Chancery Division to the Queen’s Bench Division. On 22 February 2006, Eady J granted the defendant summary judgment and dismissed the claimant’s application under section 32 A of the Limitation Act 1980 for an extension of time.

The claimant appealed, alleging that he had been handed a substantial bundle, including a lengthy skeleton argument, only when he arrived at court and had no proper opportunity to prepare a response. The central issue was whether that account disclosed a real prospect that the hearing had been unfair.

1. Lord Justice Brooke granted permission to appeal. The material before the court disclosed a real prospect of success on the claimant’s procedural-fairness ground.

2. The claimant was acting in person. He said that, shortly before the hearing, he received a folder of about 190 pages, including a 17-page skeleton argument. He had no meaningful opportunity to consider the material before the judge entered court, while the defendant’s counsel then addressed the court for about an hour and a half. If established, those circumstances could make the hearing unfair.

3. The court referred to R (Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990, where similar material had been presented at a strike-out hearing involving a litigant in person. Although counsel was under no obligation to send copies of authorities in advance, it was not clear why the claimant could not have received appropriate advance notice of the skeleton argument and intended authorities.

4. The court emphasised that it had only the claimant’s account of what occurred. Permission did not determine whether the hearing was in fact unfair. Nor did it resolve the substantive libel claim. Eady J had concluded that the claim appeared to face complete defences based on absolute privilege and qualified privilege, and had declined to extend time under section 32 A of the Limitation Act 1980.

5. Permission was granted immediately so that the claimant could seek assistance from counsel through the Bar pro bono unit. The appeal was to be listed for two and a half hours before three judges, one of whom could be a High Court judge, with a judge experienced in defamation law if possible.

• Court of Appeal (Civil Division) granted permission to appeal on the procedural-fairness issue.
• Queen’s Bench Division: Eady J granted the defendant summary judgment and dismissed the claimant’s application for an extension of time under section 32 A of the Limitation Act 1980 on 22 February 2006.