McKennitt & Ors v Ash & Anor

On a renewed application for permission to appeal, permission may properly be granted where the proposed appeal has a prospect of success that cannot be characterised as fanciful and concerns an important, developing area in which an appeal may clarify relevant principles even if it does not change the result. In an Article 8 and Article 10 dispute, issues concerning public figures, public interest, shared experiences, allegedly false material and confidentiality may justify substantive consideration, without determining the merits. A litigant in person has no realistic Article 6 complaint where the case was previously formulated with legal assistance, the relevant arguments were rehearsed before trial, and the judge was fully aware of the defence case.

The defendants sought renewed permission to appeal Eady J’s judgment of 21 December 2005. The claim concerned the proposed publication of a book by the first defendant, a former friend of the first claimant, with the second defendant acting as publisher. The judge granted relief concerning some passages on breach of confidence, but not others, and refused permission to appeal.

Sir Charles Mantell granted permission concerning the costs order but refused permission on the remaining grounds. The Court of Appeal considered whether grounds 1 to 5 raised arguable and interrelated issues concerning Articles 8 and 10, public figures, public interest, shared experiences, allegedly false material, privacy and defamation, and confidentiality arising from earlier Chancery proceedings. It separately considered whether the first defendant’s lack of representation at trial engaged Article 6.

Application granted in part. Richards LJ held that the proposed appeal raised issues of sufficient substance to warrant permission. The court accepted that the prospect of success was not fanciful and that the case concerned an important and developing area of law in which appellate consideration could clarify relevant principles even if it did not alter the outcome.

1. Permission was granted on grounds 1 to 5 inclusive. The grounds were interrelated and concerned the balance between Article 8 and Article 10 rights, including the special position of public figures and the public interest in information about them, as discussed in A v B Plc [2003] QB 195.
2. The court identified the continuing relevance of the public-interest defence and the question whether the approach in Woodward v Hutchins [1977] 1 WLR 760 remained good law or should have been applied.
3. The proposed appeal also raised the weight to be given to the defendant’s right to tell her own story where experiences were shared, the use of privacy proceedings concerning allegedly false material instead of defamation proceedings, and whether the history behind earlier Chancery proceedings and the Tomlin order was confidential.
4. Permission was refused on ground 6. The fact that the defendant appeared in person did not give the ground a realistic prospect of success. She had previously been represented, pleadings, evidence and skeleton arguments had been prepared with legal assistance, the defence arguments had been rehearsed at a pre-trial review, and the judge was fully aware of the case advanced.

Ward LJ agreed. The order was that the application be granted in part.

1. Court of Appeal (Civil Division): renewed application for permission to appeal; permission granted on grounds 1 to 5 and refused on ground 6.
2. Queen’s Bench Division: Eady J’s judgment dated 21 December 2005 granted relief concerning some passages in the proposed publication and refused relief concerning others; permission to appeal was refused.
3. Permission stage: Sir Charles Mantell granted permission concerning the costs order but refused permission on the remaining grounds.