Turcu v News Group Newspaper Ltd

On a renewed out-of-time application for permission to appeal based on fresh evidence, permission may be granted where the evidence has sufficient plausibility to create a realistic prospect that it could be received and accepted on appeal. The court need not finally determine admissibility at the permission stage. It may leave that question to the appeal court, including whether to hear the evidence de bene esse. Permission may also be granted to amend the notice of appeal, while original grounds can be left for determination at the appeal.

The claimant, who sued under the name Alin Turcu, brought a defamation claim concerning a News of the World story alleging involvement in a plot to kidnap Mrs Beckham. Eady J held that the defendant had proved its defence of justification. An application for permission to appeal was refused on paper and was not initially renewed.

The claimant then made a renewed application out of time, relying principally on a new witness statement from Mr Gashi. Mr Gashi had not given evidence at trial but now alleged that the supposed conspiracy was a contrived operation. The central question was whether this fresh evidence had sufficient potential to justify permission to appeal and whether the original grounds should proceed if it was not admitted.

Application granted. Lord Justice Rix gave the judgment, with Lord Justice Moses agreeing.

1. The fresh evidence disclosed a realistic prospect that it might be received and accepted on appeal. The court recognised substantial credibility difficulties, including Mr Gashi’s admission that he had lied to the police. Those difficulties did not make the evidence insufficiently plausible for the permission stage.
2. The court was not required to decide finally whether the fresh evidence would be admitted. That question was left to the court hearing the appeal, which could decide whether to receive the evidence or hear it de bene esse.
3. The court did not finally determine whether the original grounds of appeal could proceed without admission of the fresh evidence. Since an appeal would proceed in any event, that issue was adjourned to the court hearing the appeal.
4. Permission was granted for the renewed application to be brought out of time and for the notice of appeal to be amended. The judgment under appeal was not set aside at this stage. The court noted the appellant’s reliance on Bills v Roe [1968] 1 WLR 925 at 930–931, but did not analyse that authority further.

Order: Application granted.

• Court of Appeal (Civil Division) — On the renewed application, the court granted permission to appeal in light of the fresh evidence, granted permission for the application to be made out of time and permitted amendment of the notice of appeal. The original grounds were left for the appeal court.
• Queen’s Bench Division — Eady J’s judgment of 4 May 2005 held that the defendant had proved its defence of justification.